EXHIBIT 3
VOTING AGREEMENT
by and between
IPRINT TECHNOLOGIES, INC.
and
[ ]
Dated as of [__________], 2001
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
[___________], 2001 by and between iPrint Technologies, Inc., a Delaware
corporation ("iPrint"), and the undersigned (the "Shareholder"), a shareholder
of Wood Alliance, Inc., a California corporation ("Wood").
WHEREAS, iPrint and Wood propose to enter into an Agreement and Plan of
Reorganization of even date herewith (the "Reorganization Agreement," which term
does not include any amendment thereto which materially and adversely affects
the Shareholder), which provides for, among other things, the merger of a wholly
owned subsidiary of the iPrint with and into Wood upon the terms and subject to
the conditions set forth in the Reorganization Agreement;
WHEREAS, iPrint has requested that the Shareholder agree, and, in order to
induce iPrint to enter into the Reorganization Agreement, the Shareholder has
agreed to enter into this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Reorganization Agreement, a copy of which has
been furnished to the Shareholder.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. VOTING OF SHARES
1.1 Voting of Shares and Proxy.
At every meeting of the shareholders of Wood called, and at every
adjournment thereof, and on every action or approval by written consent of the
shareholders of Wood, the Shareholder shall cause the Shares (as defined below)
to be voted: (i) in favor of the Wood Proposal; (ii) against any proposal for
any merger, consolidation, sale of assets, recapitalization or other business
combination involving Wood (other than the Combination) (any of the foregoing a
"Wood Acquisition Transaction") or any other action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of Wood under the Reorganization Agreement or which
would result in any of the conditions to Wood's or iPrint's obligations under
the Reorganization Agreement not being fulfilled; and (iii) in favor of any
other matter relating to consummation of the transactions provided for by the
Reorganization Agreement.
"Shares" shall mean: (i) all securities of Wood (including all shares of
common stock of Wood ("Wood Common Stock") and all options, warrants and other
rights to acquire such securities) owned by the Shareholder as of the date of
this Agreement, all of which are accurately listed on the signature page hereof;
and (ii) all additional securities of Wood (including all shares of Wood Common
Stock and all additional options, warrants and other rights to acquire such
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securities) of which the Shareholder acquires beneficial ownership or right to
vote or control the vote during the period from the date of this Agreement
through the termination of this Agreement. In the event of a stock dividend or
distribution, or any change in Wood Common Stock by reason of any stock dividend
or distribution, or any change, in Wood Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any securities into which
or for which any or all of the Shares may be changed or exchanged or which are
received in such transaction. Nothing in this Agreement is intended to restrict
or in any way affect action taken or omitted by Shareholder or any individual
affiliated with the Shareholder in such person's capacity as a director or
officer of Wood.
Concurrently with the execution of this Agreement, the Shareholder agrees
to execute and deliver to iPrint a proxy in the form attached hereto as Exhibit
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A (the "Proxy"), which shall be irrevocable to the fullest extent permissible by
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law but subject to termination as stated therein, with respect to the Shares.
The Shareholder hereby gives any consent or waivers that are reasonably
required for the consummation of the Combination under the terms of any
agreements to which the Shareholder is a party.
2. RESTRICTIONS ON TRANSFERS OF SHARES
2.1 Restrictions on Transfer of Shares Prior to the Effective Time.
(a) Prior to the Effective Time, the Shareholder hereby agrees
not to take any of the following actions, except in accordance with subsection
(b) of this Section 2.1 or as provided in the Reorganization Agreement:
(i) tender any of the Shares or any securities convertible
into or exchangeable or exercisable for the Shares to any person;
(ii) sell, transfer, distribute, pledge, encumber, assign
or otherwise dispose of (or enter into any transaction or device that is
designed to, or could reasonably be expected to, result in the disposition by
any person at any time in the future of) any of the Shares or any securities
convertible into or exchangeable or exercisable for the Shares;
(iii) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of any of the Shares;
(iv) enforce or permit the execution of the provisions of
any redemption, share purchase or sale, recapitalization or other agreement with
Wood;
(v) deposit any of the Shares into a voting trust or
depositary facility or enter into a voting agreement or arrangement with respect
to any Shares or grant any
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proxy with respect thereto other than as contemplated hereby or the
Reorganization Agreement; or
(vi) enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
pledge, encumbrance, assignment or other disposition of, any of the Shares, any
securities convertible into or exchangeable or exercisable for shares of Wood
Common Stock or any other capital stock of Wood or any interest in any of the
foregoing with any person (any transaction referred to in clause (i), (ii),
(iii), (iv), (v) or (vi) is hereinafter referred to as a "Transfer").
(b) Shareholder shall not request that Wood or its transfer agent
register the Transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, and each Shareholder
hereby consents to the entry of stop transfer instructions by Wood of any
Transfer of such Shares, unless such Transfer is made in compliance with this
Agreement .
3. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS OF THE
SHAREHOLDER.
The Shareholder hereby represents and warrants and covenants to iPrint as
follows:
3.1 Authorization. This Agreement has been duly executed and
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delivered by or on behalf of the Shareholder and, assuming its due
authorization, execution and delivery by the other parties hereto, constitutes
the legal, valid and binding obligation of Shareholder, enforceable against
Shareholder in accordance with its terms, except as may be limited by the effect
of bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally and except as
enforcement thereof is subject to general principals of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
3.2 No Conflict. The execution and delivery of this Agreement by the
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Shareholder does not, and the performance of this Agreement by the Shareholder
will not, (i) materially conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to the Shareholder or by which it or any of
its properties is bound or affected, or (ii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to another party any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of the
Shareholder, including, without limitation, the Shares, pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Shareholder is a party
or by which the Shareholder or any of its properties is bound or affected,
except for any such breaches, defaults or other occurrences that would not
prevent or delay the performance by the Shareholder of its obligations under
this Agreement.
3.3 Title to Shares. The Shareholder is the registered or beneficial
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owner of its Shares free and clear of any lien or encumbrance, proxy or voting
restriction other than
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pursuant to this Agreement. Such Shares are all the securities of Wood owned of
record or beneficially by the Shareholder on the date of this Agreement .
3.4 Reliance by iPrint. The Shareholder understands and acknowledges
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that iPrint is entering into the Reorganization Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement.
3.5 Certain Actions. Prior to the termination of this Agreement, the
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Shareholder agrees not to, directly or indirectly, take any other action that
would make any representation or warranty of the Shareholder contained herein
untrue or incorrect.
3.6 No Solicitation. The Shareholder will not, directly or
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indirectly, and will instruct the Shareholder's agents, representatives,
affiliates, employees, officers and directors not to, directly or indirectly,
solicit, initiate or knowingly encourage (including by way of furnishing
nonpublic information), or take any other action knowingly to facilitate, any
Wood Transaction Proposal, or enter into or maintain or continue discussion or
negotiate with any person or entity in furtherance of any Wood Transaction
Proposal or to obtain a Wood Acquisition Transaction or agree to or endorse any
Wood Acquisition Transaction, or authorize or permit any of the agents,
representatives, affiliates (other than in the case of a limited partnership,
the limited partners thereof), employees, officers and directors of the
Shareholder to take any such action. The Shareholder shall notify iPrint
immediately after receipt by the Shareholder or any of the Shareholder's agents,
representatives, affiliates, employees, officers and directors of any proposal
for, or inquiry respecting, any Wood Acquisition Transaction or any request for
nonpublic information in connection with any Wood Transaction Proposal, or for
access to the properties, books or records of Wood by any person or entity that
informs or has informed Wood or the Shareholder that it is considering making or
has made a Wood Transaction Proposal. Such notice to iPrint shall indicate in
reasonable detail the identity of the person making the Wood Transaction
Proposal and the terms and conditions of such Wood Transaction Proposal. The
Shareholder immediately shall cease and cause to be terminated all existing
discussions or negotiations with any parties conducted heretofore with respect
to a Wood Acquisition Transaction.
3.7 Acknowledgment and Approval of the Reorganization Agreement;
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Appointment of Shareholders' Representative; Indemnification. The Shareholder
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hereby acknowledges and agrees that the Shareholder has received a copy of the
Reorganization Agreement, including all schedules and exhibits thereto, and that
the Shareholder has reviewed and understands the terms thereof. The Shareholder
approves and agrees to be bound by all provisions of Article VIII of the
Reorganization Agreement.
3.8 Miscellaneous. Nothing contained in this Agreement shall be
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deemed to vest in iPrint any direct or indirect ownership or incidence of
ownership of or with respect to any of the Shares. Except as otherwise provided
herein, all rights, ownership and economic benefits of and relating to the
Shares shall remain and belong to the Shareholder, and iPrint shall not have any
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of Wood or exercise any power or
authority to direct the Shareholder in the voting of any of the Shares, except
as otherwise provided herein, or the performance of Shareholder's duties or
responsibilities as a shareholder of Wood.
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4. GENERAL PROVISIONS
4.1 Notices. All notices and other communications given or made
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pursuant hereto shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by facsimile, by
registered or certified mail (postage prepaid, return receipt requested) or by
overnight courier service to the respective parties at the following addresses
(or at such other addresses as shall be specified by notice given in accordance
with this Section 4):
(a) if to iPrint:
iPrint Technologies, Inc.
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
(b) If to the Shareholder,
[Address]
--------------------------------
Attention:
----------------------
Facsimile No.:
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4.2 Headings. The descriptive headings contained in this Agreement are
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included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
4.3 Severability. If any term or other provision of this Agreement is
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illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
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4.4 Entire Agreement; Amendment; Waiver. This Agreement and the Proxy
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constitute the entire agreement of the parties and supersede all prior
agreements and undertakings, both written and oral, between the parties, or any
of them, with respect to the subject matter hereof and thereof. This Agreement
may not be amended or modified except in an instrument in writing signed by, or
on behalf of, the parties hereto. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
4.5 Assignment. This Agreement and all of the provisions hereof shall
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be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that neither this
Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by either of the parties by operation of law or otherwise
without the prior written consent of the other party .
4.6 Specific Performance. The parties hereto agree that irreparable
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damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
4.7 Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of California applicable to contracts
executed in and to be performed in that province and without regard to any
applicable conflicts of law principles.
4.8 Submission to Jurisdiction; Waivers; Consent to Service of
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Process. Each of iPrint and the Shareholder irrevocably agrees that any legal
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action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by another party hereto or
its successors or assigns shall be brought and determined only in a United
States District Court sitting in the County of Santa Clara, California, or in
the event (but only in the event) that no such court has subject matter
jurisdiction over such action or proceeding, in the courts of the State of
California. Each of iPrint and the Shareholder hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts in the event that any dispute arises out of this Agreement or
any transaction contemplated hereby. Any service of process to be made in such
action or proceeding may be made by delivery of process in accordance with the
notice provisions contained in Section 4.1. Each of iPrint and the Shareholder
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect to
this Agreement, (i) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure to
serve process in accordance with this Section 4.8, (ii) that it or its property
is exempt or immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise), and (iii) to the fullest extent permitted by applicable
law that (A) the suit, action or proceeding in any such court is brought in an
inconvenient forum, (B) the venue of such suit, action or proceeding is improper
and (C) this Agreement, or the subject matter hereof, may not be enforced in or
by such courts.
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4.9 Counterparts. This Agreement may be executed in one or more
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counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
4.10 Waiver of Jury Trial. Each party acknowledges and agrees that
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any controversy that may arise under this Agreement is likely to involve
complicated issues and, therefore, such party hereby irrevocably and
unconditionally waives any right that such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating to
this Agreement or the transactions contemplated by this Agreement. Each party
certifies and acknowledges (i) that such party understands and has considered
the implications of this waiver, (ii) that such party makes this waiver
voluntarily and (iii) such party has been induced to enter into this Agreement
by, among other things, the mutual waivers and certifications in this Section
4.10.
4.11 Termination. This Agreement and the Proxy, and all obligations
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of the parties hereunder and thereunder, shall terminate immediately, without
any further action being required, upon (i) any termination of the
Reorganization Agreement or (ii) the Effective Time, whichever first occurs.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
IPRINT TECHNOLOGIES, INC.
By:
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Name:
Title:
SHAREHOLDER
-------------------------------
Print Name:
--------------------
SHARES OF COMMON STOCK: ________________
SHARES SUBJECT TO OPTIONS,
WARRANTS AND OTHER RIGHTS ________________
[Signature Page to Voting Agreement]
EXHIBIT A
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IRREVOCABLE PROXY
The undersigned shareholder of Wood Alliance, Inc., a California
corporation ("Wood"), hereby irrevocably (to the fullest extent permitted by
law), but subject to the termination provisions hereof, appoints iPrint
Technologies, Inc., a Delaware corporation ("iPrint"), as the sole and exclusive
attorney and proxy of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of Wood that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Wood issued or
issuable in respect thereof on or after the date hereof (collectively, the
"Shares") in accordance with the terms of this Proxy. The Shares beneficially
owned by the undersigned Shareholder of Wood as of the date of this Proxy are
listed on the final page of this Proxy. Upon the undersigned's execution of
this Proxy, any and all prior proxies given by the undersigned with respect to
any Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares.
This Proxy is irrevocable (to the fullest extent permitted by law), subject
to the termination provisions hereof, is coupled with an interest and is granted
pursuant to that certain Voting Agreement of even date herewith by and between
iPrint and the undersigned shareholder (the "Voting Agreement"), and is granted
in consideration of iPrint entering into that certain Agreement and Plan of
Reorganization (the "Reorganization Agreement"), between iPrint and Wood. The
Reorganization Agreement provides for the acquisition of Wood by iPrint pursuant
to a merger of a wholly-owned subsidiary of iPrint with and into Wood (the
"Combination").
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned to act as the undersigned's attorney
and proxy to vote the Shares, and to exercise all voting, consent and similar
rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents) at every annual,
special or adjourned meeting of shareholders of Wood and in every written
consent in lieu of such meeting: (i) in favor of the Wood Proposal (as defined
in the Reorganization Agreement); (ii) against any proposal for any Wood
Acquisition Transaction (as defined in the Voting Agreement) or any other action
or agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Wood under the Reorganization
Agreement or which would result in any of the conditions to Wood's obligations
under the Reorganization Agreement not being fulfilled; and (iii) in favor of
any other matter relating to consummation of the transactions provided for by
the Reorganization Agreement.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned Shareholder may vote the
Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law), subject
to the termination provisions hereof.
This Proxy, and all obligations of the undersigned hereunder, shall
terminate immediately, without any further action being required, upon (i) any
termination of the Reorganization Agreement or (ii) the Effective Time (as that
term is defined in the Reorganization Agreement), whichever first occurs.
Dated: ____________, 2001
SHAREHOLDER
By:
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Print Name:
Shares beneficially owned:
________________ shares of Wood Common Stock
[Signature Page to Irrevocable Proxy]
