Exhibit 4.5


 


CLEAN ENERGY FUELS CORP.


 


WARRANT TO PURCHASE COMMON STOCK


 


Warrant No.:         


Number of Shares of Common Stock:       


Date of Issuance: October [    ], 2008 (“Issuance Date”)


 


Clean Energy Fuels Corp., a
Delaware corporation (the “Company”),
hereby certifies that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,
[                                          ],
the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms
set forth below, to purchase from the Company, at the Exercise Price (as
defined below) then in effect, upon surrender of this Warrant to Purchase
Common Stock (including any Warrants to Purchase Common Stock issued in
exchange, transfer or replacement hereof, this “Warrant”), at any time or times on or after the date six (6) months
from the date hereof (the “Exercisability Date”),
but not after 11:59 p.m., New York time, on the Expiration Date (as
defined below) (the period between the Exercisability Date and the Expiration
Date, the “Exercise Period”),
[                    ]
([              ])
fully paid nonassessable shares of Common Stock (as defined below)  (the “Warrant
Shares”).  Except as otherwise
defined herein, capitalized terms in this Warrant shall have the meanings set
forth in Section 15.  This
Warrant is the Warrant to purchase Common Stock issued pursuant to Section 2
of that certain Subscription Agreement (the “Subscription
Agreement”), dated as of October [    ],
2008 (the “Subscription Date”), by
and among the Company and the Holder (the “Subscription
Agreement”) pursuant to the Company’s Registration Statement on Form S-3
(File number 333-152306) (the “Registration Statement”).


 


1.     EXERCISE OF WARRANT.


 


(a) Mechanics of Exercise.  Subject to the
terms and conditions hereof, this Warrant may be exercised by the Holder on any
day on or after the Exercisability Date, in whole or in part, by delivery of a
written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to
exercise this Warrant.  The Holder shall
not be required to deliver the original Warrant in order to effect an exercise
hereunder, but shall deliver the original Warrant within five (5) Business
Days thereafter.  Execution and delivery
of the Exercise Notice with respect to less than all of the Warrant Shares
shall have the same effect as cancellation of the original Warrant and issuance
of a new Warrant evidencing the right to purchase the remaining number of
Warrant Shares.  On or before the first
(1st) Business Day following the date on which the Company has
received the Exercise Notice, the Company shall transmit by facsimile an
acknowledgment of confirmation of receipt of the Exercise Notice to the Holder
and the Company’s transfer agent, Computershare Trust Company, N.A. (the “Transfer Agent”).  On or before the third (3rd)
Business Day following the date on which the Company has received the Exercise
Notice (the “Share Delivery Date”),
the Company shall (X) provided that the Transfer Agent is participating in
The Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program, upon the request of the Holder,
credit such aggregate number of Warrant Shares to which the Holder is entitled
pursuant to such exercise to the 


 

















 


Holder’s or its designee’s balance account
with DTC through its Deposit Withdrawal Agent Commission system, or (Y) if
the Transfer Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and dispatch by overnight courier to the address as
specified in the Exercise Notice, a certificate, registered in the Company’s
share register in the name of the Holder or its designee, for the number of
shares of Common Stock to which the Holder is entitled pursuant to such
exercise.  Upon delivery of the Exercise
Notice, the Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date such Warrant Shares are credited
to the Holder’s DTC account or the date of delivery of the certificates
evidencing such Warrant Shares, as the case may be.  If this Warrant is submitted in connection
with any exercise pursuant to this Section 1(a) and the number of
Warrant Shares represented by this Warrant submitted for exercise is greater
than the number of Warrant Shares being acquired upon an exercise, then the
Company shall as soon as practicable and in no event later than three (3) Business
Days after any exercise and at its own expense, issue a new Warrant (in
accordance with Section 7(d)) representing the right to purchase
the number of Warrant Shares purchasable immediately prior to such exercise
under this Warrant, less the number of Warrant Shares with respect to which
this Warrant is exercised.  No fractional
shares of Common Stock are to be issued upon the exercise of this Warrant, but
rather the number of shares of Common Stock to be issued shall be rounded down
to the nearest whole number.  The Company
shall pay any and all taxes, as well as all fees of the Transfer Agent and DTC,
which may be payable with respect to the issuance and delivery of Warrant
Shares upon exercise of this Warrant.


 


Upon exercise of this Warrant, including any
cashless exercise under Section 1(d), the Company shall promptly
issue or cause to be issued and cause to be delivered to or upon the written
order of the Holder and in such name or names as the Holder may designate, a
certificate for the Warrant Shares issuable upon such exercise, free of
restrictive legends unless a registration statement covering the issuance of or
resale of the Warrant Shares is not then effective or the Warrant Shares are
not freely transferable without volume restrictions pursuant to Rule 144
under the Securities Act.  The Holder, or
any Person so designated by the Holder to receive Warrant Shares, shall be
deemed to have become the holder of record of such Warrant Shares as of the
Exercise Date.


 


(b)   Exercise Price.  For purposes of
this Warrant, “Exercise Price”
means $13.50 per share, subject to adjustment as provided herein.


