FORM OF SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this "Agreement") is made and entered into as
of __________, 1998, by and between Oracle Corporation, a Delaware corporation
("Parent"), and ________________ ("Seller").
RECITALS
A. Concurrently with the execution and delivery of this Agreement,
Parent, AQX Acquisition (the "Purchaser"), a Delaware corporation and a
wholly-owned subsidiary of Parent, and Versatility Inc., a Delaware corporation
(the "Company"), are entering into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"), relating to the 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 (the "Owned Shares"); and
C. As a condition to their willingness to enter into the Merger
Agreement, Parent and the Purchaser have required that Seller agree, and, in
order to facilitate the Merger, Seller is willing to agree 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 Vote.
1.1 Voting. Subject to the provisions of Section 1.2 below, Seller
hereby agrees that, during the time this Agreement is in effect, at any meeting
of the stockholders of the Company, however called, Seller shall (a) vote all
Shares beneficially owned by Seller in favor of the Merger; (b) vote such 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 such 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, 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.
1.2 Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Seller hereby irrevocably grants to, and appoints David J.
Roux and Daniel Cooperman, 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 Shares beneficially owned by Seller in favor of
the Merger and otherwise as contemplated by Section 1.1.
(b) Seller represents that any proxies heretofore given in
respect of the Shares beneficially owned by Seller 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 this Agreement. Seller hereby affirms that the
irrevocable proxy set forth in this Section 1.2 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.
1.3 No Inconsistent Arrangements. Seller hereby covenants and agrees
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 Shares beneficially owned by Seller or any interest therein;
provided, however, that Seller may transfer (i) the Shares beneficially owned by
Seller by will or intestacy, and (ii) up to 10% of the Shares beneficially owned
by Seller 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 Shares
beneficially owned by Seller 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 Shares
beneficially owned by Seller or any interest therein;
(c) grant any proxy, power-of-attorney or other authorization in
or with respect to any or all of the Shares beneficially owned by Seller;
(d) deposit the Shares beneficially owned by Seller into a voting
trust or enter into a voting agreement or arrangement with respect to the Shares
beneficially owned by Seller; or
(e) take any other action that would make any representation or
warranty of Seller hereunder untrue or incorrect.
1.4 Waiver of Appraisal Rights. Seller hereby waives any rights of
appraisal or rights to dissent from the Merger that he may have under applicable
law.
2. Expiration. This Agreement shall terminate on the earlier of the
Effective Time and the termination of the Merger Agreement in accordance with
its terms.
3. Representation and Warranties. Seller hereby represents and warrants to
Parent as follows:
3.1 Title. Seller has good and valid title to the Owned Shares and,
upon the acquisition thereof, will have good and valid title to any other Shares
beneficially owned by Seller, in each case, free and clear of any lien, pledge,
charge, encumbrance or claim of whatever nature and, upon the purchase of the
Shares beneficially owned by Seller by the Purchaser, Seller will deliver good
and valid title to the Shares beneficially owned by Seller, 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
owned of record or beneficially by Seller and, on the date hereof, the Owned
Shares constitute all of the Shares 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 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 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
material 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 material 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
effect, to promptly notify Parent of the number of any Shares acquired by Seller
after the date hereof.
5. Further Assurances. From time to time, at Parent's request and without
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.
6.1 Entire Agreement; Assignment. This Agreement (a) constitutes the
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 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.
6.2 Amendments. 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.
6.3 Notices. All notices, requests, claims, demands and other
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:
[address]
If to Parent:
[address]
copy to:
[address]
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.
6.4 Governing Law. This Agreement shall be governed by and construed
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.
6.5 Specific Performance. Seller recognizes and acknowledges that a
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.
6.6 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original, but both of which shall
constitute one and the same Agreement.
6.7 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
6.8 Severability. Whenever possible, each provision or portion of 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.
6.9 Non-Survival. The representations and warranties made herein shall
terminate upon the Effective Time, other than Seller's representation and
warranty in Section 3.1, which shall survive the Merger.
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: