SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE
SECURITIES EXCHANGE ACT OF 1934
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|_| Definitive Proxy Statement by Rule 14a-6(e)(2))
|_| Definitive Additional Materials
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Rule 14a-11(c) or Rule 14a-12
STREICHER MOBILE FUELING, INC.
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(Name of Registrant as Specified in Its Charter)
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STREICHER MOBILE FUELING, INC.
800 WEST CYPRESS CREEK ROAD, SUITE 580
FORT LAUDERDALE, FLORIDA 33309
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON JUNE 27, 2003
To the Shareholders of
Streicher Mobile Fueling, Inc.
NOTICE IS HEREBY GIVEN that a Special Meeting of Shareholders of Streicher
Mobile Fueling, Inc. (the "Company") will be held at the Westin Fort Lauderdale,
400 Corporate Drive, Fort Lauderdale, Florida, on June 27, 2003, beginning at
9:00 a.m. local time. At the meeting, shareholders will act on the following
matters:
o To approve an amendment to the Company's Articles of Incorporation
to increase the number of authorized shares of Common Stock from
20,000,000 to 50,000,000 shares;
o To approve the issuance by the Company of up to 5,000,000 shares of
Common Stock in one or more private placements of Common Stock,
Common Stock purchase warrants or debt instruments convertible into
Common Stock (the "Securities") at any time during the eighteen (18)
months following approval of the proposal, even if such issuance (i)
is done at a negotiated price that may be deemed to be below "market
value" (as defined by Nasdaq Stock Market Rules), and (ii) includes
purchases of some or all of the Securities at such negotiated price
to officers or directors of the Company or their affiliates, so long
as the price and other terms of the transaction are approved by
the Audit Committee or another committee of independent,
non-purchasing members of the Company's Board of Directors or, if
no such committee is available, is subsequently ratified by a
vote of the pre-transaction shareholders not less than six (6)
months following the closing of the transaction;
o To approve the issuance by the Company of up to 30,000,000 shares of
Common Stock in connection with the acquisition by the Company of
one or more businesses or the assets thereof at any time during the
eighteen (18) months following approval of the proposal, even if
such issuance is done at a negotiated price that may be deemed to be
below "market value" (as defined by Nasdaq Stock Market Rules), so
long as the price and other terms of any such acquisition are
approved by the Audit Committee or another committee of independent,
non-purchasing members of the Company's Board of Directors; and
o Any other matters that may properly come before the meeting.
Only shareholders of record at the close of business on May 20, 2003 are
entitled to receive notice of and to vote at the Special Meeting or any
postponement or adjournment thereof.
Your vote is important. Whether you plan to attend the meeting or not, you
may vote your shares by marking, signing, dating and mailing the enclosed proxy
card in the envelope provided. If you attend the meeting and prefer to vote in
person, you may do so even if you have already voted your shares. You may revoke
your proxy in the manner described in the proxy statement at any time before it
has been voted at the meeting.
By Order of the Board of Directors
RICHARD E. GATHRIGHT
Chief Executive Officer, President and
Chairman of the Board
May 27, 2003
Fort Lauderdale, Florida
STREICHER MOBILE FUELING, INC.
800 WEST CYPRESS CREEK ROAD, SUITE 580
FORT LAUDERDALE, FLORIDA 33309
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PROXY STATEMENT
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This proxy statement contains information relating to a Special Meeting of
Shareholders to be held on June 27, 2003 at 9:00 a.m. local time, at the Westin
Fort Lauderdale, 400 Corporate Drive, Fort Lauderdale, Florida, or at such other
time and place to which the Special Meeting may be adjourned or postponed. The
enclosed proxy is solicited by the Board of Directors of Streicher Mobile
Fueling, Inc. (the "Company"). The proxy materials relating to the Special
Meeting are being mailed to shareholders entitled to vote on May 27, 2003.
ABOUT THE MEETING
WHY ARE WE CALLING THIS SPECIAL MEETING?
We are calling the Special Meeting to seek the approval of our
shareholders to:
o Approve an amendment to the Company's Articles of Incorporation to
increase the number of authorized shares of Common Stock from
20,000,000 to 50,000,000 shares;
o Approve the issuance by the Company of up to 5,000,000 shares of
Common Stock in one or more private placements of Common Stock,
Common Stock purchase warrants or debt instruments convertible into
Common Stock (the "Securities") at any time during the eighteen (18)
months following approval of the proposal, even if such issuance (i)
is done at a negotiated price that may be deemed to be below "market
value" (as defined by Nasdaq Stock Market Rules), and (ii) includes
purchases of some or all of the Securities at such negotiated price
to officers or directors of the Company or their affiliates, so long
as the price and other terms of the transaction are approved by a
committee of independent, non-purchasing members of the Company's
Board of Directors or, if no such committee is available, is
subsequently ratified by a vote of the pre-transaction shareholders
not less than six (6) months following the closing of the
transaction;
o To approve the issuance by the Company of up to 30,000,000 shares of
Common Stock in connection with the acquisition by the Company of
one or more businesses or the assets thereof at any time during the
eighteen (18) months following approval of the proposal, even if
such issuance is done at a negotiated price that may be deemed to be
below "market value" (as defined by Nasdaq Stock Market Rules), so
long as the price and other terms of any such acquisition are
approved by a committee of independent members of the Company's
Board of Directors; and
o Any other matters that may properly come before the meeting.
WHAT ARE THE BOARD'S RECOMMENDATIONS?
Our Board believes that shareholder approval of (a) the amendment to the
Company's Articles of Incorporation, (b) one or more private placements of
Common Stock or Common Stock equivalents at a negotiated price which may be
below Nasdaq "market value", and (c) the issuance of such securities below
Nasdaq "market value" for acquisitions of business or assets, are advisable and
in the best interests of the Company and its shareholders and recommends that
you vote FOR all three proposals.
The potential issuance of shares of Common Stock for which we are seeking
advance approval are ordinarily, under applicable state law, within the
discretion of the Board of Directors. We are only seeking this approval because
of special shareholder approval requirements imposed by the Nasdaq Stock Market
for issuances of shares at a price less than Nasdaq's definition of "market
value." We believe that we need the ability to issue shares at a negotiated
price in an arm's length transaction.
WHO IS ENTITLED TO VOTE AT THE MEETING?
Only shareholders of record at the close of business on the record date,
May 20, 2003, are entitled to receive notice of the Special Meeting and to vote
the shares of Common Stock that they held on that date at the meeting, or any
postponement or adjournment of the meeting. Holders of our Common Stock are
entitled to one vote per share on each matter to be voted upon.
As of the record date, we had 7,234,168 outstanding shares of Common
Stock.
WHO CAN ATTEND THE MEETING?
All shareholders as of the record date, or their duly appointed proxies,
may attend the Special Meeting. Please note that if you hold your shares in
"street name" (that is, through a broker or other nominee), you will need to
bring a copy of your proxy card delivered to you by your broker or a brokerage
statement reflecting your stock ownership as of the record date and check in at
the registration desk at the meeting.
WHAT CONSTITUTES A QUORUM?
The presence at the Special Meeting, in person or by proxy, of the holders
of a majority of our Common Stock outstanding on the record date will constitute
a quorum for our meeting. Signed proxies received but not voted and broker
non-votes will be included in the calculation of the number of shares considered
to be present at the meeting.
HOW DO I VOTE?
You can vote on matters that come before the Special Meeting by
completing, dating and signing the enclosed proxy card and returning it in the
enclosed postage-paid envelope.
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Your shares will be voted as you indicate on your proxy card. If you vote
the enclosed proxy but you do not indicate your voting preferences, and with
respect to any other matter that properly comes before the meeting, the
individuals named on the proxy card will vote your shares FOR the matters
submitted at the meeting, or if no recommendation is given, in their own
discretion.
If you attend the Special Meeting and prefer to vote in person, you may do
so even if you have already voted your shares by proxy.
WHAT IF I VOTE AND THEN CHANGE MY MIND?
You may revoke your proxy at any time before it is exercised by:
o filing with the Secretary of the Company a notice of revocation;
o sending in another duly executed proxy bearing a later date; or
o attending the meeting and casting your vote in person.
Your latest vote will be the vote that is counted.
WHAT VOTE IS REQUIRED TO APPROVE THE ITEMS OF BUSINESS?
1. Approval of the proposed amendment to the Articles of Incorporation to
increase the number of authorized shares of Common Stock to 50,000,000 shares
requires the affirmative vote of a majority of our outstanding Common Stock
represented in person or by proxy at the meeting.
2. Approval of the issuance of up to 5,000,000 additional shares of Common
Stock at a negotiated price, which may be less than Nasdaq's definition of
market value, in one or more private placements of stock, warrants or
convertible debt for cash requires the affirmative vote of the majority of our
outstanding Common Stock represented in person or by proxy at the meeting.
3. Approval of the issuance of up to 30,000,000 additional shares of
Common Stock at a negotiated price, which may be less than Nasdaq's definition
of "market value", for acquisitions of businesses or assets by the Company
requires the affirmative vote of the majority of our outstanding Common Stock
represented in person or by proxy and entitled to vote at the meeting.
4. Approval of any other matter that may properly come before the Special
Meeting requires the affirmative vote of the majority of our outstanding Common
Stock represented in person or by proxy (unless such matter requires a greater
vote under our Articles of Incorporation).
HOW ARE WE SOLICITING THIS PROXY?
We are soliciting this proxy on behalf of our Board by mail and will pay
all associated expenses. Some of the officers and other employees of the Company
also may, but without compensation other than their regular compensation,
solicit proxies by further mailing or
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personal conversations, or by telephone, facsimile or other electronic means. We
will also, 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.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the beneficial
ownership of our Common Stock as of May 20, 2003 by (a) each person who owns
beneficially more than five percent of our outstanding Common Stock, (b) each
director who owns any such shares, (c) the chief executive officer and three
other highly compensated executive officers or former executive officers and (d)
our directors and executive officers as a group:
Common Stock
Beneficially Owned (1)(2)
Shares Percent
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Richard E. Gathright, Chairman of the Board,
Chief Executive Officer and President (3) 334,800 4.63%
Michael S. Shore, Senior Vice President, Chief
Financial Officer (4) 16,000 *
Paul C. Vinger, Senior Vice President, Corporate Planning &
Fleet Operations (5) 22,000 *
Gary G. Williams, Senior Vice President, Commercial Operations (6) 50,500 *
Wendell R. Beard, Director (7) 24,875 *
Larry S. Mulkey, Director (8) 21,250 *
C. Rodney O'Connor, Director (9) 1,125,537 15.56%
Robert S. Picow, Director (10) 214,851 2.97%
W. Greg Ryberg, Director (11) 94,375 1.30%
Active Investors II (12) 1,083,526 14.98%
Active Investors III (12) 1,088,296 15.04%
Stanley H. Streicher (13) 641,157 8.86%
GM Johnston Family Limited Partnership 476,190 6.58%
All directors and executive officers as a group (9 persons)(14) 1,904,188 26.32%
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* Less than one percent.
(1) Unless otherwise indicated, the address of each of the beneficial owners
identified is c/o Streicher Mobile Fueling, Inc., 800 West Cypress Creek
Road, Suite 580, Fort Lauderdale, Florida 33309.
(2) Based on 7,234,168 shares of Common Stock outstanding. 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 May 20, 2003 pursuant to the exercise of stock options 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) Includes 333,300 shares issuable upon exercise of options that are
presently exercisable. Excludes 166,700 shares issuable upon the exercise
of options that are not presently exercisable.
(4) Includes 16,000 shares issuable upon the exercise of options that are
presently exercisable. Excludes 64,000 shares issuable upon the exercise of
options that are not presently exercisable.
(5) Includes 22,000 shares issuable upon the exercise of options that are
presently exercisable. Excludes 48,000 shares issuable upon the exercise of
options that are not presently exercisable.
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(6) Includes 48,000 shares issuable upon the exercise of options that are
presently exercisable. Excludes 32,000 shares issuable upon the exercise of
options that are not presently exercisable.
(7) Includes 24,375 shares issuable upon the exercise of options that are
presently exercisable.
(8) Includes 21,250 shares issuable upon the exercise of options that are
presently exercisable.
(9) Includes 24,375 shares issuable upon the exercise of options that are
presently exercisable. Excludes 327,594 shares owned by Mr. O'Connor's
adult children, as to which shares Mr. O'Connor disclaims any beneficial
ownership interest.
(10) Includes 24,375 shares issuable upon the exercise of options that are
presently exercisable.
(11) Includes 24,375 shares issuable upon the exercise of options that are
presently exercisable.
(12) Active Investors II and Active Investors III are private funds managed by
Fundamental Management Corporation of which Mr. O' Connor and Mr. Picow are
directors and shareholders, however, they disclaim any beneficial ownership
interest in these shares.
(13 Includes 641,157 shares owned by Supreme Oil Company, Inc., of which
Stanley H. Streicher owns 100% of the outstanding capital stock. Mr.
Streicher served as the Company's Chairman of the Board until December
2002.
(14) Includes 538,050 shares issuable upon the exercise of presently exercisable
options. Excludes 310,700 shares issuable upon the exercise of options that
are not presently exercisable.
PROPOSAL TO INCREASE AUTHORIZED SHARES
OF COMMON STOCK
The Board of Directors adopted a resolution on April 28, 2003, to ask the
shareholders to amend Article III of the Company's Articles of Incorporation to
increase the authorized shares of Common Stock to 50,000,000 shares. As of May
20, 2003, there are 20,000,0000 authorized shares of Common Stock, and 7,234,168
of those shares (36.2%) are issued and outstanding (not including 2,519,227
shares reserved for exercises of outstanding options, warrants and convertible
securities). Pursuant to the proposal, the amendment to increase the number of
shares of Common Stock would result in approximately 42,765,832 authorized but
unissued shares (85.5%) of Common Stock.
The Company also has 1,000,000 shares of preferred stock authorized, of
which there are no shares presently outstanding. The rights, preferences and
other terms relating to the preferred stock may be set by the Company's Board of
Directors at the time of issuance. The proposal to increase the amount of
authorized shares of Common Stock, if approved by the shareholders, would not
change the number of authorized shares of preferred stock.
As previously reported, notwithstanding improved operating efficiencies
and marketing initiatives implemented by management over the past few years,
recent economic and political events, including the national recession, a
significant increase in domestic fuel prices and the war in Iraq, have led to
continuing operating losses by the Company. These losses, together with
unanticipated problems implementing the Company's new automated billing system,
resulted in limited cash flow for the Company in recent months. As a result, the
Company believes that it needs to be in a position to raise additional equity
capital or to make strategic acquisitions of businesses or assets by the
issuance of new shares of its Common Stock.
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The Board believes that the proposed increase to 50,000,000 authorized
shares of Common Stock will be sufficient for issuance from time to time as may
be required for various purposes, including the issuance of Common Stock for
private placements of equity and other financing transactions, for acquisitions
or business combinations, and for the exercise of stock purchase warrants and
stock options.
Shareholders should note that besides the 30,000,000 share increase in
authorized shares, the potential dilutive effect from an issuance of authorized
shares by the Board of Directors would be significantly greater since up to
85.5% of the voting power and economic value of the Common Stock could be issued
at the direction of the Board of Directors without further shareholder approval
as opposed to only 63.8% at this time. On the other hand, if the Board of
Directors subsequently declares a stock dividend or a forward stock split, the
Company's outstanding shares would be greater and the number of authorized and
unissued shares available for issuance could be less than they were before the
proposal. The Company has no plans, however, to declare a dividend or effect any
stock split at this time and considers it to be unlikely that it would do so in
the foreseeable future.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" INCREASING THE NUMBER OF
AUTHORIZED SHARES OF COMMON STOCK FROM 20,000,000 TO 50,000,000 SHARES.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
PROPOSAL FOR ADVANCE APPROVAL OF
ONE OR MORE PRIVATE PLACEMENTS
AT A PRICE BELOW NASDAQ MARKET VALUE
The Board of Directors adopted a resolution on April 28, 2003, to ask the
shareholders to approve one or more private placements of up to 5,000,000 shares
of Common Stock, including stock underlying warrants or convertible debt, at a
negotiated price, which price may be less than "market value" as defined by
rules of the Nasdaq Stock Market, and to permit officers and directors of the
Company or their affiliates to purchase some or all of the shares sold in such
offerings. The Board of Directors conditioned its approval of any such below
market value offerings to transactions the terms of which are specifically
reviewed and approved by the audit committee of the Company's Board of Directors
or by another committee of the Board consisting entirely of independent
directors none of whom purchases shares, directly or indirectly (through
affiliates or otherwise), in such offering or, if no such committee is
available, such terms are subsequently ratified by a vote of the pre-transaction
shareholders not less than six (6) months following the closing of the
transaction. The Board also required that, at least ten (10) days prior to any
issuance of shares at a price which may be deemed to be lower than Nasdaq
"market value", the shareholders be informed, by public announcement, SEC
filing, press release or otherwise notifying them of the material terms of the
transaction.
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NASDAQ SHAREHOLDER APPROVAL REQUIREMENTS
We are submitting this proposal to a vote of our shareholders in an effort
to comply with the shareholder approval requirements of Nasdaq Stock Market Rule
4350(i)(1)(D) (the "Rule") as well as in anticipation of the effectiveness of a
proposed amendment to the Rule. The Rule currently requires shareholder approval
for the issuance in a transaction not involving a public offering of voting
securities equal to twenty percent (20%) or more of the total voting securities
of a company at less than market value prior to such issuance. To Nasdaq,
"market value" means the last closing bid price before the agreement to invest
is signed, which may be the day it is signed or the immediately preceding
trading day (the "Signature Date") or the average of up to five trading days
preceding the Signature Date. While this definition of "market value" has been
used by Nasdaq staff on an informal basis for some time in order to assess
whether a Nasdaq issuer has complied with the Rule, Nasdaq has recently
submitted a proposal to the Securities and Exchange Commission for approval to
amend Rule 4200(a)(21) to formally adopt this definition.
Moreover, according to Nasdaq's March 14, 2003, proposal to amend the
Rule, shareholder approval would be required for any sales of Common Stock or
Common Stock equivalents which include sales to officers or directors of the
company, even if the transaction (or series of transactions which are aggregated
together) represents less than 20% of the outstanding shares prior to the
transaction. As written, however, the proposed Rule would not require
shareholder approval if the total number of shares to be issued to all such
officers and directors of the company would be (a) less than 5% of the total
shares issued in the transaction and (b) less than 1% of the total shares
outstanding before the issuance. In light of the potential for an imminent
adoption of this Rule, the Company is asking our shareholders for their approval
to sell, directly or indirectly, Common Stock or Common Stock equivalents to
officers and directors in a below Nasdaq market value financing occurring within
eighteen (18) months of the date of shareholder approval even if more than 5% of
the total shares sold in such offering or more than 1% of the outstanding shares
prior to the transaction are sold to officers and directors.
THE COMPANY'S NEED FOR FLEXIBILITY TO OBTAIN ADDITIONAL CAPITAL
The Company is currently investigating various opportunities to raise debt
or equity capital or other financing and to make acquisitions of businesses or
assets. All of these opportunities are likely to involve private placements of
its Common Stock or other instruments convertible into Common Stock at a
negotiated price. On or about May 15, 2003, the Company closed such a financing
(the "May 2003 Financing") for $_______ in gross proceeds. All of the Common
Stock or Common Stock equivalents issued in such transaction were issued at a
price equal to or greater than the Nasdaq definition of market value but
affiliates of the Company, including affiliates of Rodney C. O'Connor, a member
of the Board of Directors, purchased __% of the convertible debt, and hence the
shares of Common Stock underlying such debt, in that transaction. The Company
believes that the amount of funds that it was able to raise in the May 2003
Financing was limited by the Nasdaq requirement for prior shareholder approval
of the issuance of a large block of shares at a price below Nasdaq market value
and that, in order to raise sufficient capital to fund the Company's needs for
the next eighteen (18) months, the Company's Board of Directors needs the
flexibility to be able to offer Common Stock or Common Stock equivalents, if the
Board deems it necessary and appropriate, at a price less than
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Nasdaq "market value" and to include officers and directors of the Company and
their affiliates in that offering.
