- Prospectus filed pursuant to Rule 424(b)(3) (424B3)
September 07 2010 - 12:47PM
Edgar (US Regulatory)
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Table of Contents
Filed pursuant to Rule 424(b)(3)
Registration No. 333-168433
CALCULATION OF REGISTRATION FEE
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Title of each class of securities
to be registered
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Amount to be
registered(1)
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Proposed maximum
offering price per
unit(2)
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Aggregate maximum
offering
price
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Amount of
registration fee(3)
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Common Stock, par value $.0001 per share
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4,017,408
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$14.56
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$58,493,460
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$4,171
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(1)
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Pursuant
to Rule 416 of the Securities Act of 1933, as amended (the "Securities Act"), the common stock of the registrant offered hereby shall be
deemed to cover additional securities to be issued as a result of stock splits, stock dividends or similar transactions.
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(2)
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Estimated
for purposes of calculating the registration fee in accordance with Rule 457(c) under the Securities Act, based upon the average of the
high and low price of the common stock as provided by the Nasdaq Global Market on August 31, 2010.
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(3)
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Payment
of the registration fee is being made in accordance with Rules 456(b) and 457(r). In addition, $4,171 of the registration fee is being
offset, pursuant to Rule 457(p) under the Securities Act, by the registration fees paid in connection with unsold securities registered by the registrant under Registration Statement
No. 333-137124 (initially filed on September 6, 2006).
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED JULY 30, 2010
Clean Energy Fuels Corp.
4,017,408 Shares of Common Stock
The selling stockholder identified in this prospectus supplement is offering up to 4,017,408 shares of our common stock, par value $0.0001 per
share. We issued the shares of common stock to the selling stockholder in connection with our acquisition of the assets and business of I.M.W. Industries Ltd. We will not receive any proceeds
from the sale of shares being sold by the selling stockholder.
The
selling stockholder may sell the shares of common stock from time to time in the open market, on the Nasdaq Global Market, in privately negotiated transactions or a combination of
these methods, at market prices prevailing at the time of sale, at prices related to the prevailing market prices, at negotiated prices, or otherwise as described under the section of this prospectus
supplement titled "Plan of Distribution."
Our
common stock is listed on the Nasdaq Global Market and trades under the symbol "CLNE." On September 3, 2010, the closing sale price of our common stock was $15.48 per share.
Investing in our securities involves a high degree of risk. You should carefully consider the risks described under "Risk Factors" in
Item 1A of our most recent Quarterly Report on Form 10-Q filed on August 9, 2010 (which document is incorporated by reference herein), as well as the other information
contained or incorporated by reference in this prospectus or in any supplement hereto before making a decision to invest in our securities. See "Where You Can Find More Information" below.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is September 7, 2010.
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Prospectus Supplement Table of Contents
Table of Contents
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement incorporates by reference important business and financial information about us that
is not included in or delivered with this document. This information, other than exhibits to documents that are not specifically incorporated by reference in this prospectus supplement, is available
to you without charge upon written or oral request to Clean Energy Fuels Corp. at the address or telephone number indicated in the section titled "Incorporation of Certain Information by Reference" in
this prospectus supplement.
This
document is in two parts. The first part is this prospectus supplement, which contains specific information about the selling stockholder and the terms on which the selling
stockholder is offering and selling shares of our common stock. The second part is the accompanying prospectus dated July 30, 2010, which contains and incorporates by reference important
business and financial information about us and other information about the offering.
You
should rely only on the information contained or incorporated by reference in this prospectus supplement and the accompanying prospectus or in any free writing prospectus. We have
not, and the
selling stockholder has not, authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and
the selling stockholder is not, making an offer to sell the common stock in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this
prospectus supplement, the accompanying prospectus and the documents incorporated by reference in either this prospectus supplement or the accompanying prospectus is accurate only as of their
respective dates. Our business, financial condition, results of operations and prospects may have changed since those dates.
Before
you invest in our common stock, you should carefully read the registration statement (including the exhibits thereto) of which the information in this prospectus supplement is
deemed a part and of which the accompanying prospectus forms a part, this prospectus supplement, the accompanying prospectus and the documents incorporated by reference into this prospectus
supplement and accompanying prospectus. The incorporated documents are described under "Available Information."
SUMMARY
Our Company
We are the leading provider of natural gas as an alternative fuel for vehicle fleets in the United States and Canada, based on the
number of stations operated and the amount of gasoline gallon equivalents of compressed natural gas ("CNG") and liquefied natural gas ("LNG") delivered. We offer a comprehensive solution to enable our
customers to run their fleets on natural gas, often with limited upfront expense to the customer. We design, build, finance and operate fueling stations and supply our customers with CNG and LNG. We
also produce renewable biomethane, which can be used as vehicle fuel, through our landfill gas joint venture, and provide natural gas conversions, alternative fuel systems, application engineering,
service and warranty support and research and development for natural gas vehicles through our wholly owned subsidiary, BAF Technologies, Inc. In addition, we help our customers acquire and
finance natural gas vehicles and obtain local, state and federal clean air rebates and incentives. CNG and LNG are cheaper than gasoline and diesel vehicle fuel, and are well suited for use by vehicle
fleets that consume high volumes of fuel, refuel at centralized locations, and are increasingly required to reduce emissions. According to the U.S. Department of Energy's Energy Information
Administration (EIA), the amount of natural gas consumed in the United States for vehicle use more than doubled between 2000 and 2009. We believe we are positioned to capture a substantial share of
the growth in the use of natural gas as a vehicle fuel in the United States given our leading market share and the comprehensive solutions we offer.
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Our
principal executive offices are located at 3020 Old Ranch Parkway, Suite 400, Seal Beach, California 90740, and our telephone number at that location is
(562) 493-2804. Our web site is located at www.cleanenergyfuels.com. The reference to our website is intended to be an inactive textual reference and the contents of our website are
not intended to be incorporated into this prospectus supplement.
Recent Developments
On September 7, 2010, we completed our acquisition of the advanced natural gas fueling compressor and related equipment
manufacturing and servicing business (the "Business") of I.M.W. Industries Ltd. ("IMW"). Pursuant to the Asset Purchase Agreement, the consideration for the Business consists of (i) the
payment at closing of $15.6 million in cash, (ii) the issuance at closing of 4,017,408 shares of our common stock, (iii) the payment on each of January 31, 2011, 2012, 2013
and 2014 of $12.5 million (each payment consisting of $5.0 million in cash plus an additional $7.5 million in cash and/or shares of our common stock, with the exact combination of
cash and/or stock to be determined at our option), (iv) an earn-out arrangement pursuant to which we will, over a four year period, pay the sellers of the Business up to
$40.0 million, based on the Business achieving certain minimum amounts of adjusted gross profit, and (v) our assumption of certain liabilities of IMW.
Founded
in 1912, IMW has manufactured industrial equipment and has been a leading supplier of compressed natural gas equipment for vehicle fueling and industrial applications since 1984.
IMW also manufactures compressor and fueling systems for hydrogen and natural gas to hydrogen reformer systems. IMW is quality certified to the standard of ISO 9001:2008 and carries a full
array of specialized certifications for the precise manufacture of compressor equipment, pressure systems and related components. IMW has an extensive, expanding global customer list that includes
vehicle manufacturers, natural gas companies, vehicle fleet operators, private fueling station owners, and CNG fuel providers. It has service centers in Canada, China, Bangladesh, Colombia and the
U.S., and is opening a second manufacturing facility in Shanghai, China.
The Offering
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Securities offered by the Selling Stockholder
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4,017,408 shares of our common stock.
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Use of Proceeds
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We will not receive any proceeds from the sale of common stock by the selling stockholder.
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Trading
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Our common stock is quoted on the Nasdaq Global Market and trades under the symbol "CLNE."
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Dividend Policy
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We do not intend to declare dividends for the foreseeable future, as we anticipate that we will reinvest any
future earnings in the development and growth of our business.
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Risk Factors
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See "Risk Factors" in Item 1A of our most recent Quarterly Report on Form 10-Q filed on August 9,
2010 and in other documents that we subsequently file with the Securities Exchange Commission, all of which are incorporated by reference to this prospectus supplement and the accompanying prospectus for a discussion of the factors you should
carefully consider before deciding to invest in the shares of our common stock being offered by the selling stockholder.
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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus supplement, including the documents we incorporate by reference herein, contain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of the Exchange Act. Such statements include, without limitation, statements
regarding our expectations, hopes or intentions regarding the future. These forward looking statements can often be identified by their use of words such as "expect," "believe," "anticipate,"
"outlook," "could," "target," "project," "intend," "plan," "seek," "estimate," "should," "may" and "assume," as well as variations of such words and similar expressions referring to the future. They
also include statements concerning anticipated revenues, income or loss, capital expenditures, dividends, capital structure or other financial terms. For a non-exhaustive list of certain
forward-looking statements that are incorporated by
reference into or deemed to be a part of this prospectus supplement, please refer to the "Cautionary Note Regarding Forward-Looking Statements" in our Annual Report on Form 10-K for
the year ended December 31, 2009.
