8-K: Current report filing
Published on December 5, 2006
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
December
5, 2006 (November 29, 2006)
Date
of Report (Date of earliest event reported)
EMCORE
CORPORATION
Exact
Name of Registrant as Specified in its Charter
|
New
Jersey
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0-22175
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22-2746503
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|
State
of Incorporation
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Commission
File Number
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IRS
Employer Identification Number
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145
Belmont Drive, Somerset, New Jersey, 08873
Address
of principal executive offices, including zip code
(732)
271-9090
Registrant's
telephone number, including area code
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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ITEM
1.01 ENTRY
INTO A DEFINITIVE MATERIAL AGREEMENT.
On
November 29, 2006, EMCORE Corporation, a New Jersey corporation ("EMCORE")
and
WorldWater and Power Corp., a Delaware corporation ("WorldWater" and together
with EMCORE, the "Parties"), entered into an Investment Agreement (the
"Investment Agreement"), a Registration Rights Agreement (the "Registration
Right Agreement") and a Letter Agreement (the "Letter Agreement", and together
with the Investment Agreement and Registration Rights Agreement, the
"Agreements"). The Boards of Directors of EMCORE and WorldWater each approved
the Agreements.
Pursuant
to the Investment Agreement, EMCORE agreed to invest $18.0 million (the
"Investment") in return for (i) six million, five hundred and twenty-three
thousand, eight hundred and ten (6,523,810) shares of Series D Preferred
Convertible Stock of WorldWater, par value $0.01 per share (the "Series D
Stock") and (ii) six hundred and sixty-eight thousand, one hundred and
thirty-nine (668,139) warrants to purchase six hundred and sixty-eight thousand,
one hundred and thirty-nine (668,139) shares of Series D Stock (the "Warrants").
The Series D Stock and Warrants to be received by EMCORE are equivalent to
an
approximately thirty-one percent (31%) equity ownership in WorldWater, or
approximately twenty-six and half percent (26.5%) on a fully diluted basis.
On
November 29, 2006, EMCORE invested $13.5 million in WorldWater, representing
the
first tranche of its $18.0 million investment, in return for which WorldWater
issued to EMCORE (i) four million, eight hundred and ninety two thousand, eight
hundred and fifty seven (4,892,857) shares of Series D Preferred Stock and
(ii)
five hundred and five thousand and forty-four (505,044) warrants (the "Tranche
A
Warrants") to purchase five hundred and five thousand and forty-four (505,044)
shares of Series D Stock.
The
investment of the remaining $4.5 million second tranche (the "Tranche B
Closing") will be consummated once a definitive strategic agreement between
the
Parties is executed and certain other conditions set forth in the Investment
Agreement are satisfied. The Parties currently expect the execution of the
definitive strategic agreement and the Tranche B Closing to occur before the
end
of the year. At the Tranche B Closing, WorldWater will issue to EMCORE (i)
an
additional one million, six hundred and thirty thousand, nine hundred and
fifty-three (1,630,953) shares of Series D Preferred Stock and (ii) one hundred
and sixty-three thousand and ninety-five (163,095) warrants to purchase one
hundred and sixty-three thousand and ninety-five (163,095) shares of Series
D
Stock.
In
the
Investment Agreement, WorldWater and EMCORE made customary representations,
warranties and covenants and WorldWater agreed to indemnify EMCORE against
certain potential losses incurred in connection with its investment in
WorldWater. Pursuant to the terms of the Investment Agreement, EMCORE has been
granted the following rights, among others: (i) the
right
to participate pro-rata in future financings
and
equity issuances by WorldWater; (ii) certain rights to obtain information
regarding the financial results, financial performance, business and operations
of WorldWater; and (iii) the right to nominate and appoint two individuals
to
WorldWater's Board of Directors.
The
Series D Stock has the designations, preferences and rights set forth in the
certificate of designation filed with the Secretary of State for the State
of
Delaware on November 29, 2006 (the "Certificate of Designation"). Pursuant
to
the Certificate of Designation, holders of Series D Stock have the following
rights, among others: (i) the sole right and discretion to convert their shares
of Series D Stock at any time and from time to time into such number of fully
paid and non-assessable shares of common stock, par value $0.001, of WorldWater
(the "Common Stock") initially equal to such number of shares of Series D Stock
multiplied by ten, subject to certain adjustments as more fully set forth in
the
Certificate of Designation including weighted average anti-dilution rights,
(ii)
the right to vote together with the holders of Common Stock as a single class
on
all matters submitted for a vote of holders of Common Stock, (iii) for so long
as the beneficial ownership by the holders of Series D Stock (on a fully-diluted
basis) does not fall below ten percent (10%) of the then outstanding shares
of
Common Stock, the exclusive right to elect two members of the Board of Directors
of WorldWater, (iv) for so long as the beneficial ownership by the holders
of
Series D Stock (on a fully-diluted basis) is between five percent (5%) and
ten
percent (10%) of the then outstanding shares of Common Stock, the exclusive
right to elect one member of the Board of Directors of WorldWater, (v) certain
liquidation preferences as detailed in the Certificate of Designation and (vi)
the right to receive dividends in an amount equal to the amount of dividends
that such holder would have received had the holder converted its shares of
Series D Stock into shares of Common Stock as of the date immediately prior
to
the record date for such dividend.
