As
filed
with the Securities and Exchange Commission on June 6, 2007
Registration
No. 333-79801
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Post-Effective
Amendment No. 1 to
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SMF
ENERGY CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
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65-0707824
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida
Telephone:
(954) 308-4200
(Address
of principal executive offices)
SMF
ENERGY CORPORATION STOCK OPTION PLAN
(Full
title of plan)
Richard
E. Gathright
Chief
Executive Officer and President
SMF
Energy Corporation
200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida
Telephone:
(954) 308-4200
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
With
copies to:
S.
Lee Terry, Jr.
Davis
Graham & Stubbs LLP
1550
Seventeenth Street, Suite 500
Denver,
Colorado 80202
(303) 892-9400
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 1 relates to Registration Statement No. 333-79801on
Form S-8, filed with the Securities and Exchange Commission (the “SEC”) on June
2, 1999 (the “Original Registration Statement”). This Post-Effective Amendment
is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended
(the “Securities Act”), to notify the SEC that SMF Energy Corporation, a
Delaware corporation (“SMF”), is the successor to Streicher Mobile Fueling,
Inc., a Florida corporation (“Streicher’), and to amend the Original
Registration Statement accordingly.
SMF
is
the successor to Streicher as a result of the reincorporation merger of
Streicher with and into SMF, a wholly-owned subsidiary of Streicher, consummated
pursuant to an Agreement of Merger and Plan of Merger and Reorganization (the
“Merger Agreement”). The Merger Agreement was approved by the shareholders of
Streicher at the annual meeting of shareholders held on December 8, 2006 and
at
the reconvened meeting held on December 22, 2006. The merger was effective
on
February 14, 2007. Immediately prior to the merger, SMF had no assets or
liabilities other than nominal assets and liabilities.
Pursuant
to Rule 414(d) under the Securities Act, SMF, as successor to Streicher, hereby
adopts the Original Registration Statement on Form S-8 with respect to the
SMF
Energy Corporation Stock Option Plan (Registration Statement No. 333-79801),
as
its own registration statement for all purposes of the Securities Act and the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
As
used
in this Post-Effective Amendment No. 1, the term “Registrant” refers to each of
Streicher Mobile Fueling, Inc. and its successor by merger, SMF Energy
Corporation, as the context may require.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
following documents, previously filed by the Registrant with the SEC, are hereby
incorporated in this registration statement by reference as of their date of
filing with the SEC:
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(a)
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the
Registrant’s Annual Report on Form 10-K for the year ended June 30,
2006;
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(b)
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the
Registrant’s Quarterly Reports on Form 10-Q for the quarters ended
September 30, 2006, December 31, 2006 and March 31,
2007;
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(c)
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the
Registrant’s Current Reports on Form 8-K filed with the SEC on July 7,
2006 (other than information in the Current Report that is furnished,
but
not filed); October 2, 2006; October 3, 2006; October 16, 2006 (other
than
information in the Current Report that is furnished, but not filed);
October 18, 2006; December 4, 2006; December 22, 2006; January 19,
2007;
February 14, 2007; February 21, 2007; February 22, 2007 and April
3, 2007;
and
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(d)
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the
Registrant’s description of its common stock contained in Amendment No. 2
to its Registration Statement on Form 8-A/A (SEC File No. 000-21825)
filed
with the SEC on June 5, 2007.
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All
documents filed by the Registrant 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 which indicates that all
securities offered have been sold or that deregisters all such securities then
remaining unsold, shall be deemed to be incorporated by reference herein and
shall be a part hereof from the date of 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.
The
Registrant has agreed to indemnify and hold KPMG LLP (“KPMG”) harmless against
and from any and all legal costs and expenses incurred by KPMG in successful
defense of any legal action or proceeding that arises as a result of KPMG’s
consent to the incorporation by reference of its audit report on the
Registrant’s past financial statements incorporated by reference in this
registration statement.
Item
6. Indemnification
of Directors and Officers.
SMF
Energy Corporation is incorporated in the State of Delaware. Section 145(a)
of
the General Corporation Law of the State of Delaware (the “DGCL”) provides that
a Delaware corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or enterprise, against expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best
interests of the corporation, and, with respect to any criminal action or
proceeding, he had no cause to believe his conduct was unlawful.
Section
145(b) of the DGCL provides that a Delaware corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted
in
any of the capacities set forth above, against expenses actually and reasonably
incurred by him in connection with the defense or settlement of such action
or
suit if he acted under similar standards, except that no indemnification may
be
made in respect of any claim, issue or matter as to which such person shall
have
been adjudged to be liable to the corporation unless and only to the extent
that
the court in which such action or suit was brought shall determine that despite
the adjudication of liability, such person is fairly and reasonably entitled
to
be indemnified for such expenses which the court shall deem proper.