Forward-looking
statements involve certain risks and uncertainties, many of which are beyond our control. If any of those risks and uncertainties materialize, actual results could differ
materially from those discussed in any such forward-looking statement. Among the factors that could cause actual results to differ materially from those discussed in forward-looking statements are
those discussed under the heading "Risk Factors" and in other sections of (i) our Annual Report on Form 10-K for the year ended December 31, 2009, (ii) our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010 and June 30, 2010, (iii) our other reports filed from time to time with the SEC that are
incorporated by reference into this prospectus supplement, or (iv) this prospectus supplement and accompanying prospectus. See "Incorporation of Certain Information by Reference" and "Available
Information" for information about how to obtain copies of those documents.
All
forward-looking statements in this prospectus supplement and the documents incorporated by reference herein are made only as of the date of the document in which they are contained,
based on information available to us as of the date of that document, and we caution you not to place undue reliance on forward-looking statements in light of the risks and uncertainties associated
with them. Except as required by law, we undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.
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RISK FACTORS
You should carefully consider, among other things, the matters discussed under "Risk Factors" in Item 1A of our most recent
Quarterly Report on Form 10-Q filed on August 9, 2010, and in other documents that we subsequently file with the Securities Exchange Commission, all of which are incorporated
by reference to this prospectus supplement. Each of the referenced risks and uncertainties could adversely affect our business, operating results and financial condition, as well as adversely affect
the value of an investment in our securities. Additional risks not known to us or that we believe are immaterial may also adversely affect our business, operating results and financial condition and
the value of an investment in our securities.
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USE OF PROCEEDS
Because the selling stockholder will sell the shares of our common stock offered under this prospectus supplement, we will receive no
cash proceeds. All proceeds from the sale of our common stock offered under this prospectus supplement will be for the account of the selling stockholder, as described below. See "Selling Stockholder"
and "Plan of Distribution" described below.
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SELLING STOCKHOLDER
The following table, which was prepared based on information supplied to us by the selling stockholder, sets forth the name of the
selling stockholder, the number of shares beneficially owned by the selling stockholder and the number of shares to be offered by the selling stockholder pursuant to this prospectus supplement. The
table also provides information regarding the beneficial ownership of our common stock by the selling stockholder as adjusted to reflect the assumed sale of all of the shares of common stock offered
under this prospectus supplement. The ownership percentage indicated in the following table is based on 60,907,389 outstanding shares of common stock of the Company as of September 2, 2010 and
assumes the issuance of 4,017,408 shares of common stock to the selling stockholder.
Beneficial
ownership is determined in accordance with the rules of the SEC. The address of the selling stockholder is: c/o Clean Energy Fuels Corp., 3020 Old Ranch Parkway,
Suite 400, Seal Beach, California 90740.
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Beneficial Ownership
Prior to Offering
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Beneficial Ownership
After Offering
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Number of
Shares Offered
Hereby
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Name of Selling Stockholder
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Number
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Percentage
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Number
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Percentage
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B&M Miller Equity Holdings Inc.(1)
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4,017,408
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6.19
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4,017,408
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(1)
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Bradley
N. Miller has sole voting and dispositive power over the shares of common stock reported in the table above. Mr. Miller was the President of
I.M.W. Industries Ltd. The shares being registered hereunder are a portion of the consideration received by IMW and its affiliates in connection with our acquisition of the Business. After the
consummation of the acquisition, Mr. Miller will become employed by us as President of Clean Energy Compression Corp.
PLAN OF DISTRIBUTION
The selling stockholder, and its pledges, assignees, donees, or other successors-in-interest may, from time to
time, sell any or all of his shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. If the shares of common stock are sold
through underwriters, broker-dealers or agents, the selling stockholder will be responsible for underwriting discounts or commissions or agent's commissions. These sales may be at fixed prices, at
prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or negotiated prices. The selling stockholder may use any one or more of the following methods when
selling shares:
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block transactions (which may involve crosses) and transactions on the Nasdaq Global Market or any other organized market
where the securities may be traded;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its own account;
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ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers;
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sales "at the market" to or through a market maker or into an existing trading market, on an exchange or otherwise;
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sales in other ways not involving market makers or established trading markets, including direct sales to purchasers in
privately negotiated transactions;
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a combination of any such methods of sale; and
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any other method permitted pursuant to applicable law.
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The
selling stockholder may also engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver
shares in connection with these trades.
Broker-dealers
engaged by the selling stockholder may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling
stockholder (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholder does not expect these commissions and
discounts to exceed what is customary in the types of transactions involved. Any profits on the resale of shares of common stock by a broker-dealer acting as principal might be deemed to be
underwriting discounts or commissions under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, attributable to the sale of shares will be borne by the
selling stockholder. The selling stockholder may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares if liabilities are imposed on
that person under the Securities Act.
In
connection with the sale of the shares of common stock or otherwise, the selling stockholder may enter into hedging transactions with broker-dealers, which may in turn engage in short
sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholder may also sell shares of common stock short and deliver shares of common stock covered by
this prospectus supplement to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholder may also loan or pledge shares of common stock to
broker-dealers that in turn may sell such shares.
The
selling stockholder may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by him and, if he defaults in the performance of his
secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus supplement after we have filed an update to this prospectus
supplement under Rule 424(b) under the Securities Act or other applicable provision of the Securities Act amending the list of selling stockholder to include the pledgee, transferee or other
successors in interest as selling stockholder under this prospectus supplement.
The
selling stockholder also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus supplement and may sell the shares of common stock from time to time under this prospectus supplement after we have filed an update to this prospectus
supplement under Rule 424(b) or other applicable provision of the Securities Act amending the list of selling stockholder to include the pledgee, transferee or other successors in interest as
selling stockholder under this prospectus supplement. The selling stockholder also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus supplement.
The
selling stockholder and any broker-dealers or agents that are involved in selling the shares may be deemed to be "underwriters" within the meaning of the Securities Act in connection
with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, such broker-dealers or agents and any profit realized on the resale of the shares purchased by them
may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will
be filed that will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling stockholder and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers. Under the securities
laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. There can be no assurance that the selling stockholder will sell any
or all of the shares of
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common
stock registered pursuant to the shelf registration statement, of which this prospectus supplement and the accompanying prospectus are deemed a part.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of our common stock and activities of the selling stockholder, which may limit
the timing of purchases and sales of any of the shares of common stock by the selling stockholder and any other participating person. Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of common stock to engage in passive market-making activities with respect to the shares of common stock. Passive market-making involves transactions in which
a market-maker acts as both our underwriter and as a purchaser of our common stock in the secondary market. All of the foregoing may affect the marketability of the shares of common stock and the
ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
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LEGAL MATTERS
Morrison & Foerster LLP, San Francisco, California, will pass upon the validity of the securities offered by this
prospectus supplement and the accompanying prospectus.
EXPERTS
The consolidated financial statements and schedule of Clean Energy Fuels Corp. as of December 31, 2008 and 2009 and for each of
the years in the three-year period ended December 31, 2009, and management's assessment of the effectiveness of internal control over financial reporting as of December 31,
2009 have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein and upon the authority
of said firm as experts in auditing and accounting.
The
audit report on the effectiveness of internal control over financial reporting as of December 31, 2009, contains an explanatory paragraph that states that management's
assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of BAF Technologies, Inc., which constituted 4% of total
assets as of December 31, 2009 and 5% of revenues for the year then ended. The audit of internal control over financial reporting of Clean Energy Fuels Corp. and subsidiaries also did not
include an evaluation of the internal control over financial reporting of BAF Technologies, Inc.
The
audit report covering the December 31, 2009, consolidated financial statements refers to a change in the method of accounting for business combinations.
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AVAILABLE INFORMATION
We are required to file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and
copy any documents filed by us at the SEC's public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. Our filings with the SEC are also available to the public through the SEC's web site at http://www.sec.gov.
We
have filed with the SEC an automatic shelf registration statement on Form S-3, of which this prospectus supplement and accompanying prospectus are a part, relating
to the securities covered by this prospectus supplement. This prospectus supplement and accompanying prospectus are a part of the registration statement and do not contain all the information in the
registration statement. Whenever a reference is made in this prospectus supplement and accompanying prospectus to a contract or other document of the company, the reference is only a summary and you
should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document. You may review a copy of the registration statement at the SEC's public
reference room in Washington, D.C., as well as through the SEC's web site.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC and applicable law permits us to "incorporate by reference" into this prospectus supplement and accompanying prospectus
information that we have or may in the future file with or furnish to the SEC. This means that we can disclose important information by referring you to those documents. You should read carefully the
information incorporated herein by reference because it is an important part of this prospectus supplement and accompanying prospectus.
