{"id":43414,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/form-of-support-agreement-oracle-corp-and-concentra-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"form-of-support-agreement-oracle-corp-and-concentra-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/form-of-support-agreement-oracle-corp-and-concentra-corp.html","title":{"rendered":"Form of Support Agreement &#8211; Oracle Corp. and Concentra Corp."},"content":{"rendered":"<pre>\n                          FORM OF SUPPORT AGREEMENT\n\n     THIS SUPPORT AGREEMENT (this \"Agreement\") is made and entered into as of\nNovember 10, 1998, by and between Oracle Corporation, a Delaware corporation\n(\"Parent\"), and ________________ (\"Seller\").\n\n                                   RECITALS\n\n     A.  Concurrently with the execution and delivery of this Agreement, Parent,\nKL Acquisition Corporation (the \"Purchaser\"), a Delaware corporation and a\n                                 ---------                                \nwholly owned subsidiary of Parent, and Concentra Corporation, a Delaware\ncorporation (the \"Company\"), are entering into an Agreement and Plan of Merger\n                  -------                                                     \nof even date herewith (the \"Merger Agreement\"), pursuant to which the Purchaser\n                            ----------------                                   \nagrees to make a tender offer (the \"Offer\") for all outstanding shares (the\n                                                                           \n\"Shares\") of Common Stock of the Company, par value $0.00001 per share (the\n-------                                                                    \n\"Company Common Stock\"), and the associated Series A Participating Cumulative\n---------------------                                                        \nPreferred Stock purchase rights (collectively, the \"Rights\") issued pursuant to\n                                                    ------                     \nthe Rights Agreement between the Company and First National Bank of Boston, as\nRights agent, dated as of April 24, 1997 (the \"Rights Agreement\"), at a price of\n                                               ----------------                 \n$7.00 per Share (the \"Offer Price\") net to the seller in cash, to be followed by\n                      -----------                                               \na merger (the \"Merger\") of the Purchaser with and into the Company (capitalized\nterms used but not defined herein shall have the meanings set forth in the\nMerger Agreement);\n\n     B.  As of the date hereof, Seller beneficially owns directly __________\nShares and their associated Rights (the \"Owned Shares\"); and\n                                         ------------       \n\n     C.  As a condition to their willingness to enter into the Merger Agreement\nand make the Offer, Parent and the Purchaser have required that Seller agree,\nand, in order to facilitate the Offer and the Merger, Seller is willing to\nagree, (i) to tender pursuant to the Offer the Owned Shares, together with any\nShares (and associated Rights) acquired after the date hereof and prior to the\ntermination of the Offer, whether upon the exercise of options, conversion of\nconvertible securities or otherwise (collectively, the \"Tender Shares\"), on the\nterms and subject to the conditions provided for in this Agreement, and (ii) to\nenter into the other agreements set forth herein.\n\n     NOW, THEREFORE, in consideration of the premises and for other good and\nvaluable consideration given to each party hereto, the receipt of which is\nhereby acknowledged, the parties agree as follows:\n\n     1.  Agreement to Tender and Vote.\n         ---------------------------- \n\n          1.1  Tender.  Seller hereby agrees to use its best efforts to assist\n               ------                                                         \nin the tender offer process so as to achieve as large an amount of tendered\nshares as possible (provided, however, that Seller shall not be required to\nexpend significant funds in connection with such\n\n \nassistance), including, without limitation, to validly tender (or cause the\nrecord owner of such shares to validly tender) the Tender Shares pursuant to\nand in accordance with the terms of the Offer, as soon as practicable after\ncommencement of the Offer (but in no event later than five business days after\nthe filing of the Offer Documents with the SEC, in the case of the Owned\nShares, or the first business day following their acquisition, in the case of\nany other Tender Shares), by physical delivery of the certificates therefor and\nto not withdraw such Tender Shares, except following termination of this\nAgreement pursuant to Section 2 hereof.  Seller hereby acknowledges and agrees\nthat Parent's and the Purchaser's obligation to accept for payment and pay for\nthe Tender Shares is subject to the terms and conditions of the Offer.  Seller\nhereby agrees to permit Parent and the Purchaser to publish and disclose in the\nOffer Documents and, if approval of the Company's stockholders is required\nunder applicable law, the Proxy Statement (including all related documents and\nschedules filed with the SEC) his identity and ownership of the Tender Shares\nand the nature of his commitments, arrangements and understandings under this\nAgreement.