In
addition, pursuant to the terms of the Certificate of Designation for so long
as
any shares of Series D Stock remain outstanding, WorldWater is prohibited,
without the written consent or affirmative vote of the holders of at least
three-quarters of
the
outstanding shares of Series D Stock, voting as a single class, from taking
certain actions that are enumerated in the Certificate of Designation,
including, among others: (i) authorizing, creating or issuing any class of
capital stock having any preference or priority over, or parity with, the Series
D Stock, (ii) increasing or decreasing the size of the WorldWater's Board of
Directors or (iii) amending, altering, or repealing any provision of
WorldWater's certificate of incorporation or bylaws in a manner adverse to
the
holders of Series D Stock.
The
Warrants have an exercise price of three dollars and seventeen cents ($3.17),
subject to certain adjustments as more fully set forth in the instrument
governing the warrants, and permit the holder to purchase shares of Series
D
Stock (the "Warrant Instrument"). The Tranche A Warrants are exercisable at
the
sole right and discretion of EMCORE at any time and from time to time prior
to
5.00 P.M., New York City time on the 29th
day of
November 2016.
The
Letter Agreement (i) defines the scope and key terms of the strategic
relationship to be embodied in a strategic agreement between the Parties and
(ii) sets forth certain binding purchase and supply obligations of the Parties,
including a contract, pursuant to which EMCORE will be WorldWater's exclusive
supplier of high-efficiency multi-junction solar cells, assemblies and
concentrator subsystems, valued at up to one hundred million ($100,000,000)
over
the next three (3) years. In the Investment Agreement, the Parties agreed to
negotiate in good faith and use commercially reasonable efforts to enter into
a
definitive strategic agreement as soon as practicable, but no later than January
31, 2007. Pursuant to the Registration Rights Agreement, EMCORE has received
shelf, demand and piggy-back registration rights.
The
Investment Agreement, Registration Rights Agreement, Letter Agreement, the
Warrant Instrument and Certificate of Designation have been attached to provide
investors with information regarding their terms. They are not intended to
provide any other factual information about EMCORE or WorldWater. In particular,
the assertions embodied in the representations and warranties contained in
the
Investment Agreement are qualified by information in confidential disclosure
schedules provided by WorldWater to EMCORE in connection with the signing of
the
Investment Agreement. These disclosure schedules contain information that
modifies, qualifies and creates exceptions to the representations and warranties
set forth in the Investment Agreement. Accordingly, you should not rely on
the
representations and warranties in the Investment Agreement as characterizations
of the actual state of facts about EMCORE or WorldWater.
ITEM
8.01. OTHER
EVENTS.
On
November 30, 2006, EMCORE issued a press release announcing its entry into
the
transactions contemplated by the Investment Agreement and the Letter Agreement.
The press release is attached hereto as Exhibit 99.1 and is incorporated herein
by reference.
ITEM
9.01 FINANCIAL
STATEMENTS AND EXHIBITS.
(d) Exhibits
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Exhibit
Number
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Description
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10.1
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Investment
Agreement between WorldWater and Power Corp. and EMCORE Corporation,
dated
November 29, 2006.
(1)
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10.2
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Registration
Rights Agreement between WorldWater and Power Corp. and EMCORE
Corporation, dated November 29, 2006.
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10.3
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Letter
Agreement between WorldWater and Power Corp. and EMCORE Corporation,
dated
November 29, 2006. Confidential Treatment has been requested by the
Company with respect to portions of this document. Such portions
are
indicated by "*****".
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99.1
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Press
Release, dated November 30, 2006, issued by EMCORE
Corporation.
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99.2
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Form
of Warrant to Purchase Series D Convertible Preferred Stock of WorldWater
and Power Corp.
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99.3
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Certificate
Of Designations, Preferences and Rights of Series D Convertible Preferred
Stock Of WorldWater and Power Corp.
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(1) The
schedules to the Investment Agreement have been omitted from this filing
pursuant to Item 601(b)(2) of Regulation S-K. EMCORE will furnish copies of
any
such schedules to the U.S. Securities and Exchange Commission upon
request.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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EMCORE
CORPORATION
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Dated:
December 5, 2006
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By: /s/
Thomas G. Werthan
Name:
Thomas G. Werthan
Title:
Chief Financial Officer
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EXHIBIT
INDEX
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Exhibit
Number
|
Description
|
|
10.1
|
Investment
Agreement between WorldWater and Power Corp. and EMCORE Corporation,
dated
November 29, 2006. (1)
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10.2
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Registration
Rights Agreement between WorldWater and Power Corp. and EMCORE
Corporation, dated November 29, 2006.
|
|
10.3
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Letter
Agreement between WorldWater and Power Corp. and EMCORE Corporation,
dated
November 29, 2006. Confidential Treatment has been requested by the
Company with respect to portions of this document. Such portions
are
indicated by "*****".
|
|
99.1
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Press
Release, dated November 30, 2006, issued by EMCORE
Corporation.
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99.2
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Form
of Warrant to Purchase Series D Convertible Preferred Stock of WorldWater
and Power Corp.
|
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99.3
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Certificate
Of Designations, Preferences and Rights of Series D Convertible Preferred
Stock Of WorldWater and Power Corp.
|
(1) The
schedules to the Investment Agreement have been omitted from this filing
pursuant to Item 601(b)(2) of Regulation S-K. EMCORE will furnish copies of
any
such schedules to the U.S. Securities and Exchange Commission upon
request.