EMCORE: WORLDWATER FORM OF WARRANT
Published on December 5, 2006
EXHIBIT
99.2
WARRANT
to
Purchase Series D Convertible Preferred Stock of
WorldWater
and Power Corp.
Warrant
No. 1
Original
Issue
Date:
November 29, 2006
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE SOLD OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT
COVERING SUCH SHARES IS EFFECTIVE UNDER THE ACT OR (II) THE TRANSACTION IS
EXEMPT FROM REGISTRATION UNDER THE ACT AND, IF THE CORPORATION REQUESTS, AN
OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY
COUNSEL.
Warrant
No. 1
Warrant
to
Purchase 505,044 Shares (Subject to Adjustment) of
Series
D Convertible Preferred Stock of
WorldWater
and Power Corp.
WorldWater
and Power Corp. (the "Company"), a Delaware corporation, for value received,
hereby certifies that EMCORE Corporation, a New Jersey corporation, or its
registered assigns, is entitled to purchase from the Company 505,044 duly
authorized, validly issued, fully paid and nonassessable shares (subject to
adjustment as provided herein) of Series D Convertible Preferred Stock, of
the
Company at the purchase price of $3.17 per share (the initial "Exercise Price",
subject to adjustment as provided herein), at any time or from time to time
prior to 5.00 P.M., New York City time on the 29th
day of
November 2016, all subject to the terms, conditions and adjustments set forth
below in this Warrant.
1. |
DEFINITIONS
|
As
used
in this Warrant, the following terms have the respective meanings set forth
below:
"Affiliate"
of any Person means any other Person which directly, or indirectly through
one
or more intermediaries, controls, or is controlled by, or is under common
control with, such Person. The term "control" (including the terms
"controlling," "controlled by" and "under common control with") as used with
respect to any Person means the possession, direct or indirect, of the power
to
direct or cause the direction of the management and/or policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise.
"After-Tax
Basis" when referring to a payment that is required hereunder (the "target
amount"), means a total payment (the "total amount") that, after deduction
of
all federal, state and local taxes that are required to be paid by the recipient
in respect of the receipt or accrual of such total amount, is equal to the
target amount.
"Agreed
Rate" means the rate of interest announced publicly by Citibank, N.A. in New
York, New York, from time to time, as Citibank, N.A.'s base rate.
“Appraisal
Procedure” if applicable, means the following procedure to determine the fair
market value, as to any security, for purposes of the definition of “Fair Market
Value” or the fair market value, as to any other property (in either case, the
“Valuation Amount”). If the amount to be appraised is less than or equal to five
hundred thousand dollars ($500,000), the Valuation Amount shall be determined
in
good faith by the Board of Directors of the Company (the "Board of Directors").
If the amount to be appraised is greater than five hundred thousand dollars
($500,000), the Valuation Amount shall be determined in good faith jointly
by
the Board of Directors and the holders of more than 50% of the issued and
outstanding shares of Series D Preferred Stock; provided,
however,
that
any holder of Series D Preferred Stock having a Liquidation Preference greater
than five hundred thousand dollars ($500,000) (an “Appraisal Rights Holder”)
shall be promptly notified by the Board of Directors of such initially
determined Valuation Amount and if such Appraisal Rights Holder notifies the
Company that it does not agree on the Valuation Amount within a reasonable
period of time (not to exceed twenty (20) days from the notice to the Appraisal
Rights Holder), the Valuation Amount shall be determined by an investment
banking firm of national recognition, which firm shall be reasonably acceptable
to the Board of Directors and the Appraisal Rights Holder. If the Board of
Directors and the Appraisal Rights Holder are unable to agree upon an acceptable
investment banking firm within ten (10) days after the date either party
proposed that one be selected, the investment banking firm will be selected
by
an arbitrator located in New York, New York, selected by the New York branch
of
the American Arbitration Association (or if such organization ceases to exist,
the arbitrator shall be chosen by a court of competent jurisdiction). The
arbitrator shall select the investment banking firm (within ten (10) days of
his
appointment) from a list, jointly prepared by the Board of Directors and the
Appraisal Rights Holder, of not more than six investment banking firms of
national standing in the United States, of which no more than three may be
named
by the Board of Directors and no more than three may be named by the Appraisal
Rights Holder. The arbitrator may consider, within the ten-day period allotted,
arguments from the parties regarding which investment banking firm to choose,
but the selection by the arbitrator shall be made in its sole discretion from
the list of six. The Board of Directors and the Appraisal Rights Holder shall
submit their respective valuations and other relevant data to the investment
banking firm, and the investment banking firm shall, within thirty days of
its
appointment, make its own determination of the Valuation Amount. The final
Valuation Amount for purposes hereof shall be the average of the two Valuation
Amounts closest together, as determined by the investment banking firm, from
among the Valuation Amounts submitted by the Company and the Appraisal Rights
Holder and the Valuation Amount calculated by the investment banking firm.
The
determination of the final Valuation Amount by such investment-banking firm
shall be final and binding upon the parties. The Company shall pay the fees
and
expenses of the investment banking firm and arbitrator (if any) used to
determine the Valuation Amount. If required by any such investment banking
firm
or arbitrator, the Company shall execute a retainer and engagement letter
containing reasonable terms and conditions, including, without limitation,
customary provisions concerning the rights of indemnification and contribution
by the Company in favor of such investment banking firm or arbitrator and its
officers, directors, partners, employees, agents and affiliates.
"Business
Day" means any day, except a Saturday, Sunday or legal holiday, on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close.
"Commission"
means the Securities and Exchange Commission or any other federal agency then
administering the Securities Act and other federal securities laws.
"Common
Stock" means the Common Stock of the Company, par value $0.001 per share, as
constituted on the Issue Date, and any capital stock into which such Common
Stock may thereafter be changed, and shall also include capital stock of the
Company of any other class (regardless of how denominated) issued to the holders
of shares of any Common Stock upon any reclassification thereof which is also
not preferred as to dividends or liquidation over any other class of stock
of
the Company and which is not subject to redemption.
"Company"
means WorldWater and Power Corp., a Delaware corporation, and any successor
corporation.
"Designated
Office" has the meaning assigned to it in Section 8 hereof.
"Exercise
Date" has the meaning assigned to it in Section 2.1(a) hereof.
"Exercise
Notice" has the meaning assigned to it in Section 2.1(a) hereof.
"Exercise
Price" means, in respect of a share of Warrant Stock at any date herein
specified, the initial Exercise Price set forth in the preamble of this Warrant
as adjusted from time to time pursuant to Section 4 hereof.
"Expiration
Date" means the tenth anniversary of the Issue Date.
