As filed with the Securities and Exchange Commission
on May 16, 2024
Registration No. __________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CLEAN ENERGY FUELS CORP.
(Exact name of registrant as specified in its
charter)
| Delaware |
33-0968580 |
| (State or other jurisdiction of |
(I.R.S. Employer |
| incorporation or organization) |
Identification No.) |
4675 MacArthur Court, Suite 800
Newport
Beach, CA 92660
(Address, including zip code, of Principal Executive Offices)
Clean Energy
Fuels Corp.
2024 Performance
Incentive Plan
(Full title of the plan)
Andrew J. Littlefair
President and Chief Executive Officer
Clean Energy Fuels Corp.
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
(949) 437-1000
(Name, address and telephone number, including
area code, of agent for service)
COPY TO:
James W. Sytsma
Vice President, General Counsel and Corporate Secretary
Clean Energy Fuels Corp.
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
(949) 437-1000
Indicate by check mark whether the registrant is a
large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer x |
Accelerated filer ¨ |
| |
|
| Non-accelerated filer ¨ |
Smaller reporting company ¨ |
| |
|
| |
Emerging growth company ¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing
the information specified in Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) promulgated
under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the instructions to Part I of Form
S-8, such documents will not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated
by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
|
Item 2. |
Registrant Information and Employee Plan Annual Information. |
Upon written or oral request,
the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement.
The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant
to Rule 428(b) of the Securities Act. Requests should be directed to Clean Energy Fuels Corp., Vice President, General Counsel and Corporate
Secretary, 4675 MacArthur Court, Suite 800, Newport Beach, CA 92660; telephone number: (949) 437-1000.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
| Item 3. | Incorporation of Certain Documents by Reference |
The SEC allows us to “incorporate
by reference” into this prospectus the information we file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference is considered to be part of this Registration Statement.
Any statement contained in a document incorporated or considered to be incorporated by reference in this Registration Statement will be
considered to be modified or superseded for purposes of this Registration Statement to the extent a statement contained in this Registration
Statement or in any other subsequently filed document that is or is deemed to be incorporated by reference in this Registration Statement
modifies or supersedes such statement. We incorporate by reference in this Registration Statement the following information (other than,
in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules):
| (a) | The Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2023, filed with
the Commission on February 29, 2024 (Commission File No. 001-33480); |
| (b) | The portions of the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission
on April 4, 2024, that are incorporated by reference in Part III of the Company’s Annual Report on Form 10-K for its fiscal year
ended December 31, 2023 (Commission File No. 001-33480); |
| (c) | The Company’s Quarterly Report on Form 10-Q for its fiscal quarter ended March 31, 2024, filed with
the Commission on May 9, 2024 (Commission File No. 001-33480); |
| (d) | The Company’s Current Reports on Form 8-K, filed with the Commission on February 27, 2024 and March
28, 2024, each, Commission File No. 001-33480 and in each case only as to the information “filed” with the Commission
thereunder for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and not as to
information “furnished” thereunder); and |
| (e) | The description of the Company’s common stock, par value $0.0001 per share (the “Common Stock”),
contained in Exhibit 4.3 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the
Commission on February 24, 2022 (Commission File No. 001-33480), and any other amendment or report filed for the purpose of updating such
description. |
We also incorporate by reference
each of the documents that we file with the SEC 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 Registration Statement and prior to the termination of the offerings under
this Registration Statement. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form
10-Q and Current Reports on Form 8-K, as well as proxy statements. We will not, however, incorporate by reference in this Registration
Statement any documents or portions thereof that are not deemed “filed” with the SEC, including any information furnished
pursuant to Item 2.02 or Item 7.01 of our Current Reports on Form 8-K after the date of this prospectus unless, and except to the extent,
specified in such Current Reports.
| Item 4. | Description of Securities |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel |
The validity of the issuance
of Common Stock registered hereby is passed on for the Company by James W. Sytsma. Mr. Sytsma is the Vice President, General Counsel and
Corporate Secretary of the Company and is compensated by the Company as an employee. Mr. Sytsma owns or has the right to acquire an aggregate
of less than 1% of the Company’s Common Stock and is eligible to receive awards under the Plan.
