UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of the Securities
Exchange
Act of 1934 (Amendment No. __)
Filed by
the Registrant
x
Filed by
a Party other than the Registrant
¨
Check the
appropriate box:
¨
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Preliminary
Proxy Statement
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¨
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Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
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x
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Definitive
Proxy Statement
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¨
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Definitive
Additional Materials
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¨
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Soliciting
Material Pursuant to § 240.14a-12
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SMF
ENERGY CORPORATION
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(Name
of Registrant as Specified In Its
Charter)
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(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
¨
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction
applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was
determined):
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(4)
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Proposed
maximum aggregate value of
transaction:
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¨
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Fee
paid previously with preliminary
materials.
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¨
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by
registration statement number, or the form or schedule and the date of its
filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement
No.:
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SMF
ENERGY CORPORATION
200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida 33309
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
To
be held on December 10, 2010
To the
Stockholders of SMF Energy Corporation:
NOTICE IS HEREBY GIVEN
that an
annual meeting of stockholders of SMF Energy Corporation (the “Company”) will be
held at the Sheraton Suites Cypress Creek, located at 555 NW 62nd Street, Fort
Lauderdale, Florida, on December 10, 2010, beginning at 9:30 a.m. local
time. At the meeting, stockholders will act on the following
matters:
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·
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To
elect seven (7) directors to the Company’s Board of Directors to serve
until the next annual meeting of stockholders or until their successors
are elected;
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·
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To
ratify the appointment of Grant Thornton LLP as the Company’s independent
registered public accounting firm for the current fiscal year;
and
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·
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Any
other matters that may properly come before the
meeting.
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Only
stockholders of record at the close of business on October 15, 2010 are entitled
to receive notice of and to vote at the annual meeting or any postponement or
adjournment thereof.
Your vote
is important. Whether you plan to attend the meeting or not, we urge
you to vote your shares by marking, signing, dating and mailing the enclosed
proxy card in the envelope provided, or to vote by telephone or
Internet. Telephone and Internet voting information is provided on
the proxy card. If you hold your shares through your brokerage
account or in “street name,” telephone or Internet voting may be available to
you. Check your proxy card for information. If you attend
the meeting and prefer to vote in person, you may do so even if you have already
voted your shares by proxy. You may also revoke your proxy in the
manner described in the proxy statement at any time before it has been voted at
the meeting.
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By
Order of the Board of Directors
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LOUISE
P. LUNGARO
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Secretary
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October
22, 2010
Fort
Lauderdale, Florida
SMF
ENERGY CORPORATION
200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida 33309
PROXY
STATEMENT
This
proxy statement contains information related to the annual meeting of
stockholders to be held on December 10, 2010 at 9:30 a.m. local time, at the
Sheraton Suites Cypress Creek, located at 555 NW 62nd Street, Fort Lauderdale,
Florida, or at such other time and place to which the annual meeting may be
adjourned or postponed. You may obtain directions to the meeting by
contacting us at (954)308-4175. The enclosed proxy is solicited on
behalf of the Board of Directors of the Company. The proxy materials
relating to the annual meeting are being mailed on or about October 30, 2010 to
stockholders entitled to vote at the meeting.
Important
Notice Regarding the Availability of Proxy Materials
for
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the
Annual Meeting of Stockholders to be Held on December 10,
2010.
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The
Company’s Notice and Proxy Statement are available at
http://www.mobilefueling.com/proxystatements.htm
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The
Company’s Annual Report to Stockholders for the year ended June 30, 2010
is
available
at
http://www.mobilefueling.com/annualreports.htm
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ABOUT
THE MEETING
Why
are we calling this annual meeting?
We are
calling the annual meeting to seek the approval of our stockholders
to:
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·
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Elect
seven (7) directors to the Company’s Board of Directors to serve until the
next annual meeting of stockholders or until their successors are
elected;
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·
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Ratify
the appointment of Grant Thornton LLP as the Company’s independent
registered public accounting firm for the current fiscal year;
and
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·
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Approve
any other matters that may properly come before the
meeting.
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What
are the Board of Directors’ recommendations?
Our Board
of Directors believes that (i) the election of the nominated directors and (ii)
the ratification of the appointment of Grant Thornton LLP as our independent
registered public accounting firm for the current fiscal year are in the best
interests of the Company and its stockholders and recommends that you vote FOR
the director nominees and the ratification of Grant Thornton LLP.
Who
is entitled to vote at the meeting?
Only
stockholders of record at the close of business on the record date, October 15,
2010, are entitled to receive notice of the annual meeting and to vote the
shares that they hold on that date at the meeting, or any postponement or
adjournment of the meeting.
Holders
of our common stock (the “Common Stock”) are entitled to one vote per share on
each matter to be voted upon. Holders of our Series D Convertible
Preferred Stock (the “Preferred Stock”), are also entitled to one vote per share
on each matter to be voted upon at the meeting. The holders of
Preferred Stock vote together with the holders of Common Stock as a single class
except when otherwise required by law. For all of the actions
described in this proxy statement, the holders of Preferred Stock will vote with
the Common Stock as a single class. The shares of Common Stock and
Preferred Stock entitled to vote at the meeting are referred to as the “Voting
Shares.”
A
s of the
record date, we had 8,565,667 issued and
outstanding shares of
Common Stock and 599 outstanding shares of Series D Preferred Stock, for a total
of 8,566,266 Voting Shares. If and to the extent holders of our
Preferred Stock convert their shares of Preferred Stock to Common Stock before
the record date for the annual meeting, the number of shares held by such
stockholders would increase, since each share of Preferred Stock is convertible
into 1,000 shares of Common Stock
.
Who
can attend the meeting?
All
stockholders as of the record date, or their duly appointed proxies, may attend
the annual meeting. Please note that if you hold your Voting Shares
in “street name” (that is, through a broker or other nominee), to be admitted to
the meeting, you will need to bring a copy of your proxy card as it was
delivered to you by your brokerage firm.
What
constitutes a quorum?
The
presence at the annual meeting, in person or by proxy, of the holders of not
less than one-third of the Voting Shares entitled to vote on the record date
will constitute a quorum for our annual meeting. Signed proxies
received but not voted and abstentions and broker non-votes will be included in
the calculation of the number of Voting Shares considered to be present at the
annual meeting.
If you
are a holder of record (that is, if your shares of Common Stock are registered
in your name with American Stock Transfer & Trust Company, LLC, our transfer
agent), there are four ways to vote:
Telephone
Voting:
You may vote by calling the toll-free number indicated
on the proxy card and by following the instructions. Please follow
the voice prompts that allow you to vote your shares and confirm that your
instructions have been properly recorded.
Internet
Voting:
You may vote by logging on to the website indicated on
the proxy card and by following the instructions. Please follow the
website prompts that allow you to vote your shares and confirm that your
instructions have been properly recorded.
Return Your Proxy Card by
Mail:
If you received your proxy card by mail, you may vote by
marking, signing, dating and returning the proxy card in the enclosed
postage-paid envelope. The proxy holders will vote your shares
according to your directions. If you return your signed proxy, but do
not mark your voting preference, the individuals named as proxies will vote your
shares FOR the matters submitted for a vote at the meeting.
Vote at the
Meeting:
You may cast your vote in person at the annual
meeting. Written ballots will be passed out to stockholders or legal
proxies who want to vote in person at the meeting.
Telephone
and Internet voting for stockholders of record will be available 24 hours a day
and will close at 11:59 p.m. (EST) on December 9, 2010. Internet
voting and telephonic voting are both convenient methods of voting that save
postage and mailing costs. Internet votes and telephonic votes are
also recorded immediately, avoiding the risk that postal delays could cause
paper proxies to arrive late and therefore not be counted.
If you
are a holder of Preferred Stock, you may vote by marking, signing, dating and
returning the Preferred Stock proxy card which will be sent to you in a separate
mailing. The proxy holders will vote your shares according to your
directions. If you return your signed proxy, but do not mark your
voting preference, the individuals named as proxies will vote your shares FOR
the matters submitted for a vote at the meeting. You may also cast
your vote in person at the annual meeting.
What
if I hold my shares in street name?
You
should follow the voting instructions provided by your brokerage
firm. You may complete and mail a voting instruction card to your
brokerage firm or, in most cases, submit voting instructions by telephone or the
Internet to your brokerage firm. If you provide specific voting
instructions by mail, telephone or Internet, your brokerage firm will vote your
shares of Common Stock as you have directed. Please note that if you
hold your shares in “street name,” you cannot vote the proxy card that was
delivered to you by your brokerage firm at the meeting, since your brokerage
firm has the record ownership of your shares. If you want to vote
your “street name” shares at the meeting, your brokerage firm can give you a
legal proxy that will give you the right to cast your vote in person at the
meeting.
What
if I vote by proxy and then change my mind?
You may
revoke your proxy at any time before it is exercised by:
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·
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filing
a notice of revocation with the Secretary of the
Company;
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·
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sending
in another valid proxy bearing a later date;
or
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·
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attending
the meeting and casting your vote in
person.
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Your
latest vote will be the only vote that is counted.
What
vote is required to approve the items of business?
For
purposes of electing directors, the nominees receiving the greatest number of
votes of the Voting Shares present in person or by proxy at the meeting and
entitled to vote thereon, shall be elected as directors. Ratification
of Grant Thornton LLP as our independent registered public accounting firm
requires the affirmative vote of a majority of the Voting Shares present in
person or by proxy at the meeting and entitled to vote
thereon. Approval of any other matter that may properly come before
the annual meeting requires the affirmative vote of a majority of the Voting
Shares present in person or by proxy at the meeting and entitled to vote thereon
(unless such other matter requires a greater vote under our Articles of
Incorporation or Delaware law).
Abstentions
will be counted towards the tabulation of votes cast on proposals presented to
the stockholders and will have the same effect as negative votes, other than for
the election of directors. Broker non-votes (shares held by brokers
that do not have discretionary authority to vote on the matter and have not
received voting instructions from their clients)
are
not deemed to be present or represented by proxy for purposes of determining
whether stockholder approval of a proposal has been obtained and therefore will
not be counted for purposes of determining whether a proposal has been
approved. The inspector of election appointed for the meeting will
tabulate all votes and will separately tabulate affirmative and negative votes,
abstentions and broker non-votes.
How are we soliciting this
proxy
?
We are
soliciting this proxy on behalf of our Board of Directors and we will pay all
expenses associated therewith. In addition to this solicitation,
which is being sent by mail, we have hired Alliance Advisors, LLC, 200
Broadacres Drive, 3rd Floor, Bloomfield, New Jersey 07003, to assist us with our
proxy solicitation efforts. We are paying Alliance Advisers a base
fee of $5,500 and an additional success fee of $5.00 for every successful
stockholder contact, and $4.50 per telephone vote received as a result of the
contact. Alliance will also receive reimbursement for certain reasonable
expenses. In addition, officers, directors and other employees of the
Company may, without receiving any additional compensation beyond their regular
salary or other similar compensation, solicit proxies by further mailing or
personal conversations, or by telephone, facsimile or other electronic
means. We will, upon request, reimburse brokers and other persons
holding stock in their names, or in the names of nominees, for their reasonable
out-of-pocket expenses for forwarding proxy materials to the beneficial owners
of the capital stock and to obtain proxies.
