SC 13D: Schedule filed to report acquisition of beneficial ownership of 5% or more of a class of equity securities
Published on December 8, 2006
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
13D
Under
the Securities Exchange Act of 1934
WORLDWATER
AND POWER CORP.
__________________________________________________________________________________
(Name
of Issuer)
COMMON
STOCK, PAR VALUE $0.001 PER SHARE
__________________________________________________________________________________
(Title
of Class of Securities)
98155N-10-6
________________________________________________________________________________
(CUSIP
Number)
Howard
W.
Brodie, Esq.
Executive
Vice President & Chief Legal Officer
EMCORE
Corporation
145
Belmont Drive
Somerset,
NJ 08873
(732)
302-4077
____________________________________________________________________
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
November
29, 2006
_________________________________________________________________________
(Date
of Event Which Requires Filing of this Statement)
If
the
filing person has previously filed a statement on Schedule 13G to report
the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check
the following box. [ ]
Note:
Schedules filed in paper format shall include a signed original and five
copies
of the schedule, including all exhibits. See Section 240.13d-7 for other
parties
to whom copies are to be sent.
*
The
remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed
to
be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934,
as amended (the "Exchange Act") or otherwise subject to the liabilities of
that
section of the Exchange Act but shall be subject to all other provisions
of the
Exchange Act (however, see the Notes).
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1.
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Names
of Reporting Persons.
I.R.S.
Identification Nos. of above persons (entities only)
EMCORE
Corporation
22-2746503
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
(a)
[ ]
(b)
[ ]
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3.
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SEC
USE ONLY
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4.
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Source
of Funds (See Instructions)
WC
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or
2(e)
[
]
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6.
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Citizenship
or Place of Organization
New
Jersey
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Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
with
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7.
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Sole
Voting Power
53,979,010
See Item 5
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8.
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Shared
Voting Power
0
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9.
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Sole
Dispositive Power
53,979,010 See Item 5
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10.
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Shared
Dispositive Power
0
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
53,979,010
See Item 5
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[
]
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13.
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Percent
of Class Represented by Amount in Row (11)
26.92% See Item 5
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14.
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Type
of Reporting Person (See Instructions)
CO
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Item
1. Security and Issuer
This
statement on Schedule 13D ("Schedule 13D") is being filed by and on behalf
of
EMCORE Corporation, a New Jersey Corporation ("EMCORE") with respect to the
common stock ("Common Stock") par value $.001 of WorldWater and Power Corp.,
a
Delaware Corporation (the "Issuer" or "WorldWater", and together with EMCORE,
the "Parties").
The
Issuer issued shares of Series D Convertible Preferred Stock, par value $.01
per
share (the "Series D Stock") and warrants to acquire Series D Stock (the
"Warrants"), as described in Item 4 below. The shares of Series D Stock are
convertible into shares of Common Stock and have the designations, preference
and rights as set forth in the certificate of designation for the Series
D
Stock, as described in Item 4 below. The Warrants are exercisable for shares
of
Series D Stock, as described in Item 4 below.
The
Issuer's principal executive office is located at 55 Route 31 South, Pennington,
New Jersey, NJ 08534.
Item
2. Identity and Background.
This
Schedule 13D is being filed by EMCORE. EMCORE is a leading provider of compound
semiconductor-based components and subsystems for the broadband, fiber optic,
satellite and solar photovoltaic markets. EMCORE's principal executive and
business office is located at 145 Belmont Drive, Somerset, New Jersey 08873.
The
name,
business address, citizenship, present principal occupation or employment,
and
the name and business address of any corporation or organization in which
each
such employment is conducted, of each executive officer or director of EMCORE
is
set forth on Schedule A, which is incorporated by reference herein.
During
the past five years neither EMCORE nor, to the best of it's knowledge, any
of
the other persons listed on Schedule A attached hereto, has been (i) convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors)
or (ii) a party to a civil proceeding of a judicial or administrative body
of
competent jurisdiction and as a result of such proceeding was or is subject
to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to United States federal or state securities
laws or finding any violation with respect to such laws.