The Board of Directors believes that the Company's operating results, and
its resulting cash position, are subject to the variables of market forces that
could adversely impact its cash position in a short period of time. Accordingly,
the Company may need to undertake one or more such private placements of Common
Stock or Common Stock equivalents on short notice. Moreover, in order to raise
sufficient capital or complete these offerings in a timely manner, a substantial
portion of the securities offered by the Company may need to be purchased,
directly or indirectly, by officers or directors of the Company. The foregoing
circumstances make it highly unlikely that the terms of such financings would be
finalized in time to give sufficient notice for shareholder approval of the
specific financings at a shareholders' meeting. Therefore, the Company is hereby
seeking shareholder approval of the sale of up to 5,000,0000 shares of Common
Stock or Common Stock equivalents in such transactions over the next eighteen
(18) months in advance of negotiations of the final terms of any such
transaction.
Advance shareholder approval of the issuance of Common Stock below Nasdaq
market value is necessary because strict adherence by the Company to the Nasdaq
definition of market value in these anticipated future financings is not
practicable for several reasons. First, it is the Company's experience that
sophisticated investors may not be willing to pay Nasdaq market value for shares
of Common Stock or Common Stock equivalents when they buy substantial amounts of
restricted stock which cannot be freely resold until subsequently registered by
the Company. This is particularly true where, as here, even after the shares are
registered, it may still be difficult to sell them at current or then prevailing
market prices because of the thin trading market for the Company's stock.
Moreover, in the event of a private placement of such securities to a group of
different investors, the Signature Dates for the various investors could vary,
creating an issue of fair dealing in such offerings as well as other issues.
Delaying the execution of agreements and the receipt of funds raised in a
financing until all investors tentatively agree on final terms would be
logistically difficult and impractical, and would create an obstacle to the
completion of such a financing which the Company's Board of Directors believes
would be detrimental to the likelihood of success of any such offering.
In light of recent events and current economic and political conditions,
the Board of Directors has determined it to be in the best interests of the
Company that the Board of Directors, with the concurrence of the Company's Audit
Committee or another committee of the Board comprised entirely of independent
directors not participating in the proposed transaction, or, if no such
committee is available, with the subsequent ratification by a vote of the
pre-transaction shareholders not less than six (6) months following the closing
of the transaction, has the flexibility to raise funds by private placements of
Common Stock or Common Stock equivalents at less than Nasdaq market value and to
permit the purchase of all or a substantial portion of such securities by
officers and directors of the Company or their affiliates. The Board believes
that it may need this flexibility to be able to take advantage of various
potential business opportunities, including acquisitions or business
combinations, convertible debt or mezzanine financing, private placements of
Common Stock, issuances of warrants in connection with new or restructured debt
financings, or other transactions designed to strengthen its working capital or
cash position.
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POTENTIAL DELISTING OF THE COMPANY'S COMMON STOCK FROM NASDAQ
The Company received a letter from Nasdaq dated March 25, 2003, which
indicated that, for the last 30 consecutive trading days, the bid price of the
Company's Common Stock had closed below the minimum $1.00 per share requirement
for continued inclusion under Stock Market Rule 4310(c)(4) (the "$1.00 Rule").
The Company was given 180 calendar days, or until September 22, 2003, to regain
compliance. If, at any time before September 22, 2003, the bid price of the
Company's Common Stock closes at $1.00 per share or more for a minimum of 10
consecutive trading days, Nasdaq will provide written notification that the
Company complies with the Rule. (Nasdaq may require that the closing bid price
equals $1.00 per share for a period in excess of ten consecutive business days,
but generally no more than 20 consecutive business days, before determining if
the Company complies.) If compliance with the $1.00 Rule cannot be demonstrated
by September 22, 2003, Nasdaq will determine whether the Company meets the
initial listing criteria for The Nasdaq SmallCap Market under Stock Market Rule
4310(c)(2)(A). If it meets the initial listing criteria, Nasdaq will notify the
Company that it has been granted an additional 180 calendar day grace period to
demonstrate compliance with the $1.00 Rule. If within that second 180 day grace
period the Company still has not met the $1.00 Rule, it may be afforded an
additional 90 day compliance period, provided that at that time it meets the
initial listing criteria (which are in most respects more onerous than the
continuing inclusion criteria). The Company does not meet the initial listing
criteria at this time but believes that, if it can raise enough new capital
before September 22, 2003, it may then meet those criteria and therefore qualify
for the additional 180 days to demonstrate its compliance with the $1.00 Rule.
ISSUANCE OF COMMON STOCK IN LIEU OF INTEREST.
