Exhibit 10.68


 


CLEAN ENERGY FUELS, INC.


 


AMENDMENT TO WARRANT NUMBER SI-4


 


TO PURCHASE COMMON STOCK OF CLEAN ENERGY FUELS, INC.


 


This
Amendment (the “Amendment”) dated November 10, 2010 amends Warrant
Number SI-4 dated November 3, 2008 (the “Warrant”) issued by Clean
Energy Fuels, Inc., a Delaware corporation (the “Company”) to
Portside Growth and Opportunity Fund (the “Holder”), pursuant to which
the Holder is entitled to subscribe for and purchase up to 1,183,712 shares of
the voting common stock of the Company, par value $0.0001 per share (the “Common
Stock”). Capitalized terms used but not defined in this Amendment have the
meanings given to them in the Warrant.


 


WHEREAS,
pursuant to Section 9 of the Warrant, the written consent of the
Company and the Holder is required to amend any provision of the Warrant; and


 


WHEREAS,
the Holder and the Company desire to amend the Warrant as set forth herein.


 


NOW,
THEREFORE, for good and valuable consideration, the parties hereto agree as
follows:


 


1.                                       Amendments.


 


1.1                                 The definition
of “Expiration Date” in Section 15 (i) of the Warrant is
hereby amended and restated in its entirety as follows:


 


“(i)                               “Expiration
Date” means November 10, 2010.”


 


1.2                                 The Company and
the Holder acknowledge that the current Exercise Price is $12.68.


 


1.3                                 All other terms
of the Warrant shall remain unchanged.


 


2.                                       Cash
Consideration. In consideration for the Holder executing this
Amendment and for agreeing to reduce the term of the Warrant, the Company
hereby agrees to pay to the Holder in immediately available funds cash
consideration in the amount of $3,172,348.16 to be paid contemporaneously with
the execution of this Amendment, but in no event more than three (3) business
day thereafter.


 

















 


3.                                       The Company
represents, warrants and agrees that:


 


3.1                                 it has all the
requisite authority and power to enter into and consummate the transactions
contemplated herein and such transactions shall not contravene any contractual,
regulatory, statutory or other obligation or restriction applicable to the
Company;


 


3.2                                 this Amendment
has been duly and validly authorized, executed and delivered by the Company,
and shall constitute a legal, valid, and binding obligation of the Company,
enforceable against it in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors’ rights generally and general equitable principles whether in a
proceeding in equity or at law;


 


3.3                                 it has a
sufficient number of authorized and unissued shares of voting common stock to
consummate the exercise of the Warrant;


 


3.4                                 any shares
issued to Holder pursuant to an exercise of the Warrant shall be freely
tradable unlegended Common Stock that may be sold into the public market
pursuant to the Company’s effective shelf registration statement on Form S-3
(File No. 333-152306), subject to the accuracy of Holder’s representations
in Section 4.4 below;


 


3.5                                 as of the date
hereof that none of the terms offered to any holders of the Company’s Series SI-1,
SI-2, SI-3 or SI-4 warrants are more favorable than those terms offered to the
Holder and,


 


4.                                       The Holder  represents and warrants that:


 


4.1                                 it has the
authority to enter into the transactions and consummate the transactions
contemplated herein and such transactions shall not contravene any contractual,
regulatory, statutory or other obligation or restriction applicable to the
Holder;


 


4.2                                 the Amendment
has been duly and validly authorized, executed and delivered by the Holder, and
shall constitute a legal, valid, and binding obligation of the Holder,
enforceable against it in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors’ rights generally and general equitable principles whether in a
proceeding in equity or at law;


 


4.3                                 it has
sufficient knowledge and experience in financial and business matters so as to
be capable of bearing the economic risks of participation in this Amendment,
and it is capable of evaluating the merits and risks of participating in this
Amendment, including any risks associated with surrendering certain rights
related to the Warrants; and


 


4.4                                 it is not an
affiliate of the Company as such term is defined in Rule 144 promulgated
under the Act.


 

















 


5.                                       Miscellaneous.


 


5.1                                 Disclosure of
Transactions and Other Material Information.  On or before 9:00 a.m., New York City
time, on the first (1st) Business Day following the date of this Agreement, the
Company shall (A) file a Current Report on Form 8-K in the form
required by the 1934 Act describing the material terms of the transactions
contemplated hereby and (B) either (i) to the extent the Company is
proceeding with the proposed equity offering previously disclosed to the
Holder, file either a press release or prospectus supplement disclosing such
proposed equity offering, or (ii) provide the Holder with notice via email
that such offering has been cancelled.


 


5.2                                 This Amendment
may be executed in multiple original counterparts, each of which shall be an
original, but all of which shall constitute one and the same Amendment.  This Amendment and all rights, obligations
and liabilities hereunder shall be governed by, and construed in accordance
with, the internal laws of the State of New York, without giving effect to the
principles of conflicts of law that would require the application of the laws
of any other jurisdiction.


 

















 


IN
WITNESS WHEREOF, the Holder and the Company have executed this Amendment as of November 10,
2010.


 


 


	
   

  	
  THE
  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
  Portside
  Growth and Opportunity Fund

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Jeffrey C. Smith

  
	
   

  	
  Name:

  	
  Jeffrey
  C. Smith

  
	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  Clean
  Energy Fuels, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Richard R. Wheeler

  
	
   

  	
  Name:

  	
  Richard
  R. Wheeler

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer