<PAGE> 1
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OMB APPROVAL
UNITED STATES --------------------------
SECURITIES AND EXCHANGE COMMISSION OMB Number: 3235-0145
WASHINGTON, D.C. 20549 Expires: December 31, 1997
Estimated average burden
hours per response...14.90
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)*
Pure Cycle Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
746228 10 5
----------------------------------------
(CUSIP Number)
George M. Middlemas, 233 S. Wacker Drive, Suite 9600, Chicago, Illinois 60606
(312)258-0320
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
July 29, 1997
----------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [].
Check the following box if a fee is being paid with the statement []. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
<TABLE>
<CAPTION>
- --------------------- ---------------------
CUSIP NO. 746228 10 5 PAGE 2 OF 31 PAGES
- --------------------- ---------------------
<S> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Apex Investment Fund II, L.P. 36-389-8753
- -----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- -----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) []
- -----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
14,271,214**
-----------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES 0
BENEFICIALLY -----------------------------------------------------------------------------------------
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 14,271,214**
REPORTING -----------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,271,214**
- -----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
- -----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.1%
- -----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
SCHEDULE 13D
<TABLE>
<CAPTION>
- --------------------- ---------------------
CUSIP NO. 746228 10 5 PAGE 3 OF 31 PAGES
- --------------------- ---------------------
<S> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Environmental Venture Fund Limited Partnerhsip 93-096-1333
- -----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- -----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) []
- -----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
5,660,355**
-----------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES 0
BENEFICIALLY -----------------------------------------------------------------------------------------
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 5,660,355**
REPORTING -----------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,660,355**
- -----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
- -----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0%
- -----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
SCHEDULE 13D
<TABLE>
<CAPTION>
- --------------------- ---------------------
CUSIP NO. 746228 10 5 PAGE 4 OF 31 PAGES
- --------------------- ---------------------
<S> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Productivity Fund II, L.P. 36-377-5406
- -----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- -----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) []
- -----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
4,281,210**
-----------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES 0
BENEFICIALLY -----------------------------------------------------------------------------------------
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 4,281,210**
REPORTING -----------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,281,210**
- -----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
- -----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
- -----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
SCHEDULE 13D
<TABLE>
<CAPTION>
- --------------------- ---------------------
CUSIP NO. 746228 10 5 PAGE 5 OF 31 PAGES
- --------------------- ---------------------
<S> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Environmental Private Equity Fund II, L.P. 36-383-0765
- -----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- -----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) []
- -----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
5,283,057**
-----------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES 0
BENEFICIALLY -----------------------------------------------------------------------------------------
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 5,283,057**
REPORTING -----------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,283,057**
- -----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* []
- -----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.5%
- -----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 6
Page 6 of 31 Pages
THIS SCHEDULE AMENDS A SCHEDULE 13D DATED AUGUST 12, 1992, AS AMENDED BY
AMENDMENT NO. 1 DATED MAY 25, 1994.
Item 1. Security and Issuer.
This Schedule 13D is filed with respect to shares of Common Stock ("Common
Stock") of Pure Cycle Corporation, a Delaware corporation (the "Company"). The
Company's principal executive offices are located at 18300 West Highway 72,
Golden, Colorado 80403.
Item 2. Identity and Background.
This Schedule 13D is filed on behalf of Apex Investment Fund II, L.P., a
Delaware limited partnership ("Apex"), Environmental Venture Fund Limited
Partnership, a Delaware limited partnership ("EVF"), The Productivity Fund II,
L.P., a Delaware limited partnership ("PF II") and Environmental Private Equity
Fund II, L.P., a Delaware limited partnership ("EPEF"). (Apex, EVF, PF II and
EPEF will be referred to collectively as the "Filing Parties"). Apex maintain
its principal office at 233 South Wacker Drive, 9600 Sears Tower, Chicago,
Illinois 60606 (ASuite 9600"). EVF, PF II and EPEF maintain their principal
offices at 233 South Wacker Drive, 9500 Sears Tower, Chicago, Illinois 60606
(ASuite 9500"). The principal business of each of the Filing Parties is
venture capital and private equity investment.
Each of the Filing Parties is controlled through one or more partnerships.
In this Schedule 13D, the persons who have or share control of a Filing Party
after looking through one or more intermediate partnerships will be referred to
as "ultimate general partners." The ultimate general partners of Apex are:
First Analysis Corporation, a Delaware corporation ("FAC"), Stellar Investment
Co. ("Stellar"), a corporation controlled by James A. Johnson ("Johnson");
George Middlemas ("Middlemas"); and Chartwell Holdings, Inc. (AChartwell@), a
corporation controlled by Paul J. Renze ("Renze"). The ultimate general
partners of EVF are: FAC; F&G Associates ("F&G"); William D. Ruckelshaus
Associates, a Limited Partnership ("WDRA"); and Robertson, Stephens & Co.
("RS"). The ultimate general partners of PF II are FAC and Bret R. Maxwell
("Maxwell"). The ultimate general partners of EPEF are FAC, Maxwell, RS,
Argentum Environmental Corporation ("AEC") and Schneur Z. Genack, Inc. ("SZG").
(a), (b) and (c). The following information is furnished with respect to
each person who takes executive actions on behalf of FAC with respect to
its functioning as an ultimate general partner of the Filing Parties, and on
behalf of Maxwell personally, each of whom maintains Suite 9500 as his
principal business address:
<TABLE>
<CAPTION>
Name Affiliation with FAC
---- --------------------
<S> <C>
1. F. Oliver Nicklin President, Chief Executive Officer and Director
2. Bret R. Maxwell Vice Chairman
</TABLE>
<PAGE> 7
Page 7 of 31 Pages
Each of the above is principally employed as an executive of FAC. FAC's
principal business is participation in venture capital partnerships and the
provision of research investment services. Its principal business address is
Suite 9500.
