SEC Comment Letter for Clean Energy Fuels Corp. (CLNE) (CIK 0001368265) (CLNE) — May 10, 2007
Clean Energy Fuels Corp. (CLNE) (CIK 0001368265)
Date: May 10, 2007 · CIK: 0001368265 · Accession: 0000000000-07-023426
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-137124
Referenced dates: April 25, 2007, October 3, 2006, October 3, 2006
Letter
Mail Stop 3561 May 8, 2007 Andrew J. Littlefair President and Chief Executive Officer Clean Energy Fuels Corp. 3020 Old Ranch Parkway, Suite 200 Seal Beach, California 90740
Re: Clean Energy Fuels Corp. Amendment No. 2 to Registrati on Statement on Form S-1 Filed May 4, 2007 File No. 333-137124
Dear Mr. Littlefair:
We have reviewed your filing and have the following comments. Where indicated, we think you should re vise your document in response to these comments. If you disagree, we will consider your explanation as to why our comment is inapplicable or a revision is unnecessary. Please be as deta iled as necessary in your explanation. In some of our comments, we may ask you to provi de us with information so we may better understand your disclosure. After reviewing th is information, we may raise additional comments.
General 1. We note that you expect your initial public offering price will be between $13 and $17 per share. However, this price range is too wide. Therefore, please disclose a more narrow range for your offering price.
Sales of Common Stock, page 97 2. We note your response to comment 46 in our letter dated October 3, 2006. Please disclose how each of your selling sharehol ders received the beneficially owned shares.
Andrew J. Littlefair Clean Energy Fuels Corp. May 8, 2007 Page 2 Fiscal Year Ended December 31, 2006 Compared to Fiscal Year Ended…, page 43 3. We note your response to comment 8 in our letter dated April 25, 2007 and were unable to recompute the volume compone nt of gas sales change, which you backed into in your calculation. Base d on the change in volumes disclosed on page 43, we calculated a volume vari ance of $14.4 million rather than $9.2 million. Please advise or revise to disclo se the extent to which the increase in revenue is attributable to price and volu me increases and ensure that price and volume variances can be recomputed base d on the disclosed changes in price per gasoline gallon equivalent and gasoli ne gallon equivalents delivered.
Principal and Selling Stockholders, page 99 4. We note your response to comments 47 a nd 48 in our letter dated October 3, 2006. In this regard, we note that you are registering the re-sal e of an aggregate of 10,000,000 shares of common stock. Give n the size relative to the number of shares outstanding held by non-affiliates , the nature of the offering, and the selling security holders, this re-sale transaction appears to be a primary offering. Therefore, please revise your document to identify your affiliates, such as Boone Pickens, Perseus ENRG Investment, L.L. C., Madeleine Pickens, and Andrew J. Littlefair. It appears that , based upon the disclosure in your Plan of Distribution section, the re-sale offering is being underwri tten with the same terms and price as your primary offering. If you disagree with our determination, please advise the staff of the company’s basis for determining that this aspect of the transaction is appropriately characterized as a transaction that is eligible to be made under Rule 415(a)(1)(i). In this rega rd, please address the factors referred to in telephone interpretation no. D.29 under Securities Ac t Rule 415 in the Manual of Publicly Available Telephone Interpretations.
Consolidated Statements of Cash Flows, page F-6 5. We note your response to comment 11 in our letter dated April 25, 2007. As it appears the margin deposit was actually returned to Boone Pickens in January 2007, please explain to us how you concluded it was appropriate to present this transaction, along with the pa yment of the line of credit, in your 2006 cash flow statement. In this regard, we note th at you did not reflect your portion of the margin deposit refund on the cash flow statement until 2007. Further, please explain to us why the return of the marg in deposit directly to Boone Pickens and the cancellation of all amounts owed under the line of credit ar e reflected as cash transactions on your fina ncial statements.
Andrew J. Littlefair Clean Energy Fuels Corp. May 8, 2007 Page 3 (b) Stock Option Plan, page F-16 6. We note your response to comment 14 in our letter dated April 25, 2007 and were unable to locate certain disclosures re quired by paragraphs A240c.(2), A240d.(1) and A240d.(2) of SFAS 123R. Please a dvise or revise as appropriate.
