(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 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 Rule 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 person's 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).
1
13D
1.
NAME
OF REPORTING PERSONS
Hawkeye
Energy Holdings, LLC
2.
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)¨
(b)x
3.
SEC
USE ONLY
4.
SOURCE
OF
FUNDS WC
5.
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
¨
6.
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
7.
SOLE
VOTING POWER* -0-
8.
SHARED
VOTING POWER* 3,333,333
9.
SOLE
DISPOSITIVE POWER* -0-
10.
SHARED
DISPOSITIVE POWER* 3,333,333
11.
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
3,333,333
12.
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES
CERTAIN SHARES
[X]
13.
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)† 18.7%
14.
TYPE
OF REPORTING
PERSON OO
*See Item
5.
† Based
on 17,814,180 units of membership interest outstanding as of February 15, 2010,
as reported by Advanced BioEnergy, LLC (“Issuer”) in its Quarterly Report on
Form 10-Q for the quarter ended December 31, 2009 on February 16,2010.
2
1.
NAME
OF REPORTING PERSONS
THL
Equity Advisors VI, LLC
2.
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)¨
(b)x
3.
SEC
USE ONLY
4.
SOURCE
OF
FUNDS OO
5.
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
¨
6.
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
7.
SOLE
VOTING POWER* -0-
8.
SHARED
VOTING POWER* 3,333,333
9.
SOLE
DISPOSITIVE POWER* -0-
10.
SHARED
DISPOSITIVE POWER* 3,333,333
11.
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
3,333,333
12.
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
[X]
13.
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)† 18.7%
14.
TYPE
OF REPORTING
PERSON OO
*See Item
5.
† Based
on 17,814,180 units of membership interest outstanding as of February 15, 2010,
as reported by Advanced BioEnergy, LLC (“Issuer”) in its Quarterly Report on
Form 10-Q for the quarter ended December 31, 2009 on February 16,2010.
3
1.
NAME
OF REPORTING PERSONS
Thomas
H. Lee Advisors, LLC
2.
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)¨
(b)x
3.
SEC
USE ONLY
4.
SOURCE
OF
FUNDS OO
5.
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
¨
6.
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
7.
SOLE
VOTING POWER* -0-
8.
SHARED
VOTING POWER* 3,333,333
9.
SOLE
DISPOSITIVE POWER* -0-
10.
SHARED
DISPOSITIVE POWER* 3,333,333
11.
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
3,333,333
12.
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
[X]
13.
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)† 18.7%
14.
TYPE
OF REPORTING
PERSON OO
*See Item
5.
† Based
on 17,814,180 units of membership interest outstanding as of February 15, 2010,
as reported by Advanced BioEnergy, LLC (“Issuer”) in its Quarterly Report on
Form 10-Q for the quarter ended December 31, 2009 on February 16,2010.
4
Explanatory
Note:
This
Amendment 4 is being filed by the Reporting Persons in connection with the
entering into of a Backstop Commitment Agreement regarding the private placement
of units of membership interest (“Units”) of Advanced BioEnergy, LLC, a Delaware
limited liability company (the “Issuer”) to parties which will include the
Reporting Persons. Pursuant to such private placement, subject to the
term and conditions in the Backstop Commitment Agreement, the Reporting Persons
will purchase at a minimum their pro rata share up to $10 million of Units at a
price per Unit of $1.50, and may purchase additional offered Units which are not
purchased by other offerees. As a result of such private placement,
the total outstanding number of securities of the Issuer will increase, although
the exact number of Units that the Reporting Persons will receive is
undeterminable as of the date of the filing of this Amendment 4. This
Amendment 4 does not report any acquisition or disposition of Units of the
Issuer by the Reporting Persons listed in Item 2.
Item
1. Security and Issuer.
Item 1 is
hereby amended and restated to read in its entirety as follows:
This
Fourth Amendment to the Statement on Schedule 13D (“Amendment 4”) constitutes
the fourth amendment to the Schedule 13D originally filed by the Reporting
Persons with the Securities and Exchange Commission on September 9, 2009 (the
“Schedule 13D”) as amended by that First Amendment dated September 21, 2009
(“Amendment 1”), that Second Amendment dated September 25, 2009 (“Amendment 2”)
and that Third Amendment Dated October 5, 2009 (“Amendment 3”). This
Amendment 4 is being filed jointly on behalf of the Reporting Persons (as
defined below in Item 2) with respect to the units of membership interest
(“Units”) of Advanced BioEnergy, LLC, a Delaware limited liability company (the
“Issuer”). The Issuer’s principal executive offices are located at
10201 Wayzata Boulevard, Suite 250, Minneapolis,
Minnesota55305.
