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EXHIBIT 10.55
FORM OF CORSAIR COMMUNICATIONS, INC.
STOCKHOLDER VOTING AGREEMENT
This Stockholder Voting Agreement (the "Agreement") is made and entered
into as of April 2,1998 by and among Corsair Communications, Inc., a Delaware
corporation ("Corsair"), Subscriber Computing, Inc., a Delaware corporation
("SCI"), and the undersigned stockholder (the "Stockholder") of Corsair.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
III. Concurrently with the execution of this Agreement, Corsair,
Anteater Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary
of Corsair ("Merger Sub"), and SCI have entered into an Agreement and Plan of
Reorganization, dated April 2, 1998 (the "Merger Agreement"), which provides,
among other things, for the merger (the "Merger") of Merger Sub with and into
SCI. Pursuant to the Merger Agreement, all of the issued and outstanding shares
of capital stock of SCI (the "SCI Capital Stock") and all of the outstanding
options and warrants to acquire shares of SCI Capital Stock will be converted
into the right to receive shares of the capital stock of Corsair (the "Corsair
Capital Stock") and options and warrants to acquire shares of Corsair Capital
Stock, respectively.
IV. The Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with
the right to vote or to direct the vote of such number of shares of Capital
Stock as indicated on the signature page of this Agreement (the "Shares").
V. In consideration of the execution of the Merger Agreement by SCI, the
Stockholder agrees to restrict the transfer or disposition of the Shares, or
other shares of Corsair Capital Stock acquired by the Stockholder hereafter and
prior to the Expiration Date (as defined in Section 1.1 below), agrees to vote
or to direct the vote of the Shares and any other such shares of Corsair Capital
Stock so as to facilitate consummation of the Merger, and agrees to grant SCI an
irrevocable proxy to vote the Shares and any other such shares of Corsair
Capital Stock upon the terms and subject to the conditions set forth herein.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the promises and
covenants contained herein and other good and valuable consideration the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
A. AGREEMENT TO RETAIN SHARES.
1. TRANSFER AND ENCUMBRANCE. The Stockholder agrees, during the
period beginning on the date hereof and ending on the Expiration Date, not to
transfer, sell, exchange, pledge or otherwise dispose of or encumber
(collectively, "Transfer") any of the Shares or any New Shares (as defined in
Section 1.2 below) except as otherwise allowed by Staff Accounting Bulletin 76
of the Securities and Exchange Commission. As used herein, the term "Expiration
Date" shall mean the earlier to occur of (i) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the Merger
Agreement or (ii) the termination of the Merger Agreement in accordance with its
terms.
2. NEW SHARES. The Stockholder agrees that any shares of Corsair
Capital Stock that the Stockholder purchases or with respect to which the
Stockholder otherwise acquires beneficial ownership with the right to vote or
direct the voting of such shares, after the date of this Agreement and prior to
the Expiration Date (collectively, the "New Shares"), shall be subject to the
terms and conditions of this Agreement to the same extent as if they constituted
Shares.
B. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders of
Corsair called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of Corsair with respect to any of the following, the Stockholder shall vote or
direct the vote of the Shares and any New Shares in favor of approval of the
Merger Agreement and the Merger and in favor of any matter that could reasonably
be expected to facilitate the Merger.
C. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to SCI a proxy, which shall be deemed to be
coupled with an interest, in the form attached as Annex A (the "Proxy"), which
shall be irrevocable to the extent permitted by applicable law, covering the
total number of Shares and New Shares of capital stock of Corsair beneficially
owned (as such term is defined in Rule 13d-3 under the Exchange Act) by the
Stockholder set forth therein.
D. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. The
Stockholder represents, warrants and covenants to SCI as follows: the
Stockholder (i) is the beneficial owner of the Shares, which at the date of this
Agreement and at all times up until the Expiration Date will be free and clear
of any liens, claims, options, charges or other encumbrances, (ii) does not
beneficially own any shares of Corsair Capital Stock other than the Shares
(excluding shares as
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to which Stockholder currently disclaims beneficial ownership in accordance with
applicable law), and (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
E. COVENANTS OF CORSAIR. Corsair hereby agrees and covenants that:
a. Corsair will not and will not cause its stock transfer agent
to, register the transfer of any of the Shares or New Shares on the stock
transfer ledger of Corsair at any time prior to the termination of this
Agreement pursuant to Section 10; and
b. Corsair agrees that any shares of Corsair Capital Stock
(including Corsair Common Stock) that the Stockholder purchases or with respect
to which the Stockholder otherwise acquires beneficial ownership after the date
of this Agreement and prior to the termination of this Agreement pursuant to
Section 10 shall be considered "New Shares" and subject to each of the terms and
conditions of this Agreement.
F. ADDITIONAL DOCUMENTS. The Stockholder and Corsair hereby covenant and
agree to execute and deliver any additional documents reasonably necessary or
desirable to carry out the purpose and intent of this Agreement.
G. CONSENT AND WAIVER. The Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreement to which the Stockholder is a party or pursuant to
any rights the Stockholder may have.
H. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
I. MISCELLANEOUS.
1. SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
2. BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by any of
the parties without the prior written consent of the other parties.
3. AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
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4. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties
acknowledge that SCI will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to SCI upon any such violation, SCI
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to SCI at law or
in equity.
5. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
a. If to Corsair, to:
Corsair Communications, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: CEO
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
b. If to SCI, to:
Subscriber Computing, Inc.
00000 Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attention: President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
c. If to the Stockholder, to the address set forth on
the last page hereof.
6. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall
be governed by, construed and enforced in accordance with the internal laws of
the State of Delaware, without giving effect to any choice or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware. Corsair and the Stockholder irrevocably submit to the
jurisdiction of any state or federal court sitting in the state of California in
any action or proceeding arising out of or related to this Agreement, and hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such state or federal court. The Stockholder hereby
irrevocably consents to the service of process which may be served in any such
action or proceeding by certified mail, return receipt requested, by delivering
a copy of such process to the Stockholder or by any other method permitted by
law.
7. ENTIRE AGREEMENT. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
8. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
CORSAIR COMMUNICATIONS, INC. STOCKHOLDER
Name:____________________________
By:___________________________ By:______________________________
Name:
Title: Title:___________________________
Stockholder's Address for Notice:
SUBSCRIBER COMPUTING, INC.
_________________________________
_________________________________
By:___________________________
Name:
Title: Shares beneficially owned:
_____ shares of Corsair Common Stock
[SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT]
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Annex A
IRREVOCABLE PROXY
TO VOTE
CORSAIR COMMUNICATIONS, INC. STOCK
The undersigned stockholder of Corsair Communications, Inc., a Delaware
corporation ("Corsair"), hereby irrevocably (to the fullest extent permitted by
applicable law) appoints the directors on the Board of Directors of Subscriber
Computing, Inc., a Delaware corporation ("SCI"), and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the fullest extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Corsair which now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Corsair issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned stockholder of
Corsair as of the date of this Proxy are listed on the final page of this Proxy,
along with the number(s) of the share certificate(s) which represent such
Shares. Upon the undersigned's execution of this Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned agrees not to grant any subsequent proxies with respect to
the Shares until after the Expiration Date (as defined below).
This Proxy is granted pursuant to that certain Stockholder Voting
Agreement, dated as of April 2, 1998, by and among Corsair, SCI and the
undersigned stockholder (the "Stockholder Agreement"), and is granted in
consideration of SCI entering into that certain Agreement and Plan of
Reorganization dated as of April 2, 1998 (the "Merger Agreement"), by and among
Corsair, SCI Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Corsair ("Merger Sub"), and SCI. The Merger Agreement provides,
among other things, for the merger of Merger Sub with and into SCI in accordance
with its terms (the "Merger"). As used herein, the term "Expiration Date" shall
mean the earlier to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement or
(ii) the termination of the Merger Agreement in accordance with its terms.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents pursuant to applicable law) at every annual, special or
adjourned meeting of the stockholders of Corsair and in every written consent in
lieu of any such meeting in favor of approval of the Merger Agreement and the
Merger and in favor of any matter that could reasonably be expected to
facilitate the Merger. The attorneys and
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proxies named above may not exercise this Irrevocable Proxy on any other matter
except as provided above. The undersigned stockholder may vote the Shares on all
other matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is deemed to be coupled with an interest and is irrevocable
(to the fullest extent permitted by Delaware Corporate Law). This Proxy shall
terminate, and be of no further force and effect, automatically upon the
Expiration Date.
Dated: ____________, 1998
Signature of Stockholder:_________________________
Print Name of Stockholder:________________________
Shares beneficially owned: Certificate Nos.
_____ shares of Corsair Common Stock ________________________
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