EXHIBIT 10.6
ASCEND DIRECTOR AND OFFICER
STOCK VOTING AGREEMENT
THIS ASCEND DIRECTOR AND OFFICER STOCK VOTING AGREEMENT ("Agreement" or
"Ascend Stock Voting Agreement") is made and entered into as of March 30, 1997
by and between Cascade Communications Corp., a Delaware corporation
("Cascade"), and the undersigned officer or director (the "Holder") of Ascend
Communications, Inc., a Delaware corporation ("Ascend").
Recitals
Cascade, Catskill Merger Corporation, a Delaware corporation and a wholly-
owned subsidiary of Ascend ("Sub"), and Ascend have entered into an Agreement
and Plan of Reorganization, dated as of March , 1997 (the "Merger Agreement")
providing for the merger of Sub with and into Cascade (the "Merger"). As a
result of the Merger, which is intended to qualify as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended, and to be accounted for as a pooling of interests, Cascade will
become a wholly-owned subsidiary of Ascend and stockholders of Cascade will
become stockholders of Ascend. Holder is the holder of record and the
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended, (the "Exchange Act")) of the number of shares of the
capital stock of Ascend indicated on the signature page of this Ascend Stock
Voting Agreement (the "Shares"). As a condition to its execution and delivery
of the Merger Agreement, Cascade has requested that Holder agree, and in
consideration, and to induce the execution and delivery, of the Merger
Agreement by Cascade, Holder is willing to agree to vote all shares of Ascend
capital stock owned by Holder so as to facilitate consummation of the Merger,
as more fully described below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
Agreement
Section 1 Agreement to Vote Shares. At every meeting of the Ascend
stockholders called with respect to any of the following, and at any
adjournment thereof, and with respect to every action or approval by written
consent of Ascend stockholders solicited with respect to any of the following,
Holder shall vote the Shares and any shares of Ascend capital stock that
Holder purchases or otherwise acquires beneficial ownership of after the date
of this Ascend Stock Voting Agreement and prior to the expiration or
termination of this Ascend Stock Voting Agreement ("New Shares"):
(a) in favor of approval of the issuance of shares of Ascend common stock
pursuant to the Merger Agreement, as the same may be amended from time to
time, and any proposal or action which would, or could reasonably be
expected to, facilitate the Merger and the other transactions contemplated
by the Merger Agreement;
(b) against approval of any proposal made in opposition to or competition
with consummation of the Merger and the Merger Agreement; and
(c) against any merger, consolidation or other business combination of
Ascend with, sale of assets or stock of Ascend to, or reorganization or
recapitalization involving Ascend with, any party other than Cascade or an
affiliate of Cascade as contemplated by the Merger Agreement (any event
described in clause (b) or (c) hereafter referred to as an "Opposing
Proposal").
Holder, as the holder of voting stock of Ascend, shall be present, in person
or by proxy, at all meetings of stockholders of Ascend so that all Shares and
New Shares are counted for the purposes of determining the
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presence of a quorum at such meetings. This Ascend Stock Voting Agreement is
intended to bind Holder only with respect to the specific matters set forth
herein and solely in his or her capacity as a stockholder, and shall not
prohibit, limit or restrict in any manner Holder from acting in Holder's
capacity as an officer or director of Ascend or exercising or observing
Holder's fiduciary duties and responsibilities as an officer or director of
Ascend.
Section 2 Irrevocable Proxy. Concurrently with the execution of this Ascend
Stock Voting Agreement, Holder agrees to deliver to Cascade a proxy in the
form attached hereto as Annex A (the "Proxy"), which shall be irrevocable to
the extent provided therein; provided, however, that the Proxy shall be
revoked upon expiration or termination of this Ascend Stock Voting Agreement
in accordance with its terms.
Section 3 Representations, Warranties and Covenants of Holder. Holder hereby
represents, warrants and covenants to Cascade as follows:
(a) Ownership of Shares. Holder (i) as of the date of this Agreement, is
the holder of record and beneficial owner of the Shares free and clear of
any liens, claims, options, charges or other encumbrances that would
interfere with the voting of the Shares or the granting of any proxy with
respect thereto, (ii) as of the date of this Agreement, does not
beneficially own any shares of capital stock of Ascend other than the
Shares (except to the extent that Holder currently disclaims beneficial
ownership in accordance with applicable law) and (iii) has full power and
authority to make, enter into, deliver and carry out the terms of this
Ascend Stock Voting Agreement and the Proxy.
(b) No Voting Trusts and Agreements. Between the date of this Agreement
and the expiration or termination of this Agreement, Holder will not, and
will not permit any entity under Holder's control to, deposit any shares of
Ascend capital stock held by Holder or such entity in a voting trust or
subject any shares of Ascend capital stock held by such Holder or such
entity to any arrangement or agreement with respect to the voting of such
shares of capital stock, other than agreements entered into with Cascade.
(c) Validity; No Conflict. This Ascend Stock Voting Agreement constitutes
the legal, valid and binding obligation of Holder. Neither the execution of
this Ascend Stock Voting Agreement by Holder nor the consummation of the
transactions contemplated herein will violate or result in a breach of (i)
any provision of any trust, charter, partnership agreement or other charter
document applicable to Holder, (ii) any agreement to which Holder is a
party or by which Holder is bound, (iii) any decree, judgment or order to
which Holder is subject, or (iv) any law or regulation now in effect
applicable to Holder.
(d) No Proxy Solicitations. Except as required by law, including, without
limitation, actions which the Holder determines in reasonable good faith
are required pursuant to Holder's fiduciary duties as an officer or
director of Ascend, and as otherwise contemplated by the last sentence of
Section 1, between the date of this Agreement and the expiration or
termination of this Agreement, Holder will not, and will not permit any
entity under Holder's control, to (i) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Rule 14A
under the Exchange Act) with respect to an Opposing Proposal or assist any
party in taking or planning any action which would compete with, restrain
or otherwise serve to interfere with or inhibit the timely consummation of
the Merger in accordance with the terms of the Merger Agreement, (ii)
initiate a stockholders' vote or action by written consent of Ascend
stockholders without a meeting with respect to an Opposing Proposal or
(iii) become a member of a "group" (as such term is used in Section 13(d)
of the Exchange Act) with respect to any voting securities of Ascend with
respect to an Opposing Proposal.
Section 4 Representations, Warranties and Covenants of Cascade. Cascade
represents, warrants and covenants to Holder as follows:
(a) Due Authorization. This Ascend Stock Voting Agreement has been
authorized by all necessary corporate action on the part of Cascade and has
been duly executed by a duly authorized officer of Cascade.
(b) Validity; No Conflict. This Ascend Stock Voting Agreement constitutes
the legal, valid and binding obligation of Cascade. Neither the execution
of this Ascend Stock Voting Agreement by Cascade
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nor the consummation of the transactions contemplated herein will violate
or result in a breach of (i) any agreement to which Cascade is a party or
by which Cascade is bound, (ii) any decree, judgment or order to which
Cascade is subject, or (iii) any law or regulation now in effect applicable
to Cascade.
Section 5 Additional Documents. Holder and Cascade hereby covenant and agree
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Cascade's legal counsel or Holder, as the case may be,
to carry out the intent of this Ascend Stock Voting Agreement.
Section 6 Consent and Waiver. Holder hereby gives any consent or waiver
reasonably required for the performance of Holder's obligations hereunder
solely in such Holder's capacity as a stockholder of Cascade.
Section 7 Termination. Notwithstanding any other provision contained herein,
this Ascend Stock Voting Agreement and the Proxy, and all obligations of
Holder hereunder and thereunder, shall terminate upon the earlier of the
Effective Time (as defined in the Merger Agreement) or the expiration or
termination of the Merger Agreement.
Section 8 Miscellaneous.
(a) Severability. If any term, provision, covenant or restriction of this
Ascend Stock Voting Agreement or the Proxy (i) is held by a court of
competent jurisdiction to be invalid, void or unenforceable for any reason,
or (ii) would preclude the Merger from qualifying as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986,
as amended, or prevent Cascade or Ascend from accounting for the business
combination contemplated by the Merger Agreement as a pooling of interests,
such term, provision, covenant or restriction shall be modified or voided,
as may be necessary to achieve the intent of the parties to the extent
possible, and the remainder of the terms, provisions, covenants and
restrictions of this Ascend Stock Voting Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Ascend Stock Voting 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 Ascend Stock Voting Agreement nor any of the rights, interests or
obligations of the parties hereto may be assigned by either of the parties
hereto without the prior written consent of the other, and any attempted
assignment thereof without such consent shall be null and void.
(c) Amendments and Modifications. This Ascend Stock Voting Agreement may
not be modified, amended, altered or supplemented except upon the execution
and delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Cascade will be irreparably harmed by a breach of any of
the covenants or agreements of Holder set forth herein and that there will
be no adequate remedy at law for such a breach. Therefore, it is agreed
that, in addition to any other remedies which may be available to Cascade
upon such breach, Cascade shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other
means available to it at law or in equity.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by commercial overnight courier service, by confirmed telecopy, or
sent by mail (registered or certified mail, postage prepaid, return receipt
requested), to the respective parties as follows:
If to Cascade:Cascade Communications Corp.
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Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
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If to Holder:To the address for notice set forth on the last page
hereof.
With a copy to:Ascend Communications, Inc.
One Ascend Plaza
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Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
and to:▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich
A Professional Corporation
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Fax Number: ▇▇▇-▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq. & ▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
and to:▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
High Street Tower
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Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq.
