Exhibit 2.8
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[Form of Agreement]
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT, is entered into this 11th day of February,
1997 (the "AGREEMENT") by and between MetaTools, Inc., a Delaware corporation
("METATOOLS"), and ___________________ (the "EMPLOYEE").
BACKGROUND
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This Agreement is entered into in connection with and is ancillary to an
Agreement and Plan of Reorganization dated as of the date hereof (the "MERGER
AGREEMENT") among MetaTools, Fractal Design Corporation, a California
corporation ("FRACTAL") and Rook Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of MetaTools ("SUB"), pursuant to which MetaTools and
Fractal intend to enter into a business combination transaction to pursue their
long-term business strategies.
Employee is an executive employee and stockholder of Fractal and has been
actively involved in Fractal's business. MetaTools intends to continue the
business of Fractal after the Effective Time (as such term is defined in the
Merger Agreement) and to integrate such business into MetaTools's ongoing
business. To preserve and protect the assets of Fractal, including Fractal's
goodwill, customers and trade secrets of which Employee has knowledge, and to
preserve and protect MetaTools's goodwill and business interests going forward,
and as a material inducement for MetaTools to enter into the Merger Agreement,
Employee has agreed to enter into this Agreement.
Employee and MetaTools believe the limitations as to time, geographical
area and scope of activity contained in this Agreement are reasonably necessary
to, and no greater than that required to, protect the goodwill and business
interests purchased by MetaTools.
1. Noncompete. Beginning at the date hereof and until the date being
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thirty (30) months from the Effective Time (the "NONCOMPETITION PERIOD"),
Employee will not individually or as an employee, consultant, advisor,
independent contractor, partner, officer, director, stockholder or investor or
in any other capacity whatsoever of or for any person, firm, partnership,
company or corporation other than MetaTools or its subsidiaries:
(a) Own, manage, operate, sell, control or participate in the
ownership, management, operation, sales or control of or permit Employee's name
to be used in connection with any business engaged in the design, development,
manufacturing, licensing, sale, marketing or distribution of any computer
software products for any of the following markets in any of the geographical
areas referred to in Section 2 below: 3 dimensional paint, 2 dimensional paint
and composition, collaborative web paint, 2 dimensional illustration, 3
dimensional illustration, 3 dimensional modeling, human figure modeling, 2
dimensional image processing, 2 dimensional metaball and 3 dimensional metaball;
provided, however, that notwithstanding the foregoing, Employee may own,
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directly or indirectly, solely as a passive investment, up to one percent (1%)
of any class of securities of any such business which are traded on a
national securities exchange or listed on the National Association of Securities
Dealers Automated Quotation System;
(b) Recruit, attempt to hire, solicit, assist others in recruiting or
hiring, or refer to others concerning employment, in or with respect to any of
the geographical areas referred to in Section 3 below, any person who is an
employee of MetaTools, Fractal or any of their respective subsidiaries, or
induce or attempt to induce any such employee to terminate his or her employment
with MetaTools, Fractal or any of their respective subsidiaries.
2. Geographic Area. The geographical areas in which the restrictions
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provided for in this Agreement apply include all cities, counties and states of
the United States, and all other countries, in which Fractal or any of its
subsidiaries has engaged in licensing or sales or otherwise conducted business
or selling or licensing efforts at any time during the two years prior to the
date hereof. The agreement not to compete in each such geographic subdivision
is a separate and severable agreement from all such other agreements. Employee
acknowledges that the scope and period of restrictions and the geographical area
to which the restrictions imposed in this Section 2 applies are fair and
reasonable and are reasonably required for the protection of MetaTools.
3. Injunctions. Employee acknowledges that any breach of the covenants
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of this Agreement will result in immediate and irreparable injury to MetaTools
and, accordingly, consents to the application of injunctive relief and such
other equitable remedies for the benefit of MetaTools as may be appropriate in
the event such a breach occurs or is threatened. The foregoing remedies will be
in addition to all other legal remedies to which MetaTools may be entitled
hereunder, including, without limitation, monetary damages.
4. Confidential Information and Invention Assignment Agreement. Employee
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covenants that Employee shall sign a Company Confidential Information and
Assignment Agreement in substantially similar form to the agreements routinely
signed by other employees of the Company.
5. Miscellaneous.
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(a) Effective Time; Termination. This Agreement shall be effective
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as of the date hereof and shall terminate and be of no further effect when and
if the Merger Agreement is terminated pursuant to Article VII of the Merger
Agreement.
(b) Notices. Any and all notices permitted or required to be given
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under this Agreement must be in writing. Notices will be deemed given (i) when
personally received or when sent by facsimile transmission (to the receiving
party's facsimile number), (ii) on the first business day after having been sent
by commercial overnight courier with written verification of receipt, or (iii)
on the third business day after having been sent by registered or certified mail
from a location on the United States mainland, return receipt requested, postage
prepaid, whichever occurs first, at the address set forth below or at any new
address, notice of which will have been given in accordance with this Section
5(b):
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If to MetaTools: MetaTools, Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxxx, Esq.
If to Employee, at Employee's address in the personnel records of MetaTools.
(c) Entire Agreement; Amendments. This Agreement contains the entire
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agreement of all of the parties hereto and supersedes and replaces all prior
agreements between the parties concerning the subject matter hereof. This
Agreement may not be changed or modified in whole or in part except by a writing
signed by the party against whom enforcement of the change or modification is
sought.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
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MetaTools and MetaTools's successors and assigns.
(e) Governing Law. This Agreement will be governed by and interpreted
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according to the substantive laws of the State of California, without regard to
such State's conflicts law principles. The parties expressly stipulate that any
litigation under this Agreement shall be brought in the state courts of the
County of Santa Clara, California or in the United States District for the
Northern District of California. The parties agree to submit to the
jurisdiction and venue of those courts.
(f) No Waiver. The failure of either party to insist on strict compliance
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with any of the terms of this Agreement in any instance or instances will not be
deemed to be a waiver of any term of this Agreement or of that party's right to
require strict compliance with the terms of this Agreement in any other
instance.
(g) Severability. Employee and MetaTools recognize that the limitations
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contained herein are reasonably and properly required for the adequate
protection of the interests of MetaTools and therefore it is the intent of the
parties that the provisions of this Agreement be enforced to the fullest extent
permissible, under applicable law. If for any reason a court of competent
jurisdiction finds any provision of this Agreement, or the application thereof,
to be unenforceable, the remaining provisions of this Agreement will be
interpreted so as best to reasonably effect the intent of the parties as
articulated herein. The parties further agree that the court shall replace any
such invalid or unenforceable provisions with valid and enforceable provisions
designed to achieve, to the extent possible, the business purposes and intent of
such unenforceable provisions.
(h) Counterparts. This Agreement may be executed in counterparts which
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when taken together will constitute one instrument. Any copy of this Agreement
with the original signatures of all parties appended will constitute an
original.
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(i) Attorney's Fees. The prevailing party in any action to interpret
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or enforce this Agreement shall be entitled to receive its reasonable attorney's
fees and expenses incurred in connection with such action.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
METATOOLS, INC. EMPLOYEE
______________________________ _______________________________
By Signature
______________________________ _______________________________
Title Print Name
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