Filed
Pursuant to Rule 424(b)(3)
Registration
No. 333-158328
PROSPECTUS
SMF
ENERGY CORPORATION
11,515,212
Shares of Common Stock
________________
This
prospectus is part of a registration statement that we have filed with the
Securities and Exchange Commission, using a shelf registration
processes. Under this shelf registration process, we may offer and
sell, from time to time, up to 10,000,000 shares of our common stock in one or
more transactions. In addition, the selling stockholders identified starting on
page 11 may also use this prospectus to offer and sell, from time to time, up to
an aggregate of 1,515,212 shares of our common stock in one or more
transactions. We will not receive any proceeds from the sale of the
shares being sold by the selling stockholders.
When we
(or the selling stockholders) offer shares of our common stock, we will provide
a supplement to this prospectus that will contain more specific information
about the terms of that offering, including the prices at which the shares will
be sold. We may also add, update or change in the prospectus
supplement any of the information contained in this prospectus. You
should read both this prospectus and the prospectus supplement, together with
any additional information that is incorporated by reference into this
prospectus.
The
shares of our common stock may be offered for sale in a number of different ways
and at market prices prevailing at the time of sale or at privately negotiated
prices. More information about how the shares of our common stock may
be sold is included in the section entitled “Plan of Distribution” in this
prospectus.
Our
common stock is listed on the Nasdaq Capital Market under the symbol
“FUEL.” On May 29, 2009, the closing price of our common stock
was $0.32 per share.
The
aggregate market value of our outstanding common stock held by non-affiliates
was $4,157,778, which was calculated based on 12,993,056 shares of outstanding
common stock held by non-affiliates as of May 29, 2009 and on a per share
price of $.32, representing the closing price of our common stock on
May 29, 2009. We have not offered any securities pursuant to
General Instruction I.B.6. of Form S-3 during the prior 12 calendar
month period that ends on and includes the date of this prospectus.
This
prospectus may not be used to offer and sell securities unless accompanied by
the applicable prospectus supplement.
For
a discussion of certain risks that should be considered by prospective
investors, see “Risk Factors” beginning on page 3 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 June 26, 2009.
TABLE
OF CONTENTS
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Page
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ABOUT
THIS PROSPECTUS
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1
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SMF
ENERGY CORPORATION
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1
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FORWARD-LOOKING
STATEMENTS
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2
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RISK
FACTORS
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3
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USE
OF PROCEEDS
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8
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SELLING
STOCKHOLDERS
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8
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PLAN
OF DISTRIBUTION
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14
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LEGAL
MATTERS
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15
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EXPERTS
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16
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WHERE
YOU CAN FIND ADDITIONAL INFORMATION
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16
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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16
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with
the Securities and Exchange Commission (the “SEC”) using a “shelf” registration
process. Under this shelf registration process, by using this
prospectus, together with a prospectus supplement, we may offer and sell, from
time to time, in one or more offerings, up to 10,000,000 shares of our common
stock. In addition, the selling stockholders identified starting on
page 11 may offer and sell, from time to time, in one or more offerings, up to
1,515,212 shares of our common stock.
This
prospectus provides you with information you should know before investing in our
common stock. Each time that we (or the selling stockholders) offer and sell our
common stock, we will provide one or more prospectus supplements that will
contain specific information about the terms of that specific offering and the
specific manner in which the common stock may be offered. The
prospectus supplement may also add to, update or change any of the information
contained in this prospectus. To the extent that any statement we
make in a prospectus supplement is inconsistent with statements made in this
prospectus, the statements made in this prospectus will be deemed modified or
superseded by those made in the prospectus supplement. You should
read both this prospectus and the applicable prospectus supplement together with
the additional information described under "Where You Can Find Additional
Information” and “Incorporation of Certain Information by Reference" before
making an investment decision. This prospectus may not be used to
sell our common stock unless it is accompanied by a prospectus
supplement.
You
should rely only on the information contained in or incorporated by reference in
this prospectus and any prospectus supplement. Neither we nor the
selling stockholders have authorized anyone to provide you with information
other than the information contained or incorporated by reference in this
prospectus or any prospectus supplement. If anyone provides you with
different or inconsistent information, you should not rely on
it. Neither we nor the selling stockholders are making an offer to
sell these securities in any jurisdiction where the offer or sale is not
permitted. The information contained in this prospectus speaks only
as of the date of this prospectus and the information in the documents
incorporated or deemed to be incorporated by reference in this prospectus speaks
only as of the respective dates that those documents were filed with the
SEC.
As used
in this prospectus, “SMF,” “we,” “us” and “our” refer to SMF Energy
Corporation. The term “selling stockholders” refers, collectively, to
the selling stockholders named under the caption “Selling Stockholders” in this
prospectus.
SMF
ENERGY CORPORATION
We are a
supplier of specialized transportation and distribution services for petroleum
products and chemicals. We provide commercial mobile and bulk
fueling, lubricant and chemical distribution, emergency response services and
transportation logistics to the
trucking, manufacturing,
construction, shipping, utility, energy, chemical, telecommunications and
government services industries.
As of December 31, 2008, we
were conducting operations through 31 service locations in the eleven states of
Alabama, California, Florida, Georgia, Louisiana, Mississippi, Nevada, North
Carolina, South Carolina, Tennessee and Texas.
We
provide commercial mobile and bulk fueling, integrated out-sourced fuel
management, packaging, distribution and sale of lubricants and chemicals,
transportation logistics, and emergency response services. Our
specialized equipment fleet delivers diesel fuel and gasoline to customer
locations on a regularly scheduled or as needed basis, refueling vehicles and
equipment, re-supplying bulk storage tanks, and providing fuel for emergency
power generation systems. Our fleet also handles the movement of
customer equipment and storage tanks we provide for use by our
customers. We also distribute a wide variety of specialized petroleum
products, lubricants and chemicals to our customers in Texas and in certain
other markets.
On
February 14, 2007, we changed our name from Streicher Mobile Fueling, Inc. to
SMF Energy Corporation and reincorporated in Delaware. Our principal
executive offices are located at 200 West Cypress Creek Road, Suite 400, Ft.
Lauderdale, Florida 33309, and our telephone number is (954)
308-4200. Our website is
http://www.mobilefueling.com
. The
information on our website does not constitute part of this
prospectus.
FORWARD-LOOKING
STATEMENTS
This
prospectus, including the information incorporated by reference herein, 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.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. You
should carefully consider the following discussion of risks, in addition to the
other information included or incorporated by reference in this prospectus,
before purchasing the common stock. 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 Assurance of
Future Profitability; Losses from Operations; Need for
Capital.
