Exhibit C
PROXY AND VOTING AGREEMENT
PROXY AND VOTING AGREEMENT, dated as of July , 2001 (this "Agreement"),
among Corel Corporation, a Canadian corporation ("Corel"), Calgary I
Acquisition Corp., a Delaware corporation ("Sub"), Micrografx, Inc., a Texas
corporation ("Micrografx"), and the individual shareholders of Micrografx
listed on Schedule A hereto (collectively, the "Principals"). As used in this
Agreement, the term "Principal" means, with respect to each person listed on
Schedule A hereto, such person.
Corel, Sub and Micrografx are parties to a Merger Agreement dated July ,
2001 (the "Merger Agreement"; capitalized terms not defined herein shall have
the meanings ascribed to them in the Merger Agreement), pursuant to which
Micrografx would be merged with and into Sub.
WHEREAS, each Principal is the record holder and/or beneficial owner (as
defined in rule 13d-3 under the Securities and Exchange Act of 1934, as amended
(the "Exchange Act")) of such number of shares of Micrografx's outstanding
Common Stock or Micrografx's outstanding Series A Preferred Stock ("Micrografx
Stock") and securities convertible into Micrografx Stock as indicated on
Schedule A, which Schedule A sets forth the nature of such ownership.
WHEREAS, Micrografx and Sub are entering into the Merger Agreement in
reliance upon the execution and delivery of this Agreement by the Principals;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Representations and Warranties. Each Principal represents and
warrants to Corel and Sub that:
(a) Each Principal owns, beneficially and/or of record, as of the date
hereof, the number of shares of Micrografx Stock or securities convertible
into Micrografx Stock set forth next to his name in Schedule A hereto
(collectively, the "Shares"), subject to no rights of others and free and
clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on the Principal's voting rights,
charges and other encumbrances of any nature whatsoever other than those
imposed by federal and state securities laws. On the date hereof, the
Shares constitute all of the shares of Micrografx Stock or securities
convertible into Micrografx Stock owned, beneficially and/or of record, by
each such Principal, other than shares of Micrografx Stock of which
Principal currently disclaims beneficial ownership in accordance with
applicable law. Principal's right to vote or dispose of the Shares owned,
beneficially and/or of record, by such Principal is not subject to any
voting trust, voting agreement, voting arrangement or proxy and such
Principal has not entered into any contract, option or other arrangement or
undertaking with respect thereto.
(b) Each Principal has the legal capacity to execute, deliver and
perform this Agreement and the Proxy (as defined in Section 2(c) below).
This Agreement constitutes a valid and binding obligation of each Principal
enforceable against such Principal in accordance with its terms. If such
Principal is an individual married and the Shares constitute community
property under applicable law, this Agreement has been duly authorized,
executed and delivered by, and constitutes the valid and binding agreement
of, the Principal's spouse enforceable against such spouse in accordance
with its terms. If such Principal is a person other than an individual,
such Principal has full power and authority to make, enter into and carry
out the terms of this Agreement and Proxy.
(c) The execution, delivery and performance by each Principal of this
Agreement and the consummation of the transactions contemplated hereby do
not and will not (i) result in any breach or violation of or be in conflict
with or constitute a default under the terms of any law, order, regulation
or
C-1
agreement or arrangement to which he is a party or by which he is bound,
(ii) require any filing with or authorization by any governmental entity,
or (iii) require any consent or other action by any person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration or to a loss of any benefit to which he is
entitled under any provision of any agreement or other instrument binding
on him.
(d) Each Principal does not beneficially own any Shares of Corel Common
Stock.
Section 2. Voting Agreement. (a) Until the Expiration Date (as defined in
Section 2(c) below), no Principal will assign, sell, pledge, hypothecate or
otherwise transfer or dispose of any of the shares of Micrografx Stock owned of
record and/or beneficially owned by such Principal, or any other securities of
Micrografx with respect to which he otherwise has the right to vote, or any
interest therein, deposit any of such shares or securities into a voting trust
or enter into a voting agreement or arrangement or grant any proxy with respect
thereto (except as contemplated by this Agreement and the Proxy) or enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect transfer or disposition of any of the shares of Micrografx
Stock. In the case of any transfer by operation of law, this Agreement shall be
binding upon the transferee.
(b) Each Principal will, with respect to those shares of Micrografx
Stock or other securities of Micrografx that such Principal either owns for
voting at the Micrografx Shareholders Meeting to be held for the purpose of
voting on the adoption of the Merger Agreement or for granting any written
consent in connection with the solicitation of written consents in lieu of
such a meeting or with respect to which such Principal otherwise controls
the vote, vote or cause to be voted such shares (or execute written
consents with respect to such shares) (i) to approve the Merger Agreement
and the transactions contemplated thereby, (ii) against any Alternative
Proposal and (iii) in favor of any other matter necessary for the
consummation of the transactions contemplated by the Merger Agreement.