(a), (b) and (c) (con't). Each of Johnson and Middlemas is principally
employed as an executive of Apex and maintains his business address at Suite
9600. Renze is principally employed as an independent investor and maintains
his business address at 20 North Wacker Drive, Suite 2200, Chicago, Illinois
60606 ("Suite 2200"). Stellar's principal business is serving as an ultimate
general partner of investment partnerships. Its business address is maintained
at Suite 9600. Chartwell's principal business is serving as an ultimate
general partner of investment partnerships. Its business address is maintained
at Suite 2200.
(a), (b) and (c) (con't). Each of AEC and SZG maintains its business
address c/o The Argentum Group ("TAG"), 405 Lexington Avenue, New York, New
York 10174 (the "TAG Address"). The persons who take actions on behalf of F&G
with respect to its functioning as an ultimate general partner of EVF are
Harvey G. Felsen ("Felsen") and Schneur Z. Genack ("Genack"). The persons who
take actions on behalf of AEC and SZG with respect to their functioning as
ultimate general partners of EPEF are Genack, Daniel Raynor ("Raynor") and
Walter H. Barandiaran ("Barandiaran"). Each of Raynor and Barandiaran is
principally employed as an executive of TAG and maintains his business address
at the TAG address. TAG's principal business is merchant banking. Genack is
principally employed as a private investor. Genack maintains his business
address at 18 East 48th Street, Suite 1800, New York, New York 10017. Felsen
is principally self-employed as a private investor. His business address and
the business address of F&G is 123 Grove Avenue, Suite 118, Cedarhurst, New
York 11516.
(a), (b) and (c) (con't). WDRA maintains its business address at 1201
Third Avenue, 39th Floor, Seattle, Washington 98101. The person who takes
action on behalf of WDRA with respect to its functioning as an ultimate general
partner of EVF is Paul B. Goodrich ("Goodrich"). Goodrich is principally
employed as a principal and officer of WDRA and maintains his business address
at WDRA's offices. WDRA's principal business is venture capital investment.
(a), (b) and (c) (con't). RS maintains its business address at One
Embarcadero Center, San Francisco, California 94111 (the "RS Address"). The
person who takes actions on behalf of RS with respect to its functioning as an
ultimate general partner of EVF and EPEF is Charles R. Hamilton ("Hamilton").
Hamilton is principally employed as a partner of RS. Hamilton maintains his
principal business address at the RS Address. RS's principal business is
investment banking.
(d) and (e) None of the Filing Parties and, to the best of each Filing
Party's knowledge, none of the persons listed in the responses to Items 2(a),
(b) or (c) above has, during the last five years, been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such civil proceeding was or is
subject to a judgment,
<PAGE> 8
Page 8 of 31 Pages
decree or final order enjoining future violations of or prohibiting
activities subject to, federal or state securities laws or finding any
violation of such laws.
(f) To the best of each Filing Party's knowledge, each of the natural
persons listed in the responses to Items 2(a), (b) or (c) above is a citizen of
the United States, except for Barandiaran, who is a citizen of Peru.
Item 3. Source and Amount of Funds or Other Consideration.
All of the funds invested (or to be invested) by the Filing Parties in the
Company were obtained (or are expected to be obtained) from capital
contributions made by their respective partners.
Item 4. Purpose of Transaction.
The securities of the Company held by the Filing Parties were purchased as
an investment. One or more of the Filing Parties may, in the future, purchase
additional securities of the Company or dispose of securities of the Company.
Except as described below, none of the Filing Parties has any present
plans or proposals that relate to or would result in transactions of the kind
described in paragraphs (a) through (j) of Item 4 of Rule 13D-101 promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act"). In the
future, however, each of the Filing Parties reserves the right to adopt such
plans or proposals, subject to applicable regulatory requirements, if any.
Pursuant to a Stock Purchase Agreement dated as of May 25, 1994 (the
"Series A Purchase Agreement") and effective as of such date, Apex and EPEF
purchased 408,000 and 600,000 shares, respectively, of the Company's Series A
Preferred Stock (the "Series A Preferred"). Each share of Series A Preferred
is convertible into four shares of the Company's Common Stock at any time by
action of the holder and under certain circumstances. Each share of Series A
Preferred votes together with the Common Stock on all matters presented to the
Company's common stockholders, carrying five votes per share for such purposes.
Pursuant to an Amended and Restated Voting Agreement dated August 12, 1992
(the "1992 Closing Date"), a copy of which is attached as Exhibit B to this
Schedule 13D (the "Voting Agreement"), certain of the Company's stockholders
(including its largest stockholder, Thomas P. Clark ("Clark"), who owns
approximately 37.7% of the Company's issued and outstanding Common Stock) have
agreed with the Filing Parties to vote their shares of the Company's capital
stock and otherwise to use their best efforts to cause a representative
designated by EPEF to be elected to the Company's Board of Directors (the
"Board"). At the Company's annual meeting held on April 2, 1993, Middlemas was
elected to the Board as the representative of EPEF. The Voting Agreement
expires on August 12, 1997.
<PAGE> 9
Page 9 of 31 Pages
The Company, the Filing Parties and certain other holders of securities in
the Company have entered into a Registration Rights Agreement dated as of the
1992 Closing Date, a copy of which is attached as Exhibit C to this Schedule
13D (the "Registration Rights Agreement"). The Registration Rights Agreement
grants the Filing Parties, together with certain other holders of Common Stock
or instruments convertible into Common Stock, rights to require the Company to
register certain of their Common Stock (or the Common Stock underlying such
instruments) for public sale on SEC registration statement Form S-3 or any
similar short-form registration if such form is then available to the Company
for registration of its securities. The Series A Purchase Agreement contains
similar provisions with respect to the Common Stock underlying the Series A
Preferred.
