Exhibit 1.2
-----------------------------
(Name of Selling Shareholder)
FORM OF
CUSTODY AGREEMENT AND POWER OF ATTORNEY
FOR SALE OF SHARES OF COMMON STOCK
PASSAVE, INC.
Xxxxxx Xxxxxxxx
Xxxxx Garmazi
Xxxx Xxxxxxx
AS ATTORNEYS-IN-FACT
x/x Xxxxxxx, Xxx.
0 Xxxxxxxxx Xx.
XXX 0000
Xxxxxxxxx Pituach 46120
American Stock Transfer & Trust Company
AS CUSTODIAN
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Passave, Inc., a Delaware corporation (the "Company"), the undersigned and one
or more other shareholders of the Company named in Schedule B to the Purchase
Agreement (as herein defined) (the undersigned and such other shareholders being
hereinafter referred to as the "Selling Shareholders") propose to sell certain
shares of common stock, par value $0.0001 per share, of the Company (the "Common
Stock" ) to the several underwriters named in Schedule A to the Purchase
Agreement (the "Underwriters") for whom Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc., CIBC World
Markets Inc. and Xxxxxxxxx & Company, Inc. will act as representative(s) (the
"Representatives") for distribution under a Registration Statement on Form S-1
(the "Registration Statement") to the public at a price and on terms to be
hereafter determined. It is understood that at this time there is no commitment
on the part of the Underwriters to purchase any shares of Common Stock and no
assurance that an offering of shares of Common Stock will take place. The shares
of Common Stock which the undersigned proposes to sell to the Underwriters
pursuant to the Purchase Agreement hereinafter mentioned are referred to herein
as the "Shares." The maximum number of underwritten Shares to be sold by the
undersigned is set forth on the signature page hereto.
1. APPOINTMENT AND POWERS OF ATTORNEYS-IN-FACT.
A. The undersigned hereby irrevocably constitutes and appoints Xxxxxx
Xxxxxxxx, Xxxxx Garmazi and Xxxx Xxxxxxx (any or all of them, the
"Attorneys-in-Fact"), and each of them, his agent and attorney-in-fact,
with full power of substitution, with respect to all matters arising in
connection with the public offering and sale of the Shares, including, but
not
limited to, the power and authority on behalf of the undersigned to do or
cause to be done any of the following things:
(i) negotiate, determine and agree upon (a) the price at which the
Shares will be initially offered to the public by the
Underwriters pursuant to the Purchase Agreement, as hereinafter
defined, (b) the underwriting discount with respect to the
Shares and (c) the price at which the Shares will be sold to
the Underwriters by the Selling Shareholders pursuant to the
Purchase Agreement, which shall in each of (a), (b) and (c) be
the same as that with respect to shares sold by the Company;
(ii) prepare, execute and deliver a Purchase Agreement (the
"Purchase Agreement"), substantially in the form filed or to be
filed as Exhibit 1.1 to the Registration Statement, delivered
to the undersigned herewith, receipt of which is acknowledged,
but with such insertions, changes, additions or deletions as
the Attorneys-in-Fact shall approve as not materially adverse
to the undersigned (which may include a decrease, but not an
increase, in the number of shares of Common Stock to be sold by
the undersigned), such approval to be conclusively evidenced by
the execution and delivery of the Purchase Agreement by an
Attorney-in-Fact, including the making of all representations
and agreements provided in the Purchase Agreement to be made
by, and the exercise of all authority thereunder vested in, the
undersigned;
(iii) sell, assign, transfer and deliver the Shares to the
Underwriters pursuant to the Purchase Agreement and deliver to
the Underwriters certificates for the Shares so sold;
(iv) take any and all steps deemed necessary or desirable by the
Attorneys-in-Fact in connection with the registration of the
Shares under the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and under the securities or "blue
sky" laws of various states and jurisdictions, including,
without limitation, the giving or making of such undertakings,
representations and agreements and the taking of such other
steps as the Attorneys-in-Fact may deem necessary or advisable;
(v) instruct the Company and the Custodian, as hereinafter defined,
on all matters pertaining to the sale of the Shares and
delivery of certificates therefor;
(vi) provide, in accordance with the Purchase Agreement, for the
payment of expenses of the offering and sale of the shares of
Common Stock covered by the Registration Statement and any
stamp duties, capital duties and stock transfer taxes, if any,
payable upon the sales of the Shares to the Underwriters and in
connection with the transfer of the Shares to the Underwriters
("Transfer Taxes");
(vii) incur or authorize the incurrence of any necessary or
appropriate expense in connection with the sale of the Shares
and to determine the amount of any Transfer Taxes, if any;
(viii) retain legal counsel to represent the Selling Shareholders, at
the expense of the selling shareholders, in connection with any
and all matters referred to herein (which counsel may, but need
not be, counsel for the Company);
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(ix) if necessary, to endorse (in blank or otherwise) on behalf of
the undersigned the certificate(s) representing the Shares, or
a stock power or powers attached to such certificate(s);
(x) sign such other certificates, documents and agreements and take
any and all other actions as the Attorneys may deem necessary
or desirable in connection with the consummation of the
transactions contemplated by the Purchase Agreement and this
Agreement and Power of Attorney; and
(xi) otherwise take all actions and do all things necessary or
proper, required, contemplated or deemed advisable or desirable
by the Attorneys-in-Fact in their discretion, including the
execution and delivery of any documents, and generally act for
and in the name of the undersigned with respect to the sale of
the Shares to the Underwriters and the offering of the Shares
by the Underwriters as fully as could the undersigned if then
personally present and acting.
