Filing Details

 

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 6)*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.

 

 

* Excludes 257,812.5  shares of Common Stock (as defined herein) issuable to ASSF IV (as defined herein) upon exercise of the Warrants (as defined herein) that may be issued in connection with the October 2019 ECA (as defined herein).  Such Warrants are contemplated to be issued to ASSF IV upon the closings of the 2019 Commitment (as defined herein) and/or the 2020 Commitment (as defined herein), which closings are subject to material conditions that are outside of the control of the Reporting Persons (as defined herein).

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer (as defined herein) in its Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on December 9, 2019 (the Proxy) plus (ii) 3,092,794.38 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV.

 

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* Excludes 257,812.5 shares of Common Stock issuable to ASSF IV upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 3,092,794.38 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV. 

 

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* Excludes 257,812.5 shares of Common Stock issuable to ASOF (as defined herein) upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 2,903,515.63 shares of Common Stock issuable upon exercise of the Warrants held by ASOF. 

 

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* Excludes 257,812.5 shares of Common Stock issuable to ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 2,903,515.63 shares of Common Stock issuable upon exercise of the Warrants held by ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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* Excludes 515,625 shares of Common Stock issuable to ASSF IV and ASOF upon exercise of the Warrants that may be issued in connection with the October 2019 ECA.  Such Warrants are contemplated to be issued to ASSF IV and ASOF upon the closings of the 2019 Commitment and/or the 2020 Commitment, which closings are subject to material conditions that are outside of the control of the Reporting Persons.

** The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of November 29, 2019 as disclosed by the Issuer in the Proxy plus (ii) 5,996,310 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

 

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This Amendment No. 6 (this Amendment No. 6) to the statement on Schedule 13D amends and supplements the statement on Schedule 13D filed by certain of the Reporting Persons on May 23, 2019 (the Original Schedule 13D), as amended by Amendment No. 1 to the Original Schedule 13D filed by the Reporting Persons on August 15, 2019, as amended by Amendment No. 2 to the Original Schedule 13D filed by the Reporting Persons on September 4, 2019, as amended by Amendment No. 3 to the Original Schedule 13D filed by the Reporting Persons on October 9, 2019, as amended by Amendment No. 4 to the Original Schedule 13D filed by the Reporting Persons on October 31, 2019, and as amended by Amendment No. 5 to the Original Schedule 13D filed by the Reporting Persons on November 18, 2019 (as so amended, the 13D Filing, and together with this Amendment No. 6, the Schedule 13D). Except as amended in this Amendment No. 6, the 13D Filing remains in full force and effect. Terms defined in the 13D Filing are used in this Amendment No. 6 as so defined, unless otherwise defined in this Amendment No. 6.

 

The Reporting Persons are party to certain agreements with Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P. and OT POF IEA Preferred B Aggregator, L.P. (the Oaktree Entities), which agreements contain, among other things, agreements as to the issuance of Warrants and preferred stock of the Issuer, an agreement pursuant to which certain of the Oaktree Entities will exchange Series A Preferred Stock (as defined herein) for Warrants and Series B-3 Preferred Stock (as defined herein), an agreement pursuant to which the Reporting Persons and certain of the Oaktree Entities must vote in favor of a Redemption Sale (as defined herein) under certain circumstances and consents relating to the Rights Offering (as defined herein), each as further described in Item 6 below.  As a result, the Reporting Persons may be deemed to be members of a group, within the meaning of Section 13(d)(3) of the Act, comprised of the Reporting Persons and the Oaktree Entities.  The Reporting Persons expressly disclaim any membership in a group with the Oaktree Entities.  It is the understanding of the Reporting Persons that the Oaktree Entities are filing a separate Schedule 13D with respect to the shares of Common Stock beneficially owned by the Oaktree Entities.  The beneficial ownership of the Reporting Persons does not include any shares of Common Stock that may be beneficially owned by any of the Oaktree Entities, and the Reporting Persons disclaim beneficial ownership over such shares.

 

Item 2. Identity and Background

 

The last sentence of Item 2(a) of the 13D Filing is hereby amended and restated as follows:

 

The Reporting Persons have entered into a joint filing agreement, dated as of January 27, 2020, a copy of which is attached hereto as Exhibit 99.7.

 

Schedule A referenced in Item 2(c) of the 13D Filing is hereby amended and restated as the Schedule A attached to this Amendment No. 6.

 

Item 4. Purpose of Transaction

 

The first paragraph of Item 4 of the 13D Filing is hereby amended and restated as follows:

 

Pursuant to the terms of the Series B Certificates (as defined herein), Ares Management LLC, on behalf of its affiliated funds, investment vehicles and/or managed accounts (Ares), has the right to designate and appoint: (x) one director to the Issuers board of directors (the Board) for so long as Ares and its affiliates hold at least 50% of the Series B-1 Preferred Stock (as defined herein) issued to Ares and its affiliates on the Closing Date (as defined herein) (such director, the First Series B Director) and (y) an additional director for so long as Ares and its affiliates hold at least 50% of the Series B-2 Preferred Stock (as defined herein) issued to Ares on the Second ECA Closing Date (as defined herein) (such director, the Second Series B Director).  Notwithstanding the foregoing, pursuant to the terms of the Waiver Agreement, dated as of January 23, 2020, by and between Ares and the Issuer (the Waiver Agreement), Ares agreed only to appoint either the First Series B Director or the Second Series B Director, but not both, for as long as the following conditions remain satisfied:

 

·                  The size of the Board is comprised of seven (7) or fewer individuals;

 

·                  At least three (3) of the directors on the Board qualify as independent pursuant to guidance from the United States Securities and Exchange Commission and the rules of the applicable stock exchange;

 

·                  Ares is entitled to appoint both the First Series B Director and the Second Series B Director;

 

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·                  Each of the stockholders of the Issuer and their respective affiliates with specific Board designation rights as of the date of the Waiver Agreement (other than Ares and its affiliates) is entitled to appoint no more than one director to the Board; and

 

·                  No other stockholder of the Issuer (other than the stockholders of the Issuer as of the date of the Waiver Agreement) is entitled to appoint any director to the Board.

