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Entry into a Material Definitive
Agreement, Financial Statements and Exh
Item 1.01 Entry into a Material Definitive Agreement.
Common
Stock Offering
On
November 11, 2010, Clean Energy Fuels Corp. (the "Company") entered
into an underwriting agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated as representative of the underwriters named in Schedule A
thereto (the "Underwriting Agreement"). Pursuant to the
Underwriting Agreement the Company is offering 3,000,000 shares of common
stock, including 34,530 shares to Andrew J. Littlefair, the Company's
President and Chief Executive Officer and a director, 6,906 shares to James
N. Harger, the Company's Chief Marketing Officer, 3,453 shares to Mitchell W.
Pratt, the Company's Senior VP, Engineering, Operations and Public Affairs,
and 5,179 shares to Barclay F. Corbus, the Company's Senior VP, Strategic
Development. The Company also granted the underwriters a 30-day option to
purchase up to an additional 450,000 shares of its common stock to cover
over-allotments, if any. Subject to the following sentence, the Underwriters
have agreed to purchase the shares from the Company pursuant to the
Underwriting Agreement at a price of $12.455 per share, and the price to the
public is $13.25 per share. The purchase price to be paid by Messrs.
Littlefair, Harger, Pratt and Corbus for an aggregate of up to 50,068 shares
will be $14.48 per share, which was the consolidated closing bid price of the
Company's common stock on the NASDAQ Global Market on November 10, 2010, and
the underwriters will receive no discount or commission on such shares. On
November 11, 2010, the underwriters notified the Company that they are
exercising their option to purchase an additional 450,000 shares to cover over-allotments.
The closing of the offering (including the closing of the exercise of the
over-allotment option) is expected to occur on November 16, 2010, subject to
the satisfaction of customary closing conditions.
The
offering is being made pursuant to the Company's effective shelf registration
statement (Registration No. 333-168433) previously filed with the Securities
and Exchange Commission (the "SEC"), including a related prospectus
dated July 30, 2010, as supplemented by a Preliminary Prospectus Supplement
dated November 10, 2010 and a Prospectus Supplement dated November 11, 2010,
which the Company filed with the SEC pursuant to Rule 424(b)(5) under the
Securities Act of 1933, as amended.
The
Underwriting Agreement is filed as Exhibit 1.1 to this report, and the
description of the material terms of the Underwriting Agreement is qualified
in its entirety by reference to such exhibit. In addition, on November 11,
2010, the Company issued a press release announcing the pricing of the common
stock offering, and a copy of the press release is filed as Exhibit 99.1 to
this report and is incorporated herein by reference.
The
opinion of counsel regarding the validity of the common stock to be issued
pursuant to the offering described in the foregoing paragraphs is filed as
Exhibit 5.1 hereto.
Amendment and Exercise of Series I Warrant
In connection with the Company's registered direct
offering, which closed on November 3, 2008, the Company issued Series I
warrants to purchase up to 3,314,394 shares of its common stock. As of
November 9, 2010, the Series I warrants had an exercise price of $12.68 per
share. On November 10, 2010, the Company entered into an amendment to a
Series I warrant to purchase 1,183,712 shares of its common stock, pursuant
to which the expiration date of such warrant was changed to November 10,
2010. In consideration of the modification to the expiration date, the
Company agreed to pay the holder of such warrant, Portside Growth and
Opportunity Fund, approximately $3.2 million. The Company received notice on
November 10, 2010 that such warrant is being exercised in full, and will
issue 1,183,712 shares of its common stock, for an aggregate exercise price
of approximately $15.0 million, prior to or concurrent with the closing of
the common stock offering described above. The warrant amendment is filed as
Exhibit 10.68 to this report, and the description of the material terms of
the warrant amendment is qualified in its entirety by reference to such
exhibit. In addition, on November 10, 2010, the Company issued a press
release announcing the amendment and exercise of the Series I warrant, and a
copy of the press release is filed as Exhibit 99.2 to this report and is
incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
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Exhibit
Description
1.1 Underwriting
Agreement, dated November 11, 2010.
5.1 Opinion of
Morrison & Foerster LLP.
10.68 Amendment to
Warrant Number SI-4, dated November 10, 2010.
23.1 Consent of
Morrison Foerster LLP (contained in Exhibit 5.1).
99.1 Press
release issued by Clean Energy Fuels Corp., dated November 11, 2010.
99.2 Press
release issued by Clean Energy Fuels Corp., dated November 10, 2010.
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