SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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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. 3)(1)
HUDSON TECHNOLOGIES, INC.
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(Name of Issuer)
Common Stock, par value $ .01 per share
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(Title of Class of Securities)
444144109
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(CUSIP Number)
Richard D. Waters, Jr.
c/o J.P. Morgan Partners, LLC
1221 Avenue of the Americas, 40th Floor
New York, NY 10020
(212) 899-3400
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 12, 2003
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13D
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(b) for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 6 Pages)
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(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).
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CUSIP No. 444144109 13D Page 2 of 6 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FLEMING US DISCOVERY FUND III, L.P.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/
(b)
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
-------------------- ------- --------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 4,413,110
SHARES
BENEFICIALLY ------- --------------------------------------------------
OWNED BY
EACH 8 SHARED VOTING POWER*
REPORTING
PERSON WITH 0
------- --------------------------------------------------
9 SOLE DISPOSITIVE POWER
4,413,110
------- --------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
SEE ITEM 5 OF ATTACHED SCHEDULE
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
SEE ITEM 5 OF ATTACHED SCHEDULE
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14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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USIP No. 444144109 13D Page 3 of 6 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/
(b)
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
BERMUDA
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7 SOLE VOTING POWER
707,448
NUMBER OF ------- -------------------------------------------------
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH ------- -------------------------------------------------
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
707,448
------- -------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
SEE ITEM 5 OF ATTACHED SCHEDULE
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
SEE ITEM 5 OF ATTACHED SCHEDULE
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14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
-3-
Preliminary Note: This Amendment No. 3 to the Statement on Schedule 13D
originally filed on April 9, 1999, as amended by Amendment No. 1 thereto filed
on February 14, 2001 and Amendment No. 2 thereto filed on June 25, 2003 (as so
amended, the "Statement") with respect to the common stock, $.01 par value per
share (the "Common Stock"), of Hudson Technologies, Inc., a New York corporation
(the "Issuer") supplements Item 6 to reflect the agreement by the Reporting
Persons to waive certain rights with respect to the Convertible Notes, the
Additional Convertible Notes, the Exchange Notes (collectively referred to as
the "Fleming Convertible Notes"), the Series A Preferred Stock and certain
registration rights held by the Reporting Persons.
Item 1. Security and Issuer
The address of the Issuer's principal executive offices is 275 North Middletown
Road, Pearl River, New York 10965. Information in the original Schedule 13D
remains in effect except to the extent that it is superseded by subsequently
filed information, including the information contained in Amendment No. 1,
Amendment No. 2 and this Amendment No. 3. Responses to each item below are
incorporated by reference into each other item, as applicable. Capitalized terms
used but not defined in this Amendment No. 3 shall have the respective meanings
ascribed to them in the Statement.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Reference is made to Issuer's registration statement on Amendment No. 4 to Form
SB-2 (the "Registration Statement") filed with the Securities and Exchange
Commission on September 12, 2003, in connection with the offering of shares of
Common Stock of the Issuer (the "Offering"). As further described in the
Registration Statement, the US Fund and the Offshore Fund (collectively, the
"Fleming Funds") have indicated their intention that if the gross proceeds from
the shares sold by the Issuer for cash in the Offering to Issuer's stockholders
and other investors (other than the Fleming Funds) together with the amount of
principal and accrued interest due on the outstanding $1,660,000 principal
amount of Fleming Convertible Notes that will be converted to common stock in
connection with the offering, is less than $2,575,000, the Fleming Funds will
acquire from the shares being offered to the public that number of shares (not
to exceed an aggregate of $925,000) necessary for the Issuer to reach the
$2,575,000 level. Included in this amount to be acquired by the Fleming Funds is
the loan from the Fleming Funds to the Issuer in the principal amount of
$575,000 for which the Issuer may use shares available under the Registration
Statement after the expiration of the Offering period to repay the principal and
any accrued and unpaid interest of such loan. In addition, the Fleming Funds
may, but are not required to, purchase from the shares being offered to the
public additional shares in excess of the amount described in the foregoing
sentence.
