IEA Infrastructure and Energy Alternatives Inc

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock (as defined herein) outstanding as of August 14, 2019 as disclosed by the Issuer (as defined herein) in its Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on August 14, 2019 (the “Form 10-Q”) plus (ii) 1,977,560 shares of Common Stock issuable upon exercise of the Warrants (as defined herein) held by ASSF IV (as defined herein).

2

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 1,977,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV.

3

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 450,000 shares of Common Stock issuable upon exercise of the Warrants held by ASOF (as defined herein).

4

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 450,000 shares of Common Stock issuable upon exercise of the Warrants held by ASOF.

5

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

6

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

7

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

8

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

9

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

10

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

11

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

12

* The calculation of the percentage of outstanding shares is based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) 2,427,560 shares of Common Stock issuable upon exercise of the Warrants held by ASSF IV and ASOF.

13

This Amendment No. 2 (this “Amendment No. 2”) 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 so amended, the “13D Filing,” and together with this Amendment No. 2, the “Schedule 13D”). Except as amended in this Amendment No. 2, the 13D Filing remains in full force and effect. Terms defined in the 13D Filing are used in this Amendment No. 2 as so defined, unless otherwise defined in this Amendment No. 2.

Item 2. Identity and Background

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

(a) The Reporting Persons have entered into a joint filing agreement, dated as of September 4, 2019, a copy of which is attached hereto as Exhibit 99.3.

Item 3. Source and Amount of Funds or Other Consideration

Item 3 of the 13D Filing is hereby amended and restated in its entirety:

The Warrants received by the Reporting Persons in connection with the acquisition of the Issuer’s Series B Preferred Stock (as defined herein), as described in Item 6 below, were received for no separate consideration.

Item 4. Purpose of Transaction

Item 4 of the 13D Filing is hereby amended and restated in its entirety:

Pursuant to the terms of the Series B Certificates (as defined herein), the Reporting Persons currently have the right to designate and appoint one director to the Issuer’s board of directors (the “Board”).  The Reporting Persons have not yet exercised this right.  In addition, from and after September 13, 2019, and for so long as Ares Management LLC, on behalf of its affiliated funds, investment vehicles and/or managed accounts (“Ares”), and its affiliates hold at least 50.0% of the Series B-2 Preferred Stock (as defined herein) issued to them on August 30, 2019, the Reporting Persons will have the right to designate and appoint one additional director to the Board pursuant to the terms of the Series B Certificates.

The Reporting Persons and their respective representatives have engaged and/or may engage, from time to time, in discussions with the Issuer’s management and/or the Board, including any special committees of the Board, and/or their respective advisors, regarding, among other things, the Issuer’s business, strategies, management, governance, operations, performance, financial matters, capital structure, corporate expenses, backlog and prospects, status of projects, market positioning and strategic and other transactions (including transactions involving one or more of the Reporting Persons and/or their respective affiliates and/or portfolio companies and/or other stockholders of the Issuer), and have engaged and intend to, from time to time, engage in discussions with other current or prospective holders of its Common Stock and/or other equity, debt, notes, instruments or securities, or rights convertible into or exchangeable or exercisable for Common Stock or such other equity, debt, notes, instruments or securities of, the Issuer (collectively, “Securities”), industry analysts, existing or potential strategic partners, acquirers or competitors, financial sponsors, investment firms, investment professionals, capital or potential capital sources (including co-investors), providers of letters of credit and surety bonds, operators, financial, engineering, operating and other consultants and advisors and other third parties regarding such matters (in each case, including with respect to providing or potentially providing capital to the Issuer or to existing or potential strategic partners or acquirers of the Issuer) as well as other matters set forth in clauses (a)-(j) of Item 4 of this Schedule 13D.  These discussions have encompassed, and the Reporting Persons expect will encompass, a broad range of matters relating to the Issuer, including, among other things, the Issuer’s business, operations, finances, management, organizational documents, ownership, capital and corporate structure, dividend policy, corporate governance, the Board and committees thereof, management and director incentive programs, strategic alternatives and transactions as a means of enhancing the value of one or more Securities held by the Reporting Persons, including the sale of the Issuer, its Securities or certain of its subsidiaries, businesses or assets or a business combination or other strategic transaction involving the Issuer or its subsidiaries (and potentially involving one or more of the Reporting Persons and/or their respective affiliates and/or portfolio companies and/or other stockholders of the Issuer), and any regulatory or legal filings, clearances, approvals or waivers relating to the foregoing.  In particular, the Reporting Persons expect to promptly engage in discussions with other stockholders of the Issuer on the implementation of the provisions of the Non-Binding Term Sheet and the Potential Tranche 2 Investment (each, as defined herein).  The Reporting Persons anticipate these discussions will encompass, among other things, coordinated voting activities, the sale of the Issuer at the direction of the holders of the Series B Preferred Stock and governance rights among the stockholders of the Issuer.  The Reporting Persons may exchange information with the Issuer or other persons or entities pursuant to confidentiality or similar agreements and may enter into expense reimbursement agreements with the Issuer and others.