We
incorporate by reference into this prospectus supplement and accompanying prospectus the following documents or information filed with the SEC (other than, in each case, documents or
information deemed to have been furnished and not filed in accordance with SEC rules):
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Our Annual Report on Form 10-K for the year ended December 31, 2009;
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Our Quarterly Report on Form 10-Q for the period ended March 31, 2010;
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Our Quarterly Report on Form 10-Q for the period ended June 30, 2010;
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Our Current Reports on Form 8-K filed with the SEC on February 18, 2010, May 28, 2010,
June 30, 2010, and July 6, 2010;
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The description of our common stock contained in the Registration Statement on Form S-1, which became
effective on May 24, 2007, including any amendment or report filed for the purposes of updating such description; and
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All documents filed by Clean Energy Fuels Corp. under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or after the date of this prospectus and before the termination of this offering shall be deemed to be incorporated by reference into this prospectus
from the respective dates of filing of such documents.
Any
information that we subsequently file with the SEC that is incorporated by reference as described above will automatically update and supersede any previous information that is part
of this prospectus supplement and accompanying prospectus. Any statement so updated or superseded shall not be deemed, except as so updated or superseded, to constitute a part of this prospectus
supplement or accompanying prospectus.
We
will provide without charge to each person, including any beneficial owner, to whom this prospectus supplement is required to be delivered, upon his or her written or oral request, a
copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus supplement and accompanying prospectus excluding exhibits to those documents
unless they are specifically incorporated by reference into those documents. Written or telephone requests should be directed to Clean Energy Fuels Corp., Attn: Investor Relations, 3020 Old Ranch
Parkway, Suite 400, Seal Beach, California 90740, (562) 493-2804.
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PROSPECTUS
Clean Energy Fuels Corp.
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
We or selling securityholders may from time to time offer to sell common stock, preferred stock, debt securities, depositary shares, warrants, or
units.
Each
time we or a selling securityholder sells securities pursuant to this prospectus, we will provide a supplement to this prospectus. Prospectus supplements will be filed and other
offering material may be provided at later dates that will contain specific information about the offering and specific terms of the securities offered. You should read this prospectus and the
applicable prospectus supplement carefully before you invest in our securities.
Our
common stock is listed on the Nasdaq Global Market and trades under the symbol "CLNE." We or selling securityholders may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. The applicable prospectus supplement will contain information, where applicable, as to any other listing,
if any, of the securities covered by the applicable prospectus supplement.
Investing in our securities involves a high degree of risk. See the "Risk Factors" section of our filings with the SEC and the applicable
prospectus supplement for certain risks that you should consider before investing in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is July 30, 2010.
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ABOUT THIS PROSPECTUS
This document is called a prospectus and is part of a registration statement that we have filed with the Securities and Exchange
Commission, or the SEC, using a "shelf" registration process. Under this shelf registration process, we or selling securityholders may, from time to time, sell any combination of the securities
described in this prospectus in one or more offerings in amounts to be determined from time to time.
This
prospectus provides you with a general description of the securities we or selling securityholders may offer. Each time we or selling securityholders offer a type or series of
securities described in this prospectus, we will provide a prospectus supplement, or information that is incorporated by reference into this prospectus, containing more specific information about the
terms of the securities that are being offered. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings and
securities. We may also add, update or change in the prospectus supplement any of the information contained in this prospectus or in the documents that we have incorporated by reference into this
prospectus, including without limitation, a discussion of any risk factors or other special considerations that apply to these offerings or securities or the specific plan of distribution. If there is
any inconsistency between the information in this prospectus and a prospectus supplement or information incorporated by reference having a later date,
you should rely on the information in that prospectus supplement or incorporated information having a later date. We urge you to read carefully this prospectus, any applicable prospectus supplement
and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading "Where You Can Find More Information," before buying any of the
securities being offered.
You
should rely only on the information we have provided or incorporated by reference in this prospectus, any applicable prospectus supplement and any related free writing prospectus. We
have not authorized anyone to provide you with different information. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this
prospectus, any applicable prospectus supplement or any related free writing prospectus.
The
registration statement containing this prospectus, including exhibits to the registration statement, provides additional information about us and the securities offered under this
prospectus and any prospectus supplement. We have filed and plan to continue to file other documents with the SEC that contain information about us and our business. Also, we will file legal documents
that control the terms of the securities offered by this prospectus as exhibits to the reports that we file with the SEC. The registration statement and other reports can be read at the SEC web site
or at the SEC offices mentioned under the heading "Available Information."
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AVAILABLE INFORMATION
We are required to file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and
copy any documents filed by us at the SEC's public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. Our filings with the SEC are also available to the public through the SEC's web site at http://www.sec.gov.
We
have filed with the SEC a registration statement on Form S-3, of which this prospectus is a part, relating to the securities covered by this prospectus. This
prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other
document of the Company, the
reference is only a summary and you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document. You may review a copy of the registration
statement at the SEC's public reference room in Washington, D.C., as well as through the SEC's web site.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC and applicable law permits us to "incorporate by reference" into this prospectus information that we have or may in the future
file with or furnish to the SEC. This means that we can disclose important information by referring you to those documents. You should read carefully the information incorporated herein by reference
because it is an important part of this prospectus.
We
incorporate by reference into this prospectus the following documents or information filed with the SEC (other than, in each case, documents or information deemed to have been
furnished and not filed in accordance with SEC rules):
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Our Annual Report on Form 10-K for the year ended December 31, 2009;
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Our Quarterly Report on Form 10-Q for the period ended March 31, 2010;
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Our Current Reports on Form 8-K filed with the SEC on February 18, 2010, May 28, 2010,
June 30, 2010, and July 6, 2010;
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The description of our common stock contained in the Registration Statement on Form S-1, which became
effective on May 24, 2007, including any amendment or report filed for the purposes of updating such description; and
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All documents filed by Clean Energy Fuels Corp. under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or after the date of this prospectus and before the termination of this offering shall be deemed to be incorporated by reference into this prospectus
from the respective dates of filing of such documents.
Any
information that we subsequently file with the SEC that is incorporated by reference as described above will automatically update and supersede any previous information that is part
of this prospectus.
We
will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon his or her written or oral request, a copy of any or all
documents referred to above which have been or may be incorporated by reference into this prospectus excluding exhibits to those documents unless they are specifically incorporated by reference into
those documents. Written or telephone requests should be directed to Clean Energy Fuels Corp., Attn: Investor Relations, 3020 Old Ranch Parkway, Suite 400, Seal Beach, California 90740,
(562) 493-2804.
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FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement, including the documents we incorporate by reference therein or that are
deemed to be a part thereof, contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of the
Exchange Act. Such statements include, without limitation, statements regarding our expectations, hopes or intentions regarding the future. These forward looking statements can often be identified by
their use of words such as "expect," "believe," "anticipate," "outlook," "could," "target," "project," "intend," "plan," "seek," "estimate," "should," "may" and "assume," as well as variations of such
words and similar expressions referring to the future. They also include statements concerning anticipated revenues, income or loss, capital expenditures, dividends, capital structure or other
financial terms. For a non-exhaustive list of certain forward-looking statements that are incorporated by reference into or deemed to be a part of this prospectus and any prospectus
supplement, please refer to the "Cautionary Note Regarding Forward-Looking Statements" in our Annual Report on Form 10-K for the year ended December 31, 2009.
Forward-looking
statements involve certain risks and uncertainties, many of which are beyond our control. If any of those risks and uncertainties materialize, actual results could differ
materially from those discussed in any such forward-looking statement. Among the factors that could cause actual results to differ materially from those discussed in forward-looking statements are
those discussed under the heading "Risk Factors" and in other sections of (i) our Annual Report on Form 10-K for the year ended December 31, 2009, (ii) our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, (iii) our other reports filed from time to time with the SEC that are incorporated by reference
into this prospectus and any prospectus supplement, or (iv) any prospectus supplement to this prospectus. See "Available Information" and "Incorporation of Certain Information by Reference" for
information about how to obtain copies of those documents.
All
forward-looking statements in this prospectus, any prospectus supplement and the documents incorporated by reference therein are made only as of the date of the document in which
they are contained, based on information available to us as of the date of that document, and we caution you not to place undue reliance on forward-looking statements in light of the risks and
uncertainties associated with them. Except as required by law, we undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.
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RISK FACTORS
Investing in our securities involves significant risks. You should review carefully the risks and uncertainties described under the
heading "Risk Factors" contained in, or incorporated by reference into, this prospectus, the applicable prospectus supplement, and any related free writing prospectus. Each of the referenced risks and
uncertainties could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities. Additional risks not known to us
or that we believe are immaterial may also adversely affect our business, operating results and financial condition and the value of an investment in our securities.