B. In the event of the death or incapacity of any Attorney-in-Fact, the
remaining Attorney(s)-in-Fact may appoint a substitute therefore. The term
"Attorney-in-Fact" as used in this Agreement shall include their respective
substitutes.
C. Each Attorney-in-Fact may act alone in exercising the rights and powers
conferred on the Attorneys-in-Fact by this Custody Agreement and Power of
Attorney, and the act of any Attorney-in-Fact shall be the act of the
Attorneys-in-Fact. Each Attorney-in-Fact is hereby empowered to determine,
in his sole and absolute discretion, the time or times when, the purposes
for which and the manner in which, any power herein conferred upon the
Attorneys-in-Fact shall be exercised.
D. The Custodian, the Representative(s), the Company and all other persons
dealing with the Attorneys-in-Fact as such may rely and act upon any
writing believed in good faith to be signed by one or more of the
Attorneys-in-Fact.
E. The Attorneys-in-Fact shall not receive any compensation for their
services rendered hereunder, except that they shall be entitled to cause
the Custodian to pay, from the proceeds payable to the undersigned, the
undersigned's proportionate share of any out-of-pocket expenses incurred
under this Custody Agreement and Power of Attorney and similar instruments
executed by other Selling Shareholders.
2. APPOINTMENT OF CUSTODIAN; DEPOSIT OF SHARES.
A. In connection with and to facilitate the sale of the Shares to the
Underwriters, the undersigned hereby appoints American Stock Transfer &
Trust Company as custodian (the "Custodian") and herewith deposits with the
Custodian one or more certificates for shares of Common Stock, shares of
Series A Preferred Stock and/or shares of Series B Preferred Stock. All
shares of Series A Preferred Stock and shares of Series B Preferred Stock
are convertible into shares of Common Stock in accordance with the terms
and conditions of the Company's Amended and Restated Certificate of
Incorporation as in effect on the date hereof, and the shares of Common
Stock issuable upon the conversion thereof are referred to herein as the
"Conversion Shares". The shares of Common Stock and the Conversion Shares
represented by the certificate(s) deposited pursuant to this Section 2
(collectively, "Future Shares"), in the aggregate, represent not less than
the total number of Shares to be sold by the undersigned to the
Underwriters, which number is set forth on Schedule I hereto. The
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undersigned represents and warrants to the Attorney-in-Fact, the Custodian
and the Underwriters that each such certificate so deposited is in
negotiable and proper deliverable form endorsed in blank with the signature
of the undersigned thereon or is accompanied by a duly executed stock power
or powers in blank, bearing the signature of the undersigned. The Custodian
is hereby authorized and directed, subject to the instructions of the
Attorneys-in-Fact, (a) to hold in custody the certificate or certificates
deposited herewith, (b) to deliver or to authorize the Company's Transfer
Agent to deliver the certificate or certificates deposited hereunder (or
replacement certificate(s) for the Shares) to or at the direction of the
Attorneys-in-Fact in accordance with the terms of the Purchase Agreement
and (c) to return or cause the Company's Transfer Agent to return to the
undersigned new certificate(s) for the shares of Common Stock represented
by, or issuable upon conversion of, any certificate deposited hereunder
which are not sold pursuant to the Purchase Agreement.
