AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 2000
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
STREICHER MOBILE FUELING, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------
<TABLE>
<S> <C> <C>
FLORIDA 5172 65-0707824
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
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2720 N.W. 55TH COURT
FORT LAUDERDALE, FLORIDA 33309
(954) 739-3880
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICE)
--------------
STANLEY H. STREICHER
CHIEF EXECUTIVE OFFICER
STREICHER MOBILE FUELING, INC.
2720 N.W. 55TH COURT
FORT LAUDERDALE, FLORIDA 33309
(954) 739-3880
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-------------------
COPIES OF COMMUNICATIONS TO:
KENNETH C. HOFFMAN, ESQ.
GREENBERG TRAURIG, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
PHONE: (305) 579-0500
FAX: (305) 579-0717
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]_____
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.[ ]______
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[ ]
-----------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES AMOUNT AGGREGATE PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED TO BE REGISTERED UNIT (1) PRICE (1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 30,000 shares (2) $6.00 $180,000 $47.52
====================================================================================================================================
<FN>
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(g) of the Securities Act on the basis of the
exercise prices of the warrants pursuant to which the shares being
registered are to be issued.
(2) Such number represents the number of shares of common stock that are
currently issuable upon exercise of the redeemable warrants; pursuant to
Rule 416 under the Securities Act, the Registrant is also registering such
indeterminate number of shares of common stock as may be issued from time
to time upon exercise of the warrants as a result of antidilution
provisions of these securities. Pursuant to Rule 457(i), no registration
fee is required for these shares.
</FN>
</TABLE>
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED FEBRUARY 23, 2000
STREICHER MOBILE FUELING, INC.
30,000 SHARES OF COMMON STOCK
-------------------------
We issued 30,000 warrants to Emerson Bennett & Associates in September
1999. This prospectus covers the common stock issuable upon exercise of the
warrants.
The warrants are exercisable until 5:00 p.m., New York time, on September
30, 2000 at an exercise price of $6.00 per share of common stock, subject to
adjustment in certain events.
For more information concerning the terms of the warrants, see
"Description of the Warrants" on page 7.
Our common stock is quoted on the Nasdaq SmallCap Market under the symbol
"FUEL." On February 22, 2000, the closing price of our common stock was $6.25
per share.
-------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DESCRIPTION OF CERTAIN
MATTERS THAT YOU SHOULD CONSIDER BEFORE INVESTING IN THE COMMON STOCK.
-------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------------
The date of this Prospectus is , 2000
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission. This prospectus provides you with a general
description of our warrants and the common stock issuable upon exercise of the
warrants. You should read this prospectus together with the additional
information described under the heading "Where You Can Find More Information."
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference statements about our
future that are "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. This act provides a "safe harbor" for
forward-looking statements to encourage companies to provide prospective
information about themselves so long as they identify these statements as
forward-looking and provide meaningful cautionary statements identifying
important factors that could cause actual results to differ from the projected
results. All statements other than statements of historical fact we make in this
prospectus or any other document incorporated by reference are forward-looking.
In some cases, you can identify these forward-looking statements by terminology
such as "believes," "expects," "may," "will," "should," "seeks,"
"approximately," "intends," "plans," "estimates," or "anticipates" or the
negative of those words or other comparable terminology. In evaluating these
statements, you should specifically consider various factors, including the
risks outlined under the caption "Risk Factors" in this prospectus. You should
pay particular attention to the cautionary statements involving our history of
losses, our capital requirements, our expansion and acquisition strategies,
competition and government regulation. These factors and the others set forth
under "Risk Factors" may cause our actual results to differ materially and
adversely from any forward-looking statement.
-------------------------
TABLE OF CONTENTS
PAGE
----
About This Prospectus..........................................................2
Special Note Regarding Forward-Looking Statements..............................2
Prospectus Summary.............................................................3
Risk Factors...................................................................4
Use of Proceeds................................................................7
Plan of Distribution...........................................................7
Description of the Warrants....................................................7
Legal Matters..................................................................8
Experts........................................................................8
Where You Can Find More Information............................................8
-------------------------
2
<PAGE>
PROSPECTUS SUMMARY
Because this is a summary, it may not contain all information that may be
important to you. You should read this entire prospectus, including the
information incorporated by reference, before making an investment decision.