 


(c)   Company’s Failure to Timely Deliver Securities.  If the Company shall fail for any reason or
for no reason to issue to the Holder within three (3) Business Days of
receipt of the Exercise Notice in compliance with the terms of this Section 1,
a certificate for the number of shares of Common Stock to which the Holder is
entitled and register such shares of Common Stock on the Company’s share
register or to credit the Holder’s balance account with DTC for such number of
shares of Common Stock to which the Holder is entitled upon the Holder’s
exercise of this Warrant, and if on or after such Trading Day the Holder
purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Holder of shares of Common Stock
issuable upon such exercise that the Holder anticipated receiving from the
Company (a “Buy-In”),
then the Company shall, within three (3) Business Days after the Holder’s
request and in the Holder’s discretion, either (i) pay cash to the Holder
in an amount equal to the Holder’s total purchase price (including brokerage 


 


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commissions, if any) for the shares of Common
Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver such
certificate (and to issue such Warrant Shares) shall terminate, or (ii) promptly
honor its obligation to deliver to the Holder a certificate or certificates representing
such Warrant Shares and pay cash to the Holder in an amount equal to the excess
(if any) of the Buy-In Price over the product of (A) such number of shares
of Common Stock, times (B) the Closing Bid Price on the date of exercise.


 


(d)      Payment of Exercise Price; Cashless Exercise.  The
Holder shall pay the Exercise Price in immediately available funds; provided, however, that if at any time during the Exercise
Period the Registration Statement covering the Warrant Shares is not effective
on such exercise date or the registration statement is not otherwise available
for the resale of the shares of Common Stock issuable hereunder, the Holder may
satisfy its obligation to pay the Exercise Price through a “cashless exercise,”
in which event the Company shall issue to the Holder the number of Warrant
Shares determined as follows:


 




	
  X = Y (A-B)

  
	
  ———–

  
	
  A

  






 


Where X = the number of shares of Common
Stock to be issued to the Holder


 


Y =          the number of shares of
Common Stock purchasable under this Warrant or, if only a portion of this
Warrant is being exercised, the portion of this Warrant being canceled (at the
date of such calculation)


 


A =         the fair market value of
one share of the Company’s Common Stock (at the date of such calculation)


 


B =          Exercise Price (as
adjusted to the date of such calculation)


 


For purposes of the above calculation, the “fair
market value” of one share of Common Stock shall mean (i) the average of
the closing sales prices for the shares of Common Stock on the Nasdaq Global
Market or other trading market where such security is listed or traded as
reported by Bloomberg Financial Markets (or a comparable reporting service of
national reputation selected by the Company and reasonably acceptable to the
Holder if Bloomberg Financial Markets is not then reporting sales prices of
such security) (collectively, “Bloomberg”)
for the ten (10) consecutive trading days immediately preceding such date,
or (ii) if the Nasdaq Global Market is not the principal trading market
for the shares of Common Stock, the average of the reported sales prices
reported by Bloomberg on the principal trading market for the Common Stock
during the same period, or, if there is no sales price for such period, the
last sales price reported by Bloomberg for such period, or (iii) if
neither of the foregoing applies, the last sales price of such security in the
over-the-counter market on the pink sheets or bulletin board for such security
as reported by Bloomberg, or if no sales price is so reported for such
security, the last bid price of such security as reported by Bloomberg or (iv) if
fair market value cannot be calculated as of such date on any of the foregoing
bases, the fair market value shall be as determined by the Board of Directors
of the Company in the exercise of its good faith judgment.


 


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(e) Disputes.  In the case of a dispute as to the
determination of the Exercise Price or the arithmetic calculation of the
Warrant Shares, the Company shall promptly issue to the Holder the number of
Warrant Shares that are not disputed.


 


(f) Beneficial Ownership.  The Holder shall
not have the right to exercise this Warrant, to the extent that after giving
effect to such exercise, such Person (together with such Person’s affiliates) would
beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the shares of Common Stock outstanding immediately
after giving effect to such exercise. 
The Company shall be entitled to rely on Holder’s exercise notice as an
indication that Holder will not, pursuant to such exercise, exceed the Maximum
Percentage.  For purposes of the
foregoing sentence, the aggregate number of shares of Common Stock beneficially
owned by such Person and its affiliates shall include the number of shares of
Common Stock issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude shares of
Common Stock which would be issuable upon (i) exercise of the remaining,
unexercised portion of this Warrant beneficially owned by such Person and its
affiliates and (ii) exercise or conversion of the unexercised or
unconverted portion of any other securities of the Company beneficially owned
by such Person and its affiliates (including, without limitation, any convertible
notes or convertible preferred stock or warrants) subject to a limitation on
conversion or exercise analogous to the limitation contained herein..  Except as set forth in the preceding
sentence, for purposes of this paragraph, beneficial ownership shall be
calculated in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended.  For
purposes of this Warrant, in determining the number of outstanding shares of
Common Stock, the Holder may rely on the number of outstanding shares of Common
Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q,
Current Report on Form 8-K or other public filing with the Securities and
Exchange Commission, as the case may be, (2) a more recent public
announcement by the Company or (3) any other notice by the Company or the
Transfer Agent setting forth the number of shares of Common Stock
outstanding.  For any reason at any time,
upon the written or oral request of the Holder, the Company shall within two (2) Business
Days confirm orally and in writing to the Holder the number of shares of Common
Stock then outstanding.  In any case, the
number of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder and its affiliates since the date as of which such
number of outstanding shares of Common Stock was reported.  By written notice to the Company, the Holder
may from time to time increase or decrease the Maximum Percentage to any other
percentage not in excess of 4.99% specified in such notice; provided that (i) any
such increase will not be effective until the sixty-first (61st) day
after such notice is delivered to the Company, and (ii) any such increase
or decrease will apply only to the Holder. 
The provisions of this paragraph shall be construed and implemented in a
manner otherwise than in strict conformity with the terms of this Section 1(h) to
correct this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended beneficial ownership limitation herein contained or to make
changes or supplements necessary or desirable to properly give effect to such
limitation.