Except as
specifically amended by this Amendment 4, the Schedule 13D as amended by
Amendment 1, Amendment 2 and Amendment 3 remains in full force and
effect. Capitalized terms used herein but not otherwise defined shall
have the meaning set forth in the Schedule 13D.
Item
2. Identity and Background.
Item 2(a)
is hereby amended and restated to read in its entirety as follows:
(a) This
Schedule 13D, as amended by Amendment 1, Amendment 2, Amendment 3, and Amendment
4 is being filed jointly on behalf of the following persons (collectively, the
“Reporting Persons”): (1) Hawkeye Energy Holdings, LLC, a Delaware limited
liability company (“Hawkeye”); (2) THL Equity Advisors VI, LLC, a Delaware
limited liability
5
company
(“Advisors VI”); and (3) Thomas H. Lee Advisors, LLC, a Delaware limited
liability company (“THL Advisors”).
The
Reporting Persons, Ethanol Investment Partners (“EIP”), South Dakota Wheat
Growers Association (“SDWG”), and certain members of the Issuer board of
directors may be deemed to be a “group” pursuant to Rule 13d-5(b)(1) promulgated
under the Securities Exchange Act of 1934 as a result of entering into the
Amended and Restated Voting Agreement described in more detail in Items 4, 5 and
6 in the Schedule 13D as amended by Amendment 1, Amendment 2, Amendment 3 and
Amendment 4. The Reporting Persons do not expressly affirm membership
in a group, however, and the Reporting Persons have agreed to vote with the
other Voting Agreement parties for the sole purposes set forth in the Voting
Agreement. The Reporting Persons disclaim beneficial ownership of the
Units held by EIP, SDWG and certain members of the Issuer board of directors
party to the Voting Agreement. Neither the filing of this Schedule
13D, as amended by Amendment 1, Amendment 2, Amendment 3 and Amendment 4, nor
any of its contents shall be deemed to constitute an admission that the
Reporting Persons or any of their respective affiliates are the beneficial
owners of any of Units beneficially owned by EIP, SDWG and any members of the
Issuer board of directors party to the Voting Agreement for purposes of Section
13(d) of the Exchange Act or for any other purpose. It is the
understanding of the Reporting Persons that EIP, SDWG and the members of the
Issuer board of directors party to the Voting Agreement have made separate
filings pursuant to the Act to report their respective beneficial ownership,
and/or that this beneficial ownership will be reported by the Issuer in its
required public filings. Based on such filings, as of the date
hereof, the parties to the Voting Agreement hold in the aggregate approximately
49.9% of the outstanding units of the Issuer. The cover pages to this
Schedule 13D, as amended by Amendment 1, Amendment 2, Amendment 3 and Amendment
4, only report information on the Reporting Persons identified in this Item
2.
Advisors
VI is the General Partner of certain members of Hawkeye which collectively hold
a majority of the membership units in Hawkeye. THL Advisors is the
general partner of the sole member of Advisors VI. Hawkeye is managed
by a Board of Managers consisting of Scott Sperling, Thomas Hagerty, Soren
Oberg, Joshua Nelson, Andrew Leitch and Bruce Rastetter (the “Hawkeye
Managers”).
Item
4. Purpose of Transaction
Item 4 is
hereby amended and restated to read in its entirety as follows:
The
Reporting Persons have previously acquired the Units for investment purposes.
The Reporting Persons from time to time intend to review their investment in the
Issuer on the basis of various factors, including the business of the Issuer,
financial condition, results
6
of
operations and prospects, general economic and industry conditions, the
securities markets in general and those for the Units of the Issuer in
particular, as well as other developments and other investment opportunities.
Based upon such review, the Reporting Persons will take such actions in the
future as the Reporting Persons may deem appropriate in light of the
circumstances existing, from time to time, which may include further
acquisitions of units or disposal of some or all of the Units currently owned by
the Reporting Persons or otherwise acquired by the Reporting Persons, as the
case may be.