Certain promissory notes of the Company currently provide that interest on
those notes may be paid by the Company with shares of Common Stock ("PIK
Shares") instead of cash, based on the Nasdaq market value at the time of such
agreement. Nasdaq has taken the position that PIK Shares cannot be issued at a
price lower than the Nasdaq market value as measured on the original Signature
Date of any such promissory notes without becoming subject to the shareholder
approval requirements of the Rule for below market value transactions, even if
the Nasdaq market price is lower when the Company and the noteholder agree that
some of such interest may be paid in PIK Shares instead of cash. According to
Nasdaq, if the Company agrees to use the market value at the time of the
agreement to accept PIK Shares, shareholder approval is required if the
aggregate amount of PIK shares which may be issued on account of interest on the
notes, exceeds the 20% threshold of the Rule. Shareholder approval of this
proposal, however, would permit the payment of PIK shares at market value at the
time of the agreement to accept PIK Shares or at another contemporaneously
negotiated price without regard to whether that price is lower than the Nasdaq
market value at the original Signature Date of the promissory notes.
EFFECT OF SHAREHOLDER APPROVAL OF THIS PROPOSAL.
As of May __, 2003, the Company had issued and outstanding 7,234,168
shares of Common Stock. The Company proposes that the maximum number of shares
of Common Stock which either would be issued or made subject to issuance under
one or more private placement of
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convertible debt during the 18-month period following the date of this Special
Meeting would not exceed 5,000,000 shares of Common Stock in the aggregate, or
approximately forty one percent (41%) of the Company's issued and outstanding
shares of Common Stock as of May __, 2003 and ten percent (10%) of the total
authorized shares of Common Stock (assuming the approval by the shareholders of
the amendment to the Articles of Incorporation to increase the authorized shares
of Common Stock to 50,000,000 shares as described above). Such private
placements of Common Stock, which may be in the form of shares or shares
underlying warrants or convertible debt, are expected to be issued at a price
based on an average market price, or at a stated discount from such a price, but
such average market price would not be bound by Nasdaq's rigid definition of
"market value" because it is unrealistic and difficult to administer. Approval
of this proposal would not, however, empower the Board to sell shares in
violation of Nasdaq Stock Market rules relating to the issuance of "future
priced securities", whereby the price is determined by reference to future
market prices or values. Any variance by the Company from the restrictions on
"future priced securities" would require the separate shareholder approval
prescribed by such rules.
Any private placement transactions by the Company under the advance
approval being sought at this Special Meeting will be subject to the following
additional restrictions: (a) while such transactions could involve officers,
directors, or other affiliates of the Company or parties related to such
affiliates, each transaction must be negotiated at arm's length and the Company
must be represented in such negotiations by disinterested parties to such
affiliates; (b) no transaction or series of transactions can effect a change of
control of the Company except as part of an acquisition or business combination
approved or ratified by the shareholders; and (c) each transaction must be
completed within an 18-month period following the date the shareholder approval
of this proposal is given. In addition, the terms of the Common Stock to be
issued in any private placement transaction must be approved by the Company's
Audit Committee or another committee consisting entirely of independent,
non-participating directors, irrespective of whether the transaction includes
affiliates of officers or directors or, if no such committee is available, is
subsequently ratified by a vote of the pre-transaction shareholders not less
than six (6) months following the closing of the transaction. On the other hand,
no further authorization for any such issuance by a vote of the Company's
shareholders will be solicited prior to such issuance. The total shares issued
could total more than 20% of our total shares of Common Stock, depending on the
time the percentages are measured and the number of shares actually issued. The
Company will also give 10 days prior notice to the shareholders, by amendment to
this proxy statement, by press release or by other appropriate means, of the
specific terms, amount and affiliated purchasers in any such convertible debt
transactions.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ISSUANCE BY THE COMPANY OF
UP TO 5,000,000 SHARES OF ITS COMMON STOCK OR COMMON STOCK EQUIVALENTS
IN ONE OR MORE PRIVATE PLACEMENTS DURING THE NEXT EIGHTEEN (18) MONTHS,
AT PRICES LOWER THAN THE NASDAQ DEFINITION OF MARKET VALUE AND TO
PERMIT OFFICERS AND DIRECTORS OF THE COMPANY TO PURCHASE SOME OR ALL
OF SUCH SECURITIES IN SUCH PLACEMENTS.
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* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
PROPOSAL FOR APPROVAL OF ONE OR MORE ACQUISITIONS
AT A NEGOTIATED PRICE LOWER THAN NASDAQ MARKET VALUE
The Board of Directors adopted a resolution on April 28, 2003, to ask the
shareholders to approve the issuance by the Company of up to 30,000,000 shares
of Common Stock in connection with the acquisition by the Company of one or more
businesses or the assets thereof at any time during the eighteen (18) months
following approval of the proposal, even if such issuance is done at a
negotiated price that may be deemed to be below "market value" (as defined by
Nasdaq Stock Market Rules), so long as the price and other terms of any such
acquisition are approved by a committee of independent members of the Company's
Board of Directors. This proposal varies from the previous proposal described
above in that (a) it is limited to acquisitions of other businesses or assets
thereof, (b) it permits the issuance of up to 30,000,000 shares of Common Stock
or Common Stock equivalents rather than only 5,000,000 shares, and (c) it does
not create an exception to the proposed Nasdaq Stock Market Rule limiting the
amount of shares which can be sold to officers and directors of the Company in
any such offering.