"Fair
Market Value" means, as to any security, the Twenty Day Average of the average
closing prices of such security's sales on all domestic securities exchanges
on
which such security may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the highest bid and lowest
asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices quoted on The Nasdaq National Market System as of 4:00 P.M., New York
City time, on such day, or, if on any day such security is not quoted on The
Nasdaq National Market System, the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau, Incorporated, or any similar or successor
organization (and in each such case excluding any trades that are not bona
fide,
arm's length transactions). If at any time such security is not listed on any
domestic securities exchange or quoted on The Nasdaq National Market System
or
the domestic over-the-counter market, the "Fair Market Value" of such security
shall be the fair market value thereof as determined in accordance with the
Appraisal Procedure, using any appropriate valuation method, assuming an
arms-length sale to an independent party. In determining the Fair Market Value
of Series D Preferred Stock, a sale of all of the issued and Outstanding Series
D Preferred Stock will be assumed, without giving regard to the lack of
liquidity of such stock due to any restrictions (contractual or otherwise)
applicable thereto or any discount for minority interests and assuming the
conversion or exchange of all securities then Outstanding that are convertible
into or exchangeable for Common Stock and the exercise of all rights and
warrants then Outstanding and exercisable to purchase shares of such stock
or
securities convertible into or exchangeable for shares of such stock;
provided,
however
that
such assumption will not include those securities, rights and warrants
convertible into Common Stock where the conversion, exchange or exercise price
per share is greater than the Fair Market Value; provided,
further,
however, that Fair Market Value shall be determined with regard to the relative
priority of each class or series of Common Stock (if more than one class or
series exists). "Fair Market Value" means, with respect to property other than
securities, the "fair market value" determined in accordance with the Appraisal
Procedure.
"GAAP"
means United States generally accepted accounting principles consistently
applied.
"Governmental
Entity" means any national, federal, state, municipal, local, territorial,
foreign or other government or any department, commission, board, bureau,
agency, regulatory authority or instrumentality thereof, or any court, judicial,
administrative or arbitral body or public or private tribunal.
"Holder"
means (a) with respect to this Warrant, the Person in whose name the Warrant
set
forth herein is registered on the books of the Company maintained for such
purpose and (b) with respect to any other Warrant or shares of Warrant Stock,
the Person in whose name such Warrant or Warrant Stock is registered on the
books of the Company maintained for such purpose.
"Issue
Date" means November 29, 2006, the date on which the Warrants were issued by
the
Company pursuant to the Purchase Agreement.
"Lien"
means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, lien, charge, claim, security interest, easement or encumbrance,
or
preference, priority or other security agreement or preferential arrangement
of
any kind or nature whatsoever (including, without limitation, any lease or
title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of, or agreement to give, any
financing statement perfecting a security interest under the Uniform Commercial
Code or comparable law of any jurisdiction).
"Outstanding"
means, when used with reference to any class of Company capital stock, at any
date as of which the number of shares thereof is to be determined, all issued
shares of such class of Company capital stock, except shares then owned or
held
by or for the account of the Company or any Subsidiary, and shall include all
shares issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Company capital stock.
"Person"
means any individual, sole proprietorship, partnership, limited liability
company, joint venture, trust, incorporated organization, association,
corporation, institution, public benefit corporation, Governmental Entity or
any
other entity.
"Purchase
Agreement" means the Investment Agreement by and among the Company and EMCORE
Corporation, dated as of November 29, 2006.
"Securities
Act" means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"Series
D
Certificate of Designation" means the form of Certificate of Designation,
Powers, Preferences and Rights attached as Exhibit C to the Purchase
Agreement.
"Series
D
Preferred Stock" means the Series D Convertible Preferred Stock, par value
$0.01
per share, of the Company.
"Subsidiary"
means, with respect to any Person, corporation, association, trust, limited
liability company, partnership, joint venture or other business association
or
entity (i) at least 50% of the outstanding voting securities of which are at
the
time owned or controlled, directly or indirectly, by the Person; or (ii) with
respect to which the Company possesses, directly or indirectly, the power to
direct or cause the direction of the affairs or management of such
Person.
"Transfer"
means any disposition of any Warrant or Warrant Stock or of any interest
therein, which would constitute a "sale" thereof or a transfer of a beneficial
interest therein within the meaning of the Securities Act.
"Twenty
Day Average" means, with respect to any prices and in connection with the
calculation of Fair Market Value, the volume weighted average of such prices
over the twenty (20) Business Days ending on the Business Day immediately prior
to the day as of which "Fair Market Value" is being determined.
"Warrant
Price" means an amount equal to (i) the number of shares of Warrant Stock being
purchased upon exercise of this Warrant pursuant to Section 2.1 hereof,
multiplied by (ii) the Exercise Price.
"Warrants"
means all Warrants issued upon transfer, division or combination of, or in
substitution for, the Warrants, or any other Warrant subsequently issued to
the
Holder. All Warrants shall at all times be identical as to terms and conditions,
except as to the number of shares of Warrant Stock for which they may be
exercised and their date of issuance.
"Warrant
Stock" means the shares of Series D Preferred Stock issued, issuable or both
(as
the context may require) upon the exercise of Warrants.
2. |
EXERCISE
OF WARRANT
|
2.1 Manner
of Exercise.
(a) From
and
after the Issue Date and at any time before 5:00 P.M., New York time, on the
Expiration Date, the Holder of this Warrant may from time to time exercise
this
Warrant, on any Business Day, for all or any part of the number of shares of
Warrant Stock (subject to adjustment as provided herein) purchasable hereunder.
In order to exercise this Warrant, in whole or in part, the Holder shall (i)
deliver to the Company at its Designated Office a written notice of the Holder's
election to exercise this Warrant (an "Exercise Notice") substantially in the
form attached to this Warrant as Annex
A
(or a
reasonable facsimile thereof), which Exercise Notice shall be irrevocable and
specify the number of shares of Warrant Stock to be purchased, together with
this Warrant and (ii) pay to the Company the Warrant Price. The date on which
such delivery and payment shall have taken place being hereinafter sometimes
referred to as the "Exercise Date."
(b) Upon
receipt by the Company of such Exercise Notice, surrender of this Warrant and
payment of the Warrant Price (in accordance with Section 2.1(c) hereof), the
Company shall, as promptly as practicable, and in any event within three (3)
Business Days thereafter, execute (or cause to be executed) and deliver (or
cause to be delivered) to the Holder a certificate or certificates representing
the shares of Warrant Stock issuable upon such exercise, together with cash
in
lieu of any fraction of a share, as hereafter provided. The stock certificate
or
certificates so delivered shall be, to the extent possible, in such denomination
or denominations as the exercising Holder shall reasonably request in the
Exercise Notice and shall be registered in the name of the Holder or, subject
to
compliance with Section 3.1 below, such other name as shall be designated in
the
Exercise Notice. This Warrant shall be deemed to have been exercised and such
certificate or certificates of Warrant Stock shall be deemed to have been
issued, and the Holder or any other Person so designated to be named therein
shall be deemed to have become a holder of record of such shares of Warrant
Stock for all purposes, as of the Exercise Date.