 

If, at any time, any of the conditions set forth above are no longer satisfied, the Waiver Agreement shall automatically terminate and be of no further force and effect.

 

The Reporting Persons have not yet exercised their right to appoint either the First Series B Director or the Second Series B Director.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Item 6 of the 13D Filing is hereby amended by adding the following disclosure after the second to last paragraph under C. October 2019 TransactionsAmended and Restated Series B-1 Certificate and Amended and Restated Series B-2 Certificate:

 

As described in Item 4 above, so long as Ares and its affiliates hold at least 50% of the Series B-1 Preferred Stock initially issued to Ares and its affiliates on the Closing Date, the Series B-1 Certificate provides Ares with the right to designate and appoint the First Series B Director.

 

In addition, under the Series B-2 Certificate, from and after September 13, 2019, as long as Ares and its affiliates hold at least 50% of the Series B-2 Preferred Stock issued to Ares and its affiliates on the Second ECA Closing Date, Ares will have the right to designate and appoint the Second Series B Director.

 

Pursuant to the terms of the Waiver Agreement, and notwithstanding the foregoing, Ares agreed only to appoint either the First Series B Director or the Second Series B Director, but not both, for as long as the following conditions remain satisfied:

 

·                  The size of the Board is comprised of seven (7) or fewer individuals;

 

·                  At least three (3) of the directors on the Board qualify as independent pursuant to guidance from the United States Securities and Exchange Commission and the rules of the applicable stock exchange;

 

·                  Ares is entitled to appoint both the First Series B Director and the Second Series B Director;

 

·                  Each of the stockholders of the Issuer and their respective affiliates with specific Board designation rights as of the date of the Waiver Agreement (other than Ares and its affiliates) is entitled to appoint no more than one director to the Board; and

 

·                  No other stockholder of the Issuer (other than the stockholders of the Issuer as of the date of the Waiver Agreement) is entitled to appoint any director to the Board.

 

If, at any time, any of the conditions set forth above are no longer satisfied, the Waiver Agreement shall automatically terminate and be of no further force and effect.

 

Item 7. Material to be Filed as Exhibits

 

Item 7 of the 13D Filing is hereby amended by adding the following:

 

Exhibit 5.18	Waiver Agreement, dated as of January 23, 2020, by and between Ares and the Issuer.
Exhibit 99.7	Joint Filing Agreement, dated as of January 27, 2019, by and among the Reporting Persons.

 

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SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Date: January 27, 2020

 

	ARES SPECIAL SITUATIONS FUND IV, L.P.
	By:	ASSF OPERATING MANAGER IV, L.P.
	Its:	Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ASSF OPERATING MANAGER IV, L.P.
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ASOF HOLDINGS I, L.P.
	By:	ASOF INVESTMENT MANAGEMENT LLC
	Its:	Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ASOF INVESTMENT MANAGEMENT LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT HOLDINGS L.P.
	By:	ARES HOLDCO LLC
	Its:	General Partner
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

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	ARES HOLDCO LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES HOLDINGS INC.
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT CORPORATION
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT GP LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES VOTING LLC
	By:	ARES PARTNERS HOLDCO LLC
		Its Sole Member
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES PARTNERS HOLDCO LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

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EXHIBIT INDEX

 

Exhibit 5.18	Waiver Agreement, dated as of January 23, 2020, by and between Ares and the Issuer.
Exhibit 99.7	Joint Filing Agreement, dated as of January 27, 2020, by and among the Reporting Persons.

 

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SCHEDULE A

 

BOARD OF MANAGERS OF

 

ARES PARTNERS HOLDCO LLC

 

Name		Present Principal Occupation and Employment
Michael J Arougheti		Co-Founder, Chief Executive Officer and President of Ares Management
Ryan Berry		Ares Chief Marketing and Strategy Officer
R. Kipp deVeer		Head of Ares Credit Group
David B. Kaplan		Co-Founder, Co-Chairman of Ares Private Equity Group
Michael R. McFerran		Chief Operating Officer and Chief Financial Officer of Ares Management
Antony P. Ressler		Co-Founder, Executive Chairman of Ares Management
Bennett Rosenthal		Co-Founder, Co-Chairman of Ares Private Equity Group

 

The address for all of the persons listed above is c/o Ares Management LLC, 2000 Avenue of the Stars, 12th Floor, Los Angeles, California 90067.

 

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DIRECTORS AND EXECUTIVE OFFICERS OF

 

ARES MANAGEMENT CORPORATION

 

 

The address for all of the persons listed above is c/o Ares Management LLC, 2000 Avenue of the Stars, 12th Floor, Los Angeles, California 90067.

 

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