EXHIBIT 12
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (this "Agreement") is made and entered into as of
[___________], 2001, among iPrint Technologies, Inc., a Delaware corporation
("iPrint") and the undersigned shareholder who may be deemed an affiliate
("Affiliate") of Wood Alliance, Inc., a California corporation ("Wood").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Combination Agreement (as defined below).
RECITALS
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X. Xxxx, iPrint and Sub (as defined below) have entered into Combination
and Reorganization Agreement dated as of June 23, 2001 (the "Combination
Agreement") which provides for the merger of a wholly-owned subsidiary of iPrint
("Sub") with and into Wood (the "Combination"). Pursuant to the Combination,
all outstanding common stock of Wood (the "Wood Common Stock") shall be
converted into the right to receive common stock of iPrint;
B. Affiliate has been advised that Affiliate may be deemed to be an
"affiliate" of Wood, as the term "affiliate" is used for purposes of Rule 144 of
the Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission"); and
C. The execution and delivery of this Agreement by Affiliate is a material
inducement to iPrint to enter into the Combination Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows.
1. Acknowledgments by Affiliate. Affiliate acknowledges and understands
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that the representations, warranties and covenants by Affiliate set forth herein
shall be relied upon by iPrint, Wood and their respective affiliates and
counsel, and that substantial losses and damages may be incurred by these
persons if Affiliate's representations, warranties or covenants are breached.
Affiliate has carefully read this Agreement and the Combination Agreement and
has discussed the requirements of this Agreement with Affiliate's professional
advisors, who are qualified to advise Affiliate with regard to such matters.
2. Beneficial Ownership of Wood Common Stock. The Affiliate is the
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beneficial owner of shares of Wood Common Stock (the "Shares"). The Shares are
not subject to any claim, lien, pledge, charge, security interest or other
encumbrance or to any rights of first refusal of any kind. There are no options,
warrants, calls, rights, commitments or agreements of any character, written or
oral, to which the Affiliate is party or by which it is bound obligating the
Affiliate to issue, deliver, sell, repurchase or redeem, or cause to be issued,
delivered, sold, repurchased or redeemed, any Shares or obligating the Affiliate
to grant or enter into any such option, warrant, call, right, commitment or
agreement. The Affiliate has the sole right to transfer such Shares. The Shares
are not subject to preemptive rights created by any agreement to which the
Affiliate is party. All shares of Wood Common Stock and common stock of iPrint
acquired by Affiliate in the Combination ("iPrint Common Stock") shall be
subject to the provisions of this Agreement as if held by Affiliate as of the
date hereof.
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3. Compliance with Rule 145 and the Securities Act.
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(a) Affiliate has been advised that (i) the issuance of shares of
iPrint Common Stock in connection with the Combination is expected to be
registered with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), and the resale of such shares shall be subject to
restrictions set forth in Rule 145 promulgated under the Securities Act, and
(ii) Affiliate may be deemed to be an affiliate of Wood. Affiliate accordingly
agrees not to sell, transfer or otherwise dispose of any iPrint Common Stock
issued to Affiliate in the Combination unless (i) such sale, transfer or other
disposition is made in conformity with the requirements of Rule 145(d)
promulgated under the Securities Act, (ii) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Securities Act or an appropriate exemption from registration, (iii) Affiliate
delivers to iPrint a written opinion of counsel, reasonably acceptable to iPrint
in form and substance, that such sale, transfer or other disposition is
otherwise exempt from registration under the Securities Act or (iv) an
authorized representative of the Commission shall have rendered written advice
to Affiliate to the effect that the Commission would take no action, or that the
staff of the Commission would not recommend that the Commission take any action,
with respect to the proposed disposition if consummated.
(b) iPrint shall give stop transfer instructions to its transfer agent
with respect to any iPrint Common Stock received by Affiliate pursuant to the
Combination and there shall be placed on the certificates representing such
iPrint Common Stock, or any substitutions therefor, a legend stating in
substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145(d) APPLIES AND MAY ONLY BE TRANSFERRED
IN CONFORMITY WITH RULE 145(d) OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR IN ACCORDANCE WITH A WRITTEN OPINION OF COUNSEL, REASONABLY
ACCEPTABLE TO THE ISSUER IN FORM AND SUBSTANCE, THAT SUCH TRANSFER IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend) and iPrint shall so instruct its transfer
agent, if Affiliate delivers to iPrint (i) satisfactory written evidence that
the shares have been sold in compliance with Rule 145 (in which case, the
substitute certificate shall be issued in the name of the transferee), or (ii)
an opinion of counsel, in form and substance reasonably satisfactory to iPrint,
to the effect that public sale of the shares by the holder thereof is no longer
subject to Rule 145.
4. Termination. This Agreement shall be terminated and shall be of no
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further force and effect in the event of the termination of the Combination
Agreement pursuant to Article VIII of the Combination Agreement.
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5. Miscellaneous.
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(a) Waiver: Severability. No waiver by any party hereto of any
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condition or of any breach of any provision of this Agreement shall be effective
unless in writing and signed by each party hereto. In the event that any
provision of this Agreement, or the application of any such provision to any
person, entity or set of circumstances, shall be determined to be invalid,
unlawful, void or unenforceable to any extent, the remainder of this Agreement,
and the application of such provision to persons, entities or circumstances
other than those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue to
be valid and enforceable to the fullest extent permitted by law.
(b) Binding Effect and Assignment. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other party hereto.
(c) Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) Injunctive Relief. Each of the parties acknowledge that (i) the
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covenants and the restrictions contained in this Agreement are necessary,
fundamental, and required for the protection of iPrint and Wood and to preserve
for iPrint the benefits of the Combination; (ii) such covenants relate to
matters which are of a special, unique, and extraordinary character that gives
each of such covenants a special, unique, and extraordinary value; and (iii) a
breach of any such covenants or any other provision of this Agreement shall
result in irreparable harm and damages to iPrint and Wood which cannot be
adequately compensated by a monetary award. Accordingly, it is expressly agreed
that in addition to all other remedies available at law or in equity, iPrint and
Wood shall be entitled to the immediate remedy of a temporary restraining order,
preliminary injunction, or such other form of injunctive or equitable relief as
may be used by any court of competent jurisdiction to restrain or enjoin any of
the parties hereto from breaching any such covenant or provision or to
specifically enforce the provisions hereof.
(e) Governing Law. This Agreement shall be governed by and construed,
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interpreted and enforced in accordance with the internal laws of the State of
Delaware without giving effect to any choice or conflict of laws provision or
rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
(f) Entire Agreement. This Agreement, the Combination Agreement and
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the other agreements referred to in the Combination Agreement set forth the
entire understanding of Affiliate and iPrint relating to the subject matter
hereof and thereof and supersede all prior agreements and understandings between
Affiliate and iPrint relating to the subject matter hereof and thereof.
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(g) Attorneys' Fees. In the event of any legal actions or proceeding
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to enforce or interpret the provisions hereof, the prevailing party shall be
entitled to reasonable attorneys' fees, whether or not the proceeding results in
a final judgment.
(h) Further Assurances. Affiliate shall execute and/or cause to be
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delivered to iPrint such instruments and other documents and shall take such
other actions as iPrint may reasonably request to effectuate the intent and
purposes of this Agreement.
(i) Third Party Reliance. Counsel to iPrint and Wood shall be entitled
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to rely upon this Affiliate Agreement.
(j) Survival. The representations, warranties, covenants and other
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provisions contained in this Agreement shall survive the Combination.
(k) Notices. All notices and other communications pursuant to this
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Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to iPrint: iPrint Technologies, inc.
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
With a copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Affiliate: To the address for notice set forth on the
signature page hereof.
Facsimile No: [_____________]
(l) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Affiliate Agreement to be
duly executed on the day and year first above written.
iPRINT TECHNOLOGIES, iNC. AFFILIATE
By: _________________________________ By:__________________________________
Name: _______________________________ Affiliate's Address for Notice:
Title: ______________________________ _____________________________________
_____________________________________
_____________________________________
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