DESCRIPTION OF SECURITIES WE MAY OFFER
We may issue, or selling securityholders may offer, from time to time, in one or more offerings the following
securities:
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shares of common stock;
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shares of preferred stock;
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debt securities;
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warrants exercisable for debt securities, common stock or preferred stock;
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or rights to purchase any of such securities; and
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units of debt securities, common stock, preferred stock, rights or warrants, in any combination.
This
prospectus contains a summary of the material general terms of the various securities that we or selling securityholders may offer. The specific terms of the securities will be
described in a prospectus supplement, information incorporated by reference, or free writing prospectus, which may be in addition to or different from the general terms summarized in this prospectus.
Where applicable, the prospectus supplement, information incorporated by reference or free writing prospectus will also describe any material United States federal income tax considerations relating
to the securities offered and indicate whether the securities offered are or will be listed on any securities exchange. The
summaries contained in this prospectus and in any prospectus supplements, information incorporated by reference or free writing prospectus may not contain all of the information that you would find
useful. Accordingly, you should read the actual documents relating to any securities sold pursuant to this prospectus. See "Available Information" and "Incorporation of Certain Information by
Reference" for information about how to obtain copies of those documents.
The
terms of any particular offering, the initial offering price and the net proceeds to us will be contained in the prospectus supplement, information incorporated by reference or free
writing prospectus relating to such offering.
DESCRIPTION OF CAPITAL STOCK
General
The following summary of the material features of our capital stock does not purport to be complete and is subject to, and qualified in
its entirety by, the provisions of our restated certificate of incorporation, our amended and restated bylaws and other applicable law. See "Available Information."
Pursuant
to our restated certificate of incorporation, we are currently authorized to issue 149,000,000 shares of common stock, par value $0.0001 per share, and 1,000,000 shares of
preferred stock, par value $0.0001 per share. The authorized shares of our common stock and preferred stock will be available for issuance without further action by our stockholders, unless such
action is required by applicable law or the rules of any stock exchange or automated quotation system on which our
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securities
may be listed or traded. If the approval of our stockholders is not required, our board of directors may determine not to seek stockholder approval.
Common Stock
Subject to provisions of the Delaware General Corporation Law, or the DGCL, and to any future rights which may be granted to the
holders of any series of our preferred stock, dividends are paid on our common stock when and as declared by our board of directors out of funds legally available for dividend payments.
Each holder of shares of our common stock is entitled to one vote per share on all matters submitted to a vote of our common
stockholders. Holders of our common stock are not entitled to cumulative voting rights.
If we are liquidated, holders of our common stock are entitled to receive all remaining assets available for distribution to
stockholders after satisfaction of our liabilities and the preferential rights of any of our preferred stock that may be outstanding at that time.
The holders of our common stock do not have any preemptive, conversion or redemption rights by virtue of their ownership of the common
stock.
Preferred Stock
Shares of our preferred stock may be issued in one or more series, and our board of directors is authorized to determine the
designation and to fix the number of shares of each series. Our board of directors is further authorized to fix and determine the dividend rate, premium or redemption rates, conversion rights, voting
rights, preferences, privileges, restrictions and other variations granted to or imposed upon any wholly unissued series of our preferred stock.
Prior
to the issuance of shares of a series of preferred stock, our board of directors will adopt resolutions and file a certificate of designation with the SEC. The certificate
of designation will fix for each series the designation and number of shares and the rights, preferences, privileges and restrictions of the shares including, but not limited to, the
following:
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the maximum number of shares in the series and the distinctive designation;
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voting rights, if any, of the preferred stock;
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the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation applicable to the preferred stock;
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whether dividends are cumulative or non-cumulative, and if cumulative, the date from which dividends on the
preferred stock will accumulate;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights upon the liquidation,
dissolution or winding up of our affairs;
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the terms and conditions, if applicable, upon which the preferred stock will be convertible into common stock, another
series of preferred stock, or any other class of securities being registered hereby, including the conversion price (or manner of calculation) and conversion period;
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the provision for redemption, if applicable, of the preferred stock;
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the provisions for a sinking fund, if any, for the preferred stock;
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liquidation preferences;
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any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the class
or series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and
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any other specific terms, preferences, rights, limitations or restrictions of the preferred stock.
There
shall be no limitation or restriction on any variation between any of the different series of preferred stock as to the designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or restrictions thereof; and the several series of preferred stock may, except as otherwise expressly provided in any prospectus
supplement, document incorporated by reference or any free writing prospectus, as applicable, vary in any and all respects as fixed and
determined by the resolution or resolutions of our board of directors or any committee thereof, providing for the issuance of the various series;
provided,
however
, that all shares of any one series of preferred stock shall have the same designation, preferences and relative, participating, optional or other special rights and
qualifications, limitations and restrictions.
Except
as otherwise required by law, or as otherwise fixed by resolution or resolutions of our board of directors, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder on the record date.
Certain Anti-Takeover Matters
Our restated certificate of incorporation and amended and restated bylaws include a number of provisions that may have the effect of
encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover
attempts. These provisions include:
Our amended and restated bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination of
candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of such stockholder proposals must be timely and given in
writing to our Secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 60 days or
more than 90 days prior to the anniversary date of the annual meeting for the preceding year. The notice must contain certain information specified in the amended and restated bylaws.
Our charter provides for 1,000,000 authorized shares of preferred stock. The existence of authorized but unissued shares of preferred
stock may enable the board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in
the due exercise of its fiduciary obligations, the board of directors were to determine that a takeover proposal is not in our best interests, the board of directors could cause shares of preferred
stock to be issued without stockholder approval in one or more private
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offerings
or other transactions that might dilute the voting or other rights of the proposed acquiror or insurgent stockholder or stockholder group. In this regard, the charter grants our board of
directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and
assets available for distribution to holders of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of such holders and may have the effect
of delaying, deterring or preventing a change of control of us.
We are subject to the provisions of Section 203 of the Delaware General Corporation Law regulating corporate takeovers. In
general, Section 203 prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date that the
stockholder became an interested stockholder, unless:
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the transaction is approved by the board before the date the interested stockholder attained that status;
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
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on or after the date the business combination is approved by the board, the business combination is authorized at a
meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder.
Section 203
defines "business combination" to include the following:
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any sale, lease, exchange, mortgage, transfer, pledge or other disposition of 10% or more of the assets of the corporation
involving the interested stockholder; a
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any merger or consolidation involving the corporation or any majority-owned subsidiary and the interested stockholder;
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subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation or by any
majority-owned subsidiary of any stock of the corporation or of such subsidiary to the interested stockholder;
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any transaction involving the corporation or any majority-owned subsidiary that has the effect of increasing the
proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation or any majority-owned subsidiary.
In
general, Section 203 defines "interested stockholder" to be any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any
entity or person affiliated with or controlling or controlled by any of these entities or persons.
A
Delaware corporation may opt out of this provision either with an express provision in its original Certificate of Incorporation or in an amendment to its Certificate of Incorporation
or Bylaws approved by its stockholders. We have not opted out of this provision. Section 203 could prohibit or delay mergers or other takeover or change in control attempts and, accordingly,
may discourage attempts to acquire us.
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Limitation of Liability and Indemnification Matters
Our restated certificate of incorporation provides that a director of ours will not be liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except in certain cases where liability is mandated by the Delaware General Corporation Law. Our amended and restated bylaws also provide for
indemnification, to the fullest extent permitted by law, by us of any person made or threatened to be made a party to, or who is involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was our director or officer, or at our request, serves or served as a director or
officer of any other enterprise, against all expenses, liabilities, losses and claims actually incurred or suffered by such person in connection with the action, suit or proceeding. Our amended and
restated bylaws also provide that, to the extent authorized from time to time by our board of directors, we may provide indemnification to any one or more employees and other agents of ours to the
extent and effect determined by the board of directors to be appropriate and authorized by the Delaware General Corporation Law. Our amended and restated bylaws also permit us to purchase and maintain
insurance for the foregoing and we expect to maintain such insurance.
Listing
Our common stock is listed on the Nasdaq Global Market and trades under the symbol "CLNE."
Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is Computershare Trust Company, N.A.
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of the base indenture to be entered into between us and an entity
identified in the applicable prospectus supplement, as trustee, under which the debt securities are to be issued from time to time. We have filed a form of the base indenture as an exhibit to the
registration statement of which this prospectus is a part. When the debt securities are offered in the future, the applicable offering material will explain the particular terms of those securities
and the extent to which the general provisions may apply. The base indenture, as it may be supplemented, amended or modified from time to time, is referred to in this prospectus as the "indenture."
Wherever particular sections or defined terms of the indenture are referred to, it is intended that such sections or defined terms shall be incorporated herein by reference. In this section of the
prospectus, the term "the Company" refers only to Clean Energy Fuels Corp. and not to any of its subsidiaries.
