As
filed with the Securities and Exchange Commission on September 30,
2009
Registration
No
.
333-______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
(Exact
name of registrant as specified in its charter)
Delaware
|
65-0707824
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida 33309
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 33309
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
Indicate
by check mark whether the registrant is a large accelerated filer, accelerated
filer, a non-accelerated filer, or a smaller reporting company. See definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act.
o
Large accelerated
filer
o
Accelerated
filer
o
Non-accelerated
filer
x
Smaller reporting
company
CALCULATION
OF REGISTRATION FEE
Title
of each class of
securities
to be registered
|
Amount
to be registered (1)
|
Proposed
maximum offering price per Unit
|
Proposed
maximum aggregate offering price
|
Amount
of
registration
fee
|
Common
Stock, $.01 par value
|
6,176,941
|
0.36
(2)
|
$2,223,698.76
(2)
|
$
124.08
|
(1)
|
Pursuant
to Rule 416 of the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement also covers such additional number of
shares of common stock that may become issuable as a result of any stock
splits, stock dividends, or other similar
transactions.
|
(2)
|
Estimated
solely for the purpose of computing the registration fee. The
proposed maximum offering price per share and maximum aggregate offering
price for the shares being registered hereby are calculated in accordance
with Rule 457(c) under the Securities Act using the average of the high
and low sales price per share of our common stock on September 29,
2009, as reported on the Nasdaq Capital
Market.
|
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.
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.
Subject
to completion, dated September 30, 2009
PROSPECTUS
SMF
ENERGY CORPORATION
6,176,941
SHARES OF COMMON STOCK
This
prospectus relates to the proposed resale by the selling stockholders
indentified in this prospectus (each a “Selling Stockholder” and collectively,
the “Selling Stockholders”) of 6,176,941 shares of common stock (the “Shares”)
of SMF Energy Corporation.
On June
29, 2009, we completed a recapitalization transaction whereby we entered into a
series of exchange agreements (the “Exchange Agreements”) with holders of our
August 2007 11½% Senior Secured Convertible Promissory Notes (the “Secured
Notes”), September 2008 12% Unsecured Convertible Promissory Notes (the
“Unsecured Notes”), and Series A, Series B and Series C Convertible Preferred
Stock (collectively, the “Preferred Stock”) whereby we restructured
substantially all of our debt and equity (the “Recapitalization”). In
accordance with the Exchange Agreements, we are registering for resale the
restricted shares of common stock as well as the restricted shares of common
stock underlying the Series D Convertible Preferred Stock (the “Series D
Preferred”) issued in connection therewith. Accordingly, the Shares
now offered for resale in connection with the Recapitalization include (i)
4,490,194 shares of common stock, (ii) 263,156 shares of common stock issued as
compensation to placement agents and (iii) 312,500 shares of common stock
issuable upon conversion of the Company’s Series D Preferred.
In
addition, on May 5, 2009, we entered into a series of payment in kind agreements
(the “Payment in Kind Agreements”) with holders of our Preferred Stock whereby
we issued shares of common stock as payment in kind for cash dividends due to
the holders. The Shares now offered for resale also include the
1,111,091 shares of common stock issued pursuant to the Payment in Kind
Agreements.
This
offering is not being underwritten. The offering price of the Shares
that may be sold by the 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. We
will not receive any proceeds from the sale of the Shares by any of the Selling
Stockholders.
Our
common stock is listed on the Nasdaq Capital Market under the symbol
“FUEL.” On September 29, 2009, the closing price of our common stock
was $0.37 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
________,
2009.
TABLE
OF CONTENTS
Page
FORWARD-LOOKING
STATEMENTS
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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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4
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USE
OF PROCEEDS
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9
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SELLING
STOCKHOLDERS
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9
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PLAN
OF DISTRIBUTION
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17
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LEGAL
MATTERS
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19
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EXPERTS
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19
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WHERE
YOU CAN FIND MORE INFORMATION
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19
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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19
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As used
in this prospectus, the terms “SMF,” “we,” “us,” and “our” refer to SMF Energy
Corporation.
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
are a leading provider of petroleum product distribution services,
transportation logistics and emergency response services to the trucking,
manufacturing, construction, shipping, utility, energy, chemical,
telecommunication and government services industries. We
provide our services and products through 31 service locations in the
eleven states of Alabama, California, Florida, Georgia, Louisiana,
Mississippi, Nevada, North Carolina, South Carolina, Tennessee and
Texas.
The
broad range of services we offer our customers includes commercial mobile
and bulk fueling; the packaging, distribution and sale of lubricants;
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 our
customers. In addition, our fleet of special duty
tractor-trailer units provides heavy haul transportation services over
short and long distances to customers requiring the movement of over-sized
or over-weight equipment and manufactured products.
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.
The
Offering
We
are registering 6,176,941
shares of common
stock. The Selling Stockholders are offering to sell the Shares
pursuant to this prospectus.
The
Selling Stockholders received the Shares in connection with the
Recapitalization that was completed on June 29, 2009 and the Payment
in Kind Agreements that were entered into on May 5,
2009. The Shares now offered for resale in connection with the
Recapitalization include (i) 4,490,194 shares of common stock, (ii)
263,156 shares of common stock issued as compensation to placement agents
and (iii) 312,500 shares of common stock issuable upon conversion of the
Company’s Series D Preferred. Each share of Series D
Preferred is convertible into 1,000 shares of common stock.
The
Shares now offered for resale in connection with the Payment in Kind
Agreements include 1,111,091 shares of common stock. We relied
on the exemptions from registration provided by Sections 4(2) and 4(6) of
the Securities Act and Regulation D promulgated thereunder in connection
with the Recapitalization and the Payment in Kind Agreements.
Use
of Proceeds
We
will not receive any proceeds from the sale of the Shares by the Selling
Stockholders.
|
RISK
FACTORS
An
investment in the Shares 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 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 Assurance of
Future Profitability; Losses from Operations; Need for Capital.
We
incurred net losses in each of the fiscal years ended June 30, 2009 and
2008. 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 fiscal 2009, we faced a
number of challenges that required us to raise additional capital in the face of
a general tightening of the credit markets and various Nasdaq listing
requirements. While we responded to those challenges by completing a
$40 million recapitalization in June 2009 (the “Recapitalization”) that had
an immediate reduction of our total debt by $4.5 million, reduced our annual
servicing expense for interest and dividends by over $1 million,
increased our shareholders’ equity by $4.1 million and reduced our
debt to equity ratio from approximately 9 to 1 to 2 to 1 from June 30, 2008
to June 30, 2009, respectively, we may nevertheless face difficulty in the
future obtaining necessary capital. 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 believe that, with the new financial strength
resulting from the Recapitalization, we will be able to obtain needed capital,
there can be no assurance that we will do so or that it can be obtained on terms
acceptable to us.