B. Until the Shares have been delivered to the Underwriters against payment
therefor in accordance with the Purchase Agreement, the undersigned shall
retain all rights of ownership with respect to the Shares deposited
hereunder, including the right to vote and to receive all dividends and
payment thereon, except the right to retain custody of or dispose of such
Shares, which right is subject to this Agreement and the Purchase
Agreement.
3. SALE OF SHARES; REMITTING NET PROCEEDS.
A. The Attorneys-in-Fact are hereby authorized and directed to deliver or
cause the Custodian or the Company's Transfer Agent to deliver certificates
for the Shares to the Representatives, as provided in the Purchase
Agreement, against delivery to the Attorneys-in-Fact for the account of the
undersigned of the purchase price of the Shares, at the time or times and
in the funds specified in the Purchase Agreement. The Attorneys-in-Fact are
authorized, on behalf of the undersigned, to accept and acknowledge receipt
of the payment of the purchase price for the Shares and shall promptly
deposit such proceeds with the Custodian; PROVIDED, HOWEVER, that the
Attorney(s)-in-fact shall be authorized to instruct the Underwriters to pay
directly to the Company any exercise price, if any, required to be paid in
connection with the issuance of the Future Shares. After reserving an
amount of such proceeds for expenses as provided below and for Transfer
Taxes, if any, the Custodian shall promptly remit to the undersigned his
proportionate share of the proceeds in accordance with the instructions of
the undersigned as set forth in the "Manner of Payment" section on the
signature page hereto.
B. Before any proceeds of the sale of the Shares are remitted to the
undersigned, the Attorneys-in-Fact are authorized and empowered to direct
the Custodian to reserve from the proceeds an amount determined by the
Attorneys-in-Fact to be sufficient to pay the undersigned's proportionate
share of all expenses of the Selling Shareholders. The Selling
Shareholders' expenses shall be limited to those items of expense of the
offering and sale of the shares of Common Stock to be borne by them as
provided in the Purchase Agreement, and the fees and expenses of counsel to
the Selling Shareholders incurred in connection with the transactions
contemplated by this Agreement, and the Custodian is authorized to pay such
expenses from the amount reserved for that purpose pursuant to the
direction of the Attorneys-in-Fact. After payment of expenses from this
reserve, if any, the Custodian will remit to the undersigned his
proportionate share of any balance. To the extent expenses exceed the
amount reserved, the Selling Shareholders shall remain liable for their
proportionate share of such expenses.
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4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
The undersigned represents and warrants to, and agrees with, the other
Selling Shareholders, the Company, the Attorneys-in-Fact, the Custodian and
the Underwriters as follows:
A. The undersigned has full legal right, power and authority and all
authorizations and approvals required by law or otherwise to enter into and
perform this Agreement and the Purchase Agreement. The execution,
performance and delivery of this Agreement by the undersigned does not
require the consent of any third-party and no third-party has any rights in
the Shares. The undersigned has duly executed and delivered this Agreement
and this Agreement, when executed by the other parties hereto, will be the
valid and binding agreement of the undersigned enforceable against the
undersigned in accordance with its term (except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles). If the undersigned
is acting as a fiduciary, officer, partner or agent, the undersigned is
enclosing with this Agreement certified copies of the appropriate
instruments pursuant to which the undersigned is authorized to act
hereunder. If the undersigned is an individual and is married, the
undersigned is enclosing with this Agreement a duly completed and executed
consent of his or her spouse, in the form attached to this Agreement as
Annex A.
B. The undersigned has reviewed the representations and warranties to be
made by the undersigned as a Selling Shareholder contained in the Purchase
Agreement, and hereby represents, warrants and covenants that each of such
representations and warranties is true and correct as of the date hereof
and, except as the undersigned shall have notified the Attorneys-in-Fact
pursuant to paragraph F of the attached instructions, will be true and
correct at all times from the date hereof through and including the time of
the closing of the sale of the Shares to the Underwriters. The undersigned
will promptly notify the Attorneys-in-Fact of any development that would
make any such representation and warranty untrue.
C. The undersigned has reviewed the Registration Statement, including the
preliminary prospectus included therein, and (i) the undersigned has no
knowledge of any material adverse information with regard to the current
and prospective operations of the Company or its subsidiaries except as
disclosed in such preliminary prospectus, (ii) the information contained in
such preliminary prospectus with respect to the undersigned is true and
correct and (iii) to the best of the knowledge and belief of the
undersigned, such preliminary prospectus does not contain any misstatement
of a material fact or omit to state any fact which any prospective
purchaser of shares of Common Stock of the Company might reasonably believe
to be material.
D. The undersigned is not directly or indirectly an affiliate of or
associated with any member of the National Association of Securities
Dealers, Inc.
E. Upon execution and delivery of the Purchase Agreement by the
Attorneys-in-Fact on behalf of the undersigned, the undersigned agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter, the Company, each of its
directors and officers who sign the Registration Statement and each person,
if any, who controls any Underwriter within the meaning of the Securities
Act or the Exchange Act or the Company, and to contribute to amounts paid
as a result of losses,
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claims, damages, liabilities and expenses, all in accordance with Sections
6 and 7 of the Purchase Agreement.
F. Upon execution and delivery of the Purchase Agreement by the
Attorneys-in-Fact on behalf of the undersigned, the undersigned agrees to
be bound by and to perform each of the covenants and agreements of the
undersigned as a Selling Shareholder in the Purchase Agreement.
G. The undersigned agrees to deliver to the Attorneys-in-Fact such
documentation as the Attorneys-in-Fact, the Company, the Selling
Shareholders or the Underwriters or any of their respective counsel may
reasonably request in order to effectuate any of the provisions hereof or
of the Purchase Agreement, all of the foregoing to be in form and substance
satisfactory in all respects to the Attorneys-in-Fact.
The foregoing representations, warranties and agreements are made for the
benefit of, and may be relied upon by, the other Selling Shareholders, the
Attorneys-in-Fact, the Company, the Custodian, the Underwriters and their
respective representatives, agents and counsel and are in addition to, and
not in limitation of, the representations, warranties and agreements of the
Selling Shareholders in the Purchase Agreement.
5. IRREVOCABILITY OF INSTRUMENTS; TERMINATION OF THIS AGREEMENT
A. This Agreement, the deposit of the Shares and/or Notices of Exercise
pursuant hereto and all authority hereby conferred, is granted, made and
conferred subject to and in consideration of (i) the interests of the
Attorneys-in-Fact, the Underwriters, the Company and the other Selling
Shareholders who may become parties to the Purchase Agreement in and for
the purpose of completing the transactions contemplated hereunder and by
the Purchase Agreement and (ii) the completion of the registration of
shares of Common Stock pursuant to the Registration Statement and the other
acts of the above-mentioned parties from the date hereof to and including
the execution and delivery of the Purchase Agreement in anticipation of the
sale of shares of Common Stock, including the Shares, to the Underwriters;
and the Attorneys-in-Fact are hereby further vested with an estate, right,
title and interest in and to the Shares deposited herewith and the Future
Shares upon issuance for the purpose of irrevocably empowering and securing
to them authority sufficient to consummate said transactions. Accordingly,
this Agreement shall be irrevocable prior to June 30, 2006 (the
"Termination Date") and shall remain in full force and effect until that
date. The undersigned acknowledges that this Agreement is being executed
for the benefit of third parties and therefore further agrees that this
Agreement shall not be terminated by operation of law or upon the
occurrence of any event whatsoever, including the death, disability or
incompetence of the undersigned or any other Selling Shareholder or, if the
undersigned or any other Selling Shareholder is not a natural person, upon
any dissolution, winding up, distribution of assets or other event
affecting the legal existence of the undersigned or such Selling
Shareholder. If any event referred to in the preceding sentence shall
occur, whether with or without notice thereof to the Attorneys-in-Fact, any
of the Underwriters or any other person, the Attorneys-in-Fact shall
nevertheless be authorized and empowered to deliver and deal with the
Shares deposited under the Agreement by the undersigned in accordance with
the terms and provisions of the Purchase Agreement and this Agreement as if
such event had not occurred.
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B. If the sale of the Shares contemplated by this Agreement is not
completed by the Termination Date, or upon written notice to the Custodian
by the Company and the Underwriters that the Purchase Agreement has been
terminated, this Agreement shall terminate (without affecting any lawful
action of the Attorneys-in-Fact or the Custodian prior to such
termination), and the Attorneys-in-Fact shall cause the Custodian to return
to the undersigned all certificates for the Shares deposited hereunder, but
only after having received payment of the Undersigned's proportionate part
of any expenses to be paid or borne by the Selling Shareholders. The
undersigned hereby covenants with the Attorneys-in-Fact and with all other
Selling Shareholders that if for any reason the sale of the Shares
contemplated hereby shall not be consummated, the undersigned shall pay the
undersigned's proportionate share of all expenses payable by the Selling
Shareholders hereunder or under the Purchase Agreement.
6. LIABILITY AND INDEMNIFICATION OF THE ATTORNEYS-IN-FACT AND CUSTODIAN
The Attorneys-in-Fact and the Custodian assume no responsibility or
liability to the undersigned or to any other person, other than to deal
with the Shares, the proceeds from the sale of the Shares and any other
shares of Common Stock deposited with the Custodian pursuant to the terms
of this Agreement in accordance with the provisions hereof. The undersigned
hereby agrees to indemnify and hold harmless the Attorneys-in-Fact and the
Custodian, and their respective officers, agents, successors, assigns and
personal representatives with respect to any act or omission of or by any
of them in good faith in connection with any and all matters contemplated
by this Agreement or the Purchase Agreement.
7. INTERPRETATION
A. The representations, warranties and agreements of the undersigned
contained herein and in the Purchase Agreement shall survive the sale and
delivery of the Shares and the termination of this Agreement.
B. The validity, enforceability, interpretation and construction of this
Agreement shall be determined in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State
of New York, and this Agreement shall inure to the benefit of, and be
binding upon, the undersigned and the undersigned's heirs, executors,
administrators, successors and assigns, as the case may be.
C. Wherever possible each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if
any such provision shall be prohibited by or invalid under applicable law,
it shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
D. The use of the masculine gender in this Agreement includes the feminine
and neuter, and the use of the singular includes the plural, wherever
appropriate.
E. This Agreement may be executed in any number of counterparts, which
together shall constitute one and the same instrument.
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8. NOTICE
All communications hereunder will be in writing and effective only on receipt.
Notices sent to the Selling Shareholders shall be sent to his address set forth
on the signature pages hereto. Notices to the Attorney-in-Fact and the Custodian
will be sent to the addresses set forth on page one of this Agreement.
9. MISCELLANEOUS
A. The representations and warranties of the undersigned set forth in the
Purchase Agreement are hereby incorporated by reference herein and the
undersigned represents and warrants that such representations and
warranties are true and correct on the date hereof as if made on the date
hereof. The representations, warranties and agreements contained herein, as
well as those contained in the Purchase Agreement, are made for the benefit
of, and may be relied upon by, you, the other Selling Shareholders, the
Attorneys-in-Fact, the Company and the Underwriters and their
representatives, agents and counsel. These representations, warranties and
agreements shall remain operative and in full force and effect, and shall
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf
of any of the persons listed in the preceding sentence, (ii) acceptance of
the Shares and payment for them under the Purchase Agreement and (iii)
termination of this Agreement.
B. This Agreement shall be binding upon the undersigned and the heirs,
legal Representative, distributees, successors and assigns of the
undersigned.
C. This Agreement may be signed in counterparts which together shall
constitute one and the same agreement.
D. This Agreement shall be governed by the laws of the State of New York
without regard to the conflicts of laws principles thereof.
[Remainder of the page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned has executed this Custody Agreement and
Power of Attorney this ___ day of __________, 2005.
[SELLING SHAREHOLDER]
By:
---------------------------------
Maximum number of Shares to be sold: Name and address to which notices and
_____________ funds shall be sent:
Taxpayer I.D.: ___________________ [Selling Shareholder]
[Address]
MANNER OF PAYMENT
I request that payment of the net proceeds from the sale of the shares
of Common Stock of the Company to be sold by me pursuant to the Underwriting
Agreement be made in the following manner (CHECK ONE):
|_| CHECK made payable to: |_| or transfer to the following account:
to be sent to the following address: Account No.
------------------------
Bank:
---------------------------------------- -----------------------------------
(name)
---------------------------------------- -----------------------------------
(address)
Phone: ( )
-------------------------
Please send by (check one): ABA Routing Number:
---------------------
|_| First class mail Credit Trust G/L Number#:
|_| Federal Express ---------------
Account Name:
Federal Express account number ----------------------------
Attention:
---------------------------------------- ------------------------------
|_| Other (please specify)
------------------------------------
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ACCEPTED by each Attorney-in-Fact as of ACCEPTED by the Custodian as of the
the date above set forth: date above set forth:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
---------------------------------------- --------------------------------
Xxxxxx Xxxxxxxx Name:
Title:
----------------------------------------
Yaron Garmazi
----------------------------------------
Xxxx Xxxxxxx
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INSTRUCTIONS
FOR COMPLETING THE CUSTODY AGREEMENT
AND POWER OF ATTORNEY
A. You have been sent five copies of the Custody Agreement and Power of Attorney
(the "Agreement"). Please complete and return four copies of the Agreement and
share certificate(s) as set forth in paragraph D below. A fully executed copy of
the Agreement will be returned to you; a fully executed copy of the Agreement
and your share certificate(s) will be retained by the Custodian; and a fully
executed copy of the Agreement will be delivered to the Attorneys-in-Fact and to
the Representatives.
B. Complete Schedule I attached hereto.
C. Each copy of the Agreement and each share certificate or stock power
deposited hereunder must be executed by you with your signature on the Agreement
and the share certificate(s) or the accompanying stock power. Please sign the
share certificate(s) or stock power and the Agreement exactly as your name
appears on your share certificate(s).
D. Endorsed share certificate(s) with stock powers attached along with all four
executed copies of the completed Agreement should be promptly returned by hand
delivery or by certified mail appropriately insured to the Custodian. If sent
through the mail, it is recommended that the certificate(s) not be endorsed, but
an executed stock power be sent under separate cover from the certificate(s).
E. If any certificate that you submit represents a greater number of Shares than
the aggregate number of Shares which you agree to sell pursuant to the Purchase
Agreement (including Conversion Shares), the Custodian will cause to be
delivered to you in due course, but not earlier than ten days after the closing
for the purchase of the Shares by the Underwriters, a certificate for the excess
number of shares.
F. For purposes of discharging your obligations under Section 5(f) of the
Purchase Agreement, please contact Xxxxxx Xxxxxxxx, Xxxxx Garmazi or Xxxxx Xxxxx
at Passave or if any information or representation included in the foregoing
Agreement or the Purchase Agreement should change, or if you become aware of any
new information, at any time prior to termination of the period referred to in
Section 5(f)(ii) of the Purchase Agreement.
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SCHEDULE I
Certificate(s) for shares of Common Stock of Passave, Inc.
deposited under the Custody Agreement
and Power of Attorney
Certificate Number Number of shares of Common Stock Number of shares of Common
or Conversion Shares represented Stock from this Certificate To
by Certificate Be Sold*
[--------] [--------] [----------]
[--------] [--------] [----------]
Total: Total:
*If fewer than all shares represented by a certificate are to be sold, indicate
below, if desired for income tax purposes, the date of purchase or purchase
price of the particular shares to be sold.
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ANNEX A
Instruction: See Section 4, paragraph A, of the Custody Agreement and Power of
Attorney.
CONSENT OF SPOUSE
I am the spouse of _______________________________. On behalf of myself, my
heirs, legatees and assigns, I hereby join in and consent to the terms of the
foregoing Custody Agreement and Power of Attorney and agree to the sale of the
shares of Common Stock, or Conversion Shares, of Passave, Inc. registered in the
name of my spouse or otherwise registered, which my spouse proposes to sell, or
to agree to sell, pursuant to the Purchase Agreement referred to in the Custody
Agreement and Power of Attorney.
Dated: __________ __, 2005
--------------------------
(Signature of Spouse)
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SHARE TRANSFER DEED
For good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the undersigned hereby assigns, pledges and
transfers _________ shares of Common Stock, $0.0001 par value per share (the
"Shares"), of Passave, Inc. (the "Company"), a Delaware corporation, standing in
the name of the undersigned on the books of the Company represented by, or upon
conversion of, Certificate(s) numbered _______________ herewith.
IN WITNESS WHEREOF we set our signatures this __th day of __________,
2005.
Transferor:
[-------------]
-------------------------------
Transferee:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
---------------------------------
Name:
Title:
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