Effective as of August 30, 1996, in a private transaction among six
purchasers and the Company, the Company issued promissory notes to the Filing
Parties in the aggregate principal amount of $125,000 (the "'96 Notes") and
initial warrants to purchase an aggregate of 250,000 shares of Common Stock of
the Company. Interest on the '96 Notes is payable quarterly at the option of
the Company in additional warrants to purchase shares of Common Stock of the
Company. Through the date of this Schedule, the Company has made three
quarters of interest payments under the '96 Notes by issuance to the Filing
Parties of warrants to purchase an aggregate of 413,436 shares of Common Stock.
One final interest payment is due under the '96 Notes on August 30, 1997, and
the Company may issue additional warrants to the Filing Parties to purchase an
aggregate of 137,812 shares of Common Stock in satisfaction of such interest
payment obligation.
Item 5. Interest in Securities of the Issuer.
(a) (i) As of the date of this amended Schedule, each of the Filing
Parties owns the number of shares of Common Stock, Series A Preferred Stock and
warrants to purchase the number of shares of Common Stock described below:
<TABLE>
<CAPTION>
Series A
Filing Party Common Stock Warrants Preferred Percentage of Class*
------------ ------------ --------- --------- ----------------------
<S> <C> <C> <C> <C>
Apex 4,200,008 8,439,206 408,000 16.1%
EVF 3,080,000 2,580,355 0 7.0%
PF II 2,519,992 1,761,218 0 5.3%
EPEF 2,600,000 283,057 600,000 6.5%
</TABLE>
* All percentages are computed assuming the exercise of all warrants and
the conversion into Common Stock of all Series A Preferred held by the
particular Filing Party but no exercise of warrants or conversion into Common
Stock of Series A Preferred by any other Filing Party or any other person.
<PAGE> 10
Page 10 of 31 Pages
In addition, Middlemas holds options to purchase 1,000,000 shares of
Common Stock. These options were issued prior to the 1992 Closing Date and
were not issued in connection with the transactions described herein.
(ii) By reason of its status as a general partner or ultimate general
partner of each of the Filing Parties, FAC may be deemed to be the indirect
beneficial owner of 29,495,836 shares of Common Stock, or 30.9% of such
shares. By reason of his status as the majority stockholder of FAC, F. Oliver
Nicklin may also be deemed to be the indirect beneficial owner of such shares.
By reason of their status as ultimate general partners of Apex, Stellar
(and through Stellar, Johnson), Middlemas and Renze may be deemed to be the
indirect beneficial owner of 14,271,214 shares of Common Stock, or 16.1% of
such shares. When these shares are combined with his option to purchase
1,000,000 shares of Common Stock described above, Middlemas may be deemed to be
the beneficial owner (directly with respect to the option shares and indirectly
as to the balance) of 15,271,214 shares of Common Stock, or 17.1% of such
shares.
By reason of his status as an ultimate general partner of PF II and EPEF,
Maxwell may be deemed to be the indirect beneficial owner of 9,564,267 shares
of Common Stock, or 11.5% of such shares.
By reason of F&G's and WDRA's status as general partners of EVF, F&G, WDRA
and their respective controlling persons may be deemed to be the indirect
beneficial owners of 5,660,355 shares of Common Stock, or 7.0% of such shares.
By reason of AEC's and SZG's status as ultimate general partners of EPEF, AEC,
SZG and their controlling persons may be deemed to be the indirect beneficial
owners of 5,283,057 shares of Common Stock, or 6.5% of such shares. By reason
of Genack's interest in F&G, AEC and SZG, he may be deemed to be the indirect
beneficial owner of 10,943,412 shares of Common Stock, or 13.1% of such shares.
By reason of RS's status as a general partner of EVF and an ultimate
general partner of EPEF, RS and its controlling persons may be deemed to be the
indirect beneficial owners of 10,943,412 shares of Common Stock, or 13.1% of
such shares.
(iii) Each of the Filing Parties disclaims beneficial ownership of all
shares of Common Stock described herein except those shares that are owned by
the Filing Party directly. The Filing Parties understand that each of the
other persons named as an officer, director, partner or other affiliate of any
Filing Party herein disclaims beneficial ownership of all of the shares of
Common Stock described herein, except for Middlemas with respect to the option
to purchase 1,000,000 shares held by him.
Each of the Filing Parties disclaims the existence of a "group" among any
or all of them and further disclaims the existence of a "group" among any or
all of them and any or all of the other persons named as an officer,
director, partner or other affiliate of any Filing Party, in each case within
the meaning of Section 13(d)(3) of the 1934 Act.
<PAGE> 11
Page 11 of 31 Pages
(b) (i) Apex has the sole power to dispose of and the sole power to vote
4,200,008 shares of Common Stock. In addition, Apex has the sole power to
dispose of 8,439,206 shares of Common Stock that are the subject of the
warrants to purchase 8,439,206 shares of Common Stock held by Apex (the "Apex
Warrants") and 408,000 shares of Series A Preferred. FAC, Stellar, Johnson,
Middlemas and Renze may be deemed to share the power to direct the disposition
or vote of the 4,200,008 shares owned directly by Apex, the 8,439,206 shares
that are the subject of the Apex Warrants and the 408,000 shares of Series A
Preferred.
(ii) EVF has the sole power to dispose of and to vote 3,080,000 shares of
Common Stock. In addition, EVF has the sole power to dispose of 2,580,355
shares of Common Stock that are the subject of the warrants to purchase
2,580,355 shares of Common Stock held by EVF (the "EVF Warrants"). FAC, F&G,
WDRA and RS may be deemed to share the power to direct the disposition or vote
of both the 3,080,000 shares owned directly by EVF and the 2,580,355 shares of
Common Stock that are the subject of the EVF Warrants.
