SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is entered into
as of June 27, 2008 (the “Effective Date”), by and between
The Quercus Trust (“Buyer”) and Emcore Corporation, a New
Jersey Corporation ( “Seller”).
RECITALS
WHEREAS,
Seller desires to sell to Buyer that certain number shares of Series D
Convertible Preferred Stock (the “Shares”)
and warrants to purchase additional shares of Series D Preferred Stock (the
“Warrants”,
and together with the Shares, the “Securities”) of WorldWater
& Solar Technologies Corp., a Delaware corporation (the
“Company”), and Buyer desires to purchase such Securities
from
Seller, all in accordance with the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises contained herein, the parties
hereto agree as follows:
1. Sale
of Securities.
1.1 First
Closing. Seller hereby agrees to sell to Buyer, and Buyer hereby
agrees to purchase from Seller, 1,000,000 Shares of Series D Convertible
Preferred and 100,000 Warrants to purchase Shares of Series D Convertible
Preferred for an aggregate purchase price of $6,540,000.
1.2 Second
Closing. At the second closing (the “Second
Closing”) which shall be no later than July 31, 2008, Seller hereby
agrees to sell to Buyer, and Buyer hereby agrees to purchase from Seller,
1,000,000 Shares of Series D Convertible Preferred and 100,000 Warrants to
purchase Series D Convertible Preferred for an aggregate purchase price of
$6,540,000.
2. Deliverables.
2.1 At
each
Closing, Buyer will deliver to Seller the purchase price paid by cash, check
or
wire transfer. The purchase price will constitute the entire consideration
to be
paid by Buyer to Seller for the Shares purchased at the applicable
Closing.
2.2 Within
three (3) days after each Closing, or such other time as the parties agree,
Buyer will (a) deliver to the Company’s transfer agent (the “Transfer
Agent”) a stock power (the “Stock Power”), in the form
attached hereto as Exhibit A, in respect of the Shares owned by Seller,
fully endorsed for transfer to Buyer; and (b) deliver to the Company, or the
Company’s transfer agent, as applicable, a Warrant Assignment assigning the
Warrants to Buyer. Seller has, or will have, prior to each Closing,
delivered to the Transfer Agent the original stock certificate and warrant
certificate which include the Securities to be sold to
Buyer. Pursuant to the terms of this Agreement, Seller shall request
that, upon the Transfer Agent’s receipt of such Stock Power and Warrant
Assignment, the Transfer Agent shall (1) issue and deliver to Buyer a duly
executed stock certificate representing the total number of Shares transferred
to Buyer in the agreement, (2) issue and deliver to Buyer a duly executed
warrant certificate representing the total number of Warrants transferred to
Buyer in the agreement, and (3) issue and deliver to Seller duly executed stock
certificate(s) and warrant certificate(s) representing the balance of the Shares
and Warrants owned by Seller after the Effective Date.
3. Seller’s
Representations.
Seller represents
and warrants to Buyer and the Company as
follows:
3.1 Seller
owns the Securities beneficially and of record, free and clear of any suit,
proceeding, call, voting trust, proxy, restriction, security interest, lien
or
other encumbrance of any kind or nature whatsoever (collectively, a
“Lien”) and has full power, authority and capacity to transfer
and dispose of all the Securities free and clear of any Lien. Upon the payment
for and delivery of the Securities as provided in this Agreement, Buyer will
acquire good and valid title to the Securities free and clear of any
Lien.
3.2 The
execution and delivery of this Agreement by Seller, the consummation of the
transaction contemplated hereby, and the compliance with the terms of this
Agreement will not conflict with, result in the breach of, or constitute a
default under, or require any consent or approval under, any agreement, note,
indenture, mortgage, deed of trust or other agreement, lease or instrument
to
which either Seller is a party or by which it may be bound.
3.3 No
broker
or finder has acted
directly or indirectly for Seller in connection with this Agreement or the
transaction contemplated hereby, and no broker or finder is entitled to any
brokerage or finder’s fee or other commission in respect thereof based in any
way on agreements, arrangements or understandings made by or on behalf of
Seller.
3.4 This
Agreement has been duly authorized, executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms.
3.5 Seller’s
transfer of the Securities to Buyer is exempt from the registration requirements
of the Securities Act of 1933, as amended (the “Securities
Act”) and any applicable state securities laws, in each case pursuant
to applicable exemptions thereunder.
3.6 Seller
expressly acknowledges and agrees that the Company has made no representations
or warranties in connection with the Securities or the transactions contemplated
by this Agreement.
4. Buyer’s
Representations.
Buyer represents
and warrants to Seller and the Company as
follows:
4.1 Buyer
has
full power and authority to purchase the Securities from Seller in accordance
with this Agreement.
4.2 Buyer
understands that none of the Securities has been registered under the Securities
Act. Buyer also understands that such Securities are being offered and sold
pursuant to an exemption from registration contained in the Securities
Act.
4.3 The
execution and delivery of this Agreement by Buyer, the consummation of the
transaction contemplated herein, and the compliance with the terms of this
Agreement will not conflict with, result in the breach of, or constitute a
default under, or require any consent or approval under, any note, indenture,
mortgage, deed of trust or other agreement, lease or instrument to which Buyer
is a party or by which he may be bound.
4.4 No
broker
or finder has acted directly or indirectly for Buyer in connection with this
Agreement or the transaction contemplated hereby, and no broker or finder is
entitled to any brokerage or finder’s fee or other commission in respect thereof
based in any way on agreements, arrangements or understandings made by or on
behalf of Buyer.
4.5 This
Agreement has been duly authorized, executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms.
4.6 Buyer
is
an “accredited investor,” as that term is defined in Regulation D adopted
pursuant to the Act.
4.7 Seller’s
transfer of the Securities to Buyer is exempt from the registration requirements
of the Securities Act and any applicable state securities laws, in each case
pursuant to applicable exemptions thereunder.
4.8 The
Securities to be acquired by Buyer from Seller as contemplated hereunder are
being acquired for Buyer’s own account and not with a view to, or intention of,
distribution thereof in violation of the Securities Act or any applicable state
securities laws, and the Securities will not be sold, transferred, pledged
or
otherwise disposed of by Buyer in contravention of the Securities Act or any
applicable state securities laws or any provision of the charter, bylaws or
any
stockholders agreement of the Company.
4.9 Buyer
is
sophisticated in financial matters as to be able to evaluate the risks and
benefits of the investment in the Securities and make an informed investment
decision.
4.10 Buyer
has
had an opportunity to ask questions and receive answers concerning the Company
and the Securities and has had full access to such other information concerning
the Company and the Securities as Buyer has requested. Buyer has also reviewed
or has had an opportunity to review such other documents and information
regarding the Company and its business as requested by Buyer to Buyer’s
satisfaction.
4.11 Buyer
understands that the Seller is relying and will rely on the information and
representations with respect to Buyer set forth in this Agreement as to whether
the transfer of the Securities to Buyer qualifies for an exemption from the
registration requirements under the Securities Act, and Buyer confirms that
all
such information is true and correct as of the date hereof.
4.12 Buyer
understands that Buyer must bear the economic risk of his acquisition of the
Securities for an indefinite period of time because (1) the acquisition of
Securities by Buyer has not been registered under the Securities Act or
applicable state securities laws; and (2) the Securities may therefore not
be
sold, transferred, pledged, or otherwise disposed of unless registered for
sale
under the Securities Act, or unless pursuant to an applicable exemption from
registration, and in any event only if the transfer is permitted. Buyer further
acknowledges that an important consideration bearing on his ability to bear
the
economic risk of his acquisition of Securities is whether Buyer can afford
a
complete loss of such investment in the Company, and Buyer confirms that Buyer
can afford a complete loss of such investment in the Company.
4.13 Buyer
understands that the certificates evidencing the Securities will bear one or
more restrictive legends prohibiting the transfer thereof except in compliance
with the applicable state and federal securities laws and with any restrictions
on transfer contained in the Company’s bylaws and/or stockholders’ agreement, as
in effect from time to time.
4.14 Buyer
expressly acknowledges and agrees that the Company has made no representations
or warranties in connection with the Securities or the transactions contemplated
by this Agreement.
5. Miscellaneous
Provisions.
5.1 Any
number of counterparts of this Agreement may be signed and delivered and each
will be considered an original and together they will constitute one
agreement.
5.2 This
Agreement may not be amended or modified in any respect, except by the mutual
written agreement of the parties hereto and the Company.
5.3 Each
party to this Agreement will pay its own expenses in connection with the
transactions contemplated hereby, whether or not such transactions will be
consummated.
5.4 This
Agreement will be construed and performed in accordance with the laws of the
State of Delaware, without regard to the conflicts of law therein. The rights
and liabilities of the present parties will bind and inure to their respective
heirs, devisees, personal representatives, successors and assigns.
5.5 This
Agreement and the exhibits hereto constitute the entire agreement among the
parties relating to their subject matter and supersede all prior and
contemporaneous agreements and understandings of the parties in connection
with
such subject matter.
5.6 From
and
after the date of this Agreement, upon the request of Seller, Buyer or the
Company, Seller or Buyer, as applicable, will execute and deliver such
instruments, documents or other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
5.7 The
Company is an intended third party beneficiary of this Agreement and Buyer
and
Seller acknowledge and agree that the Company will rely and is intended to
rely
on the provisions, representations and agreements set forth herein. Other than
the foregoing, nothing expressed or implied in this Agreement is intended,
or
shall be construed, to confer upon or give any person, firm, corporation,
partnership, association or other entity, other than the parties hereto and
the
Company and their respective successors and assigns, any rights or remedies
under or by reason of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement
as of the date first written above.
BUYER:
The
Quercus Trust
/s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx, Trustee
SELLER:
EMCORE
CORPORATION,
a
New Jersey corporation
By: /s/
Xxxxxx Xxxxxxxx
Name: Xxxxxx
Xxxxxxxx
Title: Executive
Chairman
EXHIBIT
A
STOCK
POWER
(Stock
Assignment Separate From Certificate)
FOR
VALUE RECEIVED, EMCORE CORPORATION, hereby sells, assigns and transfers
unto THE QUERCUS TRUST One Million (1,000,000) shares of Series
D Preferred Stock of WorldWater & Solar Technologies Corp., a Delaware
corporation (the “Company”), standing in its name on the books
of said Company, as represented by Certificate Nos. _________, and hereby
irrevocably constitutes and appoints as Holder’s attorney to transfer the shares
on the books of the Company, with full power of substitution in the
premises.
Dated: ___________________
EMCORE
CORPORATION
____________________________
Name: _____________________
Title: _____________________
NOTE:
The
signature(s) to this assignment must correspond with the name as written upon
the face of the certificate, in every particular, without alteration or
enlargement, or any change whatsoever.
