POWER OF ATTORNEY & CUSTODY AGREEMENT
Published on May 21, 1999
EXHIBIT 99.1
POWER OF ATTORNEY AND CUSTODY AGREEMENT
Reuben F. Richards, Jr.
Thomas G. Werthan
As Attorneys-in-Fact
c/o Emcore Corporation
394 Elizabeth Avenue
Somerset, New Jersey 08873
Attention: Thomas G. Werthan
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
Ladies and Gentlemen:
The undersigned proposes to sell ________ issued and outstanding
shares (the "Shares") of common stock, no par value (the "Common Stock"), of
EMCORE Corporation, a New Jersey corporation (the "Company"), to a group of
underwriters (the "Underwriters") represented by Donaldson, Lufkin & Jenrette
Securities Corporation and certain other Underwriters (the "Representatives"),
who propose to offer such Shares to the public (the "Offering"), all
substantially on the terms and subject to the conditions set forth in the
Underwriting Agreement (the "Underwriting Agreement") among the
Representatives, the Company and the Selling Shareholders (as defined in the
Underwriting Agreement). The Shares include the shares of Common Stock to be
sold by the undersigned on the Closing Date (as defined in the Underwriting
Agreement), and are represented by the certificate(s) deposited by the
undersigned with American Stock Transfer & Trust Company (the "Custodian")
hereunder. The undersigned understands that, in connection with the Offering,
the Company has filed a Registration Statement on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission (the "SEC") to register
the offer and sale of the Shares under the Securities Act of 1933.
The undersigned hereby acknowledges receipt of a copy of the
Registration Statement and of a copy of a preliminary form of the Underwriting
Agreement.
1. APPOINTMENT OF ATTORNEYS-IN-FACT. In connection with the foregoing,
the undersigned hereby appoints Reuben F. Richards, Jr. and Thomas G. Werthan,
each with full power to act in all respects hereunder in his sole discretion,
the true attorneys-in-fact (each an "Attorney-in-Fact"; all references below to
Attorney-in-Fact shall be deemed to include either Attorney-in-Fact acting
individually as the case may be) of the undersigned, with full power and
authority in the name of and for and on behalf of the undersigned with respect
to all matters arising in connection with the sale of the Shares to the
Underwriters pursuant to the Underwriting Agreement and the Pricing Agreement,
including, but not limited to, the power and authority:
(a) to sell, assign and transfer to the Underwriters the Shares at
such purchase price per share to be paid by the Underwriters as the
Attorney-in-Fact so acting shall determine in his sole and absolute discretion,
such purchase price to be the same price per share to be paid by the
Underwriters to the Company and the other Selling Shareholders pursuant to the
Underwriting Agreement.
(b) for the purpose of effecting such sale, to execute and deliver the
Underwriting Agreement substantially in the form previously delivered to the
undersigned, with such changes therein as the Attorney-in-Fact so acting, in
his sole and absolute discretion, may determine to be necessary or appropriate,
and containing such terms as such Attorney-in-Fact shall determine, including
the purchase price per share to be paid by the Underwriters and provisions
concerning the Offering, the execution and delivery of the Underwriting
Agreement by such Attorney-in-Fact to be conclusive evidence with respect to
the undersigned's approval thereof, and to carry out and comply with each and
all of the provisions of the Underwriting Agreement;
(c) in the sole and absolute discretion of the Attorney-in-Fact so
acting, to exercise any power conferred upon and to take any action authorized
or required to be taken by the undersigned as a Selling Shareholder pursuant to
the Underwriting Agreement and, subject to authority otherwise specifically
reserved to the Custodian under this Agreement, to give such instructions to
the Custodian as the Attorney-in-Fact so acting may determine with respect to
(i) the transfer on the stock record books of the Company of the Shares in
order to effect such sale (including the names in which new certificates for
the Shares are to be issued and the denominations thereof), (ii) the delivery
to or for the account of the Underwriters of the certificates for the Shares
against receipt by the Custodian of the purchase price to be paid therefor, and
(iii) the remittance to the undersigned of the proceeds from any sale of the
Shares;
(d) to retain legal counsel in connection with any and all matters
referred to herein;
(e) to make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, consents, instructions,
certificates, letters and other writings, including communications to the SEC
and state securities commissions and amendments to the Underwriting Agreement
and to take all action that the Attorney-in-Fact so acting may consider
necessary or appropriate in connection with or to carry out the aforesaid sale
of the Shares to the Underwriters as fully as the undersigned could if then
personally present and acting; and
(f) to make payment, on behalf and for the account of the undersigned,
of all costs and expenses payable by the undersigned pursuant to the provisions
of the Underwriting Agreement or otherwise incurred and deemed appropriate by
the Attorney-in-Fact so acting, including any applicable stock transfer taxes
chargeable to the undersigned and any fees and expenses of the Custodian, out
of and to the extent of funds available from the sale of the Shares (the
Attorney-in-Fact shall have no personal liability to make such payments out of
other funds), all in the sole and absolute discretion of the Attorney-in-Fact
so acting (the undersigned hereby expressly promising to repay such
Attorney-in-Fact for any such payments made on behalf and for the account of
the undersigned by such Attorney-in-Fact).