14

The Reporting Persons intend to consider, explore and develop plans, make proposals and negotiate agreements with respect to or relating to, among other things, the foregoing matters and may take other steps seeking to bring about changes with respect to the Issuer to increase the value of one or more Securities held by the Reporting Persons as well as pursue other plans or proposals that relate to or could result in any of the matters set forth in clauses (a)-(j) of Item 4 of Schedule 13D.  The Reporting Persons may also take steps to explore or prepare for various plans, proposals or actions, or propose transactions, regarding any of the foregoing matters, before forming an intention to engage in any such plans, proposals or actions or proceed with any such transactions.

The Reporting Persons intend to review their investment in the Issuer on an ongoing basis.  Depending on various factors, including, without limitation, the outcome of any discussions referenced above, the Issuer’s business, financial position, results, strategic direction or prospects or any strategic alternatives or transactions, actions taken by the Issuer’s management or the Board, price levels of one or more Securities, other investment opportunities available to the Reporting Persons, conditions in the securities, loan or bond markets, general economic or industry conditions or any changes in law or regulations, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate, including, without limitation, the actions and matters described in the preceding paragraph, acquiring, or causing to be acquired, additional Securities, including, without limitation, taking a control position in one or more of the Securities, or disposing of, or causing to be disposed, some or all of the Securities beneficially owned by them, in the public market, in privately negotiated transactions or otherwise, modifying or seeking to modify the terms of any Securities held by them, including through refinancing such Securities, entering into derivatives transactions and other agreements or instruments that increase or decrease the Reporting Persons’ economic exposure with respect to their investment in the Issuer, forming joint ventures with the Issuer or with third parties with respect to the Issuer, its assets or Securities or its subsidiaries, providing debt financing or other forms of capital to the Issuer or to potential strategic partners or acquirers of the Issuer, pledging their interest in Securities as a means of obtaining liquidity or as credit support for loans or other extensions of credit, entering into strategic or other transactions involving the Issuer, its assets or Securities or its subsidiaries and one or more of the Reporting Persons and/or their affiliates and/or portfolio companies and/or other stockholders of the Issuer, including a potential take-private transaction, or forming, making or undertaking other purposes, plans or proposals regarding the Issuer or any of its Securities or its subsidiaries, businesses or assets. If the Reporting Persons were to acquire additional Securities, the Reporting Persons’ ability to influence the Issuer’s management, the Board or the policies of the Issuer may increase.

As described in Item 6 of this Schedule 13-D, ASSF IV and ASOF purchased from the Issuer, for an aggregate purchase price of $50,000,000, an aggregate of 50,000 of Series B-2 Preferred Stock and the Tranche 1 Warrants to purchase 900,000 shares of Common Stock at an exercise price per share of $0.0001.  ASSF IV and ASOF each purchased 25,000 shares of Series B-2 Preferred Stock and 450,000 Tranche 1 Warrants. In addition, the Issuer and Ares Management LLC, on behalf of one or more funds, investment vehicles and/or accounts managed or advised by Ares Management LLC or one or more of its affiliates, entered into the Non-Binding Term Sheet providing, among other things, for (i) the sale of an additional 110,000 shares of Series B Preferred Stock and Tranche 2 Warrants to purchase 4,600,000 shares of Common Stock, 60% of which are currently contemplated to be purchased by one or more affiliates of or funds managed by Ares Management LLC and/or co-investors, and 40% of which are currently contemplated to be purchased by a third party purchaser not yet identified and (ii) the Merger (as defined herein).

The information set forth in Item 6 of this Schedule 13D is incorporated by reference into this Item 4.

Item 5. Interest in Securities of the Issuer

Item 5 of the 13D Filing is hereby amended and restated in its entirety as follows:

(a) Aggregate Number and Percentage of Securities.  As of the date that this Schedule 13D is filed, ASSF IV directly holds Warrants that are exercisable for 1,977,560 shares of Common Stock, and ASOF directly holds Warrants that are exercisable for 450,000 shares of Common Stock.  The Reporting Persons, as a result of the relationships described in Item 2, may be deemed to directly or indirectly beneficially own the shares of Common Stock underlying the Warrants held by ASSF IV and ASOF, which are reported on the cover pages to this Schedule 13D for such Reporting Persons, as applicable.  See also Items 11 and 13 of the cover pages to, and Item 2 of, this Schedule 13D for the percentage of Common Stock underlying the Warrants beneficially owned by each of the Reporting Persons.

Pursuant to Rule 13d-3(d)(1)(i) under the Act, the beneficial ownership disclosed on the cover pages of this Schedule 13D includes shares of Common Stock that currently may be issued upon the exercise of the Warrants.  The applicable ownership percentages reported in this Schedule 13D are based on (i) 22,252,489 shares of Common Stock outstanding as of August 14, 2019 as disclosed by the Issuer in the Form 10-Q plus (ii) the number of shares of Common Stock that are issuable upon exercise of the Warrants held by the applicable Reporting Persons.

15

(b) Power to Vote and Dispose.  See Items 7 through 10 of the cover pages to, and Item 2 of, this Schedule 13D for the aggregate number of shares of Common Stock issuable upon the exercise of the Warrants deemed to be beneficially owned by each of the Reporting Persons, as to which there is sole or shared power to vote or to direct the vote, or sole or shared power to dispose or to direct the disposition.

(c) Transactions Since Amendment No. 1.  Except for the information set forth in this Schedule 13D, including in Items 3, 4 and 6, which is incorporated herein by reference, none of the Reporting Persons has effected any transaction related to the Common Stock since the filing of Amendment No. 1.

(d) Certain Rights of Other Persons.  Except as otherwise described in this Schedule 13D, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, securities covered by this Schedule 13D.

(e) Date Ceased to be a 5% Owner. Not applicable.

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

Item 6 of the 13D Filing is hereby amended and restated in its entirety as follows:

A.                                    May 2019 Transactions

Equity Commitment Agreement

On May 14, 2019, ASSF IV entered into an Equity Commitment Agreement, which was amended and restated on May 20, 2019 (the “Equity Commitment Agreement”), by and among ASSF IV, the Issuer and other investors.  Pursuant to the Equity Commitment Agreement, the Issuer issued to ASSF IV shares of the Series B preferred stock (the “Original Series B Preferred Stock”) and Warrants on the closing date, May 20, 2019 (the “Closing Date”).  ASSF IV purchased an aggregate principal amount of $30,000,000 of Original Series B Preferred Stock and warrants with an exercise price of $0.0001 per share (the “Warrants”) to purchase 1,527,560 shares of Common Stock pursuant to the Equity Commitment Agreement (the “May 2019 Warrants”).

In addition to the May 2019 Warrants, the Equity Commitment Agreement provides that the Issuer may be required to issue additional Warrants to ASSF IV depending upon the Issuer’s EBITDA, as defined in the Equity Commitment Agreement, (calculated on a last twelve month basis) on the last calendar day of each month during the twelve month period commencing on the first anniversary of the Closing Date and ending on the second anniversary of the Closing Date.  ASSF IV will also be issued additional Warrants to the extent additional shares of Common Stock are issued pursuant to that certain Agreement and Plan of Merger, dated November 3, 2017, by and among the Issuer, IEA Energy Services, LLC, Infrastructure and Energy Alternatives, LLC, and the other parties thereto, upon conversion of the Issuer’s Series A Preferred Stock (as defined herein), and in the event of exercises of certain other warrants and equity rights.

