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 exer