When used in this prospectus, the terms "we," "our" and "us" refer to Streicher
Mobile Fueling, Inc.
STREICHER MOBILE FUELING, INC.
We provide mobile fueling services, primarily to customers which operate
large fleets of vehicles (such as governmental agencies, utilities, major
trucking lines, hauling and delivery services and national courier services).
Our custom fuel trucks deliver fuel on a regularly scheduled or as needed basis
directly to vehicles at customer locations, assuring our customers a dependable
supply of fuel at competitive rates. We utilize our proprietary electronic fuel
management system to measure, record and track fuel dispensed to each vehicle
fueled at a customer location. This allows us to verify the amount of fuel
delivered and provides our customers with customized fleet fuel data for
management analysis and tax reporting. Additionally, our fuel management system
reduces the risk of employee theft by dispensing fuel only to authorized
vehicles.
We believe that mobile fueling provides several economic and other
advantages to our customers, including:
o eliminating the costs and potential environmental liabilities
associated with equipping and maintaining fuel storage and
dispensing facilities,
o reducing labor and administrative costs associated with fueling
vehicles, and
o providing centralized control over fuel inventories and usage.
We presently operate from seven Florida locations, three California
locations, Atlanta, Georgia, Chattanooga and Kingsport, Tennessee, Dallas/Fort
Worth and Houston, Texas, and Kenner, Louisiana. During December 1999, we
operated a fleet of 92 custom fuel trucks and were delivering fuel at a rate of
over 5.0 million gallons per month.
THE OFFERING
Securities Offered.............. 30,000 shares of common stock issuable upon
the exercise of warrants.
Offering Price Per Share........ The price per share of the common stock
offered hereby is $6.00 for the common stock
issuable upon exercise of the warrants.
Use of Proceeds................. We will use the net proceeds of this
offering, if any, for general corporate
purposes, including working capital.
Trading......................... Our common stock is quoted on the Nasdaq
SmallCap Market under the symbol "FUEL."
3
<PAGE>
RISK FACTORS
You should carefully consider the following factors and other information
included or incorporated by reference in this prospectus before investing in the
common stock.
WE HAVE AN ACCUMULATED DEFICIT AND MAY INCUR FURTHER LOSSES
While we have operated at a profit for the first three quarters of fiscal
2000, we have incurred significant losses during the past several years. We
incurred net losses of $1.1 million during fiscal 1999, $475,000 during fiscal
1998 and $429,000 during fiscal 1997. As of October 31, 1999, we had an
accumulated deficit of $1.0 million. We cannot assure you that we will continue
to operate profitably in the future.
OUR BUSINESS REQUIRES SUBSTANTIAL AMOUNTS OF CAPITAL
Our business is capital intensive and we will continue to require
substantial capital in order to operate and expand. Our primary long-term and
working capital requirements have been to fund capital expenditures for custom
fuel trucks and related equipment and working capital for the financing of
customer accounts receivable. Historically, we have depended primarily on debt
financing for our purchases of custom fuel trucks. We expect our debt to
increase in the future as we borrow additional funds to acquire new vehicles,
for acquisitions, working capital or other corporate purposes. If we are unable
to obtain sufficient additional capital in the future, we may have to limit our
growth.
WE MAY NOT BE ABLE TO SUCCESSFULLY EXPAND OUR BUSINESS
A significant element of our growth strategy is to expand our business
into additional major metropolitan areas. We also seek to increase the amount of
business in markets we currently serve.
Our ability to expand our business will depend, among other things, on
whether we can:
o demonstrate the benefits of mobile fueling to potential new
customers;
o successfully establish and operate new locations;
o hire and retain qualified management; marketing and other personnel;
o obtain adequate financing for vehicle purchases and working capital
purposes;
o secure adequate sources of supply on a timely basis and on
commercially reasonable terms; and
o successfully manage our growth.
We cannot assure you that we will be able to successfully enter new
markets or expand our business in markets we currently serve.
OUR ACQUISITION STRATEGY HAS CERTAIN RISKS
Our acquisition strategy is subject to the following risks:
o we may not be able to identify additional suitable acquisition
candidates available for sale at reasonable prices,
o acquisitions may cause a disruption in our ongoing business,
distract our management and other resources and make it difficult to
maintain our standards, controls and procedures,
o we may not be able to consummate any acquisition or successfully
integrate the services and personnel of any acquisition into our
operations,
o we may acquire companies in markets in which we have little
experience, and
4
<PAGE>
o we may be required to incur debt or issue equity securities, which
may be dilutive to existing shareholders, to pay for acquisitions.
