SECURITIES AND EXCHANGE COMMISSION
Exchange Act of 1934 (Amendment No. )
Filed by a Party other than the Registranto
o | Preliminary Proxy Statement | |
o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |
þ | Definitive Proxy Statement | |
o | Definitive Additional Materials | |
o | Soliciting Material Pursuant to §240.14a-12 |
þ | No fee required. | |
o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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(2) | Aggregate number of securities to which transaction applies: | ||
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): | ||
(4) | Proposed maximum aggregate value of transaction: | ||
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o | Fee paid previously with preliminary materials. | |
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TO BE HELD OCTOBER 27, 2008
1. | To approve an amendment to the Company’s Certificate of Incorporation to effect a reverse split of the Company’s outstanding common stock as described in the enclosed proxy statement. | ||
2. | To consider and vote upon an adjournment of the Special Meeting, if necessary, to solicit additional proxies, if there are not sufficient votes in favor of Proposal No. 1. | ||
3. | To transact such other business as properly may come before the Special Meeting, or any adjournments or postponements of the meeting. |
BY ORDER OF THE BOARD OF DIRECTORS, | ||
Chris Sapyta, | ||
President and Chief Executive Officer |
September 30, 2008
SIGN, DATE AND RETURN THE PROXY CARD IN THE ENCLOSED POSTPAID ENVELOPE OR
FOLLOW THE TELEPHONE OR INTERNET VOTING INSTRUCTIONS ON THE PROXY CARD AS
SOON AS POSSIBLE. THANK YOU FOR ACTING PROMPTLY.
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5990 Greenwood Plaza Blvd., Suite 390
Greenwood Village, Colorado 80111
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APPROVAL OF AMENDMENT TO THE COMPANY’S AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT
The Company’s capital raising efforts may include both equity and debt funding alternatives and a combination of private placement of securities and registered offerings of securities. In addition, the Company may elect to pursue commercial financing alternatives such as finance leases or sale and leaseback transactions. The Company has engaged in preliminary discussions with potential underwriters of public offerings of its securities but has not determined whether or on what terms any public offering of its securities might be consummated. Prospective underwriters have indicated that a reverse split of our common stock would be a condition of any underwriting of the Company’s securities and that the reverse split would need to be effective in advance of the completion of any public offering. Based upon the current volatility of the stock market, the Company cannot predict whether a registered public offering of its securities will be pursued. Any negotiations with underwriters or commercial financial institutions relating to capital raising activity, however, will be targeted to meet the Company’s requirements and deadlines under the Company’s plan submitted to AMEX. The amount of securities that may be offered and terms of any private or public equity raise that may be pursued will be the subject of negotiations and market developments, but would be targeted to raise funds during fiscal 2008 at a level which, together with any debt, finance lease or sale-leaseback financing arrangements that may be concluded would address the Company’s requirements for at least 12 months.
If the Company fails to demonstrate to AMEX that it has achieved its capital raising objectives within the plan period ending December 22, 2008, a delisting of our common stock from the American Stock Exchange could occur, and if so, our Common Stock would trade on the OTC Bulletin Board or in the “pink sheets.” These alternative markets are generally considered to be less efficient than, and not as broad as, the American Stock Exchange and would not enable the Company to retain eligibility to use a short form registration statement for its primary offerings. We are also obligated under our securities purchase agreement entered into in January 2008 to use our best efforts to remain listed on a stock exchange.
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Despite such anti-takeover implications, the recapitalization is not the result of our knowledge of any specific effort to accumulate our securities or to obtain control of the Company by means of a merger, tender offer, proxy solicitation in opposition to management, or otherwise. We are not submitting the proposed amendment for the recapitalization to enable us to frustrate any known efforts by another party to acquire a controlling interest in the Company or to seek Board of Directors representation.
Furthermore, the proposed recapitalization is not a part of any plan by our management to adopt a series of amendments to render the takeover of the Company more difficult. Management does not presently intend to propose any anti-takeover measures in future proxy solicitations.
If the reverse split is not approved, the Company may be unable to raise additional capital. We currently estimate that we have sufficient capital to fund our operations only through the remainder of 2008 without raising money from external sources.
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• | partnerships; | ||
• | financial institutions; | ||
• | insurance companies; | ||
• | real estate investment trusts; | ||
• | regulated investment companies; | ||
• | grantor trusts; | ||
• | tax-exempt organizations; | ||
• | dealers or traders in securities or currencies; | ||
• | stockholders who hold Common Stock as part of a position in a straddle or as part of a hedging, conversion or integrated transaction for U.S. federal income tax purposes or U.S. holders that have a functional currency other than the U.S. dollar; | ||
• | stockholders who actually or constructively own 10 percent or more of the Company’s voting stock; or | ||
• | a non-U.S. holder who is a U.S. expatriate, “controlled foreign corporation” or “passive foreign investment company.” |
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PROXIES IF THERE ARE NOT SUFFICIENT VOTES IN FAVOR OF PROPOSAL NO. 1
• | each person (or group of affiliated persons) known to us to beneficially own more than 5% of the outstanding shares of our voting stock; | ||
• | each of our directors and executive officers; | ||
• | all of our executive officers and directors as a group. |
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Voting | Total | |||||||||||||||||
Common | Footnote | Percentage | Percentage | Percentage | ||||||||||||||
Name of Shareholder | Stock | Number | of Class | Owned | of Equity | |||||||||||||
Chris Sapyta | 784,054 | (1)(11) | 4.5 | % | 4.5 | % | 4.5 | % | ||||||||||
Edward Johnson | 574,638 | (2)(11) | 3.3 | % | 3.3 | % | 3.3 | % | ||||||||||
Kent J. Lund | 101,025 | (3)(11) | 0.6 | % | 0.6 | % | 0.6 | % | ||||||||||
John Jenkins | 136,602 | (4)(11) | 0.8 | % | 0.8 | % | 0.8 | % | ||||||||||
Doug Kelsall | 200,602 | (5)(11) | 1.1 | % | 1.1 | % | 1.1 | % | ||||||||||
Jack Burkholder | 52,640 | (6)(11) | 0.3 | % | 0.3 | % | 0.3 | % | ||||||||||
Jeff McGonigal | 181,260 | (10)(11) | 1.0 | % | 1.0 | % | 1.0 | % | ||||||||||
Lee Schlessman | 5,173,419 | (7) | 23.9 | % | 23.9 | % | 23.9 | % | ||||||||||
Thomas P. Grainger | 13,525,519 | (8) | 52.2 | % | 52.2 | %* | 52.2 | % | ||||||||||
Pete Bloomquist | 204,318 | (9)(11) | 1.2 | % | 1.2 | % | 1.2 | % | ||||||||||
All officers and directors as a group (7 persons) | 20,934,075 | 88.8 | % | 88.8 | % | 88.8 | % |
(1) | Includes an option to purchase 128,000 shares issuable to Mr. Sapyta under the terms of his employment agreement, with exercise prices from $6.00 to $7.00 per share, and includes 13,500 options exercisable at $4.73 per share granted December 29, 2006, vested as to 25% on date of grant and, with respect to the remaining 75% of the shares covered by the options, in equal quarterly increments over the 12 calendar quarters after the date grant, as of the end of each quarter; and includes 18,000 options exercisable at $0.68 per share granted January 15, 2008 which also vest in equal quarterly increments over the next following 12 calendar quarters as of the end of each quarter commencing March 31, 2008. | |
(2) | Includes an option to purchase 100,000 shares issuable to Mr. Johnson under the terms of his employment agreement, with exercise prices ranging from $6.00 to $7.00 per share , and includes warrants to purchase 11,170 shares at an exercise price of $5.00 per share; warrants to purchase 25,000 shares at an exercise price of $0.95 per share; warrants to purchase 25,000 shares at an exercise price of $1.10 per share; warrants to purchase 12,500 shares at an exercise price of $1.00 per share; and includes 13,500 options exercisable at $4.73 per share granted December 29, 2006, vested as to 25% on date of grant and, with respect to the remaining 75% of the shares covered by the options, in equal quarterly increments over the next following 12 calendar quarters after the date of grant; and includes 15,000 options exercisable at $0.68 per share granted January 15, 2008, which also vest in equal quarterly increments over the next following 12 calendar quarters as of the end of each quarter commencing March 31, 2008. | |
(3) | Includes a warrant to purchase 2,000 shares exercisable at $5.00 per share, a warrant to purchase 3,000 shares exercisable at $7.50 per share; a warrant to purchase 10,000 shares exercisable at $0.95 per share; a warrant to purchase 10,000 shares exercisable at $1.10 per share; and a warrant to purchase 5,000 shares exercisable at $1.00 per share. | |
(4) | Includes a warrant to purchase 3,000 shares exercisable at $5.00 per share and a warrant to purchase 1,000 shares exercisable at $7.50 per share, a warrant to purchase 25,000 shares exercisable at $0.95 per share; a warrant to purchase 25,000 shares exercisable at $1.10 per share; and a warrant to purchase 12,500 shares exercisable at $1.00 per share. | |
(5) | Includes a warrant to purchase 5,000 shares exercisable at $5.00 per share and a warrant to purchase 5,000 shares exercisable at $7.50 per share; a warrant to purchase 25,000 warrants exercisable at $0.95 per share; a warrant to purchase 25,000 shares exercisable at $1.10 per share; and a warrant to purchase 12,500 shares exercisable at $1.00 per share. |
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(6) | Includes a warrant to purchase 2,000 shares exercisable at $5.00 per share and a warrant to purchase 3,000 shares exercisable at $7.50 per share. | |
(7) | Includes warrants to purchase 27,967 shares exercisable at $0.625 per share; warrants to purchase 116,762 shares exercisable at $2.50; warrants to purchase 34,714 shares exercisable at $5.00 per share; warrants to purchase 61,802 shares exercisable at $7.50 per share; warrants to purchase 171,000 shares exercisable at $1.50 per share; warrants to purchase 79,167 shares exercisable at $1.00 per share; warrants to purchase 25,000 shares at $0.95 per share; warrants to purchase 25,000 shares at $1.10 per share ,a warrant to purchase 375,000 shares exercisable at $0.80 per share; a convertible note that is convertible into shares at $3.00 per share (up to 316,667 shares); a convertible note that is convertible into shares at $0.40 per share (up to 375,000 shares) a convertible note that is convertible into shares at $2.00 per share (up to 200,000 shares) a convertible note that is convertible into shares at $1.00 (up to 171,000 shares); a convertible note that is convertible into shares at $0.75 per share (up to 133,333 shares); 690,618 common shares, warrants to purchase 68,182 shares at an exercise price of $.625 per share; warrants to purchase 70,200 shares at an exercise price of $2.50 per share; warrants to purchase 33,334 shares at an exercise price of $5.00 per share; warrants to purchase 266,000 shares at an exercise price of $7.00 per share; warrants to purchase 43,180 shares at an exercise price of $7.50 per share; warrants to purchase 105,300 shares at an exercise price of $1.50 per share; warrants to purchase 50,000 shares at an exercise price of $1.00 per share; warrants to purchase 100,116 shares at an exercise price of $3.375 per share; 195,000 shares to be issued upon the conversion of debt at a conversion price of $3.00 per share and 886,667 shares from conversion of convertible notes that convert at $3.75 per share; 50,000 shares from convertible notes that convert at $2.00 per share; 105,300 shares from convertible notes that convert at $1.00 per share; 100,000 shares from convertible notes that convert at $0.75 per share, which include notes, debentures and warrants owned by Mr. Schlessman or family members, trusts or entities that Mr. Schlessman controls by power of attorney or ownership of the entity. The address for Lee Schlessman, the listed beneficial owner who has the dispositive and voting power for the shares and who is not a director or executive officer of the company, but who is deemed a related person based on share ownership, is 1301 Pennsylvania Street, Suite 800, Denver, CO 80203-8015. | |
