UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): July 6,
2009
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SMF
ENERGY CORPORATION
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(Exact name of
registrant as specified in its
charter)
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DELAWARE
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000-21825
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65-0707824
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
Number)
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200
W. Cypress Creek Rd., Suite 400
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Fort
Lauderdale, Florida
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33309
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (954)
308-4200
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425) |
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
3.02. Unregistered Sales of
Equity Securities
In a Form
8-K filed July 6, 2009, SMF Energy Corporation (the “Company”) announced that on
June 29, 2009, it had completed a $40 million recapitalization program (the
“Recapitalization”) that restructured all of its debt and equity securities by,
among other steps, entering into a series of agreements (the
“Original Exchange Agreements”) with holders of its Series A, B and C Preferred
Stock (the “Existing Preferred Stock”), and its August 2007 Secured Convertible
Promissory Notes (the “Secured Notes”) by which it extinguished all of the
Secured Notes and Preferred Stock with a combination of cash from a new term
loan and the issuance of Common Stock as well as new, lower yield,
securities.
After the
June 29, 2009, closing of the Recapitalization, the Company was informed by two
previous holders (the “Holders”) of the Secured Notes that, notwithstanding the
terms of their Original Exchange Agreements, they had intended to exchange more
of their Secured Notes for shares of Common Stock than was reflected in their
Original Exchange Agreements. Accordingly, in response to a request
from the Holders, on July 6, 2009, the Company entered into two additional
Exchange Agreements (the “New Exchange Agreements”) with the Holders in order to
rectify the discrepancy between the Holders’ intent and the Original Exchange
Agreements. By the New Exchange Agreements, the Holders exchanged
shares of the new Series D Convertible Preferred Stock (the “Series D
Preferred”) that they had received in the Recapitalization for an aggregate of
867,056 shares of the Company’s common stock.
The New
Exchange Agreements provided the Holders with the terms originally offered to
them in the Recapitalization, including the $0.38 price per share of Common
Stock, rather than the $0.40 conversion price that would have been available to
them upon a conversion of the Series D Preferred that they received in the
Recapitalization. The $0.38 price used in the New Exchange Agreements
was not less than the closing bid price for the Common Stock on the Nasdaq
Capital Market on the last trading day preceding the July 6, 2009 New Exchange
Agreements.
Pursuant
to the New Exchange Agreements, the Company exchanged a total of 824 shares of
Series D Preferred for 867,056 shares of Common Stock based on an aggregate
value of $329,481.
The offer
and sale of the common stock was exempt from registration under the Securities
Act of 1933, as amended (the “Act”), as a private offering made exclusively to
“accredited investors” under Sections 4(2) and 4(6) of the Act and Regulation D
promulgated thereunder.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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Date:
July 9, 2009
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SMF
ENERGY CORPORATION |
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By:
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/s/
Richard E.
Gathright
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Richard
E. Gathright, Chief Executive Officer
and
President
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