WE COULD LOSE ONE OF OUR MAJOR CUSTOMERS
Revenue from our three largest customers totaled approximately $10.8
million in fiscal 1999, $13.8 million in fiscal 1998 and $12.6 million in fiscal
1997. Our business could be adversely affected if we lost one or more of these
customers.
WE DO NOT HAVE WRITTEN AGREEMENTS WITH MOST OF OUR CUSTOMERS
We do not have written agreements with most of our customers. Therefore,
these customers can terminate our mobile fueling services at any time and for
any reason. Our business would be adversely affected if we lost one or more of
our major customers or if we experience a high rate of contract terminations.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY
We compete for customers with other distributors of fuel, including
several regional distributors and numerous small independent operators. Based on
our review of publicly available documents, we believe some of our existing
competitors have significantly greater financial or marketing resources, than we
do. We also compete for customers whose drivers fuel their own vehicles at
retail gas stations. We also could encounter competition from companies which
distribute fuel and other similar oil products, some of which are larger, more
established and have greater financial, marketing and other resources than we
do. In addition, some of our customers are capable of providing the same
services to their vehicles directly.
Our ability to compete depends on many factors, some of which are outside
of our control. These factors include including price, reliability, credit
terms, name recognition, delivery time and service and support. We cannot assure
you that we will remain competitive.
OUR INSURANCE MAY NOT BE ADEQUATE
Our operations involve hazards and risks incidental to handling, storing
and transporting gasoline and diesel fuel, which are classified as hazardous
materials. Although we believe that our current insurance coverage is adequate,
we cannot assure you that our coverage will be sufficient to protect us from
liabilities and expenses that may arise from claims for personal and property
damage arising in the ordinary course of our business. We also cannot assure you
that we will be able to maintain our current levels of insurance or that we will
be able to insure our operations at economical prices.
OUR BUSINESS IS SUBJECT TO NUMEROUS GOVERNMENT REGULATIONS
Our business is subject to numerous federal, state and local laws. We
cannot determine the extent to which our future operations and earnings may be
affected by new legislation, new regulations or changes in existing regulations.
The technical requirements of these laws and regulations are becoming
increasingly expensive, complex and stringent. These laws may impose penalties
or sanctions for damages to natural resources or threats to public health and
safety. Such laws and regulations may also expose us to liability for the
conduct of or conditions caused by others, or for our own acts, even if they
were in compliance with all applicable laws at the time such acts were
performed. Sanctions for noncompliance may include revocation of our permits,
corrective action orders, administrative or civil penalties and criminal
prosecution. Certain environmental laws provide for joint and several liability
for remediation of spills and releases of hazardous substances. In addition, we
may be subject to claims alleging personal injury or property damage as a result
of alleged exposure to hazardous substances, as well as damage to natural
resources.
The transportation of gasoline and diesel fuel is subject to regulation by
various federal, state and local agencies, including the DOT. These regulatory
authorities have broad powers, and we are subject to regulatory and legislative
changes that can affect the economics of our industry by requiring changes in
operating practices or influencing the demand for, and the cost of providing,
our services. Among other things, our drivers must possess
5
<PAGE>
a commercial drivers license with a hazardous materials endorsement. We are also
subject to the rules and regulations of the Hazardous Materials Transportation
Act. For example, our drivers and their equipment must comply with DOT's
pre-trip inspection rules, documentation requirements and limitations on the
amount of fuel transported as well as driver time limitations. Additionally, we
are subject to DOT inspections which occur at random intervals. If we are found
to have material violated DOT rules or the Hazardous Materials Transportation
Act, we could be subject to citations and/or fines.
We depend on the supply of gasoline and diesel fuel from the oil and gas
industry. Therefore, we are affected by changing taxes, price controls and other
laws and regulations relating to the oil and gas industry generally.
Although we believe that we are in substantial compliance with existing
laws and regulations, we cannot assure you that we will not incur substantial
costs for compliance with such laws and regulations in the future. Moreover, it
is possible that future laws and regulations, such as stricter environmental
laws, regulations and enforcement policies, will result in us incurring
additional, presently unquantifiable, costs or liabilities.
CHANGES IN ENVIRONMENTAL REQUIREMENTS MAY REDUCE THE MARKET FOR OUR SERVICES
We expect to derive a significant amount of our future business by
converting to mobile fueling customers fleet operators that currently utilize
underground fuel storage tanks for their fueling needs. Under current federal
regulations, the owners of such underground storage tanks were required, by
December 1998, to remove or retrofit such tanks to comply with technical
requirements pertaining to their construction and operation. If the date for
compliance with such regulations is extended, or if other, more economical
means, of compliance are developed or adopted by owners of underground storage
tanks, our opportunity to market our services to such persons may be adversely
affected.
THE PRICE OF OUR COMMON STOCK MAY FLUCTUATE SIGNIFICANTLY
The trading price of the our common stock fluctuates significantly. For
example, during the year ended December 31, 1999, the reported closing price of
our common stock on the Nasdaq SmallCap Market was as high as $8.63 and as low
as $2.06. The trading prices of our common stock may fluctuate in response to a
number of events and factors, such as:
o quarterly variations in our operating results,
o the introduction of new services by us or our competitors,
o changes in financial estimates or recommendations by securities
analysts, and
o the operating and stock price performance of other companies.
6
<PAGE>
USE OF PROCEEDS
We estimate that the proceeds to us from this offering will be
approximately $180,000. This assumes that all of the warrants are exercised. We
estimate that our expenses in connection with this offering will be
approximately $5,000.
We will use the net proceeds of this offering, if any, for general
corporate purposes, including working capital.
PLAN OF DISTRIBUTION
This offering is being made by Streicher Mobile Fueling and is not
underwritten. We will issue the shares of common stock offered pursuant to this
prospectus from time to time, if and when the outstanding warrants are properly
exercised.
DESCRIPTION OF THE WARRANTS
WARRANTS
The warrants were issued to Emerson Bennett & Associates in September
1999. Each warrant entitles Emerson Bennett & Associates to purchase one share
of common stock at a price of $6.00 per share. Warrants to purchase up to 15,000
shares of common stock vested and became exercisable on December 11, 1999.
Warrants to purchase the remaining 15,000 shares of common stock shall vest and
become exercisable on February 11, 2000. The warrants expire at 5:00 p.m., Fort
Lauderdale time, on September 30, 2000.
The number of shares of common stock that may be purchased upon exercise
of the warrants will be adjusted if we make a dividend distribution our
stockholders or subdivide, combine or reclassify our outstanding shares of
common stock. The exercise price of the warrants will also be adjusted if we
consolidate or merge and make a distribution to our stockholders of our assets
or evidences of indebtedness (other than cash or stock dividends).
7
<PAGE>
LEGAL MATTERS
Greenberg Traurig, P.A., Miami, Florida will provide us with an opinion as
to legal matters in connection with the common stock offered by this prospectus.
EXPERTS
The consolidated balance sheet of Streicher Mobile Fueling, Inc. as of
January 31, 1999, and the related consolidated statements of operations,
shareholders' equity and cash flows for the year ended January 31, 1999 have
been incorporated by reference herein in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated by reference herein and
upon the authority of said firm as experts in accounting and auditing.
The audited consolidated balance sheet of Streicher Mobile Fueling, Inc.
as of January 31, 1998, and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the two years in the period
ended January 31, 1998 incorporated by reference in this prospectus and
elsewhere in the registration statement have been audited by Arthur Andersen
LLP, independent certified public accountants, as indicated in their report with
respect thereto, and are included herein in reliance upon the authority of said
firm as experts in giving said report.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any documents we file at the Securities and Exchange Commission's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the Securities and Exchange Commission at 1-800-SEC-0330 for information on the
operation of the Public Reference Room. Our SEC filings are also available to
the public from the SEC's Website at "http://www.sec.gov."