The
Subscription Agreement, Side Letter, Second Subscription Agreement, Side Letter
Amendment, and the Transaction did or may result in one or more of the actions
specified in clauses (a)-(j) of Item 4 of Schedule 13D, including the
acquisition of additional securities of the Issuer, a change to the Issuer board
of directors or a change to the capitalization and dividend policy of the
Issuer. In particular, the Side Letter grants Hawkeye the right to
participate pro rata in the future issuance of additional units by the Issuer
and for a period of 14 months after its investment to receive additional units
without consideration if the Issuer issues units for less than $1.50 per unit
with the effect that Hawkeye’s purchase price per unit would be reduced to the
lowest price per unit paid by a subsequent investor during this 14 month period,
and the Side Letter Amendment extends certain rights under the Side Letter to
the additional shares acquired by Hawkeye under the Second Subscription
Agreement.
In
addition, Hawkeye and the Issuer entered into that certain Backstop Commitment
Agreement dated as of April 7, 2010, pursuant to which Hawkeye has committed to
purchase in a private placement at a minimum its pro rata share of up to $10
million of Units at a purchase price of $1.50, and potentially any additional
offered Units which are not purchased by other offerees, and which may otherwise
result in one or more of the actions specified in clauses (a)-(j) of Item 4 of
Schedule 13D.
Furthermore,
in their capacity as directors of the Issuer, the Reporting Persons’ Designees
(defined below) may take one or more of the actions specified in clauses (a)-(j)
of Item 4 of Schedule 13D. In addition, the Reporting Persons may engage in
communications with one or more members, officers or directors of the Issuer,
including discussions regarding potential changes in the operations of the
Issuer and strategic direction that, if effected, could result in, among other
things, the results specified in clauses (a)-(j) of Item 4 of Schedule
13D.
Pursuant
to that certain Amended and Restated Voting Agreement, effective August 28,2009, by and among EIP, Hawkeye (each of Hawkeye and EIP, an “Investor”), SDWG,
certain of the directors of the Issuer, and the Issuer (collectively, the
“Voting Agreement Parties”), as amended by that certain Amendment 1 dated as of
April 7, 2010 (together, “Voting Agreement”), the Voting Agreement Parties
agreed that the Chief Executive Officer of the Issuer be nominated and elected
to the Issuer board of directors (the “CEO Designee”) and that the Investors
each be entitled to designate two representatives to the Issuer board of
directors; provided, however, that if an Investor holds 5% or more but less than
10% of the then outstanding units of membership interest
7
in
Issuer, such Investor shall have the right to designate one nominee to the
Issuer board of directors, and if an Investor holds less than 5% of the then
outstanding units of membership interest in Issuer, such Investor shall no
longer have the right to designate any nominee to the Issuer board of directors
(each of the CEO Designee and the designees of the Investors, the “Designees”).
The Voting Agreement Parties are obligated to nominate for election, recommend
to its members the election of, and vote all units of membership interest of the
Issuer held by such parties for the Designees as members of the Issuer board of
directors, and the Voting Agreement Parties are required not to take any action
that would result in, and to take any action necessary to prevent, the removal
of any of the Designees and are prohibited from granting a proxy with respect to
any units that is inconsistent with the terms of the Voting Agreement. The
description of the Voting Agreement in this Schedule 13D does not purport to be
complete, and is qualified in its entirety by reference to such agreement, which
is attached hereto as Exhibit 3 and incorporated herein by
reference. In addition, pursuant to Amendment 1 to the Voting
Agreement, the Voting Agreement Parties are required at the 2010 annual member
meeting of the Issuer to vote all Units beneficially owned by such parties in
favor of an amendment to the Issuer’s operating agreement which will, among
other things, eliminate restrictions on the number of authorized units
of the Issuer. The Voting Agreement will or may result in one or more
of the actions specified in clauses (a)-(j) of Item 4 of Schedule
13D.
Except to
the extent specifically prohibited by the Subscription Agreement, Side Letter,
Second Subscription Agreement, Side Letter Amendment, Voting Agreement or
Backstop Commitment Agreement, each of the Reporting Persons reserves the right,
in light of its ongoing evaluation of the Issuer’s financial condition,
business, operations and prospects, the market price of the Units, conditions in
the securities markets generally, general economic and industry conditions, its
business objectives and other relevant factors, to change its plans and
intentions at any time, as it deems appropriate.
Item
5. Interest in Securities of the Issuer.
Item 5 is
hereby amended and restated to read in its entirety as follows:
(a)-(b)
The
response to Item 4 of this Schedule 13D, as amended by Amendment 1, Amendment 2,
Amendment 3 and Amendment 4, is incorporated herein by reference. As
of the date hereof, the Reporting Persons collectively own 3,333,333 Units
(18.7%) of the membership interests in the Issuer.
By virtue
of the relationships among the Reporting Persons described herein, the Reporting
Persons may be deemed to share beneficial ownership with respect to the Units
reported herein. Except to the extent of a pecuniary interest
therein, each of the Advisors VI and THL Advisors expressly disclaim the
existence of such beneficial ownership.
8
Hawkeye
has direct beneficial ownership of 3,333,333 Units, or approximately 18.7% of
the outstanding membership interests in the Issuer. Hawkeye may be
deemed to share with THL Advisors and Advisors VI voting and dispositive power
with respect to such Units.
Advisors
VI, as the general partner of certain members of Hawkeye which together hold a
majority of Hawkeye’s outstanding membership interests, may be deemed to be the
beneficial owner, or to hold shared voting or dispositive power, of the
3,333,333 Units, or approximately 18.7% of the outstanding membership interests
in the Issuer. THL Advisors, as the general partner of the sole
member of Advisors VI, may be deemed to share voting and dispositive power with
respect to such Units.
THL
Advisors, as the general partner of the sole member of Advisors VI, may be
deemed to be the beneficial owner, or to hold shared voting or dispositive
power, of the 3,333,333 Units, or approximately 18.7% of the outstanding
membership interests in the Issuer.
As a
result of the matters described in Item 4 above and Item 6 of this Schedule 13D,
as amended by Amendment 1, Amendment 2, Amendment 3 and Amendment 4, the
Reporting Persons may be deemed to constitute a “group,” within the meaning of
Section 13(d)(3) of the Exchange Act, with EIP, SDWG and the members of the
Issuer board of directors. The Reporting Persons do not expressly
affirm membership in a group, however, and the Reporting Persons will vote with
the other Voting Agreement parties for the sole purposes set forth in the Voting
Agreement. The Reporting Persons disclaim beneficial ownership of the
Units held by EIP, SDWG and any members of the Issuer board of
directors. Neither the filing of this Schedule 13D, as amended by
Amendment 1, Amendment 2, Amendment 3 and Amendment 4, nor any of its contents
shall be deemed to constitute an admission that the Reporting Persons or any of
their respective affiliates are the beneficial owners of any of Units
beneficially owned by EIP, SDWG and any members of the Issuer board of directors
for purposes of Section 13(d) of the Exchange Act or for any other
purpose.
(c)
Hawkeye
acquired an aggregate of 2,200,000 Units of the Issuer on August 28, 2009 when
all conditions precedent contained in the Subscription Agreement were satisfied.
Hawkeye acquired an aggregate of 1,133,333 Units of the Issuer pursuant to an
issuance by Issuer on September 23, 2009 pursuant to the Second Subscription
Agreement dated September 17, 2009. In addition, Hawkeye entered into
a Backstop Commitment Agreement with the Issuer on April 7, 2010, whereby
Hawkeye agreed to purchase its pro rata share of up to $10 million of Units at a
purchase price of $1.50 per Unit proposed to be offered by the Issuer and to
purchase the balance of any offered Units offered which are not purchased by
other offerees. These Units are not included in the cover pages to
this Schedule 13D because the exact number of Units that the Reporting Persons
will receive is undeterminable as of the date of the filing of this Amendment
4. There have been no other acquisitions of Issuer securities by the
Reporting Persons. The responses to Items 3
9
and 4 of
this Schedule 13D, as amended by Amendment 1, Amendment 2, Amendment 3 and
Amendment 4, are incorporated herein.
Item
6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.
Item 6 is
hereby amended and restated in its entirety as follows:
On August21, 2009, the Issuer and Hawkeye entered into a Subscription Agreement and Side
Letter, each attached as Exhibits 1 and 2 hereto, providing for the subscription
by Hawkeye for 2.2 million membership units of the Issuer at a price of $1.50
per unit for an aggregate purchase price of $3.3 million. The Side Letter also
grants Hawkeye the right to participate pro rata in the future issuance of
additional units by the Issuer and for a period of 14 months after its
investment to receive additional units without consideration if the Issuer
issues units for less than $1.50 per unit with the effect that Hawkeye’s
purchase price per unit would be reduced to the lowest price per unit paid by a
subsequent investor during this 14 month period.