 


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2.     ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.  The Exercise Price and the number of Warrant
Shares issuable upon exercise of this Warrant shall be adjusted from time to
time as follows:


 


(a)   Adjustment upon Issuance of Shares of Common Stock.  If and whenever on or after the Subscription
Date, the Company issues or sells, or in accordance with this Section 2
is deemed to have issued or sold, any shares of Common Stock other than
Exempted Securities (including the issuance or sale of shares of Common Stock
owned or held by or for the account of the Company) for a consideration per
share (the “New Issuance Price”)
less than a price (the “Applicable Price”)
equal to the Exercise Price in effect immediately prior to such issue or sale
or deemed issuance or sale (the foregoing a “Dilutive
Issuance”), then immediately after such Dilutive Issuance, the
Exercise Price then in effect shall be reduced to an amount equal to the
product of (A) the Exercise Price in effect immediately prior to such
Dilutive Issuance and (B) the quotient determined by dividing (1) the
sum of (I) the product derived by multiplying the Exercise Price in effect
immediately prior to such Dilutive Issuance and the number of shares of Common
Stock Deemed Outstanding immediately prior to such Dilutive Issuance plus (II) the
consideration, if any, received by the Company upon such Dilutive Issuance, by (2) the
product derived by multiplying (I) the Exercise Price in effect
immediately prior to such Dilutive Issuance by (II) the number of shares
of Common Stock Deemed Outstanding immediately after such Dilutive
Issuance.  For purposes of determining
the adjusted Exercise Price under this Section 2(a), the following
shall be applicable:


 


(i)            Issuance of Options.  If the Company in any manner grants any
Options and the lowest price per share for which one share of Common Stock is
issuable upon the exercise of any such Option or upon conversion, exercise or
exchange of any Convertible Securities issuable upon exercise of any such
Option is less than the Applicable Price, then such share of Common Stock shall
be deemed to be outstanding and to have been issued and sold by the Company at
the time of the granting or sale of such Option for such price per share.  For purposes of this Section 2(a)(i),
the “lowest price per share for which one share of Common Stock is issuable
upon exercise of such Options or upon conversion, exercise or exchange of such
Convertible Securities issuable upon exercise of any such Option” shall be
equal to the sum of the lowest amounts of consideration (if any) received or
receivable by the Company with respect to any one share of Common Stock upon
the granting or sale of the Option, upon exercise of the Option and upon
conversion, exercise or exchange of any Convertible Security issuable upon
exercise of such Option.  No further
adjustment of the Exercise Price or number of Warrant Shares shall be made upon
the actual issuance of such shares of Common Stock or of such Convertible
Securities upon the exercise of such Options or upon the actual issuance of
such shares of Common Stock upon conversion, exercise or exchange of such
Convertible Securities.


 


(ii)           Issuance of Convertible
Securities.  If the Company in any manner
issues or sells any Convertible Securities and the lowest price per share for
which one share of Common Stock is issuable upon the conversion, 


 


5

















 


exercise or
exchange thereof is less than the Applicable Price, then such share of Common
Stock shall be deemed to be outstanding and to have been issued and sold by the
Company at the time of the issuance or sale of such Convertible Securities for
such price per share.  For the purposes
of this Section 2(a)(ii), the “lowest price per share for which one share
of Common Stock is issuable upon the conversion, exercise or exchange thereof”
shall be equal to the sum of the lowest amounts of consideration (if any)
received or receivable by the Company with respect to one share of Common Stock
upon the issuance or sale of the Convertible Security and upon conversion,
exercise or exchange of such Convertible Security.  No further adjustment of the Exercise Price
or number of Warrant Shares shall be made upon the actual issuance of such
shares of Common Stock upon conversion, exercise or exchange of such
Convertible Securities, and if any such issue or sale of such Convertible
Securities is made upon exercise of any Options for which adjustment of this
Warrant has been or is to be made pursuant to other provisions of this Section 2(a),
no further adjustment of the Exercise Price or number of Warrant Shares shall
be made by reason of such issue or sale.


 


(iii)          Change in Option Price or
Rate of Conversion.  If the
purchase price provided for in any Options, the additional consideration, if
any, payable upon the issue, conversion, exercise or exchange of any
Convertible Securities, or the rate at which any Convertible Securities are
convertible into or exercisable or exchangeable for shares of Common Stock
increases or decreases at any time, then the Exercise Price and the number of
Warrant Shares in effect at the time of such increase or decrease shall be
adjusted to the Exercise Price and the number of Warrant Shares which would
have been in effect at such time had such Options or Convertible Securities
provided for such increased or decreased purchase price, additional
consideration or increased or decreased conversion rate, as the case may be, at
the time initially granted, issued or sold. 
For purposes of this Section 2(a)(iii), if the terms of any Option
or Convertible Security that was outstanding as of the date of issuance of this
Warrant are increased or decreased in the manner described in the immediately
preceding sentence, then such Option or Convertible Security and the shares of
Common Stock deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such increase or
decrease.  No adjustment pursuant to this
Section 2(a) shall be made if such adjustment would result in an
increase of the Exercise Price then in effect or a decrease in the number of
Warrant Shares.


