Exhibit 10.1
PAYMENT IN KIND
AGREEMENT
THIS PAYMENT IN
KIND AGREEMENT (the “ Agreemen t”) is dated and
effective as of the 27th day of April, 2009, between SMF Energy
Corporation (the “ Company ”) and the
undersigned holder (the “ Preferred Stockholder
”) of the Company’s Series A Convertible Preferred
Stock (the “ Series A Preferred Stock ”), Series
B Convertible Preferred Stock (the “ Series B Preferred
Stock ”) and Series C Convertible Preferred Stock (the
“ Series C Preferred Stock ”), as
applicable.
RECITALS
WHEREAS, on
December 31, 2008, the Board of Directors declared, but has not yet
paid, dividends of (i) Sixteen Dollars and Eighty-Two Cents
($16.82) per share on its outstanding shares of Series A Preferred
Stock, (ii) Twenty-Seven Dollars and Fifty-Two Cents ($27.52) per
share on its outstanding shares of Series B Preferred Stock and
(iii) Twenty-Six Dollars and Eighteen Cents ($26.18) per share on
its outstanding shares of Series C Preferred Stock, to be paid to
the Preferred Stockholders of record at the close of business on
January 21, 2009, for the quarter ended December 31, 2008 (the
“ December Dividends ”);
WHEREAS, the
Company acknowledges that, at such time as it is declared by the
Board of Directors, it will be obligated to pay dividends of (i)
Sixteen Dollars and Twenty-Seven Cents ($16.27) per share on its
outstanding shares of Series A Preferred Stock, (ii) Twenty-Six
Dollars and Sixty-Three Cents ($26.63) per share on its outstanding
shares of Series B Preferred Stock and (iii) Nineteen Dollars and
Twenty-Three Cents ($19.23) per share on its outstanding shares of
Series C Preferred Stock, to the Preferred Stockholders of record
as of a date to be determined by the Board of Directors, for the
quarter ended March 31, 2009 (the “ March Dividends
”); and
WHEREAS, the
Company desires to pay the December Dividends and the March
Dividends with unregistered shares of the Company’s common
stock (“ Common Shares ”) instead of cash and
the Preferred Stockholder desires to accept Common Shares as
payment for the December Dividends and March Dividends.
NOW, THEREFORE,
BE IT RESOLVED, that in consideration of th