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. In response, on February 29, 2008, we issued 4,587 shares of
Series A Convertible Preferred Stock for approximately $2.52 million in cash and
debt and on March 12, 2008, we issued 1,985 shares of our Series B Convertible
Preferred Stock for approximately $1.8 million in debt. These
transactions increased our stockholders’ equity by approximately $4.1 million,
permitting us to regain compliance with Rule 4310(c)(3). During
fiscal 2009, the Company completed a recapitalization of our debt and equity
which increased stockholders’ equity to $6.5 million at June 30, 2009, and we
therefore continue to be in compliance with the Nasdaq stockholders’ equity
requirement. There is no assurance, however, that such compliance
will continue indefinitely since any future net operating losses would reduce
our stockholders’ equity and could cause us to again be in violation of Rule
4310(c)(3).
In
addition, on December 28, 2007, we received notice from Nasdaq that, because the
bid price of our common stock had closed below the minimum $1.00 per share
requirement of Marketplace Rule 4310(c) for 30 consecutive business days,
compliance with the $1.00 bid price requirement was required by June 25,
2008. When the bid price stayed below the minimum after that date, we
filed an appeal to a Nasdaq Listing Qualifications Panel to prevent a delisting
of our common stock. On September 11, 2008, the Panel granted the
extension of time until December 23, 2008. Under the terms of the
extension, the Company must have a closing bid price of $1.00 or more for a
minimum of ten prior consecutive trading days on or before December 23, 2008,
and had to otherwise maintain compliance with all other applicable Nasdaq
listing standards. Due to recent extraordinary market conditions, in
October 2008, the NASDAQ implemented a temporary suspension of the minimum $1.00
per share requirement of Marketplace Rule 4310(c) which suspension continued
through July 31, 2009. As a result, our deadline for reestablishing
compliance is now October 15, 2009. In order to do so, our
shareholders have approved and our Board of Directors has implemented a 1 for
4.5 reverse stock split that will take effect on October 1,
2009. While this reverse stock split is intended to
increase the trading price of the common stock above the $1.00 minimum bid
price, there can be no assurance that the market price per post-split share will
either exceed or remain in excess of the minimum for the sustained period of
time necessary to ensure long term compliance with Nasdaq rules.
Effects of Nasdaq
Delisting.
It is possible that, notwithstanding the reverse
stock split and our June 2009 Recapitalization, our common stock will still be
delisted from Nasdaq. If this occurs, 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, we 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 our
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 shares of our common stock under the
Securities Act of 1933 but would have to instead use the longer registration
forms, such as Form S-1. 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 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, which could
make it difficult for shareholders 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 also cause the market
price of our common stock to fluctuate. The market price of our common stock may
be affected by various other factors unrelated to the number of shares
outstanding after the reverse stock split, including our future performance and
general market conditions.
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. Our credit
facility with our principal lender also requires the Company to obtain the
consent of the financial institution prior to incurring additional debt, or
entering into mergers, consolidations or sales of assets.
Growth Dependent
Upon Future Expansion; Risks Associated With Expansion into New
Markets.
While we intend to
expand more quickly 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.
Interest
Expense.
A substantial
portion of our net losses for the fiscal years ended June 30, 2009 and 2008 are
attributable to the substantial interest burden borne by the Company, including
$2.5 million of interest expense in fiscal 2009 and $3.1 million in
2008. The majority of this interest expense is attributable to
interest on our revolving bank debt and our August 2007 senior subordinated
secured debt, which was substantially reduced by our June 2009
Recapitalization. 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. Additionally, we are
exposed to fluctuating interest rates associated with our line of
credit.
Need to Maintain
Effective 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. Even though we have taken the necessary steps to
correct the identified material weakness and have not identified any material
weakness for fiscal 2009, 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 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, 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.
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 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 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. 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 and labor
disruptions. Limitations on the amount of credit available from
suppliers has become a more significant issue for us in light of the tightening
of credit available to businesses over the past year. As a result,
increasing the availability of short term credit for fuel purchases was one of
the principal motivations for the June 2009 Recapitalization, which had an
immediate reduction of our total debt by $4.5 million, reduced our annual
servicing expense for interest and dividends by over $1 million,
increased our shareholders’ equity by $4.1 million and reduced our debt to
equity ratio from approximately 9 to 1 to 2 to 1 from June 30, 2008 to June
30, 2009, respectively. Irrespective of the reason, any reduction of
the availability of fuel supplies could impact our ability to provide mobile
fueling, commercial bulk fueling, and emergency response services and would
therefore impact 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,
represents 10% of our total revenue in fiscal year 2009. 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 fiscal 2008 and through the beginning of fiscal 2009 have
caused businesses, including many 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 cases, by using higher mileage or alternative fuel
vehicles. In turn, these reductions have reduced the volumes
delivered by us to those customers. Even though fuel prices have
decreased, we have not experienced a significant increase in volumes sold, we
believe due to the difficult current economic conditions. It is
possible that customers’ fuel usage will continue to decline, requiring us 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.
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 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, 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
the oil 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, 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 proceeds from the sale of the Shares by the Selling
Stockholders.
SELLING
STOCKHOLDERS
We are
registering for resale 6,176,941 shares of our common stock. The
Selling Stockholders received the Shares in connection with the Recapitalization
that was completed on June 29, 2009 and in connection with the Payment in Kind
Agreements entered into on May 5, 2009. The Shares now offered for resale
in connection with the Recapitalization include (i) 4,753,350 shares of common
stock and (ii) 312,500 shares of common stock issuable upon conversion of the
Company’s Series D Preferred. The Shares now offered for resale in
connection with the Payment in Kind Agreements include 1,111,091 shares of
common stock. The following table sets forth certain information
regarding the beneficial ownership of the Selling Stockholders, as of
August 3, 2009. We have prepared this table based on information
furnished to us by or on behalf of the Selling Stockholders.
The table
below 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 Securities and Exchange Commission (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 August 3,
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
36,692,544 shares of our common stock issued and outstanding as of
August 3, 2009. Since the date on which they provided us with
the information below, the Selling Stockholders may have sold, transferred or
otherwise disposed of some or all of their shares in transactions exempt from
the registration requirements of the Securities Act.
To the
best of our knowledge, none of the Selling Stockholders has had any position,
office or other material relationship with us or any of our affiliates within
the past three years except as described below:
|
·
|
Active
Investors II, Ltd. and Active Investors III, Ltd., which are
investors in our securities, are funds that are managed by Fundamental
Management Corporation. Messrs. O’Connor and Picow are two
of our directors and are also directors and shareholders of Fundamental
Management Corporation. Each of Messrs. O'Connor and Picow
disclaim any beneficial ownership in the shares held by these
funds.
|
|
·
|
Mr. Gathright
is our Chief Executive Officer and President and one of our
directors.
|
|
·
|
Messrs.
Gathright, Beard, Messenbaugh, Shaw, Shore, Vinger and Williams are seven
of our executive officers.
|
|
·
|
C.
Rodney O’Connor is one of our
directors.
|
|
·
|
Louise
P. Lungaro is our Director of Corporate Services and Corporate Secretary
and is also the wife of Mr.