Section
145 of the DGCL further provides that to the extent a director or officer of
a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue,
or
matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of
any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director,
officer, employee or agent of the corporation against any liability asserted
against him or incurred by him in any such capacity or arising out of his status
as such whether or not the corporation would have the power to indemnify him
against such liabilities under such Section 145.
Section
102(b)(7) of the DGCL provides that a corporation in its original certificate
of
incorporation or an amendment thereto validly approved by stockholders may
eliminate or limit personal liability of members of its board of directors
or
governing body for breach of a director’s fiduciary duty. However, no such
provision may eliminate or limit the liability of a director for breaching
his
duty of loyalty, failing to act in good faith, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty. SMF’s
Certificate of Incorporation contains such a provision.
The
Certificate of Incorporation of SMF generally allows indemnification of officers
and directors to the fullest extent allowed by law. SMF currently intends to
indemnify its officers and directors to the fullest extent permitted by its
Certificate of Incorporation and Delaware Law.
SMF
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 SMF.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits
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Exhibit
No.
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Description
of Exhibit
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2.1
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Agreement
of Merger and Plan of Merger and Reorganization between Streicher
Mobile
Fueling, Inc. and SMF Energy Corporation, dated February 13, 2007
(incorporated by reference to Exhibit 2.1 to the Registrant’s Current
Report on Form 8-K filed on February 14, 2007)
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3(i)
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Incorporating
Documents of SMF Energy Corporation, including: Certificate of
Incorporation dated October 6, 2006 (incorporated by reference to
Appendix
B to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on
October 30, 2006); Certificate of Amendment dated February 12, 2007
(incorporated by reference to Exhibit 3(i) to the Registrant’s Current
Report on Form 8-K filed on February 14, 2007)
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3(ii)
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Bylaws
of SMF Energy Corporation (incorporated by reference to Appendix
D to the
Registrant’s Definitive Proxy Statement on Schedule 14A, filed on October
30, 2006)
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4.1
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Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.1
to the
Registrant’s Amendment No. 2 to Registration Statement on Form 8-A/A (SEC
File No. 000-21825) filed on June 5, 2007)
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4.2
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SMF
Energy Corporation Stock Option Plan
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5.1
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Opinion
of Davis Graham & Stubbs LLP
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23.1
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Consent
of Davis Graham & Stubbs LLP (included in its opinion filed as Exhibit
5.1)
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23.2
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Consent
of Grant Thornton LLP
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23.3
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Consent
of KPMG LLP
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24.1
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Power
of Attorney (included on the signature page
hereto)
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Item
9. Undertakings.
(a) The
undersigned Registrant hereby 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
of 1933 (“Securities Act”);
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; 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) do not apply if the information required
to
be included in a post-effective amendment by those paragraphs is contained
in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 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 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act 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 Post-Effective Amendment No. 1
to
Registration Statement No. 333-79801
to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City
of Fort Lauderdale, State of Florida, on June 6, 2007.
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SMF
ENERGY CORPORATION
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By: |
/s/
Richard E. Gathright |
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Name:
Richard E. Gathright
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Title:
Chief Executive Officer and
President
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS,
that
each person whose signature appears below hereby constitutes and appoints
Richard E. Gathright and Michael S. Shore, and each of them, as his true and
lawful attorneys-in-fact and agents, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this registration statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all
that said attorneys-in-fact and agents, or any of them, or their or his
substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective Amendment
No. 1 to Registration Statement No. 333-79801 has been signed by the following
persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/
Richard E. Gathright
Richard
E. Gathright
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Chief
Executive Officer and President, and Chairman of the Board (Principal
Executive Officer)
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June
6, 2007
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/s/
Michael S. Shore
Michael
S. Shore
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Chief
Financial Officer and Senior Vice President (Principal Financial
and
Accounting Officer)
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June
6, 2007
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/s/
Wendell R. Beard
Wendell
R. Beard
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Director
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June
6, 2007
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/s/
Larry S. Mulkey
Larry
S. Mulkey
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Director
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June
6, 2007
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/c/
Rodney O’Connor
C.
Rodney O’Connor
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Director
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June
6, 2007
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/s/
Robert S. Picow
Robert
S. Picow
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Director
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June
6, 2007
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/s/
Steven R. Goldberg
Steven
R. Goldberg
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Director
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June
6, 2007
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/s/
Nat Moore
Nat
Moore
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Director
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June
6, 2007
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EXHIBIT
INDEX
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Exhibit
No.
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Description
of Exhibit
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4.2
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SMF
Energy Corporation Stock Option Plan
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5.1
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Opinion
of Davis Graham & Stubbs LLP
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23.2
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Consent
of Grant Thornton LLP
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23.3
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Consent
of KPMG LLP
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