The Company from time to time investigates opportunities to make
acquisitions of assets or companies, which acquisitions are likely to include
the private issuance of shares of its Common Stock or other instruments
convertible into Common Stock at a negotiated price. In light of present
business conditions in the mobile fueling industry, as described above, and the
similar problems faced by related or complementary businesses, the Company
believes that it is possible that, during the next eighteen (18) months, the
Company will be presented with one or more opportunities to make a strategic
acquisition within the industry or in related businesses. Since the Company's
cash resources are limited, it is likely that such acquisitions could be made
only through the issuance of its Common Stock or other securities. The Company
further expects that, if such acquisition opportunities do in fact arise, there
may only be a brief window of opportunity to effect the transaction which would
not allow sufficient time for completion of a 90 to 120 day shareholder approval
process.
As in the case of the previous proposal relating to private placements of
Common Stock below Nasdaq "market value", we are submitting this proposal to a
vote of our shareholders at this time in an effort to comply with the
shareholder approval requirements of Nasdaq Stock Market Rule 4350(i)(1)(D)
(the "Rule"). The Rule requires shareholder approval for the issuance in a
transaction not involving a public offering of voting securities equal to twenty
percent (20%) or more of the total voting securities of a company at less than
the Nasdaq definition of market value prior to such issuance. Unlike the
previous proposal, however, we are not asking for authority to permit officers
and directors to act as substantial participants in the acquisitions authorized
by this proposal (although, if that previous proposal were to be adopted, they
could so participate in acquisitions which take the form of private placements
so long as they aggregate no more than 5,000,000 shares and meet the other
conditions of that proposal).
As noted above, strict adherence by the Company to the Nasdaq concept of
market value in negotiated transactions may not be practicable. In negotiated
acquisitions of businesses or assets of businesses, target company shareholders
are often reluctant to accept the recent market price when they are receiving
substantial amounts of restricted stock that cannot be freely resold
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until subsequently registered by the acquirer. In the Company's case, such
reluctance may be even greater because, even if the Common Stock is registered,
it may be difficult to sell shares at current market prices because of the thin
trading market for the Company's stock. Accordingly, the Board of Directors
believes that application of the Rule to negotiated acquisitions of unaffiliated
businesses or assets, by removing the Board's authority to negotiate a fair
discount from market price in a timely fashion, would unduly restrict the
Company's ability to make one or more some of the strategic acquisitions which
may be presented to the Company over the next eighteen (18) months. The Board of
Directors considers it to be in the best interests of the Company for the Board,
with the concurrence of the Audit Committee or another committee of the Board
comprised entirely of independent directors with no interest in the proposed
transaction, to have the flexibility to issue shares of its Common Stock or
Common Stock equivalents to fund one or more acquisitions of a business at a
negotiated price, which price may be less than the rigid Nasdaq definition of
market value.
As of May __, 2003, the Company had issued and outstanding 7,234,168 shares
of Common Stock. The Company proposes that the maximum number of Common Stock
which either would be issued or made subject to issuance under one or more
private placements for acquisitions within the 18-month period following the
date of this Special Meeting would not exceed 30,000,000 shares of Common Stock
in the aggregate, or 60% of the Company's authorized shares of Common Stock as
of June 27, 2003 (assuming the approval by the shareholders of the amendment to
the Articles of Incorporation to increase the authorized shares of Common Stock
to 50,000,000 as described above). Any acquisition transactions under the
advance approval being sought at this Special Meeting will be subject to the
following additional restrictions: (a) no transaction or series of transactions
can effect a change of control of the Company except as part of an acquisition
or business combination approved or ratified by the shareholders; and (b) each
transaction must be completed within an 18-month period following the date the
shareholder approval of this proposal is given. In addition, the terms of the
Common Stock to be issued in any private placement transaction must be approved
by Company's Audit Committee or another committee consisting entirely of
independent, non-participating directors, irrespective of whether the
transaction includes affiliates of officers or directors. On the other hand, no
further authorization for any such issuance by a vote of the Company's
shareholders will be solicited prior to such issuance. Because the proposal, if
approved, would permit the issuance of up to 30,000,000 shares for such
acquisitions at a price less than the Nasdaq definition of "market value", the
total shares issued in such acquisitions could amount to substantially more than
20% of our total issued and outstanding shares of Common Stock, though the
percentage could vary depending on the time the percentages are measured and the
number of shares actually issued in such transaction and in prior transactions,
if any. The Company will give 10 days prior notice, by amendment to this proxy
statement if possible, or by press release or other appropriate means if
amendment is not possible, of the specific terms, amount and affiliated
purchasers in any such acquisition transactions.