This
summary and any description of the indenture and any debt securities in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is
subject to and is qualified in its entirety by reference to all the provisions of the indenture, any indenture supplement and the terms of the debt securities, including, in each case, the definitions
therein of certain terms. We will file each of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is a
part on or before the time we issue a series of debt securities. See "Available Information" and "Incorporation of Certain Information by Reference" for information on how to obtain a copy of a
document when it is filed. The specific terms of the debt securities as described in a prospectus supplement, information incorporated by reference, or free writing prospectus will supplement and, if
applicable, may modify or replace the general terms described in this section.
The
debt securities will represent unsecured general obligations of the Company, unless otherwise provided in the applicable offering material. As indicated in the applicable offering
material, the debt securities will be either senior debt or subordinated debt.
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General
The indenture does not limit the amount of debt securities that may be issued thereunder. The applicable prospectus supplement,
documents incorporated by reference, or free writing prospectus with respect to any debt securities will set forth the following terms of the debt securities offered pursuant
thereto:
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the title and series of such debt securities;
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any limit upon the aggregate principal amount of such debt securities of such series;
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whether such debt securities will be in global or other form;
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the date or dates and method or methods by which principal and any premium on such debt securities is payable;
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the interest rate or rates (or method by which such rate will be determined), if any;
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the dates on which any such interest will be payable and the method of payment;
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whether and under what circumstances any additional amounts are payable with respect to such debt securities;
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the notice, if any, to holders of such debt securities regarding the determination of interest on a floating rate debt
security;
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the basis upon which interest on such debt securities shall be calculated, if other than that of a 360 day year of
twelve 30-day months;
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the place or places where the principal of and interest or additional amounts, if any, on such debt securities will be
payable;
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any redemption or sinking fund provisions, or the terms of any repurchase at the option of the holder of the debt
securities;
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the denominations of such debt securities, if other than $1,000 and integral multiples thereof;
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any rights of the holders of such debt securities to convert the debt securities into, or exchange the debt securities
for, other securities or property;
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the terms, if any, on which payment of principal or any premium, interest or additional amounts on such debt securities
will be payable in a currency other than U.S. dollars;
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the terms, if any, by which the amount of payments of principal or any premium, interest or additional amounts on such
debt securities may be determined by reference to an index, formula, financial or economic measure or other methods;
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if other than the principal amount hereof, the portion of the principal amount of such debt securities that will be
payable upon declaration of acceleration of the maturity thereof or provable in bankruptcy;
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any events of default or covenants in addition to or in lieu of those described herein and remedies therefor;
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whether such debt securities will be subject to defeasance or covenant defeasance;
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the terms, if any, upon which such debt securities are to be issuable upon the exercise of warrants, units or rights;
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any trustees and any authenticating or paying agents, transfer agents or registrars or any other agents with respect to
such debt securities;
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the terms, if any, on which such debt securities will be subordinate to other debt of the Company;
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whether such debt securities will be guaranteed and the terms thereof;
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whether such debt securities will be secured by collateral and the terms of such security; and
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any other specific terms of such debt securities and any other deletions from or additions to or modifications of the
indenture with respect to such debt securities.
Debt
securities may be presented for exchange, conversion or transfer in the manner, at the places and subject to the restrictions set forth in the debt securities and the applicable
offering material. Such services will be provided without charge, other than any tax or other governmental charge payable in connection therewith, but subject to the limitations provided in the
indenture.
The
indenture does not contain any covenant or other specific provision affording protection to holders of the debt securities in the event of a highly leveraged transaction or a change
in control of the Company, except to the limited extent described below under "Consolidation, Merger and Sale of Assets."
Modification and Waiver
The indenture provides that supplements to the indenture and the applicable supplemental indentures may be made by the Company and the
trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the indenture or of modifying in any manner the rights of the holders of debt
securities of a series under the indenture or the debt securities of such series, with the consent of the holders of a majority (or such greater amount as is provided for a particular series of debt
securities) in principal amount of the outstanding debt securities issued under such indenture that are affected by the supplemental indenture, voting as a single class; provided that no such
supplemental indenture may, without the consent of the holder of each such debt security affected thereby, among other things:
(a) change
the stated maturity of the principal of, or any premium, interest or additional amounts on, such debt securities, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest or any additional amounts thereon, or reduce any premium payable on redemption thereof or otherwise, or reduce the amount of the principal of
debt securities issued with original issue discount that would be due and payable upon an acceleration of the maturity thereof or the amount thereof provable in bankruptcy, or change the redemption
provisions or adversely affect the right of repayment at the option of the holder, or change the place of payment or currency in which the principal of, or any premium, interest or additional amounts
with respect to any debt security is payable, or impair or affect the right of any holder of debt securities to institute suit for the payment after such payment is due (except a rescission and
annulment of acceleration with respect to a series of debt securities by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of such series and a
waiver of the payment default that resulted from such acceleration);
(b) reduce
the percentage of outstanding debt securities of any series, the consent of the holders of which is required for any such supplemental indenture, or the consent
of whose holders is required for any waiver or reduce the quorum required for voting;
(c) modify
any of the provisions of the sections of such indenture relating to supplemental indentures with the consent of the holders, waivers of past defaults or
securities redeemed in part, except to increase any such percentage or to provide that certain other provisions of such indenture cannot be modified or waived without the consent of each holder
affected thereby; or
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(d) make
any change that adversely affects the right to convert or exchange any security into or for common stock or other securities, cash or other property in accordance
with the terms of the applicable debt security.
The
indenture provides that a supplemental indenture that changes or eliminates any covenant or other provision of the indenture that has expressly been included solely for the benefit
of one or more particular series of debt securities, or that modifies the rights of the holders of such series with respect to such covenant or other provision, shall be deemed not to affect the
rights under the indenture of the holders of debt securities of any other series.
The
indenture provides that the Company and the trustee may, without the consent of the holders of any series of debt securities issued thereunder, enter into additional supplemental
indentures for one of the following purposes:
(a) to
evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company in such indenture and in the
debt securities issued thereunder;
(b) to
add to the covenants of the Company or to surrender any right or power conferred on the Company pursuant to the indenture;
(c) to
establish the form and terms of debt securities issued thereunder;
(d) to
evidence and provide for a successor trustee under such indenture with respect to one or more series of debt securities issued thereunder or to provide for or
facilitate the administration of the trusts under such indenture by more than one trustee;
(e) to
cure any ambiguity, to correct or supplement any provision in the indenture that may be defective or inconsistent with any other provision of the indenture or to make
any other provisions with respect to matters or questions arising under such indenture; provided that no such action pursuant to this clause (e) shall adversely affect the interests of the
holders of any series of debt securities issued thereunder in any material respect;
(f) to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of
securities under the indenture;
(g) to
add any additional events of default with respect to all or any series of debt securities;
(h) to
supplement any of the provisions of the indenture as may be necessary to permit or facilitate the defeasance and discharge of any series of debt securities, provided
that such action does not adversely affect the interests of any holder of an outstanding debt security of such series or any other security in any material respect;
(i) to
make provisions with respect to the conversion or exchange rights of holders of debt securities of any series;
(j) to
pledge to the trustee as security for the debt securities of any series any property or assets;
(k) to
add guarantees in respect of the debt securities of one or more series;
(l) to
change or eliminate any of the provisions of the indenture, provided that any such change or elimination become effective only when there is no security of any series
outstanding created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
(m) to
provide for certificated securities in addition to or in place of global securities;
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(n) to
qualify such indenture under the Trust Indenture Act of 1939, as amended;
(o) with
respect to the debt securities of any series, to conform the text of the indenture or the debt securities of such series to any provision of the description thereof
in the Company's offering memorandum or prospectus relating to the initial offering of such debt securities, to the extent that such provision, in the good faith judgment of the Company, was intended
to be a verbatim recitation of a provision of the indenture or such securities; or
(p) to
make any other change that does not adversely affect the rights of holders of any series of debt securities issued thereunder in any material respect.
Events of Default
Unless otherwise provided in any applicable prospectus supplement, documents incorporated by reference or free writing prospectus, the
following will be events of default under the indenture with respect to each series of debt securities issued thereunder:
(a) default
for 30 days in the payment when due of interest on, or any additional amount in respect of, any series of debt securities;
(b) default
in the payment of principal or any premium on any series of the debt securities outstanding under the indenture when due;
(c) default
in the payment, if any, of any sinking fund installment when and as due by the terms of any debt security of such series, subject to any cure period that may be
specified in any debt security of such series;
(d) failure
by the Company for 60 days after receipt by registered or certified mail of written notice from the trustee upon instruction from holders of at least 25%
in principal amount of the then outstanding debt securities of such series to comply with any of the other agreements in the indenture and stating that such notice is a "Notice of Default" under the
indenture; provided, that if such failure cannot be remedied within such 60-day period, such period shall be automatically extended by another 60 days so long as (i) such
failure is subject to cure and (ii) the Company is using commercially reasonable efforts to cure such failure; and provided, further, that a failure to comply with any such other agreement in
the indenture that results from a change in generally accepted accounting principles shall not be deemed to be an event of default;
(e) certain
events of bankruptcy, insolvency or reorganization of the Company; and
(f) any
other event of default provided in a supplemental indenture with respect to a particular series of debt securities, provided that any event of default that results
from a change in generally accepted accounting principles shall not be deemed to be an event of default.