Fleming Convertible Notes
The Fleming Funds have indicated their intention to modify the terms of the
Fleming Convertible Notes, under the circumstances described herein, such that
if (A) the gross proceeds from the shares sold by the Issuer for cash in the
Offering to the Issuer's stockholders and other investors (other than the
Fleming Funds, and not including the amount of principal and accrued interest
due on the approximately $1,660,000 outstanding principal amount of Convertible
Notes that may be converted to common stock in connection with the Offering), is
at least $1,000,000 and (B) the then effective conversion rate of the Fleming
Convertible Notes is less than the $1.10 subscription price of the Offering (the
"Subscription Price"), then the conversion rate of the Fleming Convertible Notes
shall be equal to the Subscription Price. In accordance with the existing terms
of the Fleming Convertible Notes, in the event that the then-effective
conversion rate of the Convertible Notes is greater than the Subscription Price,
the conversion rate of the Fleming Convertible Notes and the Convertible Notes
held by other investors shall be equal to the Subscription Price (and such terms
shall remain in place).
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Further, the terms of the Convertible Notes (including the Fleming Convertible
Notes) provide that the holder of the Convertible Notes would have the right to
determine, to the extent that securities are available for purchase in the
Offering, (which such offering, when aggregating the outstanding principal and
accrued interest of the Convertible Notes and all additional proceeds from new
investors, equals not less than $2,000,000 (the "Equity Offering"), whether (i)
to apply the outstanding principal and interest, if any, of the Convertible
Notes to the purchase of the securities in the Equity Offering or (ii) to
convert the same into conversion shares at the then-effective conversion rate.
However, upon the request of the Securities and Exchange Commission, the Issuer
agreed that it would not use registered shares in the Equity Offering to repay
the Convertible Notes, and the holders of the Convertible Notes would receive
only restricted securities upon conversion of the Convertible Notes at the
then-effective conversion rate.
The Issuer has indicated its intention to grant holders of Convertible Notes
certain future registration rights satisfactory to the Issuer.
Series A Preferred Stock
In December 2002 (as described in Amendment No. 2 to this Schedule 13D), the
Fleming Funds agreed to waive their rights to an immediate downward adjustment
of the then effective $2.375 conversion price of the Series A Preferred Stock in
connection with the issuance of the Convertible Notes; however, any subsequent
conversion of the Convertible Notes will result in a downward adjustment of the
conversion price of the Series A Preferred Stock to equal the then effective
conversion rate at which the Convertible Notes convert. Consequently, upon
conversion of certain of the Convertible Notes at the $.79 per share conversion
rate, the anti-dilution provisions of the Series A Preferred Stock will cause
the conversion price of the Series A Preferred Stock to adjust downward to a
conversion price of $.79 per share. In accordance with the terms of the Series A
Preferred Stock, the Fleming Funds have the right (but not the obligation) to
convert any or all shares of Series A Preferred Stock into the Issuer's common
stock.
The Fleming Funds have indicated their intention to modify the terms of the
Series A Preferred Stock held by the Fleming Funds, under the circumstances
described below, such that:
(1) If (A) the gross proceeds from the shares sold by the Issuer for
cash in the Offering to the Issuer's stockholders and other investors
(other than the Fleming Funds, and not including the amount of
principal and accrued interest due on the approximately $1,660,000
outstanding principal amount of Convertible Notes that may be converted
to common stock in connection with the offering), is at least
$1,000,000 and (B) the then effective conversion price of the Series A
Preferred Stock is less than the Subscription Price, then the
conversion price of the Series A Preferred Stock shall be equal to the
Subscription Price. As described above, in accordance with the existing
terms of the Series A Preferred Stock, in the event that the conversion
price of the Series A Preferred Stock is greater than the Subscription
Price, then the conversion price of the Series A Preferred Stock shall
be equal to the Subscription Price, and
(2) If the gross proceeds from the shares sold by the Issuer for cash
in the offering to the Issuer's stockholders and other investors (other
than the Fleming Funds, and not including the amount of principal and
accrued interest due on the approximately $1,660,000 outstanding
principal amount of Convertible Notes that may be converted to common
stock in connection with the Offering), is more than $4,000,000, then
the Fleming Funds will convert all of the outstanding shares of Series
A Preferred Stock into restricted common stock, at the conversion price
described in the foregoing paragraph (1).