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and information we later file with the Securities and Exchange
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act until this offering is completed:
1. Our Annual Report on Form 10-K for the fiscal year ended January 31,
1999,
2. Our Quarterly Report on Form 10-Q for the fiscal quarter ended April
30, 1999,
3. Our Quarterly Report on Form 10-Q for the fiscal quarter ended July
31, 1999
4. Our Quarterly Report on Form 10-Q for the fiscal quarter ended
October 31, 1999
5. Our Proxy Statement for our 1999 Annual Meeting filed on July 2,
1999, and
6. The description of our Common Stock contained in the Registration
Statement on Form 8-A filed on December 5, 1996, under Section 12(g)
of the Exchange Act.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Streicher Mobile Fueling, Inc.
2720 N.W. 55th Court
Fort Lauderdale, Florida 33309
Attention: Secretary
(954) 738-3880
8
<PAGE>
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. This prospectus is not an
offer of our common stock in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Company estimates that expenses payable by it in connection with the
offering described in this registration statement (other than underwriting
discounts and commissions) will be as follows:
Securities and Exchange Commission registration fee.......... $ 48
Accounting fees and expenses................................. 3,000
Legal fees and expenses...................................... 1,500
Miscellaneous................................................ 2,452
--------
Total................................................... $ 7,000
=========
The Company will pay all expenses of registration of the common stock
being offered under this registration statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has authority under Section 607.0850 of the Florida Business
Corporation Act to indemnify its directors and officers to the extent provided
for in such statute. The Company's Amended and Restated Articles of
Incorporation provide that the Company shall indemnify and may insure its
officers and directors to the fullest extent permitted by law. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is therefore unenforceable.
At present, there is no pending litigation or proceeding involving a
director or officer of the Company as to which indemnification is being sought,
nor is the Company aware of any threatened litigation that may result in claims
for indemnification by any officer or director.
ITEM 16. EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
3.1 Amended and Restated Articles of Incorporation (3.1) (1)
3.2 Bylaws (3.2) (1)
4.1 Warrant Agreement, dated as of September 30, 1999, between
the Company and Emerson Bennett & Associates (2)
5.1 Opinion of Greenberg Traurig, P.A., counsel to the Company (2)
23.1 Consent of KPMG LLP (2)
23.2 Consent of Arthur Andersen LLP (2)
23.3 Consent of Greenberg Traurig, P.A. (contained in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
- ------------------
(1) Incorporated by reference to an exhibit shown in the preceding parentheses
and filed with the Company's Registration Statement on Form SB-2
(Registration No. 333-14501).
(2) Filed herewith.
II-1
<PAGE>
ITEM 17. 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;
(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 a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 which 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 of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered thereby, and the offering of such securities
at the 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.
II-2
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida, on February 16,
2000.
STREICHER MOBILE FUELING, INC.
By:/S/ STANLEY H. STREICHER
-----------------------------------------------
Stanley H. Streicher, Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Stanley H. Streicher and Walter B. Barrett
his true and lawful attorneys-in-fact, each acting alone, 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, or any registration
statement relating to this offering to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorneys-in-fact or their substitutes, each acting alone, may lawfully do or
cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ STANLEY H. STREICHER Chairman of the Board and Chief Executive Officer February 16, 2000
- -----------------------------------------
Stanley H. Streicher (principal executive officer)
/S/ WALTER B. BARRETT Vice President, Finance and Chief Financial February 15, 2000
- -----------------------------------------
Walter B. Barrett Officer (principal financial and accounting
officer)
/S/ E. SCOTT GOLDEN Director February 18, 2000
- -----------------------------------------
E. Scott Golden
/S/ JOSEPH M. MURPHY Director February 17, 2000
- -----------------------------------------
Joseph M. Murphy
/S/ JOHN H. O'NEILL Director February 17, 2000
- -----------------------------------------
John H. O'Neill, Jr.
Director February , 2000
- -----------------------------------------
C. Rodney O'Connor
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
4.1 Warrant Agreement, dated as of September 30, 1999,
between the Company and Emerson Bennett & Associates
5.1 Opinion of Greenberg Traurig, P.A., counsel to the
Company
23.1 Consent of KPMG LLP
23.2 Consent of Arthur Andersen LLP
EXHIBIT 4.1
30,000 WARRANTS
THESE WARRANTS AND THE SHARES OF COMMON STOCK (OR OTHER SECURITIES) ISSUABLE
UPON EXERCISE HEREOF (THE "WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER APPLICABLE
STATE SECURITIES LAWS. THE WARRANT SHARES MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH
REGISTRATION.