We incurred net losses of $6.8 million and
$6.6 million in the fiscal years ended June 30, 2008 and 2007,
respectively, and there is no assurance that we will not sustain additional
losses in subsequent periods. In order to generate profits in the
future, we need to reduce interest expense, increase the volume of products and
services sold at profitable margins, control costs and generate sufficient cash
flow to support our working capital and debt service
requirements. There is no assurance that we will be able to avoid net
losses in the future or that we will be able to raise additional capital on
acceptable terms if our capital needs cannot be satisfied by cash flow from
operations. During the past few years, we faced challenges that
required us to raise additional capital, including increased need for supplier
credit in the face of historic increases in fuel prices, a general tightening of
the credit markets, and the need to meet Nasdaq listing
requirements. In the future, we may need to raise additional capital
to fund new acquisitions, the expansion or diversification of existing
operations or additional debt repayment. While we have in the past
been successful in obtaining needed capital, there can be no assurance that we
will be able to do so in the future.
Working Capital
Needs Dependent Upon Credit Facility.
Our business is
supported by the line of credit with our principal lender that funds our working
capital needs, which matures on July 1, 2009. In addition, our August
2007 senior subordinated secured promissory notes (the “August 2007 Notes”)
mature on December 31, 2009. We are currently pursuing various
financing alternatives in order to satisfy our obligations prior to the maturity
dates of the line of credit and the August 2007 Notes,
respectively. We presently anticipate that, so long as we continue to
meet the terms of all of our existing bank line of credit covenants, we will be
able to successfully extend, renew or replace our line of credit before it
expires. Our ability to do so, however, may be tied to our success in
recapitalizing the Company generally, including a refinancing or conversion to
equity of the August 2007 Notes. There can be no assurance that we
will be able to effect such a recapitalization or that we will be able to
extend, renew or replace our bank line of credit at acceptable
terms. While we are optimistic that, in light of our steadily
improving financial results, such new financing will be available to us, we
recognize that the unprecedented deterioration of the national economy and the
financial markets over the past several months make almost any financing
potentially problematic. If we are not successful in refinancing or
repaying the August 2007 Notes and extending or replacing our bank line of
credit before their respective maturities, our business, our results of
operation and our financial condition would be adversely affected.
Growth Dependent
Upon Future Expansion; Risks Associated With Expansion into New
Markets.
We intend to continue to expand through acquisitions
but our growth will also depend upon our ability to achieve greater penetration
in existing markets and to successfully enter new markets. 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
by acquisitions or by entering new markets.
Interest
Expense.
A substantial portion of our net losses for the years
ended June 30, 2008 and 2007 were attributable to the substantial interest
burden borne by the Company, including $3.06 million of interest in fiscal 2008
and $3.73 million in 2007, which contributed to net losses of $6.77 million and
$6.59 million, respectively, for those years. Substantially all of
this interest is attributable to interest on our revolving line of credit bank
debt and on the August 2007 Notes. If and to the extent that interest
rates generally increase or we are otherwise required to bear higher interest
rates for our future borrowings, our interest expense could increase, adversely
affecting our results of operations and financial
condition. Similarly, if we make one or more acquisitions or if we
incur additional net losses in the future and are required to borrow funds to
fund those acquisitions or offset those losses, the interest on the higher level
of debt could have a detrimental effect on our results of operations and
financial condition.
Effect of
Preferred Stock Dividends.
On February 29, 2008, we issued
4,587 shares of our Series A Convertible Preferred Stock for approximately $2.5
million in cash and debt. On March 12, 2008, we issued 1,985 shares
of our Series B Convertible Preferred Stock for approximately $1.8 million in
debt. Finally, on August 15, 2008, we issued 229 shares of Series C
Convertible Preferred Stock for $149,000. Each share of our Preferred
Stock is convertible into 1,000 shares of our common stock. The
quarterly dividends on the Preferred Stock are payable at a rate of 12% per
annum, so that the aggregate annual dividend obligation on the currently
outstanding shares of Preferred Stock is approximately $530,000. The
burden of paying these dividends may, together with the interest and other debt
service expenses on our revolving bank debt and our August 2007 senior
subordinated secured debt, limit the amount of capital available to the Company
and our ability to finance acquisitions and otherwise expand our
operations. While we can require conversion of the preferred stock
into common stock under certain circumstances, we cannot predict when or if
those circumstances will arise.
Acquisition
Availability; Integrating Acquisitions.
Our 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.
Nasdaq Listing of
Our Common Stock.
Our common stock currently trades on the
Nasdaq Capital Market under the symbol FUEL. While we consider the
listing on Nasdaq to be a valuable attribute of our common stock and other
securities, there can be no assurance that such listing will
continue. During Fiscal 2008, our listing on Nasdaq came into
question on two different grounds. On February 19, 2008, we received
a letter from Nasdaq stating that we did not comply with the requirement of
Nasdaq Marketplace Rule 4310(c)(3) requiring listed companies to have $2,500,000
in stockholders' equity. While we subsequently resumed compliance
with this stockholders’ equity requirement, there is no assurance, however, that
such compliance will continue indefinitely.
In
addition, in December of 2007, Nasdaq notified us that, because the bid price of
our common stock had closed below $1.00 for 30 consecutive business days, we
were not in compliance with the minimum $1.00 per share requirement of
Marketplace Rule 4310(c). After an appeal to a Nasdaq Listing
Qualifications Panel, we were granted a temporary exception to the minimum bid
price requirement to allow us time to complete a reverse stock split to reduce
the number of shares outstanding and, correspondingly, increase the stock price
until December 23, 2008. Subsequently, in light of the depressed
economic conditions and the resulting lower prices in the stock market
generally, Nasdaq extended our deadline to regain compliance to at least
September 29, 2009. Moreover, while we believe that a reverse stock
split would increase the trading price of the common stock above the $1.00
minimum bid price long enough to ensure long term compliance with Nasdaq rules,
there is no assurance that it will in fact do so.
Effects of Nasdaq
Delisting.
If our common stock is delisted from Nasdaq, we
believe that it would trade in the over-the-counter market on the OTC Bulletin
Board (the “OTCBB”), which was established for trading the securities of
reporting companies that do not meet the Nasdaq listing
requirements. Because the OTCBB is generally considered less
efficient than Nasdaq, it could be more difficult for an existing shareholder to
sell shares of our common stock after a delisting from Nasdaq. On the
OTCBB, trading volumes are typically lower, reporting of transactions can be
delayed, and coverage of the Company by securities analysts and news media,
which is already limited, may be reduced. In turn, these factors
could result in lower prices for our common stock or larger “spreads” between
the “bid” and “ask” prices quoted by market makers for shares of the common
stock, either of which could reduce the prices available for sales of our common
stock by existing shareholders.
Delisting
from Nasdaq could also impair the Company’s ability to raise additional capital
through equity or debt financing since Nasdaq listed securities are typically
viewed as more liquid than securities that are not traded on a national
securities exchange. In addition, if delisting does cause lower
prices for our common stock, it could then cause an increase in the ownership
dilution to shareholders when the Company issues equity securities in financing
or other transactions. The price at which we issue shares in such
transactions is generally based on or related to the market price of our common
stock, so a decline in the market price could result in the need for us to issue
a greater number of shares to raise a given amount of funding or to acquire a
given dollar value of goods or services.