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Without limiting the foregoing authority, the Attorney-in-Fact is
authorized to (i) request on behalf of the undersigned acceleration of the
effectiveness of the Registration Statement and (ii) advise the SEC of the
reason the undersigned is selling shares of Common Stock.
2. APPOINTMENT OF CUSTODIAN; DEPOSIT OF SHARES: INSTRUCTIONS TO THE
COMPANY.
(a) The undersigned hereby appoints American Stock Transfer & Trust
Company to act as the Custodian of the certificate(s) representing the Shares
on the terms and subject to the conditions set forth in this Agreement.
(b) The undersigned hereby delivers to the Custodian a certificate or
certificates representing the Shares, together with stock powers executed in
blank. These certificates are to be held by the Custodian for the account of
the undersigned and are to be disposed of by the Custodian in accordance with
this Agreement. Such certificates are listed in the schedule attached hereto.
(c) The undersigned hereby authorizes and directs the Custodian to
hold the certificates deposited herewith in its custody with full power in the
name of and for and on behalf of the undersigned and:
(i) to instruct the Company's transfer agent to issue a
certificate or certificates representing the Shares in accordance with
the directions of the Representatives, and to permit inspection of
such certificates by the Representatives as provided in Section 4 of
the Underwriting Agreement;
(ii) to deliver, or cause to be delivered, certificates
representing the Shares to the Underwriters on the Closing Date fixed
in accordance with the Underwriting Agreement against receipt by the
Attorney-in-Fact of the consideration provided for in the Underwriting
Agreement;
(iii) to determine, in the sole and absolute discretion of
the Custodian, whether and the time and times when, the purpose for,
and the manner in which, any power conferred herein to the Custodian
shall be exercised, and the conditions, provisions and covenants of
any instrument or document which may be executed by the Custodian
pursuant hereto; and
(iv) to do all things and perform all acts pursuant to the
terms of this Agreement as the Custodian may in its sole and absolute
discretion deem appropriate, including, without limitation, the
execution and delivery of all certificates, receipts, instruments,
letters of transmittal and other documents and papers required,
contemplated by, or deemed by the Custodian appropriate in connection
with this Agreement to the Representatives, the Company's transfer
agent or any other person, and the employment of such counsel or other
person or firms as the Custodian in its sole and absolute discretion
shall deem necessary.
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3. REPRESENTATIONS AND WARRANTIES. The undersigned hereby represents
warrants and agrees that:
(a) The undersigned has read the representations and warranties
contained in Section 6 of the form of the Underwriting Agreement previously
delivered to the undersigned and understands the same, confirms that the same
are true and correct, and hereby authorizes the Attorney-in-Fact, acting on
behalf of the undersigned, to make such representations and warranties to the
Underwriters as provided therein.
(b) The undersigned has read the form of the Underwriting Agreement
previously delivered to the undersigned and understands the same, and hereby
authorizes the Attorney-in-Fact to enter into such agreement with the
Representatives on behalf of the undersigned and to provide all necessary
performance in satisfaction of the terms and conditions of such agreement.
(c) The undersigned will not make bids for or purchases of or induce
bids for or purchases of, directly or indirectly, any shares of Common Stock of
the Company until the distribution of all shares of Common Stock being sold in
the Offering has been completed. The undersigned has been advised that the
Underwriters will notify the Company when the Offering has been completed.
(d) The undersigned has duly executed and delivered to the Company a
questionnaire in connection with the sale of the Shares by the undersigned
pursuant to the Underwriting Agreement, and the answers to said questionnaire
given by the undersigned are true and correct and do not omit to state a fact
required to be stated therein or necessary to make the statements therein not
misleading, and any changes to such answers will be supplied by the undersigned
as required by said questionnaire.
4. TERMINATION OF AGREEMENT.
(a) All power and authority granted or conferred hereby is granted and
conferred subject to the interests of the Underwriters, the Company and the
other Selling Shareholders and, in consideration of those interests and for the
purpose of assuring completion of the transactions contemplated by the
Underwriting Agreement and this Agreement, is coupled with an interest and is
irrevocable and shall not be terminated by any act of the undersigned or by
operation of law, whether by death or the occurrence of any other event, and if
after the execution hereof the undersigned shall die or any other such event
shall occur, before the completion of the transactions contemplated by the
Underwriting Agreement and this Agreement, the Attorney-in-Fact and the
Custodian are nevertheless authorized and directed to complete all of such
transactions as if such death or other event had not occurred and regardless of
notice thereof.
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(b) Notwithstanding the foregoing, if the Underwriting Agreement shall
not be entered into, or if all of the transactions contemplated by the
Underwriting Agreement and this Agreement are not completed prior to May 31,
1999, then from and after such date the undersigned shall have the power, by
giving written notice to the Attorney-in-Fact, to terminate this Agreement,
subject, however, to all lawful action done or performed by the
Attorney-in-Fact pursuant hereto prior to the actual receipt of such notice.
5. LIMITATION OF LIABILITY; INDEMNIFICATION. The undersigned agrees
that, whenever the Attorney-in-Fact or the Custodian may obtain the advice of
any such counsel as either may select in connection with any matter arising
under the Underwriting Agreement or this Agreement, the Attorney-in-Fact or the
Custodian, as the case may be, shall not be liable for any action taken or
omitted in accordance with such advice. The undersigned agrees to indemnify and
hold harmless the Attorney-in-Fact and the Custodian against any and all
losses, claims, damages or liabilities (including all costs, legal and other
expenses) incurred as a result of any action taken or omitted by the
Attorney-in-Fact or the Custodian in accordance with the Underwriting Agreement
or this Agreement (including, without limitation, the establishment of the
price under the Underwriting Agreement), whether or not under the advice of
counsel, except with respect to any losses, claims, damages or liabilities
which shall be finally adjudicated to be the result of gross negligence or
willful misconduct of the Attorney-in-Fact or the Custodian, respectively.
6. APPLICABLE LAW. The validity, enforceability, interpretation, and
construction of this Agreement shall be determined in accordance with the laws
of the State of New York, and this Agreement shall inure to the benefit of, and
shall be binding upon, the undersigned and the undersigned's heirs, executors,
administrators, successors and assigns, as the case may be.
7. RETURN OF UNDELIVERED SHARES. If the Shares are not accepted by the
Underwriters against payment therefor in accordance with the terms and
provisions of the Underwriting Agreement, or if the Underwriting Agreement
shall be otherwise terminated pursuant to the provisions thereof, the Custodian
shall return to the undersigned the certificate(s) referred to in Section 2(b)
of this Agreement and held by it for the account of the undersigned hereunder.
8. MISCELLANEOUS. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
Until delivery of the consideration provided for in the Underwriting
Agreement has been made to the Attorney-in-Fact by or for the account of the
Underwriters, the undersigned shall remain the owner of the Shares and shall
have all rights thereto which are not inconsistent with this Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
and Custody Agreement to be executed this ____ day of __________, 1999.
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Print Name:
(Signature(s) must correspond with the
name(s) in which the deposited certificate(s)
representing shares of Common Stock were
issued.)
Witnessed:
- ----------------------------------
- ----------------------------------
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The certificate(s) representing Shares of Common Stock of the Company
delivered herewith to the Custodian by the above-named Selling Shareholder
pursuant to this Power of Attorney and Custody Agreement are identified as
follows:
Number of Securities
Transferred in
Accordance Herewith
Common Stock Number
Certificate of Registered
Numbers Shares in name of
------------ ------ ----------
The undersigned, as Custodian, hereby acknowledges receipt of the
certificate(s) above identified, to be held and disposed of pursuant to the
directions in the foregoing Power of Attorney and Custody Agreement and hereby
agrees to act as Custodian in accordance with the terms of the Power of
Attorney and Custody Agreement, this ____ day of __________, 1999.
AMERICAN STOCK TRANSFER
& TRUST COMPANY
as Custodian
By:
-----------------------------
Authorized Signature
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The undersigned hereby agree to act as Attorneys-in-Fact for the
above-named Selling Shareholder in accordance with the terms of this Power of
Attorney and Custody Agreement this ____ day of __________, 1999.
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[Name]
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[Name]
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