(iii) PF II has the sole power to dispose of and to vote 2,519,992 shares
of Common Stock. In addition, PF II has the sole power to dispose of the
1,761,218 shares that are the subject of the warrants to purchase 1,761,218
shares of Common Stock held by PF II (the "PF II Warrants"). FAC and Maxwell
may be deemed to share the power to direct the disposition or vote of both the
2,519,992 shares owned directly by PF II and the 1,761,218 shares of Common
Stock that are the subject of the PF II Warrants.
(iv) EPEF has the sole power to dispose of and to vote 2,600,000 shares
of Common Stock and 600,000 shares of Series A Preferred. In addition, EPEF
has the sole power to dispose of the 283,057 shares that are the subject of the
warrants to purchase 283,057 shares of Common Stock held by EPEF (the "EPEF
Warrants"). FAC, Maxwell, RS, AEC and SZG may be deemed to share the power to
direct the disposition or vote of both the 2,600,000 shares of Common Stock and
the 600,000 shares of Series A Preferred owned directly by EPEF and the 283,057
shares of Common Stock that are the subject of the EPEF Warrants.
(v) Subject to the exercise of his option, Middlemas has the sole power
to vote and dispose of the 1,000,000 shares of Common Stock that are the
subject of his option.
(c) Effective as of July 29, 1997, in a private transaction among the
Filing Parties and the Company, the Company issued promissory notes to the
Filing Parties in the aggregate principal amount of $300,000 and warrants (the
"'97 Warrants") to purchase an aggregate of 1,800,400 shares of Common Stock of
the Company with an exercise price of $.25 per share, as follows:
<TABLE>
<CAPTION>
Filing Party Note Principal '97 Warrants
------------ -------------- --------------
<S> <C> <C>
Apex $175,000 1,050,000
EPEF $32,433 194,598
PF II $39,865 239,190
EVF $52,702 316,612
</TABLE>
<PAGE> 12
Page 12 of 31 Pages
(d) None.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
See Item 4 hereof for a description of the Voting Agreement.
Item 7. Material to be Filed as Exhibits.
Exhibit A. Agreement with respect to joint filing of Schedule 13D dated August
21, 1992. Page 15 of 31 pages.
Exhibit B. Amended and Restated Voting Agreement dated August 12, 1992. Page
17 of 31 pages.
Exhibit C. Registration Rights Agreement dated as of August 12, 1992. Page 24
of 31 pages.
<PAGE> 13
Page 13 of 31 Pages
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certify that the information set forth in this
statement is true, complete and correct.
Dated: August 4, 1997
APEX INVESTMENT FUND II, L.P., a Delaware
limited partnership
By: Apex Management Partnership, General
Partner of Apex Investment Fund II, L.P.
By: First Analysis Corporation, General Partner
of Apex Management Partnership
By: /s/ Bret R. Maxwell
--------------------------
Bret R. Maxwell
Title: Vice Chairman
ENVIRONMENTAL PRIVATE EQUITY FUND II, L.P.,
a Delaware limited partnership
By: Environmental Private Equity
Management II, L.P., General Partner
of Environmental Private Equity Fund
II, L.P.
By: First Analysis EPEF Management
Company II, General Partner of
Environmental Private Equity Management
II, L.P.
By: First Analysis Corporation, General Partner
of First Analysis EPEF Management
Company II
By: /s/ Bret R. Maxwell
--------------------------
Bret R. Maxwell
Title: Vice Chairman
<PAGE> 14
Page 14 of 31 Pages
THE PRODUCTIVITY FUND II, L.P., a
Delaware limited partnership
By: First Analysis Management Company II,
General Partner of The Productivity Fund
II, L.P.
By: First Analysis Corporation, General Partner
of First Analysis Management Company II
By: /s/ Bret R. Maxwell
--------------------------
Bret R. Maxwell
Title: Vice Chairman
THE ENVIRONMENTAL VENTURE FUND,
L.P., a Delaware limited partnership
By: Environmental Venture Management, L.P.,
General Partner of The Environmental
Venture Fund, L.P.
By: First Analysis Corporation, General Partner
of Environmental Venture Management,
L.P.
By: /s/ Bret R. Maxwell
--------------------------
Bret R. Maxwell
Title: Vice Chairman
<PAGE> 15
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EXHIBIT A
AGREEMENT
The undersigned agree as follows:
(i) Each of them is individually eligible to use the Schedule 13D to which
this Agreement is attached, and such Schedule 13D if filed on behalf of each of
them;
(ii) Each of them is responsible for the timely filing of such Schedule
13D and any amendments thereto, and for the completeness and accuracy of the
information concerning such person contained therein; but neither of them is
responsible for the completeness or accuracy of the information concerning the
other persons making the filing, unless such person knows or has reason to
believe that such information is inaccurate;
(iii) Such Schedule 13D identifies each such person contains the required
information with regard to each such person and indicates that it is filed on
behalf of all such persons; and
(iv) The execution and delivery of this Agreement does and shall not
constitute an admission by the undersigned that they constitute a "group" for
all purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, and the undersigned hereby disclaim such status.
Dated: August 21, 1992
APEX INVESTMENT FUND II, L.P., a
Delaware limited partnership
By: Apex Management Partnership, L.P.,
General Partner of Apex Investment
Fund II, L.P.
By: \s\ Bret R. Maxwell
-----------------------------------
Title: Managing Director of First Analysis
Corporation, General Partner
THE PRODUCTIVITY FUND II, L.P., a
Delaware limited partnership
By: First Analysis Management Company II,
General Partner of The Productivity
Fund II, L.P.