(c) Each Principal acknowledges that concurrently with the execution of
this Agreement, such Principal has executed and delivered to Corel an
Irrevocable Proxy, pursuant to Section 2.29 of the Texas Business
Corporation Act, coupled with an interest, the form of which is attached
hereto as Exhibit A (the "Proxy"), so as to vote such shares set forth
therein in accordance with this Section 2 and each Principal hereby grants
to Corel such irrevocable proxy. The terms of this proxy shall expire upon
approval by the requisite vote of Micrografx's Shareholders at the
Micrografx Shareholders Meeting or at any adjournment thereof of the
adoption of the Merger Agreement or upon the earlier termination of the
Merger Agreement in accordance with the provisions thereof (the "Expiration
Date").
(d) The Principals, Corel and Micrografx shall use commercially
reasonable efforts to cause the agreements in this Section 2 to be
appropriately disclosed in filings with the SEC, including the Registration
Statement referred to in the Merger Agreement.
(e) Principal agrees that any shares of Micrografx Stock that Principal
purchases or with respect to which Principal otherwise acquires beneficial
ownership (as such term is defined in Rule 13d-3 under the Exchange Act)
after the execution of this Agreement and prior to the Expiration Date
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Micrografx Stock.
Section 3. No Solicitation. Prior to the Closing Date, no Principal shall,
and each Principal shall use best efforts to cause such Principal's affiliates
and Representatives not to, (i) initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any Alternative
Proposal, or engage in any negotiations concerning, or provide any confidential
information or otherwise facilitate any effort or attempt to make or implement,
any Alternative Proposal or (ii) become a member of a "group" (as such term is
used in Section 13(d) of the Exchange Act) with respect to any voting
securities of Micrografx with respect to an Alternative Proposal. The
Principals will promptly notify Corel and Micrografx if any such inquiries,
proposals or offers are received by, any such information is requested from, or
any such negotiations are sought to be initiated or continued with, such
Principal or any of such Persons.
C-2
Section 4. Binding Effect. All covenants, representations, warranties and
other stipulations in this Agreement and other documents referred to herein,
given by or on behalf of any of the parties hereto, shall bind and inure to the
benefit of the respective successors, heirs, personal representatives and
assigns of the parties hereto.
Section 5. Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior arrangements or understandings with respect hereto.
Section 6. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument and shall be deemed to have been duly given when delivered
in person, by telecopy, by nationally-recognized overnight courier, or by first
class registered or certified mail, postage prepaid, addressed to such party at
the address set forth below or such other address as may hereafter be
designated in writing by the addressee to the addressor at the address and
telecopier numbers set forth in the Merger Agreement, with respect to Corel,
Sub and Micrografx, and at the addresses and telecopier numbers set forth in
Schedule A for the Principals. All such notices, requests, consents and other
communications shall be deemed to have been delivered when received.
Section 7. Modifications; Amendments; Waivers. The terms and provisions of
this Agreement may not be modified or amended, nor any provision hereof waived,
except pursuant to a writing signed by the parties hereto (including their
assigns). No waiver by any party of any term of this Agreement in any one or
more instances shall be deemed or construed as a waiver of such term on any
future occasion.
Section 8. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.
Section 9. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
Section 10. Severability. It is the desire and intent of the parties that
the provisions of this Agreement be enforced to the fullest extent permissible
under the law and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any provision of this Agreement would be
held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn
so as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11. Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the State of Delaware, without giving effect to
principles governing conflicts of laws.
Section 12. Specific Performance: Remedies. The parties hereto agree that
irreparable 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 equity. Except as otherwise expressly provided for herein, no
remedy conferred by any of the specific provisions of this Agreement is
intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by any party hereto shall not constitute a
waiver by any such party of the right to pursue any other available remedies,
including specific performance and injunctive relief.
C-3
Section 13. Consent to Jurisdiction; Service of Process. Each of the parties
hereto hereby irrevocably submits to the exclusive jurisdiction of the courts
of the State of Delaware and to the jurisdiction of the United States District
Court for the District of Delaware or any court of the State of Delaware
located in the County of New Castle, for the purpose of any action or
proceeding arising out of or relating to this Agreement and each of the parties
hereto hereby irrevocably agrees that all claims in respect to such action or
proceeding shall be heard and determined exclusively in any Delaware state or
federal court. Each of the parties hereto agrees that a final judgment in any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each of the parties hereto irrevocably consents to the service of the summons
and complaint and any other process in any other action or proceeding relating
to the transactions contemplated by this Agreement, on behalf of itself or its
property, by personal delivery of copies of such process to such party. Nothing
in this Section 13 shall affect the right of any party to serve legal process
in any other manner permitted by law.
Section 14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES HERETO IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
Section 15. Further Assurances. Each party covenants and agrees to execute
and deliver any additional documents or take such further actions as may
reasonably be requested by another party to effect the purposes of this
Agreement.
Section 16. Termination. This Agreement and the Proxy delivered in
connection herewith shall terminate and have no further force or effect as of
the Expiration Date.
[Signature Page Immediately Follows]
C-4
IN WITNESS WHEREOF, the parties hereto have executed this Proxy and Voting
Agreement on the date first written above.
Corel Corporation
By:__________________________________
Name
Title
Calgary I Acquisition Corp.
By:__________________________________
Name:
Title:
Micrografx, Inc.
By:__________________________________
Name:
Title:
Principal:
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
C-5
Schedule A
Number of Number of Amount of
Name of Record Micrografx Micrografx Series A Micrografx Options/
Owner Common Stock Preferred Stock Convertible notes Warrants
-------------- ------------ ------------------- ----------------- --------
C-6
EXHIBIT A
IRREVOCABLE PROXY
Each of the undersigned shareholders of Micrografx, Inc., a Texas
corporation ("Micrografx"), hereby irrevocably (to the fullest extent provided
by law, but subject to automatic termination and revocation as provided below)
appoints Corel Corporation, a Canadian corporation ("Corel"), or any designee
of Corel, the attorney and proxy of the undersigned, with full power of
substitution and resubstitution, to the full extent of each of the
undersigned's rights with respect to the shares of capital stock of Micrografx
owned beneficially or of record by the undersigned, which shares are listed in
Schedule A to the Proxy and Voting Agreement dated as of July , 0000, xxxxx
Xxxxx, Xxxxxxx I Acquisition Corp., Micrografx and the individual stockholders
listed on Schedule A thereto, as the same may be amended from time to time (the
"Proxy and Voting Agreement", capitalized terms not otherwise defined herein
being used herein as therein defined), and any and all other shares or
securities of Micrografx issued or issuable with respect thereof or otherwise
acquired by the undersigned shareholders on or after the date hereof, until the
termination date specified in the Proxy and Voting Agreement (the "Shares").
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares are hereby revoked and no subsequent proxies will be
given as to the matters covered hereby prior to the earlier of the date of
termination of the Proxy and Voting Agreement pursuant to Section 16 thereof
(the "Termination Date") and the Closing Date of the Merger Agreement (such
earlier date being hereinafter referred to as the "Proxy Termination Date").
This proxy is irrevocable (to the fullest extent provided by law, but subject
to automatic termination and revocation as provided below), coupled with an
interest, and is granted in connection with the Proxy and Voting Agreement, and
is granted in consideration of the undersigned shareholders entering into the
Merger Agreement referred to therein.
The attorney and proxy named above will be empowered at any time prior to
the Proxy Termination Date to exercise all voting and other rights with respect
to the Shares (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 shareholders of Micrografx held prior
to the Proxy Termination Date and in connection with every solicitation of
written consents in lieu of such a meeting prior to the Proxy Termination Date,
or otherwise, to the extent that any of the following matters is considered and
voted on at any such meeting or in connection with any such consent
solicitation: (i) approval of the Merger Agreement, the execution and delivery
by Micrografx of the Merger Agreement and the approval of the terms thereof and
each of the further actions contemplated by the Merger Agreement, and any
actions required in furtherance thereof; (ii) against any action, any failure
to act, or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of
Micrografx or the undersigned under the Merger Agreement or the Proxy and
Voting Agreement (before giving effect to any materiality or similar
qualifications contained therein); (iii) against any Alternative Proposal and
(iv) in favor of any other matter necessary for the consummation of the
transactions contemplated by the Merger Agreement.
The attorney and proxy named above may only exercise this proxy to vote the
Shares subject hereto in accordance with the preceding paragraph, and may not
exercise this proxy in respect of any other matter. The undersigned may vote
the Shares (or grant one or more proxies to vote the Shares) on all other
matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned shareholders.
This proxy is irrevocable and coupled with an interest, but shall
automatically terminate and be revoked and be of no further force and effect on
and after the Proxy Termination Date.
C-7
This proxy is governed by and construed in accordance with the laws of the
State of Delaware.
Dated: July , 2001
By:
Name:
Title:
Number of Series A Preferred Stock: _
Number of Common Shares: ____________
Record Holder(s): ___________________
_____________________________________
By:
Name:
Title:
Number of Series A Preferred Stock: _
Number of Common Shares: ____________
Record Holder(s): ___________________
_____________________________________
By:
Name:
Title:
Number of Series A Preferred Stock: _
Number of Common Shares: ____________
Record Holder(s): ___________________
_____________________________________
C-8