September 30, 1999
STREICHER MOBILE FUELING, INC.
WARRANTS FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR VALUE RECEIVED, STREICHER MOBILE FUELING, INC., a Florida
corporation ("Streicher" or the "Company"), hereby certifies that EMERSON
BENNETT & ASSOCIATES (the "Holder") is entitled, subject to the provisions
contained herein, to purchase from the Company Thirty Thousand (30,000) duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock
(as defined below), subject to adjustment as provided herein, at an exercise
price of $6.00 per share of Common Stock (the "Exercise Price").
These Warrants have been issued in accordance with a Financial Advisory
Agreement dated March 11, 1999 and Amendment #1 to Financial Advisory Agreement,
dated August 12, 1999, which are attached herewith as Exhibit "A."
The term "Common Stock" means the common stock, par value $.01, of the
Company as constituted on the date hereof. The number of shares of Common Stock
to be received upon the exercise of these Warrants may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock deliverable upon such
exercise and any securities received in respect of any such shares, and as
adjusted from time to time, are hereinafter referred to as "Warrant Stock". The
term "Person" means an individual, a corporation, an association, a partnership,
a business, joint-stock company, a trust, any unincorporated organization, a
governmental or political subdivision thereof or a governmental agency.
References herein to the "Company" are to (i) Streicher and any
successor thereto, (ii) any successor Person resulting from the merger or
consolidation of Streicher, or any successor thereto, with another Person or
(iii) any Person to which Streicher, or any successor thereto, has transferred
its property or assets as an entirety or substantially as an entirety.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of these Warrants, and (in the
case of loss, theft or destruction) of satisfactory indemnification, and upon
surrender and cancellation of these Warrants, if mutilated, the Company shall
execute and deliver new Warrants of like tenor and date.
The Holder agrees with the Company that these Warrants are issued, and
all the rights hereunder shall be held, subject to all of the following
conditions, limitations and provisions:
1. EXERCISE OF WARRANTS. 15,000 of the warrants shall vest and become
exercisable on December 11, 1999 and the remaining 15,000 warrants shall vest
and become exercisable on February 11,
<PAGE>
2000. Subject to the foregoing, any vested Warrants may be exercised, in whole
or in part, at any time, or from time to time during the period commencing on
the date hereof and expiring at 5:00 p.m., local time, on September 30, 2000 by
presentation and surrender of these Warrants to the Company at its principal
office (which on the date hereof is 2720 N.W. 55th Court, Ft. Lauderdale,
Florida 33309), with the Warrant Exercise Form attached hereto (or a reasonable
facsimile thereof) duly executed and accompanied by payment (either in cash or
by certified or official bank check payable to the order of the Company) of the
Exercise Price for the number of shares specified in such form (as such exercise
number shall be adjusted to reflect any adjustment in the total number of
Warrant Shares issuable to the Holder pursuant to the terms of this Warrant) and
the Holder shall thereupon be entitled to receive the number of duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock determined
as provided herein. If these Warrants are exercised in part only, the Company
shall, upon surrender of these Warrants for cancellation, execute and deliver
new Warrants evidencing the rights of the Holder to purchase the balance of
Warrant Stock purchasable hereunder. Upon receipt by the Company of these
Warrants, together with the Exercise Price, in proper form for exercise, the
Holder shall be deemed to be the holder of record of the Warrant Stock issuable
upon such exercise, notwithstanding that the transfer books of the Company may
then be closed or that certificates representing such Warrant Stock shall not
then be actually delivered to the Holder. As soon as practicable after each
exercise from time to time of this Warrant, in whole or in part, the Company
will cause to be issued in the name of and delivered to the Holder, a
certificate or certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock to which the Holder is
entitled upon such exercise plus, in lieu of any fractional shares to which the
Holder would otherwise be entitled, cash as provided herein.
2. RESERVATION OF SHARES. The Company will at all times reserve and
keep available for issuance and delivery upon exercise of these Warrants, all
shares of Warrant Stock from time to time issuable upon exercise of all Warrants
at the time outstanding. All such shares shall be duly authorized and, when
issued upon such exercise, shall be validly issued, fully paid and nonassessable
and free and clear of all preemptive or similar rights.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of these Warrants, but the
Company shall pay the Holder an amount equal to the fair market value of such
fractional share in lieu of each fraction of a share otherwise issuable upon any
exercise of these Warrants, as determined by the Board of Directors in its
reasonable discretion.