By: First Analysis Corporation,
General Partner of First Analysis
Management Company II
By: \s\ Bret R. Maxwell
----------------------------------
Title: Managing Director
<PAGE> 16
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ENVIRONMENTAL VENTURE FUND LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Environmental Venture Management,
a Limited Partnership, General Partner of
Environmental Venture Fund Limited
Partnership
By: First Analysis Corporation,
General Partner of Environmental
Venture Management, a Limited
Partnership\
By: \s\ Bret R. Maxwell
-----------------------------
Title: Managing Director
ENVIRONMENTAL PRIVATE EQUITY FUND
II, L.P., a Delaware limited partnership
By: Environmental Private Equity Management
II, L.P., General Partner of
Environmental Private Equity Fund
II, L.P.
By: First Analysis EPEF Management Company
II, General Partner of Environmental
Private Equity Management II, L.P.
By: First Analysis Corporation, General
Partner of First Analysis EPEF Management
Company II
By: /s/ Bret R. Maxwell
-----------------------------
Title: Managing Director
<PAGE> 17
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EXHIBIT B
AMENDED AND RESTATED
VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT is entered into this 12th day
of August, 1992 ("Agreement"), by and among PureCycle Corporation, a Delaware
corporation (the "Company"), Apex Investment Fund II, L.P., a Delaware limited
partnership ("Apex"), The Environmental Venture Fund, L.P., a Delaware limited
partnership ("EVFund"), The Environmental Private Equity Fund II, L.P., a
Delaware limited partnership ("EVFund II"), Productivity Fund II, L.P., a
Delaware limited partnership ("PFund") (Apex, EVFund, EVFund II and PFund being
collectively referred to herein as the "Apex Group"), and Fletcher L. Byrom
("Byrom"), Thomas P. Clark ("Clark"), and Margaret S. Hansson ("Hansson")
(Byrom, Clark, Hansson and the Apex Group being collectively referred to as the
"Stockholders" and individually "Stockholder").
RECITALS
A. The Company and the Stockholders other than EVFund II have previously
entered into a Voting Agreement dated December 10, 1991 (the "Original
Agreement"), which grants Apex, EVFund and PFund the right, upon the exercise
of their Warrants (as that term is defined in the Original Agreement) to cause
a designated representative to be elected to the Board of Directors of the
Company.
B. The Apex Group is entering into a Stock Purchase Agreement on the date
hereof with the Company pursuant to which the Apex Group is purchasing
10,000,000 shares of the Company's common stock, par value on-third of $.01 per
share.
C. The execution of an amended and restated Voting Agreement is a
condition to the purchase of the common stock by the Apex Group.
AGREEMENT
In consideration of the forgoing, the mutual covenants, and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree to amend
and restate the Original Agreement as follows:
1. Election of Directors. a. From and after the date of this
Agreement at each annual meeting of the stockholders of the Company and at each
special meeting of the stockholders of the Company called for the purpose of
the election of directors of the Company, and at any other time at which
stockholders of the Company will have the right to or will vote for or consent
in writing to the election of directors of the Company, then and in each event,
each of the Stockholders hereby covenants and agrees to vote all shares of
capital stock of the Company now or hereafter owned or controlled by it, him or
her and otherwise use its, his or her respective best efforts as a Stockholder
or director (if (s)he serves as such) of the Company, in favor of causing and
maintaining the election to the Board of Directors of one designated
<PAGE> 18
Page 18 of 31 Pages
representative of EVFund II (the EVFund II Director"), with the remaining
directors to be chosen by vote or written consent of the holders of a majority
of the outstanding shares of Common Stock of the Company. The Company shall
use its best efforts to nominate for election to the Board of Directors the
individual designated as described above.
b. The Company shall provide EVFund II with at least twenty (20) days
prior written notice of any intended mailing of notice to stockholders for a
meeting at which directors are to be elected, and EVFund II shall notify the
Company in writing, at least five (5) days prior to such mailing, of the person
designated for election in accordance with the provisions of Section 1(a)
above. If EVFund II shall fail to give notice to the Company as provided
herein, it shall be deemed that the director then serving as the director
previously designated by EVFund II shall be the designee for reelection by
EVFund II.
2. Vacancies and Removal. A director designated above in Section 1 shall
be elected at any annual or special meeting of stockholders and shall serve
until his or her successor is elected and qualified or until his or her earlier
resignation or removal. Any director may be removed during his term of office,
either for or without cause, by the affirmative vote or written consent of the
holders of a majority of the outstanding shares of capital stock of the
Company, all in accordance with the by-laws of the Company and Delaware General
Corporation Law. Any vacancy in the office of a director may be filled by vote
or written consent of the remaining directors or the holders of a majority of
the outstanding shares of capital stock of the Company, all in accordance with
the by-laws of the Company and the Delaware Corporation Law.
If the office of EVFund II Director becomes vacant for any reason, EVFund
II shall have the right to nominate his or her successor in accordance with
Section 1 hereof.
3. Transfer of Stock. Except for involuntary transfers pursuant to stock
pledge agreements in existence on the date of this Agreement, Clark agrees not
to transfer any of his shares of capital stock of the Company unless the
transferee agrees in writing to be bound by the terms and conditions of this
Agreement and executes a counterpart of this Agreement.
4. Duration of Agreement. The rights and obligations of the Company and
each Stockholder under this Agreement shall terminate on the earlier of (1) the
fifth anniversary date of this Agreement or (ii) the date on which EVFund II no
longer owns shares of common stock of the Company and/or Warrants to acquire
common stock of the Company which collectively amount to the ownership of or
ability to acquire at least 1,301,000 shares of common stock.
5. Severability: Governing Law. If any provisions of this Agreement shall
be determined to be illegal or unenforceable by any court of law, the remaining
provisions shall be severable and enforceable in accordance with their terms.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Colorado.