(c) Payment
of the Warrant Price shall be made at the option of the Holder by one or more
of
the following methods: (i) by delivery of a certified or official bank check
or
by wire transfer of immediately available funds in the amount of such Warrant
Price payable to the order of the Company, (ii) by instructing the Company
to
withhold a number of shares of Warrant Stock then issuable upon exercise of
this
Warrant with an aggregate Fair Market Value equal to such Warrant Price, (iii)
by surrendering to the Company (x) shares of Series D Preferred Stock previously
acquired by the Holder with an aggregate Fair Market Value equal to such Warrant
Price and/or (y) shares of Series D Preferred Stock with an aggregate
Liquidation Preference (as such term is defined in the Series D Certificate
of
Designation) equal to such Warrant Price, or (iv) any combination of the
foregoing. In the event of any withholding of Warrant Stock or surrender of
Common Stock and/or Series D Preferred Stock pursuant to clause (ii), (iii)
or
(iv) above where the number of shares whose Fair Market Value is equal to the
Warrant Price is not a whole number, the number of shares withheld by or
surrendered to the Company shall be rounded up to the nearest whole share and
the Company shall make a cash payment to the Holder based on the incremental
fraction of a share being so withheld by or surrendered to the Company in an
amount determined in accordance with Section 2.3 hereof.
(d) If
this
Warrant shall have been exercised in part, the Company shall, at the time of
delivery of the certificate or certificates representing the shares of Warrant
Stock being issued, deliver to the Holder a new Warrant evidencing the rights
of
the Holder to purchase the unpurchased shares of Warrant Stock called for by
this Warrant. Such new Warrant shall in all other respects be identical to
this
Warrant.
(e) All
Warrants delivered for exercise shall be canceled by the Company.
2.2 Payment
of Taxes.
All
shares of Warrant Stock issuable upon the exercise of this Warrant pursuant
to
the terms hereof shall be validly issued, fully paid and nonassessable, issued
without violation of any preemptive or similar rights of any stockholder of
the
Company and free and clear of all Liens. The Company shall pay all expenses
in
connection with, and all taxes and other governmental charges that may be
imposed with respect to, the issue or delivery thereof, unless such tax or
charge is imposed by law upon the Holder, in which case such taxes or charges
shall be paid by the Holder and the Company shall reimburse the Holder therefor
on an After-Tax Basis. The Company shall not, however, be required to pay any
tax or governmental charge which may be issuable upon exercise of this Warrant
payable in respect of any Transfer involved in the issue and delivery of shares
of Warrant Stock in a name other than that of the holder of the Warrants to
be
exercised, and no such issue or delivery shall be made unless and until the
Person request-ing such issue has paid to the Company the amount of any such
tax, or has established to the satisfaction of the Company that such tax has
been paid.
2.3 Fractional
Shares.
The
Company shall not be required to issue a fractional share of Warrant Stock
upon
exercise of any Warrant. As to any fraction of a share that the Holder of one
or
more Warrants, the rights under which are exercised in the same transaction,
would otherwise be entitled to purchase upon such exercise, the Company shall
pay to such Holder an amount in cash equal to such fraction multiplied by the
Fair Market Value of one share of Series D Preferred Stock on the Exercise
Date.
2.4 Company
to Reaffirm Obligations.
The
Company will, at the time of each exercise of this Warrant, upon the request
of
the Holder, acknowledge in writing its continued obligation to afford to the
Holder all rights (including without limitation, any rights to registration,
pursuant to the Registration Rights Agreement entered into between the Company
and the Holder of the Series D Preferred Stock or any other securities issued
upon such exercise) to which the Holder shall continue to be entitled after
such
exercise in accordance with the terms of this Warrant, provided that if the
Holder shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford such rights to the
Holder.
3. |
TRANSFER,
DIVISION AND COMBINATION
|
3.1 Compliance
with Securities Act.
The
Holder, by acceptance hereof, agrees to comply in all respects with the
provisions of this Section 3.1 and further agrees that this Warrant and the
Warrant Stock to be issued upon exercise hereof are being acquired for
investment for its own account and that such Holder will not offer, sell or
otherwise dispose of this Warrant or any Warrant Stock to be issued upon
exercise hereof except under circumstances that will not result in a violation
of the Securities Act. This Warrant and all shares of Warrant Stock issued
upon
exercise of this Warrant (unless registered under the Securities Act) shall
be
stamped or imprinted with a legend in substantially the following
form:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED IN THE ABSENCE
OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH
ACT.
In
addition, in
connection with the issuance of this Warrant, the Holder specifically represents
to the Company by acceptance of this Warrant as follows:
(a) The
Holder has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Warrant and
the business, properties, prospects and financial condition of the Company.
This
does not limit or modify the representations and warranties of the Company
in
this Warrant or the right of the Holder to rely thereon.
(b) The
Holder understands that the securities it is purchasing are characterized as
"restricted securities" under the federal securities laws inasmuch as they
are
being acquired from the Company in a transaction not involving a public offering
and that under such laws and applicable regulations such securities may be
resold without registration under the Securities Act, only in certain limited
circumstances. In addition, the Holder represents that it is familiar with
SEC
Rule 144, as presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act.
(c) The
Holder acknowledges that it is able to fend for itself, can bear the economic
risk of its investment, and has such knowledge and experience in financial
or
business matters that it is capable of evaluating the merits and risks of the
investment in the Warrant and the Warrant Stock. The Holder also represents
it
has not been organized solely for the purpose of acquiring the Warrant and
the
Warrant Stock.
(d) Prior
to
any proposed transfer of this Warrant or the Warrant Stock, unless there is
in
effect a registration statement under the Securities Act covering the proposed
transfer, the Holder of such securities shall give written notice to the Company
of such Holder's intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer in sufficient
detail, and shall be accompanied by either (i) a written opinion, of legal
counsel who shall be reasonably satisfactory to the Company, addressed to the
Company and reasonably satisfactory, in form and substance, to the Company's
counsel, to the effect that the proposed transfer of the Warrant and/or Warrant
Stock may be effected without registration under the Securities Act, or (ii)
a
"no action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the
staff
of the Commission that enforcement action be taken with respect thereto,
whereupon the Holder of such securities shall be entitled to transfer such
securities in accordance with the terms of the notice delivered by the Holder
to
the Company.
(e) The
Holder, by acceptance of this Warrant, agrees to the restrictive legend
requirements and transfer provisions contained in Section 8.13 of the Purchase
Agreement, to the extent such provisions are applicable to this Warrant and
the
Warrant Stock held by the Holder.