In
addition, if our common stock is not listed on Nasdaq, our common stock may
become subject to Rule 15g-9 under the Securities and Exchange Act of 1934, as
amended (the “Exchange Act”) because our common stock may be classified as a
“penny stock” under Exchange Act Rule 3a51-1. That rule imposes
additional sales practice requirements on broker-dealers who sell low-priced
securities to persons other than established customers and institutional
accredited investors. For transactions covered by this rule, a
broker-dealer must make a special suitability determination for the purchaser
and have received the purchaser’s written consent to the transaction prior to
sale. Consequently, the rule may affect the ability of broker-dealers
to sell our common stock and may impair the ability of our shareholders to sell
their common stock in the secondary market. Moreover, investors may
be less interested in purchasing low-priced securities because the brokerage
commissions, as a percentage of the total transaction value, tend to be higher
for such securities. Also, institutional investors will usually not
invest in low-priced securities (other than those which focus on
small-capitalization companies or low-priced securities). For these
reasons, a classification of our common stock as a “penny stock” under Rule
3a51-1 would probably adversely affect the liquidity and the value of that
stock.
Finally,
if our common stock was no longer listed on Nasdaq or any other national
securities exchange, we could no longer use the SEC’s short form registration
forms, such as Form S-3, to register the resale of privately sold shares of our
common stock under the Securities Act of 1933. Instead, we would have
to use the longer registration forms, such as Form S-1, which are significantly
more time consuming and costly. While the negative impact of long
form registration has been reduced by recent SEC rule changes permitting most
purchasers of stock in unregistered offering to freely resell their securities
six months after the purchase under Rule 144, long form registration would
probably require more time, effort and expense, and may in turn limit the value
of our common stock.
Price
Depreciation After Reverse Stock Split.
The long-term efficacy
of a reverse stock split in maintaining compliance with Nasdaq’s minimum bid
price requirement is uncertain. While the short-term result of a
reverse stock split can in most cases be reasonably predicted, the long-term
consequences are more difficult to confirm. The price of our common
stock is likely to be affected by our performance and by general market and
economic conditions that cannot be predicted or evaluated by the Board of
Directors at this time. Accordingly, even if the reverse stock split
is successful in reestablishing compliance with Nasdaq’s minimum bid price
requirement and we meet the stockholders’ equity and other requirements needed
to maintain our Nasdaq listing, there is no assurance that the aggregate market
value of our common stock will be greater after a reverse stock split than it
would have been without ever effecting a reverse stock split.
Volatility of
Trading Market for Our Stock.
During the past few years, our
stock has sometimes traded in large daily volumes and other times at much lower
volumes, in many cases at wide price variances. This volatility could
make it difficult for shareholders to sell shares at a predictable price or at
specific times. Quarterly and annual operating results, changes in
general conditions in the economy, the financial markets or other developments
affecting us could also lead to significant fluctuations in the market price of
our common stock.
Need to Maintain
Effective Internal Controls.
In fiscal 2006, our management
identified a series of 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. Even though we have taken the necessary
steps to correct the identified material weakness and have not identified any
material weakness since that time, it is possible that we may identify another
material weakness in our internal controls in the future. Moreover,
even if we do not identify any material weakness or significant deficiencies,
there is no assurance that our system of internal controls will prevent all
potential errors or fraud.
Dependence on Key
Personnel.
Our future success 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 any key 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 us.
Fuel Pricing and
Supply Availability; Effect on Profitability.
Diesel fuel and
gasoline are commodities that are refined and distributed by numerous
sources. We purchase the fuel delivered to our customers from
multiple suppliers at daily market prices and in some cases qualify 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. We have
therefore not engaged in derivatives or futures trading to hedge fuel price
movements. On the other hand, if we cannot continue to utilize
cost-plus pricing when billing our customers, margins would likely decrease and
losses could increase. 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 and labor
disruptions. Limitations on the amount of credit available from
suppliers became a more significant issue for us in 2008 as a result of the
dramatic increases in the price of fuel and other petroleum products during the
first part of the year. As a result, increasing the availability of
short-term credit for fuel purchases became one of the principal motivations for
raising new capital. Irrespective of the reason, any reduction of the
availability of fuel supplies or the short-term credit needed to obtain fuel
supplies for our customers could impact our ability to provide mobile fueling,
commercial bulk fueling, and emergency response services and our
profitability.
Risks Associated
with Customer Concentration; Absence of Written
Agreements.
Although we provide services to many customers, a
significant portion of our revenue is generated from a few of our larger
customers. Sales to our largest customer, the United States Postal
Service, represented 8.1% of our total revenue in fiscal 2008. 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 those customers. We may also 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 the absence of written agreements, our business,
results of operations and financial condition could be materially adversely
affected if one or more of our larger customers were lost or if we were to
experience a high rate of service terminations of our other
customers.
Effect of Reduced
Fuel Usage.
The dramatic increases
in fuel prices in 2008 caused many businesses, including some of our customers,
to take steps to reduce the amount of fuel that they consume in their operations
by driving fewer miles or, in some case, using higher mileage or alternative
fuel vehicles. In turn, these reductions reduced the volumes of fuel
delivered by us to those customers. It is also possible that the
equally dramatic downturn in the national economy in 2009 will cause some
existing customers to reduce their fuel consumption in the future. In
any event, if the total fuel usage of our existing customers declines further,
we will be required to obtain additional customers to replace the lost
volume. If we cannot replace the lost volume with new customers, our
revenues and results of operation will be negatively affected.
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 the costs of that redesign and implementation initially increased
our expenses and adversely affected our results of operations, now that it has
been completed, it has reduced our operating costs and improved our ability to
effectively manage our business and to integrate future
acquisitions. There can be no assurance, however, that such benefits
will continue in the future or that we will in fact successfully manage our
future growth.
Competition.
We
compete 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, and 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, including business interruption; 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 our operations. There can be no
assurance that we will be able to continue to comply with existing and future
regulatory requirements without incurring substantial costs or otherwise
adversely affecting our operations.
Changes in
Environmental Requirements.
We expect 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, 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 our industry in general, and on us 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 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
Unless we
specify another use in the applicable prospectus supplement, we will use the net
proceeds from the sale of the common stock offered by us for general corporate
purposes, which may include working capital and/or capital
expenditures. We will not receive any proceeds from the sales of
common stock by the selling stockholders.