Gathright.
|
|
·
|
Robert
Fisk, Robert Jacobs, Kevin Hamilton, Sean McDermott, James Allsopp, Amir
Ecker and Frank J. Campbell, III are employees of Philadelphia Brokerage
Corporation, and in such capacity they have acted as our placement agents
in connection with the Recapitalization and our private offerings in
February 2007 and August 2007.
|
The
Selling Stockholders may sell less than all of the shares listed in the
table. In addition, the shares listed below may be sold pursuant to
this prospectus or in privately negotiated transactions.
|
|
Ownership
of Shares Prior to Offering
|
|
|
|
|
|
|
Number
of Shares Beneficially Owned
|
|
|
|
|
|
Shares
of Common Stock Issuable Upon the Conversion of the Series D Preferred
Stock
|
|
|
Number
of Shares Being Offered for Sale in this Offering
|
|
|
Number
of Shares Beneficially Owned
(1)
|
|
|
|
|
David
S. Allsopp
|
|
|
44,557
|
|
|
|
(2
|
)
|
|
|
--
|
|
|
|
4,565
|
|
|
|
39,992
|
|
|
|
*
|
|
Fred
C. Applegate Trust U/A DTD 10/8/92
|
|
|
932,940
|
|
|
|
(3
|
)
|
|
|
--
|
|
|
|
39,941
|
|
|
|
892,999
|
|
|
|
2.43
|
|
Bee
Publishing Company
|
|
|
592,479
|
|
|
|
(4
|
)
|
|
|
--
|
|
|
|
8,026
|
|
|
|
584,453
|
|
|
|
1.59
|
|
Bee
Publishing Company 401(k) Profit Sharing Plan
|
|
|
221,792
|
|
|
|
(5
|
)
|
|
|
--
|
|
|
|
5,351
|
|
|
|
216,441
|
|
|
|
*
|
|
Michael
Bevilacqua
|
|
|
42,583
|
|
|
|
(6
|
)
|
|
|
--
|
|
|
|
4,565
|
|
|
|
38,018
|
|
|
|
*
|
|
Constance
Blass O'Neill Trust #3, Patricia B. Blass, Trustee
|
|
|
513,952
|
|
|
|
(7
|
)
|
|
|
--
|
|
|
|
54,464
|
|
|
|
459,488
|
|
|
|
1.25
|
|
Arnold
G. Bowles
|
|
|
599,822
|
|
|
|
(8
|
)
|
|
|
--
|
|
|
|
45,478
|
|
|
|
554,344
|
|
|
|
1.51
|
|
Frank
J. Campbell III
|
|
|
1,101,776
|
|
|
|
(9
|
)
|
|
|
--
|
|
|
|
76,848
|
|
|
|
1,024,928
|
|
|
|
2.79
|
|
Judith
W. Campbell
|
|
|
1,101,776
|
|
|
|
(10
|
)
|
|
|
--
|
|
|
|
5,351
|
|
|
|
1,096,425
|
|
|
|
2.99
|
|
Capital
Properties LLC
|
|
|
222,778
|
|
|
|
(11
|
)
|
|
|
--
|
|
|
|
22,823
|
|
|
|
199,955
|
|
|
|
*
|
|
|
|
Ownership
of Shares Prior to Offering
|
|
|
Ownership
After Offering
|
|
Name
|
|
Number
of Shares Beneficially Owned
|
|
|
|
|
|
Shares
of Common Stock Issuable Upon the Conversion of the Series D Preferred
Stock
|
|
|
Number
of Shares Being Offered for Sale in this Offering
|
|
|
Number
of Shares Beneficially Owned
(1)
|
|
|
Percentage
|
|
Delaware
Charter G&T Cust FBO Alan Stern IRA
|
|
|
44,557
|
|
|
|
(12
|
)
|
|
|
--
|
|
|
|
4,565
|
|
|
|
39,992
|
|
|
|
*
|
|
Delaware
Charter G&T Cust FBO Philip Lebovitz IRA
|
|
|
50,120
|
|
|
|
(13
|
)
|
|
|
--
|
|
|
|
4,565
|
|
|
|
45,555
|
|
|
|
*
|
|
Delaware
Charter G&T Cust IRA FBO Frank J Campbell III
|
|
|
451,053
|
|
|
|
(14
|
)
|
|
|
--
|
|
|
|
18,259
|
|
|
|
432,794
|
|
|
|
1.18
|
|
Bill
B. and Michelle W. DeWitt Associates Limited Partnership
|
|
|
457,584
|
|
|
|
(15
|
)
|
|
|
--
|
|
|
|
10,702
|
|
|
|
446,882
|
|
|
|
1.22
|
|
Dupont
Pension Trust
|
|
|
1,265,112
|
|
|
|
(16
|
)
|
|
|
--
|
|
|
|
304,313
|
|
|
|
960,799
|
|
|
|
2.62
|
|
Amir
Ecker
|
|
|
195,311
|
|
|
|
(17
|
)
|
|
|
--
|
|
|
|
1,287
|
|
|
|
194,024
|
|
|
|
*
|
|
Amir
L. Ecker & Maria T. Ecker JT WROS
|
|
|
195,311
|
|
|
|
(18
|
)
|
|
|
--
|
|
|
|
14,455
|
|
|
|
180,856
|
|
|
|
*
|
|
Ecker
Family Partnership
|
|
|
58,659
|
|
|
|
(19
|
)
|
|
|
--
|
|
|
|
6,847
|
|
|
|
51,812
|
|
|
|
*
|
|
Gabriel
& Alma Elias JT WROS
|
|
|
438,978
|
|
|
|
(20
|
)
|
|
|
--
|
|
|
|
45,647
|
|
|
|
393,331
|
|
|
|
1.07
|
|
Roman
C. Fedorak
|
|
|
144,084
|
|
|
|
(21
|
)
|
|
|
--
|
|
|
|
11,285
|
|
|
|
132,799
|
|
|
|
*
|
|
Leon
Frenkel
|
|
|
2,335,000
|
|
|
|
(22
|
)
|
|
|
--
|
|
|
|
128,722
|
|
|
|
2,206,278
|
|
|
|
6.01
|
|
Alberto
Guadagnini
|
|
|
64,509
|
|
|
|
(23
|
)
|
|
|
--
|
|
|
|
45,478
|
|
|
|
19,031
|
|
|
|
*
|
|
Richard
A. Jacoby
|
|
|
383,797
|
|
|
|
(24
|
)
|
|
|
--
|
|
|
|
38,039
|
|
|
|
345,758
|
|
|
|
*
|
|
Joshua
Tree Capital Partners, LP
|
|
|
3,484,640
|
|
|
|
(25
|
)
|
|
|
--
|
|
|
|
375,079
|
|
|
|
3,109,561
|
|
|
|
8.47
|
|
William
Scott & Karen Kaplan Living Trust dtd 3/17/04
|
|
|
687,126
|
|
|
|
(26
|
)
|
|
|
--
|
|
|
|
72,272
|
|
|
|
614,854
|
|
|
|
1.68
|
|
Joseph
Kornfield
|
|
|
44,039
|
|
|
|
(27
|
)
|
|
|
--
|
|
|
|
4,565
|
|
|
|
39,474
|
|
|
|
*
|
|
Anthony
C. McDermott
|
|
|
486,842
|
|
|
|
(28
|
)
|
|
|
--
|
|
|
|
60,257
|
|
|
|
426,585
|
|
|
|
1.16
|
|
Patricia
McDermott
|
|
|
302,892
|
|
|
|
(29
|
)
|
|
|
--
|
|
|
|
21,880
|
|
|
|
281,012
|
|
|
|
*
|
|
Millennium
Fixed Income Fund, LP
|
|
|
135,495
|
|
|
|
(30
|
)
|
|
|
--
|
|
|
|
114,117
|
|
|
|
21,378
|
|
|
|
*
|
|
C.