In addition, ASSF IV has a right of first refusal (the “ROFR”) with respect to any Issuer transactions involving a debt or equity financing (other than a public offering of common stock) resulting in gross proceeds of at least $25 million to the Issuer or any of its subsidiaries resulting in a deleveraging of the Issuer’s consolidated balance sheet following the Closing Date.  Following the completion of the Tranche 1 Investment (as defined herein), pursuant to the Second Equity Commitment Agreement (as defined herein), unless otherwise agreed by the parties or certain other conditions are not satisfied, the ROFR terminates on September 18, 2019.

Warrant Certificate

The warrant certificate for the May 2019 Warrants issued to ASSF IV pursuant to the Equity Commitment Agreement provides that the holder may exercise the May 2019 Warrants, in whole or in part from time to time, to purchase up to an aggregate amount of 1,527,560 shares of Common Stock at an exercise price of $0.0001 per share of Common Stock.  The May 2019 Warrants became immediately exercisable by ASSF IV upon issuance.  In addition to the adjustments described above, the number of shares of Common Stock issuable upon exercise of the May 2019 Warrants is subject to customary anti-dilution adjustments.

16

Series B-1 Preferred Stock

The terms of the Original Series B Preferred Stock purchased by ASSF IV pursuant to the Equity Commitment Agreement were governed by the Certificate of Designations for the Series B preferred stock (the “Original Certificate of Designations”). On August 30, 2019, in accordance with Section 6 of the Original Certificate of Designations, the Company re-designated the Original Series B Preferred Stock as “Series B-1 Preferred Stock” (as so amended and restated, the “Series B-1 Preferred Stock”) and filed the Amended and Restated Certificate of Designations for the Series B-1 Preferred Stock (the “Series B-1 Certificate”) with the Secretary of State of the State of Delaware. The Series B-1 Certificate provides that dividends accumulate on the Series B-1 Preferred Stock at an initial rate of 18% per annum (which may be reduced to 15% following certain de-leveraging events with respect to the Issuer), provided that the Issuer may elect to pay dividends in cash on a quarterly basis at an initial rate of 15% per annum (which may be reduced to 13.5% following certain de-leveraging events with respect to the Issuer).  The Issuer is required to redeem all of the shares of Series B-1 Preferred Stock on February 15, 2025 and may be required to redeem shares of Series B-1 Preferred Stock from time to time in the event of a change of control or significant dispositions or equity sales by the Issuer. In addition, the Series B-1 Certificate provides that the Series B-1 Preferred Stock will be required to be redeemed by the Issuer upon the occurrence of certain equity transactions with parties other than Ares and its affiliates that generate sufficient proceeds to redeem the Series B Preferred Stock.

As long as Ares and its affiliates hold at least 50.0% of the Series B-1 Preferred Stock initially issued to ASSF IV on the Closing Date, the Series B-1 Certificate provides Ares with the right to designate and appoint one director to the Board.  The Series B-1 Certificate requires that such director appointed by Ares shall serve on each committee of the Board, subject to meeting the applicable requirements for service on such committee as set forth in the listing rules of NASDAQ, the rules and regulations of the Securities and Exchange Commission, the Issuer’s corporate governance guidelines and certain exceptions for conflicts of interest.  Ares has not yet exercised its right to designate and appoint a director to the Board.

The Series B-1 Certificate provides Ares with certain consent rights over actions by the Issuer, including issuances of any equity securities that rank equal or senior to the Series B-1 Preferred Stock, incurrence of certain indebtedness and any change of control or liquidation that would not result in the redemption in full of the Series B-1 Preferred Stock.

Amendment to Registration Rights Agreement

On May 20, 2019, ASSF IV entered into the second amendment (the “Registration Rights Amendment”) to the Issuer’s Registration Rights Agreement, dated as of March 26, 2018 by and among the Issuer and other investors (the “Registration Rights Agreement”).  As so amended, the Registration Rights Agreement requires the Issuer to use commercially reasonable efforts to amend its existing shelf registration statement, or file a new shelf registration statement, and make such registration statement effective as soon as practicable, for the resale of the Common Stock issuable upon exercise of the Warrants issued to ASSF IV pursuant to the Equity Commitment Agreement, subject to certain conditions.  As so amended, the Registration Rights Agreement also provides ASSF IV with customary “piggyback” registration rights with respect to registration statements filed by the Issuer.