Nothing herein is meant to displace or supercede the requirements of
Florida law with respect to shareholder approval of mergers, consolidations or
acquisitions of all or substantially all of the assets of another company. The
potential issuance of shares of Common Stock by the Board of Directors for which
this proposal seeks advance approval are ordinarily within the
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discretion of the Board. Approval is only being sought because of the
restrictions placed on the Company by the shareholder approval requirements of
Nasdaq Stock Market Rules.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ISSUANCE BY THE COMPANY OF
UP TO 20,000,000 SHARES OF ITS COMMON STOCK AT A PRICE LESS THAN NASDAQ
MARKET VALUE FOR ONE OR MORE ACQUISITIONS OF BUSINESSES OR ASSETS
THEREOF DURING THE NEXT EIGHTEEN (18) MONTHS.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
OTHER MATTERS
As of the date of this proxy statement, the Board does not intend to
present at the Special 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 shareholders 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
or, in the absence of such a recommendation, in accordance with the best
judgment of the proxy holder.
SHAREHOLDER PROPOSALS
Shareholders interested in presenting a proposal for consideration at our
2003 Annual Meeting of shareholders 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. To be eligible for inclusion in our proxy statement
and form of proxy relating to the meeting, shareholder proposals must be
received by our Corporate Secretary no later than June 30, 2003. If the date of
the 2003 Annual Meeting is advanced by more than 30 days or delayed (other than
as a result of adjournment) by more than 30 days from the anniversary of the
2002 Annual Meeting, any such proposals must be submitted no later than the
close of business on the later of the 60th day prior to the 2003 Annual Meeting
or the 10th day following the day on which public announcement of the date of
such meeting is first made. We reserve the right to reject, rule out of order,
or take other appropriate action with respect to any proposal or nomination that
does not comply with these and other applicable requirements.
By Order of the Board of Directors
RICHARD E. GATHRIGHT
Chief Executive Officer, President and
Chairman of the Board
Fort Lauderdale, Florida
May 28, 2003
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APPENDIX
STREICHER MOBILE FUELING, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR THE SPECIAL MEETING OF SHAREHOLDERS ON JUNE 27, 2003
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 Streicher Mobile Fueling, Inc. held of record
by the undersigned on May 20, 2003, at the Special Meeting of Shareholders to be
held on June 27, 2003, at 9:00 a.m. at the Westin Fort Lauderdale, 400 Corporate
Drive, Fort Lauderdale, Florida, or any adjournment or postponement of such
meeting.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE
VOTED "FOR" THE PROPOSALS LISTED HEREIN.
(SEE REVERSE SIDE)
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PLEASE DATE, SIGN AND MAIL YOUR
PROXY CARD BACK AS SOON AS POSSIBLE!
SPECIAL MEETING OF SHAREHOLDERS
STREICHER MOBILE FUELING, INC.
JUNE 27, 2003
| Please Detach and Mail in the Envelope Provided |
|X| PLEASE MARK YOUR
VOTES AS INDICATED
IN THIS EXAMPLE
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
A VOTE FOR ALL OF THE PROPOSALS.
1. TO APPROVE AN AMENDMENT TO THE COMPANY'S ARTICLES OF INCORPORATION TO
INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK FROM
20,000,000 TO 50,000,000 SHARES
|_| FOR |_| AGAINST |_| ABSTAIN
2. TO APPROVE THE ISSUANCE BY THE COMPANY, IN ONE OR MORE PRIVATE PLACEMENTS
OF CONVERTIBLE DEBT DURING THE EIGHTEEN (18) MONTHS FOLLOWING APPROVAL OF
THE PROPOSAL, CONVERTIBLE INTO UP TO 5,000,000 SHARES OF COMMON STOCK AT A
NEGOTIATED PRICE, WHICH PRICE MAY BE AT OR BELOW FAIR MARKET
|_| FOR |_| AGAINST |_| ABSTAIN
3. TO APPROVE THE ISSUANCE BY THE COMPANY, IN ONE OR MORE PRIVATE PLACEMENTS
FOR ACQUISITIONS OF ASSETS OR COMPANIES DURING THE EIGHTEEN (18) MONTHS
FOLLOWING APPROVAL OF THE PROPOSAL, OF UP TO 30,000,000 SHARES OF COMMON
STOCK AT A NEGOTIATED PRICE, WHICH PRICE MAY BE AT OR BELOW FAIR MARKET
|_| FOR |_| AGAINST |_| ABSTAIN
4. IN THEIR DISCRETION, UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE
THE ANNUAL MEETING OR ANY ADJOURNMENT OR POSTPONEMENT THEREOF.
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.
_____________________ ____________________ Dated: ______________________, 2003
(SIGNATURE) (SIGNATURE, IF HELD
JOINTLY)
NOTE: Please sign exactly as your name appears hereon and mail it promptly even
though you may plan to attend the meeting. When shares are held by joint
tenants, both should sign. When signing as attorney, executor,
administrator, trustee or guardian, please give full title as such. If a
corporation, please sign in full corporate name by president or other
authorized officer. If a partnership, please sign in the partnership name
by authorized person.
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