As filed with the Securities and Exchange Commission on November
15, 2010
Registration No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SMF
ENERGY CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
|
65-0707824
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
Number)
|
200
West Cypress Creek Road, Suite 400, Fort Lauderdale, Florida 33309
(Address
of principal executive offices)
SMF
ENERGY CORPORATION 2009 EQUITY INCENTIVE PLAN
(Full
title of the plan)
Richard
E. Gathright
Chief
Executive Officer and President
SMF
Energy Corporation
200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida 33309
Telephone:
954-308-4200
(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
|
With
copies to:
|
S.
Lee Terry, Jr.
Davis
Graham & Stubbs LLP
1550
Seventeenth Street, Suite 500
Denver,
Colorado 80202
Telephone:
303-892-9400
|
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer,” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
Large
accelerated filer
o
|
|
|
|
Non-accelerated
filer
o
(Do
not check if a smaller reporting company)
|
|
Smaller
reporting company
þ
|
|
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Registered
|
Amount
to be
Registered(1)
|
Proposed
Maximum
Offering
Price
Per
Share(2)
|
Proposed
Maximum
Aggregate
Offering
Price(2)
|
Amount
of Registration Fee
|
|
|
|
|
|
Common
Stock, par value $0.01 per share
|
900,000
|
$ 1.42
|
$ 1,278,000
|
$ 91.12
|
|
|
|
|
|
(1)
|
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement shall also cover any
additional shares of common stock of the Company (“Common Stock”) to be
offered or issued as a result of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of
consideration that increases the number of outstanding shares of Common
Stock.
|
(2)
|
Estimated
solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act. The
proposed maximum offering price per share and the proposed maximum
aggregate offering price are calculated using the average of the high and
low prices of the Common Stock on the Nasdaq Capital Market within five
business days prior to filing this Registration Statement on November 8,
2010.
|
PART
I
As permitted by the rules of the
Securities and Exchange Commission (the “Commission”), this Registration
Statement omits the information specified in Part I of Form S-8. The
documents containing the information specified in Part I will be sent or
given to the participants in the plan as required by Rule 428(b)(1) under
the Securities Act. Such documents are not being filed with the
Commission as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3, Part II hereof, taken together, constitute a prospectus for
the plan that meets the requirements of Section 10(a) of the Securities
Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION
OF DOCUMENTS BY REFERENCE
The
following documents, previously filed by SMF Energy Corporation (“SMF” or the
“Company”) with the Commission, are hereby incorporated in this registration
statement by reference as of their date of filing with the
Commission:
(a) The
Company’s Annual Report on Form 10-K for the year ended June 30, 2010, filed
with the Commission on September 28, 2010 (the “Annual Report”);
(b) The
Company’s Quarterly Report on Form 10-Q for the quarter ended September 30,
2010;
(c) All
other reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end
of the fiscal year covered in the Annual Report; and
(d) The
description of the Company’s common stock contained in the Company’s
registration statement on Form 8-A/A filed under the Exchange Act with the
Commission on June 5, 2007, as the same may be amended from time to
time.
All other
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this registration statement and prior
to the filing of a post-effective amendment to this registration statement
indicating that all securities offered under the registration statement have
been sold, or deregistering all securities then remaining unsold, are also
incorporated herein by reference and shall be a part hereof from the date of the
filing of such documents.
Any
statement contained in a document incorporated by, or deemed incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM
4. DESCRIPTION
OF SECURITIES
Not
applicable.
ITEM
5. INTERESTS
OF NAMED EXPERTS AND COUNSEL
Not
applicable.
ITEM
6. INDEMNIFICATION
OF DIRECTORS AND OFFICERS
SMF is
incorporated in the State of Delaware. Section 145(a) of the General
Corporation Law of the State of Delaware (the “DGCL”) provides that a Delaware
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise, against expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, he had
no cause to believe his conduct was unlawful.
Section
145(b) of the DGCL provides that a Delaware corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted under similar standards, except that no indemnification may be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine that despite
the adjudication of liability, such person is fairly and reasonably entitled to
be indemnified for such expenses which the court shall deem
proper.
Section
145 of the DGCL further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director,
officer, employee or agent of the corporation against any liability asserted
against him or incurred by him in any such capacity or arising out of his status
as such whether or not the corporation would have the power to indemnify him
against such liabilities under such Section 145.
Section
102(b)(7) of the DGCL provides that a corporation in its original certificate of
incorporation or an amendment thereto validly approved by stockholders may
eliminate or limit personal liability of members of its board of directors or
governing body for breach of a director’s fiduciary duty. However, no such
provision may eliminate or limit the liability of a director for breaching his
duty of loyalty, failing to act in good faith, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty. The
Company’s Certificate of Incorporation contains such a
provision.
The
Certificate of Incorporation of the Company generally allows indemnification of
officers and directors to the fullest extent allowed by law. The Company
currently intends to indemnify its officers and directors to the fullest extent
permitted by its Certificate of Incorporation and Delaware
Law.
The
Company maintains insurance policies under which its directors and officers are
insured, within the limits and subject to the limitations of the policies,
against expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities that might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been a director or officer of the Company.
ITEM
7. EXEMPTION
FROM REGISTRATION CLAIMED
Not
applicable.