SELLING
STOCKHOLDERS
We have
included 1,515,212 shares of common stock owned by the selling stockholders in
the registration statement of which this prospectus is a part. These
shares of common stock consist of those shares that are issuable to certain
selling stockholders upon (i) the conversion of our Series C Preferred
Stock, which was issued in a private placement in August 2008 and (ii) the
conversion of our 12% Unsecured Convertible Promissory Notes, which were issued
in a private placement in September 2008. Also included are those
shares of common stock that were issued in February 2009 and March 2009 in
connection with the deferral and conversion of the interest payments due on our
11½% Senior Secured Convertible Promissory Notes and our 12% Unsecured
Convertible Promissory Notes, respectively. We have prepared this
table based on information furnished to us by or on behalf of the selling
stockholders.
The table
lists the selling stockholders and other information regarding the beneficial
ownership of common stock by the selling stockholders. Beneficial
ownership is determined in accordance with Rule 13d-3(d) as promulgated by the
SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act
”). Beneficial ownership generally includes voting or investment
power with respect to securities and also includes any shares that the selling
stockholders have a right to acquire within sixty days of March 11,
2009. 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 15,200,122
shares of our common stock issued and outstanding as of March 11,
2009.
To the
best of our knowledge, none of the selling stockholders has had any position,
office or other material relationship with us, or with any of our affiliates,
within the past three years except that Mr. C. Rodney O’Connor was and remains a
member of our Board of Directors.
|
|
|
Ownership
of Shares Prior to Offering
|
|
|
|
|
|
|
|
Number
of Shares Beneficially Owned
|
|
|
Shares
of Common Stock Issuable Upon the Conversion of the Series C Preferred
Stock
|
|
|
Shares
of Common Stock Issuable Upon the Conversion of the 12% Unsecured
Convertible Promissory Notes
|
|
|
Number
of Shares Being Offered for Sale in this Offering
|
|
|
Number
of Shares Beneficially
Owned
(1)
|
|
|
|
|
|
William
R. and Patricia M. Coleman, JT
|
|
|
76,000
|
(2)
|
|
|
76,000
|
|
|
|
--
|
|
|
|
76,000
|
|
|
|
0
|
|
|
|
*
|
|
|
William
Scott and Karen Kaplan Living Trust dtd 3/17/04
|
|
|
287,145
|
(3)
|
|
|
153,000
|
|
|
|
--
|
|
|
|
156,880
|
|
|
|
130,265
|
|
|
|
*
|
|
|
Bee
Publishing Company
|
|
|
332,463
|
(4)
|
|
|
--
|
|
|
|
115,385
|
|
|
|
116,678
|
|
|
|
215,785
|
|
|
|
1.42
|
|
|
Bee
Publishing Company 401(K) Profit Sharing Plan
|
|
|
91,795
|
(5)
|
|
|
--
|
|
|
|
76,923
|
|
|
|
77,785
|
|
|
|
14,010
|
|
|
|
*
|
|
|
Frank
J. Campbell III
|
|
|
715,000
|
(6)
|
|
|
--
|
|
|
|
153,846
|
|
|
|
156,864
|
|
|
|
558,136
|
|
|
|
3.67
|
|
|
Judith
W. Campbell
|
|
|
77,785
|
(7)
|
|
|
--
|
|
|
|
76,923
|
|
|
|
77,785
|
|
|
|
0
|
|
|
|
*
|
|
|
Bill
B. and Michelle W. DeWitt Associates Limited Partnership
|
|
|
337,570
|
(8)
|
|
|
--
|
|
|
|
153,846
|
|
|
|
155,570
|
|
|
|
182,000
|
|
|
|
1.20
|
|
|
Roman
Fedorak
|
|
|
84,893
|
(9)
|
|
|
--
|
|
|
|
38,462
|
|
|
|
38,893
|
|
|
|
46,000
|
|
|
|
*
|
|
|
C.
Rodney O’Connor
|
|
|
1,539,383
|
(10)
|
|
|
--
|
|
|
|
384,615
|
|
|
|
388,925
|
|
|
|
1,150,458
|
|
|
|
7.57
|
|
|
Scudder
Smith Family Assoc LLC
|
|
|
258,261
|
(11)
|
|
|
--
|
|
|
|
115,385
|
|
|
|
117,713
|
|
|
|
140,548
|
|
|
|
*
|
|
|
Les
R. Baledge
|
|
|
179,854
|
(12)
|
|
|
--
|
|
|
|
--
|
|
|
|
8,621
|
|
|
|
171,233
|
|
|
|
1.13
|
|
|
Capital
Properties L.L.C.
|
|
|
53,957
|
(13)
|
|
|
--
|
|
|
|
--
|
|
|
|
2,587
|
|
|
|
51,370
|
|
|
|
*
|
|
|
Constance
Blass O’Neill Trust #3, Patricia B. Blass, Trustee
|
|
|
162,129
|
(14)
|
|
|
--
|
|
|
|
--
|
|
|
|
4,225
|
|
|
|
157,904
|
|
|
|
1.04
|
|
|
Rockmore
Investment Master Fund, Ltd
|
|
|
144,813
|
(15)
|
|
|
--
|
|
|
|
--
|
|
|
|
6,466
|
|
|
|
138,347
|
|
|
|
*
|
|
|
Fred
C. Applegate Trust, Fred C. Applegate Trustee U/A DTD
10/8/92
|
|
|
502,501
|
(16)
|
|
|
--
|
|
|
|
--
|
|
|
|
4,526
|
|
|
|
497,975
|
|
|
|
3.28
|
|
|
|
|
Ownership
of Shares Prior to Offering
|
|
|
|
|
|
|
|
Number
of Shares Beneficially Owned
|
|
|
Shares
of Common Stock Issuable Upon the Conversion of the Series C Preferred
Stock
|
|
|
Shares
of Common Stock Issuable Upon the Conversion of the 12% Unsecured
Convertible Promissory Notes
|
|
|
Number
of Shares Being Offered for Sale in this Offering
|
|
|
Number
of Shares Beneficially
Owned
(1)
|
|
|
|
|
|
Joshua
Tree Capital Partners, LP
|
|
|
361,673
|
(17)
|
|
|
--
|
|
|
|
--
|
|
|
|
12,932
|
|
|
|
348,741
|
|
|
|
2.29
|
|
|
Dupont
Pension Trust
|
|
|
719,415
|
(18)
|
|
|
--
|
|
|
|
--
|
|
|
|
34,483
|
|
|
|
684,932
|
|
|
|
4.50
|
|
|
Triage
Capital Management LP
|
|
|
831,025
|
(19)
|
|
|
--
|
|
|
|
--
|
|
|
|
15,827
|
|
|
|
815,198
|
|
|
|
5.36
|
|
|
Patricia
McDermott
|
|
|
141,047
|
(20)
|
|
|
--
|
|
|
|
--
|
|
|
|
2,480
|
|
|
|
138,567
|
|
|
|
*
|
|
|
Millennium
Fixed Income Fund, L.P.