\n\n          1.2  Voting.  Seller hereby agrees that, during the time this\n               ------                                                  \nAgreement is in effect, at any meeting of the stockholders of the Company,\nhowever called, Seller shall (a) vote the Tender Shares in favor of the Merger;\n(b) vote the Tender Shares against any action or agreement that would result in\na breach of any covenant, representation or warranty or any other obligation or\nagreement of the Company under the Merger Agreement; and (c) vote the Tender\nShares against any action or agreement (other than the Merger Agreement or the\ntransactions contemplated thereby) that would impede, interfere with, delay,\npostpone or attempt to discourage the Merger or the Offer, including, but not\nlimited to: (i) any extraordinary corporate transaction, such as a merger,\nconsolidation or other business combination involving the Company or any of its\nSubsidiaries; (ii) a sale or transfer of a material amount of assets of the\nCompany or any of its Subsidiaries, or a reorganization, recapitalization or\nliquidation of the Company and its Subsidiaries; (iii) any change in the\nmanagement or Board of Directors of the Company, except as otherwise agreed to\nin writing by Parent; (iv) any material change in the present capitalization or\ndividend policy of the Company; or (v) any other material change in the\nCompany's corporate structure or business.\n\n          1.3  Grant of Irrevocable Proxy; Appointment of Proxy.\n               ------------------------------------------------ \n\n          (a) Seller hereby irrevocably grants to, and appoints David J. Roux\nand Daniel Cooperman, or either of them, in their respective capacities as\nofficers of Parent, and any individual who shall hereafter succeed to any such\noffice of Parent, and each of them individually, Seller's proxy and attorney-in-\nfact (with full power of substitution), for and in the name, place and stead of\nSeller, to vote the Tender Shares in favor of the Merger and otherwise as\ncontemplated by Section 1.2.\n\n          (b) Seller represents that any proxies heretofore given in respect of\nthe Tender Shares are not irrevocable, and that any such proxies are hereby\nrevoked.\n\n          (c) Seller understands and acknowledges that Parent is entering into\nthe Merger Agreement in reliance, among other things, upon Seller's execution\nand delivery of\n\n                                     -2-\n\n \nthis Agreement.  Seller hereby affirms that the irrevocable proxy set forth in\nthis Section 1.3 is given in connection with the execution of the Merger\nAgreement, and that such irrevocable proxy is given to secure the performance\nof the duties of Seller under this Agreement.  Seller hereby further affirms\nthat the irrevocable proxy is coupled with an interest and may under no\ncircumstances be revoked.  Seller hereby ratifies and confirms all that such\nproxies and attorneys-in-fact may lawfully do or cause to be done by virtue\nhereof.  Such irrevocable proxy is executed and intended to be irrevocable in\naccordance with the provisions of Section 212(e) of the Delaware General\nCorporation Law.\n\n     1.4  No Inconsistent Arrangements.  Seller hereby covenants and agrees\n          ----------------------------                                     \nthat, except as contemplated by this Agreement and the Merger Agreement, it\nshall not:\n\n          (a) transfer (which term shall include, without limitation, any sale,\ngift, pledge or other disposition), or consent to any transfer of, any or all of\nthe Tender Shares or any interest therein; provided, however, that Seller may\n                                           --------  -------                 \ntransfer (i) the Tender Shares by will or intestacy, and (ii) up to 10% of the\nTender Shares as a bona fide gift or gifts, provided that prior to any such\npermitted transfer, each transferee shall agree in writing (in a form\nsatisfactory to Parent) that such transferee will receive and hold such Tender\nShares subject to the provisions of this Agreement;\n\n          (b) enter into any contract, option or other agreement or\nunderstanding with respect to any transfer of any or all of the Tender Shares or\nany interest therein;\n\n          (c) grant any proxy, power-of-attorney or other authorization in\nor with respect to any or all of the Tender Shares;\n\n          (d) deposit the Tender Shares into a voting trust or enter into a\nvoting agreement or arrangement with respect to the Tender Shares; or\n\n          (e) take any other action that would make any representation or\nwarranty of Seller hereunder untrue or incorrect.\n\n     1.5  Waiver of Appraisal Rights.  Seller hereby waives any rights of\n          --------------------------                                     \nappraisal or rights to dissent from the Merger that he may have under applicable\nlaw.\n\n     2.  Expiration.  This Agreement and Seller's obligation to tender and vote\n         ----------                                                            \nas provided herein shall terminate on the earlier of the payment for the Tender\nShares pursuant to the Offer and the termination of the Merger Agreement in\naccordance with its terms.