EXHIBIT 2.7
[FORM OF AGREEMENT]
FRACTAL DESIGN CORPORATION
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of February
11, 1997, between MetaTools, Inc., a Delaware corporation ("PARENT"), and the
undersigned shareholder ("SHAREHOLDER") of Fractal Design Corporation, a
California corporation (the "COMPANY").
Recitals
A. Concurrently with the execution of this Agreement, Parent, the Company
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 Shareholder 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
the Company as is indicated on the final page of this Agreement (the
"SHARES").
C. As a material inducement to enter into the Merger Agreement, Parent
desires the Shareholder to agree, and the Shareholder is willing to agree to
vote the Shares and any other such shares of capital stock of the Company 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 shareholders of the
Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of
the shareholders of the Company with respect to any of the following,
Shareholder shall vote the Shares and any New Shares in favor of (x)
approval of the Merger Agreement and the Merger and (y) any matter that
could reasonably be expected to facilitate the Merger.
1.2 Additional Purchases. Shareholder agrees that any shares of capital
stock of the Company that Shareholder purchases or with respect to which
Shareholder 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,
Shareholder 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 the Company beneficially owned (as
such term is defined in Rule 13d-3 under the Exchange Act) by Shareholder
set forth therein.
3. Representations and Warranties of the Shareholder. Shareholder (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 the Company other
than the Shares (excluding shares s to which Shareholder 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. Shareholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the reasonable
opinion of Parent or Shareholder, as the case may be, to carry out the intent
of this Agreement.
5. Consent and Waiver. Shareholder hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of
any agreements to which Shareholder is a party or pursuant to any rights
Shareholder 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 Parent 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
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent 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 Parent: MetaTools, Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attn: President and Chief Executive Officer
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxxx, Esq.
If to the Shareholder: To the address for notice set forth on the
last page hereof.
With a copy to: Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Esq.
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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.
PARENT
By:__________________________________
Title: President and Chief Executive
Officer
________________________________
SHAREHOLDER:
By:__________________________________
Shareholder's Address for Notice:
_____________________________________
_____________________________________
_____________________________________
_Shares of Common Stock Beneficially
Owned:
***FRACTAL VOTING AGREEMENT***
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder of Fractal Design Corporation, a California
corporation (the "COMPANY"), hereby irrevocably appoints the directors on the
Board of Directors of MetaTools, Inc., a Delaware corporation ("PARENT"), 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 the Company 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 Parent and the undersigned shareholder (the
"VOTING AGREEMENT"), and is granted in consideration of Parent 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 the Company shareholders, and in
every written consent in lieu of such a meeting, or otherwise, in favor of
approval of the Merger and the Merger Agreement and 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 shareholders of
the Company and in every written consent in lieu of such meeting, in favor of
approval of the Merger and the Merger Agreement and any matter that could
reasonably be expected to facilitate the Merger. 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.
Dated:February 11, 1997
Signature of Shareholder: ________________________________
Print Name of Shareholder: _______________________________
______ Shares of Common Stock Beneficially
Owned
***FRACTAL PROXY***
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