|
|
|
278,227
|
(21)
|
|
|
--
|
|
|
|
--
|
|
|
|
12,932
|
|
|
|
265,295
|
|
|
|
1.75
|
|
|
Arnold
G. Bowles
|
|
|
226,716
|
(22)
|
|
|
--
|
|
|
|
--
|
|
|
|
1,294
|
|
|
|
225,422
|
|
|
|
1.48
|
|
|
Joseph
Kornfield
|
|
|
10,792
|
(23)
|
|
|
--
|
|
|
|
--
|
|
|
|
518
|
|
|
|
10,274
|
|
|
|
*
|
|
|
Delaware
Charter G & T Cust IRA FBO Frank J Campbell III
|
|
|
223,165
|
(24)
|
|
|
--
|
|
|
|
--
|
|
|
|
2,069
|
|
|
|
221,096
|
|
|
|
1.45
|
|
|
Delaware
Charter G & T Cust FBO Philip Lebovitz IRA
|
|
|
16,355
|
(25)
|
|
|
--
|
|
|
|
--
|
|
|
|
6,081
|
|
|
|
10,274
|
|
|
|
*
|
|
|
Richard
A. Jacoby
|
|
|
102,427
|
(26)
|
|
|
--
|
|
|
|
--
|
|
|
|
4,311
|
|
|
|
98,116
|
|
|
|
*
|
|
|
Michael
Bevilacqua
|
|
|
10,792
|
(27)
|
|
|
--
|
|
|
|
--
|
|
|
|
518
|
|
|
|
10,274
|
|
|
|
*
|
|
|
Anthony
C. McDermott
|
|
|
253,957
|
(28)
|
|
|
--
|
|
|
|
--
|
|
|
|
2,587
|
|
|
|
251,370
|
|
|
|
1.65
|
|
|
Delaware
Charter G & T Cust FBO Alan Stern IRA
|
|
|
10,792
|
(29)
|
|
|
--
|
|
|
|
--
|
|
|
|
518
|
|
|
|
10,274
|
|
|
|
*
|
|
|
Mark
D. Wittman
|
|
|
115,972
|
(30)
|
|
|
--
|
|
|
|
--
|
|
|
|
1,725
|
|
|
|
114,247
|
|
|
|
*
|
|
|
Ecker
Family Partnership
|
|
|
16,187
|
(31)
|
|
|
--
|
|
|
|
--
|
|
|
|
776
|
|
|
|
15,411
|
|
|
|
*
|
|
|
Alberto
Guadagnini
|
|
|
226,716
|
(32)
|
|
|
--
|
|
|
|
--
|
|
|
|
1,294
|
|
|
|
225,422
|
|
|
|
1.48
|
|
|
Amir
L Ecker & Maria T. Ecker JT WROS
|
|
|
54,631
|
(33)
|
|
|
--
|
|
|
|
--
|
|
|
|
1,638
|
|
|
|
52,993
|
|
|
|
*
|
|
|
Leon
Frenkel
|
|
|
796,349
|
(34)
|
|
|
--
|
|
|
|
--
|
|
|
|
3,966
|
|
|
|
792,383
|
|
|
|
5.21
|
|
|
Pershing
LLC F/B/O Leonid Frenkel IRA
|
|
|
407,616
|
(35)
|
|
|
--
|
|
|
|
--
|
|
|
|
10,863
|
|
|
|
396,753
|
|
|
|
2.61
|
|
|
Periscope
Partners L.P.
|
|
|
208,964
|
(36)
|
|
|
--
|
|
|
|
--
|
|
|
|
2,156
|
|
|
|
206,808
|
|
|
|
1.36
|
|
|
Gabriel
& Alma Elias JT WROS
|
|
|
107,912
|
(37)
|
|
|
--
|
|
|
|
--
|
|
|
|
5,173
|
|
|
|
102,739
|
|
|
|
*
|
|
|
Carolyn
Wittenbraker
|
|
|
69,583
|
(38)
|
|
|
--
|
|
|
|
--
|
|
|
|
1,035
|
|
|
|
68,548
|
|
|
|
*
|
|
|
Davis
S. Allsopp
|
|
|
10,792
|
(39)
|
|
|
--
|
|
|
|
--
|
|
|
|
518
|
|
|
|
10,274
|
|
|
|
*
|
|
|
TOTAL
|
|
|
10,044,654
|
|
|
|
229,000
|
|
|
|
1,115,385
|
|
|
|
1,515,212
|
|
|
|
8,529,442
|
|
|
|
|
|
_______________
|
*
|
Less
than 1% of the shares outstanding.
|
|
(1)
|
Assumes
that (i) all of the shares of Series C Preferred Stock are converted into
common stock; (ii) all of the 12% Unsecured Convertible Promissory Notes
(the “12% Notes”) are converted into common stock; (iii) all of the shares
of common stock currently beneficially owned by the selling stockholders
and registered hereunder are sold; and (iv) the selling stockholders
acquire no additional shares of common stock before the completion of this
offering.
|
|
(2)
|
Includes
76,000 shares of common stock issuable upon conversion of Series C
Preferred Stock.
|
|
|
|
|
(3)
|
Includes
(i) 153,000 shares of common stock issuable upon conversion of Series C
Preferred Stock; (ii) 54,556 shares of common stock directly owned by the
selling stockholder; (iii) 2,534 shares of common stock issuable upon the
exercise of certain warrants, and (iv) 77,055 shares of common stock
issuable upon the conversion of certain promissory
notes. William Scott and Karen Kaplan, trustees, share voting
and investment control over the shares held by the selling
stockholder.
|
|
|
|
|
(4)
|
Includes
(i) 115,385 shares of common stock issuable upon conversion of the 12%
Notes; (ii) 101,293 shares of common stock directly owned by the selling
stockholder; (iii) 20,000 shares of common stock issuable upon the
exercise of certain warrants; (iv) 862 shares of common stock owned by Bee
Publishing Co. Inc. 401(K) Profit Sharing Plan; (v) 14,000 shares of
common stock issuable upon exercise of certain warrants owned by Bee
Publishing Co. Inc. 401(K) Profit Sharing Plan; (vi) 76,923 shares of
common stock issuable upon conversion of the 12% Notes held by Bee
Publishing Co. Inc. 401(K) Profit Sharing Plan; (vii) 4,000 shares of
common stock issuable upon the exercise of certain warrants owned by Bee
Publishing Co. Inc. Section 401(K) Profit Sharing Plan
Rollover. Helen W. Smith, an officer of Bee Publishing Company,
(“Bee Publishing”) has voting and investment control over the shares held
by Bee Publishing.
|
|
|
|
|
(5)
|
Includes
(i) 76,923 shares of common stock issuable upon the conversion of the 12%
Notes; (ii) 862 shares of common stock directly owned by the selling
stockholder; and (iii) 14,000 shares of common stock issuable upon
exercise of certain warrants. Helen W. Smith, trustee, has
voting and investment control over the shares held by the selling
stockholder.