\n\n     3.  Representation and Warranties.  Seller hereby represents and warrants\n         -----------------------------                                        \nto Parent as follows:\n\n          3.1  Title.  Seller has good and valid title to the Owned Shares and,\n               -----                                                           \nupon the acquisition thereof, will have good and valid title to any other Tender\nShares, in each case, free and clear of any lien, pledge, charge, encumbrance or\nclaim of whatever nature and, upon the\n\n                                     -3-\n\n \npurchase of the Tender Shares by the Purchaser, Seller will deliver good and\nvalid title to the Tender Shares, free and clear of any lien, charge,\nencumbrance or claim of whatever nature.\n\n          3.2  Ownership of Shares.  On the date hereof, the Owned Shares are\n               -------------------                                           \nowned of record or beneficially by Seller and, on the date hereof, the Owned\nShares constitute all of the Shares (and associated Rights) owned of record or\nbeneficially by Seller.  Seller has sole voting power and sole power of\ndisposition with respect to all of the Owned Shares, with no restrictions,\nsubject to applicable federal securities laws, on Seller's rights of disposition\npertaining thereto.\n\n          3.3  Power; Binding Agreement.  Seller has the legal capacity, power\n               ------------------------                                       \nand authority to enter into and perform all of his obligations under this\nAgreement.  The execution, delivery and performance of this Agreement by Seller\nwill not violate any other agreement to which Seller is a party including,\nwithout limitation, any voting agreement, stockholders agreement or voting\ntrust.  This Agreement has been duly and validly executed and delivered by\nSeller and constitutes a valid and binding agreement of Seller, enforceable\nagainst Seller in accordance with its terms.\n\n          3.4  No Conflicts.  Other than in connection with or in compliance\n               ------------                                                 \nwith the provisions of the Exchange Act and the HSR Act, no authorization,\nconsent or approval of, or filing with, any court or any public body or\nauthority is necessary for the consummation by Seller of the transactions\ncontemplated by this Agreement.  The execution, delivery and performance of this\nAgreement and the consummation of the transactions contemplated hereby will not\nconstitute a breach, violation or default (or any event which, with notice or\nlapse of time or both, would constitute a default) under, or result in the\ntermination of, or accelerate the performance required by, or result in a right\nof termination or acceleration under, or result in the creation of any lien,\nencumbrance, pledge, charge or claim upon any of the properties or assets of\nSeller under, any note, bond, mortgage, indenture, deed of trust, license,\nlease, agreement or other instrument to which Seller is a party or by which his\nor her properties or assets are bound.\n\n     4.  Additional Shares.  Seller hereby agrees, while this Agreement is in\n         -----------------                                                   \neffect, to promptly notify Parent of the number of any Shares (and associated\nRights) acquired by Seller after the date hereof.\n\n     5.  Further Assurances.  From time to time, at Parent's request and without\n         ------------------                                                     \nfurther consideration, Seller shall execute and deliver such additional\ndocuments and take all such further action as may be reasonably necessary or\ndesirable to consummate and make effective the transactions contemplated by\nSection 1 of this Agreement.\n\n     6.  Miscellaneous.\n         ------------- \n\n          6.1  Survival of Representations.  The representations and warranties\n               ---------------------------                                     \nmade herein shall survive the sale of the Tender Shares and the termination of\nthis Agreement.\n\n          6.2  Entire Agreement; Assignment.  This Agreement (a) constitutes the\n               ----------------------------                                     \nentire agreement between the parties with respect to the subject matter hereof\nand supersedes all other prior agreements and understandings, both written and\noral, between the parties with respect to\n\n                                     -4-\n\n \nthe subject matter hereof and (b) shall not be assigned by operation of law or\notherwise, provided that Parent may assign its rights and obligations hereunder\nto any direct or indirect wholly owned subsidiary of Parent, but no such\nassignment shall relieve Parent of its obligations hereunder if such assignee\ndoes not perform such obligations.\n\n          6.3  Amendments.  This Agreement may not be modified, amended, altered\n               ----------                                                       \nor supplemented, except upon the execution and delivery of a written agreement\nexecuted by the parties hereto.\n\n          6.4  Notices.  