 


(iv)          Calculation of
Consideration Received.  In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction, (x) the Options will be deemed to
have been issued for a value determined by use of the Black Scholes Option
Pricing Model (the “Option Value”) and (y) the 


 


6

















 


other
securities issued or sold in such integrated transaction shall be deemed to
have been issued for the difference of (I) the aggregate consideration
received by the Company, less (II) the Option Value.  If any shares of Common Stock, Options or
Convertible Securities are issued or sold or deemed to have been issued or sold
for cash, the consideration received therefor will be deemed to be the net
amount received by the Company therefor. 
If any shares of Common Stock, Options or Convertible Securities are
issued or sold for a consideration other than cash, the amount of such
consideration received by the Company will be the fair value of such
consideration, except where such consideration consists of securities, in which
case the amount of consideration received by the Company will be the Weighted
Average Price of such security on the date of receipt.  The fair value of any consideration other
than cash or securities will be determined jointly by the Company and the
Holder.  If such parties are unable to
reach agreement within ten (10) days after the occurrence of an event
requiring valuation (the “Valuation Event”), the fair value of such
consideration will be determined within five (5) Business Days after the
tenth (10th) day following the Valuation Event by an independent, reputable
appraiser jointly selected by the Company and the Holder.  The determination of such appraiser shall be
final and binding upon all parties absent manifest error and the fees and
expenses of such appraiser shall be borne by the Company.


 


(v)           Record Date.  If the Company takes a record of the holders
of shares of Common Stock for the purpose of entitling them (A) to receive
a dividend or other distribution payable in shares of Common Stock, Options or
in Convertible Securities or (B) to subscribe for or purchase shares of
Common Stock, Options or Convertible Securities, then such record date will be
deemed to be the date of the issue or sale of the shares of Common Stock deemed
to have been issued or sold upon the declaration of such dividend or the making
of such other distribution or the date of the granting of such right of
subscription or purchase, as the case may be.


 


(b)   Adjustment upon Subdivision or Combination
of Common Stock.  If the Company at any time on or
after the Subscription Date subdivides (by any stock split, stock dividend,
recapitalization, reorganization, scheme, arrangement or otherwise) one or more
classes of its outstanding shares of Common Stock into a greater number of
shares, the Exercise Price in effect immediately prior to such subdivision will
be proportionately reduced and the number of Warrant Shares will be
proportionately increased.  If the
Company at any time on or after the Subscription Date combines (by any stock
split, stock dividend, recapitalization, reorganization, scheme, arrangement or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to
such combination will be proportionately increased and the number of Warrant Shares
will be proportionately decreased.  Any
adjustment under this Section 2(b) shall become effective at
the close of business on the date the subdivision or combination becomes
effective.


 


7
















 


(c)   Other
Events.  If any event occurs of the
type contemplated by the provisions of this Section 2 but not
expressly provided for by such provisions, then the Company’s Board of
Directors will make an appropriate adjustment in the Exercise Price and the number
of Warrant Shares so as to protect the rights of the Holder; provided that no
such adjustment pursuant to this Section 2(b) will increase
the Exercise Price or decrease the number of Warrant Shares as otherwise
determined pursuant to this Section 2.


 


(d)   Adjustment
One Year and Two Years from the Date Hereof.  (a) Upon the date one year from the date
hereof (the “First  Reset Date”), the Exercise Price of this
Warrant, if then-outstanding, shall be reset to an exercise price equal to
one-hundred twenty percent (120%) of the closing price of the Company’s Common
Stock as listed on the NASDAQ Global Market (or such other Eligible Market if
the Warrants Shares are no longer listed on the Nasdaq Global Market) on such
date; (b) upon the date two years from the date hereof (the “Second Reset Date”), the Exercise Price of
this Warrant, if then-outstanding, shall be reset to an exercise price equal to
one-hundred twenty percent (120%) of the closing price of the Company’s Common
Stock as listed on the NASDAQ Global Market (or such other Eligible Market if
the Warrants Shares are no longer listed on the Nasdaq Global Market) on such
date; provided, however, that no such
adjustment pursuant to this Section 2(d) will increase the
Exercise Price of this Warrant above the then current Exercise Price at the
time of such reset.


