EXHIBIT 10.8
ASCEND DIRECTOR, OFFICER AND STOCKHOLDER AGREEMENT
THIS ASCEND DIRECTOR, OFFICER AND STOCKHOLDER AGREEMENT ("Agreement") is
made and entered into as of March 30, 1997 by and among Ascend Communications,
Inc., a Delaware corporation ("Ascend"), Cascade Communications Corp., a
Delaware corporation ("Cascade") and the undersigned director, officer and/or
stockholder ("Signatory") of Ascend. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Merger Agreement (as
defined below).
Recitals
Ascend and Cascade have entered into an Agreement and Plan of Reorganization
dated as of March 30, 1997 (the "Merger Agreement") pursuant to which Cascade
will become a wholly-owned subsidiary of Ascend, and stockholders of Cascade
will become stockholders of Ascend. It will be a condition to the
effectiveness of the Merger that the independent auditing firms that audit the
annual financial statements of Ascend and Cascade will have delivered letters
confirming their concurrence with Ascend's management as to the
appropriateness of pooling of interests accounting for the Merger under
Accounting Principles Board Opinion No. 16 and the applicable regulations of
the Securities and Exchange Commission (the "Commission"). The execution and
delivery of this Agreement by Signatory is a material inducement to Ascend to
enter into the Merger Agreement. Signatory has been advised that Signatory may
be deemed to be an "affiliate" of Ascend, as such term is used in Accounting
Series Releases 130 and 135, as amended, of the Commission, it being
understood that nothing contained herein shall be construed as an admission by
Signatory that Signatory is in fact an affiliate of Ascend.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree as
follows:
Agreement
1. Acknowledgment. Signatory acknowledges and understands that the
representations, warranties and covenants by Signatory set forth herein will
be relied upon by Ascend, Cascade and their respective affiliates, legal
counsel and auditing firms, and that substantial losses and damages may be
incurred by these persons if Signatory's representations and warranties are
inaccurate or if Signatory's covenants and agreements are breached. Signatory
has carefully read this Agreement and the Merger Agreement and has consulted
with such legal counsel and financial advisers as Signatory has deemed
necessary in connection with, and prior to, the execution and delivery of this
Agreement.
2. Covenants Related to Pooling of Interests. During the period beginning on
the earlier of the date thirty (30) days prior to the anticipated Closing Date
(as defined in the Merger Agreement or such date as set forth in a notice to
be delivered by Ascend to Signatory) and ending on the day two days after the
day that Ascend has published (within the meaning of Accounting Series Release
No. 135) financial results covering at least thirty (30) days of post-Merger
combined operations of Ascend and Cascade (the "Restricted Period"), in the
form of a quarterly earnings report, an effective registration statement filed
with the Commission, a report to the Commission on Form 10-K, 10-Q or 8-K or
any other public filing or announcement which includes the combined results of
operations, Signatory will not sell, exchange, transfer, pledge, distribute,
make any gift or otherwise dispose of or grant any option, establish any
"short" or put-equivalent position with respect to or enter into any similar
transaction (through derivatives or otherwise) intended to have or having the
effect, directly or indirectly, of reducing Signatory's risk relative to any
shares of Ascend Common Stock. Ascend may, at its discretion, place a stock
transfer notice consistent with the foregoing with its transfer agent with
respect to Signatory's shares. Notwithstanding the foregoing, Signatory will
be permitted, during the Restricted Period, to sell, exchange, transfer,
pledge, distribute, make any gift or otherwise dispose of or grant any option,
establish any "short" or put-equivalent position with respect to or enter into
any similar transaction (through derivatives or otherwise) intended to have or
having the effect, directly or indirectly, of reducing Signatory's risk
relative to an amount of shares of Ascend Common Stock not more than the de
minimis amount permitted by the Commission in its rules and releases relating
to pooling-of-interests accounting treatment, subject to the advance
concurrence of Ascend and Cascade and each of their independent auditors.
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3. Beneficial Ownership of Stock. Except for the Ascend Common Stock and
options to purchase Ascend Common Stock set forth in Appendix A hereto,
Signatory does not beneficially own any shares of Ascend Common Stock or any
other equity securities of Ascend or any options, warrants or other rights to
acquire any equity securities of Ascend.
4. Reliance by Third Parties. Legal counsel to and auditors for the parties
to the Merger Agreement shall be entitled to rely upon this Agreement to the
extent they deem necessary.
5. Miscellaneous. For the convenience of the parties hereto, this Agreement
may be executed in one or more counterparts, each of which shall be deemed to
be an original, but all of which together shall constitute one and the same
document. This Agreement shall be enforceable by, and shall inure to the
benefit of and be binding upon, the parties hereto and their respective
successors and assigns. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the internal laws of the State of
Delaware applicable to agreements made and performed wholly within such state.
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. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be modified rather than voided, if
possible, in order to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Agreement shall be deemed
valid and enforceable to the extent possible. This Agreement shall not be
modified and amended, or any right hereunder waived or any obligation excused,
except by a written agreement signed by both parties.
Executed as of the date shown on the first page of this Agreement.
Ascend Communications, Inc. a Signatory
Delaware corporation
By:__________________________________
By:__________________________________
Print Name of Signatory:_____________
Name:________________________________
Title (if applicable):_______________
Title:_______________________________
Cascade Communications Corp. a
Delaware corporation
By:__________________________________
Name:________________________________
Title:_______________________________
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APPENDIX A
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