|
|
|
|
|
(6)
|
Includes
(i) 153,846 shares of common stock issuable upon conversion of the 12%
Notes; (ii) 20,636 shares of common stock directly owned by the selling
stockholder; (iii) 17,668 shares of common stock issuable upon the
exercise of certain warrants; (iv) 25,685 shares of common stock issuable
upon the conversion of certain promissory notes; (v) 274,000 shares of
common stock issuable upon the conversion of Series A Preferred Stock;
(vi) 152,069 shares of common stock owned by Delaware Charter G & T
Cust IRA FBO Frank J Campbell III; (vii) 30,000 shares of common stock
issuable upon the exercise of certain warrants owned by Delaware Charter G
& T Cust IRA FBO Frank J Campbell III; and (viii) 41,096 shares of
common stock issuable upon conversion of the certain convertible
promissory notes held by Delaware Charter G & T Cust IRA FBO Frank J
Campbell III.
|
|
|
|
|
(7)
|
Includes
76,923 shares of common stock issuable upon conversion of the 12% Notes
and 862 shares of common stock directly owned by the selling
stockholder.
|
|
|
|
|
(8)
|
Includes
183,724 shares of common stock directly owned by the selling stockholder
and 153,846 shares of common stock issuable upon conversion of the 12%
Notes. Bill B. DeWitt and Michelle W. DeWitt share voting and
investment control over the shares held by the selling
stockholder.
|
|
|
|
|
(9)
|
Includes
(i) 431 shares of common stock owned directly by the selling stockholder;
(ii) 38,462 shares of common stock issuable upon conversion of the 12%
Notes; and (iii) 46,000 shares of common stock issuable upon conversion of
Series A Preferred Stock.
|
|
|
|
|
(10)
|
Includes
(i) 384,615 shares of common stock issuable upon conversion of the 12%
Notes; (ii) 1,108,618 shares of common stock directly owned by the selling
stockholder; and (iii) 46,150 shares of common stock issuable upon the
exercise of options that are presently
exercisable.
|
|
(11)
|
Includes
(i) 115,385 shares of common stock issuable upon conversion of the 12%
Notes; (ii) 102,328 shares of common stock directly owned by the selling
stockholder; (iii) 20,000 shares of common stock issuable upon the
exercise of certain warrants; and (iv) 20,548 shares of common stock
issuable upon the conversion of certain promissory notes. Helen
W. Smith and R. Scudder Smith share voting and investment control over the
shares held by the selling
stockholder.
|
|
(12)
|
Includes
8,621 shares of common stock directly owned by the selling stockholder and
171,233 shares of common stock issuable upon the conversion of certain
promissory notes.
|
|
(13)
|
Includes
2,587 shares of common stock directly owned by the selling stockholder and
51,370 shares of common stock issuable upon the conversion of certain
promissory notes. Gus Blass II, Manager of Capital Properties
LLC (“Capital Properties”), has voting and investment control over the
shares held by Capital Properties.
|
|
(14)
|
Includes
(i) 4,225 shares of common stock directly owned by the selling
stockholder; (ii) 83,904 shares of common stock issuable upon the
conversion of certain promissory notes; (iii) 46,000 shares of common
stock issuable upon conversion of Series A Preferred Stock; and (iv)
28,000 shares of common stock issuable upon conversion of Series B
Preferred Stock. Patricia B. Blass, trustee, has voting and
investment control over the shares held by the selling
stockholder.
|
|
(15)
|
Includes:
(i) 12,165 shares of common stock directly owned by the selling
stockholder; (ii) 4,223 shares of common stock issuable upon the exercise
of certain warrants; and (iii) 128,425 shares of common stock issuable
upon the conversion of certain promissory notes. Rockmore
Capital, LLC (“Rockmore Capital”) and Rockmore Partners, LLC (“Rockmore
Partners”), each a limited liability company formed under the laws of the
State of Delaware, serve as the investment manager and general partner,
respectively, to Rockmore Investments (US) LP, a Delaware limited
partnership, which invests all of its assets through Rockmore Investment
Master Fund Ltd., an exempted company formed under the laws of Bermuda
(“Rockmore Master Fund”). By reason of such relationships, Rockmore
Capital and Rockmore Partners may be deemed to share dispositive power
over the shares of our common stock owned by Rockmore Master Fund.
Rockmore Capital and Rockmore Partners disclaim beneficial ownership of
such shares of our common stock. Rockmore Partners has delegated authority
to Rockmore Capital regarding the portfolio management decisions with
respect to the shares of common stock owned by Rockmore Master Fund and,
as of March 11, 2009, Mr. Bruce T. Bernstein and Mr. Brian Daly, as
officers of Rockmore Capital, are responsible for the portfolio management
decisions of the shares of common stock owned by Rockmore Master
Fund. By reason of such authority, Messrs. Bernstein and Daly
may be deemed to share dispositive power over the shares of our common
stock owned by Rockmore Master Fund. Messrs. Bernstein and Daly disclaim
beneficial ownership of such shares of our common stock and neither of
such persons has any legal right to maintain such authority. No
other person has sole or shared voting or dispositive power with respect
to the shares of our common stock as those terms are used for purposes
under Regulation 13D-G of the Securities Exchange Act of 1934, as amended.
No person or “group” (as that term is used in Section 13(d) of the
Securities Exchange Act of 1934, as amended, or the SEC’s Regulation
13D-G) controls Rockmore Master
Fund.
|
|
(16)
|
Includes
(i) 309,648 shares of common stock directly owned by the selling
stockholder; (ii) 102,956 shares of common stock issuable upon the
exercise of certain warrants; and (iii) 89,897 shares of common stock
issuable upon the conversion of certain promissory notes. Fred
C. Applegate, trustee, has voting and investment control over the shares
held by the selling stockholder.
|
|
(17)
|
Includes
(i) 12,932 shares of common stock directly owned by the selling
stockholder; (ii) 91,892 shares of common stock issuable upon the exercise
of certain warrants; and (iii) 256,849 shares of common stock issuable
upon the conversion of certain promissory notes. Yedi Wong,
Chief Operating Officer of Joshua Tree Partners, LP (“Joshua Tree”), has
voting and investment control over the shares held by Joshua
Tree.
|
|
(18)
|
Includes
34,483 shares of common stock directly owned by the selling stockholder
and 684,932 shares of common stock issuable upon the conversion of certain
promissory notes. Ming Shao, Director of Fixed Income of Dupont
Pension Trust (“Dupont”), has voting and investment control over the
shares held by Dupont.
|
|
(19)
|
Includes
(i) 15,827 shares of common stock directly owned by the selling
stockholder; (ii) 63,840 shares of common stock issuable upon the exercise
of certain warrants; (iii) 314,358 shares of common stock issuable upon
the conversion of certain promissory notes; and (iv) 437,000 shares of
common stock issuable upon the conversion of Series B Preferred
Stock. Triage Capital Management LP has identified Leon 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,
LP. Mr. Frenkel disclaims beneficial ownership of the
Company’s securities held by Triage except to the extent of his pecuniary
interest therein.
|
|
(20)
|
Includes
(i) 77,548 shares of common stock directly owned by the selling
stockholder; (ii) 14,253 shares of common stock issuable upon the exercise
of certain warrants; and (iii) 49,246 shares of common stock issuable upon
the conversion of certain promissory
notes.
|
|
(21)
|
Includes
(i) 12,932 shares of common stock directly owned by the selling
stockholder; (ii) 8,446 shares of common stock issuable upon the exercise
of certain warrants; and (iii) 256,849 shares of common stock issuable
upon the conversion of certain promissory notes. Terry Fenney,
Chief Operating Officer of Millennium Fixed Income Fund, L.P.