(8) | * Mr. Grainger executed a binding agreement in August of 2008, whereby he agreed (subject to listing approval of the American Stock Exchange we received on September 18, 2008) not to exercise any warrants, or to convert any indebtedness under convertible notes to the extent that his actual ownership after giving effect to such exercise or conversion would exceed 35% of the actual shares of Common Stock of the company then outstanding. | |
The number of shares beneficially owned by Thomas P. Grainger is based solely on information in a Schedule 13D filed with the SEC on September 25, 2008, reporting beneficial ownership of 13,525,519 shares of common stock and sole voting power (giving effect to the 35% ownership limitation) as to 5,067,672 shares of common stock including 8,457,847, warrants consisting of: one warrant to purchase 322,222 shares at a $7.50 exercise price, one warrant to purchase 100,000 shares at a $1.50 exercise price, one warrant to purchase 100,000 shares at a $1.25 exercise price, one warrant to purchase 100,000 shares at a $1.00 exercise price; and shares issuable upon exercise by Thomas P. Grainger of warrants exercisable until January 22, 2013, each to purchase 285,000 shares with exercise prices of $1.00 and $1.25, respectively 1,875,000 shares issuable upon conversion of a secured convertible note; warrants to purchase 1,875,000 shares exercisable at $0.80 per share; and warrants to purchase 3,515,625 shares exercisable at $0.40 (subject to the 35% ownership limitation covenants and any other requirements imposed by the American Stock Exchange for issuance and listing of the shares). The address for Thomas P. Grainger, the listed beneficial owner who has the dispositive and voting power for the shares and who is not a director or executive officer of the company, but who is deemed a related person based on share ownership, is Post Office Box 7, Saratoga, WY 82331. | ||
(9) | Includes warrants to purchase 59,776 shares exercisable at $0.625 per share; warrants to purchase 2,000 shares exercisable at $1.20 per share; warrants to purchase 10,020 shares exercisable at $5.00 per share; warrants to purchase 18,234 shares exercisable at $2.50 per share; warrants to purchase 3,616 shares exercisable at $3.75 per share; ; warrants to purchase 10,000 shares exercisable at $0.95 per share ; warrants to purchase 10,000 shares exercisable at $1.10 per share, warrants to purchase 5,000 shares exercisable at $1.00 per share, 45,000 options exercisable at $4.73 per share; and 13,500 options exercisable at $0.68 per share. | |
(10) | Includes warrants to purchase 5,000 shares exercisable at $7.50 per share; warrants to purchase 62,500 shares exercisable at $0.80 per share; 62,500 shares from convertible notes that convert at $0.40 per share; warrants held in a IRA to purchase 13,500 shares exercisable at $7.50 per share. | |
(11) | The address for the listed beneficial owners who are directors or executive officers, is c/o Smart Move, Inc., 5990 Greenwood Plaza Blvd., Suite 390, Greenwood Village, CO. |
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BY ORDER OF THE BOARD OF DIRECTORS, | ||
Greenwood Village, Colorado | ||
September 30, 2008 | Chris Sapyta, | |
President and Chief Executive Officer |
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OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SMART MOVE, INC.
SMART MOVE, INC. | ||||
By: | ||||
Name: | Chris Sapyta, President & CEO | |||
Greenwood Village, Colorado 80111
AND PROMPTLY RETURN THE ENCLOSED PROXY.
your votes
as indicatedx
FORo | ABSTAINo | AGAINSTo |
FORo | ABSTAINo | AGAINSTo |
Signature(s) | Dated _____, 2008 |