PROPOSAL
NO. 1
ELECTION
OF SEVEN (7) INDIVIDUALS TO THE BOARD OF DIRECTORS
Nominees
The Board
of Directors has fixed at seven the number of directors that will constitute the
Board of Directors for the ensuing year. Each director elected at the
annual meeting will serve for a term expiring at the 2011 Annual Meeting of
Stockholders, or until his successor has been duly elected and qualified.
Wendell R. Beard,
Richard E. Gathright, Steven R. Goldberg, Nat Moore, Larry S. Mulkey, C. Rodney
O’Connor and Robert S. Picow, each of whom is an incumbent director, have been
nominated to be elected at the annual meeting by the stockholders. Proxies
submitted to the Company by stockholders will be voted for such persons absent
contrary instructions.
Our Board
of Directors has no reason to believe that any nominee will refuse to act or be
unable to accept election; however, in the event that a nominee for a
directorship is unable or unwilling to accept election or if any other
unforeseen contingencies should arise, it is intended that proxies will be voted
for the remaining nominees and for such other person as may be designated by the
Board of Directors, unless it is directed by a proxy to do
otherwise.
Each of
the nominees for election as a director is a current member of our Board of
Directors. Mr. O’Connor has served as a director since 1999, Messrs.
Beard, Gathright and Picow have served as directors since 2001, Mr. Moore has
served as a director since 2006, Mr. Mulkey has served as a director since 2002,
and Mr. Goldberg has served as a director since 2005.
The seven
(7) nominees receiving the greatest number of votes of the Voting Shares present
in person or represented by proxy at the meeting and entitled to vote on such
matter shall be elected as directors.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR”
THE
ELECTION OF EACH OF THE SEVEN INDIVIDUALS TO THE
BOARD
OF DIRECTORS
PROPOSAL
NO. 2
RATIFICATION
OF THE APPOINTMENT OF GRANT THORNTON LLP AS THE
COMPANY’S
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The
independent registered public accounting firm of Grant Thornton LLP has been
selected by the Audit Committee to serve as the Company’s independent public
accountants for the year ending June 30, 2011 and to audit the Company’s
financial statements for that year. At the direction of the Board of
Directors, this appointment is being presented to the stockholders for
ratification or rejection at the annual meeting. If the stockholders
do not ratify the appointment of Grant Thornton LLP, or if a substantial number
of shares are voted against such ratification, the Audit Committee may
reconsider its selection of Grant Thornton LLP to serve as our independent
registered public accounting firm and may make another proposal to the
stockholders with respect to the appointment of independent accountants for the
year ending June 30, 2011.
We expect
that a representative of Grant Thornton LLP will be present at the meeting and
will be given an opportunity to make a statement if they so
desire. We also expect that the representative will be available to
respond to appropriate questions from stockholders.
Fees paid to Grant Thornton
LLP
Grant
Thornton LLP served as our Independent Registered Public Accounting Firm for the
fiscal years 2010 and 2009 and provided services in the following categories and
for the amounts indicated:
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2010
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2009
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Audit
Fees
(1)
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$
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285,882
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$
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288,308
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Audited
Related Fees
(2)
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$
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-
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$
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14,840
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Tax
Fees
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$
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-
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$
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-
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All
Other Fees
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$
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-
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$
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-
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(1)
Represents the aggregate fees billed for professional services rendered for the
audit and/or review of the Company’s financial statements and in connection with
the Company’s regulatory filings or engagements. Also includes
services related to consents for registration statements
filings.
(2)
Represents the aggregate fees billed for audit-related services for research and
consultation on various issues including the conversion of promissory notes,
private placements and other related services. Also includes certain
services related to the Company’s acquisitions.
There
were no non-audit related services rendered to the Company by Grant Thornton in
fiscal 2010 and 2009. While the Audit Committee has not established
formal policies and procedures concerning pre-approval of audit or non-audit
services, the Company’s executive officers and the Audit Committee have agreed
that all audit and non-audit services by the Company’s independent accountants
will be approved in advance by the Audit Committee. The establishment
of any such formal policies or procedures in the future is subject to the
approval of the Audit Committee. All audit related services provided
by Grant Thornton LLP were pre-approved by the Audit Committee.
The
affirmative vote of a majority of the Voting Shares present in person or
represented by proxy at the meeting and entitled to vote on such matter is
required to ratify the selection of Grant Thornton LLP as the Company’s
independent registered public accounting firm.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR”
THE
RATIFICATION OF THE APPOINTMENT OF GRANT THORNTON LLP AS
THE
COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
MANAGEMENT
Directors
The
following table sets forth the names, ages and titles of each member of the
Board of Directors of the Company:
Name
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Age
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Position and Office
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Richard
E. Gathright
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56
|
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Chairman
of the Board; Chief Executive Officer and President;
Director
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Wendell
R. Beard
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83
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Director
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Steven
R. Goldberg
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59
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Director
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Nat
Moore
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58
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|
Director
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Larry
S. Mulkey
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67
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Director
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C.
Rodney O’Connor
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75
|
|
Director
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Robert
S. Picow
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55
|
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Director
|
Set forth below are the names of all
directors of the Company, all positions and offices with the Company held by
each person, the period during which each has served as such, and the principal
occupations and employment of such persons during the last five
years:
Mr. Gathright
has been Chief
Executive Officer and President of the Company since November 2000, a Director
since March 2001 and Chairman of the Board since November 2002. He is
responsible for the management of all business affairs of the Company, reporting
directly to the Board of Directors. He was an advisor on operational
and financial matters to the senior management of several domestic and
international energy companies from January 2000 through October
2000. From September 1996 to December 1999, he was President and
Chief Operating Officer of TransMontaigne Inc., a Denver-based publicly owned
company providing logistical services to major energy companies and large
industrial customers; a Director from April 1995 to December 1999; Executive
Vice President from April 1995 to September 1996; and from December 1993 to
April 1995 was President and Chief Operating Officer of a predecessor of
TransMontaigne. From 1988 to 1993, he was President and Director of
North American Operations for Aberdeen Petroleum PLC, a London-based public
company engaged in international oil and gas operations, also serving on its
Board of Directors. Prior to joining Aberdeen, he held a number of
positions in the energy industry in the areas of procurement, operations and
management of oil and gas assets. Mr. Gathright currently serves on
the Board of Directors of the Nat Moore Foundation, a nonprofit organization for
the benefit of disadvantaged youth.
The
Company believes that Mr. Gathright, due to his longstanding service and
commitment to the Company and his years of experience in the energy industry
generally and in the mobile fueling industry, is highly qualified to be a member
of the Board and to serve as its Chairman.
Mr. Beard
has served as a
Director of the Company since July 2001. He retired from Ryder
System, Inc. in June 1994 after 17 years of service, the last three years of
which he served as Executive Vice President, responsible for corporate public
relations, advertising, government relations, special events and the Ryder
Foundation. From August 1989 to June 1991, he served as Senior Vice
President and from August 1987 to August 1989 as Vice President. From
1977 to 1984, he was Vice President of Corporate Development for Truck Stops
Corporation of America, a Ryder subsidiary. He has served on the
Executive Committee of the American Trucking Association, and for the past 16
years has been an advisor to the Truck Rental and Leasing
Association. He is a Director of the Doral County Club in Miami; a
Director of Baptist Health South Florida, a healthcare and hospital corporation;
and a member of the Orange Bowl Committee. Mr. Beard is a noted
speaker to the trucking industry, business and civic groups. He is
the father of Robert W. Beard, the Company’s Senior Vice President, Marketing
& Sales and Investor Relations Officer.
The
Company believes that Mr. Beard, due to his longstanding service commitment to
the Company, his years of experience in the transportation industry generally
and his knowledge of the Company’s industry and its business, including its
suppliers, customers and competitors, is qualified to be a member of the
Board
Mr. Goldberg
has served as a
Director of the Company since July 2005. Since 2007 he has been
President of Goldhammer Advisory LLC, specializing in M&A and corporate
finance matters, located in Coral Gables, Florida. From 2006 to 2007,
he was CEO of Coral Gables based Sunbelt Diversified Enterprises LLC, a
privately owned holding company that acquires and oversees the operations of
various small cap companies in diverse industries. Prior to joining
Sunbelt, he was Senior Vice President of Arrow Air II LLC, from 2004 to 2006,
after having previously served as Chief Financial Officer of its affiliate Arrow
Air, Inc., a Miami-based cargo airline with related logistics and leasing
entities. Prior to joining Arrow Air, from 2002 to 2004, he was a partner at
Maplewood Partners LP, a private equity firm based in Coral Gables,
Florida. Mr. Goldberg served with Ryder System, Inc. and its
subsidiaries for 12 years, from 2000 to 2001 and from 1987 to 1998, in positions
including Senior Vice President of Corporate Finance, Vice President of
Corporate Development, Vice President and Treasurer of Ryder System, Inc and
Chief Financial Officer of Ryder Transportation Services. From 1998
to 2000 he was Senior Vice President, Corporate Development of Republic
Services, Inc., an environmental services company. Prior to joining
the Ryder group, Mr. Goldberg held positions in the finance departments of
Squibb Corporation and J.E. Seagram & Sons, Inc., having started his career
at Manufacturers Hanover Trust in New York. He is a lecturer in
finance at the undergraduate School of Business, University of Miami, as well as
having been a guest lecturer at the Graduate School of Business in the area of
mergers and acquisitions. Mr. Goldberg currently serves as Chairman
of the Company’s Audit Committee.
The
Company believes that Mr. Goldberg, due to his longstanding commitment to the
Company, his knowledge of the Company’s business, and his expertise in
financial, business and related matters, is qualified to be a member of the
Board.
Mr. Moore
has served as a
Director of the Company since May 2006. Since 1987, he has served as
President of Nat Moore & Associates Inc., an event management company
located in Miami, and is the founder of The Nat Moore Foundation, a charitable
organization that provides needed assistance to inner city organizations
supporting sports teams and scholarships. A former professional
football player with the Miami Dolphins, Mr. Moore is also the Vice President of
Alumni Relations & Special Projects and Senior Advisor to the CEO of the
Miami Dolphins Limited and serves as Director of Pro Bowl Youth Clinics for the
National Football League’s Special Events, and did the same for the Super Bowl
Youth Clinics for 18 years. He also appears as a Color Analyst for
Miami Dolphins preseason television broadcasts on WFOR CBS-4, for the University
of Florida,
Breakfast
with the Gators
and on other various football game
broadcasts. He also has been a Color Analyst for Miami Hurricanes
football broadcasts. Mr. Moore is a 13-year veteran of the Miami
Dolphins football team and was the ninth inductee into the Miami Dolphins Ring
of Honor. Mr. Moore currently serves on the Board of Directors of
several other organizations, including Sun Trust Bank N.A., the Nat Moore
Foundation, the Orange Bowl Committee, and the South Florida Golf
Foundation. He currently serves as a member of the Audit Committee, a
member of the Nominating Committee, a member of the Corporate Governance
Committee and Chairman of the Compensation Committee.
The
Company believes that Mr. Moore, due to his longstanding commitment to the
Company, his financial experience and business acumen, and his broad experience
as a Board member of numerous organizations, is qualified to be a member of the
Board.
Mr. Mulkey
has served as a
Director of the Company since November 2002. Since 1997 he has served
as the CEO and President of Mulkey & Associates, Inc., which provides
consulting services specializing in transportation and logistics, business
strategy, and real estate. He retired from Ryder System, Inc. in 1997
after 31 years of service, the last five years as President of Worldwide
Logistics and as a member of the executive committee. Mr. Mulkey has
served as a board and/or committee chairman in numerous organizations, including
the American Trucking Association, and was the 1997 recipient of the
Distinguished Service Award of the Council of Logistics Management which is the
highest honor in the logistics industry. He currently serves as a
Director of Cardinal Logistics Management, Inc., a private logistics and
transportation company. Mr. Mulkey currently serves as a member of
the Audit Committee, a member of the Compensation Committee, a member of the
Nominating Committee and Chairman of the Corporate Governance
Committee.
The
Company believes that Mr. Mulkey, due to his longstanding commitment to the
Company, his considerable experience in the transportation industry and his
knowledge and understanding of business and finance generally and the Company’s
business in particular, is qualified to be a member of the Board.
Mr. O’Connor
has served as a
Director of the Company since July 1999. Mr. O’Connor previously
assisted in the reorganization and refinancing of the Company, and is one of its
largest stockholders today. He is the Chairman of Cameron Associates,
Inc., a financial communications firm he founded in 1976. Prior to
1976, he served in numerous positions over a 20-year period in the investment
industry with Kidder Peabody and Bear Stearns. Mr. O’Connor serves as
a Director of Fundamental Management Corporation, a private fund management
company whose partnerships hold an investment in the Company. He also
was a founder and Director of Atrix Laboratories, Inc., a publicly traded
specialty pharmaceutical company focused on advanced drug delivery which was
sold in 2004.
The
Company believes that Mr. O’Connor, due to his longstanding commitment to the
Company and his expertise in corporate finance, investor relations and
investments generally, is qualified to be a member of the
Board.
Mr. Picow
has served as a
Director of the Company since March 2001. He is currently Chairman of
Quamtel, a provider of mobile broad band and international long distance
services. He is also the Vice Chairman of Eezinet Corporation, which
is a private telecommunications company holding PCS licenses for cellular
spectrum. He served as Chairman of Cenuco Inc. (which subsequently
changed its name to Lander Co. Inc. and is now known as Ascendia Brands, Inc.),
a public communications technology company, from April 2004 until its merger
with Lander Co. Inc. Mr. Picow has served as a member of the board of
directors of Cenuco (and now Ascendia) since July 2003, and as chief executive
officer of the Cenuco Wireless division since 2005. From June 1996 to
August 1997, he served as the Vice Chairman of Brightpoint, Inc., a publicly
traded communications company, and was its President from June 1996 until
October 1997. In 1981, Mr. Picow founded Allied Communications, Inc.,
the pioneer U.S. wireless electronics distributorship, serving 16 years as its
Chairman, Chief Executive Officer and President until the 1996 merger of Allied
and Brightpoint. Since May 2001, he has served as a Director of
Fundamental Management Corporation, a private fund management company whose
partnerships hold an investment in the Company. He also is a Director
of Infosonics Corporation, a multinational telecommunications company, and
American Telecom Services, Inc., a provider of Internet phone and prepaid long
distance communications services. Mr. Picow currently serves as a
member of the Compensation Committee, a member of the Corporate Governance
Committee and Chairman of the Nominating Committee.
The
Company believes that Mr. Picow, due to his longstanding commitment to the
Company, his financial expertise, his business experience and acumen, and his
considerable experience as a director for multiple organizations, is qualified
to be a member of the Board.
Executive
Officers
The
following table sets forth the name and age of each of our executive officers,
indicating all positions and offices presently held with the
Company:
Name
|
|
Age
|
|
Position and Officers
|
|
|
|
|
|
Richard
E. Gathright
|
|
56
|
|
Chairman
of the Board, Chief Executive Officer and President
|
Michael
S. Shore
|
|
42
|
|
Chief
Financial Officer, Senior Vice President and Treasurer
|
Robert
W. Beard
|
|
56
|
|
Senior
Vice President, Operations
|
Timothy
E. Shaw
|
|
46
|
|
Senior
Vice President, Information Services & Administration and Chief
Information Officer
|
Gary
G. Williams
|
|
54
|
|
Senior
Vice President, Supply
|
L.
Patricia Messenbaugh
|
|
46
|
|
Vice
President, Finance & Accounting and Chief Accounting
Officer
|
Mr. Gathright
has been Chief
Executive Officer and President of the Company since November 2000, a Director
since March 2001 and Chairman of the Board since November 2002. He is
responsible for the management of all business affairs of the Company, reporting
directly to the Board of Directors. For a detailed description of
Mr. Gathright’s business experience, see “Management –
Directors.”
Mr. Shore
has been Chief
Financial Officer, Senior Vice President and Treasurer of the Company since
February 2002. He also was the Corporate Secretary from February 2002
to September 2005. Prior to joining the Company, he was CEO and
President of Shore Strategic and Financial Consulting, providing financial and
management services to corporate clients in the United States and Latin
America. From 1998 to 2000, he served as Director of
Finance/Controller for the North American Zone Operations of Paris-based Club
Mediterranee. From 1996 to 1998, he was Vice President of
Finance/Controller for Interfoods of America, Inc., the largest Popeye’s Fried
Chicken & Biscuits franchisee. From 1994 to 1996, he was the
Manager of Accounting and Financial Reporting for Arby’s, Inc. Mr.
Shore began his professional career in 1990 with Arthur Andersen, LLP where he
became a Senior Auditor. Mr. Shore has a diverse background in
leading growth oriented public companies in mergers/acquisitions, capital
formations, finance, treasury and accounting.
Mr. Beard (Robert W.)
has been
Senior Vice President, Operations, since September 3, 2010, responsible for all
of the Company’s fleet and facility operations as well as its marketing and
sales operations. He had previously served as Senior Vice President,
Marketing & Sales, of the Company and as its Investor Relations Officer
since December 2006, when he responsible for marketing and sales operations and
investor relations. From July 2005 to December 2006, he was Vice
President, Corporate Development and Investor Relations Officer of the Company
responsible for product line strategy and development, and for vendor and public
relations. He was employed by Cendian Corporation, a chemical
logistics subsidiary of Eastman Chemical Company, as Group Director of Client
Development and Sales Support from 2004 to July 2005 and as Director of Business
Marketing from 2001 to 2004. He was Senior Manager, Field Marketing
for Ryder System, Inc. from 1994 to 2001. From 1986 to 1994, he was
the Vice President of Marketing for Comdata Corporation. From 1985 to
1986, he was Manager of Vendor Relations for First Data Resources, a Division of
American Express Travel Related Services Company. Mr. Beard also was
employed by Ryder Systems from 1977 to 1985, serving in a number of positions
including Manager, Vendor Relations, and as a General Manager and a Controller
in its Truckstops of America Division. He is the son of Wendell R.
Beard, a member of the Company’s Board of Directors.
Mr. Shaw
has been Senior Vice
President, Information Services & Administration, of the Company and its
Chief Information Officer since December 2006, responsible for all information
systems management and corporate administration and from April 2006 to December
2006, he was Vice President, Information Systems Services and Chief Information
Officer. From 1999 to April 2006 he was the Vice President of
Information Services with Neff Corporation/Neff Rental LLC headquartered in
Miami, one of the country’s largest construction rental
companies. From 1998 to 1999, he served as Director, Retail and
Distribution Systems for Fruehauf Trailer Services in St. Louis,
MO. From 1997 to 1998, he was Manager, Service Center Mechanization,
for Southwestern Bell in St. Louis. From 1994 to 1997, he was
Manager, Information Systems with Aggregate Equipment in East Peoria,
IL. From 1991 to 1994, he was Systems Engineer with Electronic Data
Systems (EDS) in Troy, MI. From 1981 to 1991, he was a Manufacturing
Engineer and Area Supervisor for McDonnell Douglas Corp. in St.
Louis. Mr. Shaw has an extensive background in IT leadership, process
engineering, business operations, implementing enterprise resource solutions,
storm disaster recovery planning, public company IT systems, Sarbanes-Oxley 404
implementation and compliance and the integration of
acquisitions.
Mr. Williams
has been Senior
Vice President, Supply, of the Company since September 3, 2010,
responsible for product procurement and for inventory and price
management. He had previously served as Senior Vice President, Commercial
Operations, since February 2001. Since December 2006 and prior
to that time he was also responsible for marketing and sales and product
procurement. From 1995 to February 2001, he was Vice President of
Marketing for the supply, distribution and marketing subsidiary of
TransMontaigne Inc., managing wholesale marketing functions in the
Mid-Continent, Southeast and Mid-Atlantic and serving on that company’s senior
risk management committee. From 1987 to 1995, he was Regional Manager
for Kerr-McGee Refining Corporation, responsible for unbranded petroleum product
sales in its southeastern United States 11-state marketing
region. Mr. Williams was employed by Kenan Transport Company as its
Tampa Assistant Terminal Manager from 1986 to 1987. He was General
Manager of Crum’s Fuel Oil Service from 1980 to 1986.
Ms. Messenbaugh
has been the
Company’s Chief Accounting Officer and Principal Accounting Officer since
October 2007 and its Vice President of Finance & Accounting since April
2007. Prior to joining the Company, Ms. Messenbaugh served as
Director-Assistant Corporate Controller for NationsRent, Inc., a SEC reporting
construction distribution company in Fort Lauderdale, from 2005 to
2006. From 2003 to 2005, Ms. Messenbaugh served as Corporate
Controller of Workstream, Inc., a publicly traded software application service
company. From 2001 to 2003, she was the Senior Corporate Accountant
for publicly traded Mayors Jewelers Inc. From 1992 to 2000, Ms.
Messenbaugh served with Interim Healthcare, Inc. and Interim Services, Inc., now
known as Spherion Inc., a publicly traded company, where she last held the
position of Senior Financial Analyst. From 1989 to 1991, she was a Financial
Analyst for publicly traded, NationsBank, now known as Bank of
America. She began her career with KPMG. Ms. Messenbaugh
is a Certified Public Accountant and holds a Bachelors degree in Computer
Science and a MBA degree, both from Oral Roberts University, Tulsa,
Oklahoma.
CORPORATE
GOVERNANCE
Independence
After
considering all of the relevant facts and circumstances, the Company’s Board of
Directors has determined that each of Messrs. Goldberg, Moore, Mulkey and Picow
is independent from our management and qualifies as an “independent director”
pursuant to Nasdaq Rule 5605(a)(2). The Board of Directors determined
that none of the above referenced directors (1) is an officer or employee of the
Company or its subsidiaries or (2) has any direct or indirect relationship that
would interfere with the exercise of his independent judgment in carrying out
the responsibilities of a director. A majority of the Company’s
directors are independent as required by Nasdaq Rule 5605(b)(1).
