UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or
15(d) of the
Securities Exchange Act of 1934
Date
of report (Date of earliest event reported):
September 7,
2010
CLEAN ENERGY FUELS CORP.
(Exact Name of Registrant as
Specified in its Charter)
Delaware
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001-33480
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33-0968580
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(State or Other
Jurisdiction
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(Commission
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(I.R.S. Employer
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of Incorporation)
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File Number)
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Identification No.)
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3020 Old
Ranch Parkway, Suite 400, Seal Beach,
California
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90740
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(Address of Principal
Executive Offices)
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(Zip Code)
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Registrants
telephone number, including area code:
(562)
493-2804
Not Applicable
(Former Name or Former
Address, if Changed Since Last Report)
Check the appropriate box below if
the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 2.01
Completion of Acquisition or Disposition of
Assets.
On
September 7, 2010, Clean Energy Fuels Corp, a Delaware corporation (the
Registrant), acting through certain of its subsidiaries, completed its
purchase of the advanced natural gas fueling compressor and related equipment
manufacturing and servicing business (the Acquired Business) of I.M.W.
Industries Ltd., a British Columbia corporation (IMW).
The
terms and conditions of the purchase of the Acquired Business are set forth in
an Asset Purchase Agreement (the Asset Purchase Agreement) dated July 1,
2010 by and among Clean Energy, a California corporation and a wholly-owned
subsidiary of the Registrant (Clean Energy - CA), 0884808 B.C. Ltd., a
British Columbia corporation and a wholly-owned subsidiary of Clean Energy - CA
(Canadian AcqCo), 0884810 B.C. Ltd., a British Columbia corporation and a wholly-owned
subsidiary of Canadian AcqCo (Canadian OpCo and collectively with Clean
Energy - CA and Canadian AcqCo, Purchasers), on the one hand, and IMW, 652322
B.C. Ltd., a British Columbia corporation (Holdco), Miller Family Trust and
Bradley N. Miller (IMW, Holdco, Miller Family Trust and Bradley N. Miller are
collectively referred to herein as Sellers), on the other hand.
Pursuant
to the Asset Purchase Agreement as amended, at closing the Sellers received (a) $15.6
million in cash, (b) 4.0 million shares of the Registrants common stock,
(c) the following promissory notes issued by a subsidiary of the
Registrant (collectively the Notes): (i) a promissory note with a
principal amount of $12,500,000 that is due and payable on January 31,
2011, (ii) a promissory note with a principal amount of $12,500,000 that
is due and payable on January 31, 2012, (iii) a promissory note with
a principal amount of $12,500,000 that is due and payable on January 31,
2013, and (iv) a promissory note with a principal amount of $12,500,000
that is due and payable on January 31, 2014 (each payment under such
promissory notes will consist of $5.0 million in cash and $7.5 million in cash
and/or shares of the Registrants common stock (the exact combination of cash
and/or stock to be determined at Purchasers option)); (d) an earn-out
arrangement pursuant to which Purchasers will, over a four year period, pay
Sellers up to $40.0 million based on the Acquired Business achieving certain
minimum amounts of adjusted gross profit; and (e) Purchasers assuming
certain liabilities of the Acquired Business. In addition, pursuant to a
Security Agreement executed at closing, the Notes are secured by a security
interest in the Acquired Business.
The
Purchasers have also agreed to pay the Sellers an additional $288,000 when the
transfer of IMW Compressors (Shanghai) Co., Ltd. is approved by the Chinese
regulatory authorities. The shares of the Registrants common stock issued to
the Sellers were not registered under the Securities Act in reliance upon an
exemption from registration provided by Regulation S promulgated thereunder, as
the issuance of such shares is an offshore transaction within the meaning of
Rule 902 of Regulation S. Such
securities may not be offered or sold in the United States absent registration
or an applicable exemption from registration requirements. Pursuant to the
Asset Purchase Agreement, the Registrant agreed to register the Sellers shares
of the Registrants common stock on or prior to the closing to permit resale of
the shares in the United States.