4. EXCHANGE OF WARRANTS. These Warrants are exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company or at the office of its stock transfer agent, if any, for other
Warrants of different denominations, entitling the Holder hereof to purchase in
the aggregate the same number of shares of Warrant Stock purchasable hereunder.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights as a shareholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed herein.
6. ANTI-DILUTION PROVISIONS.
6.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company subdivides its
outstanding shares of Common Stock by recapitalization, reclassification or
split-up thereof, or if the Company declares a stock dividend or distribute
shares of Common Stock to its shareholders, the number of shares of Common Stock
subject to these Warrants immediately prior to such subdivision or dividend or
distribution shall be proportionately increased and the Exercise Price per share
shall be proportionately decreased, and if the
<PAGE>
Company combines the outstanding shares of Common Stock by recapitalization,
reclassification or combination thereof, the number of shares of Common Stock
subject to these Warrants immediately prior to such combination shall be
proportionately decreased and the Exercise Price per share shall be
proportionately increased. Any such adjustments pursuant to this Section 6.1
shall be effective at the close of business on the effective date of such
subdivision or combination or, if any adjustment is the result of a stock
dividend or distribution, then the effective date for such adjustment shall be
the record date therefor.
6.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION OR MERGER (a) If the
Company (or any other Person, the securities of which are at the time receivable
upon the exercise of these Warrants) reorganizes or reclassifies the Common
Stock after the date hereof or if the Company (or any such other Person)
consolidates with or merges into another Person and is not the continuing or
surviving Person of such consolidation or merger or in connection with such
consolidation or merger, the Common Stock is changed into or exchanged for stock
or other securities of any other Person or cash or any other property, or if the
Company (or any such other Person) conveys all or substantially all of its
assets to another Person, then, and in each such case, the Holder, upon the
exercise hereof, at any time after the consummation of such reorganization,
consolidation, merger or conveyance, shall be entitled to receive, in lieu of
the securities and property receivable upon the exercise of these Warrants prior
to such consummation, the same amount of securities or property to which the
Holder would have been entitled as a shareholder upon such consummation if the
Holder had exercised these Warrants immediately prior thereto (but had not
exercised any rights with respect to such securities or property in connection
with the reorganization, consolidation, merger or conveyance); in each such
case, the terms of these Warrants shall be applicable to the securities or
property receivable upon the exercise of these Warrants after such consummation.
(b) If the Company consolidates with or merges into another Person, and
is not the surviving Person, or conveys all or substantially all of its assets
to another Person, then, and in each such case, the surviving Person or the
Person that receives substantially all of the Company's assets shall expressly
assume the obligations of the Company under these Warrants.
6.3 NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of these Warrants, but will at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder against dilution or other impairment. Without limiting
the generality of the foregoing, while these Warrants are outstanding, the
Company (a) will not permit the par value, if any, of the shares of Warrant
Stock to be above the amount payable therefor upon such exercise and (b) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue or sell fully paid and non-assessable
shares of Warrant Stock upon the exercise of these Warrants.
6.4 CERTIFICATE AS TO ADJUSTMENTS. In each case of an adjustment in the
number of shares of Warrant Stock receivable upon the exercise of these
Warrants, the Company will promptly compute such adjustment and mail to the
Holder a certificate, executed by an executive officer of the Company, setting
forth such adjustment and showing in detail the facts upon which such adjustment
is based.