(“Millennium”), has voting and investment control over the shares held by
Millennium.
|
|
(22)
|
Includes
(i) 18,186 shares of common stock directly owned by the selling
stockholder; (ii) 845 shares of common stock issuable upon the exercise of
certain warrants; (iii) 25,685 shares of common stock issuable upon the
conversion of certain promissory notes; and (iv) 182,000 shares of common
stock issuable upon the conversion of Series A Preferred
Stock.
|
|
(23)
|
Includes
518 shares of common stock directly owned by the selling stockholder and
10,274 shares of common stock issuable upon the conversion of certain
promissory notes.
|
|
(24)
|
Includes
(i) 152,069 shares of common stock directly owned by the selling
stockholder; (ii) 30,000 shares of common stock issuable upon the exercise
of certain warrants; and (iii) 41,096 shares of common stock issuable upon
the conversion of certain promissory notes. Frank J. Campbell,
III has voting and investment control over the shares held by the selling
stockholder.
|
|
(25)
|
Includes
6,081 shares of common stock directly owned by the selling stockholder and
10,274 shares of common stock issuable upon the conversion of certain
promissory notes. Philip Lebovitz has voting and investment
control over the shares held by the selling
stockholder.
|
|
(26)
|
Includes
16,811 shares of common stock directly owned by the selling stockholder
and 85,616 shares of common stock issuable upon the conversion of certain
promissory notes.
|
|
(27)
|
Includes
518 shares of common stock directly owned by the selling stockholder and
10,274 shares of common stock issuable upon the conversion of certain
promissory notes.
|
|
(28)
|
Includes
(i) 2,587 shares of common stock directly owned by the selling
stockholder; (ii) 51,370 shares of common stock issuable upon the
conversion of certain promissory notes; and (iii) 200,000 shares of common
stock issuable upon conversion of Series A Preferred
Stock.
|
|
(29)
|
Includes
518 shares of common stock directly owned by the selling stockholder and
10,274 shares of common stock issuable upon the conversion of certain
promissory notes. Alan Stern has voting and investment control
over the shares held by the selling
stockholder.
|
|
(30)
|
Includes
(i) 1,725 shares of common stock directly owned by the selling
stockholder; (ii) 12,000 shares of common stock issuable upon the exercise
of certain warrants; (iii) 34,247 shares of common stock issuable upon the
conversion of certain promissory notes; (iv) 40,000 shares of common stock
issuable upon the conversion of Series A Preferred Stock; and (v) 28,000
shares of common stock issuable upon the conversion of Series B Preferred
Stock.
|
|
(31)
|
Includes
776 shares of common stock directly owned by the selling stockholder and
15,411 shares of common stock issuable upon the conversion of certain
promissory notes. Amir L. Ecker and Maria T. Ecker share voting
and investment control over the shares held by the selling
stockholder.
|
|
(32)
|
Includes
(i) 18,186 shares of common stock directly owned by the selling
stockholder; (ii) 845 shares of common stock issuable upon the exercise of
certain warrants; (iii) 25,685 shares of common stock issuable upon the
conversion of certain promissory notes; and (iv) 182,000 shares of common
stock issuable upon the conversion of Series A Preferred
Stock.
|
|
(33)
|
Includes
(i) 1,638 shares of common stock directly owned by the selling
stockholder; (ii) 32,534 shares of common stock issuable upon the
conversion of certain promissory notes; (iii) 776 shares of common stock
owned by the Ecker Family Partnership; (iv) 15,411 shares of common stock
issuable upon the conversion of certain promissory notes held by the Ecker
Family Partnership; (v) 272 shares of common stock owned by the Amir L.
Ecker; and (vi) 4,000 shares of common stock issuable upon the exercise of
certain warrants held by Amir L.
Ecker.
|
|
(34)
|
Includes
(i) 3,966 shares of common stock directly owned by the selling
stockholder; (ii) 78,767 shares of common stock issuable upon the
conversion of certain promissory notes; (iii) 306,000 shares of common
stock issuable upon the conversion of Series B Preferred Stock; (iv)
10,863 shares of common stock owned by Pershing LLC F/B/O Leonid Frenkel
IRA; (v) 215,753 shares of common stock issuable to Pershing LLC F/B/O
Leonid Frenkel IRA upon conversion of certain promissory notes; and (iv)
181,000 shares of common stock issuable to Pershing LLC F/B/O Leonid
Frenkel IRA upon conversion of the Series A Convertible Preferred
Stock.
|
|
(35)
|
Includes
(i) 10,863 shares of common stock directly owned by the selling
stockholder; (ii) 215,735 shares of common stock issuable upon the
conversion of certain promissory notes and (iii) 181,000 shares of common
stock issuable upon the conversion of Series A Preferred
Stock. Leonid Frenkel has voting and investment control over
the shares held by the selling
stockholder.
|
|
(36)
|
Includes
(i) 2,156 shares of common stock directly owned by the selling
stockholder; (ii) 42,808 shares of common stock issuable upon the
conversion of certain promissory notes; (iii) 164,000 shares of common
stock issuable upon the conversion of Series B Preferred
Stock. Mr. Frenkel is the general partner of Periscope Partners
L.P. Mr. Frenkel disclaims beneficial ownership of the
Company’s securities held by Periscope except to the extent of this
pecuniary interest therein.
|
|
(37)
|
Includes
5,173 shares of common stock directly owned by the selling stockholder and
102,739 shares of common stock issuable upon the conversion of certain
promissory notes.
|
|
(38)
|
Includes
(i) 41,035 shares of common stock directly owned by the selling
stockholder; (ii) 8,000 shares of common stock issuable upon the exercise
of certain warrants; and (iii) 20,548 shares of common stock issuable upon
the conversion of certain promissory
notes.
|
|
(39)
|
Includes
518 shares of common stock directly owned by the selling stockholder and
10,274 shares of common stock issuable upon the conversion of certain
promissory notes.
|
The selling stockholders may sell all,
some or none of the shares being registered pursuant to this prospectus and a
relevant prospectus supplement, subject to the limits described above. The
amount of any shares to be sold by the selling stockholders and the amount of
shares to be held by the selling stockholders following an offering, together
with the selling stockholders’ percentage ownership of our common stock after
the offering, will be reflected in a prospectus supplement.