| Item 6. | Indemnification of Directors and Officers |
Our 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 (the “DGCL”). Our bylaws also
provide for indemnification by us, to the fullest extent permitted by law, 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 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 our board
of directors to be appropriate and authorized by the DGCL. Our bylaws also permit us to purchase and maintain insurance for the foregoing,
and we currently and expect to continue to maintain such insurance. In addition, our bylaws provide that the provisions thereof are not
exclusive of other rights to which any person seeking indemnification may be entitled under any agreement, vote of stockholders or disinterested
directors or applicable provisions of the DGCL, and we have entered into a contract with each of our directors and officers providing
for indemnification of each such person by us to the full extent authorized or permitted by law, subject to certain limited exceptions.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
us pursuant to the foregoing provisions, we have been informed that in the opinion of the U.S. Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
See the attached Exhibit Index at page 7, which
is incorporated herein by reference.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by
the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
EXHIBIT INDEX
Exhibit
Number |
Description of Exhibit |
| 4 | 2024 Performance Incentive Plan. (Filed as Annex A to the Company’s Proxy Statement filed with the Commission pursuant to Section
14(a) of the Exchange Act on April 4, 2024 (Commission File No. 001-33480) and incorporated herein by this reference.) |
SIGNATURES
Pursuant to the requirements
of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Newport Beach, State of California, on May 16, 2024.
| |
CLEAN ENERGY FUELS CORP. |
| |
|
| |
By: |
/s/
Andrew J. Littlefair |
| |
|
Andrew J. Littlefair |
| |
|
President and Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Andrew J. Littlefair and Robert M. Vreeland, and each of them, acting individually, as his or her
true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to execute for him or her and in his
or her name, place, and stead, in any and all capacities, any and all amendments (including post-effective amendments, exhibits thereto
and other documents in connection therewith) to this Registration Statement as the attorney-in-fact and to file or cause to be filed the
same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents
and their substitutes, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Andrew J. Littlefair |
|
President and Chief Executive Officer |
|
May 16, 2024 |
| Andrew J. Littlefair |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Robert M. Vreeland |
|
Chief Financial Officer |
|
May 16, 2024 |
| Robert M. Vreeland |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Stephen A. Scully |
|
Director |
|
May 16, 2024 |
| Stephen A. Scully |
|
|
|
|
| |
|
|
|
|
| /s/ Lizabeth Ardisana |
|
Director |
|
May 16, 2024 |
| Lizabeth Ardisana |
|
|
|
|
| |
|
|
|
|
| /s/ Karine Boissy-Rousseau |
|
Director |
|
May 16, 2024 |
| Karine Boissy-Rousseau |
|
|
|
|
| |
|
|
|
|
| /s/ Patrick J. Ford |
|
Director |
|
May 16, 2024 |
| Patrick J. Ford |
|
|
|
|
| |
|
|
|
|
| /s/ James C. Miller III |
|
Director |
|
May 16, 2024 |
| James C. Miller III |
|
|
|
|
| |
|
|
|
|
| /s/ Kenneth M. Socha |
|
Director |
|
May 16, 2024 |
| Kenneth M. Socha |
|
|
|
|
| |
|
|
|
|
| /s/ Mathieu Soulas |
|
Director |
|
May 16, 2024 |
| Mathieu Soulas |
|
|
|
|
| |
|
|
|
|
| /s/ Vincent C. Taormina |
|
Director |
|
May 16, 2024 |
| Vincent C. Taormina |
|
|
|
|
Exhibit 5
James
W. Sytsma
Vice President,
General Counsel & Secretary
May 16, 2024
Re: Registration
of Securities of Clean Energy Fuels Corp.