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Warrants
In accordance with the terms of the Convertible Notes the issuer is obligated to
issue common stock purchase warrants to the holders of Convertible Notes upon
the earlier of the first anniversary of the respective date of issuance of the
Convertible Notes or the consummation of a public equity offering which, when
aggregating the outstanding principal and accrued interest of the Convertible
Notes and all additional proceeds from new investors, equals gross proceeds of
not less than $2,000,000. Consequently upon the consummation of the Offering for
such gross proceeds the Issuer will be required to issue common stock purchase
warrants to the holders of the Convertible Notes which warrants will be
exercisable to purchase an amount of shares of the Issuer's common stock equal
to 10% of the number of shares of common stock into which the Convertible Notes
were convertible at the time of their issuance. Pursuant to the terms of the
Convertible Notes, the warrants will have an exercise price equal to 110% of the
lesser of (i) the conversion rate of the Convertible Notes on the date of their
issuance or (ii) the conversion rate of the Convertible Notes on the date of the
issuance of the warrants. The Fleming Funds have agreed that if the conversion
price of their Convertible Notes is increased to equal the Subscription Price as
a result of the Issuer's receipt of at least $1,000,000 of gross cash proceeds
from the sale of shares to our stockholders and other investors in the Offering
(other than the Fleming Funds, and not including the amount of principal and
accrued interest due on the approximately $1,660,000 outstanding principal
amount of Convertible Notes that may be converted into common stock in
connection with the offering), then the exercise price on any warrants they
receive, to the extent such exercise price is lower than the Subscription Price,
will be raised to equal the Subscription Price. Furthermore, in the event that
the exercise price of the warrants is increased to equal the Subscription Price,
but the exercise price of warrants issued to any other holder(s) of Convertible
Notes is lower than the Subscription Price, the Fleming Funds have agreed to
waive their right in this instance to decrease the conversion rate of their
Convertible Notes and the conversion price of their Series A Preferred Stock to
such lower price.
Other Waivers
In addition, the Fleming Funds have agreed to waive their "piggyback"
registration rights with respect to the registration of the shares of common
stock underlying the Series A Preferred Stock in the Offering, which waiver does
not in any way limit the registration rights of the Fleming Funds in any other
offering or as otherwise permitted under the registration rights agreement
entered into between the Issuer and the Fleming Funds at the time of their
purchase of the Series A Preferred Stock.
In addition, as part of the Offering process, upon the request of the Issuer,
the Fleming Funds have affirmed that for a period of six months from the date of
the Registration Statement they will not take any action that would cause the
Issuer to engage in a going private transaction.
Item 7. Materials to Be Filed as Exhibits
The following additional material is filed as an Exhibit to this
Amendment No. 3:
Exhibit 1 - Joint Filing Agreement.
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SIGNATURE
After reasonable inquiry and to the best of the knowledge and belief of
each of the undersigned, each of the undersigned certifies that the information
set forth in this Statement is true, complete and correct.
Dated: September 15, 2003
FLEMING US DISCOVERY FUND III, L.P.
By: Fleming US Discovery Partners, L.P., its general partner
By: Fleming US Discovery, LLC, its general partner
By: /s/ Richard D. Waters, Jr.
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Richard D. Waters, Jr., Manager
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
By: Fleming US Discovery Partners, L.P, its general partner
By: Fleming US Discovery, LLC, its general partner
By: /s/ Richard D. Waters, Jr.
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Richard D. Waters, Jr., Manager