Rodney O'Connor
|
|
|
1,497,022
|
|
|
|
(31
|
)
|
|
|
312,500
|
|
|
|
339,254
|
|
|
|
1,157,768
|
|
|
|
3.16
|
|
Periscope
Partners LP
|
|
|
616,079
|
|
|
|
(32
|
)
|
|
|
--
|
|
|
|
69,252
|
|
|
|
546,827
|
|
|
|
1.49
|
|
Pershing
LLC F/B/O Leonid Frenkel IRA
|
|
|
1,190,075
|
|
|
|
(33
|
)
|
|
|
--
|
|
|
|
129,738
|
|
|
|
1,060,337
|
|
|
|
2.89
|
|
Scudder
Smith Family Assoc LLC
|
|
|
415,798
|
|
|
|
(34
|
)
|
|
|
--
|
|
|
|
17,155
|
|
|
|
398,643
|
|
|
|
1.09
|
|
Triage
Capital Management LP
|
|
|
2,565,786
|
|
|
|
(35
|
)
|
|
|
--
|
|
|
|
273,518
|
|
|
|
2,292,268
|
|
|
|
6.25
|
|
Carolyn
Wittenbraker
|
|
|
137,111
|
|
|
|
(36
|
)
|
|
|
--
|
|
|
|
9,129
|
|
|
|
127,982
|
|
|
|
*
|
|
Mark
D. Wittman
|
|
|
294,215
|
|
|
|
(37
|
)
|
|
|
--
|
|
|
|
31,279
|
|
|
|
262,936
|
|
|
|
*
|
|
1041
Partners, LP
|
|
|
74,066
|
|
|
|
(38
|
)
|
|
|
--
|
|
|
|
34,066
|
|
|
|
40,000
|
|
|
|
*
|
|
Active
Investors II Limited
|
|
|
1,903,715
|
|
|
|
(39
|
)
|
|
|
--
|
|
|
|
1,492,335
|
|
|
|
411,380
|
|
|
|
1.12
|
|
|
|
Ownership
of Shares Prior to Offering
|
|
|
Ownership
After Offering
|
|
Name
|
|
Number
of Shares Beneficially Owned
|
|
|
|
|
|
Shares
of Common Stock Issuable Upon the Conversion of the Series D Preferred
Stock
|
|
|
Number
of Shares Being Offered for Sale in this Offering
|
|
|
Number
of Shares Beneficially Owned
(1)
|
|
|
Percentage
|
|
Active
Investors III Limited
|
|
|
1,908,077
|
|
|
|
(40
|
)
|
|
|
--
|
|
|
|
1,492,335
|
|
|
|
415,742
|
|
|
|
1.13
|
|
James
Allsop
|
|
|
42,486
|
|
|
|
(41
|
)
|
|
|
--
|
|
|
|
25,926
|
|
|
|
16,560
|
|
|
|
*
|
|
Robert
W. Beard
|
|
|
89,345
|
|
|
|
(42
|
)
|
|
|
--
|
|
|
|
16,345
|
|
|
|
73,000
|
|
|
|
*
|
|
William
R. and Patricia M. Coleman JT
|
|
|
18,894
|
|
|
|
(43
|
)
|
|
|
--
|
|
|
|
18,894
|
|
|
|
0
|
|
|
|
*
|
|
Robert
Fisk
|
|
|
297,506
|
|
|
|
(44
|
)
|
|
|
--
|
|
|
|
177,961
|
|
|
|
119,545
|
|
|
|
*
|
|
Richard
E. and Louise P. Gathright JT WROS
|
|
|
650,994
|
|
|
|
(45
|
)
|
|
|
--
|
|
|
|
58,844
|
|
|
|
592,150
|
|
|
|
1.61
|
|
Kevin
Hamilton
|
|
|
98,744
|
|
|
|
(46
|
)
|
|
|
--
|
|
|
|
34,401
|
|
|
|
64,343
|
|
|
|
*
|
|
Kevin
F. and Debra J. Hamilton JT WROS
|
|
|
98,744
|
|
|
|
(47
|
)
|
|
|
--
|
|
|
|
46,607
|
|
|
|
52,137
|
|
|
|
*
|
|
International
Investments, LLC
|
|
|
490,175
|
|
|
|
(48
|
)
|
|
|
--
|
|
|
|
52,070
|
|
|
|
438,105
|
|
|
|
1.19
|
|
Robert
Jacobs
|
|
|
26,765
|
|
|
|
(49
|
)
|
|
|
--
|
|
|
|
15,347
|
|
|
|
11,418
|
|
|
|
*
|
|
Sandra
Lockhart
|
|
|
73,555
|
|
|
|
(50
|
)
|
|
|
--
|
|
|
|
8,423
|
|
|
|
65,132
|
|
|
|
*
|
|
Isabelle
S. Malinowski
|
|
|
8,423
|
|
|
|
(51
|
)
|
|
|
--
|
|
|
|
8,423
|
|
|
|
0
|
|
|
|
*
|
|
Sean
McDermott
|
|
|
195,493
|
|
|
|
(52
|
)
|
|
|
--
|
|
|
|
49,624
|
|
|
|
145,869
|
|
|
|
*
|
|
Laura
Patricia Messenbaugh
|
|
|
43,711
|
|
|
|
(53
|
)
|
|
|
--
|
|
|
|
14,711
|
|
|
|
29,000
|
|
|
|
*
|
|
Yury
Minkovsky and Eleonora Minkovsky JT WROS
|
|
|
73,555
|
|
|
|
(54
|
)
|
|
|
--
|
|
|
|
8,423
|
|
|
|
65,132
|
|
|
|
*
|
|
Ernest
Palmarella
|
|
|
49,036
|
|
|
|
(55
|
)
|
|
|
--
|
|
|
|
5,615
|
|
|
|
43,421
|
|
|
|
*
|
|
Alla
Pasternack
|
|
|
303,487
|
|
|
|
(56
|
)
|
|
|
--
|
|
|
|
34,066
|
|
|
|
269,421
|
|
|
|
*
|
|
Michael
S. Shore
|
|
|
161,594
|
|
|
|
(57
|
)
|
|
|
--
|
|
|
|
58,844
|
|
|
|
102,750
|
|
|
|
*
|
|
Timothy
E. Shaw
|
|
|
79,345
|
|
|
|
(58
|
)
|
|
|
--
|
|
|
|
16,345
|
|
|
|
63,000
|
|
|
|
*
|
|
Paul
C. Vinger
|
|
|
183,094
|
|
|
|
(59
|
)
|
|
|
--
|
|
|
|
58,844
|
|
|
|
124,250
|
|
|
|
*
|
|
Gary
G. Williams & Diane F. Williams JT WROS
|
|
|
116,921
|
|
|
|
(60
|
)
|
|
|
--
|
|
|
|
29,421
|
|
|
|
87,500
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
|
30,303,375
|
|
|
|
|
|
|
|
312,500
|
|
|
|
6,176,941
|
|
|
|
24,126,434
|
|
|
|
|
|
*
|
Less
than 1% of the shares outstanding.
