SEC Form SC 13D/A filed by Algonquin Power & Utilities Corp. (Amendment)

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

______________

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

RULE 13d-2(a)

(Amendment No. 1)¹

Algonquin Power & Utilities Corp.

(Name of Issuer)

Common Shares, no par value

(Title of Class of Securities)

015857105

(CUSIP Number)

JEFFREY C. SMITH

STARBOARD VALUE LP

777 Third Avenue, 18th Floor

New York, New York 10017

(212) 845-7977

ANDREW FREEDMAN, ESQ.

MEAGAN REDA, ESQ.

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

New York, New York 10019

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

July 6, 2023

(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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ☐.

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 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).

* Includes 550,000 shares underlying certain forward purchase contracts exercisable within 60 days hereof. Possesses economic exposure to an aggregate of 52,163,000 shares (representing approximately 7.6% of the outstanding shares) due to certain cash-settled total return swap agreements.

* Includes 550,000 shares underlying certain forward purchase contracts exercisable within 60 days hereof. Possesses economic exposure to an aggregate of 17,824,350 shares (representing approximately 2.6% of the outstanding shares) due to certain cash-settled total return swap agreements.

* Includes 550,000 shares underlying certain forward purchase contracts exercisable within 60 days hereof. Possesses economic exposure to an aggregate of 52,163,000 shares (representing approximately 7.6% of the outstanding shares) due to certain cash-settled total return swap agreements.

* Includes 550,000 shares underlying certain forward purchase contracts exercisable within 60 days hereof. Possesses economic exposure to an aggregate of 52,163,000 shares (representing approximately 7.6% of the outstanding shares) due to certain cash-settled total return swap agreements.

* Includes 550,000 shares underlying certain forward purchase contracts exercisable within 60 days hereof. Possesses economic exposure to an aggregate of 52,163,000 shares (representing approximately 7.6% of the outstanding shares) due to certain cash-settled total return swap agreements.

* Includes 550,000 shares underlying certain forward purchase contracts exercisable within 60 days hereof. Possesses economic exposure to an aggregate of 52,163,000 shares (representing approximately 7.6% of the outstanding shares) due to certain cash-settled total return swap agreements.

* Includes 550,000 shares underlying certain forward purchase contracts exercisable within 60 days hereof. Possesses economic exposure to an aggregate of 52,163,000 shares (representing approximately 7.6% of the outstanding shares) due to certain cash-settled total return swap agreements.

The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.

Item 2 is hereby amended and restated to read as follows:

(a)       This statement is filed by:

Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.

(b)       The address of the principal office of each of Starboard V&O Fund, Starboard V&O III Fund, Starboard S LLC, Starboard C LP, Starboard X Master II, Starboard A LP, Starboard A GP, Starboard R LP, Starboard L Master, Starboard L GP, Starboard R GP, Starboard Value LP, Starboard Value GP, Principal Co and Principal GP is 777 Third Avenue, 18th Floor, New York, New York 10017. The address of the principal office of each of Messrs. Smith and Feld is c/o Starboard Value LP, 201 E Las Olas Boulevard, Suite 1000, Fort Lauderdale, Florida 33301. The officers and directors of Starboard V&O Fund and their principal occupations and business addresses are set forth on Schedule A attached hereto and are incorporated by reference in this Item 2.

(c)       The principal business of Starboard V&O Fund is serving as a private investment fund. Starboard V&O Fund has been formed for the purpose of making equity investments and, on occasion, taking an active role in the management of portfolio companies in order to enhance shareholder value. Starboard V&O III Fund, Starboard S LLC, Starboard C LP, Starboard L Master and Starboard X Master II have been formed for the purpose of investing in securities and engaging in all related activities and transactions. Starboard Value LP provides investment advisory and management services and acts as the investment manager of Starboard V&O III Fund, Starboard C LP, Starboard L Master, Starboard X Master II and the Starboard Value LP Account and the manager of Starboard S LLC. The principal business of Starboard Value GP is providing a full range of investment advisory, pension advisory and management services and serving as the general partner of Starboard Value LP. The principal business of Principal Co is providing investment advisory and management services. Principal Co is a member of Starboard Value GP. Principal GP serves as the general partner of Principal Co. Starboard A LP serves as the general partner of Starboard V&O III Fund. Starboard A GP serves as the general partner of Starboard A LP. Starboard R LP serves as the general partner of Starboard C LP and Starboard X Master II. Starboard L GP serves as the general partner of Starboard L Master. Starboard R GP serves as the general partner of Starboard R LP and Starboard L GP. Messrs. Smith and Feld serve as members of Principal GP and the members of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP.

(d)       No Reporting Person, nor any person listed on Schedule A attached hereto, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)       No Reporting Person, nor any person listed on Schedule A attached hereto, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f)       Messrs. Smith and Feld are citizens of the United States of America. The citizenship of the persons listed on Schedule A attached hereto is set forth therein.