 


3.     RIGHTS
UPON DISTRIBUTION OF ASSETS.  If the
Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common Stock, by way
of return of capital or otherwise (including, without limitation, any
distribution of cash, stock or other securities, property or options by way of
a dividend, stock split, spin off, subdivision, reclassification, corporate
rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the
issuance of this Warrant, then, in each such case:


 


(a)   any
Exercise Price in effect immediately prior to the close of business on the
record date fixed for the determination of holders of shares of Common Stock
entitled to receive the Distribution shall be reduced, effective as of the
close of business on such record date, to a price determined by multiplying
such Exercise Price by a fraction of which (i) the numerator shall be the
Closing Bid Price of the shares of Common Stock on the Trading Day immediately
preceding such record date minus the value of the Distribution (as determined
in good faith by the Company’s Board of Directors) applicable to one share of
Common Stock, and (ii) the denominator shall be the Closing Bid Price of
the shares of Common Stock on the Trading Day immediately preceding such record
date; and


 


(b)   the
number of Warrant Shares shall be increased or decreased to a number of shares
equal to the number of shares of Common Stock obtainable immediately prior to
the close of business on the record date fixed for the determination of holders
of shares of Common Stock entitled to receive the Distribution multiplied by
the reciprocal of the fraction set forth in the immediately preceding paragraph
(a); provided that in the event that the
Distribution is of shares of Common Stock (or common stock) (“Other Shares of Common Stock”) of a company whose common
shares are traded on a national securities exchange or a national automated
quotation system, then the Holder may elect to receive a warrant to purchase
Other Shares of Common Stock in lieu of an adjustment in the number of Warrant
Shares, the terms of 


 


8

















 


which shall be
identical to those of this Warrant, except that such warrant shall be
exercisable into the number of shares of Other Shares of Common Stock that
would have been payable to the Holder pursuant to the Distribution had the
Holder exercised this Warrant immediately prior to such record date and with an
aggregate exercise price equal to the product of the amount by which the
exercise price of this Warrant was decreased with respect to the Distribution
pursuant to the terms of the immediately preceding paragraph (a) and the
number of Warrant Shares calculated in accordance with the first part of this
paragraph (b).


 


4.     PURCHASE
RIGHTS; FUNDAMENTAL TRANSACTIONS.


 


(a)   Purchase
Rights.  In addition to any
adjustments pursuant to Section 2 above, if at any time the Company
grants, issues or sells any rights to purchase stock, warrants, securities or
other property pro rata to the record holders of any class of shares of Common
Stock (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on
the exercise of this Warrant) immediately before the date on which a record is
taken for the grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase
Rights.


 


(b)   In connection with any Fundamental Transaction, the
Company shall make appropriate provision so that this Warrant shall thereafter
be exercisable for shares of the Successor Entity based upon the conversion
ratio or other consideration payable in the Fundamental Transaction. The
provisions of this Section shall apply similarly and equally to successive
Fundamental Transactions and shall be applied without regard to any limitations
on the exercise of this Warrant.  Without
limiting the foregoing, in connection with a Fundamental Transaction that
constitutes a Change of Control, at the request of the Holder delivered before
the 90th day after such Fundamental Transaction, the Company (or the Successor
Entity) shall purchase this Warrant from the Holder by paying to the Holder,
within five Business Days after such request (or, if later, on the effective
date of the Fundamental Transaction), cash in an amount equal to the Black
Scholes Value of the remaining unexercised portion of this Warrant on the date
of such Fundamental Transaction.


 


In the event that any
person becomes a Parent Entity of the Company, such person shall assume all of
the obligations of the Company under this Warrant with the same effect as if
such person had been named as the Company herein.


 


5.     NON-CIRCUMVENTION.  The Company hereby covenants and agrees that
the Company will not, by amendment of its Certificate of Incorporation, Bylaws
or through any reorganization, transfer of assets, consolidation, merger,
scheme of arrangement, dissolution, issue or sale of securities, or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, and will at all times in good faith carry out all
the provisions of this Warrant and take all action as may be required to
protect the rights of the Holder. 
Without limiting the generality of the foregoing, the Company (i) shall
not increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the 


 


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Exercise Price then in effect, (ii) shall
take all such actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, and (iii) shall, so long
as this Warrant is outstanding, take all action necessary to reserve and keep
available out of its authorized and unissued shares of Common Stock, solely for
the purpose of effecting the exercise of this Warrant, 100% of the number of
shares of Common Stock issuable upon exercise of this Warrant then outstanding
(without regard to any limitations on exercise).


 


6.     WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. 
Except as otherwise specifically provided herein, the Holder, solely in
such Person’s capacity as a holder of this Warrant, shall not be entitled to
vote or receive dividends or be deemed the holder of share capital of the
Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the Holder, solely in such Person’s capacity as the
Holder of this Warrant, any of the rights of a stockholder of the Company or
any right to vote, give or withhold consent to any corporate action (whether
any reorganization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise), receive notice of meetings, receive dividends
or subscription rights, or otherwise, prior to the issuance to the Holder of
the Warrant Shares which such Person is then entitled to receive upon the due
exercise of this Warrant.  In addition,
nothing contained in this Warrant shall be construed as imposing any
liabilities on the Holder to purchase any securities (upon exercise of this
Warrant or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company.


 


7.     REISSUANCE
OF WARRANTS.


 


(a)  Transfer
of Warrant.  If this Warrant is to be
transferred, the Holder shall surrender this Warrant to the Company, whereupon
the Company will forthwith issue and deliver upon the order of the Holder a new
Warrant (in accordance with Section 7(d)), registered as the Holder
may request, representing the right to purchase the number of Warrant Shares
being transferred by the Holder and, if less then the total number of Warrant
Shares then underlying this Warrant is being transferred, a new Warrant (in
accordance with Section 7(d)) to the Holder representing the right
to purchase the number of Warrant Shares not being transferred.


