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EXHIBIT 1
FORM OF PROXY AND VOTING AGREEMENT
[attached]
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PROXY AND VOTING AGREEMENT
PROXY AND VOTING AGREEMENT, dated as of July ____, 2001 (this "Agreement"),
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among Corel Corporation, a Canadian corporation ("Corel"), Calgary I Acquisition
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Corp., a Delaware corporation ("Sub"), Micrografx, Inc., a Texas corporation
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("Micrografx"), and the individual shareholders of Micrografx listed on Schedule
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A hereto (collectively, the "Principals"). As used in this Agreement, the term
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"Principal" means, with respect to each person listed on Schedule A hereto, such
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person.
Corel, Sub and Micrografx are parties to a Merger Agreement dated July
____, 2001 (the "Merger Agreement"; capitalized terms not defined herein shall
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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
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Common Stock or Micrografx's outstanding Series A Preferred Stock ("Micrografx
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Stock") and securities convertible into Micrografx Stock as indicated on
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Schedule A, which Schedule A sets forth the nature of such ownership.
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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,
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the "Shares"), subject to no rights of others and free and clear of all security
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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.
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(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 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
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
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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
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such shares set forth therein in accordance with this Section 2 and each
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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").
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(d) The Principals, Corel and Micrografx shall use commercially
reasonable efforts to cause the agreements in this Section 2 to be appropriately
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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.
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
CUSIP NO. ▇▇▇▇▇▇▇▇▇ Page 15 of 21 Pages
telecopier numbers set forth in Schedule A for the Principals. All such notices,
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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.
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
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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]
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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:
CUSIP NO. ▇▇▇▇▇▇▇▇▇ Page 18 of 21 Pages
Schedule A
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Number of Number of Micrografx Amount of
Name of Record Micrografx Common Series A Preferred Micrografx Options/
Owner Stock Stock Convertible Notes Warrants
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CUSIP NO. ▇▇▇▇▇▇▇▇▇ Page 19 of 21 Pages
EXHIBIT A
IRREVOCABLE PROXY
Each of the undersigned shareholders of Micrografx, Inc., a Texas
corporation ("Micrografx"), hereby irrevocably (to the fullest extent provided
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by law, but subject to automatic termination and revocation as provided below)
appoints Corel Corporation, a Canadian corporation ("Corel"), or any designee of
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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 ____, 2001, among
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Corel, Calgary I Acquisition Corp., Micrografx and the individual stockholders
listed on Schedule A thereto, as the same may be amended from time to time (the
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"Proxy and Voting Agreement", capitalized terms not otherwise defined herein
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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").
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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
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"Termination Date") and the Closing Date of the Merger Agreement (such earlier
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date being hereinafter referred to as the "Proxy Termination Date"). This proxy
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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.
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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.
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):___________________________