(c) Exercise of Warrants; Equity Option Agreements, page F-17 7. We note your response to comment 17 in our letter dated April 25, 2007. We are still unclear as to why you “required” two shareholders to purchase common stock at $2.96 per share in early 2006, at which ti me you represent the estimated market price was approximately $10 per share. Please explain to us in detail your business reasons behind this decision.
Note (10) Related Party Transactions, page F-24 8. Please disclose the fair value of the warrants issued to Boone Pickens in exchange for the assumption of certain futures cont racts. Please show us in detail how you calculated the fair value, including all applicable assumptions. Additionally, as your anticipated initial public offering pr ice of $15 per share is more than the estimated fair value of the underlying stock of $10 per share at the date of the warrant issuance, your response should discuss and quantify the intervening economic events that occurred, operationall y, financially, and otherwise, between the warrant issuance date and the most re cent practicable date that caused a fluctuation or fluctuations in the fair value of your st ock. Finally, if you determine the fair value of the warrants exceeded $78 million, please explain to us how you intend to revise your financial st atements, including the footnotes, to reflect this excess distribution.
Item 16. Exhibits and Financial Statement Schedules, page II-2 9. We note your response to comment 62 in our letter dated October 3, 2006. At the end of your exhibit table, you state that all the exhibits marked with a single star “*” are to be filed by amendment. Howe ver, it appears as if you have filed all required exhibits. Please revise or advise.
* * * * * *
As appropriate, please amend your regist ration statement in response to these comments. You may wish to provide us with marked copies of the amendment to expedite our review. Please furnish a cove r letter with your amendment that keys your responses to our comments and provides any requested information. Detailed cover letters greatly facilitate our review. Please understand that we may have additional comments after reviewing your amendmen t and responses to our comments.
Andrew J. Littlefair Clean Energy Fuels Corp. May 8, 2007 Page 4 You may contact Sarah Goldberg, Staff Accountant, at (202) 551-3340 or James Allegretto, Senior Assistant Chief Accountan t, at (202) 551-3849, if you have questions regarding comments on the financ ial statements and related ma tters. Please contact John Fieldsend, Staff Attorney, at (202) 551-3343 or me at (202) 551-3720 with any other questions.
Sincerely,
H. Christopher Owings
Assistant Director
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Mail Stop 3561 May 8, 2007 Andrew J. Littlefair President and Chief Executive Officer Clean Energy Fuels Corp. 3020 Old Ranch Parkway, Suite 200 Seal Beach, California 90740 Re: Clean Energy Fuels Corp. Amendment No. 2 to Registrati on Statement on Form S-1 Filed May 4, 2007 File No. 333-137124 Dear Mr. Littlefair: We have reviewed your filing and have the following comments. Where indicated, we think you should re vise your document in response to these comments. If you disagree, we will consider your explanation as to why our comment is inapplicable or a revision is unnecessary. Please be as deta iled as necessary in your explanation. In some of our comments, we may ask you to provi de us with information so we may better understand your disclosure. After reviewing th is information, we may raise additional comments. General 1. We note that you expect your initial public offering price will be between $13 and $17 per share. However, this price range is too wide. Therefore, please disclose a more narrow range for your offering price. Sales of Common Stock, page 97 2. We note your response to comment 46 in our letter dated October 3, 2006. Please disclose how each of your selling sharehol ders received the beneficially owned shares. Andrew J. Littlefair Clean Energy Fuels Corp. May 8, 2007 Page 2 Fiscal Year Ended December 31, 2006 Compared to Fiscal Year Ended…, page 43 3. We note your response to comment 8 in our letter dated April 25, 2007 and were unable to recompute the volume compone nt of gas sales change, which you backed into in your calculation. Base d on the change in volumes disclosed on page 43, we calculated a volume vari ance of $14.4 million rather than $9.2 million. Please advise or revise to disclo se the extent to which the increase in revenue is attributable to price and volu me increases and ensure that price and volume variances can be recomputed base d on the disclosed changes in price per gasoline gallon equivalent and gasoli ne gallon equivalents delivered. Principal and Selling Stockholders, page 99 4. We note your response to comments 47 a nd 48 in our letter dated October 3, 2006. In this regard, we note