3.2 Transfer.
Each
new certificate evidencing the Warrant and/or Warrant Stock so transferred
shall
bear the appropriate restrictive legends set forth in Section 3.1 hereof, except
that such certificate shall not bear such restrictive legend, if, in the opinion
of counsel for the Company, such legend is not required in order to establish
or
assist in compliance with any provisions of the Securities Act or any applicable
state securities laws. Upon compliance with the provisions of this Section
3.2,
each transfer of this Warrant and all rights hereunder, in whole or in part,
shall be registered on the books of the Company to be maintained for such
purpose, upon surrender of this Warrant at the Designated Office and compliance
with the terms hereof, together with a written assignment of this Warrant in
the
form of Annex B hereto duly executed by the Holder or its agent or attorney
and
funds sufficient to pay any transfer taxes described in Section 2.2 in
connection with the making of such transfer. Upon such compliance, surrender
and
delivery and, if required, such payment, the Company shall execute and deliver
a
new Warrant or Warrants in the name of the assignee or assignees and in the
denominations specified in such instrument of assignment, and shall issue to
the
assignor a new Warrant evidencing the portion of this Warrant not so assigned
and this Warrant shall promptly be cancelled.
3.3 Mutilation
or Loss.
Upon
receipt of evidence reasonably satisfac-tory to the Company of the loss, theft,
destruction or mutilation of this Warrant and upon delivery of an indemnity
reasonably satisfactory to it (it being understood that the written
indemnification agreement of or affidavit of loss of the Holder shall be a
sufficient indemnity) and, in case of mutilation, upon surrender of such Warrant
for cancellation to the Company, the Company at its own expense will execute
and
deliver to the Holder, in lieu hereof a new Warrant of like tenor and
exercisable for an equivalent number of shares of Series D Preferred Stock
as
the Warrant so lost, stolen, mutilated or destroyed; provided,
however,
that,
in the case of mutilation, no indemnity shall be required if this Warrant in
identifiable form is surrendered to the Company for cancellation.
3.4 Division
and Combination.
Subject
to compliance with the applicable provisions of this Warrant, this Warrant
may
be divided or combined with other Warrants upon presentation hereof at the
Designated Office, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the Holder
or
its agent or attorney. Subject to compliance with the applicable provisions
of
this Warrant as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants
in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
3.5 Expenses.
The
Company shall prepare, issue and deliver at its own expense any new Warrant
or
Warrants required to be issued hereunder.
3.6 Maintenance
of Books.
The
Company agrees to maintain, at the Desig-nated Office, books for the
registration and transfer of the Warrants. The Company may treat the Person
in
whose name any Warrant is registered on such register as the Holder thereof
for
all other purposes, and the Company shall not be affected by any notice to
the
contrary, except that, if and when any Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer thereof as
the
owner of such Warrant for all purposes.
4. |
ANTIDILUTION
PROVISIONS
|
The
number of shares of Warrant Stock for which this Warrant is exercisable and
the
Exercise Price shall be subject to adjustment from time to time as set forth
in
this Section 4.
4.1 Upon
Issuance of Series D Preferred Stock.
If the
Company shall, at any time or from time to time after the Issue Date, issue
any
shares of Series D Preferred Stock, options to purchase or rights to subscribe
for Series D Preferred Stock, securities by their terms convertible into or
exchangeable for Series D Preferred Stock, or options to purchase or rights
to
subscribe for such convertible or exchangeable securities without consideration
or for consideration per share less than either (x)the Exercise Price in effect
immediately prior to the issuance of such Series D Preferred Stock or
securities, then such Exercise Price shall forthwith be lowered to a price
equal
to the consideration per share for which such Series D Preferred Stock was
or
other securities were issued or (y) the Fair Market Value per share of the
Series D Preferred Stock immediately prior to such issuance, if such Fair Market
Value is greater than the Exercise Price, then such Exercise Price shall
forthwith be lowered to a price equal to the price obtained by
multiplying:
(i) the
Exercise Price in effect immediately prior to the issuance of such Series D
Preferred Stock, options, rights or securities by
(ii) a
fraction of which (x) the numerator shall be the sum of (i) the number of shares
of Series D Preferred Stock Outstanding on a fully-diluted basis immediately
prior to such issuance and (ii) the number of additional shares of Series D
Preferred Stock which the aggregate consideration for the number of shares
of
Series D Preferred Stock so offered would purchase at the Fair Market Value
per
share of Series D Preferred Stock and (y) the denominator shall be the number
of
shares of Series D Preferred Stock Outstanding on a fully-diluted basis
immediately after such issuance.
4.2 Upon
Acquisition of Series D Preferred Stock.
If the
Company or any Subsidiary shall, at any time or from time to time after the
Issue Date, directly or indirectly, redeem, purchase or otherwise acquire any
shares of Series D Preferred Stock, options to purchase or rights to subscribe
for Series D Preferred Stock, securities by their terms convertible into or
exchangeable for Series D Preferred Stock (other than shares of Series D
Preferred Stock that are redeemed according to their terms), or options to
purchase or rights to subscribe for such convertible or exchangeable securities,
for a consideration per share greater than the Fair Market Value (plus, in
the
case of such options, rights, or securities, the additional consideration
required to be paid to the Company upon exercise, conversion or exchange) per
share of Series D Preferred Stock immediately prior to such event, then the
Exercise Price shall forthwith be lowered to a price equal to the price obtained
by multiplying:
(i) the
Exercise Price in effect immediately prior to such event by
(ii) a
fraction of which (x) the denominator shall be the Fair Market Value per share
of Series D Preferred Stock immediately prior to such event and (y) the
numerator shall be the result of dividing:
(A) |
(1)
the product of (a) the number of shares of Series D Preferred Stock
Outstanding on a fully-diluted basis and (b) the Fair Market Value
per
share of Series D Preferred Stock, in each case immediately prior
to such
event, minus (2) the aggregate consideration paid by the Company
in such
event (plus, in the case of such options, rights, or convertible
or
exchangeable securities, the aggregate additional consideration to
be paid
by the Company upon exercise, conversion or exchange),
by
|
(B) |
the
number of shares of Series D Preferred Stock Outstanding on a
fully-diluted basis immediately after such
event.
|
4.3 Provisions
Applicable to Adjustments.
For the
purposes of any adjustment of the Exercise Price pursuant to Section 4.1 or
4.2,
the following provisions shall be applicable:
(i) In
the
case of the issuance of Series D Preferred Stock for cash in a public offering
or private placement, the consideration shall be deemed to be the amount of
cash
paid therefor before deducting therefrom any discounts, commissions or placement
fees payable by the Company to any underwriter or placement agent in connection
with the issuance and sale thereof.
(ii) In
the
case of the issuance of Series D Preferred Stock for a consideration in whole
or
in part other than cash, the consideration other than cash shall be deemed
to be
the Fair Market Value thereof.
(iii) In
the
case of the issuance of options to purchase or rights to subscribe for Series
D
Preferred Stock, securities by their terms convertible into or exchangeable
for
Series D Preferred Stock, or options to purchase or rights to subscribe for
such
convertible or exchangeable securities:
(A) |
the
aggregate maximum number of shares of Series D Preferred Stock deliverable
upon exercise of such options to purchase or rights to subscribe
for
Series D Preferred Stock shall be deemed to have been issued at the
time
such options or rights were issued and for a consideration equal
to the
consideration (determined in the manner provided in subparagraphs
(i) and
(ii) above), if any, received by the Company upon the issuance of
such
options or rights plus the minimum purchase price provided in such
options
or rights for the Series D Preferred Stock covered
thereby;
|
(B) |
the
aggregate maximum number of shares of Series D Preferred Stock deliverable
upon conversion of or in exchange for any such convertible or exchangeable
securities or upon the exercise of options to purchase or rights
to
subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued
at the
time such securities, options, or rights were issued and for a
consideration equal to the consideration received by the Company
for any
such securities and related options or rights (excluding any cash
received
on account of accrued interest or accrued dividends), plus the additional
consideration, if any, to be received by the Company upon the conversion
or exchange of such securities or the exercise of any related options
or
rights (the consideration in each case to be determined in the manner
provided in paragraphs (i) and (ii)
above);
|
(C) |
on
any change in the number of shares or exercise price of Series D
Preferred
Stock deliverable upon exercise of any such options or rights or
conversions of or exchanges for such securities, other than a change
resulting from the anti-dilution provisions thereof, the Exercise
Price
shall forthwith be readjusted to such Exercise Price as would have
been
obtained had the adjustment made upon the issuance of such options,
rights
or securities not converted prior to such change or options or rights
related to such securities not converted prior to such change been
made
upon the basis of such change;
|
(D) |
upon
the expiration of any options to purchase or rights to subscribe
for
Series D Preferred Stock which shall not have been exercised, the
Exercise
Price computed upon the original issue thereof (or upon the occurrence
of
a record date with respect thereto), and any subsequent adjustments
based
thereon, shall, upon such expiration, be recomputed as if the only
additional shares of Series D Preferred Stock issued were the shares
of
Series D Preferred Stock, if any actually issued upon the exercise
of such
options to purchase or rights to subscribe for Series D Preferred
Stock,
and the consideration received therefor was the consideration actually
received by the Company for the issue of the options to purchase
or rights
to subscribe for Series D Preferred Stock that were exercised, plus
the
consideration actually received by the Company upon such exercise;
and
|
(E) |
no
further adjustment of the Exercise Price adjusted upon the issuance
of any
such options, rights, convertible securi-ties or exchangeable securities
shall be made as a result of the actual issuance of Series D Preferred
Stock on the exercise of any such rights or options or any conversion
or
exchange of any such securities.
|
4.4 Upon
Stock Dividends, Subdivisions or Splits.
If, at
any time after the Issue Date, the number of shares of Series D Preferred Stock
Outstanding is increased by a stock dividend payable in shares of Series D
Preferred Stock or by a subdivision or split-up of shares of Series D Preferred
Stock, then, following the record date for the determination of holders of
Series D Preferred Stock entitled to receive such stock dividend, or to be
affected by such subdivision or split-up, the Exercise Price shall be
appropriately decreased by multiplying the Exercise Price by a fraction, the
numerator of which is the number of shares of Series D Preferred Stock
Outstanding immediately prior to such increase and the denominator of which
is
the number of shares of Series D Preferred Stock Outstanding immediately after
such increase in Outstanding shares.
4.5 Upon
Combinations or Reverse Stock Splits.
If, at
any time after the Issue Date, the number of shares of Series D Preferred Stock
Outstanding is decreased by a combination or reverse stock split of the
Outstanding shares of Series D Preferred Stock into a smaller number of shares
of Series D Preferred Stock, then, following the record date to determine shares
affected by such combination or reverse stock split, the Exercise Price shall
be
appropriately increased by multiplying the Exercise Price by a fraction, the
numerator of which is the number of shares of Series D Preferred Stock
Outstanding immediately prior to such decrease and the denominator of which
is
the number of shares of Series D Preferred Stock Outstanding immediately after
such decrease in Outstanding shares.
4.6 Upon
Reclassifications, Reorganizations, Consolidations or Mergers.
In the
event of any capital reorganization of the Company, any reclassification of
the
stock of the Company (other than a change in par value or from par value to
no
par value or from no par value to par value or as a result of a stock dividend
or subdivision, split-up or combination of shares), or any consolidation or
merger of the Company with or into another Person (where the Company is not
the
surviving Person or where there is a change in or distribution with respect
to
the Series D Preferred Stock), each Warrant shall after such reorganization,
reclassification, consolidation, or merger be exercisable for the kind and
number of shares of stock or other securities or property of the Company or
of
the successor Person resulting from such consolidation or surviving such merger,
if any, to which the holder of the number of shares of Series D Preferred Stock
deliverable (immediately prior to the time of such reorganization,
reclassification, consolidation or merger) upon exercise of such Warrant would
have been entitled upon such reorganization, reclassification, consolidation
or
merger. The provisions of this clause shall similarly apply to successive
reorganizations, reclassifications, consolidations, or mergers. The Company
shall not effect any such reorganization, reclassification, consolidation or
merger unless, prior to the consummation thereof, the successor Person (if
other
than the Company) resulting from such reorganization, reclassification,
consolidation or merger, shall assume, by written instrument, the obligation
to
deliver to the Holders of the Warrant such shares of stock, securities or
assets, which, in accordance with the foregoing provisions, such Holders shall
be entitled to receive upon such conversion.
4.7 Deferral
in Certain Circumstances.
In any
case in which the provisions of this Section 4 shall require that an adjustment
shall become effective immediately after a record date of an event, the Company
may defer until the occurrence of such event (a) issuing to the Holder of any
Warrant exercised after such record date and before the occurrence of such
event
the shares of capital stock issuable upon such exercise by reason of the
adjustment required by such event and issuing to such Holder only the shares
of
capital stock issuable upon such exercise before giving effect to such
adjustments, and (b) paying to such Holder any amount in cash in lieu of a
fractional share of capital stock pursuant to Section 2.3 above; provided,
however,
that
the Company shall deliver to such Holder an appropriate instrument or due bills
evidencing such Holder's right to receive such additional shares or such
cash.
4.8 Other
Anti-Dilution Provisions.
If the
Company has issued or issues any securities at a pre-investment valuation (on
a
fully diluted basis) of the Company of not more than $70,000,000 (excluding
the
total proceeds received by the Company under the Purchase Agreement), containing
provisions (including, without limitation, any of the terms of pricing, exercise
price, anti-dilution and registration rights) which are more favorable than
those set forth herein, the Company will make such provisions (or any more
favorable portion thereof) available to the Holder and will use best efforts
to
enter into amendments necessary to confer such rights on the Holder
.
4.9 Appraisal
Procedure.
In any
case in which the provisions of this Section 4 shall necessitate that the
Appraisal Procedure be utilized for purposes of determining an adjustment to
the
Exercise Price, the Company may defer until the completion of the Appraisal
Procedure and the determination of the adjustment (1) issuing to the Holder
of
any Warrant exercised after the date of the event that requires the adjustment
and before completion of the Appraisal Procedure and the determination of the
adjustment, the shares of capital stock issuable upon such exercise by reason
of
the adjustment required by such event and issuing to such Holder only the shares
of capital stock issuable upon such exercise before giving effect to such
adjustment and (2) paying to such Holder any amount in cash in lieu of a
fractional share of capital stock pursuant to Section 2.3 above; provided,
however,
that
the Company shall deliver to such Holder an appropriate instrument or due bills
evidencing such Holder's right to receive such additional shares or such
cash.
4.10 Adjustment
of Number of Shares Purchasable.
Upon
any and each adjustment of the Exercise Price as provided for in Section 4.1,
4.2, 4.4, 4.5 and 4.6, the Holders of the Warrants shall thereafter be entitled
to purchase upon the exercise thereof, at the Exercise Price resulting from
such
adjustment, the number of shares of Warrant Stock (calculated to the nearest
1/100th of a share) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Warrant Stock
issuable on the exercise hereof immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
4.11 Notice
of Adjustment of Exercise Price.
Whenever the Exercise Price is adjusted as herein provided:
(i) the
Company shall compute the adjusted Exercise Price in accor-dance with this
Section 4 and shall prepare a certificate signed by the treasurer or chief
financial officer of the Company setting forth the adjusted Exercise Price
and
showing in reasonable detail the facts upon which such adjustment is based,
and
such certificate shall forthwith be filed at the Designated Office;
and
(ii) a
notice
stating that the Exercise Price has been adjusted and setting forth the adjusted
Exercise Price shall forthwith be prepared by the Company, and as soon as
practicable after it is prepared, such notice shall be mailed by the Company
at
its expense to all Holders at their last addresses as they shall appear in
the
warrant register.
5. |
NO
IMPAIRMENT; REGULATORY COMPLIANCE AND COOPERATION; NOTICE OF
EXPIRATION
|
5.1 The
Company shall not by any action, including, without limitation, amending its
charter documents or through any reorganization, reclassification, transfer
of
assets, consolidation, merger, dissolution, issue or sale of securities or
any
other similar voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all
such
actions as may be necessary or appropriate to protect the rights of the Holder
against impairment. Without limiting the generality of the foregoing, the
Company shall take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Warrant Stock upon the exercise of this Warrant, free and clear of
all
Liens, and shall use its best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its obligations
under this Warrant.
5.2 The
Company shall deliver to each Holder of Warrants, after the 60th day but before
the 30th day prior to the Expiration Date, advance notice of such Expiration
Date. If the Company fails to fulfill in a timely manner the notice obligation
set forth in the prior sentence, it shall provide such notice as soon as
possible thereafter.
6. |
RESERVATION
AND AUTHORIZATION OF SERIES D PREFERRED
STOCK
|
6.1 The
Company shall at all times reserve and keep available for issuance upon the
exercise of the Warrants such number of its authorized but unissued shares
of
Series D Preferred Stock as will be required for issuance of the Warrant Stock.
All shares of Warrant Stock issuable pursuant to the terms hereof, when issued
upon exercise of this Warrant with payment therefor in accordance with the
terms
hereof, shall be duly and validly issued and fully paid and nonassessable,
not
subject to preemptive rights and shall be free and clear of all Liens. Before
taking any action that would result in an adjustment in the number of shares
of
Warrant Stock for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or
consents thereto, as may be necessary from any public regulatory body or bodies
having jurisdiction over such action. If any shares of Warrant Stock required
to
be reserved for issuance upon exercise of Warrants require registration or
qualification with any Governmental Entity under any federal or state law (other
than under the Securities Act or any state securities law) before such shares
may be so issued, the Company will in good faith and as expeditiously as
possible and at its expense endeavor to cause such shares to be duly
registered.
6.2 Before
taking any action that would cause an adjustment reducing the Exercise Price
below the then par value (if any) of the shares of Warrant Stock deliverable
upon exercise of the Warrant or that would cause the number of shares of Warrant
Stock issuable upon exercise of the Warrant to exceed (when taken together
with
all other Outstanding shares of Series D Preferred Stock) the number of shares
of Series D Preferred Stock that the Company is authorized to issue, the Company
will take any corporate action that, in the opinion of its counsel, is necessary
in order that the Company may validly and legally issue the full number of
fully
paid and nonassessable shares of Warrant Stock issuable upon exercise of the
Warrant at such adjusted exercise price.
7. |
NOTICE
OF CORPORATE ACTIONS; TAKING OF RECORD; TRANSFER
BOOKS
|
7.1 Notices
of Corporate Actions.
In
case:
(a) of
any
taking by the Company of a record of the holders of any class of securities
for
the purpose of determining the holders thereof entitled to receive any dividend
(other than a regular periodic dividend payable in cash out of earned surplus
in
an amount not exceeding the amount of the immediately preceding cash dividend
for such period) or other distribution, or any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities
property, or to receive any other right; or
(b) of
any
reclassification of the Series D Preferred Stock (other than a subdivision
or
combination of the Outstanding shares of Series D Preferred Stock), or of any
reorganization, recapitalization, consolidation, merger or share exchange to
which the Company is a party and for which approval of any stockholders of
the
Company is required, or of the sale or transfer of all or substantially all
of
the assets of the Company; or
(c) of
the
voluntary or involuntary dissolution, liquidation or winding up of the Company;
or
(d) the
Company or any Subsidiary shall commence a tender offer for all or a portion
of
the Outstanding shares of Series D Preferred Stock (or shall amend any such
tender offer to change the maximum number of shares being sought or the amount
or type of consideration being offered therefor);
then
the
Company shall cause to be filed at the Designated Office, and shall cause to
be
mailed to all Holders at their last addresses as they shall appear in the
warrant register, at least thirty (30) days prior to the applicable record,
effective or expiration date hereinafter specified, a notice stating (x) the
date, or expected date, on which a record is to be taken for the purpose of
such
dividend, distribution or granting of rights or warrants, or, if a record is
not
to be taken, the date as of which the holders of Series D Preferred Stock of
record who will be entitled to such dividend, distribution, rights or warrants
are to be determined, (y) the date, or expected date, on which such
reclassification, reorganization, recapitalization, consolidation, merger,
share
exchange, sale, transfer, dissolution, liquidation or winding up is expected
to
become effective, and the date as of which it is expected that holders of Series
D Preferred Stock of record shall be entitled to exchange their shares of Series
D Preferred Stock for securities, cash or other property deliverable upon such
reclassification, reorganization, recapitalization, consolidation, merger,
share
exchange, sale, transfer, dissolution, liquidation or winding up, or (z) the
date, or expected date, on which such tender offer commenced, the date, or
the
expected date, on which such tender offer is scheduled to expire unless
extended, the consideration offered and the other material terms thereof (or
the
material terms of the amendment thereto). Such notice shall also set forth
such
facts with respect thereto as shall be reasonably necessary to indicate the
effect of such action on the Exercise Price and the number and kind or class
of
shares or other securities or property which shall be deliverable or purchasable
upon the occurrence of such action or deliverable upon exercise of the Warrants.
Neither the failure to give any such notice nor any defect therein shall affect
the legality or validity of any action described in clauses (a) through (d)
of
this Section 7.1.
7.2 Taking
of Record.
In the
case of all dividends or other distributions by the Company to the holders
of
its Series D Preferred Stock with respect to which any provision hereof refers
to the taking of a record of such holders, the Company will in each such case
take such a record and will take such record as of the close of business on
a
Business Day.
7.3 Closing
of Transfer Books.
The
Company shall not at any time close its stock transfer books or warrant transfer
books so as to result in preventing or delaying the exercise or transfer of
any
Warrant.
8. |
OFFICE
OF THE COMPANY
|
As
long
as any of the Warrants remain outstanding, the Company shall maintain an office
or agency, which may be the principal executive offices of the Company (the
"Desig-nated Office"), where the Warrants may be presented for exercise,
registration of transfer, division or combination as provided in this Warrant.
Such Designated Office shall initially be the office of the Company at
Pennington Business Park, 55 Route 31 South, Pennington, NJ 08534. The Company
may from time to time change the Designated Office to another office of the
Company or its agent within the United States by notice given to all registered
Holders at least ten (10) Business Days prior to the effective date of such
change.
9. |
FINANCIAL
AND BUSINESS INFORMATION
|
Without
duplication of any document or information provided to the Holder pursuant
to
Section 8 of the Purchase Agreement, the Company shall provide to each Holder
of
Warrants or Warrant Stock the following, whether or not the Company's
obligations under such Section 8 shall have expired:
(a) as
soon
as available, but not later than 45 days after the end of each quarterly
accounting period, a Form 10-Q;
(b) as
soon
as available, but not later than 90 days after the end of each fiscal year,
a
Form 10-K;
(c) simultaneously
with any distribution of any document to the stockholders of the Company
generally, any such document so distributed; and
(d) reasonable
access, upon reasonable advance notice, to the Holder, the Affiliates of the
Holder and each of their respective officers, employees, advisors, counsel
and
other authorized representatives, during normal business hours, to all of the
books, records and properties of the Company and its Subsidiaries and all
officers and employees of the Company and such Subsidiaries.
10. |
DILUTION
FEE
|
(a) In
the
event that any dividends are declared or paid or any other distribu-tion is
made
on or with respect to the Series D Preferred Stock, the Holder of this Warrant
as of the record date established by the Board of Directors for such dividend
or
distribution on the Common Stock shall be entitled to receive a fee (the
"Dilution Fee") in an amount (whether in the form of cash, securities or other
property) equal to the amount (and in the form) of the dividends or distribution
that such Holder would have received had the Warrant been exercised as of the
date immediately prior to the record date for such dividend or distribution,
such Dilution Fee to be payable on the same payment date established by the
Board of Directors for the payment of such dividend or distribution;
provided,
however,
that if
the Company declares and pays a dividend or distribution on the Series D
Preferred Stock consisting in whole or in part of Series D Preferred Stock,
then
no such Dilution Fee shall be payable in respect of the Warrant on account
of
the portion of such dividend or distribution on the Series D Preferred Stock
payable in Series D Preferred Stock and in lieu thereof the adjustment in
Section 4 hereof shall apply. The record date for any such Dilution Fee shall
be
the record date for the applicable dividend or distribution on the Series D
Preferred Stock, and any such Dilution Fee shall be payable to the Persons
in
whose name the Warrant is registered at the close of business on the applicable
record date.
(b) No
dividend shall be paid or declared on any share of Series D Preferred Stock
(other than dividends payable in Series D Preferred Stock for which an
adjustment was made pursuant to Section 4 hereof), unless the Dilution Fee,
payable in the same consideration and manner, is simultaneously paid or provided
for, as the case may be, in respect of this Warrant in an amount determined
as
set forth above. For purposes hereof, the term "dividends" shall include any
pro rata
distribution by the Company, out of funds of the Company legally available
therefor, of cash, property, securities (including, but not limited to, rights,
warrants or options) or other property or assets to the holders of the Series
D
Preferred Stock, whether or not paid out of capital, surplus or earnings other
than liquidation.
(c) Prior
to
declaring any dividend or making any distribution on or with respect to shares
of Series D Preferred Stock, the Company shall take all prior corporate action
necessary to authorize the issuance of any securities payable as the Dilution
Fee in respect of the Warrant.
11. |
MISCELLANEOUS
|
11.1 No
Implied Waivers.
No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
11.2 Notices
.
All
notices, requests, consents and other communications required or permitted
hereunder shall be in writing and shall be hand delivered or mailed postage
prepaid by registered or certified mail or transmitted by facsimile transmission
(with immediate telephonic confirmation thereafter),
(a) If
to the
Holder:
EMCORE
Corporation
145
Belmont Drive
Somerset,
New Jersey 08873
Attention:
Howard W. Brodie, Esq.
Facsimile
No.: (732) 302-9783
with
a
copy to (which shall not constitute notice):
Skadden,
Arps, Slate, Meagher & Flom LLP
Four
Times Square
New
York,
NY 10036-6522
Attention:
Thomas H. Kennedy, Esq.
Facsimile
No.: (212) 735-2000
or
(b) If
to the
Company:
WorldWater
and Power
Corp.
Pennington
Business Park
55
Route
31 South
Pennington,
NJ 08534
Attention:
Quentin
T. Kelly
Facsimile
No.: (609) 818-0720
with
a copy
to (which shall not constitute notice):
Salvo
Landau
Gruen & Rogers
501
Township
Line Road, Suite 150
Blue
Bell,
Pennsylvania 19422
Attention:
Stephen
A. Salvo, Esq.
Facsimile
No.: (212) 653-0383
or
at
such other address as the parties each may specify by written notice to the
others, and each such notice, request, consent and other communication shall
for
all purposes of the Warrant be treated as being effective or having been given
when delivered if delivered personally, upon receipt of facsimile confirmation
if transmitted by facsimile, or, if sent by mail, at the earlier of its receipt
or 72 hours after the same has been deposited in a regularly maintained
receptacle for the deposit of United States mail, addressed and postage prepaid
as aforesaid.