Item
3. Source and Amount of Funds or Other Consideration
On
November 29, 2006, EMCORE acquired 4,892,857 shares of Series D Stock (the
"Tranche A Shares") and (ii) 505,044 warrants (the "Tranche A Warrants",
and
together with the Tranche A Shares, the "Trance A Securities") to purchase
505,044 shares of Series D Stock. The aggregate amount of funds required
by
EMCORE for the purchase of the Tranche A Securities was $13,500,000. EMCORE
obtained such funds from its working capital and no part of such funds consists
of borrowed funds.
As
described in Item 4 below, at the Tranche B Closing (as defined in Item 4)
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
Stock (the "Tranche B Shares") and (ii) an additional one hundred and
sixty-three thousand and ninety-five (163,095) Warrants (the "Tranche B
Warrants", and together with the Tranche B Shares, the "Trance B Securities")
to
purchase one hundred and sixty-three thousand and ninety-five (163,095) shares
of Series D Stock. The aggregate amount of funds required by EMCORE for the
purchase of the Tranche B Securities is $4,500,000. EMCORE will obtain the
funds
to be paid to the Issuer at the Tranche B Closing from its working capital
and
expects that no part of such funds will consist of borrowed funds.
Item
4. Purpose of Transaction.
Overview
of Transaction
On
November 29, 2006, EMCORE and WorldWater entered into an Investment Agreement
(the "Investment Agreement"), a Registration Rights Agreement (the "Registration
Right Agreement") and a Letter Agreement (the "Letter Agreement"). The
Investment Agreement, Registration Rights Agreement and Letter Agreement
are
Exhibits 1, 2 and 3 to this Schedule 13D respectively and are incorporated
herein by reference.
Pursuant
to the Investment Agreement, EMCORE agreed to invest $18.0 million in return
for
(i) six million, five hundred and twenty-three thousand, eight hundred and
ten
(6,523,810) shares of 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. Pursuant to the Registration Rights Agreement, EMCORE has received
shelf, demand and piggy-back registration rights.
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.
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 the Tranche A Securities. 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 the Tranche B Securities.
Terms
and Provisions of Securities
Following
is a description of certain terms and provisions relating to the Series D
Sock.
The powers, designations, preferences, qualifications and rights of the Series
D
Stock are more fully 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"), which is Exhibit 4 to this Schedule 13D and
is
incorporated herein by reference.
Conversion.
The
holders of Series D Stock have 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 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.
Voting
Rights and Board Rights.
The
holders of Series D Stock have 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. The holders of Series D Stock may, 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,
exclusively elect two members of the board of directors of WorldWater. In
the
event that 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 Series D Stock holders have
the
exclusive right to elect one member of the board of directors of WorldWater.
Approval
Rights.
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.
Dividends.
Each
holder of Series D Stock have 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.
Liquidation
Rights.
In the
event of WorldWater's liquidation, dissolution or winding up, the holders
of
Series D Stock will be entitled to receive out of the available assets of
the
Issuer, whether such assets are stated capital or surplus of any nature,
an
amount on such date equal to $2.76 per share of Series D Stock (as adjusted
for
any subdivision, combination, consolidation or reclassification with respect
to
the Series D Stock), plus the amount of any declared but unpaid dividends
thereon as of such date.
Rank.
The
Series D Stock ranks senior in right of payment to all classes of capital
stock
in WorldWater upon WorldWater's liquidation, dissolution or
winding-up.
Rights
Granted Under the Investment Agreement.
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. EMCORE
expects to identify the two individuals to be nominated and appointed to
WorldWater's board of directors later this week or next week.
Warrants.
The
Warrants have an exercise price of $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. A
form of
the Warrant Instrument is Exhibit 5 to this Schedule 13D and is incorporated
herein by reference.