PLAN
OF DISTRIBUTION
We (and
the selling stockholders) may offer the common stock covered by this prospectus
and the applicable prospectus supplement directly to one or more purchasers,
through agents, or through underwriters or dealers designated from time to
time. We (and the selling stockholders) may distribute the common
stock from time to time in one or more transactions at a fixed price or prices
(which may be changed from time to time), at market prices prevailing at the
times of sale, at prices related to these prevailing market prices or at
negotiated prices. We (and the selling stockholders) may offer
securities in the same offering, or we may offer securities in separate
offerings. The applicable prospectus supplement will describe the
terms of the offering of the common stock, including:
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·
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the
offeror(s) of the common stock;
|
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·
|
the
terms of the common stock to which the prospectus supplement
relates;
|
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·
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the
name or names of any underwriters;
|
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·
|
the
purchase price of the common stock and the proceeds to be received from
the sale;
|
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·
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any
underwriting discounts and other items constituting underwriters’
compensation; and
|
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·
|
any
discounts or concessions allowed or reallowed or paid to
dealers.
|
If
underwriters are used in the sale, the common stock will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions at a fixed public offering price or at varying prices
determined at the time of sale. The common stock may be either
offered to the public through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. The obligations
of the underwriters to purchase the common stock will be subject to the
conditions precedent agreed to by the parties and the underwriters will be
obligated to purchase all the common stock if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Underwriters
or agents may make sales in privately negotiated transactions and/or any other
method permitted by law, including sales deemed to be an “at-the-market”
offering as defined in rule 415 promulgated under the Securities Act, which
includes sales made directly on an existing trading market for our common stock,
or sales made to or through a market maker other than on an
exchange.
The
common stock may be sold directly by our company, the selling stockholders or
through agents designated by our company or the selling stockholders from time
to time. Any agent involved in the offer or sale of the common stock
in respect of which this prospectus is delivered will be named, and any
commissions payable by our company or the selling stockholders to any agent will
be set forth in the prospectus supplement. Unless otherwise indicated
in the prospectus supplement, any agent will be acting on a best efforts basis
for the period of its appointment.
We (or
the selling stockholders) may authorize agents or underwriters to solicit offers
by eligible institutions to purchase the common stock from our company or the
selling stockholders at the public offering price set forth in the prospectus
supplement under delayed delivery contracts providing for payment and delivery
on a specified date in the future. The conditions to these contracts
and the commissions payable for solicitation of these contracts will be set
forth in the applicable prospectus supplement.
We (or
the selling stockholders) may agree to indemnify any underwriters, dealers and
agents against or contribute to any payments the underwriters, dealers or agents
may be required to make with respect to civil liabilities, including liabilities
under the Securities Act of 933, as amended (the “Securities
Act”). The Company may agree to indemnify in certain circumstances
each of the selling stockholders against certain liabilities, including
liabilities under the Securities Act.
We will
bear all costs, fees and expenses incurred in connection with the registration
of the offering of the common stock under this prospectus, including the costs,
fees and expenses of the selling stockholders in any underwritten offering,
except for underwriting fees, sales commissions and other similar fees
attributable to sales by the selling stockholders.
The
selling stockholders, or their pledgees, donees, transferees, or any of their
successors in interest selling shares received from a named selling stockholder
as a gift or other non-sale-related transfer after the date of this prospectus
(all of whom may be selling stockholders), may sell the common stock from time
to time through any of the methods of sale, or any combination of such methods
of sale, described above.
The
selling stockholders may also sell shares of common stock in transactions exempt
from the registration requirements of the Securities Act rather than pursuant to
this prospectus, regardless of whether the shares are covered by this
prospectus.
From time
to time, one or more of the selling stockholders may pledge, hypothecate or
grant a security interest in some or all of the shares owned by them. The
pledgees, secured parties or persons to whom the shares have been hypothecated
shall, upon foreclosure in the event of default, be deemed to be selling
stockholders.
We will
not receive any proceeds from sales of the common stock by the selling
stockholders. We cannot assure you that the selling stockholders will sell all
or any portion of the common stock offered hereby.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon by
Davis Graham & Stubbs LLP, Denver, Colorado.
EXPERTS
The
consolidated balance sheets as of June 30, 2009 and 2008, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the years then ended, which were included in our Annual Report on Form
10-K for the year ended June 30, 2009, and incorporated by reference in this
Registration Statement have been so incorporated by reference in reliance upon
the report of Grant Thornton LLP, independent registered public accountants,
upon the authority of said firm as experts in accounting and auditing in giving
said report.
WHERE
YOU CAN FIND ADDITIONAL 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
.
We have
filed with the SEC a registration statement on Form S-3, under the Securities
Act, with respect to the common stock offered by this
prospectus. This prospectus, which constitutes part of the
registration statement, does not contain all of the information set forth in the
registration statement, certain parts of which have been omitted in accordance
with the rules and regulations of the SEC. Reference is hereby made
to the registration statement and the exhibits to the registration statement for
further information with respect to our company and the securities.
INCORPORATION
OF CERTAIN INFORMATION 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:
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·
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our
Annual Report on Form 10-K for the year ended June 30,
2009;
|
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·
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our
Quarterly Report on Form 10-Q for the quarters ended
September 30, 2008, December 31, 2008 and March 31,
2009;
|
|
·
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our
Current Reports on Form 8-K filed with the SEC on July 2, 2008;
August 21, 2008; September 8, 2008; September 17, 2008;
October 6, 2008; October 17, 2008; November 26, 2008;
February 9, 2009; April 14, 2009; May 8, 2009; May 29, 2009;
July 6, 2009; July 9, 2009; July 13, 2009; September 15, 2009; and September
30, 2009; and
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|
·
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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.
|
We will
furnish without charge to you, on written or oral request, a copy of any or all
of the above documents, other than exhibits to such documents that are not
specifically incorporated by reference therein. You should direct any
requests for documents to the attention of Louise Lungaro, Corporate Secretary,
SMF Energy Corporation, 200 West Cypress Creek Road, Suite 400, Fort Lauderdale,
Florida, 33309, telephone (954) 308-4200.
All
reports and other 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
reports and 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. None of the information that we
disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K or any
corresponding information, either furnished under Item 9.01 or included as an
exhibit therein, that we may from time to time furnish to the SEC will be
incorporated by reference into, or otherwise included in, this prospectus,
except as otherwise expressly set forth in the relevant
document. 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
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
____________
PROSPECTUS
____________
June 26,
2009
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