The
Asset Purchase Agreement also provides that Sellers will, subject to certain
limitations, indemnify Purchasers for damages and losses incurred or suffered
by Purchasers as a result of, among other things, breaches of Sellers
representations, warranties and covenants contained in the Asset Purchase
Agreement.
The
foregoing description of the Asset Purchase Agreement does not purport to be
complete and is qualified in its entirety by the Asset Purchase Agreement
attached hereto as Exhibit 2.5 and incorporated herein by reference. In addition, in connection with the closing
of the purchase of the Acquired Business, the parties to the Asset Purchase
Agreement entered into an Amendment to the Asset Purchase Agreement, dated
September 7, 2010, which is attached hereto as Exhibit 2.6 and
incorporated herein by reference.
A
copy of the Registrants press release, dated September 7, 2010,
announcing the completion of the purchase of the Acquired Business is attached
hereto as Exhibit 99.3 and incorporated herein by reference.
Item 3.02.
Unregistered Sales of Equity Securities.
The
information set forth under Item 2.01 is hereby incorporated by reference
into this Item 3.02.
Item 9.01
Financial Statements, Pro Forma Financial
Information and Exhibits.
(a)
Financial
Statements of Acquired Business
Audited combined financial
statements of I.M.W. Industries Group as of and for the year ended April 30,
2010 as required by this Item 9.01 (a) are attached as Exhibit 99.1
hereto and incorporated into this Item 9.01(a) by reference.
(b)
Pro Forma
Financial Information
The unaudited pro forma
condensed combined financial information as required by this Item 9.01(b) is
attached as Exhibit 99.2 hereto and incorporated into this Item 9.01(b) by
reference.
(d)
Exhibits
Exhibit No.
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Description
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2.5
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Asset
Purchase Agreement, dated July 1, 2010, among Clean Energy, a California
corporation, 0884808 B.C. Ltd., a British Columbia corporation, and 0884810
B.C. Ltd., a British Columbia corporation, on the one hand, and I.M.W.
Industries Ltd., a British Columbia corporation, 652322 B.C. Ltd., a British
Columbia corporation, Miller Family Trust and Bradley N. Miller, on the other
hand.
Certain
schedules and exhibits referenced in the Asset Purchase Agreement have been
omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any
omitted schedule and/or exhibit will be furnished supplementally to the
Securities and Exchange Commission upon request
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2.6
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Amendment
to Asset Purchase Agreement, dated as of September 7, 2010, by and
among Clean Energy, a California corporation, 0884808 B.C. Ltd., a British
Columbia corporation and a wholly-owned subsidiary of Clean Energy - CA, and
Clean Energy Compression Corp, a British Columbia corporation formerly known
as 0884810 B.C. Ltd and a wholly-owned subsidiary of Canadian AcqCo, on the
one hand, and I.M.W. Industries Ltd., a British Columbia Corporation, B&M
Miller Equity Holdings Inc., a successor by amalgamation to 652322 B.C. Ltd.,
a British Columbia corporation, Bradley N. Miller, Marion G. Miller and
Miller Family Trust, on the other hand. Certain schedules and exhibits
referenced in the Amendment to Asset Purchase Agreement have been omitted in
accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted
schedule and/or exhibit will be furnished supplementally to the Securities
and Exchange Commission upon request.
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5.1
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Opinion of Morrison & Foerster
LLP.
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23.1
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Consent of Independent Registered Public
Accounting Firm KPMG LLP.
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23.2
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Consent of Morrison & Foerster
LLP (included in Exhibit 5.1).
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99.1
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Audited
combined
financial statements of I.M.W. Industries Group as of and
for the year ended April 30, 2010.
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99.2
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Unaudited pro forma condensed
combined
financial information
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99.3
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Clean Energy Fuels Corp. Press
Release dated September 7, 2010.
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2