All notices, requests, claims, demands and other\n               -------                                                   \ncommunications hereunder shall be in writing and shall be given by hand delivery\nor telecopy or by any courier service, such as Federal Express, providing proof\nof delivery. All communications hereunder shall be delivered to the respective\nparties at the following addresses:\n\n     If to Seller:\n\n          [address]\n\n\n     copy to:\n\n          Peabody &amp; Arnold LLP\n          50 Rowes Wharf\n          Boston, MA 02110\n          Attn:  William E. Kelly\n\n     If to Parent:\n\n          Oracle Corporation\n          500 Oracle Parkway\n          Redwood City, CA 94065\n          Attn:  Daniel S. Cooperman,\n          Senior Vice President, General\n          Counsel and Secretary\n\n     copy to:\n\n          Venture Law Group\n          A Professional Corporation\n          2800 Sand Hill Road\n          Menlo Park, CA 94025\n          Attn:  Donald M. Keller, Jr.\n\nor to such other address as the person to whom notice is given may have\npreviously furnished to the others in writing in the manner set forth above.\n \n                                     -5-\n\n \n          6.5  Governing Law.  This Agreement shall be governed by and construed\n               -------------                                                    \nin accordance with the laws of the State of Delaware, regardless of the laws\nthat might otherwise govern under applicable principles of conflicts of laws\nthereof.\n\n          6.6  Specific Performance.  Seller recognizes and acknowledges that a\n               --------------------                                            \nbreach by him or her of any covenants or agreements contained in this Agreement\nwill cause Parent to sustain damages for which it would not have an adequate\nremedy at law for money damages, and therefore Seller agrees that in the event\nof any such breach, Parent shall be entitled to the remedy of specific\nperformance of such covenants and agreements and injunctive and other equitable\nrelief in addition to any other remedy to which it may be entitled, at law or in\nequity.\n\n          6.7  Counterparts.  This Agreement may be executed in two\n               ------------                                        \ncounterparts, each of which shall be deemed to be an original, but both of which\nshall constitute one and the same Agreement.\n\n          6.8  Descriptive Headings.  The descriptive headings used herein are\n               --------------------                                           \ninserted for convenience of reference only and are not intended to be part of or\nto affect the meaning or interpretation of this Agreement.\n\n          6.9  Severability.  Whenever possible, each provision or portion of\n               ------------                                                  \nany provision of this Agreement will be interpreted in such manner as to be\neffective and valid under applicable law but if any provision or portion of any\nprovision of this Agreement is held to be invalid, illegal or unenforceable in\nany respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability will not affect any other provision\nor portion of any provision in such jurisdiction, and this Agreement will be\nreformed, construed and enforced in such jurisdiction as if such invalid,\nillegal or unenforceable provision or portion of any provision had never been\ncontained herein.\n\n          6.10  Seller Capacity.  By executing this Agreement no person who is\n                ---------------                                               \nor becomes during the term hereof a director or officer of the Company makes any\nagreement or understanding in his or her capacity as such officer or director.\nSeller signs solely in his or its capacity as a shareholder and nothing in this\nAgreement shall limit or affect any actions taken by Seller in his or its\ncapacity as an officer or director of the Company or as an entity employing or\notherwise controlling one or more officers or directors of the Company.\n\n                                     -6-\n\n \n     IN WITNESS WHEREOF, Parent and Seller have caused this Agreement to be duly\nexecuted as of the day and year first above written.\n\n                                    PARENT:\n\n                                    By: __________________________\n\n                                    Name: ________________________\n\n                                    Date: ________________________\n\n\n                                    SELLER:\n\n                                    By: __________________________\n\n                                    Name: ________________________\n\n                                    Date: ________________________\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7173,8419],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43414","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-concentra-corp","corporate_contracts_companies-oracle-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43414","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43414"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43414"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43414"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43414"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}