In
case an event of default specified in clause (a) or (b) above shall occur and be continuing with respect to any series of debt securities, holders of at least 25%, and
in case an event of default specified in any clause other than clause (a), (b) or (e) above shall occur and be continuing with respect to any series of debt securities, holders of
at least a majority, in aggregate principal amount of the debt securities of such series then outstanding may declare the principal (or, in the case of discounted debt securities, the amount specified
in the terms thereof) of such series to be due and payable. If an event of default described in (e) above shall occur and be continuing then the principal amount (or, in the case of discounted
debt securities, the amount specified in the terms thereof) of all the debt securities outstanding shall be and become due and payable immediately, without notice or other action by any holder or the
trustee, to the full extent permitted by law. Any past or existing default or event of default with respect to particular series of debt securities under such indenture may be waived by the holders of
a majority in aggregate principal amount of the outstanding debt securities of such series, except in each case a continuing default (1) in the payment of the principal of, any
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premium
or interest on, or any additional amounts with respect to, any debt security of such series, or (2) in respect of a covenant or provision which cannot be modified or amended without the
consent of each holder affected thereby.
The
indenture provides that the trustee may withhold notice to the holders of any default with respect to any series of debt securities (except in payment of principal of or interest or
premium on, or sinking fund payment in respect of, the debt securities) if the trustee considers it in the interest of holders to do so.
The
indenture contains a provision entitling the trustee to be indemnified by the holders before proceeding to exercise any trust or power under the indenture at the request of such
holders. The indenture provides that the holders of a majority in aggregate principal amount of the then outstanding debt securities of any series may direct the time, method and place of conducting
any proceedings for any remedy available to the trustee or of exercising any trust or power conferred upon the trustee with respect to the debt securities of such series; provided, however, that the
trustee may decline to follow any such direction if, among other reasons, the trustee determines in good faith that the actions or proceedings as directed may not lawfully be taken or would be unduly
prejudicial to the holders of the debt securities of such series not joining in such direction. The right of a holder to institute a proceeding with respect to a series of debt securities will be
subject to certain conditions precedent including, without limitation, that in case of an event of default specified in clause (a), (b) or (e) of the first paragraph above under
"Events of Default," holders of at least 25%, or in case of an event of default other than specified in clause (a), (b) or (e) of the first paragraph above under
"Events of Default", holders of at least a majority, in aggregate principal amount of the debt securities of such series then outstanding make a written request upon the trustee to
exercise its powers under such indenture, indemnify the trustee and afford the trustee reasonable opportunity to act. Notwithstanding the foregoing, the holder has an absolute right to receipt of the
principal of, premium, if any, and interest when due on the debt securities, to require conversion of debt securities if such indenture provides for convertibility at the option of the holder and to
institute suit for the enforcement thereof.
Consolidation, Merger and Sale of Assets
The indenture provides that the Company may not directly or indirectly consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its assets and properties and the assets and properties of its subsidiaries (taken as a whole) to another person in one or
more related transactions unless the successor person is a person organized under the laws of any domestic jurisdiction and assumes the Company's obligations on the debt securities issued thereunder,
and under the indenture, and after giving effect thereto no event of default, and no event that, after notice or lapse of time or both, would become an event of default, shall have occurred and be
continuing, and that certain other conditions are met.
Certain Covenants
Payment of Principal, any Premium, Interest or Additional Amounts.
The Company will duly and punctually pay the principal of, and
premium and
interest on or any additional amounts payable with respect to, any debt securities of any series in accordance with their terms.
Maintenance of Office or Agency.
The Company will be required to maintain an office or agency in each place of payment for each series
of debt
securities for notice and demand purposes and for the purposes of presenting or surrendering debt securities for payment, registration of transfer, or exchange.
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Reports.
So long as any debt securities of a particular series are outstanding under the indenture, the Company will file with the
trustee, within
30 days after the Company has filed the same with the Commission, unless such reports are available on the Commission's EDGAR filing system (or any successor thereto), copies of the annual
reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and regulations.
Additional Covenants.
Any additional covenants of the Company with respect to any series of debt securities will be set forth in the
applicable
prospectus supplement, documents incorporated by reference or free writing prospectus relating thereto.
Conversion Rights
The terms and conditions, if any, upon which the debt securities are convertible into common stock or preferred stock will be set forth
in the applicable prospectus supplement, documents incorporated by reference or free writing prospectus relating thereto. Such terms will include the conversion price (or manner of calculation
thereof), the conversion period, provisions as to whether conversion will be at the option of the holders or the Company, the events requiring an adjustment of the conversion price and provisions
affecting conversion in the event of redemption of such debt securities and any restrictions on conversion.
Redemption; Repurchase at the Option of the Holder; Sinking Fund
The terms and conditions, if any, upon which (a) the debt securities are redeemable at the option of the Company, (b) the
holder of debt securities may cause the Company to repurchase such debt securities or (c) the debt securities are subject to any sinking fund will be set forth in the applicable prospectus
supplement, documents incorporated by reference or free writing prospectus relating thereto.
Repurchases on the Open Market
The Company or any affiliate of the Company may at any time or from time to time repurchase any debt security in the open market or
otherwise. Such debt securities may, at the option of the Company or the relevant affiliate of the Company, be held, resold or surrendered to the trustee for cancellation.
Discharge, Defeasance and Covenant Defeasance
The indenture provides, with respect to each series of debt securities issued thereunder, that the Company may satisfy and discharge
its obligations under such debt securities of a series and such indenture with respect to debt securities of such series if:
(a) all
debt securities of such series previously authenticated and delivered, with certain exceptions, have been accepted by the trustee for cancellation; or
(b) (i)
the debt securities of such series have become due and payable, or mature within one year, or all of them are to be called for redemption within one year under
arrangements satisfactory to the trustee for giving the notice of redemption and the Company irrevocably
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deposits
in trust with the trustee, as trust funds solely for the benefit of the holders of such debt securities, for that purpose, money or governmental obligations or a combination thereof
sufficient (in the opinion of a nationally recognized independent registered public accounting firm expressed in a written certification thereof delivered to the trustee) to pay the entire
indebtedness on the debt securities of such series to maturity or redemption, as the case may be, and pays all other sums payable by it under such indenture; and
(ii) the
Company delivers to the trustee an officers' certificate and an opinion of counsel, in each case stating that all conditions precedent provided for in such
indenture relating to the satisfaction and discharge of such indenture with respect to the debt securities of such series have been complied with.
Notwithstanding
such satisfaction and discharge, the obligations of the Company to compensate and indemnify the trustee, to pay additional amounts, if any, in respect of debt securities
in certain circumstances and to convert or exchange debt securities pursuant to the terms thereof and the obligations of the Company and the trustee to hold funds in trust and to apply such funds
pursuant to the terms of the indenture, with respect to issuing temporary debt securities, with respect to the registration, transfer and exchange of debt securities, with respect to the replacement
of mutilated, destroyed, lost or stolen debt securities and with respect to the maintenance of an office or agency for payment, shall in each case survive such satisfaction and discharge.
Unless
inapplicable to debt securities of a series pursuant to the terms thereof, the indenture provides that (i) the Company will be deemed to have paid and will be discharged
from any and all obligations in respect of the debt securities issued thereunder of any series, and the provisions of such indenture will, except as noted below, no longer be in effect with respect to
the debt securities of such series ("defeasance") and (ii) (1) the Company may omit to comply with the covenant under "Consolidation, Merger and Sale of Assets" and any
other additional covenants established pursuant to the terms of such series, and such omission shall be deemed not to be an event of default under clause (d) or (f) of the first
paragraph of "Events of Default" and (2) the occurrence of any event described in clause (f) of the first paragraph of "Events of Default" shall not be deemed
to be an event of default, in each case with respect to the outstanding debt securities of such series ((1) and (2) of this clause (ii), "covenant defeasance"); provided that the
following conditions shall have been satisfied with respect to such series:
(a) the
Company has irrevocably deposited in trust with the trustee as trust funds solely for the benefit of the holders of the debt securities of such series, for payment
of the principal of and interest of the debt securities of such series, money or government obligations or a combination thereof sufficient (in the opinion of a nationally recognized independent
registered public accounting firm expressed in a written certification thereof delivered to the trustee) without consideration of any reinvestment to pay and discharge the principal of and accrued
interest on the outstanding debt securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the trustee), as the case may be;
(b) such
defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, such indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no
event of default or event which with notice or lapse of time would become an event of default with respect to such debt securities of such series shall have occurred
and be continuing on the date of such deposit;
(d) the
Company shall have delivered to such trustee an opinion of counsel as described in the indenture to the effect that the holders of the debt securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a result of the Company's exercise of its
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option
under this provision of such indenture and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and
defeasance or covenant defeasance had not occurred;
(e) the
Company has delivered to the trustee an officers' certificate and an opinion of counsel, in each case stating that all conditions precedent provided for in such
indenture relating to the defeasance contemplated have been complied with;
(f) if
the debt securities are to be redeemed prior to their maturity, notice of such redemption shall have been duly given or in another manner satisfactory to the trustee;
and
(g) any
such defeasance or covenant defeasance shall comply with any additional or substitute terms provided for by the terms of such debt securities of such series.