6.5 NOTICES OF RECORD DATE If the Company takes a record of the
holders of its Common Stock for the purpose of:
(a) entitling them to receive any dividend (other than a cash dividend
at the same rate as the
<PAGE>
rate of the last cash dividend theretofore paid) or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities, or to receive any other right;
(b) any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the Company
with or into another Person, or any conveyance of all or substantially all of
the assets of the Company to another Person; or
(c) any voluntary or involuntary dissolution, liquidation or winding up
of the Company; then, and in each such case, the Company shall mail to the
Holder a notice specifying, as the case may be, (I) the date on which a record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, or
(ii) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up is to take place, and
the time, if any, to be fixed, as to which the holders of record of Warrant
Stock (or such other securities at the time receivable upon the exercise of
these Warrants) shall be entitled to exchange their shares of Warrant Stock (or
such other securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
7. RESTRICTIONS ON TRANSFER OF WARRANTS AND WARRANT STOCK. The Warrant
Stock may not be sold, transferred or otherwise disposed of unless registered
under the Securities Act, and any applicable state securities laws or pursuant
to available exemptions from such registration, provided that the seller
delivers to the Company an opinion of counsel reasonably satisfactory to the
Company confirming the availability of such exemption. Notwithstanding the
foregoing, the restrictions imposed by this Section 9 shall cease and terminate
when (i) the Warrant Stock is sold or otherwise disposed of pursuant to an
effective registration statement under the Securities Act or the Warrant Stock
so transferred are not required to bear the legend pursuant to Section 8 or (ii)
the Holder has met the requirements for transfer of such Warrant Stock pursuant
to subparagraph (k) of Rule 144.
8. LEGEND. Unless the shares of Warrant Stock have been registered
under the Securities Act, upon exercise of any of these Warrants and the
issuance of any of the shares of Warrant Stock, all certificates representing
such securities shall bear on the face thereof substantially the following
legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION
PROVIDED, HOWEVER, that such legend shall not be required if in the opinion of
Company counsel registration of any future transfer is not required by the
applicable provisions of the Securities Act.
9. NOTICES. All notices required hereunder shall be in writing and
shall be deemed given when telegraphed, delivered personally or within two days
after mailing when mailed by certified or registered mail, return receipt
requested, to the Company at its principal office, or to the Holder at the
address set forth on the record books of the Company, or at such other address
of which the Company or the Holder has been advised by notice in writing
hereunder.
<PAGE>
10. APPLICABLE LAW. These Warrants shall be governed by, and construed
in accordance with, the laws of the State of Florida, without giving effect to
conflicts of law principles.
11. MISCELLANEOUS. This Warrant and all rights of the Holder hereunder
are nontransferable and may not be assigned by the Holder in any manner. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. The section headings
in this Warrant are for purposes of convenience only and shall not constitute a
part hereof.
IN WITNESS WHEREOF, the Company has caused these Warrants to be signed
on its behalf, in its corporate name, by its duly authorized officer, as of the
date written above.
STREICHER MOBILE FUELING, INC.
By: /S/ STANLEY H. STREICHER
------------------------------
Stanley H. Streicher
President and CEO
Accepted:
EMERSON BENNETT & ASSOCIATES
By: /S/ BRENTLEY C. MARTIN
-----------------------
Brentley C. Martin
President
<PAGE>
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise Warrants for the
purchase of ___________ shares of Common Stock of Streicher Mobile Fueling,
Inc., a Florida corporation, granted pursuant to the Warrant Certificate dated
September 30, 1999, and hereby makes payment of $__________ in full satisfaction
of the Exercise Price therefor.
Dated:
EMERSON BENNETT & ASSOCIATES
By:
-------------------------
Brentley C. Martin
President
EXHIBIT 5.1
February 23, 2000
Streicher Mobile Fueling, Inc.
2720 NW 55th Court
Fort Lauderdale, Florida 33309
Ladies and Gentlemen:
We have acted as counsel to Streicher Mobile Fueling, Inc., a Florida
corporation (the "Company"), and have reviewed the Company's Registration
Statement on Form S-3 covering 30,000 shares of the Company's authorized but
unissued common stock, $.01 par value (the "Common Stock"), issuable pursuant to
warrants granted to Emerson Bennett & Associates (the "Emerson Bennett
Warrants"). It is our opinion that the shares of Common Stock issuable under the
Emerson Bennett Warrants, when issued upon exercise of and in accordance with
the respective terms thereof, will be validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion in the above referenced
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Greenberg Traurig, P.A.
GREENBERG TRAURIG, P.A.
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Streicher Mobile Fueling, Inc.
We consent to the use of our report incorporated herein by reference in the
prospectus and to the reference to our firm under the heading "Experts."
KPMG LLP
Fort Lauderdale, Florida,
February 23, 2000
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-3 of our
report dated April 10, 1998 included in Streicher Mobile Fueling, Inc.'s Form
10-K for the year ended January 31, 1999, and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Fort Lauderdale, Florida,
February 23, 2000.
