Exhibit (c)(2)
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FORM OF SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this "Agreement") is made and entered into as of
November 10, 1998, by and between Oracle Corporation, a Delaware corporation
("Parent"), and ________________ ("Seller").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, Parent,
KL Acquisition Corporation (the "Purchaser"), a Delaware corporation and a
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wholly owned subsidiary of Parent, and Concentra Corporation, a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
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of even date herewith (the "Merger Agreement"), pursuant to which the Purchaser
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agrees to make a tender offer (the "Offer") for all outstanding shares (the
"Shares") of Common Stock of the Company, par value $0.00001 per share (the
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"Company Common Stock"), and the associated Series A Participating Cumulative
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Preferred Stock purchase rights (collectively, the "Rights") issued pursuant to
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the Rights Agreement between the Company and First National Bank of Boston, as
Rights agent, dated as of April 24, 1997 (the "Rights Agreement"), at a price of
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$7.00 per Share (the "Offer Price") net to the seller in cash, to be followed by
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a merger (the "Merger") of the Purchaser with and into the Company (capitalized
terms used but not defined herein shall have the meanings set forth in the
Merger Agreement);
B. As of the date hereof, Seller beneficially owns directly __________
Shares and their associated Rights (the "Owned Shares"); and
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C. As a condition to their willingness to enter into the Merger Agreement
and make the Offer, Parent and the Purchaser have required that Seller agree,
and, in order to facilitate the Offer and the Merger, Seller is willing to
agree, (i) to tender pursuant to the Offer the Owned Shares, together with any
Shares (and associated Rights) acquired after the date hereof and prior to the
termination of the Offer, whether upon the exercise of options, conversion of
convertible securities or otherwise (collectively, the "Tender Shares"), on the
terms and subject to the conditions provided for in this Agreement, and (ii) to
enter into the other agreements set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and Vote.
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1.1 Tender. Seller hereby agrees to use its best efforts to assist
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in the tender offer process so as to achieve as large an amount of tendered
shares as possible (provided, however, that Seller shall not be required to
expend significant funds in connection with such
assistance), including, without limitation, to validly tender (or cause the
record owner of such shares to validly tender) the Tender Shares pursuant to
and in accordance with the terms of the Offer, as soon as practicable after
commencement of the Offer (but in no event later than five business days after
the filing of the Offer Documents with the SEC, in the case of the Owned
Shares, or the first business day following their acquisition, in the case of
any other Tender Shares), by physical delivery of the certificates therefor and
to not withdraw such Tender Shares, except following termination of this
Agreement pursuant to Section 2 hereof. Seller hereby acknowledges and agrees
that Parent's and the Purchaser's obligation to accept for payment and pay for
the Tender Shares is subject to the terms and conditions of the Offer. Seller
hereby agrees to permit Parent and the Purchaser to publish and disclose in the
Offer Documents and, if approval of the Company's stockholders is required
under applicable law, the Proxy Statement (including all related documents and
schedules filed with the SEC) his identity and ownership of the Tender Shares
and the nature of his commitments, arrangements and understandings under this
Agreement.
1.2 Voting. Seller hereby agrees that, during the time this
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Agreement is in effect, at any meeting of the stockholders of the Company,
however called, Seller shall (a) vote the Tender Shares in favor of the Merger;
(b) vote the Tender Shares against any action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (c) vote the Tender
Shares against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger or the Offer, including, but not
limited to: (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
Subsidiaries; (ii) a sale or transfer of a material amount of assets of the
Company or any of its Subsidiaries, or a reorganization, recapitalization or
liquidation of the Company and its Subsidiaries; (iii) any change in the
management or Board of Directors of the Company, except as otherwise agreed to
in writing by Parent; (iv) any material change in the present capitalization or
dividend policy of the Company; or (v) any other material change in the
Company's corporate structure or business.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) Seller hereby irrevocably grants to, and appoints Xxxxx X. Xxxx
and Xxxxxx Xxxxxxxxx, or either of them, in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them individually, Seller's proxy and attorney-in-
fact (with full power of substitution), for and in the name, place and stead of
Seller, to vote the Tender Shares in favor of the Merger and otherwise as
contemplated by Section 1.2.
(b) Seller represents that any proxies heretofore given in respect of
the Tender Shares are not irrevocable, and that any such proxies are hereby
revoked.
(c) Seller understands and acknowledges that Parent is entering into
the Merger Agreement in reliance, among other things, upon Seller's execution
and delivery of
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this Agreement. Seller hereby affirms that the irrevocable proxy set forth in
this Section 1.3 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of Seller under this Agreement. Seller hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Seller hereby ratifies and confirms all that such
proxies and attorneys-in-fact may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212(e) of the Delaware General
Corporation Law.
1.4 No Inconsistent Arrangements. Seller hereby covenants and agrees
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that, except as contemplated by this Agreement and the Merger Agreement, it
shall not:
(a) transfer (which term shall include, without limitation, any sale,
gift, pledge or other disposition), or consent to any transfer of, any or all of
the Tender Shares or any interest therein; provided, however, that Seller may
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transfer (i) the Tender Shares by will or intestacy, and (ii) up to 10% of the
Tender Shares as a bona fide gift or gifts, provided that prior to any such
permitted transfer, each transferee shall agree in writing (in a form
satisfactory to Parent) that such transferee will receive and hold such Tender
Shares subject to the provisions of this Agreement;
(b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Tender Shares or
any interest therein;
(c) grant any proxy, power-of-attorney or other authorization in
or with respect to any or all of the Tender Shares;
(d) deposit the Tender Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Tender Shares; or
(e) take any other action that would make any representation or
warranty of Seller hereunder untrue or incorrect.
1.5 Waiver of Appraisal Rights. Seller hereby waives any rights of
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appraisal or rights to dissent from the Merger that he may have under applicable
law.
2. Expiration. This Agreement and Seller's obligation to tender and vote
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as provided herein shall terminate on the earlier of the payment for the Tender
Shares pursuant to the Offer and the termination of the Merger Agreement in
accordance with its terms.
3. Representation and Warranties. Seller hereby represents and warrants
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to Parent as follows:
3.1 Title. Seller has good and valid title to the Owned Shares and,
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upon the acquisition thereof, will have good and valid title to any other Tender
Shares, in each case, free and clear of any lien, pledge, charge, encumbrance or
claim of whatever nature and, upon the
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purchase of the Tender Shares by the Purchaser, Seller will deliver good and
valid title to the Tender Shares, free and clear of any lien, charge,
encumbrance or claim of whatever nature.
3.2 Ownership of Shares. On the date hereof, the Owned Shares are
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owned of record or beneficially by Seller and, on the date hereof, the Owned
Shares constitute all of the Shares (and associated Rights) owned of record or
beneficially by Seller. Seller has sole voting power and sole power of
disposition with respect to all of the Owned Shares, with no restrictions,
subject to applicable federal securities laws, on Seller's rights of disposition
pertaining thereto.
3.3 Power; Binding Agreement. Seller has the legal capacity, power
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and authority to enter into and perform all of his obligations under this
Agreement. The execution, delivery and performance of this Agreement by Seller
will not violate any other agreement to which Seller is a party including,
without limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by
Seller and constitutes a valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms.
3.4 No Conflicts. Other than in connection with or in compliance
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with the provisions of the Exchange Act and the HSR Act, no authorization,
consent or approval of, or filing with, any court or any public body or
authority is necessary for the consummation by Seller of the transactions
contemplated by this Agreement. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
constitute a breach, violation or default (or any event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration under, or result in the creation of any lien,
encumbrance, pledge, charge or claim upon any of the properties or assets of
Seller under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which Seller is a party or by which his
or her properties or assets are bound.
4. Additional Shares. Seller hereby agrees, while this Agreement is in
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effect, to promptly notify Parent of the number of any Shares (and associated
Rights) acquired by Seller after the date hereof.
5. Further Assurances. From time to time, at Parent's request and without
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further consideration, Seller shall execute and deliver such additional
documents and take all such further action as may be reasonably necessary or
desirable to consummate and make effective the transactions contemplated by
Section 1 of this Agreement.
6. Miscellaneous.
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6.1 Survival of Representations. The representations and warranties
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made herein shall survive the sale of the Tender Shares and the termination of
this Agreement.
6.2 Entire Agreement; Assignment. This Agreement (a) constitutes the
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entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to
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the subject matter hereof and (b) shall not be assigned by operation of law or
otherwise, provided that Parent may assign its rights and obligations hereunder
to any direct or indirect wholly owned subsidiary of Parent, but no such
assignment shall relieve Parent of its obligations hereunder if such assignee
does not perform such obligations.
6.3 Amendments. This Agreement may not be modified, amended, altered
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or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
6.4 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given by hand delivery
or telecopy or by any courier service, such as Federal Express, providing proof
of delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Seller:
[address]
copy to:
Peabody & Xxxxxx LLP
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
If to Parent:
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx,
Senior Vice President, General
Counsel and Secretary
copy to:
Venture Law Group
A Professional Corporation
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
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6.5 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
6.6 Specific Performance. Seller recognizes and acknowledges that a
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breach by him or her of any covenants or agreements contained in this Agreement
will cause Parent to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore Seller agrees that in the event
of any such breach, Parent shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
6.7 Counterparts. This Agreement may be executed in two
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counterparts, each of which shall be deemed to be an original, but both of which
shall constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used herein are
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inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
6.9 Severability. Whenever possible, each provision or portion of
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any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
6.10 Seller Capacity. By executing this Agreement no person who is
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or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding in his or her capacity as such officer or director.
Seller signs solely in his or its capacity as a shareholder and nothing in this
Agreement shall limit or affect any actions taken by Seller in his or its
capacity as an officer or director of the Company or as an entity employing or
otherwise controlling one or more officers or directors of the Company.
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IN WITNESS WHEREOF, Parent and Seller have caused this Agreement to be duly
executed as of the day and year first above written.
PARENT:
By: __________________________
Name: ________________________
Date: ________________________
SELLER:
By: __________________________
Name: ________________________
Date: ________________________