Notwithstanding
a defeasance or covenant defeasance, the Company's obligations with respect to the following in respect of debt securities of such series will survive with respect to
such securities until otherwise terminated or discharged under the terms of the indenture or no debt securities of such series are outstanding:
(a) the
rights of holders of outstanding debt securities of such series to receive payments in respect of the principal of, interest on or premium or additional amounts, if
any, payable in respect of, such debt securities when such payments are due from the trust referred in clause (a) in the preceding paragraph;
(b) the
issuance of temporary debt securities, the registration, transfer and exchange of debt securities, the replacement of mutilated, destroyed, lost or stolen debt
securities and the maintenance of an office or agency for payment and holding payments in trust;
(c) the
rights, powers, trusts, duties and immunities of the trustee, and the Company's obligations in connection therewith; and
(d) the
defeasance or covenant defeasance provisions of the indenture.
Applicable Law
The indenture provides that the debt securities and the indenture will be governed by and construed in accordance with the laws of the
State of New York.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase debt securities, common stock, preferred stock or any combination of these securities. We may issue
the warrants independently or together with any underlying securities, and the warrants may be attached or separate from the underlying securities. We may also issue a series of warrants under a
separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in connection with the warrants of such series and will not assume any
obligation or relationship of agency for or with holders or beneficial owners of warrants.
The
following description is a summary of selected provisions relating to the warrants that we may issue. The summary is not complete. When warrants are offered in the future, a
prospectus supplement, information incorporated by reference or free writing prospectus as applicable, will explain the particular terms of those securities and the extent to which these general
provisions may apply. The specific terms of the warrants as described in a prospectus supplement information, incorporated by reference or free writing prospectus will supplement and, if applicable,
may modify or replace the general terms described in this section.
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This
summary and any description of warrants in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is subject to and is qualified in
its entirety by reference to all the provisions of any specific warrant document or agreement, which we will file with the SEC for incorporation by reference into this prospectus. See "Available
Information" and "Incorporation of Certain Information by Reference" for information on how to obtain a copy of a warrant document when it is filed.
When
we refer to a series of warrants, we mean all warrants issued as part of the same series under the applicable warrant agreement.
Terms
The applicable prospectus supplement, information incorporated by reference or free writing prospectus, may describe the terms of any
warrants that we may offer, including but not limited to the following:
-
-
the title of the warrants;
-
-
the total number of warrants;
-
-
the price or prices at which the warrants will be issued;
-
-
the currency or currencies that investors may use to pay for the warrants;
-
-
the date on which the right to exercise the warrants will commence and the date on which the right will expire;
-
-
whether the warrants will be issued in registered form or bearer form;
-
-
information with respect to book-entry procedures, if any;
-
-
if applicable, the minimum or maximum amount of warrants that may be exercised at any one time;
-
-
if applicable, the designation and terms of the underlying securities with which the warrants are issued and the number of
warrants issued with each underlying security;
-
-
if applicable, the date on and after which the warrants and the related underlying securities will be separately
transferable;
-
-
if applicable, a discussion of material United States federal income tax considerations;
-
-
if applicable, the terms of redemption of the warrants;
-
-
the identity of the warrant agent, if any;
-
-
the procedures and conditions relating to the exercise of the warrants; and
-
-
any other terms of the warrants, including terms, procedures, and limitations relating to the exchange and exercise of the
warrants.
Warrant Agreements
We may issue the warrants in one or more series under one or more warrant agreements, each to be entered into between us and a bank,
trust company, or other financial institution as warrant agent. We may add, replace, or terminate warrant agents from time to time. We may also choose to act as our own warrant agent or may choose one
of our subsidiaries to do so.
The
warrant agent under a warrant agreement will act solely as our agent in connection with the warrants issued under that agreement. The warrant agent will not assume any obligation or
relationship
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of
agency or trust for or with any holders of those warrants. Any holder of warrants may, without the consent of any other person, enforce by appropriate legal action, on its own behalf, its right to
exercise those warrants in accordance with their terms. Until the warrant is properly exercised, no holder of any warrant will be entitled to any rights of a holder of the warrant property purchasable
upon exercise of the warrant.
Form, Exchange, and Transfer
We may issue the warrants in registered form or bearer form. Warrants issued in registered form,
i.e.
, book-entry form, will be
represented by a global security registered in the name of a depository, which will be the holder of all the
warrants represented by the global security. Those investors who own beneficial interests in a global warrant will do so through participants in the depository's system, and the rights of these
indirect owners will be governed solely by the applicable procedures of the depository and its participants. In addition, we may issue warrants in non-global form,
i.e.
, bearer form. If any warrants are
issued in non-global form, warrant certificates may be exchanged for new warrant certificates of
different denominations, and holders may exchange, transfer, or exercise their warrants at the warrant agent's office or any other office indicated in the applicable prospectus supplement, information
incorporated by reference or free writing prospectus.
Prior
to the exercise of their warrants, holders of warrants exercisable for debt securities will not have any of the rights of holders of the debt securities purchasable upon such
exercise and will not be entitled to payments of principal (or premium, if any) or interest, if any, on the debt securities purchasable upon such exercise. Prior to the exercise of their warrants,
holders of warrants exercisable
for shares of preferred stock or common stock will not have any rights of holders of the preferred stock or common stock purchasable upon such exercise and will not be entitled to dividend payments,
if any, or voting rights of the preferred stock or common stock purchasable upon such exercise.
Exercise of Warrants
A warrant will entitle the holder to purchase for cash an amount of securities at an exercise price that will be stated in, or that
will be determinable as described in, the applicable prospectus supplement, information incorporated by reference or free writing prospectus. Warrants may be exercised at any time up to the close of
business on the expiration date set forth in the applicable prospectus supplement, information incorporated by reference or free writing prospectus. After the close of business on the expiration date,
unexercised warrants will become void. Warrants may be redeemed as set forth in the applicable prospectus supplement, information incorporated by reference or free writing prospectus.
Warrants
may be exercised as set forth in the applicable prospectus supplement, information incorporated by reference or free writing prospectus. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, information incorporated by reference or
free writing prospectus, we will forward, as soon as practicable, the securities purchasable upon such exercise. If less than all of the warrants represented by such warrant certificate are exercised,
a new warrant certificate will be issued for the remaining warrants.
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DESCRIPTION OF RIGHTS
General
We may issue rights to purchase our debt securities, common stock, preferred stock or other securities. These rights may be issued
independently or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the rights in such offering. In connection with any offering of such
rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities
remaining unsubscribed for after such offering.
Each
series of rights will be issued under a separate rights agreement which we will enter into with a bank or trust company, as rights agent, all which will be set forth in the relevant
offering material. The rights agent will act solely as our agent in connection with the certificates relating to the rights and will not assume any obligation or relationship of agency or trust with
any holders of rights certificates or beneficial owners of rights.
The
following description is a summary of selected provisions relating to rights that we may offer. The summary is not complete. When rights are offered in the future, a prospectus
supplement, information incorporated by reference or a free writing prospectus, as applicable, will explain the particular terms of those securities and the extent to which these general provisions
may apply. The specific terms of the rights as described in a prospectus supplement, information incorporated by reference, or other offering material will supplement and, if applicable, may modify or
replace the general terms described in this section.
This
summary and any description of rights in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is subject to and is qualified in its
entirety by reference to the rights agreement and the rights certificates. We will file each of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the
registration statement of which this prospectus is a part on or before the time we issue a series of rights. See "Available Information" and "Incorporation of Certain Information by Reference" for
information on how to obtain a copy of a document when it is filed.