6. Binding Effect and Assignment. This Agreement shall be binding upon
the Company and the Stockholders and the respective successors and assigns,
legal representatives and heirs of the Company and Clark and the Apex Group.
This Agreement shall not be binding upon the assign, legal representatives, and
heirs of Byrom and Hansson. Notwithstanding any of this Section 6 to the
contrary, this Agreement may not be assigned by EVFund II and this Agreement
shall terminate in the event any such assignment is made.
<PAGE> 19
Page 19 of 31
7. Modification or Amendment. Neither this Agreement nor any provision
hereof can be modified or changed, except by an instrument in writing, signed
by the Company, EVFund II and members of the Apex Group holding at least a
majority of the shares of the Company common stock then held by all members of
the Apex Group and persons holding at least a majority of the shares of Company
common stock then held by Clark, Hansson, and Byrom.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
9. Notices. All notices to be given or otherwise made to any party to
this Agreement shall be deemed to be sufficient if contained in a written
instrument, delivered in person, or by express mail or other express courier,
or by registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth on the signature pages hereto.
Any party may change its address by notifying the other parties of such change
in writing in the manner described herein.
All such notices shall be effective (i) if mailed, when received or three
(3) days after mailing whichever is earlier; and (ii) if hand delivered or if
sent by express mail or courier, when delivered.
D. Entire Agreement. This Agreement constitutes the entire understanding
among the parties hereto with respect to the subject matter hereof and
supersedes all prior written or oral agreements, understandings and
negotiations between the parties with respect to the subject matter hereof.
<PAGE> 20
Page 20 of 31 Pages
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Voting Agreement to be executed as of the date first above written.
PURE CYCLE CORPORATION
By: \s\ Thomas P. Clark
-------------------------------------
Thomas P. Clark, President
Address: Pure Cycle Corporation
18300 West Highway
72 Golden, CO 80403
Attn: President
STOCKHOLDERS:
APEX INVESTMENT FUND II, L.P.,
a Delaware limited partnership
By: Apex Management Partnership, L.P.,
General Partner of Apex Investment
Fund II, L.P.
By: \s\ George Middlemas
------------------------------
Title: General Partner
Address: 233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
THE ENVIRONMENTAL VENTURE FUND, L.P.,
a Delaware limited partnership
By: Environmental Venture Management, L.P.,
General Partner of The Environmental
Venture Fund, L.P.
By: First Analysis Corporation,
General Partner of Environmental Venture
Management, L.P.
By: \s\ Bret R. Maxwell
------------------------------
Title: Managing Director
Address: 233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
<PAGE> 21
Page 21 of 31 Pages
<PAGE> 22
Page 22 of 31 Pages
THE ENVIRONMENTAL PRIVATE EQUITY
FUND II, L.P., a Delaware limited partnership
By: Environmental Private Equity
Management II, L.P., General Partner
of The Environmental Private Equity
Fund II, L.P.
By: First Analysis EPEF Management II, L.P.,
General Partner of Environmental Private
Equity Management II, L.P.
By: First Analysis Corporation,
General Partner of First Analysis EPEF
Management II, L.P.
By: \s\ Bret R. Maxwell
-------------------------------
Title: Managing Director
Address: 233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
PRODUCTIVITY FUND II, L.P.,
a Delaware limited partnership
By: First Analysis Management Company II,
L.P., General Partner of Productivity
Fund II, L.P.
By: First Analysis Corporation,
General Partner of First Analysis
Management Company II, L.P.
By: \s\ Bret R. Maxwell
-------------------------------
Title: Managing Director
Address: 233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
------------------------------------------
Fletcher L. Byrom
Address: 7822 Stagecoach Pass
P.O. Box 1055
Carefree, Arizona 85377
<PAGE> 23
Page 23 of 31 Pages
-------------------------------------------
Thomas P. Clark
Address: 805 29th Street
Boulder, Colorado 80303
-------------------------------------------
Margaret S. Hansson
Address: 2220 Norwood Avenue
Boulder, Colorado 80304
<PAGE> 24
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EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENTS is made as of the 12th day of August,
1992 by and among Inco Securities Corporation, a Delaware corporation ("INCO"),
Apex Investment Fund II, L.P., a Delaware limited partnership ("Apex"), The
Environmental Private Equity Fund, L.P., a Delaware limited partnership ("EV
Fund"), The Environmental Private Equity Fund II, L.P., a Delaware limited
partnership (EV Fund II"), Productivity Fund II, L.P. a Delaware limited
partnership ("P Fund"), Landmark Water Partners II, L.P., a Delaware limited
partnership ("Landmark II"), and Warwick Partners, L.P., a Delaware limited
partnership ("Warwick") (individually "Investor" and collectively the
"Investors"), and Pure Cycle Corporation, a Delaware corporation ("PureCycle").
RECITALS
A. INCO has registration rights with respect to 4,700,000 shares of
PureCycle Common Stock with INCO has the right to purchase from PureCycle
pursuant to outstanding warrants (the "INCO Warrants"). Such rights were
granted pursuant to a Registration Rights Agreement between PureCycle and INCO
dated December 11, 1990, as subsequently amended August 12, 1992 (the "INCO
Agreement").
B. Landmark and Warwick have acquired warrants to purchase 1,200,000
shares (the "Investor Warrants") of PureCycle Common Stock and piggy back
registration rights with respect to shares purchasable upon exercise of the
Investor Warrants pursuant to a Funding Agreement entered into among the
Investors, INCO and PureCycle dated August 11, 1992 (the "Funding Agreement").
C. The Investors (other than Warwick, Landmark and INCO) have purchased
10,000,000 shares of PureCycle Common Stock (the "Investor Shares") pursuant to
a Stock Purchase Agreement of even date herewith and have piggy back
registration rights with respect to the Investor Shares pursuant to the Funding
Agreement.