Hawkeye
entered into an Amended and Restated Voting Agreement, attached as Exhibit 3
hereto, effective August 28, 2009, and further amended by Amendment Number 1,
effective as of April 7, 2010, by and among EIP, the Issuer, and Hawkeye,
attached as Exhibits 3 and 4 hereto, (together, the “Voting
Agreement”). Pursuant to the Voting Agreement, among other things,
the Voting Agreement Parties are obligated to nominate for election, recommend
to its members the election of, and vote all units of membership interest of the
Issuer held by such parties for the Designees as members of the Issuer board of
directors, and the Voting Agreement Parties are required not to take any action
that would result in, and to take any action necessary to prevent, the removal
of any of the Designees and are prohibited from granting a proxy with respect to
any units that is inconsistent with the terms of the Voting
Agreement. The Issuer also grants Hawkeye board observation rights
under the Voting Agreement. The Voting Agreement also requires the
parties thereto to vote all units beneficially owned by such party in favor of a
certain amendment to the Issuer’s operating agreement.
The
Issuer has also executed the Registration Rights Agreement, attached as Exhibit
5 hereto which grants Hawkeye two demand registration rights and unlimited
piggyback registration rights under certain circumstances.
On
September 17, 2009, the Issuer and Hawkeye entered into the Second Subscription
Agreement and Side Letter Amendment, each attached as Exhibits 6 and 7 hereto,
providing for the subscription by Hawkeye for 1,133,333 Units at a price of
$1.50 per Unit for an aggregate purchase price of $1,699,999.50. The Side Letter
Amendment extended certain rights of Hawkeye initially granted pursuant to the
Side Letter to the additional 1,133,333 Units subscribed for pursuant to the
Second Subscription Agreement.
10
Hawkeye
and the Issuer entered into that certain Backstop Commitment Agreement dated as
of April 7, 2010, pursuant to which Hawkeye has committed to purchase in a
private placement at a minimum its pro rata share of up to $10 million of Units
at a purchase price of $1.50, and potentially any additional offered Units which
are not purchased by other offerees, and which may otherwise result in one or
more of the actions specified in clauses (a)-(j) of Item 4 of Schedule
13D.
Item
7. Material to be Filed as Exhibits.
Item 7 is
hereby amended and restated in its entirety as follows:
EXHIBIT
1
Subscription
Agreement, by and between the Issuer and Hawkeye, dated as of August 21, 2009
(incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K
filed by Advanced BioEnergy, LLC on August 26, 2009).
EXHIBIT
2
Side
Letter to Subscription Agreement, by the Issuer in favor of Hawkeye, dated as of
August 21, 2009 (incorporated by reference to Exhibit 10.2 to the Current Report
on Form 8-K filed by Advanced BioEnergy, LLC on August 26, 2009).
EXHIBIT
3
Amended
and Restated Voting Agreement, dated as of August 28, 2009, among Issuer, and
the several investors party thereto (incorporated by reference to Exhibit 4.2 to
the Current Report on Form 8-K filed by Advanced BioEnergy, LLC on September 3,2009).
EXHIBIT
4
Amendment
Number 1 to the Amended and Restated Voting Agreement, dated as of April 7,2010, among Issuer and the several investors party thereto (incorporated by
reference to Exhibit 10.6 to the Current Report on Form 8-K filed by
Advanced BioEnergy, LLC on April 8, 2010).
EXHIBIT
5
Registration
Rights Agreement, by and between the Issuer and Hawkeye, dated as of August 28,2009 (incorporated by reference to Exhibit 4.3 to the Current Report on
Form 8-K filed by Advanced BioEnergy, LLC on September 3,2009).
11
EXHIBIT
6
Subscription
Agreement, by and between the Issuer and Hawkeye, dated as of September 17,2009.
EXHIBIT
7
Amendment
to Side Letter to Subscription Agreement, by the Issuer in favor of Hawkeye,
dated as of September 17, 2009.
EXHIBIT
8
Backstop
Commitment Agreement, by and between the Issuer and Hawkeye, dated as of April7, 2010 (incorporated by reference to Exhibit 10.2 to the Current Report on
Form 8-K filed by Advanced BioEnergy, LLC on April 8, 2010).
[remainder
of page intentionally left blank]
12
SIGNATURE
After reasonable inquiry and to the
best of its knowledge and belief, the undersigned certifies that the information
set forth in this Statement is true, complete and correct.