The
applicable prospectus supplement, information incorporated by reference or free writing prospectus may describe:
-
-
In the case of a distribution of rights to our stockholders, the date of determining the stockholders entitled to the
rights distribution;
-
-
In the case of a distribution of rights to our stockholders, the number of rights issued or to be issued to each
stockholder;
-
-
the exercise price payable for each share of debt securities, common stock, preferred stock or other securities upon the
exercise of the rights;
-
-
the number and terms of the shares of debt securities, common stock, preferred stock or other securities which may be
purchased per each right;
-
-
the extent to which the rights are transferable;
-
-
the date on which the holder's ability to exercise the rights shall commence, and the date on which the rights shall
expire;
-
-
the extent to which the rights may include an over-subscription privilege with respect to unsubscribed
securities;
-
-
if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection
with the offering of such rights; and
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-
-
any other terms of the rights, including, but not limited to, the terms, procedures, conditions and limitations relating
to the exchange and exercise of the rights.
The
provisions described in this section, as well as those described under "Description of Debt Securities" and "Description of Capital Stock," will apply, as applicable, to any rights
we offer.
DESCRIPTION OF UNITS
General
We may issue units composed of any combination of our debt securities, common stock, preferred stock and warrants. We will issue each
unit so that the holder of the unit is also the holder of each security included in the unit. As a result, the holder of a unit will have the rights and obligations of a holder of each included
security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified
date.
The
following description is a summary of selected provisions relating to units that we may offer. The summary is not complete. When units are offered in the future, a prospectus
supplement, information incorporated by reference or free writing prospectus as applicable, will explain the particular terms of those securities and the extent to which these general provisions may
apply. The specific terms of the units as described in a prospectus supplement or information incorporated by reference will supplement and, if applicable, may modify or replace the general terms
described in this section.
This
summary and any description of units in the applicable prospectus supplement, information incorporated by reference or free writing prospectus is subject to and is qualified in its
entirety by reference to the unit agreement, collateral arrangements and depositary arrangements, if applicable. We will file these documents with the SEC for incorporation by reference into this
prospectus, as applicable. See "Available Information" and "Incorporation of Certain Information by Reference" for information on how to obtain a copy of a document when it is filed.
The
applicable prospectus supplement, information incorporated by reference or free writing prospectus may describe:
-
-
the designation and terms of the units and of the securities comprising the units, including whether and under what
circumstances those securities may be held or transferred separately;
-
-
any provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities composing
the units;
-
-
whether the units will be issued in fully registered or global form; and
-
-
any other terms of the units.
The
applicable provisions described in this section, as well as those described under "Description of Debt Securities," "Description of Capital Stock" and "Description of Warrants," will
apply to each unit and to each security included in each unit, respectively.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed charges or our deficiency of earnings to fixed charges for
the periods indicated. For purposes of determining the amounts, earnings are defined as pre-tax income (loss) from continuing operations before adjustment for income or loss from equity
method investees, plus fixed charges (as defined), plus amortization of capitalized interest, less interest capitalized. Fixed charges consist of interest expense and capitalized interest, plus
amortization of capitalized debt issuance costs, plus a reasonable approximation of the interest portion of rental expense.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
|
|
Three Months
Ended
March 31, 2010
|
|
|
|
2005
|
|
2006
|
|
2007
|
|
2008
|
|
2009
|
|
Ratio of Earning to Fixed Charges:
|
|
|
39.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deficiency of Earnings to Fixed Charges:
|
|
$
|
|
|
$
|
89,771,949
|
|
$
|
7,672,482
|
|
$
|
44,558,526
|
|
$
|
34,091,010
|
|
$
|
25,734,119
|
|
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, information incorporated by reference or free writing prospectus,
we intend to use the net proceeds from the sale of securities for working capital and other general corporate purposes, which may include capital expenditures related to station construction
activities, investment in our LNG plants and biomethane production plant, or future acquisitions of natural gas fueling infrastructure, vehicle or services businesses and biomethane production assets.
We have not determined the amounts we plan to spend on any of the areas listed above or the timing of those expenditures. As a result, our management will have broad discretion to allocate the net
proceeds from any offering and investors will be relying on the judgment of management with regard to the use of proceeds. Pending application of the net proceeds, we may temporarily invest the net
proceeds in short-term marketable securities.
PLAN OF DISTRIBUTION
We or a selling securityholder may sell the securities through underwriters or dealers, through agents, directly to one or more
purchasers, through a rights offering, or otherwise. We will describe the terms of the offering of the securities in a prospectus supplement, information incorporated by reference or free writing
prospectus, including:
-
-
the name or names of any underwriters, if any;
-
-
the purchase price of the securities and the proceeds we will receive from the sale;
-
-
any underwriting discounts and other items constituting underwriters' compensation;
-
-
any initial public offering price;
-
-
any discounts or concessions allowed or reallowed or paid to dealers; and
-
-
any securities exchange or market on which the securities may be listed.
Only
underwriters we name in the prospectus supplement, information incorporated by reference or free writing prospectus are underwriters of the securities offered thereby.
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The
distribution of securities may be effected, from time to time, in one or more transactions, including:
-
-
block transactions (which may involve crosses) and transactions on the Nasdaq Global Market or any other organized market
where the securities may be traded;
-
-
purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus
supplement;
-
-
ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers;
-
-
sales "at the market" to or through a market maker or into an existing trading market, on an exchange or otherwise; and
-
-
sales in other ways not involving market makers or established trading markets, including direct sales to purchasers.
The
securities may be sold at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at
negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities.
That compensation may be in the form of discounts, concessions or commissions to be received from us or from the purchasers of the securities. Dealers and agents participating in the distribution of
the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. If
such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act.
We
may also make direct sales through subscription rights distributed to our existing stockholders on a pro rata basis, which may or may not be transferable. In any distribution of
subscription rights to our stockholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services
of one or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties.
Some
or all of the securities that we offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for
public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot
assure you of the liquidity of, or continued trading markets for, any securities that we offer.
Agents
may, from time to time, solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement, document incorporated by reference or free
writing prospectus, as applicable, any agent involved in the offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise indicated, any agent will be acting
on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities
Act, of the securities.
If
underwriters are used in an offering, securities will be acquired by the underwriters for their own account and may be resold, from time to time, in one or more transactions,
including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery contracts or other contractual commitments.
Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an
underwriter or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for the sale is reached. The
applicable prospectus supplement will set forth the
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managing
underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the
transactions, including compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus, and the applicable prospectus supplement and any applicable free
writing prospectus will be used by the underwriters to resell the securities.
If
a dealer is used in the sale of the securities, we, a selling securityholder, or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement, document incorporated by
reference or free writing prospectus, as applicable, the name of the dealer and the terms of the transactions.
We
or a selling securityholder may directly solicit offers to purchase the securities and may make sales of securities directly to institutional investors or others. These persons may be
deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the prospectus supplement, document incorporated by reference
or free writing prospectus, as applicable, will describe the terms of any such sales, including the terms of any bidding or auction process, if used.
Agents,
underwriters and dealers may be entitled under agreements which may be entered into with us or selling securityholders to indemnification against specified liabilities, including
liabilities incurred under the Securities Act, or to contribution to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement, document incorporated
by reference or free writing prospectus, as applicable, will describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates
may be customers of, engage in transactions with or perform services for us, our subsidiaries or affiliates in the ordinary course of business.
Under
the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
Any
person participating in the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the
Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our common stock by any such
person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock.
These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock.
Certain
persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur, they will be described in the applicable
prospectus supplement.
To
the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution.
All
securities we or a selling securityholder offer other than common stock will be new issues of securities with no established trading market. Any underwriters may make a market in
these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
In
compliance with the guidelines of the Financial Industry Regulatory Authority ("FINRA"), the aggregate maximum discount, commission or agency fees or other items constituting
underwriting
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compensation
to be received by any FINRA member or independent broker-dealer will not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement, as the case may
be.
SELLING SECURITYHOLDERS
Information about selling securityholders, where applicable, will be set forth in a prospectus supplement, in a
post-effective amendment, or in filings we make with the SEC under the Exchange Act that are incorporated by reference.
VALIDITY OF THE SECURITIES
Morrison & Foerster LLP, San Francisco, California, will pass upon the validity of the securities offered hereby.
EXPERTS
The consolidated financial statements and schedule of Clean Energy Fuels Corp. as of December 31, 2008 and 2009 and for each of
the years in the three-year period ended December 31, 2009, and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2009 have
been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein and upon the authority of said
firm as experts in auditing and accounting.
The
audit report on the effectiveness of internal control over financial reporting as of December 31, 2009, contains an explanatory paragraph that states that management's
assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of BAF Technologies, Inc., which constituted 4% of total assets as
of December 31, 2009 and 5% of revenues for the year then ended. The audit of internal control over financial reporting of Clean Energy Fuels Corp. and subsidiaries also did not include an
evaluation of the internal control over financial reporting of BAF Technologies, Inc.
The
audit report covering the December 31, 2009, consolidated financial statements refers to a change in the method of accounting for business combinations.
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Table of Contents
4,017,408 Shares
Common Stock
Prospectus Supplement
September 7, 2010
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