 


(b)  Lost,
Stolen or Mutilated Warrant.  Upon
receipt by the Company of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, and, in the case of
loss, theft or destruction, of any indemnification undertaking by the Holder to
the Company in customary form and, in the case of mutilation, upon surrender
and cancellation of this Warrant, the Company shall execute and deliver to the
Holder a new Warrant (in accordance with Section 7(d)) representing
the right to purchase the Warrant Shares then underlying this Warrant.


 


(c)  Exchangeable for Multiple
Warrants.  This Warrant is
exchangeable, upon the surrender hereof by the Holder at the principal office
of the Company, for a new Warrant or Warrants (in accordance with Section 7(d))
representing in the aggregate the right to purchase the number of Warrant
Shares then underlying this Warrant, and each such new Warrant will represent
the right to purchase such portion of such Warrant Shares as is designated by
the Holder at
the time of such surrender; provided, however, that no Warrants for fractional
shares of Common Stock shall be given.


 


10

















 


(d)  Issuance
of New Warrants.  Whenever the
Company is required to issue a new Warrant pursuant to the terms of this
Warrant, such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall
represent, as indicated on the face of such new Warrant, the right to purchase
the Warrant Shares then underlying this Warrant (or in the case of a new
Warrant being issued pursuant to Section 7(a) or Section 7(c),
the Warrant Shares designated by the Holder which, when added to the number of
shares of Common Stock underlying the other new Warrants issued in connection
with such issuance, does not exceed the number of Warrant Shares then
underlying this Warrant), (iii) shall have an issuance date, as indicated
on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall
have the same rights and conditions as this Warrant.


 


8.     NOTICES.  Whenever notice is required to be given under
this Warrant, unless otherwise provided herein, such notice shall be given in
accordance with Section 7 of Annex I to the Subscription Agreement.  The Company shall provide the Holder with
prompt written notice of all actions taken pursuant to this Warrant, including
in reasonable detail a description of such action and the reason therefore.


 


9.             AMENDMENT
AND WAIVER.  Except as otherwise
provided herein, the provisions of this Warrant may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Holder.


 


10.           GOVERNING
LAW.  This Warrant shall be governed
by and construed and enforced in accordance with, and all questions concerning
the construction, validity, interpretation and performance of this Warrant
shall be governed by, the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of New York.


 


11.           CONSTRUCTION;
HEADINGS.  This Warrant shall be
deemed to be jointly drafted by the Company and the Holder and shall not be
construed against any person as the drafter hereof.  The headings of this Warrant are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Warrant.


 


12.           DISPUTE
RESOLUTION.  In the case of a dispute
as to the determination of the Exercise Price or the arithmetic calculation of
the Warrant Shares, the Company shall submit the disputed determinations or
arithmetic calculations via facsimile within two (2) Business Days of
receipt of the Exercise Notice giving rise to such dispute, as the case may be,
to the Holder.  If the Holder and the
Company are unable to agree upon such determination or calculation of the
Exercise Price or the Warrant Shares within three Business Days of such
disputed determination or arithmetic calculation being submitted to the Holder,
then the Company shall, within two (2) Business Days submit via facsimile (a) the
disputed determination of the Exercise Price to an independent, reputable
investment bank selected by the Company and approved by the Holder or (b) the
disputed arithmetic calculation of the Warrant Shares to the 


 


11

















 


Company’s
independent, outside accountant.  The
Company shall cause at its expense the investment bank or the accountant, as
the case may be, to perform the determinations or calculations and notify the
Company and the Holder of the results no later than ten Business Days from the
time it receives the disputed determinations or calculations.  Such investment bank’s or accountant’s
determination or calculation, as the case may be, shall be binding upon all
parties absent demonstrable error.


 


13.           REMEDIES,
OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF.  The remedies provided in this Warrant shall
be cumulative and in addition to all other remedies available under this
Warrant, at law or in equity (including a decree of specific performance and/or
other injunctive relief), and nothing herein shall limit the right of the
Holder to pursue actual damages for any failure by the Company to comply with
the terms of this Warrant.


 


14.   TRANSFER.  Subject to applicable laws, this Warrant may
be offered for sale, sold, transferred or assigned without the consent of the
Company.  This Warrant and all rights
hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached
hereto as Exhibit B to any transferee designated by Holder.  Any purported transfer of all or any portion
of this Warrant in violation of the provisions of this Warrant shall be null
and void.


 


15.   CERTAIN
DEFINITIONS.  For purposes of this Warrant,
the following terms shall have the following meanings:


 


(a)  “Black Scholes Value” means the value of
this Warrant based on the Black and Scholes Option Pricing Model obtained from
the “OV” function on Bloomberg (i) a price per share of Common Stock equal
to the Weighted Average Price of the Common Stock for the Trading Day
immediately preceding the date of consummation of the applicable Fundamental
Transaction, (ii) a risk-free interest rate corresponding to the U.S.
Treasury rate for a period equal to the remaining term of this Warrant as of
the date of consummation of the applicable Fundemental Transaction and (iii) an
expected volatility equal to the 30 day volatility obtained from the HVT
function on Bloomberg determined as of the Trading Day immediately following
the public announcement of the applicable Fundamental Transaction.