|
(1)
|
Assumes
that (i) all of the shares of Series D Preferred are converted into common
stock, (ii) all of the shares of common stock currently beneficially owned
by the Selling Stockholders and registered hereunder are sold, and (iii)
the Selling Stockholders acquire no additional shares of common stock
before the completion of this
offering.
|
(2)
|
Includes
44,557 shares of common stock directly owned by the Selling Stockholder,
of which 4,565 shares were issued pursuant to the
Recapitalization.
|
(3)
|
Includes
(i) 829,984 shares of common stock directly owned by the Selling
Stockholder, of which 39,941 shares were issued pursuant to the
Recapitalization and (ii) 102,956 shares of common stock issuable upon the
exercise of certain warrants. Fred C. Applegate, trustee, has
voting and investment control over the shares held by the Selling
Stockholder.
|
(4)
|
Includes
(i) 326,687 shares of common stock directly owned by the Selling
Stockholder, of which 8,026 shares were issued pursuant to the
Recapitalization, (ii) 20,000 shares of common stock issuable upon the
exercise of certain warrants, (iii) 207,792 shares of common stock owned
by Bee Publishing Company 401(K) Profit Sharing Plan (“401K”), (iv) 14,000
shares of common stock issuable upon the exercise of certain warrants held
by 401K, (v) 20,000 shares of common stock owned by Bee Publishing
Company, Inc. 401(K) Profit Sharing Plan Rollover (“Rollover”), and (vi)
4,000 shares of common stock issuable upon the exercise of certain
warrants held by Rollover. Helen W. Smith, an officer of Bee
Publishing Company has voting and investment control over the shares held
by the Selling Stockholder
|
(5)
|
Includes
(i) 207,792 shares of common stock directly owned by the Selling
Stockholder, of which 5,351 shares were issued pursuant to the
Recapitalization and (ii) 14,000 shares of common stock issuable upon the
exercise of certain warrants. Helen W. Smith, trustee, has
voting and investment power over the shares held by the Selling
Stockholder.
|
(6)
|
Includes
(i) 5,083 shares of common stock directly owned by the Selling
Stockholder, of which 4,565 shares were issued pursuant to the
Recapitalization and (ii) 37,500 shares of common stock issuable upon
conversion of the Series D
Preferred.
|
(7)
|
Includes
513,952 shares of common stock directly owned by the Selling Stockholder,
of which 13,210 shares were issued pursuant to the PIK Agreements and
41,254 shares were issued pursuant to the
Recapitalization. Patricia B. Blass, trustee, has voting and
investment control over the shares held by the Selling
Stockholder.
|
(8)
|
Includes
(i) 598,977 shares of common stock directly owned by the Selling
Stockholder, of which 26,185 shares were issued pursuant to the PIK
Agreements and 19,293 shares were issued pursuant to the Recapitalization
and (ii) 845 shares of common stock issuable upon the exercise of certain
warrants.
|
(9)
|
Includes
(i) 495,263 shares of common stock directly owned by the Selling
Stockholder, of which 39,421 shares were issued pursuant to the PIK
Agreements and 37,427 shares were issued pursuant to the Recapitalization,
(ii) 17,668 shares of common stock issuable upon the exercise of certain
warrants, (iii) 137,792 shares of common stock owned by Judith Campbell,
(iv) 421,053 shares of common stock owned by Delaware Charter G&T Cust
IRA FBO Frank J. Campbell III (“IRA”) and (v) 30,000 shares of common
stock issuable upon exercise of certain warrants owned
by IRA.
|
(10)
|
Includes
(i) 137,792 shares of common stock directly owned by the Selling
Stockholder, of which 5,351 shares were issued pursuant to the
Recapitalization, (ii) 495,263 shares of common stock owned by Frank J.
Campbell III, (iii) 17,668 shares of common stock issuable upon the
exercise of certain warrants owned by Frank J. Campbell III, (iv) 421,053
shares of common stock owned by Delaware Charter G&T Cust IRA FBO
Frank J. Campbell III (“IRA”) and (v) 30,000 shares of common stock
issuable upon exercise of certain warrants owned
by IRA.
|
(11)
|
Includes
222,778 shares of common stock directly owned by the Selling Stockholder,
of which 22,823 shares were issued pursuant to the
Recapitalization. Gus Blass II, Manager of Capital Properties
LLC, has voting and investment control over the shares held by the Selling
Stockholder.
|
(12)
|
Includes
44,557 shares of common stock directly owned by the Selling Stockholder,
of which 4,565 shares were issued pursuant to the
Recapitalization. Alan Stern has voting and investment control
over the shares held by the Selling
Stockholder.
|
(13)
|
Includes
50,120 shares of common stock directly owned by the Selling Stockholder,
of which 4,565 shares were issued pursuant to the
Recapitalization. Philip Lebovitz has voting and investment
control over the shares held by the Selling
Stockholder.
|
(14)
|
Includes
(i) 421,053 shares of common stock directly owned by the Selling
Stockholder, of which 18,259 shares were issued pursuant to the
Recapitalization and (ii) 30,000 shares of common stock issuable upon the
exercise of certain warrants. Frank J. Campbell, III has voting
and investment power over the shares held by the Selling
Stockholder.
|
(15)
|
Includes
457,584 shares of common stock directly owned by the Selling Stockholder,
of which 10,702 shares were issued pursuant to the
Recapitalization. Bill B. DeWitt and Michelle W. DeWitt share
voting and investment control over the shares held by the Selling
Stockholder.
|
(16)
|
Includes
(i) 865,112 shares of common stock directly owned by the Selling
Stockholder, of which 304,313 shares were issued pursuant to the
Recapitalization and (ii) 400,000 shares of common stock issuable upon
conversion of the Company’s 5.5% Unsecured Promissory
Note. Ming Shao, Director of Fixed Income of Dupont Pension
Trust, has voting and investment control over the shares held by the
Selling Stockholder.
|
(17)
|
Includes
(i) 1,559 shares of common stock directly owned by the Selling
Stockholder, of which 1,287 shares were issued pursuant to the
Recapitalization, (ii) 4,000 shares of common stock issuable upon the
exercise of certain warrants, (iii) 58,659 shares of common stock owned by
the Ecker Family Partnership and (iv) 131,093 shares of common stock owned
by Amir L. Ecker & Maria T. Ecker JT
WROS.
|
(18)
|
Includes
(i) 131,093 shares of common stock directly owned by the Selling
Stockholder, of which 14,455 shares were issued pursuant to the
Recapitalization, (ii) 58,659 shares of common stock owned by the Ecker
Family Partnership and (iii) 1,559 shares of common stock owned by Amir L.
