- Current report filing (8-K)
October 29 2008 - 9:24AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report
(Date of earliest event reported):
October 28, 2008
CLEAN
ENERGY FUELS CORP.
(Exact name of registrant as specified in
its charter)
Delaware
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001-33480
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33-0968580
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(State or other
jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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3020
Old Ranch Parkway, Suite 200, Seal Beach, California
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90740
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(Address of principal
executive offices)
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(Zip Code)
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Registrants telephone number, including
area code:
(562) 493-2804
Not
Applicable
(Former name or former address, if
changed since last report.)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions (see
General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o
re-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01
Entry into a Material
Definitive Agreement.
On
October 28, 2008, Clean Energy Fuels Corp., a Delaware corporation (the
Company
), entered into a
Placement Agent Agreement (the
Placement
Agent Agreement
) in which Lazard Capital Markets LLC served as
lead placement agent and W.R. Hambrecht + Co., LLC served as co-placement agent
(the
Placement Agents
),
relating to the sale and issuance by the Company to select investors (the
Investors
) of up to
4,419,192 units (the
Units
),
with each Unit consisting of (i) one share of the Companys common stock,
par value $0.0001 per share (
Common
Stock
), (ii) a warrant to purchase 0.75 shares of Common
Stock (the
Series I Warrant
),
and (iii) one warrant to purchase up to 0.2571 shares of Common Stock (the
Series II Warrant
and together with the Series I Warrants, the
Warrants
). The sale of the Units is being made pursuant
to Subscription Agreements, each dated October 28, 2008 (the
Subscription Agreement
s),
with each of the Investors pursuant to which the Investors agreed to purchase
the Units at a purchase price of $7.92 per Unit. In the aggregate, the Company
would issue up to 4,419,192 shares of Common Stock (the
Shares
), Series I
Warrants to purchase up to 3,314,394 shares of Common Stock, and Series II
Warrants to purchase up to 1,136,364 shares of Common Stock pursuant to the
terms of the Placement Agent Agreement and the related Subscription Agreements.
The Series I Warrants to be issued to each Investor would be exercisable
beginning six months from the date of issuance for a period of seven years from
the date they become exercisable, and would carry an exercise price of $13.50
per share. On the first anniversary of the issuance of the Series I warrants,
the exercise price will reset to an exercise price equal to one-hundred twenty
percent (120%) of the closing price of our common stock on such first
anniversary date. On the second anniversary
of the issuance of the Series I warrants, the exercise price will reset to an
exercise price equal to one-hundred twenty percent (120%) of the closing price
of our common stock on such second anniversary date. However, under the terms of the Series I
warrants, no such reset adjustment will operate to increase the exercise price
above the then current exercise price at the time of the first or second
anniversary of the issuance of the Series I warrant.
The Series II Warrants are
conditioned upon the outcome of the November 4, 2008 California election
related to Proposition 10, the California Alternative Fuels and Renewable
Energy Initiative. The Series II Warrants will become exercisable during
the period beginning on the date which is five trading days after November 4,
2008 in the event that Proposition 10 is not approved by the voters in the
State of California during the election to be held on November 4, 2008 and
ending on November 14, 2008, subject to an extension of one trading day
for each trading day that the result of the election is not declared by 9:00 a.m.,
New York time, on November 5, 2008, at an exercise price of $0.01 per
share of Common Stock. The Series II warrants will be exercisable for such
number of shares of Common Stock as will be equal to (i) the quotient of (A) the
aggregate purchase price paid by each investor for the purchase of Units
divided by (B) 85% of the average Weighted Average Price (as defined in
the Series II Warrants) per share of the Common Stock during the five
trading days beginning November 5, 2008, provided that such resulting
price shall not be less than $6.30, (ii) minus the number of shares of
common stock purchased by such investor. In the event that Proposition 10 is
approved by the California voters, then the Series II warrants shall not be
exercisable and shall terminate.
The
Company anticipates raising gross proceeds of approximately $35 million. The
net offering proceeds to the Company from the sale of the Units, after
deducting the placement agents fees and other estimated offering expenses
payable by the Company, are expected to be approximately $32.3 million.
The
Shares, the Warrants and the shares issuable upon exercise of the Warrants
(together, the
Securities
)
are being offered and sold pursuant to a prospectus dated
July 29, 2008 and a prospectus
supplement dated October 28, 2008 (the
Prospectus
Supplement
), pursuant to the Companys effective shelf
registration statement on Form S-3 (File No. 333-152306). The legal
opinion of Morrison Foerster LLP relating to the Securities is filed as Exhibit 5.1
to this Current Report on Form 8-K.
The closing of the sale
and issuance of the Units is expected to take place on or about November 3,
2008, subject to the satisfaction of customary closing conditions.
The foregoing is only a
brief description of the material terms of the Placement Agent Agreement, the
Warrants and the Subscription Agreements; it does not purport to be a complete
description of the rights and obligations of the parties thereunder and is
qualified in its entirety by reference to the Placement Agent Agreement, the
form of Series I Warrant, the Form of Series II Warrant and the
form of Subscription Agreement, respectively, that are filed as Exhibits 1.1,
4.5, 4.6 and 10.1 to this Current Report on Form 8-K and incorporated by
reference herein.
2
Item 2.02 Results
of Operations and Financial Condition.
Recent Developments
Third Quarter Financial Performance
While our financial
statements for the quarter ended September 30, 2008 have not yet been
prepared, based on preliminary estimates, we expect to report a net loss in the
range of $10.4 million to $11.5 million, or ($0.23) to ($0.26) per share. In
the quarter ended September 30, 2007, we reported a net loss of ($0.03)
per share. As previously disclosed, our anticipated net loss for the quarter
ended September 30, 2008 will include a loss of approximately $6.0 million
from the sale of natural gas futures contracts that we purchased to hedge our
potential exposure to a fixed price customer contract with the City of Phoenix,
Arizona for which we submitted a bid. We submitted a bid and purchased futures
contracts with respect to the entire contract with the City of Phoenix, but the
City of Phoenix awarded us only a portion of the contract. Thus, we sold the
futures contracts that were associated with the portion of the fixed price
customer contract that we were not awarded. This loss will offset an unrealized
gain of $5.7 million that we recorded in the three month period ended June 30,
2008 related to the futures contracts, which resulted in a realized net loss of
$0.3 million related to the futures contracts we sold. In addition, our
anticipated net loss for the quarter ended September 30, 2008 includes
approximately $500,000 in expenses associated with our support for Proposition
10, the California Alternative Fuel Vehicles and Renewable Energy ballot
initiative. Revenues in the quarter ended September 30, 2008 are expected
to be in the range of $33.5 million to $37.0 million, as compared to $29.2
million in the quarter ended September 30, 2007. We anticipate that volume
of gasoline gallon equivalents sold for the third quarter of 2008 (including
sales of LNG utilized in industrial applications and natural gas sold by our
landfill gas facility in Dallas, Texas) will be 18.7 million gallons, as
compared to 20.0 million gasoline gallon equivalents sold in the third quarter
of 2007.
Item 8.01 Other Events.
On October 29, 2008,
the Company issued a press release announcing its completion of the sale and
issuance of the units described above. A copy of this press release is attached
as Exhibit 99.1 to this Current Report on Form 8-K and is
incorporated by reference into this Item 8.01.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
Exhibit
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Description
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1.1
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Placement Agent
Agreement, dated October 28, 2008, by and between Clean Energy Fuels
Corp., and Lazard Capital Markets LLC and W.R. Hambrecht + Co., LLC
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4.5
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Form of
Series I Warrant to be issued to each of the Investors
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4.6
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Form of
Series II Warrant to be issued to each of the Investors
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5.1
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Opinion of Morrison
Foerster LLP
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10.1
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Form of
Subscription Agreement by and between Clean Energy Fuels Corp. and each of
the Investors
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23.1
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Consent of Morrison
Foerster LLP (included as part of Exhibit 5.1)
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99.1
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Press release issued by
Clean Energy Fuels Corp. on October 29, 2008
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3
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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CLEAN ENERGY FUELS CORP
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Dated: October 28,
2008
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By:
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/s/ Richard R. Wheeler
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Name: Richard R.
Wheeler
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Title: Chief Financial
Officer
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