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UNITED STATES |
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SECURITIES AND EXCHANGE COMMISSION |
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Washington, D.C. 20549 |
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SCHEDULE 13D |
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Under the Securities Exchange Act of 1934
(Amendment No. 6)*
INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.
(Name of Issuer)
Common Stock, $0.0001 par value
(Title of Class of Securities)
45686J104
(CUSIP Number)
Alison S. Ressler, Esq.
Rita-Anne ONeill, Esq.
Sullivan & Cromwell LLP
1888 Century Park East, Suite 2100
Los Angeles, California 90067
(310) 712-6600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 23, 2020
(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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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13. |
Percent of Class Represented by Amount in Row (11) | |||
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14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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13. |
Percent of Class Represented by Amount in Row (11) | |||
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14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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13. |
Percent of Class Represented by Amount in Row (11) | |||
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14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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13. |
Percent of Class Represented by Amount in Row (11) | |||
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14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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13. |
Percent of Class Represented by Amount in Row (11) | |||
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|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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|
13. |
Percent of Class Represented by Amount in Row (11) | |||
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|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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|
6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
| |||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
| |||||
|
13. |
Percent of Class Represented by Amount in Row (11) | |||
| |||||
|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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13. |
Percent of Class Represented by Amount in Row (11) | |||
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|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
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|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
| |||||
|
13. |
Percent of Class Represented by Amount in Row (11) | |||
| |||||
|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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1. |
Names of Reporting Persons | |||
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
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4. |
Source of Funds (See Instructions) | |||
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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|
6. |
Citizenship or Place of Organization | |||
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Number of |
7. |
Sole Voting Power | |||
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8. |
Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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10. |
Shared Dispositive Power | ||||
| |||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
| |||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
| |||||
|
13. |
Percent of Class Represented by Amount in Row (11) | |||
| |||||
|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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|
1. |
Names of Reporting Persons | |||
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|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
|
|
(a) |
o | ||
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(b) |
x | ||
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3. |
SEC Use Only | |||
| |||||
|
4. |
Source of Funds (See Instructions) | |||
| |||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
| |||||
|
6. |
Citizenship or Place of Organization | |||
| |||||
Number of |
7. |
Sole Voting Power | |||
| |||||
8. |
Shared Voting Power | ||||
| |||||
9. |
Sole Dispositive Power | ||||
| |||||
10. |
Shared Dispositive Power | ||||
| |||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
| |||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
| |||||
|
13. |
Percent of Class Represented by Amount in Row (11) | |||
| |||||
|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
CUSIP No. 45686J104 | |||||
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|
1. |
Names of Reporting Persons | |||
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|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |||
|
|
(a) |
o | ||
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|
(b) |
x | ||
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|
3. |
SEC Use Only | |||
| |||||
|
4. |
Source of Funds (See Instructions) | |||
| |||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
| |||||
|
6. |
Citizenship or Place of Organization | |||
| |||||
Number of |
7. |
Sole Voting Power | |||
| |||||
8. |
Shared Voting Power | ||||
| |||||
9. |
Sole Dispositive Power | ||||
| |||||
10. |
Shared Dispositive Power | ||||
| |||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
| |||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
| |||||
|
13. |
Percent of Class Represented by Amount in Row (11) | |||
| |||||
|
14. |
Type of Reporting Person (See Instructions) | |||
* 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.
