Unassociated Document

As filed with the Securities and Exchange Commission on June 24, 2005.
Registration No. 333 -

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
 

STREICHER MOBILE FUELING, INC.
(Exact name of registrant as specified in its charter)


Florida
65-0707824
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization)
Identification No.)

800 West Cypress Creek Road, Suite 580
Fort Lauderdale, FL
33309
(Address of Principal Executive Offices)
(Zip Code)

STREICHER MOBILE FUELING, INC. 2001 DIRECTOR STOCK OPTION PLAN
(Full title of the plan)

Richard E. Gathright
With a copy to:
President and Chief Executive Officer
S. Lee Terry, Jr., Esq.
800 West Cypress Creek Road, Suite 580
Davis Graham & Stubbs LLP
Fort Lauderdale, FL 33309
1550 17th Street, Suite 500
 
Denver, CO 80202
(Name and address of agent for service)
   
(954) 308-4200
(303) 892-9400
(Telephone number, including area code, of agent for service)

 

 
CALCULATION OF REGISTRATION FEE
Title of
securities
to be
registered
Amount
to be
registered
Proposed
maximum
offering
price
per share
Proposed
maximum
aggregate
offering
price
Amount of
registration
fee
         
Common Stock ($.01 par value per share)
350,000
$2.42 (1)
$850,500(1)
$100.10


Notes:
 
(1) Pursuant to Rule 457(h)(1), the price per share and aggregate offering price are based upon the average of the high and low prices of the Registrant’s Common Stock on June 23, 2005 as quoted on NASDAQ.
 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
 
Streicher Mobile Fueling, Inc., a Florida corporation (the “Company” or “Streicher”), hereby states that the following documents filed with the Securities and Exchange Commission (the “Commission”) are hereby incorporated or deemed to be incorporated in this Registration Statement by reference as of their date of filing with the Commission:
 
(a) The Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2004;
 
(b) The Company’s Quarterly Reports on Form 10-Q for the quarters ended September 30, 2004, December 31, 2004 and March 31, 2005;
 
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since June 30, 2004;
 
(d) The Company’s Definitive Proxy Statement filed on October 28, 2004; and
 
(e) The Company’s Registration Statement on Form 8-A filed on December 5, 1996, and as amended on December 10, 1996, which contain a description of the Company’s capital stock.
 
All other documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered under the Registration Statement have been sold, or deregistering all securities then remaining unsold, are also incorporated herein by reference and shall be a part hereof from the date of the filing of such documents.
 
Any statement contained in a document incorporated by, or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
 
ITEM 4. DESCRIPTION OF SECURITIES.
 
Not applicable.
 
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
 
None.
 

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

Florida Business Corporation Act. Section 607.0850 of the Florida Business Corporation Act (the "FBCA") generally permits the Registrant to indemnify its directors, officers, employees and other agents who are subject to any third-party actions because of their service to the Registrant if such persons acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the Registrant. If the proceeding is a criminal one, such person must also have had no reasonable cause to believe his conduct was unlawful. In addition, the Registrant may indemnify its directors, officers, employees or other agents who are subject to derivative actions against expenses and amounts paid in settlement which do not exceed, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the Registrant. To the extent that a director, officer, employee or other agent is successful on the merits or otherwise in defense of a third-party or derivative action, such person will be indemnified against expenses actually and reasonably incurred in connection therewith. This Section also permits a corporation further to indemnify such persons by other means unless a judgment or other final adjudication establishes that such person's actions or omissions which were material to the cause of action constitute (1) a crime (unless such person had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe it unlawful), (2) a transaction from which he derived an improper personal benefit, (3) a transaction in violation of Section 607.0834 of the FBCA (unlawful distributions to shareholders), or (4) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder.
 

 
Furthermore, Section 607.0831 of the FBCA provides, in general, that no director shall be personally liable for monetary damages to the Registrant or any other person for any statement, vote, decision, or failure to act, regarding corporate management or policy, unless: (a) the director breached or failed to perform his duties as a director; and (b) the director's breach of, or failure to perform, those duties constitutes (i) a violation of criminal law, unless the director had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful, (ii) a transaction from which the director derived an improper personal benefit, either directly or indirectly, (iii) a circumstance under which the liability provisions of Section 607.0834 of the FBCA are applicable, (iv) in a proceeding by or in the right of the Registrant to procure a judgment in its favor or by or in the right of a shareholder, conscious disregard for the best interest of the Registrant, or willful misconduct, or (v) in a proceeding by or in the right of someone other than the Registrant or a shareholder, recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The term "recklessness," as used above, means the action, or omission to act, in conscious disregard of a risk: (a) known, or so obvious that it should have been known, to the directors; and (b) known to the director, or so obvious that it should have been known, to be so great as to make it highly probable that harm would follow from such action or omission.

Insurance. In addition to the foregoing, the Registrant carries insurance permitted by the laws of Florida on behalf of directors, officers, employees or agents which may cover, among other things, liabilities under the Securities Act of 1933, as amended.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
 
Not applicable.
 
ITEM 8.  EXHIBITS

Exhibit No.
Description
   
4.1
2001 Director Stock Option Plan incorporated by reference to Exhibit A of the Proxy Statement filed by the Company for the Annual Meeting of Shareholders held on July 19, 2001
   
5.1
Opinion of Davis Graham & Stubbs LLP
   
23.1
Consent of KPMG LLP
   
23.2
Consent of Davis Graham & Stubbs LLP (included in Exhibit 5.1)


ITEM 9.  UNDERTAKINGS.
 
(a) The undersigned registrant hereby undertakes:
 
 
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
 
 
 
 
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
 
 
(ii)
To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) that, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
 
 
(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;
 
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference in the registration statement;
 
 
(2)
That, for the purpose of determining any liability under the Securities Act, each 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; and
 
 
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.
 
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question, whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
 
 

SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Lauderdale, State of Florida, on June 24, 2005.
 
STREICHER MOBILE FUELING, INC.
 
By:  /s/Richard E. Gathright     
Richard E. Gathright, President and
Chief Executive Officer
 
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
 
Signature
 
  
Title
 
  
Date
 
 
/s/Richard E. Gathright                   
Richard E. Gathright
  
 
President, Chief Executive Officer
(principal executive officer) and Director
  
 
June 24, 2005
 
/s/Michael S. Shore                         
Michael S. Shore
  
 
Sr. Vice President and Chief Financial Officer (principal financial and accounting officer)
  
 
June 24, 2005
 
/s/Wendell R. Beard                         
Wendell R. Beard
 
  
 
Director
  
 
June 24, 2005
 
/s/Larry S. Mulkey                           
Larry S. Mulkey
  
 
Director
  
 
June 24, 2005
 
_______________________
C. Rodney O’Connor
  
 
Director
  
 
June __, 2005
 
/s/Robert S. Picow                            
Robert S. Picow
  
 
Director
  
 
June 24, 2005
 
/s/W. Greg Ryberg                           
W. Greg Ryberg
  
 
Director
  
 
June 24 , 2005

 
 
 

EXHIBIT INDEX


5.1
 
Opinion of Davis Graham & Stubbs LLP
 
23.1
 
Consent of KPMG LLP