Item
8. Exhibits
Exhibits
|
|
Description
|
|
|
|
4.1
|
|
Form
of Common Stock Certificate filed as Exhibit 4.1 to the Company’s
Registration Statement on Form SB-2 (No. 333-11541) and incorporated by
reference herein.
|
|
|
|
4.22
|
|
Form
of Convertible Promissory Notes. Filed as Exhibit 4.1 to the
Company’s Form 8-K filed on July 6, 2009 and incorporated by reference
herein.
|
|
|
|
4.23
|
|
SMF
Energy Corporation 2009 Equity Incentive Plan. Filed as Annex A
to the Company’s Proxy Statement on Schedule 14A filed on Ocotber 24,
2009, as amended by Appendix A to the Company’s Proxy Statement on
Schedule 14A filed on November 24, 2009, and incorporated by reference
herein.
|
|
|
|
5.1
|
|
Opinion
of Davis Graham & Stubbs LLP as to the legality of the securities
being issued.
|
|
|
|
23.1
|
|
Consent
of Davis Graham & Stubbs LLP (included in Exhibit
5.1).
|
|
|
|
23.2
|
|
Consent
of Grant Thornton LLP
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page of this Registration
Statement).
|
ITEM
9. UNDERTAKINGS
(a) The
undersigned registrant undertakes:
(1)
To file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement.
Provided, however
, that
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the Exchange Act that
are incorporated by reference in this registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered that remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S–8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Ft.
Lauderdale, State of Florida, on this 15th day of November, 2010.
|
SMF
ENERGY CORPORATION
By:
/s/ Richard E
Gathright
Name:
Richard E. Gathright
Title:
Chief Executive Officer and
President
|
POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Richard E.
Gathright, his true and lawful agent, proxy and attorney−in−fact, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to (i) act on, sign and file with the
Securities and Exchange Commission any and all amendments (including
post−effective amendments) to this registration statement together with all
schedules and exhibits thereto and any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, together with all
schedules and exhibits thereto, (ii) act on, sign and file such certificates,
instruments, agreements and other documents as may be necessary or appropriate
in connection therewith, (iii) act on and file any supplement to any prospectus
included in this registration statement or any such amendment or any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933 and (iv) take any and all actions which may be necessary or appropriate to
be done, as fully for all intents and purposes as he might or could do in
person, hereby approving, ratifying and confirming all that such agent, proxy
and attorney−in−fact or any of his substitutes may lawfully do or cause to be
done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
Signature
|
Title
|
Date
|
|
|
|
By:
/s/ Richard E.
Gathright
Richard
E. Gathright
|
Chairman
of the Board, Chief Executive Officer and President (Principal Executive
Officer)
|
November
15, 2010
|
|
|
|
By:
/s/ Michael S.
Shore
Michael S. Shore
|
Chief
Financial Officer, Treasurer and Senior Vice President (Principal
Financial Officer)
|
November
15, 2010
|
|
|
|
By:
/s/ Laura
Patricia Messenbaugh
Laura
Patricia Messenbaugh
|
Chief
Accounting Officer and Vice
President
(Principal Accounting Officer)
|
November
15, 2010
|
|
|
|
By:
/s/ Wendell R.
Beard
Wendell
R. Beard
|
Director
|
November
15, 2010
|
|
|
|
By:
/s/ Steven R.
Goldberg
Steven R. Goldberg
|
Director
|
November
15, 2010
|
|
|
|
By:
/s/ Nat
Moore
Nat
Moore
|
Director
|
November
15, 2010
|
|
|
|
By:
/s/ Larry S.
Mulkey
Larry
S. Mulkey
|
Director
|
November
15, 2010
|
|
|
|
By:
/s/ C. Rodney
O’Connor
C.
Rodney O’Connor
|
Director
|
November
15, 2010
|
|
|
|
By:
/s/ Robert S.
Picow
Robert
S. Picow
|
Director
|
November
15,
2010
|
EXHIBIT
INDEX
The
following is a list of all exhibits filed as part of this Registration Statement
or, as noted, incorporated by reference into this Registration
Statement.
Exhibits
|
|
Description
|
|
|
|
4.1
|
|
Form
of Common Stock Certificate filed as Exhibit 4.1 to the Company’s
Registration Statement on Form SB-2 (No. 333-11541) and incorporated by
reference herein.
|
|
|
|
4.23
|
|
SMF
Energy Corporation 2009 Equity Incentive Plan. Filed as Annex A
to the Company’s Proxy Statement on Schedule 14A filed on Ocotber 24,
2009, as amended by Appendix A to the Company’s Proxy Statement on
Schedule 14A filed on November 24, 2009, and incorporated by reference
herein.
|
|
|
|
5.1
|
|
Opinion
of Davis Graham & Stubbs LLP as to the legality of the securities
being issued.
|
|
|
|
23.1
|
|
Consent
of Davis Graham & Stubbs LLP (included in Exhibit
5.1).
|
|
|
|
23.2
|
|
Consent
of Grant Thornton LLP
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page of this Registration
Statement).
|
ROCKET FUEL INC. (NASDAQ:FUEL)
Historical Stock Chart
From May 2024 to Jun 2024
ROCKET FUEL INC. (NASDAQ:FUEL)
Historical Stock Chart
From Jun 2023 to Jun 2024