Ecker and (iv) 4,000 shares of common stock issuable upon conversion of
certain warrants owned by Amir L.
Ecker.
|
(19)
|
Includes
58,659 shares of common stock owned directly by the Selling Stockholder,
of which 6,847 shares were issued pursuant to the
Recapitalization. Amir L. Ecker and Maria T. Ecker share voting
and investment control over the shares held by the Selling
Stockholder.
|
(20)
|
Includes
(i) 313,978 shares of common stock directly owned by the Selling
Stockholder, of which 45,647 shares were issued pursuant to the
Recapitalization and (ii) 125,000 shares of common stock that are issuable
upon conversion of the Series D
Preferred.
|
(21)
|
Includes
144,084 shares of common stock directly owned by the Selling Stockholder,
of which 6,618 shares were issued pursuant to the PIK Agreements and 4,667
shares were issued pursuant to the
Recapitalization.
|
(22)
|
Includes
(i) 857 shares of common stock directly owned by the Selling Stockholder,
of which 72,043 shares were issued pursuant to the PIK Agreements and
56,679 shares were issued pursuant to the Recapitalization, (ii) 287,500
shares of common stock issuable upon conversion of the Series D Preferred,
(iii) 402,575 shares of common stock owned by Pershing LLC FBO Leonid
Frenkel IRA and (iv) 787,500 shares of common stock issuable upon
conversion of the Series D
Preferred.
|
(23)
|
Includes
(i) 63,644 shares of common stock directly owned by the Selling
Stockholder, of which 26,185 shares were issued pursuant to the PIK
Agreements and 19,293 shares were issued pursuant to the Recapitalization
and (ii) 845 shares of common stock issuable upon the exercise of certain
warrants.
|
(24)
|
Includes
383,797 shares of common stock directly owned by the Selling Stockholder,
of which 38,039 shares were issued pursuant to the
Recapitalization.
|
(25)
|
Includes
(i) 3,392,748 shares of common stock directly owned by the Selling
Stockholder, of which 200,591 shares were issued pursuant to the PIK
Agreements and 174,488 shares were issued pursuant to the Recapitalization
and (ii) 91,892 shares of common stock issuable upon the exercise of
certain warrants. Yedi Wong, Chief Operating Officer of Joshua
Tree Partners, LP, has voting and investment control over the shares held
by the Selling Stockholder.
|
(26)
|
Includes
(i) 684,592 shares of common stock directly owned by the Selling
Stockholder, of which 30,207 shares were issued pursuant to the PIK
Agreements and 42,065 shares were issued pursuant to the Recapitalization
and (ii) 2,534 shares of common stock issuable upon the exercise of
certain warrants. William Scott and Karen Kaplan, trustees,
share voting and investment control over the shares held by the Selling
Stockholder.
|
(27)
|
Includes
44,039 shares of common stock directly owned by the Selling Stockholder,
of which 4,565 shares were issued pursuant to the
Recapitalization.
|
(28)
|
Includes
486,842 shares of common stock directly owned by the Selling Stockholder,
of which 28,774 shares were issued pursuant to the PIK Agreements and
31,483 shares were issued pursuant to the
Recapitalization.
|
(29)
|
Includes
(i) 288,639 shares of common stock directly owned by the Selling
Stockholder, of which 21,880 shares were issued pursuant to the
Recapitalization and (ii) 14,253 shares of common stock issuable upon the
exercise of certain warrants.
|
(30)
|
Includes
(i) 127,046 shares of common stock directly owned by the Selling
Stockholder, of which 114,117 shares were issued pursuant to the
Recapitalization and (ii) 8,446 shares of common stock issuable upon the
exercise of certain warrants. Terry Fenney, Chief Operating
Officer of Millennium Fixed Income Fund, L.P., has voting and investment
control over the shares held by the Selling
Stockholder.
|
(31)
|
Includes
(i) 1,135,372 shares of common stock directly owned by the Selling
Stockholder, of which 26,754 shares were issued pursuant to the
Recapitalization; (ii) 312,500 shares of common stock issuable upon
conversion of the Series D Preferred and (iii) 49,150 shares of common
stock issuable upon exercise of certain stock
options.
|
(32)
|
Includes
(i) 227,658 shares of common stock directly owned by the Selling
Stockholder, of which 38,611 shares were issued pursuant to the PIK
Agreements and 30,641 shares were issued pursuant to the Recapitalization
and (ii) 156,250 shares of common stock issuable upon the conversion of
Series D Preferred. Leon 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.
|
(33)
|
Includes
(i) 402,575 shares of common stock directly owned by the Selling
Stockholder, of which 26,041 shares were issued pursuant to the PIK
Agreements and 103,697 shares were issued pursuant to the Recapitalization
and (ii) 787,500 shares of common stock issuable upon conversion of the
Series D Preferred. Leonid Frenkel has voting and investment
control over the shares held by the Selling
Stockholder.
|
(34)
|
Includes
(i) 395,798 shares of common stock directly owned by the Selling
Stockholder, of which 17,155 shares were issued pursuant to the
Recapitalization and (ii) 20,000 shares of common stock issuable upon the
exercise of certain warrants. Helen W. Smith and R. Scudder
Smith share voting and investment control over the shares held
by the Selling Stockholder.
|
(35)
|
Includes
(i) 1,928,243 shares of common stock directly owned by the Selling
Stockholder, of which 102,885 shares were issued pursuant to the PIK
Agreements and 170,633 shares were issued pursuant to the
Recapitalization, (ii) 573,703 shares of common stock are issuable upon
the conversion of the Series D Preferred and (iii) 63,840 shares of common
stock are issuable upon the exercise of certain
warrants. 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.
|
(36)
|
Includes
(i) 129,111 shares of common stock directly owned by the Selling
Stockholder, of which 9,129 shares were issued pursuant to the
Recapitalization and (ii) 8,000 shares of common stock issuable upon the
exercise of certain warrants.
|
(37)
|
Includes
(i) 157,215 shares of common stock directly owned by the Selling
Stockholder, of which 12,347 shares were issued pursuant to the PIK
Agreements and 18,932 shares were issued pursuant to the Recapitalization,
(ii) 125,000 shares of common stock issuable upon conversion of the Series
D Preferred and (iii) 12,000 shares of common stock issuable upon the
exercise of certain warrants.
|
(38)
|
Includes
(i) 34,066 shares of common stock directly owned by the Selling
Stockholder, of which 26,185 shares were issued pursuant to the PIK
Agreements and 7,881 shares were issued pursuant to the Recapitalization
and (ii) 40,000 shares of common stock issuable upon the exercise of
certain warrants. Kevin Hamilton, the General Partner of 1041
Partners, L.P., has voting and investment control over the shares held by
the Selling Stockholder.
|
(39)
|
Includes
1,903,715 shares of common stock directly owned by the Selling
Stockholder, of which 131,353 shares were issued pursuant to the PIK
Agreements and 1,360,982 shares were issued pursuant to the
Recapitalization. Active Investors II, Ltd. is managed by
Fundamental Management Corporation (“Fundamental”). Robert C.