 


(b)  “Bloomberg” means Bloomberg Financial Markets.


 


(c)  “Business Day” means any day other than Saturday,
Sunday or other day on which commercial banks in The City of New York are
authorized or required by law to remain closed.


 


(d)  “Change of Control” means any Fundamental
Transaction other than (A) any reorganization, recapitalization or
reclassification of the Common Stock, in which holders of the Company’s voting power
immediately prior to such reorganization, recapitalization or reclassification
continue after such reorganization, recapitalization or reclassification to
hold publicly traded securities and, directly or indirectly, the voting power
of the surviving entity or entities necessary to elect a majority of the
members of the board of directors (or their equivalent if
other than a
corporation) of such entity or entities, or (B) pursuant to a migratory
merger effected solely for the purpose of changing the jurisdiction of
incorporation of the Company.


 


12

















 


(e)  “Closing Bid Price” and “Closing Sale Price” means, for any security as of
any date, the last closing bid price and last closing trade price, respectively,
for such security on the Principal Market, as reported by Bloomberg, or, if the
Principal Market begins to operate on an extended hours basis and does not
designate the closing bid price or the closing trade price, as the case may be,
then the last bid price or the last trade price, respectively, of such security
prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the
Principal Market is not the principal securities exchange or trading market for
such security, the last closing bid price or last trade price, respectively, of
such security on the principal securities exchange or trading market where such
security is listed or traded as reported by Bloomberg, or if the foregoing do
not apply, the last closing bid price or last trade price, respectively, of
such security in the over-the-counter market on the electronic bulletin board
for such security as reported by Bloomberg, or, if no closing bid price or last
trade price, respectively, is reported for such security by Bloomberg, the average
of the bid prices, or the ask prices, respectively, of any market makers for
such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the
National Quotation Bureau, Inc.). 
If the Closing Bid Price or the Closing Sale Price cannot be calculated
for a security on a particular date on any of the foregoing bases, the Closing
Bid Price or the Closing Sale Price, as the case may be, of such security on
such date shall be the fair market value as mutually determined by the Company
and the Holder.  All such determinations
to be appropriately adjusted for any stock dividend, stock split, stock
combination or other similar transaction during the applicable calculation
period.


 


(f)  “Common Stock” means (i) the Company’s
shares of Common Stock, par value $0.0001 per share, and (ii) any share
capital into which such Common Stock shall have been changed or any share
capital resulting from a reclassification of such Common Stock.


 


(g)  “Eligible Market” means the Principal Market,
The New York Stock Exchange, Inc., The American Stock Exchange, The NASDAQ
Global Select Market or The NASDAQ Capital Market.


 


(h)  “Exempted Securities” means (i) shares of Common Stock or
options to employees, officers or directors of the Company pursuant to any
existing stock or option plan, or any stock or option planduly adopted by a
majority of the non-employee members of the Board of Directors of the Company
or a majority of the members of a committee of non-employee directors
established for such purpose, (b) securities  issued upon the exercise or exchange of or
conversion of any Securities issued hereunder and/or securities exercisable or
exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the number of
such securities or to decrease the exercise, exchange or conversion price of
any such securities, and (c) securities issued pursuant to acquisitions or
strategic transactions, provided any such issuance shall only be to a Person
which is, itself or through its subsidiaries, an operating company in a
business synergistic with the business of the Company and in which the Company
receives benefits in addition to the investment of funds, but shall not include
a transaction in which the Company is issuing securities primarily for the
purpose of raising capital or to an entity whose primary business is investing
in securities.


 


13
















 


(i)  “Expiration Date” means the date seven (7) years after the
Exercisability Date or, if such date falls on a day other than a Business Day
or on which trading does not take place on the Principal Market (a “Holiday”), the next date that is not a
Holiday.


 


(j)  “Fundamental Transaction” means that the Company shall,
directly or indirectly, in one or more related transactions, (i) consolidate
or merge with or into (whether or not the Company is the surviving corporation)
another Person, or (ii) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
to another Person, or (iii) allow another Person to make a purchase, tender or exchange offer
that is accepted by the holders of more than the 50% of the outstanding shares
of Common Stock (not including any shares of Common
Stock held by the Person or Persons making or party to, or associated or
affiliated with the Persons making or party to, such purchase, tender or
exchange offer), or (iv) consummate a stock purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off or
scheme of arrangement) with another Person whereby such other
Person acquires more
than the 50% of the outstanding shares of Common Stock
(not including any shares of Common Stock held by the other Person or other
Persons making or party to, or associated or affiliated with the other Persons
making or party to, such stock purchase agreement or other business combination),
(v) reorganize,
recapitalize or reclassify its Common Stock, or (vi) any “person” or “group”
(as these terms are used for purposes of Sections 13(d) and 14(d) of
the Exchange Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of 50% of the aggregate
ordinary voting power represented by issued and outstanding Common Stock; provided, however, that with respect to T. Boone Pickens or
any Affiliate of T. Boone Pickens, such percentage shall not apply until the
Common Stock of the Company is no longer publicly traded, upon which date a
Fundamental Transaction shall be deemed to have occurred.