Item 3 is hereby amended and restated to read as follows:

The Shares purchased by each of Starboard V&O Fund, Starboard V&O III Fund, Starboard S LLC, Starboard C LP, Starboard L Master, Starboard X Master II and held in the Starboard Value LP Account were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule B, which is incorporated by reference herein.

The aggregate purchase price of the entered into over-the-counter forward purchase contracts providing for the purchase of 550,000 Shares by Starboard V&O Fund is approximately $4,634,630, excluding brokerage commissions. The aggregate purchase price of 13,616,862 Shares beneficially owned by Starboard V&O III Fund is approximately $113,249,563, excluding brokerage commissions. The aggregate purchase price of the 3,707,324 Shares beneficially owned by Starboard S LLC is approximately $31,240,026, excluding brokerage commissions. The aggregate purchase price of the 2,867,515 Shares beneficially owned by Starboard C LP is approximately $24,163,883, excluding brokerage commissions. The aggregate purchase price of the 1,615,602 Shares beneficially owned by Starboard L Master is approximately $13,614,396, excluding brokerage commissions. The aggregate purchase price of the 7,134,913 Shares beneficially owned by Starboard X Master II is approximately $60,095,204, excluding brokerage commissions. The aggregate purchase price of the 5,396,434 Shares held in the Starboard Value LP Account is approximately $45,474,685, excluding brokerage commissions.

Item 4 is hereby amended to add the following:

On July 6, 2023, Starboard Value LP delivered a letter to the Issuer, a copy of which is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Items 5(a) – (c) are hereby amended and restated to read as follows:

The aggregate percentage of Shares reported owned by each person named herein is based upon 688,664,543 Shares outstanding, as of May 9, 2023, which is the total number of Shares outstanding as reported in Exhibit 99.2 to the Issuer’s Current Report of Foreign Private Issuer on Form 6-K filed with the Securities and Exchange Commission on May 11, 2023.

Percentage: Less than 1%

Percentage: Approximately 2.0%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Approximately 1.0%

Percentage: Approximately 2.0%

Percentage: Approximately 2.0%

Percentage: Approximately 1.5%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Approximately 1.7%

Percentage: Approximately 5.1%

Percentage: Approximately 5.1%

Percentage: Approximately 5.1%

Percentage: Approximately 5.1%

Percentage: Approximately 5.1%

The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any securities of the Issuer that he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities reported herein that he or it does not directly own.

In addition to the Shares beneficially owned by the Reporting Persons as set forth in this filing, and while the Reporting Persons have no current knowledge of the following holdings, the Reporting Persons understand that Toronto Dominion Bank and TD Asset Management Inc. (together, “TD”) had investment discretion over 24,788,418 Shares, listed call options with respect to 534,700 Shares and listed put options with respect to 313,700 Shares as of March 31, 2023, which would represent beneficial ownership over approximately 3.7% of the outstanding Shares as of such date, as such information was set forth in the Form 13F-HR filings filed by TD on May 11, 2023 and May 10, 2023. As reported in the Form ADV filed by Starboard Value LP, Toronto Dominion Bank is included as an indirect control person under Schedule B/C Indirect Owners of the Form ADV as a result of the closing of the acquisition of Cowen Inc. by Toronto Dominion Bank. The validity of the indirect transfer of Cowen Inc.’s ownership interest in Starboard Value LP is subject to an ongoing dispute. The Reporting Persons disclaim the existence of a “group” within the meaning of Section 13(d)(3) of the Exchange Act with TD or any other person other than the other Reporting Persons.

Item 6 is hereby amended to add the following:

Starboard V&O Fund has entered into forward purchase contracts with Bank of America as the counterparty providing for the purchase of an aggregate of 550,000 Shares having an aggregate purchase price of approximately $4,634,630 (each a “BA Forward Contract”). Each of the BA Forward Contracts has a final valuation date of September 9, 2024, however, Starboard V&O Fund has the ability to elect early settlement after serving notice to the counterparty of such intention at least two scheduled trading days in advance of the desired early final valuation date. Each of the BA Forward Contracts provides for physical settlement. Until the settlement date, none of the BA Forward Contracts give the Reporting Persons voting and dispositive control over the Shares to which such contracts relate.

On July 7, 2023, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. The Joint Filing Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

Item 7 is hereby amended to add the following exhibits:

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: July 7, 2023

 
SCHEDULE A

Directors and Officers of Starboard Value and Opportunity Master Fund Ltd

SCHEDULE B

Transactions in the Shares Since the Filing of the Schedule 13D

STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD

STARBOARD VALUE AND OPPORTUNITY MASTER FUND III LP

STARBOARD VALUE AND OPPORTUNITY S LLC

STARBOARD VALUE AND OPPORTUNITY C LP

STARBOARD VALUE AND OPPORTUNITY MASTER FUND L LP

STARBOARD X MASTER FUND II LP

STARBOARD VALUE LP

(Through the Starboard Value LP Account)