EXHIBIT 2
CASCADE DIRECTOR AND OFFICER
STOCK VOTING AGREEMENT
THIS CASCADE DIRECTOR AND OFFICER STOCK VOTING AGREEMENT ("Agreement" or
"Cascade Stock Voting Agreement") is made and entered into as of March , 1997
by and between Ascend Communications, Inc., a Delaware corporation ("Ascend"),
and the undersigned director or officer (the "Holder") of Cascade
Communications Corp., a Delaware corporation ("Cascade").
Recitals
Ascend, Cascade Merger Corporation, a Delaware corporation and a wholly-
owned subsidiary of Ascend ("Sub"), and Cascade have entered into an Agreement
and Plan of Reorganization, dated as of March 30, 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 Cascade indicated on the signature page of this Cascade Stock
Voting Agreement (the "Shares"). As a condition to its execution and delivery
of the Merger Agreement, Ascend has requested that Holder agree, and in
consideration, and to induce the execution and delivery, of the Merger
Agreement by Ascend, Holder is willing to agree to vote all shares of Cascade
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 Cascade
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 Cascade stockholders solicited with respect to any of the
following, Holder shall vote the Shares and any shares of Cascade capital
stock that Holder purchases or otherwise acquires beneficial ownership of
after the date of this Cascade Stock Voting Agreement and prior to the
expiration or termination of this Cascade Stock Voting Agreement ("New
Shares"):
(a) in favor of adoption of the Merger Agreement, as the same may be
amended from time to time, and approval of the Merger and any proposal or
action which would, or could reasonably be expected to, facilitate the
Merger;
(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
Cascade with, sale of assets or stock of Cascade to, or reorganization or
recapitalization involving Cascade with, any party other than Ascend or an
affiliate of Ascend as contemplated by the Merger Agreement (any event
described in clauses (b) or (c) hereinafter referred to as an "Opposing
Proposal").
Holder, as the holder of voting stock of Cascade, shall be present, in
person or by proxy, at all meetings of stockholders of Cascade so that all
Shares and New Shares are counted for the purposes of determining the presence
of a quorum at such meetings. This Cascade Stock Voting Agreement is intended
to bind Holder only
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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
Cascade or exercising or observing Holder's fiduciary duties and
responsibilities as an officer or director of Cascade.
Section 2 Irrevocable Proxy. Concurrently with the execution of this Cascade
Stock Voting Agreement, Holder agrees to deliver to Ascend 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 Cascade Stock Voting Agreement in
accordance with its terms.
Section 3 Representations, Warranties and Covenants of Holder. Holder hereby
represents, warrants and covenants to Ascend 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 Cascade 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
Cascade 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
Cascade capital stock held by Holder or such entity in a voting trust or
subject any shares of Cascade 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 Ascend.
(c) Validity; No Conflict. This Cascade Stock Voting Agreement
constitutes the legal, valid and binding obligation of Holder. Neither the
execution of this Cascade 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
Cascade and as otherwise contemplated by the last sentence of Section 1,
between the date of this Agreement and the expiration or termination of
this Cascade Stock Voting 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 Cascade
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 Cascade with
respect to an Opposing Proposal.
Section 4 Representations, Warranties and Covenants of Ascend. Ascend
represents, warrants and covenants to Holder as follows:
(a) Due Authorization. This Cascade Stock Voting Agreement has been
authorized by all necessary corporate action on the part of Ascend and has
been duly executed by a duly authorized officer of Ascend.
(b) Validity; No Conflict. This Cascade Stock Voting Agreement
constitutes the legal, valid and binding obligation of Ascend. Neither the
execution of this Cascade Stock Voting Agreement by Ascend nor the
consummation of the transactions contemplated herein will violate or result
in a breach of (i) any
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agreement to which Ascend is a party or by which Ascend is bound, (ii) any
decree, judgment or order to which Ascend is subject, or (iii) any law or
regulation now in effect applicable to Ascend.
Section 5 Additional Documents. Holder and Ascend hereby covenant and agree
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Ascend's legal counsel or Holder, as the case may be, to
carry out the intent of this Cascade 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 Cascade 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
Cascade 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 Ascend or Cascade 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 Cascade 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 Cascade 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 Cascade 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 Cascade 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 Ascend 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 Ascend
upon such breach, Ascend 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 Ascend: Ascend
One Ascend Plaza
0000 Xxxxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
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: Cascade
0 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Attention: Chief Financial Officer
and to: Xxxx Xxxx Xxxx & Freidenrich
A Professional Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Fax Number: 000-000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
& Xxx X. Xxxxxx, Esq.
and to: Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax Number: 000-000-0000
Attention: Xxxx X. Xxxxxxx, Esq. &
Xxxxx X. Xxxxxxx, 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 Cascade 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 Cascade 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 Cascade 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 Cascade Stock Voting Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Cascade Stock Voting
Agreement to be duly executed on the day and year first above written.
Ascend Communications, Inc.
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 Cascade Corp., a Delaware corporation
("Cascade"), hereby irrevocably appoints and constitutes the members of the
Board of Directors of Ascend, Inc., a Delaware corporation ("Ascend"), 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 Cascade
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 Cascade stockholders (but not at any annual meeting of
Cascade stockholders), and in every written consent in lieu of such a
meeting, or otherwise,
(a) in favor of (i) adoption of 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) approval of the merger of Sub with and into
Cascade as contemplated by the Merger Agreement (the "Merger") and any
proposal or action which would, or could reasonably be expected to,
facilitate the Merger;
(b) against approval of any proposal made in opposition to or competition
with consummation of the Merger and the Merger Agreement;
(c) against any merger, consolidation or other business combination of
Cascade with, sale of assets or stock of Cascade to, or reorganization or
recapitalization involving Cascade with, any party other than Ascend or an
affiliate of Ascend 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 in
person or by proxy.
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 Cascade Director and Officer
Stock Voting Agreement between the undersigned and Ascend, and is irrevocable
and coupled with an interest in such obligations and in the shares of capital
stock of Cascade to be exchanged pursuant the Merger Agreement. This proxy will
expire or terminate upon the expiration or termination of such Cascade 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, other than any proxy given or to be
given by the undersigned with respect to the 1997 Annual Meeting of Cascade
stockholders.
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 Cascade and with any Inspector of Elections
at any special meeting of the stockholders of Cascade.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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: __________________