 


(k)  “Parent Entity” of a Person means an
entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent
equity security is quoted or listed on an Eligible Market,
or, if there is more than one such Person or Parent Entity, the Person or
Parent Entity with the largest public market capitalization as of the date of
consummation of the Fundamental Transaction.


 


(l)  “Person” means an individual, a limited
liability company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization, any other entity and a government or any department
or agency thereof.


 


(m)  “Principal Market” means The NASDAQ Global
Market.


 


(n)  “Successor Entity” means the
Person (or, if so elected by the Holder, the Parent Entity) formed by,
resulting from or surviving any Fundamental Transaction or the Person (or, if
so elected by the Holder, the Parent Entity) with which such Fundamental
Transaction shall have been entered into.


 


(o)  “Trading Day” means any day on which the Common Stock are
traded on the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock, then on the principal securities
exchange or securities market on which the Common Stock are then traded;
provided that “Trading Day” shall not include any day on which 


 


14

















 


the Common Stock are
scheduled to trade on such exchange or market for less than 4.5 hours or any
day that the Common Stock are suspended from trading during the final hour of
trading on such exchange or market (or if such exchange or market does not
designate in advance the closing time of trading on such exchange or market,
then during the hour ending at 4:00:00 p.m., New York time).


 


(p)  “Weighted Average Price” means, for any security as of any
date, the dollar volume-weighted average price for such security on the
Principal Market during the period beginning at 9:30:01 a.m., New York
City time, and ending at 4:00:00 p.m., New York City time, as reported by
Bloomberg through its “Volume at Price” function or, if the foregoing does not
apply, the dollar volume-weighted average price of such security in the
over-the-counter market on the electronic bulletin board for such security
during the period beginning at 9:30:01 a.m., New York City time, and
ending at 4:00:00 p.m., New York City time, as reported by Bloomberg, or,
if no dollar volume-weighted average price is reported for such security by
Bloomberg for such hours, the average of the highest closing bid price and the
lowest closing ask price of any of the market makers for such security as
reported in the “pink sheets” by Pink Sheets LLC (formerly the National
Quotation Bureau, Inc.).  If the
Weighted Average Price cannot be calculated for such security on such date on
any of the foregoing bases, the Weighted Average Price of such security on such
date shall be the fair market value as mutually determined by the Company and
the Holders.  If the Company and the
Holders are unable to agree upon the fair market value of such security, then
such dispute shall be resolved pursuant to Section 12 with the term “Weighted
Average Price” being substituted for the term “Exercise Price.” All such
determinations shall be appropriately adjusted for any share dividend, share
split or other similar transaction during such period.


 


[Signature Page Follows]


 


15

















 


IN WITNESS WHEREOF,
the Company has caused this Warrant to Purchase Common Stock to be duly
executed as of the Issuance Date set out above.


 


 


	
   

  	
  CLEAN ENERGY FUELS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


EXHIBIT A


 


EXERCISE NOTICE


 


TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS


WARRANT TO PURCHASE COMMON STOCK


 


CLEAN ENERGY FUELS CORP.


 


The undersigned holder
hereby exercises the right to purchase
                                  
of the shares of Common Stock (“Warrant
Shares”) of Clean Energy Fuels Corp., a Delaware corporation (the “Company”), evidenced by the attached
Warrant to Purchase Common Stock (the “Warrant”).  Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.


 


1.   Form of Exercise Price. The Holder
intends that payment of the Exercise Price shall be made as:


 


a “Cash Exercise”
with respect to
                                  
Warrant Shares; and/or


 


a “Cashless Exercise”
with respect to
                              
Warrant Shares.


 


2.   Payment
of Exercise Price.  In the event that
the holder has elected a Cash Exercise with respect to some or all of the
Warrant Shares to be issued pursuant hereto, the holder shall pay the Aggregate
Exercise Price in the sum of
$                                      
to the Company in accordance with the terms of the Warrant.


 


3.   Delivery
of Warrant Shares.  The Company shall
deliver to the holder
                    
Warrant Shares in accordance with the terms of the Warrant.


 


	
  Date:
                                
      ,

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name
  of Registered Holder

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


ACKNOWLEDGMENT


 


The Company
hereby acknowledges this Exercise Notice and hereby directs Computershare Trust
Company, N.A. to issue the above indicated number of shares of Common Stock in
accordance with the Transfer Agent Instructions dated
            , 2008
from the Company and acknowledged and agreed to by Computershare Trust Company,
N.A.


 


 


	
   

  	
  CLEAN ENERGY FUELS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
        Name:

  
	
   

  	
   

  	
        Title:

  



 

















 


EXHIBIT B


 


ASSIGNMENT FORM


 


(To assign the foregoing Warrant, execute this form and supply the
required information.  Do not use this
form to purchase shares.)


 


FOR GOOD AND VALUABLE CONSIDERATION,
the receipt and sufficiency of which are hereby acknowledged, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to:


 


 


	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  (Please Print)

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
  (Please Print)

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:
                                
      ,

  	
   

  
	
   

  	
   

  
	
  Holder’s Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Holder’s Address:

  	
                                      

  	
   

  
	
   

  	
                                  
  

  	
   

  
							



 


[NOTE:  The signature to this
Assignment Form must correspond with the name as it appears on the face of
the foregoing Warrant, without alteration or enlargement or any change
whatsoever.  Officers of corporations and
those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.]