that you are registering the re-sal e of an aggregate of 10,000,000 shares of common stock. Give n the size relative to the number of shares outstanding held by non-affiliates , the nature of the offering, and the selling security holders, this re-sale transaction appears to be a primary offering. Therefore, please revise your document to identify your affiliates, such as Boone Pickens, Perseus ENRG Investment, L.L. C., Madeleine Pickens, and Andrew J. Littlefair. It appears that , based upon the disclosure in your Plan of Distribution section, the re-sale offering is being underwri tten with the same terms and price as your primary offering. If you disagree with our determination, please advise the staff of the company’s basis for determining that this aspect of the transaction is appropriately characterized as a transaction that is eligible to be made under Rule 415(a)(1)(i). In this rega rd, please address the factors referred to in telephone interpretation no. D.29 under Securities Ac t Rule 415 in the Manual of Publicly Available Telephone Interpretations. Consolidated Statements of Cash Flows, page F-6 5. We note your response to comment 11 in our letter dated April 25, 2007. As it appears the margin deposit was actually returned to Boone Pickens in January 2007, please explain to us how you concluded it was appropriate to present this transaction, along with the pa yment of the line of credit, in your 2006 cash flow statement. In this regard, we note th at you did not reflect your portion of the margin deposit refund on the cash flow statement until 2007. Further, please explain to us why the return of the marg in deposit directly to Boone Pickens and the cancellation of all amounts owed under the line of credit ar e reflected as cash transactions on your fina ncial statements. Andrew J. Littlefair Clean Energy Fuels Corp. May 8, 2007 Page 3 (b) Stock Option Plan, page F-16 6. We note your response to comment 14 in our letter dated April 25, 2007 and were unable to locate certain disclosures re quired by paragraphs A240c.(2), A240d.(1) and A240d.(2) of SFAS 123R. Please a dvise or revise as appropriate. (c) Exercise of Warrants; Equity Option Agreements, page F-17 7. We note your response to comment 17 in our letter dated April 25, 2007. We are still unclear as to why you “required” two shareholders to purchase common stock at $2.96 per share in early 2006, at which ti me you represent the estimated market price was approximately $10 per share. Please explain to us in detail your business reasons behind this decision. Note (10) Related Party Transactions, page F-24 8. Please disclose the fair value of the warrants issued to Boone Pickens in exchange for the assumption of certain futures cont racts. Please show us in detail how you calculated the fair value, including all applicable assumptions. Additionally, as your anticipated initial public offering pr ice of $15 per share is more than the estimated fair value of the underlying stock of $10 per share at the date of the warrant issuance, your response should discuss and quantify the intervening economic events that occurred, operationall y, financially, and otherwise, between the warrant issuance date and the most re cent practicable date that caused a fluctuation or fluctuations in the fair value of your st ock. Finally, if you determine the fair value of the warrants exceeded $78 million, please explain to us how you intend to revise your financial st atements, including the footnotes, to reflect this excess distribution. Item 16. Exhibits and Financial Statement Schedules, page II-2 9. We note your response to comment 62 in our letter dated October 3, 2006. At the end of your exhibit table, you state that all the exhibits marked with a single star “*” are to be filed by amendment. Howe ver, it appears as if you have filed all required exhibits. Please revise or advise. * * * * * * As appropriate, please amend your regist ration statement in response to these comments. You may wish to provide us with marked copies of the amendment to expedite our review. Please furnish a cove r letter with your amendment that keys your responses to our comments and provides any requested information. Detailed cover letters greatly facilitate our review. Please understand that we may have additional comments after reviewing your amendmen t and responses to our comments. Andrew J. Littlefair Clean Energy Fuels Corp. May 8, 2007 Page 4 You may contact Sarah Goldberg, Staff Accountant, at (202) 551-3340 or James Allegretto, Senior Assistant Chief Accountan t, at (202) 551-3849, if you have questions regarding comments on the financ ial statements and related ma tters. Please contact John Fieldsend, Staff Attorney, at (202) 551-3343 or me at (202) 551-3720 with any other questions. Sincerely, H. Christopher Owings Assistant Director cc: John J. Hentrich, Esq. Sheppard, Mullin, Richter & Hampton LLP Via Facsimile