SC 13D/A: Schedule filed to report acquisition of beneficial ownership of 5% or more of a class of equity securities
Published on January 12, 2009
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
13D/A
INFORMATION
TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE
13d-2(a)
(Amendment
No. 3)
Under
the Securities Exchange Act of 1934
Worldwater
and Solar Technologies Corp.
__________________________________________________________________________________
(Name of Issuer)
COMMON
STOCK, PAR VALUE $0.001 PER SHARE
__________________________________________________________________________________
(Title
of Class of Securities)
98155N-10-6
________________________________________________________________________________
(CUSIP
Number)
Keith J.
Kosco, Esq.
Chief
Legal Officer & Secretary
EMCORE
Corporation
10420
Research Road SE
Albuquerque,
NM 87123
(505)
332-5044
____________________________________________________________________
(Name, Address and Telephone Number
of Person Authorized to Receive Notices and Communications)
January
9, 2009
_________________________________________________________________________
(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) [ X
]
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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
15,989,500
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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
15,989,500
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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
15,989,500
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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)
6.8%
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
Amendment No. 3 to the statement on Schedule 13D being filed by EMCORE
Corporation, a New Jersey corporation (“EMCORE”), amends Items 2, 4, 5, 6 and 7
of the statement on Schedule 13D originally filed with the Securities and
Exchange Commission on December 8, 2006 and amended by Amendment No. 1 filed on
March 14, 2008 and Amendment No. 2 filed on July 3, 2008, which relates to the
shares of common stock, par value $0.001 per share (the “Common Stock”), of
WorldWater & Solar Technologies Corporation, a Delaware Corporation (the
“Issuer”). The principal executive offices of the Issuer are located
at 200 Ludlow Drive, Ewing Business Park, Ewing, New Jersey 08638.
Item 2. Identity and
Background.
Item 2 is
hereby amended and restated in its entirety to read as follows:
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 terrestrial solar power markets. EMCORE’s principal executive and
business office is located at 10420 Research Road SE, Albuquerque, New Mexico
87123.
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 its 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
4. Purpose of Transaction.
Item 4 is
hereby amended to add the following information:
RECENT
DEVELOPMENTS
As
previously disclosed in the Initial 13D, EMCORE purchased securities of the
Issuer for investment purposes and intended to review and evaluate its
investment in the Issuer on a continuing basis. Depending on various
factors EMCORE further disclosed in the Initial 13D that in the future it may
take 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 a
result of EMCORE’s ongoing review and evaluation of its liquidity needs, EMCORE
has decided to sell its currently remaining Series D Stock (as defined below)
and warrants to purchase Series D Stock to the Gelbaum Investors (as defined
below).
The
Quercus Trust, David Gelbaum and Monica Chavez Gelbaum (collectively, the
"Gelbaum Investors") are beneficial owners of securities of the
Issuer. EMCORE disclaims that a "group" (within the meaning of
Section 13D(3) of the Securities Exchange Act of 1934) has been formed or that
EMCORE has any beneficial ownership of the Issuer's securities beneficially
owned by the Gelbaum Investors.
Item
5. Interest in Securities of the Issuer.
Item 5 is
hereby amended and restated in its entirety to read as follows:
(a) As
of the date hereof, by virtue of its ownership of 1,446,428 shares of Series D
Convertible Preferred Stock of the Issuer (“Series D Stock”) and 152,522
warrants to purchase Series D Stock, EMCORE may be deemed to beneficially own a
total of 15,989,500 shares of Common Stock representing 6.8% of the shares of
Common Stock (based on the number of shares of Common Stock outstanding as of
November 6, 2008.
(b) EMCORE
has the sole voting and dispositive power with respect to 0 shares of Series D
Stock and 0 warrants to purchase shares of Series D Stock held by
it.
(c) Except
as described below, no transactions in the shares of Common Stock were effected
by EMCORE during the past 60 days.
Pursuant
to the terms of a Securities Purchase Agreement, between EMCORE and The Quercus
Trust, dated as of October 3, 2008 (the “Securities Purchase Agreement”), EMCORE
agreed to sell to The Quercus Trust, of which David Gelbaum is the trustee, an
aggregate of 2,892,857 shares of Series D Stock and 305,044 warrants to purchase
305,044 shares of Series D Stock for an aggregate purchase price of $11,363,142
in a private transaction (the “Transaction”). The sale of the
securities will occur through two closings with one-half of the shares of Series
D Stock, the warrants to purchase Series D Stock and the aggregate purchase
price being delivered at each closing. The first closing occurred on
December 31, 2008 and, pursuant to the Securities Purchase Agreement, the second
closing will occur on or prior to March 31, 2009. The
information contained in this Amendment No. 3 to Schedule 13D regarding the
beneficial ownership by EMCORE reflects the consummation of the first closing
under the Securities Purchase Agreement in which EMCORE sold 1,446,429 shares of
Series D Stock and 152,522 warrants to purchase Series D Stock.
(d) Not
applicable.
(e) Not
applicable.
Item
6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
Item 6 is
hereby amended to add the following:
The
information in Item 5(c) regarding the Securities Purchase Agreement, which is
filed as Exhibit 6 to the Schedule 13D, is incorporated by reference into this
Item 6.
Item
7. Material to be Filed as Exhibits.
Item 7 is
hereby amended to add the following:
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Exhibit
Number
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Description
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6
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Securities
Purchase Agreement, between EMCORE Corporation and The Quercus Trust,
dated as of October 3, 2008 (filed as Exhibit 10.1 to this Schedule
13D/A as filed with the Securities and Exchange Commission on January
5, 2009.)
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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/ Keith J. Kosco | |
| Name: Keith J. Kosco | |
| Title: Chief Legal Officer and Secretary |
Dated:
January 9, 2009
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 10420 Research Road SE, Albuquerque, New Mexico
87123. The business address of each such person is 10420 Research Road SE,
Albuquerque, New Mexico 87123. 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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Executive
Chairman and Chairman of the Board
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Hong
Q. Hou, Ph.D.
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President,
Director and Chief Executive Officer
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John
M. Markovich
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Chief
Financial Officer
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John
Iannelli, Ph.D.
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Chief
Technology Officer
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Keith
J. Kosco
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Secretary
and Chief Legal Officer
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Thomas
J. Russell, Ph.D.
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Chairman
Emeritus
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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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EXHIBIT
10.1
SECURITIES
PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is entered into as
of October 3, 2008 (the “Effective Date”), by and
between The Quercus Trust (“Buyer”) and Emcore
Corporation, a New Jersey Corporation ( “Seller”).
RECITALS
WHEREAS,
Seller desires to sell to Buyer that certain number shares of Series D
Convertible Preferred Stock (the “Shares”)
and warrants to purchase additional shares of Series D Preferred Stock (the
“Warrants”,
and together with the Shares, the “Securities”) of WorldWater
& Solar Technologies Corp., a Delaware corporation (the “Company”), and Buyer desires
to purchase such Securities from Seller, all in accordance with the terms and
conditions set forth in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises contained herein, the parties
hereto agree as follows:
1. Sale
of Securities.
1.1 First
Closing. Within five (5) days of the satisfaction of the
condition set forth in Section 5 (the “First
Closing”), Seller hereby agrees to sell to Buyer, and Buyer hereby agrees
to purchase from Seller, 1,446,429 Shares of Series D Convertible Preferred and
152,522 Warrants to purchase Shares of Series D Convertible Preferred at a price
per share equal to $3.928, for an aggregate purchase price of
$5,681,573.11.
1.2 Second Closing. At
the second closing (the “Second
Closing”) which shall be not later than ninety (90) days following the
First Closing, Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to
purchase from Seller, 1,446,428 Shares of Series D Convertible Preferred and
152,522 Warrants to purchase Series D Convertible Preferred at a price per share
equal to $3.928, for an aggregate purchase price of $5,681,569.18.
2. Deliverables.
2.1 At each
Closing, Buyer will deliver to Seller the purchase price paid by cash, check or
wire transfer. The purchase price will constitute the entire consideration to be
paid by Buyer to Seller for the Shares purchased at the applicable
Closing.
2.2 Within
three (3) days after each Closing, or such other time as the parties agree,
Buyer will (a) deliver to the Company’s transfer agent (the “Transfer Agent”) a stock power
(the “Stock Power”), in
the form attached hereto as Exhibit A, in respect of the
Shares owned by Seller, fully endorsed for transfer to Buyer; and (b) deliver to
the Company, or the Company’s transfer agent, as applicable, a warrant
assignment or other document assigning the Warrants to Buyer. Seller
has, or will have, prior to each Closing, delivered to the Transfer Agent the
original stock certificate and warrant certificate which include the Securities
to be sold to
Buyer. Pursuant to the terms of this Agreement, Seller shall request that, upon the Transfer Agent’s receipt of such Stock Power and warrant transfer document, the Transfer Agent shall (1) issue and deliver to Buyer a duly executed stock certificate representing the total number of Shares transferred to Buyer in the agreement and (2) issue and deliver to Buyer a duly executed warrant certificate representing the total number of Warrants transferred to Buyer in the agreement.
