EXHIBIT 10.7
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into as of December
31, 2001, by and among Kuekenhof Partners L.P. and Kuekenhof Equity Fund L.P.
(each a "Purchaser" and collectively, the "Purchasers"), and WorldWater
Corporation, a Delaware corporation (the "Seller").
R E C I T A L:
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WHEREAS, the Purchasers desires to purchase from Seller, and Seller
desires to sell to Purchasers, shares of common stock (the Common Stock) of the
Company, and the Company wishes to issue to Purchaser warrants to purchase
Common Stock (the Warrants), on the terms set forth herein.
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Sale of Shares and Grant of Warrants.
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1.1 Purchase and Sale of Shares. Seller hereby sells to each
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Purchaser, and such Purchaser hereby purchases from Seller, that number of
shares (the Shares) of Common Stock of the Company set forth opposite the name
of such Purchaser on Schedule I hereto, in consideration of (i) the delivery by
such Purchaser to Seller of a check payable to the order of Seller or wire
transfer in an amount equal to $0.15 per Share, and (ii) the delivery by Seller
to such Purchaser of a certificate evidencing the Shares duly endorsed for
transfer thereon or by means of duly executed stock powers attached thereto,
which certificates will be issued by the Company's stock transfer agent promptly
after Closing.
1.2 Grant of Warrants. Upon the Closing, Seller shall grant to each
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Purchaser that number of Warrants set forth opposite the name of such Purchaser
on Schedule I hereto. Each Warrant will permit the Purchaser to purchase one
Share at any time during the five year period following Closing at an exercise
price of $0.15 per Share. Notwithstanding the foregoing, the Company may
require the exercise of Warrants for an amount up to $100,000 on or before March
1, 2002 in the event the Company has received: (i) the initial funding of a
grant from the United States Trade and Development Agency; or (ii) the initial
funding for the Company's Ronda (Cebu), Philippines, community project, and an
additional $150,000, in ensuing months after certain other milestones have been
attained.
1.3. The Closing. The purchase and sale of the Shares shall take
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place at the offices of the Company on the date hereof, or at such other
location and time as Seller and Purchaser mutually agree (which time and place
are designated as the Closing). At the Closing, upon payment for the Shares
pursuant to Section 1.1 hereof, Seller shall arrange for the delivery to each
Purchaser at the earliest availability a certificate representing the Shares
against delivery to Seller of a check or via wire transfer in the amount of the
purchase price therefor. The obligations of each Purchaser to consummate the
purchase of the Shares at the Closing is subject to the truth and accuracy of
the representation and warranties of Seller in Section 2 below.
2. Representations and Warranties of Seller. Seller hereby represents
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and warrants to each Purchaser that:
2.1 Issuance of the Shares. The Shares, upon issuance in
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accordance with the terms of this Agreement, shall be fully paid and
nonassessable, free and clear of all pledges, liens, encumbrances, security
interests, claims and restrictions (other than as described in Section 4.3).
2.2 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any federal, regional, state or local governmental authority on the
part of Seller is required in connection with the consummation of the
transactions contemplated by this Agreement.
2.3 Litigation. There are no claims before any governmental
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entity or arbitrator pending or, to Seller's knowledge, currently threatened
against or with respect to Seller relating to or affecting the Shares, which
question the validity of this Agreement or any action taken or to be taken by
Seller in connection herewith, or which might result in any impairment of the
right or ability of Seller to enter into or perform his obligations under this
Agreement.
3. Requests for Registration. At any time during the five year
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period following the date of this Agreement, the Purchasers may request
registration under the Securities Act of 1933, as amended (the Act), of all or
any part of their Shares. The Company will use its best efforts to qualify for
registration on Form ▇▇-▇, ▇-▇ or any comparable or successor form or forms and
shall file a registration statement within 60 days of Purchaser request for
registration; provided, that the Company shall not be required to effect more
than two registrations pursuant to this Agreement during any twelve-month period
(and no more than one in any six-month period).
4. Representations and Warranties of Purchaser. Each Purchaser hereby
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represents and warrants to, and agrees with, Seller that:
4.1 Litigation. There are no claims before any governmental entity
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or arbitrator pending or, to such Purchaser's knowledge, currently threatened
against or with respect to such Purchaser relating to or affecting the Shares,
which question the validity of this Agreement or any action taken or to be taken
by such Purchaser in connection herewith, or which might result in any
impairment of the right or ability of such Purchaser to enter into or perform
his or its obligations under this Agreement.
4.2 Awareness of Company Performance. Such Purchaser acknowledges
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that (i) he or it has received and reviewed the Company's financial statements
(a) as of and for the year ended December 31, 2000 and (b) as of and for the
three-month period ended September 30, 2001, (ii) he or it has received or has
had full access to all the information such Purchaser considers necessary or
appropriate to make an informed decision with respect to the purchase of the
Shares pursuant to this Agreement, and (iii) he or it has had an opportunity to
ask questions and receive answers from Seller regarding the Company's financial
performance and to obtain additional information (to the extent Seller possessed
such information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Purchaser or to which such
Purchaser had access.
4.3 Restricted Securities. Such Purchaser understands that (i)
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the Shares and the Warrants are characterized as restricted securities under the
federal securities laws inasmuch as they are being acquired from Seller in a
transaction not involving a public offering, (ii) under such laws and applicable
regulations such securities may be resold without registration under federal and
state securities laws only in certain limited circumstances, and (iii) the
Company may require a legal opinion of such Purchaser's counsel with respect to
unregistered transfers.
4.4 Accredited Investor. Such Purchaser represents that he or it
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is an Accredited Investor within the meaning of Regulation D promulgated under
the Act.
4.5 Legends. Such Purchaser understands that the certificates
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evidencing the Shares and the Warrants will bear substantially the following
legends:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF
SUCH SECURITIES ACT.
4.6 Investment Purposes. The Shares will be acquired for
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investment for such Purchaser's own account, not as a nominee or agent, and not
with a view to the public resale or distribution thereof within the meaning of
the federal or state securities laws, and such Purchaser has no present
intention of selling, granting any participation in, or otherwise distributing
the same. Such Purchaser further represents that he or it does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Shares.
5. Miscellaneous.
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5.1 Entire Agreement. This Agreement contains the entire
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agreement among the parties with respect to the sale and purchase contemplated
hereby.
5.2 Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of New Jersey.
5.3 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.4 Severability. The invalidity of any portion hereof shall not
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affect the validity, force, or effect of the remaining portions hereof. If it
is ever held that any restriction hereunder is too broad to permit enforcement
of such restriction to its fullest extent, the parties agree that a court of
competent jurisdiction may enforce such restriction to the maximum extent
permitted by law against those for whom it may be enforceable, and each party
hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
5.5 Further Assurances. The parties hereto shall, without
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additional consideration, execute and deliver or cause to be executed and
delivered such further instruments and shall take or cause to be taken such
further actions as are necessary to carry out more effectively the intent and
purpose of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PURCHASERS:
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KUEKENHOF PARTNERS L.P.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Partner
KUEKENHOF EQUITY FUND L.P.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Partner
SELLER:
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WORLDWATER CORP.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chairman and CEO
SCHEDULE I
Name of Purchaser Number of Shares Being Purchased
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Kuekenhof Partners L.P. 833,500
KUEKENHOF EQUITY FUND L.P. 833,500
NAME OF PURCHASER NUMBER OF WARRANTS GRANTED
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Kuekenhof Partners L.P. 833,500
KUEKENHOF EQUITY FUND L.P. 833,500