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THL Equity Advisors VI, LLC, et al. – ‘SC 13D/A’ on 4/9/10 re: Advanced BioEnergy, LLC

On:  Friday, 4/9/10, at 4:02pm ET   ·   Accession #:  909518-10-229   ·   File #:  5-82385

Previous ‘SC 13D’:  ‘SC 13D/A’ on 10/14/09   ·   Next:  ‘SC 13D/A’ on 6/7/10   ·   Latest:  ‘SC 13D/A’ on 4/22/14

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/09/10  THL Equity Advisors VI, LLC       SC 13D/A               3:292K Advanced BioEnergy, LLC           Weil Gotshal & Ma… 04/FA
          Hawkeye Energy Holdings, LLC
          Thomas H. Lee Advisors, LLC

Amendment to General Statement of Beneficial Ownership   —   Schedule 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D/A    Amendment No.4                                      HTML     82K 
 2: EX-99.1     Exhibit 6 - Subscription Agreement                  HTML     77K 
 3: EX-99.2     Exhibit 7 - Side Letter                             HTML     18K 


SC 13D/A   —   Amendment No.4


This is an HTML Document rendered as filed.  [ Alternative Formats ]




SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC  20549

SCHEDULE 13D
(Rule 13d-101)

UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No.  4)*

ADVANCED BIOENERGY, LLC
(Name of Issuer)
 
 
Membership Units
(Title of Class of Securities)
 
 
Not applicable.
(CUSIP Number)
 
 
Steven M. Peck, Esq.
Weil, Gotshal & Manges LLP
100 Federal Street, 34th Floor
(617) 772-8300
(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 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, Minnesota  55305.

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:

The responses to Items 3, 4 and 5 are incorporated herein by reference.

On August 21, 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 April 7, 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.

Dated:  April 9, 2010
       
         
   
HAWKEYE ENERGY HOLDINGS, LLC
         
   
By:
   /s/  Timothy Callahan
     
Name:
Timothy Callahan
     
Title:
Chief Financial Officer
         
         
   
THOMAS H. LEE ADVISORS, LLC
         
   
By:
   /s/  Charles P. Holden
     
Name:
Charles P. Holden
     
Title:
Authorized Signatory
         
         
   
THL EQUITY ADVISORS VI, LLC
         
   
By:
THOMAS H. LEE PARTNERS, L.P.
its general partner
   
By:
THOMAS H. LEE ADVISORS, LLC its general partner
         
   
By:
   /s/  Charles P. Holden
     
Name:
Charles P. Holden
     
Title:
Authorized Signatory


[Signature Page to 13D/A]

13
 


Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘SC 13D/A’ Filing    Date    Other Filings
Filed on:4/9/10
4/8/108-K,  PRE 14A,  SC 13D/A
4/7/108-K
2/16/1010-Q
2/15/10
12/31/0910-Q
10/5/098-K
9/25/094,  SC 13D/A
9/23/094
9/21/09SC 13D/A
9/17/09
9/9/09SC 13D
9/3/098-K,  SC 13D
8/28/093,  3/A,  8-K
8/26/098-K,  PRE 14A
8/21/098-K
 List all Filings 
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