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
(f) Governing Law. This Ascend Stock Voting Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of
Delaware, without giving effect to principles of conflicts of law. Each
party hereto irrevocably and unconditionally consents and submits to the
jurisdiction of the courts of the State of Delaware and of the United
States of America located in the State of Delaware for any actions, suits
or proceedings arising out of or relating to this agreement and the
transactions contemplated hereby.
(g) Entire Agreement. This Ascend Stock Voting Agreement contains the
entire understanding of the parties with respect to the subject matter
hereof, and supersedes all prior negotiations and understandings between
the parties with respect to such subject matter.
(h) Counterparts. This Ascend Stock Voting Agreement may be executed in
one or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
(i) Effect of Headings. The section headings contained herein are for
convenience only and shall not affect the construction or interpretation of
this Ascend Stock Voting Agreement.
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IN WITNESS WHEREOF, the parties have caused this Ascend Stock Voting
Agreement to be duly executed on the day and year first above written.
Cascade Communications Corp.
By: _________________________________
Its: ________________________________
Holder
By: _________________________________
Holder's Address for Notice:
_____________________________________
_____________________________________
_____________________________________
Number of Shares owned beneficially:
_____________________________________
Number of Shares owned of record
(ifdifferent from above):
_____________________________________
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ANNEX A
IRREVOCABLE PROXY
The undersigned stockholder of Ascend Communications, Inc., a Delaware
corporation ("Ascend"), hereby irrevocably appoints and constitutes the
members of the Board of Directors of Cascade Communications Corp., a Delaware
corporation ("Cascade"), and each of them (the "Proxyholders"), the agents and
proxies of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
the shares of capital stock of Ascend beneficially owned by the undersigned,
and any and all other shares or securities issued or issuable in respect
thereof, or which the undersigned otherwise acquires, on or after the date
hereof and prior to the date this proxy terminates (collectively, the
"Shares"), to vote the Shares as follows:
The agents and proxies named above are empowered at any time prior to the
expiration or termination of this proxy to exercise all voting rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every special or
adjourned meeting of Ascend stockholders, and in every written consent in
lieu of such a meeting, or otherwise,
(a) in favor of approval of (i) the issuance of shares of Ascend common
stock pursuant to the Agreement and Plan of Reorganization by and among
Ascend, Catskill Merger Corporation ("Sub"), and Cascade dated as of March
30, 1997, as the same may be amended from time to time (the "Merger
Agreement"), and (ii) any proposal or action which would, or could
reasonably be expected to, facilitate the merger of Sub with and into
Cascade pursuant to the Merger Agreement (the "Merger") and the other
transactions contemplated by the Merger Agreement;
(b) against approval of any proposal made in opposition to or competition
with consummation of the Merger and the Merger Agreement; and
(c) against any merger, consolidation or other business combination of
Ascend with, sale of assets or stock of Ascend to, or reorganization or
recapitalization involving Ascend with, any party other than Cascade or an
affiliate of Cascade, as contemplated by the Merger Agreement.
The Proxyholders may not exercise this proxy with respect to any other
matter. The undersigned may vote the Shares on all such other matters.
The proxy granted by the undersigned to the Proxyholders hereby is granted
as of the date of this Irrevocable Proxy in order to secure the obligations of
the undersigned set forth in Section 1 of the Ascend Director and Officer
Stock Voting Agreement between the undersigned and Cascade, and is irrevocable
and coupled with an interest in such obligations. This proxy will terminate
upon the expiration or termination of such Ascend Director and Officer Stock
Voting Agreement in accordance with its terms.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares are hereby revoked, and no subsequent proxies will be
given with respect to the Shares until such time as this proxy shall be
terminated in accordance with its terms.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned authorizes the
Proxyholders to file this proxy and any substitution or revocation of
substitution with the Secretary of Ascend and with any Inspector of Elections
at any meeting of the stockholders of Ascend.
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This proxy is irrevocable and shall survive the insolvency, incapacity, death
or liquidation of the undersigned.
Dated: March , 1997.
Name of Holder: ____________________________________
Signature of Holder: _______________________________
Shares beneficially owned by Holder: _______________
Shares owned of record by Holder: __________________
ADDENDUM
WAIVER AND RELEASE
Effective as of April 14, 1997, for good and valuable consideration, the
receipt of which is hereby acknowledged, the undersigned hereby irrevocably
release each Holder (as defined in the Ascend Director and Officer Stock
Voting Agreement dated as of March 30, 1997 (the "Voting Agreement") and the
irrevocable proxy annexed thereto (the "Irrevocable Proxy")) from the
obligations imposed by clauses (b) and (c) of Section 1 of the Voting
Agreement and clauses (b) and (c) of the Irrevocable Proxy and irrevocably
waives all rights of Cascade thereunder.
CASCADE COMMUNICATIONS CORP.
By:
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Name:
Title:
BOARD OF DIRECTORS
OF CASCADE COMMUNICATIONS CORP.
By:
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Name:
Title: