(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. ¨
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).
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
OFSHARES
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 May 10, 2010, as
reported by Advanced BioEnergy, LLC (“Issuer”) in its Quarterly Report on Form
10-Q for the quarter ended March 31, 2010 on May 10, 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
OFSHARES
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 May 10, 2010, as
reported by Advanced BioEnergy, LLC (“Issuer”) in its Quarterly Report on Form
10-Q for the quarter ended March 31, 2010 on May 10, 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
OFSHARES
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 May 10, 2010, as
reported by Advanced BioEnergy, LLC (“Issuer”) in its Quarterly Report on Form
10-Q for the quarter ended March 31, 2010 on May 10,2010.
4
Explanatory
Note:
This
Amendment 5 is being filed by the Reporting Persons in connection with the
entering into of a Subscription Agreement regarding the private placement of
units of membership interest (“Units”) of Advanced BioEnergy, LLC, a Delaware
limited liability company (the “Issuer”) to the Reporting
Persons. The Subscription Agreement was contemplated by that certain
Backstop Commitment Agreement dated as of April 7, 2010, pursuant to which
Hawkeye had committed to purchase its pro rata share of up to $10 million Units
at a purchase price of $1.50, and any additional offered Units not purchased by
other offerees, in a private placement. Pursuant to such private
placement, subject to the terms and conditions in the Subscription Agreement and
Backstop Commitment Agreement, the Reporting Persons will purchase 5,171,891
Units at a price per Unit of $1.50.
Item
1. Security and Issuer.
Item 1 is
hereby amended and restated to read in its entirety as follows:
This
Fifth Amendment to the Statement on Schedule 13D (“Amendment 5”) constitutes the
fifth 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”), that Third
Amendment Dated October 5, 2009 (“Amendment 3”) and that Fourth Amendment Dated
April 8, 2010 (“Amendment 4”). This Amendment 5 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 5, the Schedule 13D as amended by
Amendment 1, Amendment 2, Amendment 3 and Amendment 4 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, Amendment 4
and Amendment 5 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 company (“Advisors VI”); and (3) Thomas H. Lee
Advisors, LLC, a Delaware limited liability company (“THL
Advisors”).
5
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,
Amendment 4 and Amendment 5. 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,
Amendment 4 and Amendment 5, 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 or will make 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 49.7% of the outstanding units of the
Issuer. The cover pages to this Schedule 13D, as amended by Amendment
1, Amendment 2, Amendment 3, Amendment 4 and Amendment 5, 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 3. Source and Amount of Funds or Other
Consideration.
Item 3 is
hereby amended and restated to read in its entirety as follows:
On August28, 2009 (the “Closing Date”), Hawkeye paid an aggregate purchase price of
$3,300,000 to acquire 2,200,000 units of the Issuer (the “Initial Transaction”)
pursuant to that certain subscription agreement, between Hawkeye and the Issuer,
dated as of August 21, 2009 (the “First Subscription Agreement”) and that
certain Side Letter from the Issuer, dated as of August 21, 2009 (the “Initial
Side Letter”) attached hereto as Exhibits 1 and 2 and incorporated by
reference. On September 17, 2009, Hawkeye submitted a subscription
agreement (the “Second Subscription Agreement”) for an additional 1,133,333
Units of the Issuer valued at $1,699,999.50 (the “Second Transaction,” and
6
together
with the Initial Transaction, the “Transaction”), and the Issuer and Hawkeye
entered into that certain Amendment to the Side Letter from the Issuer (the
“Side Letter Amendment,” and together with the Initial Side Letter, the “Side
Letter”), attached hereto as Exhibits 6 and 7 and incorporated by
reference. The 1,133,333 Units were issued to Hawkeye on September23, 2009. On April 7, 2010, Hawkeye entered into that certain
Backstop Commitment Agreement attached hereto as Exhibit 8 and incorporated by
reference, which contemplated that Hawkeye would purchase its pro rata share of
up to $10 million Units, and additional offered Units not purchased by other
offerees, in a private placement. In connection with that Backstop
Commitment Agreement, Hawkeye submitted a subscription agreement for an
additional 5,171,891 Units of the Issuer (for the price $7,757,836.50), dated as
of June 4, 2010 (the “Third Subscription Agreement” and together with the First
Subscription Agreement and Second Subscription Agreement, the “Subscription
Agreements”) attached hereto as Exhibit 9 and incorporated by reference. The
description of the Subscription Agreements and Side Letter in this Schedule 13D,
as amended by Amendment 1, Amendment 2, Amendment 3, Amendment 4 and Amendment 5
does not purport to be complete, and is qualified in its entirety by reference
to such agreements. The funds used by the Hawkeye to pay such subscription
amounts were obtained from cash.
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 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 Agreements, 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 Initial 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
and the Third Subscription Agreement extends
7
certain
rights under the Side Letter to the additional shares acquired by Hawkeye under
the Second Subscription Agreement and Third Subscription Agreement.
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 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 Agreements, Side Letter,
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
8
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(a)-(b) is hereby amended by the addition of the following:
(a)-(b)
As
described in Item 3 above, Hawkeye has submitted a Third Subscription Agreement
for 5,171,891 Units of the Issuer, which would bring the Reporting Persons’
total beneficial ownership of Units to 8,505,224 Units. Whether any or all of
the Units covered by the Third Subscription Agreement will be acquired is
dependent upon the satisfaction of certain closing conditions not within the
control of the Reporting Persons, and therefore the Reporting Persons disclaim
beneficial ownership of the additional 5,171,891 Units at this
time.
Item 5(c)
is hereby amended and restated in its entirety as follows:
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, in connection with
the Backstop Commitment Agreement, Hawkeye has submitted the Third Subscription
Agreement for an aggregate of 5,171,891 Units at a price of $1.50 per Unit for
an aggregate purchase price of $7,757,836.50. These Units are not
included in the cover pages to this Schedule 13D because the acquisition of
Units by the Reporting Persons is contingent upon certain closing conditions not
within the control of the Reporting Persons. There have been no other
acquisitions of Issuer securities by the Reporting Persons. The responses to
Items 3 and 4 of this Schedule 13D, as amended by Amendment 1, Amendment 2,
Amendment 3, Amendment 4 and Amendment 5, are incorporated herein.
Item
6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.
Item 6 is
hereby amended by the addition of the following:
On June4, 2010, the Issuer and Hawkeye entered into the Third Subscription Agreement,
attached as Exhibit 9 hereto, providing for the subscription by Hawkeye for
5,171,891 Units at a price of $1.50 per Unit for an aggregate purchase price of
$7,757,836.50. The Third Subscription Agreement also extends certain
rights of Hawkeye initially granted pursuant to the Side Letters to the
additional 5,171,891 Units subscribed for pursuant to the Third Subscription
Agreement.
9
Item
7. Material to be Filed as Exhibits.
Item 7 is
hereby amended by the addition of the following:
EXHIBIT
9
Subscription
Agreement, by and between the Issuer and Hawkeye, dated as of June 4,2010.
[remainder of page intentionally left
blank]
10
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.