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;
· 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. |
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
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ARES SPECIAL SITUATIONS FUND IV, L.P. | ||
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By: |
ASSF OPERATING MANAGER IV, L.P. | |
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Its: |
Manager | |
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Authorized Signatory |
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ASSF OPERATING MANAGER IV, L.P. | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Authorized Signatory |
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ASOF HOLDINGS I, L.P. | ||
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ASOF INVESTMENT MANAGEMENT LLC | |
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Authorized Signatory |
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ASOF INVESTMENT MANAGEMENT LLC | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Authorized Signatory |
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ARES MANAGEMENT LLC | ||
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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ARES MANAGEMENT HOLDINGS L.P. | ||
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ARES HOLDCO LLC | |
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General Partner | |
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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ARES HOLDCO LLC | ||
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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ARES HOLDINGS INC. | ||
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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ARES MANAGEMENT CORPORATION | ||
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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ARES MANAGEMENT GP LLC | ||
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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ARES VOTING LLC | ||
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ARES PARTNERS HOLDCO LLC | |
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Its Sole Member | |
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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ARES PARTNERS HOLDCO LLC | ||
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/s/ Naseem Sagati Aghili | |
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Naseem Sagati Aghili |
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Authorized Signatory |
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. |
SCHEDULE A
BOARD OF MANAGERS OF
ARES PARTNERS HOLDCO LLC
Name |
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Present Principal Occupation and Employment |
Michael J Arougheti |
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Co-Founder, Chief Executive Officer and President of Ares Management |
Ryan Berry |
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Ares Chief Marketing and Strategy Officer |
R. Kipp deVeer |
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Head of Ares Credit Group |
David B. Kaplan |
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Co-Founder, Co-Chairman of Ares Private Equity Group |
Michael R. McFerran |
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Chief Operating Officer and Chief Financial Officer of Ares Management |
Antony P. Ressler |
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Co-Founder, Executive Chairman of Ares Management |
Bennett Rosenthal |
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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.
DIRECTORS AND EXECUTIVE OFFICERS OF
ARES MANAGEMENT CORPORATION
Name |
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Director/Executive Officer |
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Present Principal Occupation and Employment |
Michael J Arougheti |
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Director and Executive Officer |
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Co-Founder, Chief Executive Officer and President of Ares Management |
David B. Kaplan |
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Director and Executive Officer |
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Co-Founder, Co-Chairman of Ares Private Equity Group |
Antony P. Ressler |
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Director and Executive Officer |
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Co-Founder, Executive Chairman of Ares Management |
Bennett Rosenthal |
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Director and Executive Officer |
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Co-Founder, Co-Chairman of Ares Private Equity Group |
John H. Kissick |
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Director |
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Co-Founder, Member of certain Ares Investment Committees |
Paul G. Joubert |
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Director |
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Founding Partner of EdgeAdvisors and a Venture Partner in Converge Venture Partners |
Michael Lynton |
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Director |
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Chairman of the Board of Snap Inc. |
Dr. Judy Olian |
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Director |
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President of Quinnipiac University |
Antoinette C. Bush |
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Director |
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Executive Vice President and Global Head of Government Affairs for News Corp |
Ryan Berry |
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Executive Officer |
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Ares Chief Marketing and Strategy Officer |
R. Kipp deVeer |
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Executive Officer |
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Head of Ares Credit Group |
Michael R. McFerran |
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Executive Officer |
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Chief Operating Officer and Chief Financial Officer of Ares Management |
Naseem Sagati Aghili |
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Executive Officer |
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General Counsel and Secretary of Ares Management |
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.
Execution Version
WAIVER AGREEMENT
January 23, 2020
Reference is made to the (i) Second Amended and Restated Certificate of Designations of Series B-1 Preferred Stock of Infrastructure and Energy Alternatives, Inc. (the Corporation), dated as of November 14, 2019 (the Series B-1 COD) and the (ii) Amended and Restated Certificate of Designations of Series B-2 Preferred Stock of the Corporation, dated as of November 14, 2019 (the Series B-2 COD, and together with the Series B-1 COD, the CODs). Capitalized terms used but not defined herein have the meanings assigned to such terms in the Series B-2 COD.
Pursuant to Section 14 of each of the CODs, (i) effective as of the Closing Date (as defined in the Series B-1 COD) for so long as Ares and its Affiliates holds at least 50% of the Series B-1 Preferred Stock issued to Ares on the Closing Date (as defined in the Series B-1 COD), Ares has the exclusive right to designate and appoint or replace the First Series B Director and (ii) effective as of September 13, 2019, for so long as Ares and its Affiliates holds at least 50% of the Series B-2 Preferred Stock issued to Ares on the Series B-2 Closing Date, Ares has the exclusive right to designate and appoint or replace the Second Series B Director.