11.3 Indemnification.
If the
Company fails to make, when due, any payments provided for in this Warrant,
the
Company shall pay to the Holder hereof (a) interest at the Agreed Rate on any
amounts due and owing to such Holder and (b) such further amounts as shall
be
sufficient to cover any costs and expenses including, but not limited to,
reasonable attorneys' fees and expenses incurred by such Holder in collecting
any amounts due hereunder. The Company shall indemnify, save and hold harmless
the Holder hereof and the Holders of any Warrant Stock issued upon the exercise
hereof from and against any and all liability, loss, cost, damage, reasonable
attorneys' and accountants' fees and expenses, court costs and all other
out-of-pocket expenses incurred in connection with or arising from any default
hereunder by the Company. This indemnification provision shall be in addition
to
the rights of such Holder or Holders to bring an action against the Company
for
breach of contract based on such default hereunder.
11.4 Limitation
of Liability.
No
provision hereof, in the absence of affirmative action by the Holder to purchase
shares of Warrant Stock, and no enumeration herein of the rights or privileges
of the Holder hereof, shall give rise to any liability of such Holder to pay
the
Exercise Price for any Warrant Stock other than pursuant to an exercise of
this
Warrant or any liability as a stockholder of the Company, whether such liability
is asserted by the Company or by creditors of the Company. The Holder shall
not,
by virtue hereof, be entitled to any rights of a stockholder of the Company
and
nothing contained in this Warrant shall be construed as conferring upon the
Holder the right to vote or to consent or to receive notice as a stockholder
in
respect of meetings of stockholders for the election of directors of the Company
or any other matters or any rights whatsoever as a stockholder of the
Company.
11.5 Remedies.
Each
Holder of Warrants and/or Warrant Stock, in addition to being entitled to
exercise its rights granted by law, including recovery of damages, shall be
entitled to specific performance of its rights provided under this Warrant.
The
Company agrees that monetary damages would not be adequate compensation for
any
loss incurred by reason of a breach by it of the provisions of this Warrant
and
hereby agrees, in an action for specific performance, to waive the defense
that
a remedy at law would be adequate.
11.6 Successors
and Assigns.
This
Warrant and the rights evidenced hereby shall inure to the benefit of and be
binding upon the successors of the Company and the permitted successors and
assigns of the Holder hereof, such permitted successors and/or assigns shall
be
deemed to be a Holder for all purposes hereunder. The provisions of this Warrant
are intended to be for the benefit of all Holders from time to time of this
Warrant and to the extent applicable, all Holders of shares of Warrant Stock
issued upon the exercise hereof (including transferees), and shall be
enforceable by any such Holder.
11.7 Amendment.
This
Warrant and all other Warrants may be modified or amended or the provisions
hereof waived only with the written consent of the Company and the Holders.
Notwithstanding the foregoing, without a Holder's written consent no such
modifica-tion, amendment or waiver shall affect adversely such Holder's rights
hereunder in a discrimina-tory manner inconsistent with its adverse effects
on
rights of other Holders hereunder (other than as reflected by the different
number of shares of Warrant Stock held by such Holders). This Warrant cannot
be
changed, modified, discharged or terminated by oral agreement.
11.8 Severability.
If any
term, provision or restriction of this Warrant is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions and restrictions of this Warrant shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of this Warrant is not
affected in any manner materially adverse to either party. Upon such a
determination, the parties shall negotiate in good faith to modify this Warrant
so as to effect the original intent of the parties as closely as possible in
an
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent
possible.
11.9 Headings.
The
headings and other captions in this Warrant are for the convenience and
reference only and shall not be used in interpreting, construing or enforcing
any provision of this Warrant.
11.10 Governing
Law.
This
Warrant, including all matters of construction, validity and performance, shall
be construed in accordance with and governed by the Laws of the State of New
York (without regard to principles of conflicts of Laws).
11.11 Jurisdiction.
Each of
the parties hereto: (a) irrevocably consents to submit itself to the exclusive
jurisdiction and venue of the state courts located in New York County, in the
State of New York and the Federal courts located in the Southern District of
the
State of New York, for the purpose of any action or proceeding arising out
of
this Warrant or any of the transactions contemplated hereby, (b) agrees that
it
will not attempt to deny or defeat such personal jurisdiction by motion or
other
request for leave from any such court and (c) agrees that it will not bring
any
action relating to this Warrant or any of the transactions contemplated hereby
in any court other than a state or federal court of competent jurisdiction
located in New York, New York, except for the purpose of enforcing any award
or
decision.
11.12 Waiver
of Jury Trial.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.13 Aggregation
of Stock.
All
Warrant Stock held by or acquired by Affiliated Persons will be aggregated
together for the purpose of determining the availability of any rights under
this Warrant.
11.14 Entire
Agreement.
This
Warrant contains the entire agreement with respect to the subject matter hereof
and supersedes and replaces all other prior agreements, written or oral, with
respect to the subject matter hereof.
[Execution
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed as
of
the Issue Date.
WorldWater
and Power Corp.
By:
/s/
Quentin T. Kelly
Name:
Quentin T. Kelly
Title:
Chairman
ANNEX
A
SUBSCRIPTION
FORM
[To
be
executed only upon exercise of Warrant]
The
undersigned registered owner of this Warrant irrevocably exercises this Warrant
for the purchase of ______ shares of Series D Preferred Stock of WorldWater
and
Power Corp. and herewith makes payment therefor in __________, all at the price
and on the terms and conditions specified in this Warrant and requests that
certificates for the shares of Series D Preferred Stock hereby purchased (and
any securities or other property issuable upon such exercise) be issued in
the
name of and delivered to _________________ whose address is
_________________________________________________________________________________________and,
if such shares of Series D Preferred Stock shall not include all of the shares
of Series D Preferred Stock issuable as provided in this Warrant, that a new
Warrant of like tenor and date for the balance of the shares of Series D
Preferred Stock issuable hereunder be delivered to the undersigned.
_______________________________
(Name
of
Registered Owner)
_______________________________
(Signature
of Registered Owner)
_______________________________
(Street
Address)
_______________________________
(City)
(State) (Zip Code)
NOTICE: The
signature on this subscription must correspond with the name as written upon
the
face of the within Warrant in every particular, without alteration or
enlarge-ment or any change whatsoever.
ANNEX
B
ASSIGNMENT
FORM
FOR
VALUE
RECEIVED the undersigned registered owner of this Warrant hereby sells, assigns
and transfers unto the assignee named below all of the rights of the undersigned
under this Warrant, with respect to the number of shares of Series D Preferred
Stock set forth below:
Name
and Address of Assignee
|
No.
of Shares of Series D Preferred Stock
|
|
and
does
hereby irrevocably constitute and appoint ________ _____________
attorney-in-fact to register such transfer onto the books of WorldWater and
Power Corp. maintained for the purpose, with full power of substitution in
the
premises.
Dated:
Print
Name:
Signature:
Witness:
NOTICE: The
signature on this assignment must correspond with the name as written upon
the
face of the within Warrant in every particular, without alteration or
enlarge-ment or any change whatsoever.