Other
EMCORE
purchased the Tranche A Securities for investment purposes and will purchase
the
Tranche B Securities for investment purposes. EMCORE intends to review and
evaluate its investment in the Issuer on a continuing basis. Depending on
various factors including, without limitation, the Issuer's business, prospects,
financial condition and strategic direction, actions taken by the Issuer's
board
of directors, prospects for EMCORE's own businesses, other investment
opportunities available to EMCORE, price levels of the shares of Common Stock
and conditions in the securities and financing markets and the economy in
general, EMCORE may in the future acquire additional securities of the Issuer
or
dispose of some or all of the securities of the Issuer beneficially owned
by it
in the open market or in private transactions, or take any other actions
with
respect to its investment in the Issuer permitted by law, including any or
all
of the actions set forth in paragraphs (a) through (j) of Item 4 of Schedule
13D. As has been previously announced the Issuer has entered into a letter
of
intent with Entech, Inc. ("Entech") to acquire Entech upon completion of the
necessary due diligence and after the Issuer obtains the appropriate financing.
EMCORE and the Issuer have held preliminary discussions regarding EMCORE
providing the Issuer with the financing to consummate the acquisition of
Entech
or assisting the Issuer in obtaining such financing. If EMCORE were to provide
the Issuer with such financing, EMCORE may take any or all of the actions
set
forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.
Except
as
set forth herein, EMCORE does not have any plans or proposals which would
relate
to or result in any of the actions described in subparagraphs (a) through
(j) of
Item 4 of Schedule 13D. In addition, the individuals who EMCORE appoints
to the
board of directors of the Issuer, may, in their capacities as such, propose
that
the board of directors of WorldWater consider one or more of such actions
from
time to time.
The
foregoing description of the Investment Agreement, Registration Rights
Agreement, Letter Agreement, the Warrant Instrument and Certificate of
Designation is not intended to be complete and is qualified in its entirety
by
reference to text of the Investment Agreement, Registration Rights Agreement,
Letter Agreement, the form of Warrant Instrument and Certificate of Designation,
which are incorporated herein by reference.
Item
5. Interest in Securities of the Issuer.
a) By
virtue
of its ownership of 4,892,857 shares of Series D Stock and 505,044 Warrants
to
purchase 505,044 shares of Series D Stock, EMCORE may be deemed to beneficially
own a total of 53,979,010 shares of Common Stock representing 26.92% of the
shares of Common Stock (based on the number of shares of Common Stock
outstanding as of November 29, 2006 and after giving effect to the conversion
of
all of the Tranche A Shares and the exercise of all of the Tranche A Warrants).
After consummation of the Tranche B Closing, by virtue of its ownership of
6,523,810 shares of Series D Stock and 668,139 Warrants to purchase 668,139
shares of Series D Stock, EMCORE will be deemed to beneficially own a total
of
71,919,490 shares of Common Stock representing 32.92% of the shares of Common
Stock (based on the number of shares of Common Stock outstanding as of November
29, 2006 and after giving effect to the conversion of all of the Tranche
A
Shares and the Tranche B Shares and the exercise of all of the Tranche A
Warrants and the Tranche B Warrants).
b) EMCORE
has the sole voting and dispositive power with respect to the 4,892,857 shares
of Series D Stock and 505,044 Warrants held by it.
c) Other
than (i) the transactions described in Item 4, (ii) the acquisition in the
open
market on December 4, 2006 of 25,000 shares of Common Stock for $0.40 per
share
by Thomas G. Werthan (“Mr. Werthan”), a director, executive officer and chief
financial officer of EMCORE (representing less than 0.001% of the shares
of
Common Stock based on the number of such shares outstanding as of November
29,
2006), and (iii) the sale in the open market on December 6, 2006 of 25,000
shares of Common Stock for $0.44 per share by Mr. Werthan (the $1,019.67
of
profit with respect to the purchase and sale of the 25,000 shares has been
remitted to EMCORE), no other transactions in securities of the Issuer were
effected by EMCORE during the sixty days prior to the date of this
statement.
d) Not
applicable
e) Not
applicable
Item
6. Contracts, Arrangements, Understandings or Relationships with Respect
to
Securities of the Issuer.
The
response to Item 4 is incorporated herein by reference. Except for the
Certificate of Designation, Investment Agreement, Registration Rights Agreement,
Letter Agreement and Warrant Instrument, each as described in Item 4 and
Item 5
of this Schedule 13D, to the best of the knowledge of EMCORE, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
between EMCORE, and any other person, with respect to any of the securities
of
the Issuer, including but not limited to, the transfer or voting of any of
the
securities, finder's fees, joint ventures, options, puts, calls, guarantees
of
loans, guarantees against loss or of profit, or the giving or withholding
of
proxies.
Item
7. Material to be Filed as Exhibits.
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Exhibit
Number
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Description
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1
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Investment
Agreement between WorldWater and Power Corp. and EMCORE Corporation,
dated
November 29, 2006 (filed
as Exhibit 10.1 to the Issuer's Form 8-K filed with the Securities
and
Exchange Commission on December 5, 2006 and incorporated herein
by
reference) (1).
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2
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Registration
Rights Agreement between WorldWater and Power Corp. and EMCORE
Corporation, dated November 29, 2006 (filed as Exhibit 10.2 to
the
Issuer's Form 8-K filed with the Securities and Exchange Commission
on
December 5, 2006 and incorporated herein by reference)
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3
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Letter
of Agreement between WorldWater and Power Corp. and EMCORE Corporation,
dated November 29, 2006 (filed as Exhibit 10.3 to the Issuer's
Form 8-K
filed with the Securities and Exchange Commission on December 5,
2006 and
incorporated herein by reference). Confidential Treatment has been
requested by the Company with respect to portions of this document.
Such
portions are indicated by "***."
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4
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Certificate
Of Designations, Preferences and Rights of Series D Convertible
Preferred
Stock Of WorldWater and Power Corp (filed as Exhibit 4.1 to the
Issuer's
Form 8-K filed with the Securities and Exchange Commission on December
5,
2006 and incorporated herein by reference)
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5
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Form
of Warrant to Purchase Series D Convertible Preferred Stock of
WorldWater
and Power Corp. (filed as Exhibit 10.4 to the Issuer's Form 8-K
filed with
the Securities and Exchange Commission on December 5, 2006 and
incorporated herein by reference)
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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
After
reasonable inquiry and to the best of my knowledge and belief, I certify
that
the information set forth herein is true, complete and correct.
EMCORE
CORPORATION
By:
/s/
Howard W. Brodie
Name:
Howard
W.
Brodie
Title:
Chief
Legal Officer, Executive Vice-President
and
Secretary
Dated:
December 8, 2006
SCHEDULE
A
EXECUTIVE
OFFICERS AND DIRECTORS OF EMCORE
The
following sets forth the name, business address, present principal occupation
or
employment and citizenship of each executive officer and director of EMCORE.
The
business address of EMCORE is 145 Belmont Drive, Somerset, New Jersey 08873.
The
business address of each such person is EMCORE Corporation, 145 Belmont Drive,
Somerset, New Jersey 08873. Unless otherwise indicated, each such person
is a
citizen of the United States of America. Unless otherwise indicated, each
occupation set forth beside an individual’s name refers to employment with
EMCORE
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Name
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Principal
Occupation
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Name
and address of organization in which such occupation is
conducted
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Citizenship
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Reuben
F. Richards Jr.
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President,
Director and Chief Executive Officer
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Thomas
G. Werthan
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Director
and Chief Financial Officer
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Richard
A. Stall, Ph.D.
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Director
and Vice President, Technology
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Howard
W. Brodie, Esq.
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Secretary
of the Company and Vice President, General Counsel
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Scott
Massie
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Chief
Operating Officer
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Thomas
J. Russell, Ph.D.
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Chairman
of the Board of Directors
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Robert
Louis-Dreyfus
(Director)
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Chairman
of Infront Sports and Media AG
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Ortstrasse
4
CH-7270
Davos-Platz
Switzerland
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France
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Robert
Bogomolny
(Director)
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President,
University of Baltimore
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University
of Baltimore, 1420 N. Charles St., Baltimore, MD 21201
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Charles
Scott
(Director)
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Chairman
of William Hill plc.
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William
Hill plc., Greenside House, 50 Station Road, Wood Green, London,
N22 7TP,
United Kingdom
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United
Kingdom
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John
Gillen
(Director)
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Partner,
Gillen and Johnson, P.A., Certified Public Accountants
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Gillen
and Johnson, P.A, 182
West High St, PO Box 477, Somerville, NJ 08876
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