Ares hereby agrees that, for so long as (i) the size of the Board is comprised of seven (7) or fewer individuals, (ii) 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 (such directors, Independent Directors), (iii) Ares is entitled to appoint both the First Series B Director and the Second Series B Director, (iv) each of the stockholders of the Corporation and their respective Affiliates with specific board designation rights as of the date hereof (other than Ares and its Affiliates) is entitled to appoint no more than one director to the Board and (v) no stockholder of the Corporation (other than the stockholders of the Corporation as of the date hereof or their Affiliates) is entitled to appoint any directors to the Board, Ares shall only be entitled to appoint either the First Series B Director or the Second Series B Director, but not both. If at any time, any of the conditions set forth in clauses (i) through (v) of the immediately foregoing sentence is no longer satisfied, this waiver agreement shall automatically terminate and be of no further force and effect.
Ares hereby agrees that, for so long as he serves as the Chief Executive Officer of the Company, John Paul Roehm shall be included as a member of the Board; provided that John Paul Roehm shall cease to be included as a member of the Board immediately upon his ceasing to serve as Chief Executive Officer of the Corporation (with it being understood that the Board may, in its sole discretion, elect to nominate John Paul Roehm to serve as his successor to the extent permissible under the organizational documents of the Corporation then in effect.)
Without limiting the generality of the foregoing and without limiting anything set forth in the CODs, the Corporation agrees with Ares to, if applicable, include the First Series B Director or Second Series B Director, as applicable, in the slate of nominees recommended by the Board and to use its reasonable best efforts to cause the election of such First Series B Director or Second Series B Director, as applicable, to the Board, including, without limitation, nominating the First Series B Director or Second Series B Director, as applicable, to be elected as a director of the Corporation, recommending election and soliciting proxies or consents in favor thereof, in each case subject to applicable law.
Except as specifically set forth herein, nothing contained in this waiver agreement shall be deemed to diminish or modify any rights of Ares or any obligations of the Corporation set forth in the CODs.
This waiver agreement is intended to bind and inure to the benefit of the parties hereto and their respective successors and assigns. This waiver agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
This waiver agreement may be executed in one or more counterparts, each of which shall constitute part of the same agreement.
[signature page follows]
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ARES MANAGEMENT LLC, ON BEHALF OF ITS AFFILIATED FUNDS, INVESTMENT VEHICLES AND/OR MANAGED ACCOUNTS | |||
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By: |
/s/ Chris Kerezsi | ||
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Name: |
Chris Kerezsi | ||
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Title: |
Authorized Signatory | ||
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Agreed and Accepted as of the date first written above: |
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INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. |
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By: |
/s/ John P. Roehm |
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Name: |
John P. Roehm |
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Title: |
Chief Executive Officer |
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[Signature Page to Waiver Agreement]
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each of the Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.0001 per share, of Infrastructure and Energy Alternatives, Inc., a Delaware corporation, and that this agreement may be included as an exhibit to such joint filing.
IN WITNESS WHEREOF, the undersigned hereby execute this agreement as of January 27, 2020.
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ARES SPECIAL SITUATIONS FUND IV, L.P. | ||
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By: |
ASSF OPERATING MANAGER IV, L.P. | |
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Its: |
Manager | |
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ASSF OPERATING MANAGER IV, L.P. | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ASOF HOLDINGS I, L.P. | ||
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By: |
ASOF INVESTMENT MANAGEMENT LLC | |
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Its: |
Manager | |
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ASOF INVESTMENT MANAGEMENT LLC | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES MANAGEMENT LLC | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES MANAGEMENT HOLDINGS L.P. | ||
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By: |
ARES HOLDCO LLC | |
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Its: |
General Partner | |
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES HOLDCO LLC | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES HOLDINGS INC. | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES MANAGEMENT CORPORATION | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES VOTING LLC | ||
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By: |
ARES PARTNERS HOLDCO LLC | |
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Its Sole Member | |
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES MANAGEMENT GP LLC | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |
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ARES PARTNERS HOLDCO LLC | ||
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/s/ Naseem Sagati Aghili | |
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By: |
Naseem Sagati Aghili |
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Its: |
Authorized Signatory |