The foregoing summaries of the Equity Commitment Agreement, May 2019 Warrants, Series B-1 Certificate and Registration Rights Amendment, in each case, do not purport to be complete and are subject to, and qualified in their entirety by, the full text of such documents, each of which is filed herewith as exhibits hereto, which are incorporated herein by reference.

B.                                    August 2019 Transactions

In connection with the closing of the Tranche 1 Investment, the Issuer (i) amended and restated the Original Certificate of Designations to re-designate the Issuer’s Original Series B Preferred Stock issued and outstanding prior to the closing of the Tranche 1 Investment as “Series B-1 Preferred Stock” and (ii) created a new series of the Issuer’s preferred stock designated as “Series B-2 Preferred Stock”.

Second Equity Commitment Agreement

On August 13, 2019, ASSF IV and ASOF entered into an Equity Commitment Agreement, as amended on August 30, 2019 (the “Second Equity Commitment Agreement”), by and among ASSF IV, ASOF, the Issuer and other parties thereto.  Pursuant to the Second Equity Commitment Agreement, the Issuer issued and sold to ASSF IV and ASOF 50,000 shares of newly created Series B-2 Preferred Stock (the “Series B-2 Preferred Stock”, and together with the Series B-1 Preferred Stock, the “Series B Preferred Stock”) and 900,000 Warrants (the “Tranche 1 Warrants”) for an aggregate purchase price of $50,000,000 (the “Tranche 1 Investment”).  ASSF IV and ASOF each purchased 25,000 shares of Series B-2 Preferred Stock and 450,000 Tranche 1 Warrants on August 30, 2019 (the “Second ECA Closing Date”).

17

In addition to the Tranche 1 Warrants issued on the Second ECA Closing Date, the Second Equity Commitment Agreement provides that the Issuer may be required to issue additional Warrants to ASSF IV and ASOF to the extent additional shares of Common Stock are issued pursuant to that certain Agreement and Plan of Merger, dated November 3, 2017, by and among the Issuer, IEA Energy Services, LLC, Infrastructure and Energy Alternatives, LLC, and the other parties thereto, upon conversion of the Issuer’s Series A Preferred Stock, and in the event of exercises of certain other warrants and equity rights.

Under the Second Equity Commitment Agreement, unless otherwise agreed by the parties or certain other conditions are not satisfied, the ROFR will terminate on September 18, 2019.

The Second Equity Commitment Agreement requires that, through September 18, 2019, the Issuer shall, and shall cause its affiliates and representatives to, use reasonable best efforts (subject to applicable fiduciary duties of the Board) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Non-Binding Term Sheet including, without limitation, (i) providing diligence materials, (ii) providing access to the Issuer and its subsidiaries representatives, (iii) obtaining consents, registrations and approvals to consummate the transactions contemplated by the Non-Binding Term Sheet, (iv) negotiating and executing, in good faith, definitive documentation for the consummation of the transactions contemplated by the Non-Binding Term Sheet and (v) otherwise negotiating in good faith with respect to the transactions contemplated by the Non-Binding Term Sheet.

Third Amendment to Registration Rights Agreement

On the Second ECA Closing Date, the Issuer, ASSF IV and ASOF entered into the third amendment (the “Third Registration Rights Amendment”) to the Registration Rights Agreement.  The Third Registration Rights Amendment requires the Issuer to use commercially reasonable efforts to amend its existing shelf registration statement, or file a new shelf registration statement, and make such registration statement effective as soon as practicable, for the resale of the Common Stock issuable upon exercise of the Warrants issued to ASSF IV and ASOF pursuant to the Second Equity Commitment Agreement, subject to certain conditions.  The Third Registration Rights Amendment also provides ASSF IV and ASOF with customary “piggyback” registration rights with respect to registration statements filed by the Issuer.