Ladies and Gentlemen:
In
connection with the registration of up to 4,000,000 shares of Common Stock of Clean Energy Fuels Corp., a Delaware corporation (the "Company"},
par value $0.0001 per share (the "Shares"), under the Securities Act of 1933, as amended, pursuant to a Registration Statement
on Form S-8 (the "Registration Statement"}, filed with the Securities and Exchange Commission on or about the date hereof,
such Shares to be issued or delivered pursuant to the Clean Energy Fuels Corp. 2024 Performance Incentive Plan (the "Plan"),
you have requested my opinion set forth below.
In
my capacity as counsel, I have examined originals or copies of those corporate and other records of the Company I considered appropriate.
On
the basis of such examination and my consideration of those questions of law I considered relevant, and subject to the limitations and
qualifications in this opinion, I am of the opinion that the Shares have been duly authorized by all necessary corporate action
on the part of the Company and, when issued in accordance with such authorization, the provisions of the Plan and relevant agreements
duly authorized by and in accordance with the terms of the Plan, and upon payment
for and delivery of the Shares as contemplated in accordance with the Plan, and either (a) the countersigning of the certificate
or certificates representing the Shares by a duly authorized signatory of the registrar for the Company's Common Stock, or (b) the
book-entry of the Shares by the transfer agent for the Company's Common Stock in the name of The Depository Trust Company or its nominee,
the Shares will be validly issued, fully paid and non-assessable.
I consent
to your filing this opinion as an exhibit to the Registration Statement.
| |
Respectfully submitted, |
| |
|
| |
/s/ James W. Sytsma |
| |
|
| |
James W. Sytsma |
| |
Vice President, General Counsel & Secretary |
Clean Energy
4675 MacArthur Court,
Suite 800
Newport Beach, CA
92660
949 .437 .1000
CleanEnergyfuels.com
Exhibit 23.1
 |
|
| |
KPMG LLP
Suite 700
20 Pacifica
Irvine, CA 92618-3391 |
Consent of Independent
Registered Public Accounting Firm
We consent to the use of our reports dated February 29, 2024,
with respect to the consolidated financial statements and financial statement schedule II of Clean Energy Fuels Corp. and subsidiaries,
and the effectiveness of internal control over financial reporting, incorporated herein by reference.
Irvine, California
May 16, 2024
KPMG LLP, a Delaware
limited liability partnership and a member firm of
the KPMG global organization of independent member firms affiliated with
KPMG
International Limited, a private English company limited by guarantee.
EXHIBIT 107
CALCULATION OF FILING FEE TABLE
Form S-8
(Form Type)
Clean Energy Fuels Corp.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type |
Security Class
Title |
Fee
Calculation Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering
Price Per
Unit(2) |
Maximum
Aggregate
Offering
Price(2) |
Fee Rate |
Amount of
Registration
Fee |
| Equity |
Common Stock, par value of $0.0001 per share, issuable pursuant to the Registrant’s 2024 Performance Incentive Plan |
Rule 457(c) and Rule 457(h) |
4,000,000 |
$2.53 |
$10,120,000 |
0.0001476 |
$1,493.71 |
| Total Offering Amounts |
|
$10,120,000 |
|
$1,493.71 |
| Total Fee Offsets |
|
|
|
$0 |
| Net Fee Due |
|
|
|
$1,493.71 |
(1) This
Registration Statement covers, in addition to the number of shares of Clean Energy Fuels Corp., a Delaware corporation (the “Company”
or the “Registrant”), common stock, par value $0.0001 per share (the “Common Stock”), stated above, options and
other rights to purchase or acquire the shares of Common Stock covered by this Registration Statement and, pursuant to Rule 416 under
the Securities Act of 1933, as amended (the “Securities Act”), an additional indeterminate number of shares, options and rights
that may be offered or issued pursuant to the Clean Energy Fuels Corp. 2024 Performance Incentive Plan (the “Plan”) as a result
of one or more adjustments under the Plan to prevent dilution resulting from one or more stock splits, stock dividends, recapitalizations
or similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate
offering price are based upon the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq
Stock Market on May 13, 2024, in accordance with Rule 457(c) of the Securities Act.
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