Salisbury, the Chief Financial Officer of Fundamental, has voting and
investment control over the shares held by the Selling
Stockholder.
|
(40)
|
Includes
1,908,077 shares of common stock directly owned by the Selling
Stockholder, of which 131,353 shares were issued pursuant to the PIK
Agreements and 1,360,982 shares were issued pursuant to the
Recapitalization. Active Investors III, Ltd. is managed by
Fundamental Management Corporation (“Fundamental”). Robert C.
Salisbury, the Chief Financial Officer of Fundamental, has voting and
investment control over the shares held by the Selling
Stockholder.
|
(41)
|
Includes
(i) 25,926 shares of common stock directly owned by the Selling
Stockholder, all of which were issued pursuant to the Recapitalization and
(ii) 16,560 shares of common stock issuable upon the exercise of certain
warrants.
|
(42)
|
Includes
(i) 22,345 shares of common stock directly owned by the Selling
Stockholder, of which 1,438 shares were issued pursuant to the PIK
Agreements and 14,907 shares were issued pursuant to the Recapitalization
and (ii) 67,000 shares of common stock issuable upon the exercise of
certain stock options.
|
(43)
|
Includes
18,894 shares of common stock directly owned by the Selling Stockholder,
of which 15,005 shares were issued pursuant to the PIK Agreements and
3,889 shares were issued pursuant to the
Recapitalization.
|
(44)
|
Includes
(i) 296,524 shares of common stock directly owned by the Selling
Stockholder, of which 22,913 shares were issued pursuant to the PIK
Agreements and 155,048 shares were issued pursuant to the Recapitalization
and (ii) 982 shares of common stock issuable upon the exercise of certain
warrants.
|
(45)
|
Includes
(i) 58,844 shares of common stock directly owned by the Selling
Stockholder, of which 5,180 shares were issued pursuant to the PIK
Agreements and 53,664 shares were issued pursuant to the Recapitalization,
(ii) 30,350 shares of common stock owned by Richard E. Gathright IRA,
(iii) 555,000 shares of common stock issuable upon the exercise of certain
stock options held by Richard E. Gathright and (iv) 6,800 shares of common
stock issuable upon the exercise of certain stock options held by Louise
P. Gathright.
|
(46)
|
Includes
(i) 44,335 shares of common stock directly owned by the Selling
Stockholder, of which 34,401 shares were issued pursuant to the
Recapitalization, (ii) 7,802 shares of common stock issuable upon the
exercise of certain warrants and (iii) 46,607 shares of common stock owned
by Kevin & Debra Hamilton,
JTWROS.
|
(47)
|
Includes
(i) 46,607 shares of common stock directly owned by the Selling
Stockholder, of which 35,825 shares were issued pursuant to the PIK
Agreements and 10,782 shares were issued pursuant to the Recapitalization,
(ii) 44,335 shares of common stock owned by Kevin Hamilton and (iii) 7,802
shares of common stock issuable upon the exercise of certain warrants held
by Kevin Hamilton.
|
(48)
|
Includes
(i) 488,486 shares of common stock owned directly by the Selling
Stockholder, of which 40,024 shares were issued pursuant to the PIK
Agreements and 12,046 shares were issued pursuant to the Recapitalization
and (ii) 1,689 shares issuable upon the conversion of certain
warrants. Bill B. DeWitt, a member of International Investments
LLC, has voting and investment control over the shares held by the Selling
Stockholder.
|
(49)
|
Includes
(i) 15,347 shares of common stock owned directly by the Selling
Stockholder, all of which were issued pursuant to the Recapitalization and
(ii) 11,418 shares issuable upon the conversion of certain
warrants.
|
(50)
|
Includes
73,555 shares of common stock directly owned by the Selling Stockholder,
of which 6,474 shares were issued pursuant to the PIK Agreements and 1,949
shares were issued pursuant to the
Recapitalization.
|
(51)
|
Includes
8,423 shares of common stock directly owned by the Selling Stockholder, of
which 6,474 shares were issued pursuant to the PIK Agreements and 1,949
shares were issued pursuant to the
Recapitalization.
|
(52)
|
Includes
(i) 189,474 shares of common stock owned directly by the Selling
Stockholder, of which 13,092 shares were issued pursuant to the PIK
Agreements and 36,532 shares were issued pursuant to the Recapitalization
and (ii) 6,019 shares issuable upon the conversion of certain
warrants.
|
(53)
|
Includes
(i) 14,711 shares of common stock owned directly by the Selling
Stockholder, of which 1,295 shares were issued pursuant to the PIK
Agreements and 13,416 shares were issued pursuant to the Recapitalization
and (ii) 29,000 shares issuable upon the exercise of certain stock
options.
|
(54)
|
Includes
73,555 shares of common stock directly owned by the Selling Stockholder,
of which 6,474 shares were issued pursuant to the PIK Agreements and 1,949
shares were issued pursuant to the
Recapitalization.
|
(55)
|
Includes
49,036 shares of common stock directly owned by the Selling Stockholder,
of which 4.316 shares were issued pursuant to the PIK Agreements and 1,299
shares were issued pursuant to the
Recapitalization.
|
(56)
|
Includes
(i) 297,487 shares of common stock owned directly by the Selling
Stockholder, of which 26,185 shares were issued pursuant to the PIK
Agreements and 7,881 shares were issued pursuant to the Recapitalization
and (ii) 6,000 shares issuable upon the conversion of certain
warrants.
|
(57)
|
Includes
(i) 60,594 shares of common stock owned directly by the Selling
Stockholder, of which 5,180 shares were issued pursuant to the PIK
Agreements and 53,664 shares were issued pursuant to the Recapitalization
and (ii) 101,000 shares issuable upon the exercise of certain stock
options.
|
(58)
|
Includes
(i) 16,345 shares of common stock owned directly by the Selling
Stockholder, of which 1,438 shares were issued pursuant to the PIK
Agreements and 14,907 shares were issued pursuant to the Recapitalization
and (ii) 63,000 shares issuable upon the exercise of certain stock
options.
|
(59)
|
Includes
(i) 91,094 shares of common stock owned directly by the Selling
Stockholder, of which 5,180 shares were issued pursuant to the PIK
Agreements and 53,664 shares were issued pursuant to the Recapitalization
and (ii) 92,000 shares issuable upon the exercise of certain stock
options.
|
(60)
|
Includes
(i) 29,421 shares of common stock owned directly by the Selling
Stockholder, of which 2,589 shares were issued pursuant to the PIK
Agreements and 26,832 shares were issued pursuant to the Recapitalization,
(ii) 2,500 shares owned by Gary G. Williams, III and (iii) 85,000 shares
issuable upon the exercise of certain stock options held by Gary G.