3. Seller’s
Representations.
Seller represents and warrants to Buyer and the Company as
follows:
3.1 Seller
owns the Securities beneficially and of record, free and clear of any suit,
proceeding, call, voting trust, proxy, restriction, security interest, lien or
other encumbrance of any kind or nature whatsoever (collectively, a “Lien”), except for a lien in
favor of BankofAmerica, NA, made pursuant to a Loan and Security Agreement dated
as of September 29, 2008 (the “BofA Lien”), and has full
power, authority and capacity to transfer and dispose of all the Securities free
and clear of any Lien. Upon the payment for and delivery of the Securities as
provided in this Agreement, Buyer will acquire good and valid title to the
Securities free and clear of any Lien.
3.2 The
execution and delivery of this Agreement by Seller, the consummation of the
transaction contemplated hereby, and the compliance with the terms of this
Agreement will not conflict with, result in the breach of, or constitute a
default under, or require any consent or approval under, any agreement, note,
indenture, mortgage, deed of trust or other agreement, lease or instrument to
which either Seller is a party or by which it may be bound.
3.3 No broker or finder has acted
directly or indirectly for Seller in connection with this Agreement or the
transaction contemplated hereby, and no broker or finder is entitled to any
brokerage or finder’s fee or other commission in respect thereof based in any
way on agreements, arrangements or understandings made by or on behalf of
Seller.
3.4 This
Agreement has been duly authorized, executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms.
3.5 Seller’s
transfer of the Securities to Buyer is exempt from the registration requirements
of the Securities Act of 1933, as amended (the “Securities Act”) and any
applicable state securities laws, in each case pursuant to applicable exemptions
thereunder.
3.6 Seller
expressly acknowledges and agrees that the Company has made no representations
or warranties in connection with the Securities or the transactions contemplated
by this Agreement.
4. Buyer’s
Representations.
Buyer represents and warrants to Seller and the Company as
follows:
4.1 Buyer has
full power and authority to purchase the Securities from Seller in accordance
with this Agreement.
4.2 Buyer
understands that none of the Securities has been registered under the Securities
Act. Buyer also understands that such Securities are being offered and sold
pursuant to an exemption from registration contained in the Securities
Act.
4.3 The
execution and delivery of this Agreement by Buyer, the consummation of the
transaction contemplated herein, and the compliance with the terms of this
Agreement will not conflict with,
result in the breach of, or constitute a default under, or require any consent or approval under, any note, indenture, mortgage, deed of trust or other agreement, lease or instrument to which Buyer is a party or by which he may be bound.
4.4 No broker
or finder has acted directly or indirectly for Buyer in connection with this
Agreement or the transaction contemplated hereby, and no broker or finder is
entitled to any brokerage or finder’s fee or other commission in respect thereof
based in any way on agreements, arrangements or understandings made by or on
behalf of Buyer.
4.5 This
Agreement has been duly authorized, executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms.
4.6 Buyer is
an “accredited investor,” as that term is defined in Regulation D adopted
pursuant to the Act.
4.7 Seller’s
transfer of the Securities to Buyer is exempt from the registration requirements
of the Securities Act and any applicable state securities laws, in each case
pursuant to applicable exemptions thereunder.
4.8 The
Securities to be acquired by Buyer from Seller as contemplated hereunder are
being acquired for Buyer’s own account and not with a view to, or intention of,
distribution thereof in violation of the Securities Act or any applicable state
securities laws, and the Securities will not be sold, transferred, pledged or
otherwise disposed of by Buyer in contravention of the Securities Act or any
applicable state securities laws or any provision of the charter, bylaws or any
stockholders agreement of the Company.
4.9 Buyer is
sophisticated in financial matters as to be able to evaluate the risks and
benefits of the investment in the Securities and make an informed investment
decision.
4.10 Buyer has
had an opportunity to ask questions and receive answers concerning the Company
and the Securities and has had full access to such other information concerning
the Company and the Securities as Buyer has requested. Buyer has also reviewed
or has had an opportunity to review such other documents and information
regarding the Company and its business as requested by Buyer to Buyer’s
satisfaction.
4.11 Buyer
understands that the Seller is relying and will rely on the information and
representations with respect to Buyer set forth in this Agreement as to whether
the transfer of the Securities to Buyer qualifies for an exemption from the
registration requirements under the Securities Act, and Buyer confirms that all
such information is true and correct as of the date hereof.
4.12 Buyer
understands that Buyer must bear the economic risk of his acquisition of the
Securities for an indefinite period of time because (1) the acquisition of
Securities by Buyer has not been registered under the Securities Act or
applicable state securities laws; and (2) the Securities may therefore not be
sold, transferred, pledged, or otherwise disposed of unless registered for sale
under the Securities Act, or unless pursuant to an applicable exemption from
registration, and in any event only if the transfer is permitted. Buyer further
acknowledges that an important consideration bearing on his ability to bear the
economic risk of his acquisition of Securities is whether Buyer can afford a
complete loss of such investment in the Company, and Buyer confirms that Buyer
can afford a complete loss of such investment in the Company.
4.13 Buyer
understands that the certificates evidencing the Securities will bear one or
more restrictive legends prohibiting the transfer thereof except in compliance
with the applicable state and federal securities laws and with any restrictions
on transfer contained in the Company’s bylaws and/or stockholders’ agreement, as
in effect from time to time.
4.14 Buyer
expressly acknowledges and agrees that the Company has made no representations
or warranties in connection with the Securities or the transactions contemplated
by this Agreement.
5. Conditions to
Closing.
5.1 It shall
be a condition of the obligation of Buyer to effect the First Closing that
either (i) the Company shall have negotiated and finalized a separation of
employment agreement with Quentin T. Kelly, the Company’s Chairman, or (ii)
Buyer shall have received a legal opinion from the Company, in a form reasonably
acceptable to Buyer, that neither the execution of this Agreement nor its
consummation following Mr. Kelly’s resignation, will trigger a “change of
control” under any employment or other agreement with Mr. Kelly, or otherwise
accelerate or trigger any economic rights on his behalf.
5.2 It shall
be a condition of the obligation of Buyer to effect the First Closing that Buyer
shall have received written evidence that the BofA Lien has been
released.
6. Miscellaneous
Provisions.
6.1 Any
number of counterparts of this Agreement may be signed and delivered and each
will be considered an original and together they will constitute one
agreement.
6.2 This
Agreement may not be amended or modified in any respect, except by the mutual
written agreement of the parties hereto and the Company.
6.3 Each
party to this Agreement will pay its own expenses in connection with the
transactions contemplated hereby, whether or not such transactions will be
consummated.
6.4 This
Agreement will be construed and performed in accordance with the laws of the
State of Delaware, without regard to the conflicts of law therein. The rights
and liabilities of the present parties will bind and inure to their respective
heirs, devisees, personal representatives, successors and assigns.
6.5 This
Agreement and the exhibits hereto constitute the entire agreement among the
parties relating to their subject matter and supersede all prior and
contemporaneous agreements and understandings of the parties in connection with
such subject matter.
6.6 From and
after the date of this Agreement, upon the request of Seller, Buyer or the
Company, Seller or Buyer, as applicable, will execute and deliver such
instruments, documents or other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
6.7 The
Company is an intended third party beneficiary of this Agreement and Buyer and
Seller acknowledge and agree that the Company will rely and is intended to rely
on the provisions, representations and agreements set forth herein. Other than
the foregoing, nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person, firm, corporation,
partnership, association or other entity, other than the parties hereto and the
Company and their respective successors and assigns, any rights or remedies
under or by reason of this Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement
as of the date first written above.
BUYER:
The
Quercus Trust
/s/ David Gelbaum
David
Gelbaum, Trustee
SELLER:
EMCORE
CORPORATION,
a
New Jersey corporation
By: /s/ Keith Kosco
Name: Keith Kosco
Title: Chief Legal Officer and
Secretary
EXHIBIT
A
STOCK
POWER
(Stock
Assignment Separate From Certificate)
FOR VALUE RECEIVED, EMCORE
CORPORATION, hereby sells, assigns and transfers unto THE QUERCUS TRUST One Million
Four Hundred Forty-Six Thousand Four Hundred Twenty-Nine (1,446,429) shares of
Series D Preferred Stock of WorldWater & Solar Technologies Corp., a
Delaware corporation (the “Company”), standing in its
name on the books of said Company, as represented by Certificate Nos. _________,
and hereby irrevocably constitutes and appoints as Holder’s attorney to transfer
the shares on the books of the Company, with full power of substitution in the
premises.
Dated:
_______________ , 2008
EMCORE
CORPORATION
Name:
__________________
Title:
__________________
NOTE: The
signature(s) to this assignment must correspond with the name as written upon
the face of the certificate, in every particular, without alteration or
enlargement, or any change whatsoever.