Code
of Business Conduct
The
Company has adopted a Code of Business Conduct that applies to all of the
Company’s employees, including its senior financial officer and Chief Executive
Officer, which complies with the requirements of the Sarbanes-Oxley Act of 2002
and Nasdaq listing standards. Accordingly, the Code of Business
Conduct is designed to deter wrongdoing, and to promote, among other things,
honest and ethical conduct, full, timely, accurate and clear public disclosures,
compliance with all applicable laws, rules and regulations, the prompt internal
reporting of violations of the Code of Business Conduct, and
accountability. The Company’s Code of Business Conduct is available
on the Company’s website at
http://www.mobilefueling.com
. To
access the Code and our other corporate governance materials, click on
“Investors” and then click on “Corporate Governance.”
Meetings
and Committees of the Board of Directors
During
the fiscal year ended June 30, 2010, the Board of Directors held seven (7)
meetings and took action by unanimous written consent four (4)
times. No incumbent director attended fewer than 75 percent of the
aggregate of (i) the number of meetings of the Board of Directors held during
the period he served on the Board of Directors, and (ii) the number of meetings
of committees of the Board of Directors held during the period he served on such
committees.
The
standing committees of the Board of Directors are as follows: (i) the
Audit Committee, (ii) the Compensation Committee, (iii) the Nominating
Committee; and (iv) the Corporate Governance Committee.
Audit
Committee
.
Messrs.
Goldberg, Moore and Mulkey currently serve on the Audit Committee, which
met
six (6) times
and took action by unanimous written consent one (1) time during the fiscal year
ended June 30, 2010. Each member of the Audit Committee is
independent as defined in Nasdaq Rule 5605(a)(2). The duties and
responsibilities of the Audit Committee include (a) the appointment of the
Company’s auditors and any termination of such engagement, including the
approval of fees paid for audit and non-audit services, (b) reviewing the plan
and scope of audits, (c) reviewing the Company’s significant accounting policies
and internal controls and (d) having general responsibility for oversight of
related auditing matters. The Audit Committee was established in
accordance with Section 3(a)(58)(A) of the Securities and Exchange Act of
1934, as amended (the “Exchange Act”).
The Board
of Directors has determined that Mr. Goldberg qualifies as an “Audit Committee
Financial Expert” as that term is defined by Item 407(d) of Regulation SK
promulgated pursuant to the Exchange Act. In addition, each member of
the Audit Committee is financially literate, as required pursuant to Nasdaq Rule
5605(c)(2)(A).
The Board
of Directors has adopted a written charter for the Audit Committee, a copy of
which is available on the Company’s website at
http://www.mobilefueling.com
. To
access our corporate governance materials, click on “Investors” and then click
on “Corporate Governance.”
Compensation
Committee
.
Messrs. Moore,
Mulkey and Picow currently serve on the Compensation Committee, which took
action by unanimous written consent
four (4) times during
the fiscal year ended June 30, 2010. Each member of the Compensation
Committee is independent as defined in Nasdaq Rule 5605(a)(2). The
Compensation Committee administers the 2009 Equity Incentive Plan and has the
power and authority to (a) grant equity awards under the Plan and determine the
terms thereof, and (b) construe and interpret the Plan. This
Committee is also responsible for the final review and determination of
compensation of the Chief Executive Officer and other executive
officers. The compensation of the other executive officers is also
set by the Compensation Committee based on recommendations from the Chief
Executive Officer and such other input as the Committee believes appropriate and
necessary.
The
Compensation Committee has the authority to retain and terminate compensation
consultants or other experts to assist the Committee in its evaluation of the
Chief Executive Officer, his compensation or the compensation of any of the
other executive officers. The Company has never engaged any
compensation consultants or similar firms.
The Board
of Directors has adopted a written charter for the Compensation Committee, a
copy of which is available on the Company’s website at
http://www.mobilefueling.com
. To
access the charter and our other corporate governance materials, click on
“Investors” and then click on “Corporate Governance.”
Nominating and
Corporate Governance Committee
.
Messrs. Moore,
Mulkey and Picow served on the Nominating and Corporate Governance Committee,
which did not hold any meetings but took action by unanimous written
consent
one (1)
time during the fiscal year ended June 30, 2010. Each member of the
Nominating and Governance Committee was independent as defined in Nasdaq Rule
5605(a)(2).
On
September 23, 2010, in recognition of its increased corporate governance
oversight responsibilities after the passage and pending implementation of the
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Board of
Directors determined to establish two separate committees to assume the duties
and responsibilities previously handled by the Nominating and Corporate
Governance Committee. The Board created a new standing committee, the
Nominating Committee, to be responsible for nominations to the Board, including
the qualifications of prospective directors, and appointments to Board
committees. The Board also created a separate Corporate Governance
Committee with primary responsibility for all corporate governance matters at
the Board level.
Nominating
Committee.
Messrs. Moore, Mulkey and Picow currently serve on
the Nominating Committee and each are independent as defined in Nasdaq Rule
5605(a)(2). This Committee is responsible for identifying individuals
qualified to become directors of the Company, recommending to the Board of
Directors director candidates to fill vacancies of the Board of Directors and to
stand for election by the stockholders at the annual meeting of the
Company. The Committee is also responsible for recommending to the
Board the directors to serve on the various standing committees of the Board
after reviewing their qualifications and eligibility for such
service.
The
Nominating Committee and the Board of Directors will, as a matter of policy,
give consideration to nominees for the Board that are recommended by
stockholders. A stockholder who wishes to recommend a nominee should
direct his or her recommendation in writing to the Company’s Corporate Secretary
at the Company’s address. Stockholder recommendations will be
evaluated under the same criteria as the recommendations of the Nominating
Committee and the Board of Directors. The Company must receive the
required notice (as defined below) by the date set forth in the prior year’s
annual proxy statement under the heading “Stockholder Proposals” in order to be
considered by the Nominating Committee in connection with the Company’s next
annual meeting of stockholders.
Stockholders
wishing to nominate, or recommend a candidate for nomination to, the Board of
Directors may do so by providing advance written notice to the Corporate
Secretary. The notice must include the following
information:
As to
each proposed nominee:
|
·
|
the
name, age, business address and residence
address;
|
|
·
|
the
principal occupation or employment;
|
|
·
|
the
class or series and number of shares of capital stock of the Company which
are owned beneficially or of record by the nominee;
and
|
|
·
|
any
other information relating to the nominee that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act, and the rules and regulations
promulgated thereunder.
|
As to the
stockholder giving notice:
|
·
|
the
name and record address of such
stockholder;
|
|
·
|
the
class or series and number of shares of capital stock of the Company which
are owned beneficially or of record by such
stockholder;
|
|
·
|
a
description of all arrangements or understandings between such stockholder
and each candidate for nomination and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made
by such stockholder;
|
|
·
|
a
representation that such stockholder intends to appear in person or by
proxy at the meeting to nominate the person(s) named in the stockholder’s
notice; and
|
|
·
|
any
other information relating to such stockholder that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder.
|
Such
notice must be accompanied by a written consent of each proposed nominee to be
named as a nominee and to serve as a director if elected.
A
proposed nominee for director should be a person of integrity and must be
committed to devoting the time and attention necessary to fulfill his or her
duties to the Company. The Nominating Committee will evaluate the
independence of potential directors, as well as their business experience,
understanding of and experience in the industry, personal skills, or specialized
skills or experience, relative to those of the then-current
directors. The Nominating Committee will also consider issues
involving possible conflicts of interest of directors or potential directors,
the results of interviews of selected candidates by members of the Nominating
Committee and the Board of Directors, and the totality of the
circumstances.
If all of
the information set forth above is provided to the Corporate Secretary by a
qualified stockholder in a timely manner, the Corporate Secretary will forward
the information to the Nominating Committee, which will consider the information
in making its own recommendations to the Board of Directors for Board
nominees. In order for such information to be considered timely for
the Company’s 2011 annual meeting, it must be received on or before September 6,
2011. If the date of the 2011 annual meeting is advanced by more than
30 days or delayed (other than as a result of adjournment) by more than 60 days
from the anniversary of the December 10, 2010 annual meeting, any such proposal
must be submitted no earlier than the 120th day prior to the 2011 annual meeting
and no later than the close of business on the later of the 90th day prior to
the 2011 annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made.
If the
Nominating Committee does not include the candidate proposed by the stockholder
in its recommended slate of nominees and the Board does not otherwise determine
to nominate the candidate, then a stockholder who has supplied all of the
foregoing information to the Corporate Secretary in a timely manner may still
appear at the meeting, in person or by proxy, to nominate the stockholder’s
candidate to the Board. The Company is under no obligation, however,
to include any information in its proxy statement concerning stockholders’
proposed nominees if they are not nominated by the Board.
The
Company did not receive any information from stockholders concerning proposed
nominees or recommended candidates for nomination for this year’s
annual meeting.
The Board
of Directors has adopted a written charter for the Nominating Committee, a copy
of which is available on the Company’s website at
http://www.mobilefueling.com
. To
access the Nominating Committee’s charter and our other corporate governance
materials, click on “Investors” and then click on “Corporate
Governance.”
Corporate
Governance Committee.
Messrs. Moore, Mulkey and Picow
currently serve on the Corporate Governance Committee, with Mr. Mulkey serving
as Chairman, and each are independent as defined in Nasdaq Rule
5605(a)(2). This Committee’s principal responsibilities include
periodically assessing the performance of the Board of Directors, periodically
reviewing and assessing the Company’s Code of Business Conduct and reviewing and
recommending to the Board of Directors appropriate corporate governance policies
and procedures for the Company. The Corporate Governance Committee is
also charged with review and approval of any related party transactions, a duty
that was assigned to the Audit Committee prior to the formation of a separate
Corporate Governance Committee.
The Board
of Directors has adopted a written charter for the Corporate Governance
Committee, a copy of which is available on the Company’s website at
http://www.mobilefueling.com
. To
access this charter or our other corporate governance materials, click on
“Investors” and then click on “Corporate Governance.”
Director
Attendance at Annual Meeting
All
members of the Board of Directors are encouraged, but not required, to attend
the annual meeting of stockholders. Each director attended the 2009
Annual Meeting of Stockholders held on December 4, 2009.
Communications
with the Board of Directors
Stockholders
who wish to communicate with the Board of Directors may do so by addressing
their correspondence to the Board of Directors at SMF Energy Corporation,
Attention: Corporate Secretary, 200 West Cypress Creek Road, Suite 400, Fort
Lauderdale, Florida 33309. The Board of Directors has approved a
process pursuant to which the Corporate Secretary shall review and forward
correspondence to the appropriate director, committee or group of directors for
response.
Board
Leadership Structure
The
Company believes the interests of the stockholders are best served at the
present time by the Company’s existing leadership model, which is based on a
combined Chairman/CEO. As a relatively small business already burdened with
regulatory complexities and expenses by virtue of being a public company, the
Company believes adding another level of management hierarchy would only add
inefficiencies to a Company that is constantly trying to streamline operations
and reduce costs.
Richard
Gathright, the current CEO, possesses an in-depth knowledge of the Company, its
integrated operations, the unique conditions of an evolving mobile fueling
industry and the array of challenges the Company currently faces. The
Board believes that the CEO’s experiences and other insights put the CEO in the
best position to provide broad leadership for the Board as its Chairman in
carrying out its fiduciary responsibilities to the stockholders.
In lieu
of a separate Chairman or a lead independent director, the Company’s Board of
Directors has adopted an alternative governance model that it believes to be
more efficient and effective for the Company under present
circumstances. Wendell R. Beard currently acts as a liaison between
the Company’s management and the other non-employee directors, including the
various Board committees. For example, when the company’s independent
directors meet from time to time to discuss Company business and corporate
governance, Mr. Beard has been invited to attend a portion of those
meetings to provide insight into, and facilitate communication with, management.
Mr. Beard receives a separate fee from the Company, as would a committee
chairman, for these liaison and other services that he renders to the Company as
a member of its Board of Directors. While Mr. Beard is not considered
independent under SEC and Nasdaq rules because his son, Robert W. Beard, serves
as the Company’s Senior Vice President, Operations, the Company believes that,
in substance, he fulfills the role of lead independent director in addition to
the other valuable services he provides to the Board. Under these
circumstances, the Company does not believe it is necessary to establish a
formal position of lead independent director for the Board to provide
independent oversight of management.
The Board
is comprised of a majority of independent directors, and all members of the
Audit Committee, Nominating Committee, Corporate Governance Committee and
Compensation Committee are independent under Nasdaq rules. Each
independent director has access to the CEO and other Company executives on
request; may call meetings of the independent directors; and may request agenda
topics to be added or dealt with in more detail at meetings of the full Board or
an appropriate Board committee.
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Exchange Act requires that our directors, executive officers and
persons who own more than ten percent of our Common Stock, file with the SEC
initial reports of ownership and reports of changes in ownership of Common
Stock. Directors, officers and greater than ten percent stockholders
are required by SEC rules to furnish us with copies of all ownership reports
they file with the SEC.
The
following table lists (i) each of the Company’s directors, (ii) each of the
Company’s executive officers, and (iii) any persons known by the Company to
beneficially own more than 5% of its Common Stock and Preferred
Stock.
Name
|
|
Title/Designation
|
|
|
|
Richard
E. Gathright
|
|
Chairman
of the Board, Chief Executive Officer and President
|
Wendell
R. Beard
|
|
Director
|
Steven
R. Goldberg
|
|
Director
|
Nat
Moore
|
|
Director
|
Larry
S. Mulkey
|
|
Director
|
C.
Rodney O’Connor
|
|
Director
|
Robert
S. Picow
|
|
Director
|
Michael
S. Shore
|
|
Chief
Financial Officer, Senior Vice President and Treasurer
|
Robert
W. Beard
|
|
Senior
Vice President, Operations
|
Timothy
E. Shaw
|
|
Senior
Vice President, Information Services & Administration and Chief
Information Officer
|
Gary
G. Williams
|
|
Senior
Vice President, Supply
|
L.
Patricia Messenbaugh
|
|
Vice
President, Finance & Accounting and Chief Accounting
Officer
|
Based
solely on review of the Forms 3 and 4 of the above referenced persons furnished
to us and representations made by such persons to us, during the fiscal year
ended June 30, 2010, no executive officer, director or ten percent stockholders
of the Company (i) filed a late report, (ii) failed to report a transaction on a
timely basis or (iii) failed to file a required form pursuant to the filing
requirements under Section 16(a) of the Exchange Act.
Certain
Relationships and Related Transactions
C. Rodney
O’Connor, a Director of the Company, also is Chairman of Cameron Associates,
Inc., a financial consulting and investor relations public relations firm, that
has provided investor relations services to the Company since
1997. During the fiscal 2010, the Company paid $78,000 to Cameron
Associates, Inc. for such services, compared to $80,253 during fiscal
2009. Of the $80,253 paid to Cameron Associates, Inc. in 2009, $2,064
was reimbursed to Mr. O’Connor in connection with his activities as a Director
of the Company.
On
September 10, 2009, the exercise price of all outstanding options previously
granted to employees under the Company’s 2000 Stock Option Plan were amended to
have an exercise price of $2.48 per share (the “Amendment”), which was $0.77
above the $1.71 closing bid price on the Nasdaq Capital Market on the trading
day immediately preceding the Amendment.
The
Amendment affected an aggregate of 327,614 shares of Common Stock underlying
options previously granted to 31 employees, including executive
officers. In particular, the Amendment affected the following
executive officers: Richard E. Gathright, who held options to purchase 133,337
shares; Michael S. Shore, who held options to purchase 27,779 shares; L.
Patricia Messenbaugh, who held options to purchase 12,224 shares, Robert W.
Beard, who held options to purchase 18,891 shares; Timothy E. Shaw, who held
options to purchase 18,892 shares; and Gary G. Williams, who held options to
purchase 18,890 shares.
The
Company believes that the foregoing transactions were entered into in good faith
and on fair and reasonable terms that are no less favorable to the Company than
those that would be available for comparable transactions in arm’s length
dealings with unrelated third parties.
The
Company has a stated policy against any conflict of interest transaction in its
Code of Business Conduct, which was most recently revised by the Board of
Directors in March 2007. The Code of Business Conduct specifically
prohibits officers, directors and employees from employment by, or investment
in, any current or prospective customer, supplier or competitor of the
Company. The Code of Business Conduct also prohibits acceptance of
commissions, compensation or excessive gifts or entertainment from persons or
firms with which the Company does or may do business, as well as any
exploitation of a corporate opportunity for personal
profit. Exceptions to the prohibitions on conflict of interest
transactions may be made on a case-by-case basis to avoid undue hardship, such
as investments made before employment or other pre-existing
relationships.
The
Charter of the Corporate Governance Committee includes a requirement for that
committee to approve any transaction involving the Company and a related party
in which the parties’ relationship could enable the negotiation of terms on
other than an independent, arm’s length basis. For these purposes, a
“related party transaction” includes any transaction that is required to be
disclosed pursuant to Item 404 of SEC Regulation S-K. In making any
determination concerning whether to approve a related party transaction, the
Corporate Governance Committee is guided by the Company’s Code of Business
Conduct. The Corporate Governance Committee Charter specifically
provides that the Committee shall review with management actions taken to ensure
compliance with the Code of Conduct. The Charter also requires the
Corporate Governance Committee to review any conduct of executive officers or
directors that is alleged to be in violation or potential violation of the Code
and, in appropriate instances, grant a waiver or exception for specific
individuals. The Corporate Governance Committee has the authority to
cause the Company to take remedial, disciplinary or other measures against
executive officers and directors who violate the Code of Conduct and to cause
the prompt public disclosure of any waiver of or change to the Code as it
relates to executive officers or directors.
Copies of
the Code of Business Conduct and the Corporate Governance Committee Charter are
available on the Company’s website at
http://www.mobilefueling.com
. To
access these and other corporate governance materials, click on “Investors” and
then click on “Corporate Governance.”
Messrs.
Moore, Mulkey and Picow served as members of the Compensation Committee during
the last fiscal year. No member of the Compensation Committee during
fiscal 2010 was an officer, former officer or employee of the Company or had any
financial relationship with the Company other than the compensation they
received for serving as independent directors of the Company. The
Company is not aware of any interlocks or insider trading participation required
to be disclosed under applicable rules of the Securities and Exchange
Commission.
SECURITY
OWNERSHIP OF CERTAIN
BENEFICIAL
OWNERS AND MANAGEMENT
The
following table sets forth certain information with respect to the beneficial
ownership of the Company’s Common Stock and Preferred Stock by: (i) persons
known to the Company to beneficially own more than 5% of its Common Stock and
Preferred Stock, (ii) each of the Company’s directors, (iii) the
Company’s principal executive officer and its two other most highly compensated
executive officers and (iv) all directors and executive officers of the
Company as a group. Except as otherwise indicated, each person has
sole voting and investment power with respect to all shares shown as
beneficially owned, subject to community property laws where
applicable. Voting power is the power to vote or direct the voting of
securities, and investment power is the power to dispose of or direct the
disposition of securities.
|
|
Common
Stock
Beneficially
Owned
(2)
|
|
|
Series
D Convertible Preferred Stock Beneficially Owned
(3)
|
|
|
Common
Stock and Series D Convertible Preferred Stock (“Voting Shares”)
(4)
|
|
Name
and Address (1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Directors
and Named Executive Officers
|
|
|
|
Richard
E. Gathright, Chairman of the Board, Chief Executive Officer and
President
|
|
|
186,883
|
(5)
|
|
|
2.15
|
|
|
|
―
|
|
|
|
―
|
|
|
|
51,323
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
S. Shore, Chief Financial Officer, Senior Vice President and
Treasurer
|
|
|
41,245
|
(6)
|
|
|
*
|
|
|
|
―
|
|
|
|
―
|
|
|
|
13,466
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
L.
Patricia Messenbaugh, Vice President, Finance and Accounting, Chief
Accounting Officer and Principal Accounting Officer
|
|
|
15,494
|
(7)
|
|
|
*
|
|
|
|
―
|
|
|
|
―
|
|
|
|
3,270
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wendell
R. Beard, Director
|
|
|
13,492
|
(8)
|
|
|
*
|
|
|
|
―
|
|
|
|
―
|
|
|
|
1,889
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Steven
R. Goldberg, Director
|
|
|
10,379
|
(9)
|
|
|
*
|
|
|
|
―
|
|
|
|
―
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nat
Moore, Director
|
|
|
9,939
|
(10)
|
|
|
*
|
|
|
|
―
|
|
|
|
―
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry
S. Mulkey, Director
|
|
|
11,908
|
(11)
|
|
|
*
|
|
|
|
―
|
|
|
|
―
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C.