Warrant Certificates

Each of the warrant certificates for the Tranche 1 Warrants issued to ASSF IV and ASOF pursuant to the Second Equity Commitment Agreement provide that the holder may exercise the Tranche 1 Warrants, in whole or in part from time to time, to purchase up to an aggregate amount of 450,000 shares of Common Stock at an exercise price of $0.0001 per share of Common Stock.  The Tranche 1 Warrants became immediately exercisable by ASSF IV and ASOF upon issuance.  The number of shares of Common Stock issuable upon exercise of the Tranche 1 Warrants is subject to customary anti-dilution adjustments. The number of shares of common stock into which the Tranche 1 Warrants are exercisable is limited as necessary to comply with NASDAQ rules. The Issuer has agreed in the Second Equity Commitment Agreement to use its best efforts to obtain shareholder approval of the issuance of common stock upon exercise of the Tranche 1 Warrants as needed to comply with NASDAQ rules.

Series B-2 Certificate

The terms of the Series B-2 Preferred Stock purchased by ASSF IV and ASOF pursuant to the Second Equity Commitment Agreement are governed by the Certificate of Designations for the Series B-2 Preferred Stock (the “Series B-2 Certificate,” and together with Series B-1 Certificate, the “Series B Certificates”).

The Series B-2 Certificate provides that dividends accumulate on the Series B-2 Preferred Stock at an initial rate of 18% per annum (which may be reduced to 15% following certain de-leveraging events with respect to the Issuer), provided that the Issuer may elect to pay dividends in cash on a quarterly basis. If the Issuer elects to pay dividends in cash on a quarterly basis, the Series B-2 Certificate provides that dividends accumulate on the Series B-2 Preferred Stock at an initial rate of 15.0% per annum if the Issuer’s total net leverage ratio (as specified in the Series B-2 Certificate) is greater than 1.50 to 1.00 (which may be reduced to 13.5% following certain de-leveraging events with respect to the Issuer), and if the Issuer’s total net leverage ratio is less than or equal to 1.50 to 1.00, 12.0% per annum. The Issuer will be required to redeem all of the shares of Series B-2 Preferred Stock on February 15, 2025 and may be required to redeem shares of Series B-2 Preferred Stock from time to time, including, but not limited to, in the event of a change of control or significant dispositions or equity sales by the Issuer.  In addition, the Series B-2 Certificate provides that the Series B-2 Preferred Stock will be required to be redeemed by the Issuer upon the occurrence of certain equity transactions with parties other than Ares and its affiliates that generate sufficient proceeds to redeem the Series B Preferred Stock.

18

Ares holds the right to designate and appoint one director to the Board pursuant to the Series B-1 Certificate, as described above, under “A. May 2019 Transactions—Series B-1 Preferred Stock.”  Under the Series B-2 Certificate, from and after September 13, 2019, as long as Ares and its affiliates hold at least 50.0% of the Series B-2 Preferred Stock issued to them on the Second ECA Closing Date, Ares will have the right to designate and appoint one additional director to the Board.  The Series B-2 Certificate provides that such director may serve on each committee of the Board, subject to meeting the applicable requirements for service on such committee as set forth in the listing rules of NASDAQ, the rules and regulations of the Securities and Exchange Commission, the Issuer’s corporate governance guidelines and certain exceptions for conflicts of interest.

The Series B-2 Certificate provides Ares with certain consent rights over actions by the Issuer, including, but not limited to, issuances of any equity securities that rank equal or senior to the Series B-2 Preferred Stock, incurrence of certain indebtedness and any change of control or liquidation that would not result in the redemption in full of the Series B-2 Preferred Stock.

Non-Binding Term Sheet and Potential Tranche 2 Investment

On August 13, 2019, the Issuer entered into a non-binding indicative term sheet with Ares Management LLC, on behalf of one or more funds, investment vehicles and/or accounts managed or advised by Ares Management LLC or one or more of its affiliates (the “Non-Binding Term Sheet”) providing for, among other things:

·                  the sale of an additional 110,000 shares of Series B-2 Preferred Stock and 4,600,000 Tranche 2 Warrants for an aggregate purchase price of $110.0 million, 60% of which will be purchased by one or more affiliates of or funds managed by Ares Management LLC (the “Potential Ares Tranche 2 Purchasers”) and 40% of which will be purchased by a third party purchaser not yet identified;

