Exhibit 10.21
SHAREHOLDER SUPPORT
AGREEMENT
This SHAREHOLDER
SUPPORT AGREEMENT (this “ Agreement ”) is made
as of September 29, 2005, by and among StorCOMM, Inc., a
Delaware corporation (“ StorCOMM ”) and the
Shareholders named on Exhibit A hereto (each a “
Shareholder ”).
WHEREAS, each
Shareholder is, as of the date hereof, the record and beneficial
owner of the shares of Common Stock, no par value per share (the
“ Common Stock ”), of Creative Computer
Applications, Inc., a California corporation (“
CCA ”), set forth next to such Shareholder’s
name on Exhibit A hereto (with respect to each Shareholder,
such “ Shareholder’s Shares ”);
and
WHEREAS, CCA,
Xymed.com, Inc., a wholly owned subsidiary of CCA (“
Merger Sub ”), and StorCOMM concurrently herewith are
entering into an Agreement and Plan of Reorganization, dated as of
the date hereof (the “ Merger Agreement ”),
which provides, among other things, for the merger of Merger Sub
and StorCOMM upon the terms and subject to the conditions set forth
in the Merger Agreement (the “ Merger ”) (all
capitalized terms used herein but not defined have the respective
meanings as set forth in the Merger Agreement); and
WHEREAS, as a
condition to the willingness of StorCOMM to enter into the Merger
Agreement, and in order to induce StorCOMM to enter into the Merger
Agreement, each Shareholder has agreed to enter into this
Agreement.
NOW, THEREFORE, in
consideration of the execution and delivery by StorCOMM of the
Merger Agreement and the foregoing and the mutual representations,
warranties, covenants and agreements set forth herein and therein,
and 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 Shareholder hereby
severally but not jointly represents and warrants, to StorCOMM as
follows:
(a)
Such Shareholder is the record and the direct or indirect
beneficial owner of such Shareholder’s Shares.
(b)
This Agreement has been duly authorized, executed and delivered by
such Shareholder and constitutes the legal, valid and binding
obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, and (ii) the
availability of the remedy of specific performance or injunctive or
other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(c)
Neither the execution and delivery of this Agreement nor the
consummation by such Shareholder of the transactions contemplated
hereby will result in a violation
1
of, or a default (with
or without notice or lapse of time, or both) under, or conflict
with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Shareholder is
a party or bound or to which any of such Shareholder’s Shares
are subject. Consummation by such Shareholder of the transactions
contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to such
Shareholder or such Shareholder’s Shares.
(d)
Such Shareholder’s Shares and the certificates representing
such Shareholder’s Shares are now and at all times during the
term hereof will be held by such Shareholder, or by a nominee or
custodian for the benefit of such Shareholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances arising
hereunder.
(e)
Such Shareholder represents that such Shareholder has received and
reviewed a complete copy of the Merger Agreement.
SECTION 2.
Voting of Shares; Waiver of Appraisal Rights .
(a)
Each Shareholder hereby agrees that, during the term of this
Agreement, at any meeting (whether annual or special and whether or
not an adjourned or postponed meeting) of the holders of Common
Stock, however called, or in connection with any written consent of
the holders of Common Stock, such Shareholder will appear at the
meeting or otherwise cause all of such Shareholder’s Shares,
plus any shares of Common Stock acquired by such Shareholder after
the date hereof, to be counted as present thereat for purposes of
establishing a quorum and vote or consent (or cause to be voted or
consented) all of such Shareholder’s Shares, plus any shares
of Common Stock acquired by such Shareholder after the date hereof,
to be voted (i) in favor of adoption of the Merger Agreement
and (ii) against any action or agreement which would impede,
interfere, with or prevent the Merger, including any other
extraordinary corporate transaction, such as a merger, sale of
assets, issuance of capital stock, reorganization or liquidation
involving CCA and a third party or any other proposal of a third
party to acquire CCA.
(b)
Each Shareholder hereby waives, and agrees not to exercise or
assert, any applicable dissenters’ rights under California
Corpora
|