Rodney O’Connor, Director
|
|
|
576,907
|
(12)
|
|
|
6.49
|
|
|
|
312
|
|
|
|
52.09
|
|
|
|
253,616
|
(13)
|
|
|
2.96
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert
S. Picow, Director
|
|
|
56,487
|
(14)
|
|
|
*
|
|
|
|
―
|
|
|
|
―
|
|
|
|
44,884
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All
directors and executive officers as a group (9
individuals)
|
|
|
922,734
|
(15)
|
|
|
10.12
|
|
|
|
312
|
|
|
|
52.09
|
|
|
|
371,448
|
(16)
|
|
|
4.34
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beneficial
Owners of More Than 5%
|
|
|
|
Gabriel
& Alma Elias JT WROS
|
|
|
165,534
|
(17)
|
|
|
1.93
|
|
|
|
125
|
|
|
|
20.87
|
|
|
|
40,659
|
(18)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark
D. Wittman
|
|
|
136,008
|
(19)
|
|
|
1.57
|
|
|
|
125
|
|
|
|
20.87
|
|
|
|
11,133
|
(20)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
Bevilacqua
|
|
|
38,130
|
(21)
|
|
|
*
|
|
|
|
37
|
|
|
|
6.18
|
|
|
|
1,167
|
(22)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triage
Capital Management L.P. (23)
|
|
|
467,502
|
|
|
|
5.78
|
|
|
|
―
|
|
|
|
―
|
|
|
|
467,502
|
|
|
|
5.78
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leonid
Frenkel (24)
|
|
|
495,199
|
|
|
|
5.46
|
|
|
|
―
|
|
|
|
―
|
|
|
|
495,199
|
|
|
|
5.46
|
|
|
(1)
|
The
address of each of the executive officers and directors identified is c/o
SMF Energy Corporation, 200 West Cypress Creek Road, Suite 400, Fort
Lauderdale, Florida 33309.
|
|
(2)
|
Based
on 8,565,667 shares of Common Stock issued and outstanding as of September
30, 2010. Pursuant to the rules of the Securities and Exchange
Commission (the “Commission”), certain shares of Common Stock which a
person has the right to acquire within 60 days of September 30, 2010
pursuant to the exercise of stock options, warrants and conversion of
convertible promissory notes and preferred stock, are deemed to be
outstanding for the purpose of computing the percentage ownership of that
person, but not the percentage ownership of any other
person.
|
|
(3)
|
Based
on 599 shares of Series D Convertible Preferred Stock outstanding as of
September 30, 2010.
|
|
(4)
|
This
column reflects the record ownership of the listed stockholders and
excludes shares that are beneficially owned by virtue of stock options,
conversion rights and related parties, and is based on 8,566,266 shares of
Common Stock and Series D Convertible Preferred Stock issued and
outstanding as of September 30,
2010.
|
|
(5)
|
Includes
51,323 shares of Common Stock, 133,337 shares of Common Stock issuable
upon the exercise of certain stock options, and 2,223 shares of Common
Stock issuable upon the exercise of certain stock options held by Louise
P. Lungaro, Mr. Gathright’s wife. Also, Mr. Gathright has power
of attorney over 112 shares that are held by Richard L. Colquette;
however, these shares are not included in the “Common Stock Beneficially
Owned” column as Mr. Gathright disclaims any beneficial ownership interest
in these shares.
|
|
(6)
|
Includes
13,466 shares of Common Stock and 27,779 shares of Common Stock issuable
upon the exercise of certain stock
options.
|
|
(7)
|
Includes
3,270 shares of Common Stock and 12,224 shares of Common Stock issuable
upon the exercise of certain stock
options.
|
|
(8)
|
Includes
1,889 shares of Common Stock and 11,603 shares of Common Stock issuable
upon the exercise of certain stock
options.
|
|
(9)
|
Includes
1,000 shares of Common Stock and 9,379 shares of Common Stock issuable
upon the exercise of certain stock
options.
|
|
(10)
|
Includes
1,000 shares of Common Stock and 8,939 shares of Common Stock issuable
upon the exercise of certain stock
options.
|
|
(11)
|
Includes
1,000 shares of Common Stock and 10,908 shares of Common Stock issuable
upon the exercise of certain stock
options.
|
|
(12)
|
Includes
253,304 shares of Common Stock, 11,603 shares of Common Stock issuable
upon the exercise of certain stock options and 312,000 shares of Common
Stock issuable upon conversion of Series D Convertible Preferred Stock.
Mr.
O’ Connor is a director and shareholder of Fundamental Management
Corporation, the sole general partner of Active Investors II, Ltd. and
Active Investors III, Ltd., which, as of May 19, 2010, reported the
beneficial ownership of a total of 402,120 shares of our Common
Stock. Mr. O’Connor disclaims any beneficial ownership interest
in these shares. Robert C. Salisbury, the President of Fundamental, and
Damarie Cano, the Vice President, Secretary and Treasurer of Fundamental,
share sole voting and investment control over the
shares.
|
|
(13)
|
Includes
253,304 shares of Common Stock and 312 shares of Series D Convertible
Preferred Stock.
|
|
(14)
|
Includes
44,884 shares of Common Stock and 11,603 shares of Common Stock issuable
upon the exercise of certain stock options.
Mr. Picow
is a director and shareholder of Fundamental Management Corporation, the
sole general partner of Active Investors II, Ltd. and Active Investors
III, Ltd., which, as of May 19, 2010, reported the beneficial ownership
of a total of 402,120 shares of our Common
Stock. Mr. Picow disclaims any beneficial ownership
interest in these shares. Robert C. Salisbury, the President of
Fundamental, and Damarie Cano, the Vice President, Secretary and Treasurer
of Fundamental, share sole voting and investment control over the
shares.
|
|
(15)
|
Includes
371,136 shares of Common Stock, 239,598 shares of Common Stock issuable
upon the exercise of certain stock options and 312,000 shares of Common
Stock issuable upon conversion of Series D Convertible Preferred
Stock.
|
|
(16)
|
Includes
371,136 shares of Common Stock and 312 shares of Series D Convertible
Preferred Stock.
|
|
(17)
|
Includes
40,534 shares of Common stock and 125,000 shares of Common Stock issuable
upon conversion of Series D Preferred Stock. The address for Gabriel and
Alma Elias is P.O. Box 340, 206 N. Bowman Ave., Merion Station, PA
19066.
|
|
(18)
|
Includes
40,434 shares of Common Stock and 125 shares of Series D Convertible
Preferred Stock.
|
|
(19)
|
Includes
11,008 shares of Common stock and 125,000 shares of Common Stock issuable
upon conversion of Series D Preferred Stock. The address for Mr. Wittman
is 20 Beacon Hill Lane, Phoenixville, PA
19460.
|
|
(20)
|
Includes
11,108 shares of Common Stock and 125 shares of Series D Convertible
Preferred Stock.
|
|
(21)
|
Includes
1,130 shares of Common stock and 37,000 shares of Common Stock issuable
upon conversion of Series D Preferred Stock. The address for Mr.
Bevilacqua is 127 E. Curtin St., Bellefonte, PA
16823.
|
|
(22)
|
Includes
1,130 shares of Common Stock and 37 shares of Series D Convertible
Preferred Stock.
|
|
(23)
|
Does
not include 495,199 shares beneficially owned by Leonid Frenkel, which are
separately reported. 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. Triage disclaims beneficial ownership of the
Company’s securities held by Mr. Frenkel, which are reported
separately. The address of Triage Capital Management LP is 401
City Ave., Suite 800, Bala Cynwyd, PA
19004.
|
|
(24)
|
Includes
85,924 shares of common stock held by Periscope Partners LP, of which Mr.
Frenkel is the general partner. Mr. Frenkel disclaims beneficial
ownership of the Company’s securities held by Periscope except to the
extent of his pecuniary interest therein. Does not include 467,502
shares of common stock beneficially owned by Triage Capital Management LP,
which are reported separately. Triage Capital Management LP has
identified Mr. 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. Mr. Frenkel’s address is 1600 Flat
Rock Road, Penn Valley,
PA 19072.
|
Changes
in Control
The
Company knows of no arrangement or events, the occurrence of which may result in
a change in control.
EXECUTIVE
COMPENSATION AND OTHER INFORMATION
Summary
Compensation
The
following table provides information concerning total compensation earned or
paid to the Chief Executive Officer and the two other most highly compensated
executive officers of the Company for services rendered to the Company for the
fiscal years ended June 30, 2010 and 2009. These three executive officers are
referred to as the “named executive officers” in this proxy
statement.
SUMMARY
COMPENSATION TABLE
Name
and Principal Position
|
|
Year
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Stock
Awards
($)
|
|
|
Option
Awards
($)
|
|
|
Non-Equity
Incentive
Plan
Compensation
($)
|
|
|
Nonqualified
Deferred
Compensation
Earnings
($)
|
|
|
All
Other
Compensa-
tion
($) (1)
|
|
|
Total
($)
|
|
Richard
E. Gathright,
|
|
2010
|
|
|
323,000
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
12,000
|
|
|
|
335,000
|
|
Chairman
of the Board,
|
|
2009
|
|
|
323,000
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
12,000
|
|
|
|
335,000
|
|
CEO
and President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael S.
Shore,
|
|
2010
|
|
|
212,154
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
12,000
|
|
|
|
224,154
|
|
CFO,
Senior V.P. and Treasurer
|
|
2009
|
|
|
200,307
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
12,000
|
|
|
|
212,307
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
L.
Patricia Messenbaugh,
|
|
2010
|
|
|
161,769
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
7,415
|
|
|
|
169,184
|
|
Vice
President, Finance and
|
|
2009
|
|
|
160,000
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
-0-
|
|
|
|
7,200
|
|
|
|
167,200
|
|
Accounting,
Chief Accounting
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Office
and Principal Accounting
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
The
amounts in this column reflect the annual automobile allowance provided to
each of the named executive
officers.
|
The
Company strives to attract, motivate, and retain high-quality executives by
providing total compensation that is performance-based and competitive within
the labor market in which the Company competes for executive
talent. The Company’s compensation program is intended to align the
interests of management with the interests of stockholders by linking pay with
performance, thereby incentivizing performance and furthering the ultimate
objective of improving stockholder value.
Base
salary amounts are required to be reviewed annually. The Compensation
Committee sets the base salary level of the Company’s Chief Executive Officer,
and, based on input from the Chief Executive Officer, of the other executive
officers. In the absence of specific action by the Compensation
Committee increasing or decreasing the salary of one or more executive officers,
the Compensation Committee has determined that, beginning in 2011, executive
officers will receive 3% annual increases in their base
salaries.
Richard E.
Gathright
. Under the Chief Executive Officer’s employment
agreement, which was amended and restated on September 23, 2010 to reflect
changes in tax regulations, Mr. Gathright has a minimum annual base salary of
$373,000, which salary may be increased if the Compensation Committee determines
an increase is warranted under the circumstances. After the 2010
restatement, Mr. Gathright’s agreement continues to provide that 10% of the
Company’s annual pretax profits be set aside in a bonus pool to be allocated
among the Company’s officers as may be recommended by Mr. Gathright and as
ultimately determined by the Board, in its sole discretion. If the Company
does not achieve positive pre-tax earnings for any fiscal year, no bonus pool is
established for that year. While the agreement requires that the entire
bonus pool be allocated each year that the Company earns a pre-tax profit and
the Company made a pre-tax profit of $497,000 in fiscal 2010, Mr. Gathright
waived his right to require the establishment and payment of the bonus pool for
fiscal 2010.
When Mr.
Gathright’s employment agreement was amended in 2010 to reflect changes in
regulations promulgated under Section 409A of the Internal Revenue Code since
the time the agreement was last amended, the Compensation Committee determined
that it was also appropriate at that time to raise his base salary, as set forth
in the agreement, from $323,000 to $373,000, his first salary increase since
2005 and only his second salary increase since he joined the Company in
2000. The Compensation Committee determined that it was fair and
reasonable and in the Company’s interests to grant that increase to Mr.
Gathright because of his diligence, loyalty and dedication to the Company,
including but not limited to his work in completing the Company’s June 2009
recapitalization, his assumption of additional duties since the departure of the
Company former Senior Vice President, Corporate Planning and Fleet Operations,
and his initiation of timely cost cutting measures in 2008 in response to the
impact of the recessionary economy, all of which led to the substantially
improved financial performance of the Company in fiscal 2010.
If Mr.
Gathright’s employment agreement is terminated by the Company without cause or
he voluntarily resigns for good reason, as those terms are defined in the
agreement, Mr. Gathright would receive a severance payment equal to the greater
of all base salary payable through the remaining term of the Agreement or
eighteen months base salary. At the end of fiscal 2010, the greater amount
would be the eighteen months salary, or $484,500. After his September 2010
salary increase, that amount would be $559,500. The agreement provides
that the severance payment, which may be paid in a lump sum or ratably over the
term on which the payment was calculated, as the Company elects, is subject to
the limitations on severance payments imposed by the American Jobs Creation Act
of 1986 and Section 409A of the Internal Revenue Code. If the agreement is
terminated for cause, Mr. Gathright would not be entitled to the severance
payments specified in the Agreement. Termination of the agreement on
account of Mr. Gathright’s death or disability is treated as a termination
without cause so the total severance payments would be $559,500 in either
event.
On May
24, 2010, the Compensation Committee determined that it was necessary and
appropriate to increase the salary of Michael Shore and L. Patricia Messenbaugh,
effective May 24, 2010. By letter agreement dated February 7, 2002,
the Company and Mr. Shore agreed to his employment as the Company’s Chief
Financial Officer, Senior Vice President and Treasurer. The letter agreement
also provides that the Company will give Mr. Shore six months notice prior to
terminating his employment without cause and that Mr. Shore will give a
corresponding six month notice to the Company prior to any resignation.
Effective May 24, 2010,
Mr. Shore’s base salary was increased from $210,000 per annum to
$238,000. The Company therefore estimates its liability for terminating
Mr. Shore’s employment at the end of fiscal 2010 would have been approximately
$129,500, comprised of $119,000 for six months salary, $6,000 in auto allowance,
$3,250 in employer health insurance contributions (based on an average of $550
per month over a 6 month period) and $1,250 in miscellaneous employee benefits
(based on a $2,500 annual estimate of such benefits).
Mr. Shore’s entitlement
to receive such payments and compensation would, however, require him to
continue to provide services as a full time employee for the six month period
unless the Company declines to accept those services
By letter
agreement dated April 6, 2007, the Company and Ms. Messenbaugh agreed to her
employment as the Company’s Vice President of Finance and Accounting.
Effective May 24, 2010, Mr. Messenbaugh’s base salary was increased from
$160,000 per annum to $183,000.
T
he
Company has no agreements with any of its named executive officers or with any
other person that would require the Company to make any payments or provide any
other consideration in the event of a transaction or other event resulting in a
change in control of the Company
.
Outstanding
Equity Awards at Fiscal Year-End
The
following table provides information with respect to outstanding stock options
held by the named executive officers as of the fiscal year ending June 30,
2010.
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR-END
|
|
Option
Awards
|
|
Stock
Awards
|
|
Name
|
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
|
|
Number
of Securities
Underlying
Unexercised
Options
(#)
|
|
|
Option
Exercise Price
($)
|
|
Option
Expiration
Date
|
|
Number
of Shares
or
Units of Stock
That
Have Not
Vested
(#)
|
|
|
Market
Value of
Shares
or Units of
Stock
That Have
Not
Vested
($)
|
|
|
Equity
Incentive
Plan Awards:
Number
of
Unearned
Shares,
Units
or Other
Rights
That Have
Not
Vested
(#)
|
|
|
Equity
Incentive
Plan
Awards:
Market
or Payout
Value
of
Unearned
Shares
,
Units
or Other
Rights
That Have
Not
Vested
($)
|
|
Richard
E. Gathright,
|
|
|
111,113
|
|
|
|
111,113
|
|
|
|
2.475
|
|
12/21/2010
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
Chairman
of the Board,
|
|
|
5,556
|
|
|
|
5,556
|
|
|
|
2.475
|
|
10/12/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CEO
and President
|
|
|
13,334
|
|
|
|
16,668
|
|
|
|
2.475
|
|
10/8/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael S.
Shore,
|
|
|
13,334
|
|
|
|
13,334
|
|
|
|
2.475
|
|
2/12/2012
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
CFO,
Senior V.P. and
|
|
|
5,556
|
|
|
|
5,556
|
|
|
|
2.475
|
|
10/12/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer
|
|
|
7,112
|
|
|
|
8,889
|
|
|
|
2.475
|
|
10/8/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
L.
Patricia Messenbaugh,
|
|
|
10,001
|
|
|
|
10,001
|
|
|
|
2.475
|
|
4/18/2017
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
Vice
President, Finance
|
|
|
1,334
|
|
|
|
2,223
|
|
|
|
2.475
|
|
10/8/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and
Accounting, Chief
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounting
Office and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal
Accounting
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retirement
Plans
The
Company does not provide any of its executive officers with pension benefits,
deferred compensation or other similar plans other than a tax qualified 401(k)
defined contribution plan in which an executive officer is able to participate
on the same terms as those generally offered to other employees, including any
plan qualification rules that could such limit or prohibit such participation by
highly compensated employees.
NON-EMPLOYEE
DIRECTOR COMPENSATION
The
following table discloses the cash, equity awards and other compensation earned,
paid or awarded, as the case may be, to each of the Company’s non-employee
Directors during the fiscal year ended June 30, 2010.
Name
|
|
Fees
Earned
or
Paid in
Cash
($)
|
|
|
Stock
Awards
($)
|
|
|
Option
Awards
($)
(1)
|
|
|
Non-Equity
Incentive
Plan
Compensation
($)
|
|
|
Change
in Pension
Value
and
Nonqualified
Deferred
Compensation
Earnings
|
|
|
All
Other
Compensation
($)
(2)
|
|
|
Total
($)
|
|
Wendell R.
Beard
|
|
|
24,000
|
(3)
|
|
|
0
|
|
|
|
929
|
|
|
|
0
|
|
|
|
0
|
|
|
|
132
|
|
|
|
25,061
|
|
Steven R.
Goldberg
|
|
|
24,000
|
(4)
|
|
|
0
|
|
|
|
929
|
|
|
|
0
|
|
|
|
0
|
|
|
|
119
|
|
|
|
25,048
|
|
Nat
Moore
|
|
|
24,000
|
(5)
|
|
|
0
|
|
|
|
929
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
24,929
|
|
Larry S.
Mulkey
|
|
|
8,000
|
|
|
|
0
|
|
|
|
929
|
|
|
|
0
|
|
|
|
0
|
|
|
|
220
|
|
|
|
9,149
|
|
C.
Rodney O’Connor
|
|
|
8,000
|
|
|
|
0
|
|
|
|
929
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
8,929
|
|
Robert S.
Picow
|
|
|
8,000
|
|
|
|
0
|
|
|
|
929
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
8,929
|
|
|
(1)
|
The
amounts in this column reflect the aggregate grant date fair value under
SFAS 123(R) of awards made during the fiscal year ended June 30,
2010. The assumptions we use in calculating these amounts are
discussed in Note 2 – Summary of Significant Accounting Policies on
Stock-Based Compensation to the Consolidated Financial Statements included
in the Company’s Form 10-K for the years ended June 30, 2010 and
2009. The aggregate number of outstanding option awards for
each director as of June 30, 2010, was as follows: Mr. Beard –
11,603 options; Mr. Goldberg – 9,379 options; Mr. Moore – 8,939 options;
Mr. Mulkey – 10,908 options; Mr. O’Connor – 11,603 options; and Mr. Picow
– 11,603 options.
|
|
(2)
|
This
column represents reimbursable out-of-pocket expenses incurred in
connection with activities as a
Director.
|
|
(3)
|
Includes
a $4,000 payment per quarter for management consultation and oversight
duties as liaison between management and the other non-employee
directors.
|
|
(4)
|
Includes
a $4,000 payment per quarter for duties as the Chairman of the Audit
Committee.
|
|
(5)
|
Includes
a $2,500 payment per quarter for duties as the Chairman of the
Compensation Committee and a $1,500 payment per quarter as Chairman of the
Nominating & Corporate Governance
Committee.
|
During
the fiscal year ended June 30, 2010, the Company compensated each non-employee
director with a director’s fee of $2,000 per quarter. Beginning with
fiscal year 2011, the Company will compensate each non-employee director with a
director’s fee of $5,000 per quarter. In addition, the
Company’s directors are reimbursed for any out-of-pocket expense incurred by
them for attendance at meetings of the Board of Directors or committees
thereof. The Chairman of the Audit Committee received an additional
fee of $4,000 per quarter and the Chairmen of the Compensation and Nominating
and Corporate Governance Committees received additional fees of $2,500 and
$1,500 per quarter, respectively.
As a
result of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010,
and additional new SEC requirements, the Board of Directors is facing
significant new duties and responsibilities in fiscal year 2011, which are
expected to increase further as the SEC implements additional parts of the
Dodd-Frank Act. In recognition of those increased responsibilities,
the Board divided the Nominating and Corporate Governance Committee into
separate Nominating and Corporate Governance Committees. See
“Corporate Governance – Meetings and Committees of the Board of
Directors.” Accordingly, beginning with fiscal year 2011, the
Compensation Committee increased the fees payable to non-employee directors
generally by $3,000 per quarter, and determined to provide the Chairman of the
Compensation Committee with an additional fee of $1,500 per quarter, the
Chairman of the Corporate Governance Committee with an additional fee of $1,000
per quarter, and the Chairman of the Nominating Committees with an additional
fee of $1,000 per quarter.
Each
non-employee who served as a member of the Company’s Board of Directors as of
May 10, 2001, the effective date of the 2001 Directors Stock Option Plan (the
“2001 Directors Plan received a fully vested option to purchase 4,445 shares of
stock at an exercise price equal to the Fair Market Value (as determined under
the 2001 Directors Plan) of a share of stock on the Grant Date. In
addition, on the last day of each fiscal quarter until and including December
31, 2009, each non-employee director received an additional grant of an option
to purchase 334 shares at an exercise price equal to the Fair Market Value (as
determined under the 2001 Directors Plan) of a share of stock on the Grant
Date. Prior to March 31, 2007, the grant was 162 shares (as adjusted
for the Company’s reverse stock split). Non-employee directors did
not receive any equity grants for the fiscal quarters ended March 31, 2010 and
June 30, 2010.
On
December 10, 2009, the Company’s stockholders approved the adoption of the
Company’s 2009 Equity Incentive Plan (the “Plan”). The Plan
authorizes the Compensation Committee (the “Committee”) to grant to eligible
participants, including officers, directors, employees and certain consultants
to the Company, (i) stock options (which may be non-qualified options or
incentive stock options for tax purposes), (ii) stock appreciation rights (which
may be issued in tandem with stock options), (iii) restricted stock awards, (iv)
performance units (which may be denominated in shares of the Company’s Common
Stock, cash or a combination thereof), and (v) supplemental cash payments
(collectively, “Awards”). Any of the Awards may be conditioned upon
the achievement of stated performance objectives, as selected by the Committee,
vesting after the completion of a stated period of service with the Company, or
both. Under the Plan, the Committee may also waive any conditions or
restrictions on Awards, in whole or in part, based on performance or such other
factors as it determines, in its sole discretion.
On
September 23, 2010, the Committee determined that it was reasonable and
appropriate to adopt an equity compensation program for the Company’s executive
officers under the Plan that would include the grant of shares of restricted
stock. On that date, the Committee resolved that it would make grants
of restricted stock under the Plan every fiscal year to such of the Company’s
officers as may be recommended by the Chief Executive Officer, subject to such
terms and conditions as the Committee determines to be reasonable and
appropriate under the circumstances in light of the performance of the
individual officers and the performance of the Company generally. The
Committee declared its intention that, unless otherwise determined by the
Committee at the time of grant, such Awards of restricted stock would vest at
the rate of 25% per year. The Committee may include conditions on
Awards of restricted stock that require the recipients to retain the stock for a
period of time in order to better align their interests with those of the
Company. In order to prevent the officers from being unfairly
burdened by the tax burden from vesting of the restricted stock, however, the
Committee determined that it would require the officers receiving Awards of
restricted stock to enter into a non-discretionary trading plan under Securities
Exchange Act Rule 10b5-1 that would require the sale at the time of vesting of
only the shares needed to cover that tax burden.
On
September 23, 2010, the Committee also determined to make an Award of restricted
stock under the Plan to Richard E. Gathright, the Company’s President, Chief
Executive Officer and Chairman of the Board. In light of the pending
expiration of Mr. Gathright’s stock options on December 21, 2010, the Committee
determined that it was reasonable and appropriate to grant 31,500 shares of
restricted stock to Mr. Gathright that would vest on that date. The
Committee also resolved to make an additional cash payment to Mr. Gathright
equal to 50% of the value of the shares on the date of vesting, based on the
Nasdaq Official Closing Price of the Common Stock on the date of vesting in
order to encourage Mr. Gathright to retain the stock award after vesting instead
of selling a portion to pay the taxes on the Award. The Committee
also declared its intent to make similar grants of restricted stock to Mr.
Gathright for future years in order to increase his stock ownership and
strengthen the alignment of his interests with those of the Company’s
stockholders.
Finally,
the Committee also determined that it was reasonable and appropriate to commence
a program of making stock grants under the Plan to the non-employee members of
the Board of Directors in lieu of the Company’s historical practice of quarterly
stock option grants to those directors. The Committee resolved that,
beginning with fiscal year 2011, in order to better align the interests of the
non-employee directors with those of the Company’s stockholders and to provide
additional non-cash compensation to the non-employee directors commensurate with
their increased duties and responsibilities, each non-employee director will
receive an automatic grant of 1,000 shares of restricted stock under the Plan on
the last day of each fiscal quarter of the Company. The Committee
determined that, in light of the limitations imposed by law and by the Company’s
insider trading policy on any sale of stock by the non-employee directors, it
was reasonable and appropriate to waive any restrictions on these quarterly
Awards upon delivery of the shares to non-employee directors, and to make an
additional cash payment equal to 50% of the value of the shares to such director
valued at the closing price of the Common Stock on Nasdaq on the date of
issuance in order to encourage the directors to hold on to the stock rather than
selling all or a portion thereof to pay taxes due therefor.
Securities
Authorized for Issuance under Equity Compensation Plans
EQUITY
COMPENSATION PLAN INFORMATION
AT JUNE 30,
2010
Plan
Category
|
|
Number
of securities to be issued upon exercise of
outstanding
options, warrants and rights
(a)
|
|
Weighted
average
exercise
price
of
outstanding
options,
warrants
and
rights
(b)
|
|
|
Number
of securities
remaining
available for
future
issuance under
equity
compensation
plans
(excluding
securities
reflected
in
column
(a))
(c)
|
|
Equity
compensation
|
|
2000
Employee Stock Option Plan – 330,752
|
|
$
|
2.463
|
|
|
|
-0-
|
|
plans
approved by
|
|
2001
Directors Stock Option Plan – 85,777
|
|
$
|
6.905
|
|
|
|
-0-
|
|
security
holders
|
|
2009
Equity Incentive Plan – 2,004
|
|
$
|
1.400
|
|
|
|
897,996
|
|
Equity
compensation
plans
not approved by
security
holders
|
|
Not
Applicable
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
Total
|
|
418,533
|
|
$
|
3.368
|
|
|
|
897,996
|
|
OTHER
MATTERS
As of the
date of this proxy statement, the Board of Directors does not intend to present
at the annual meeting any matters other than those described herein and does not
presently know of any matters that will be presented by other parties. If any
other matter requiring a vote of the stockholders should come before the
meeting, it is the intention of the persons named in the proxy to vote with
respect to any such matter in accordance with the recommendation of the Board of
Directors or, in the absence of such a recommendation, in accordance with the
best judgment of the proxy holder.
STOCKHOLDER
PROPOSALS
Stockholders
interested in having a proposal included in the Company’s proxy statement and
presented for consideration at our 2011 annual meeting of stockholders may do so
by following the procedures prescribed in Rule 14a-8 promulgated by the
Securities and Exchange Act of 1934, as amended, and our
Bylaws. Stockholder proposals must be submitted, in writing, to the
Corporate Secretary of the Company at 200 West Cypress Road, Suite 400, Fort
Lauderdale, Florida 33309. To be eligible for inclusion in our proxy
statement and form of proxy relating to the 2011 annual meeting, our Corporate
Secretary must receive stockholder proposals no later than September 6,
2011. If the date of the 2011 annual meeting is advanced by more than
30 days or delayed (other than as a result of adjournment) by more than 60 days
from the anniversary of the December 10, 2010 annual meeting, any such proposal
must be submitted no earlier than the 120th day prior to the 2011 annual meeting
and no later than the close of business on the later of the 90th day prior to
the 2011 annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. You can
obtain a copy of the Company’s Bylaws by writing to the Corporate Secretary at
the address stated above.
We
reserve the right to reject, rule out of order, or take other appropriate action
with respect to any proposal that does not comply with these and other
applicable requirements.
By
Order of the Board of Directors
|
|
LOUISE
P. LUNGARO
|
Secretary
|
Ft.
Lauderdale, Florida
October
22, 2010
ANNUAL
MEETING OF STOCKHOLDERS OF
SMF
ENERGY CORPORATION
December
10, 2010
PROXY
VOTING INSTRUCTIONS
|
INTERNET
– Access “
www.voteproxy.com
”
and follow the
on-screen instructions. Have your proxy card available when you
access the web page, and use the Company Number and Account Number shown
on your proxy card.
|
|
COMPANY
NUMBER ____________
|
|
|
|
TELEPHONE
– Call toll-free
1-800PROXIES
(1-800-776-9437) in the United States or
1-718-921-8500
from
foreign countries from any touch-tone telephone and follow the
instructions. Have your proxy card available when you call and
use the Company Number and Account Number show on your proxy
card.
|
|
ACCOUNT
NUMBER ____________
|
|
|
|
Vote
online/phone until 11:59 PM EST the day before the
meeting.
|
|
|
|
|
|
MAIL
– Sign, date and mail your proxy card in the envelope provided as soon as
possible.
|
|
|
|
|
|
IN
PERSON
– You may vote your shares in person by attending the Annual
Meeting.
|
|
|
Important Notice Regarding the Availability of
Proxy Materials for the
Annual Meeting of Stockholders to be Held on
December 10, 2010.
The
Company’s Notice and Proxy Statement are available at
http://www.mobilefueling.com/proxystatements.htm
.
The
Company’s Annual Report to Stockholders for the year ended June 30,
2010
is
available at
http://www.mobilefueling.com/annualreports.htm.
|
â
Please
detach along perforated line and mail in the envelope provided
IF
you are not voting via telephone or the Internet
â
-------------------------------------------------------------------------------------------------------------------------------------------------------
THE BOARD OF
DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR” PROPOSALS 1, 2 and
3. PLEASE
SIGN,
DATE AND RETURN
PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR
BLACK INK
AS
SHOWN HERE
x
|
1.
ELECTION
OF DIRECTORS:
NOMINEES:
О
WENDELL R. BEARD
О
RICHARD E. GATHRIGHT
О
STEVEN R. GOLDBERG
О
NAT MOORE
О
LARRY S. MULKEY
О C.
RODNEY O’CONNOR
О
ROBERT S. PICOW
£
FOR ALL NOMINEES
£
WITHHOLD AUTHORITY
FOR
ALL NOMINEES
¨
FOR ALL EXCEPT
(See
instructions below)
INSTRUCTION: To withhold authority to vote for any
individual nominee(s), mark “FOR ALL EXCEPT” and fill in the circle next
to each nominee you wish to withhold, as shown here.
l
|
|
2.
TO
RATIFY OF THE APPOINTMENT OF GRANT THORNTON LLP AS SMF ENERGY
CORPORATION’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE
CURRENT FISCAL YEAR.
¨
FOR
¨
AGAINST
¨
ABSTAIN
3
.
IN THEIR
DISCRETION, UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE
ANNUAL MEETING OR ANY ADJOURNMENT OR POSTPONEMENT
THEREOF.
¨
FOR
¨
AGAINST
¨
ABSTAIN
PLEASE
MARK, SIGN AND DATE THIS PROXY CARD AND PROMPTLY RETURN IT IN THE ENVELOPE
PROVIDED. NO POSTAGE NECESSARY IF MAILED WITHIN THE UNITED
STATES.
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To
change the address on your account, please check the box and indicate your
new address in the address space to the right. Please note that
changes to the registered name(s) on the account may not be submitted via
this method.
£
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NEW
ADDRESS:
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Signature
of Stockholder:___________________Date:__________Signature of
Stockholder:__________________Date: __________
NOTE:
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Please
sign exactly as your name or names appear on this Proxy. When
shares are held jointly, each holder should sign. When signing
as executor, administrator, attorney, trustee or guardian, please give
full title as such. If the signer is a corporation, please sign
full corporate name by duly authorized officer, giving full title as
such. If signer is a partnership, please sign in partnership
name by authorized person.
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SMF
ENERGY CORPORATION
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF
SMF ENERGY CORPORATION
The undersigned hereby appoints Richard
E. Gathright and Michael S. Shore, and each of them as proxies, each with full
power of substitution and authorizes them to represent and to vote as designated
on the reverse side of this form, all the shares of Common Stock of SMF Energy
Corporation held of record by the undersigned on October 15, 2010, at the Annual
Meeting of Stockholders to be held on December 10, 2010 at 9:30 a.m. local time
at the Sheraton Suites Cypress Creek located at 555 NW 62nd Street, Fort
Lauderdale, Florida, or any adjournment or postponement of such
meeting. You may obtain directions to the meeting by contacting us at
(954) 308-4175.
THIS
PROXY WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE
UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR
THE PROPOSALS LISTED HEREIN.
(Continued
and to be signed on the reverse side)
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