EXHIBIT 2.6
[FORM OF AGREEMENT]
METATOOLS, INC.
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of February
11, 1997, between Fractal Design Corporation, a California corporation (the
"COMPANY"), and the undersigned stockholder ("STOCKHOLDER") of MetaTools,
Inc., a Delaware corporation ("PARENT").
Recitals
A. Concurrently with the execution of this Agreement, the Company, Parent
and Rook Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), are entering into an Agreement and Plan
of Reorganization (the "MERGER AGREEMENT") which provides for the merger (the
"MERGER") of Merger Sub with and into the Company. Pursuant to the Merger,
shares of capital stock of the Company will be converted into Common Stock of
Parent on the basis described in the Merger Agreement.
B. The Stockholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")), of such number of shares of the outstanding Common Stock of
Parent as is indicated on the final page of this Agreement (the "SHARES").
C. As a material inducement to enter into the Merger Agreement, the Company
desires the Stockholder to agree, and the Stockholder is willing to agree to
vote the Shares and any other such shares of capital stock of Parent so as to
facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as follows:
1. Agreement to Vote Shares: Additional Purchases.
1.1 Agreement to Vote Shares. At every meeting of the stockholders of
Parent called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of
the stockholders of Parent with respect to any of the following Stockholder
shall vote the Shares and any New Shares in favor of approval of (x) the
amendment of Parent's Certificate of Incorporation to increase its
authorized share capital to allow for the issuance of shares of its Common
Stock by virtue of the Merger, (y) the issuance of shares of such Common
Stock by virtue of the Merger and (z) any matter that could reasonably be
expected to facilitate the Merger.
1.2 Additional Purchases. Stockholder agrees that any shares of capital
stock of Parent that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of
this Agreement and prior to the Expiration Date ("NEW SHARES") shall be
subject to the terms and conditions of this Agreement to the same extent as
if they constituted Shares.
2. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the "PROXY"), which shall be irrevocable, with the total number of
shares of capital stock of Parent beneficially owned (as such term is defined
in Rule 13d-3 under the Exchange Act) by Stockholder set forth therein.
3. Representations and Warranties of the Stockholder. Stockholder (i) is the
beneficial owner of the Shares, which at the date hereof are free and clear of
any liens, claims, options, charges or other encumbrances; (ii) does not
beneficially own any shares of capital stock of Parent other than the Shares
(excluding shares as to which Stockholder currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement.
4. Additional Documents. Stockholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the reasonable
opinion of the Company or Stockholder, as the case may be, to carry out the
intent of this Agreement.
5. Consent and Waiver. Stockholder hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of
any agreements to which Stockholder is a party or pursuant to any rights
Stockholder may have.
6. Termination. This Agreement shall terminate and shall have no further
force or effect as of the earlier to occur of (i) such date and time as the
Merger shall become effective in accordance with the terms and provisions of
the Merger Agreement or (ii) such date and time as the Merger Agreement shall
have been terminated pursuant to Article VII thereof.
7. Miscellaneous.
7.1 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
7.2 Binding Effect and Assignment. This Agreement and all of the
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.
7.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of
a written agreement executed by the parties hereto.
7.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Company will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that,
in addition to any other remedies that may be available to the Company upon
any such violation, the Company shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by
any other means available to the Company at law or in equity.
7.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight
courier (prepaid) to the respective parties as follows:
If to the Company:Fractal Design Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President and Chief Executive Officer
With a copy to:Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
If to the Stockholder:To the address for notice set forth on the last
page hereof.
With a copy to:▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
2
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
7.6 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of California
(without regard to the principles of conflict of laws thereof).
7.7 Entire Agreement. This Agreement contains the entire understanding of
the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such
subject matter.
7.8 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
7.9 Effect of Headings. The section headings herein are for convenience only
and shall not affect the construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly
executed on the date and year first above written.
Fractal Design Corporation
By: _________________________________
Title: ______________________________
Stockholder:
By: _________________________________
Stockholder's Address for Notice:
_____________________________________
_____________________________________
_____________________________________
Shares of Common Stock
Beneficially Owned:
***METATOOLS VOTING AGREEMENT***
3
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of MetaTools, Inc., a Delaware corporation
("PARENT"), hereby irrevocably appoints the directors on the Board of
Directors of Fractal Design Corporation, a California corporation (the
"COMPANY"), and each of them, as the sole and exclusive attorneys and proxies
of the undersigned, with full power of substitution and resubstitution, to the
full extent of the undersigned's rights with respect to the shares of capital
stock of Parent beneficially owned by the undersigned, which shares are listed
on the final page of this Proxy (the "SHARES"), and any and all other shares
or securities issued or issuable in respect thereof on or after the date
hereof, until such time as that certain Agreement of Merger and Plan of
Reorganization dated as of February 11, 1997 (the "MERGER AGREEMENT"), among
Parent, Rook Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), and the Company, shall be terminated in
accordance with its terms or the Merger (as defined in the Merger Agreement)
is effective. Upon the execution hereof, all prior proxies given by the
undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof
are hereby revoked and no subsequent proxies will be given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement dated
as of February 11, 1997 between the Company and the undersigned stockholder
(the "VOTING AGREEMENT"), and is granted in consideration of the Company
entering into the Merger Agreement. The attorneys and proxies named above will
be empowered at any time prior to termination of the Merger Agreement to
exercise all voting and other rights (including, without limitation, the power
to execute and deliver written consents with respect to the Shares) of the
undersigned at every annual, special or adjourned meeting of Parent
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, in favor of approval of (x) the amendment of Parent's Certificate
of Incorporation to increase its authorized share capital to allow for the
issuance of shares of its Common Stock by virtue of the Merger, (y) the
issuance of shares of such Common Stock by virtue of the Merger and (z) any
matter that could reasonably be expected to facilitate the Merger.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the stockholders of
the Company and in every written consent in lieu of such meeting, in favor of
approval of (x) the amendment of Parent's Certificate of Incorporation to
increase its authorized share capital to allow for the issuance of shares of
its Common Stock by virtue of the Merger, (y) the issuance of shares of such
Common Stock by virtue of the Merger and (z) any matter that could reasonably
be expected to facilitate the Merger. The undersigned stockholder 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.
Dated: February 11, 1997
Signature of Stockholder: ___________________________________
Print Name of Stockholder: ____________________________________
_____________Shares of Common Stock Beneficially Owned
***METATOOLS PROXY***
1