D. The Investors desire certain demand registration rights with respect to
the shares purchasable upon exercise of the Investor Warrants and with respect
to the Investor Shares and PureCycle is desirous of granting registration
rights in accordance with the terms hereof.
E. INCO is willing to consent to the amendment in accordance with the
terms hereof of its existing registration rights in order to permit the grant
of registration rights to the Investors.
AGREEMENT
In consideration of the mutual covenants and agreements herein, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
<PAGE> 25
Page 25 of 31 Pages
1. Representation and Warranties of PureCycle. PureCycle represents and
warrants to Investors that:
1.1 The authorized capital stock of PureCycle consists of 100,000,000
shares of PureCycle Common Stock, of which 77,639,763 shares (including the
Investor Shares) are issued and outstanding on the date of this Agreement, and
subject to payment of the purchase price as set forth in Section 1, the shares
to be issued hereunder will be validly issued, fully paid and nonassessable.
PureCycle has outstanding the following options, warrants, and obligations to
issue PureCycle Common Stock (i) outstanding options to purchase 20,000,000
shares of PureCycle Common Stock; (ii) outstanding warrants (including the
Investor Warrants) to purchase 22,980,000 shares of PureCycle Common Stock, and
(iii) an obligation to issue to INCO 2,243,145 shares of PureCycle Common Stock
in the event INCO exercises its right to put certain bonds and notes issued by
the Rangeview Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado ("Rangeview District"), to
PureCycle. Except as set forth above, there are no outstanding options,
warrants, or rights to purchase or acquire any capital stock of PureCycle.
1.2 Except for obtaining stockholder approval of a proposed amendment to
PureCycle's certificate of incorporation to increase the number of authorized
shares of Common Stock from 100,000,000 to at least 122,862,908 (the
"Stockholder Approval"), PureCycle has taken all necessary corporate action to
issue and deliver the shares of Common Stock issuable upon exercise of the
Investor Warrants and the INCO Warrants (the "Conversion Shares").
2. Covenant of PureCycle.
PureCycle covenants that it will call a meeting of its stockholders or
file the necessary information statement with the Securities and Exchange
Commission to permit the stockholders to take action by written consent of a
majority of its stockholders in order to increase the number of authorized
shares of PureCycle to at least 125,000,000 by February 15, 1993.
3. Registration Rights.
3.1 (a) At any time beginning six (6) months after the date hereof, the
Investors holding at least 51% of the Conversion Shares and Investors Shares in
the aggregate (outstanding INCO Warrants and Investor Warrants being counted as
if exercised) may request the registration, once and only once, under the
Securities Act of 1933, as amended (the "Securities Act") of all or part of
their Conversion Shares and Investors Shares (collectively, "Registrable
Shares") on Form S-3 or any similar short-form registration if such form is
then available to the PureCycle for the registration of its securities. In the
event such a request is made, PureCycle shall notify the remaining holders of
Registrable Shares of such request and shall include all or part of their
Registrable Shares in such registration statement if requested to do so within
thirty (30) days after such notification. In order to be included in such
registration, an Investor must exercise its warrant to the extent of the
Conversion Shares to be included in the registration.
(b) Notwithstanding anything to the contrary contained herein, no request
may be made under Section 3.1(a) hereof within ninety (90) days after the
effective date of a registration statement filed by PureCycle covering an
underwritten public offering.
<PAGE> 26
Page 26 of 31 Pages
(c) If at the time of any request to register Registrable Shares pursuant
to Section 3.1(a), PureCycle is engaged or has firm plans to engage within
ninety (90) days of the time of the request in a registered public offering as
to which the holders of Registrable Shares may seek to include Registrable
Shares pursuant to piggy back rights granted in the Funding Agreement or INCO
Agreement, as applicable, then PureCycle may, at its option, direct that such
request be delayed for a period not in excess of six months from the effective
date of such offering, such right to delay a request to be exercised by
PureCycle not more than once in any twelve (12) month period.
(d) Notwithstanding the provisions of this Section 3, PureCycle's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not
to exceed sixty (60) calendar days in any 12-month period if there exists at
the time material non-public information relating to PureCycle which in the
reasonable opinion of PureCycle, should not be disclosed at that time,
provided, however, that if any postponement has occurred under Section 3.1(c)
hereof, any postponement that would be required under this Section 3.1(d) shall
terminate upon termination of the postponement under Section 3.1(c).
3.2 In connection with a registration hereunder, Investors (other than
INCO) and PureCycle shall be bound by the terms set forth in Section 6.2, 6.3
and 6.4 of the Funding Agreement with respect to information required from the
Investors, registration and selling expenses and indemnification.
3.3 In connection with a registration hereunder, INCO and PureCycle shall
comply with the terms of the INCO Agreement, except as amended by Section 3.1
hereof.
3.4 The obligations of PureCycle to register Conversion Shares issuable
pursuant to Investor Warrants and Investor Shares under this Agreement shall
terminate on the fifth anniversary of the date of this Agreement.
3.5 As to any particular Investor Shares and shares of Common Stock
purchasable pursuant to the Investor Warrants, such securities will cease to be
Registrable Shares when (i) they have been effectively registered under the
Securities act and disposed of in accordance with the registration statement
covering them, (ii) they are transferred pursuant to Rule 144 (or any similar
provision in force) under the Securities Act, (iii) they have been otherwise
transferred and new certificates for them not bearing a restrictive legend have
been delivered by PureCycle, or (iv) PureCycle has fulfilled the reporting
requirements of the Securities Exchange Act of 1934, as amended, for at least
the past year, and such Registrable Shares are eligible for transfer pursuant
to Rule 144(k); provided, that the holder thereof does not own, of record or
beneficially, in excess of five percent of any class of equity securities of
PureCycle.
4. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if sent by telecopier, by registered or
certified mail, postage prepaid, by express mail or by other express courier
addressed as follows:
<PAGE> 27
Page 27 of 31 Pages
If to PureCycle:
Pure Cycle Corporation
18300 West Highway 72
Golden, Colorado 80403
Attn: Thomas P. Clark, President
Telephone Number: (303) 467-9225
Telecopier Number: (303) 467-9335
If to the Investors:
Inco Securities Corporation
One New York Plaza
New York, New York 10004
Attn: Henry J. Sandri
Telephone Number: (212) 612-5883
Telecopier Number: (212) 612-5873
Landmark Partners II, L.P.
c/o Compton Capital Partners, Inc.
115 East 69th Street
New York, New York 10021
Telephone Number: (212) 794-6060
Telecopier Number: (212) 794-6169
Warwick Partners, L.P.
Suite 2102
730 Fifth Avenue
New York, New York 10019
Attn: Herbert A. Denton
Telephone Number: (212) 888-3205
Telecopier Number: (212) 888-3203
Apex Investment Fund II, L.P.
233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
Attn: George Middlemas
Telephone Number: (312) 258-0320
Telecopier Number: (312) 258-0334
The Environmental Venture Fund, L.P.
233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
Attn: Frederick D. Fischer
Telephone Number: (312) 258-1400
Telecopier Number: (312) 258-0334
<PAGE> 28
Page 28 of 31 Pages
The Environmental Private Equity II, L.P.
233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
Attn: Bret Maxwell
Telephone Number: (312) 258-1400
Telecopier Number: (312) 258-0334
Productivity Fund II, L.P.
233 South Wacker Drive
Suite 9600
Chicago, Illinois 60606
Attn: Bret Maxwell
Telephone Number: (312) 258-1400
Telecopier Number: (312) 258-0334
Any party may change its address and/or telecopier number by notifying the
other parties of such change in writing in the manner described herein. All
notices and other communications shall be effective (i) if mailed, when
received or three (3) days after mailing, whichever is earlier; (ii) if sent by
express mail or courier, when delivered; and (iii) if telecopied, when received
by the telecopier to which transmitted (a machine-generated transaction report
produced by sender bearing recipient's telecopier number being prima facie
proof of receipt).
5. Expenses. Except as otherwise provided herein, all legal and other
costs and expenses incurred in connection with the preparation of this
Agreement and the consummation of the transactions contemplated hereby shall be
paid by the party incurring such expenses.
6. Successors and Assigns. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties of their respective
heirs, personal representatives, successors and permitted assigns. The rights
of the Investors hereunder shall not be assignable or transferrable except to
another Investor who acquires ownership of another Investor's Conversion Shares
or Investor Shares.
7. Entire Agreement; Amendment. This Agreement, the agreements referenced
herein, and any other agreements entered into among the parties in writing on
or subsequent to the date hereof constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior
written or oral agreements, understandings and negotiations between the parties
with respect to the subject matter hereof. This Agreement may be amended only
by a writing signed by the parties affected by such amendment.
8. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall together constitute one and the same
instrument.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
<PAGE> 29
Page 29 of 31 Pages
IN WITNESS WHEREOF, this Registration Rights Agreement has been executed
on behalf of each of the parties hereto as of the day and date first above
written.
INCO SECURITIES CORPORATION, a
Delaware corporation
By: \s\ illegible
---------------------------------
Title: Vice President
PURE CYCLE CORPORATION, a
Delaware corporation
By: \s\ Thomas P. Clark
---------------------------------
Thomas P. Clark, President
LANDMARK WATER PARTNERS, II, L.P.,
a Delaware limited partnership
By: COMPTON CAPITAL PARTNERS, INC.,
its general partner
By: \s\ Earl A. Samson
---------------------------------
Earl A. Samson, III, President
WARWICK PARTNERS, L.P., a
Delaware limited partnership
By: PROVIDENCE PARTNERS, L.P.,
its general partner
By: PACIFIC EQUITY LIMITED,
its general partner
By: \s\ Herbert A. Denton
---------------------------------
Herbert A. Denton,
authorized officer
<PAGE> 30
Page 30 of 31 Pages
PURCHASERS:
APEX INVESTMENT FUND II, L.P., a
Delaware limited partnership
By: Apex Management Partnership, L.P.,
General Partner of Apex Investment
Fund II, L.P.
By: \s\ George Middlemas
-------------------------------
Title: General Partner
THE ENVIRONMENTAL VENTURE FUND, L.P.,
a Delaware limited partnership
By: Environmental Venture Management, L.P.,
General Partner of The Environmental
Venture Fund, L.P.
By: First Analysis Corporation,
General Partner of Environmental
Venture Management, L.P.
By: \s\ Bret Maxwell
-------------------------------
Title: Managing Director
THE ENVIRONMENTAL PRIVATE EQUITY
FUND II, L.P., a Delaware limited partnership
By: Environmental Private Equity Management
II, L.P., General Partner of The
Environmental Private Equity Fund II, L.P.
By: First Analysis EPEF Management II,
L.P. General Partner of Environmental
Private Equity Management II, L.P.
By: First Analysis Corporation,
General Partner of First Analysis
EPEF Management II, L.P.
By: \s\ Bret Maxwell
-------------------------------
Title: Managing Director
<PAGE> 31
Page 31 of 31 Pages
PRODUCTIVITY FUND II, L.P., a
Delaware limited partnership
By: First Analysis Management Company
II, General Partner of Productivity
Fund II, L.P.
By: First Analysis Corporation,
General Partner of First Analysis
Management Company II
By: \s\ Bret Maxwell
-------------------------------
Title: Managing Director