·                  either the purchase by the Potential Ares Tranche 2 Purchasers of all issued and outstanding shares of the Issuer’s Series A Preferred Stock (the “Series A Preferred Stock”) at a 10% discount to its liquidation preference and subsequent conversion of the acquired shares to Series B Preferred Stock (without giving effect to the discount), or the purchase by the Potential Ares Tranche 2 Purchasers of additional shares of Series B-2 Preferred Stock and redemption by the Issuer of the issued and outstanding Series A Preferred Stock at a 10% discount to its liquidation preference using the proceeds thereof, in either case, with an additional 1,250,000 Warrants issued to the Potential Ares Tranche 2 Purchasers (together with the sale of the additional 110,000 shares of the Series B-2 Preferred Stock and the additional 4,600,000 Tranche 2 Warrants, the “Potential Tranche 2 Investment”); and

·                  subject to the conditions described below, the entry by the Issuer into a merger agreement, with 60% of the consideration provided by the Potential Ares Tranche 2 Purchasers and 40% provided by a third party purchaser not yet identified to which all holders of Common Stock (excluding Oaktree Capital Management and its affiliates and certain insiders) would receive cash in the amount of $5.12 per share (as further described below), and Oaktree Capital Management and its affiliates and certain insiders would receive shares in the surviving entity (the “Merger”). Entry into a merger agreement will be subject to the Board’s recommendation (which will promptly be made at the request of the special committee of the Board) of the Merger to the stockholders of the Issuer and consummation of the Merger will be subject to (i) a majority of the holders of the Issuer’s common stock voting in favor of the Merger, (ii) a majority of the non-interested holders of the Issuer’s common stock voting in favor of the Merger, (iii) approval of the special committee of the Board, (iv) the holders of the Series A Preferred Stock voting in favor of the Merger to the extent required by the Certificate of Designations for the Series A Preferred Stock (if applicable) and (v) other conditions to be determined by the Potential Ares Tranche 2 Purchasers and other investors and accepted by the Issuer. The terms, conditions and form of the merger agreement will be customary for public company transactions (but subject to agreement on definitive documentation among the parties).

The Non-Binding Term Sheet provides that the Potential Tranche 2 Investment, if consummated, would include a right to participate by the Issuer’s common stockholders (subject to a maximum participation of 15% of the 110,000 shares of Series B-2 Preferred Stock and, if the Merger is consummated, an individual investment minimum of $50,000, an aggregate minimum of $3.0 million, a limit on the number of holders and other terms to be agreed between the Issuer and the Potential Ares Tranche 2 Purchasers, with approval of the special committee of the Board).

The Tranche 2 Warrants to be issued under the Potential Tranche 2 Investment will have anti-dilution provisions.

19

The Potential Tranche 2 Investment and the Merger are proposals that remain subject to, among other things, (i) a due diligence review by the Potential Ares Tranche 2 Purchasers of the Issuer satisfactory to Potential Ares Tranche 2 Purchasers in their sole subjective discretion, (ii) receipt of final internal approvals by the Potential Ares Tranche 2 Purchasers, (iii) negotiation of definitive documentation, (iv) required shareholder and regulatory approvals, including the approval of the NASDAQ, (v) approval of the special committee of the Board and (vi) participation by a not yet identified third party purchaser for 40% of the Tranche 1 Investment, Potential Tranche 2 Investment and the Merger. The Non-Binding Term Sheet is non-binding, and there can be no assurance that the Issuer will enter into a binding agreement or consummate the Potential Tranche 2 Investment or the Merger. Because of the non-binding nature of the Non-Binding Term Sheet, the Potential Ares Tranche 2 Purchasers have no obligation to complete the Potential Tranche 2 Investment or the Merger.

The foregoing summaries of the Second Equity Commitment Agreement, the Tranche 1 Warrants, the Third Registration Rights Amendment, the Series B-2 Certificate and the Non-Binding Term Sheet (included as an exhibit to the Second Equity Commitment Agreement), in each case, do not purport to be complete and are subject to, and qualified in their entirety by, the full text of such documents, each of which is filed herewith as exhibits hereto or is incorporated herein by reference.

Item 7. Material to be Filed as Exhibits

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

20

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: September 4, 2019

21

22

EXHIBIT INDEX

23