Williams.
|
PLAN
OF DISTRIBUTION
General
The
Shares covered by this prospectus are being registered to permit public
secondary trading of these securities by the holders thereof from time to time
after the date of the prospectus. All of the Shares covered by this
prospectus are being sold by the Selling Stockholder 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 Shares directly to purchasers or through broker-dealers
or agents.
The
Shares 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 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 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 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 Shares 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
being notified in writing by a Selling Stockholder that any material agreement
has been entered into with a broker-dealer for the sale of Shares through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will file a supplement to this
prospectus, 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 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 us 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.
We have
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 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
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 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,
2009;
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarters ended
September 30, 2008, December 31, 2008 and March 31,
2009;
|
|
·
|
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
|
|
·
|
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
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. 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
PROSPECTUS
________________,
2009
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The
following table sets forth various expenses in connection with the sale and
distribution of the securities being registered. The registrant has agreed to
pay all the costs and expenses of this offering. All amounts shown
are estimates except the SEC’s registration fee.
Registration
Fee--Securities and Exchange Commission
|
|
$
[_____.__]
|
|
Legal
Fees and
Expenses
|
|
|
25,000.00
|
*
|
Accounting
Fees and
Expenses
|
|
|
20,000.00
|
*
|
Total
|
|
$
[_____.__]
|
|
*
Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND
OFFICERS
SMF 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’s
Certificate of Incorporation contains such a provision.
The
Certificate of Incorporation of SMF generally allows indemnification of officers
and directors to the fullest extent allowed by law. SMF 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 of SMF.
ITEM 16. EXHIBITS
Exhibit
No.
|
Description of
Exhibit
|
3.1
|
Certificate
of Designation of Series D Preferred (incorporated by reference to
Exhibit 3.1 to SMF’s Current Report on Form 8-K, filed
July 6, 2009)
|
5.1
|
Opinion
of Davis Graham & Stubbs LLP
|
10.1
|
Form
of Exchange Agreement (Series A Convertible Stock Preferred for Common
Stock) (incorporated by reference to Exhibit 10.3 to SMF’s Current
Report on Form 8-K, filed July 6, 2009)
|
10.2
|
Form
of Exchange Agreement (Series B Convertible Stock Preferred for Common
Stock) (incorporated by reference to Exhibit 10.4 to SMF’s Current
Report on Form 8-K, filed July 6, 2009)
|
10.3
|
Form
of Exchange Agreement (Series C Convertible Preferred Stock for Common
Stock) (incorporated by reference to Exhibit 10.5 to SMF’s Current Report
on Form 8-K, filed on July 6, 2009)
|
10.4
|
Form
of Exchange Agreement (Unsecured Note for Common Stock) (incorporated by
reference to Exhibit 10.6 to SMF’s Current Report on Form 8-K, filed on
July 6, 2009)
|
10.5
|
Form
of Payment and Exchange Agreement (Unsecured Note for Cash and Series D
Preferred) (incorporated by reference to Exhibit 10.7 to SMF’s Current
Report on Form 8-K, filed on July 6, 2009)
|
10.6
|
Form
of Payment and Exchange Agreement (Secured Note for Cash and Common Stock)
(incorporated by reference to Exhibit 10.8 to SMF’s Current Report on Form
8-K, filed on July 6, 2009)
|
10.7
|
Form
of Payment and Exchange Agreement (Secured Note for Cash and Common Stock)
(incorporated by reference to Exhibit 10.9 to SMF’s Current Report on Form
8-K, filed on July 6, 2009)
|
10.8
|
Form
of Payment and Exchange Agreement (Secured Note for Cash, Series D
Preferred and Common Stock) (incorporated by reference to Exhibit 10.10 to
SMF’s Current Report on Form 8-K, filed on July 6,
2009)
|
10.9
|
Form
of Payment and Exchange Agreement (Secured Note for Cash and New Unsecured
Promissory Note) (incorporated by reference to Exhibit 10.11 to SMF’s
Current Report on Form 8-K, filed on July 6, 2009)
|
23.1
|
Consent
of Davis Graham & Stubbs LLP (included in its opinion filed as Exhibit
5.1)
|
23.2
|
Consent
of Grant Thornton LLP
|
24.1
|
Power
of Attorney (included on the signature page
hereto)
|
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;
(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.
(
5) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(ii) 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 registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
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 a
registration statement on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida, on
September 30,
2009.
|
SMF
ENERGY CORPORATION
|
|
|
|
|
|
|
By:
|
/s/
Richard E. Gathright
|
|
|
|
Richard
E. Gathright
|
|
|
|
Chief
Executive Officer and President
|
|
|
|
(Principal
Executive Officer)
|
|
POWER
OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS
, that each person whose signature appears below hereby
constitutes and appoints Richard E. Gathright and Michael S. Shore his true and
lawful attorneys-in-fact, each acting alone, with full powers of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this registration statement, or any registration statement
relating to this offering to be effective upon filing pursuant to Rule 462(b)
under the Securities Act of 1933, and to file the same, with exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys-in-fact or
their substitutes, each acting alone, may lawfully do or cause to be done by
virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Richard E. Gathright
|
|
Chief
Executive Officer and President, and Chairman of the Board (Principal
Executive Officer)
|
|
|
Richard
E. Gathright
|
|
|
September 30,
2009
|
|
|
|
|
|
/s/
Michael S. Shore
|
|
Chief
Financial Officer and Senior Vice President (Principal Financial and
Accounting Officer)
|
|
|
Michael
S. Shore
|
|
|
September 30,
2009
|
|
|
|
|
|
/s/
Wendell R. Beard
|
|
Director
|
|
|
Wendell
R. Beard
|
|
|
September 30,
2009
|
|
|
|
|
|
/s/
Larry S. Mulkey
|
|
Director
|
|
|
Larry
S. Mulkey
|
|
|
September 30,
2009
|
|
|
|
|
|
/s/
C. Rodney O’Connor
|
|
Director
|
|
|
C.
Rodney O’Connor
|
|
|
September 30,
2009
|
|
|
|
|
|
/s/
Robert S. Picow
|
|
Director
|
|
|
Robert
S. Picow
|
|
|
September 30,
2009
|
|
|
|
|
|
/s/
Steven R. Goldberg
|
|
Director
|
|
|
Steven
R. Goldberg
|
|
|
September 30,
2009
|
|
|
|
|
|
/s/
Nat Moore
|
|
Director
|
|
|
Nat
Moore
|
|
|
September 30,
2009
|
EXHIBIT
INDEX
Exhibit
No.
|
Description of
Exhibit
|
5.1
|
Opinion
of Davis Graham & Stubbs LLP
|
23.2
|
Consent
of Grant Thornton LLP
|
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