<PAGE> 1
As filed with the Securities and Exchange Commission on June 20, 1996
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
CASCADE COMMUNICATIONS CORP.
----------------------------
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-3099677
------------------------------ -----------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
5 Carlisle Road, Westford, Massachusetts 01886-3601
---------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Arris Networks, Inc. 1995 Stock Option Plan
-------------------------------------------
(Full Title of the Plan)
------------------------
Daniel E. Smith
President and Chief Executive Officer
Cascade Communications Corp.
5 Carlisle Road
Westford, Massachusetts 01886-3601
------------------------
(Name and Address of Agent For Service)
(508) 692-2600
--------------
(Telephone Number, Including Area Code, of Agent For Service)
------------------------
Copy to:
John A. Meltaus, Esq.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Total of Sequentially Numbered Pages: ____
Exhibit Index on Sequentially Numbered Page: 9
<PAGE> 2
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities Amount to be Price Per Offering Registration
to be Registered Registered Share Price Fee
<S> <C> <C> <C> <C>
ARRIS NETWORKS, INC. 242,021 $0.04(1) $9,680.84 $100.00(2)
CORPORATION 1995 STOCK
OPTION PLAN
Common Stock, $.001 par value
TOTAL: 242,021 shares $9,680.84 $100.00
=======
- ----------
<FN>
(1) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to, Rule 457(h)(1) of Regulation C under the
Securities Act of 1933, as amended, the aggregate offering price has been
computed upon the basis of the price at which the options may be exercised.
(2) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
-----------------
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
------------------------------------------------------------
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
<PAGE> 3
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Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 30, 1996.
(c) The Company's Current Report on Form 8-K dated May 3, 1996, reporting
the acquisition by the Company of Arris Networks, Inc., a Delaware
corporation ("Arris").
(d) The Company's Current Reports on Form 8-K dated February 27, 1996 and
May 30, 1996.
(f) The description of the Company's Common Stock, $.001 par value per
share, contained in the Registration Statement on Form 8-A filed under
the Exchange Act on July 26, 1994, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Article EIGHT of the Registrant's Amended and Restated Certificate of
Incorporation provides that no director of the Registrant shall be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director notwithstanding any provision of law imposing such
liability, except, to the extent provided by applicable law (i) for any breach
of the director's duty of loyalty to the Registrant or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. If the General Corporation
Law of the State of Delaware is amended hereafter to authorize corporation
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Registrant shall be eliminated or limited to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, as so amended. No amendment or repeal of Article EIGHT shall apply to
have any effect on the liability or alleged liability of any director for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
<PAGE> 4
-4-
Article TENTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that the Registrant shall, to the maximum extent
permitted from time to time under the laws of the State of Delaware, indemnify
and upon request shall advance expenses to any person who is or was a party or
is threatened to be made a party to any threatened, pending or completed action,
suit, proceeding or claim, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was or has agreed to be a
director or officer of the Registrant or while a director or officer is or was
serving at the request of the Registrant as a director, officer, partner,
trustee, employee or agent of any corporation, partnership, joint venture, trust
or other enterprise, including service with respect to employee benefit plans,
against any and all expenses (including attorney's fees and expenses),
judgments, fines, penalties and amounts paid in settlement or incurred in
connection with the investigation, preparation to defend or defense of such
action, suit, proceeding or claim; PROVIDED, HOWEVER, that the foregoing shall
not require the Registrant to indemnify or advance expenses to any person in
connection with any action, suit, proceeding, claim or counterclaim initiated by
or on behalf of such person. Such indemnification shall not be exclusive of
other indemnification rights arising under any By-law, agreement, vote of
directors or stockholders or otherwise and shall inure to the benefit of the
heirs and legal representatives of such person. Any repeal or modification of
Article TENTH shall not adversely affect any right or protection of a director
or officer of the Registrant existing at the time of such repeal or
modification.
Article ELEVENTH of the Registrant's Amended and Restated Certificate of
Incorporation further provides that in addition to the vote of the holders of
any class or series of stock of the Registrant required by law or by the Amended
and Restated Certificate of Incorporation, but in addition to any vote of the
holders of any class or series of stock of the Corporation required by law, the
Amended and Restated Certificate of Incorporation or a Certificate of
Designation with respect to a series of Preferred Stock, the affirmative vote of
the holders of shares of voting stock of the Registrant representing at least
seventy-five percent (75%) of the voting power of all of the then outstanding
shares of the capital stock of the Registrant entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend or repeal, or adopt any provision inconsistent with Article EIGHTH, TENTH
or ELEVENTH of the Amended and Restated Certificate of Incorporation.
The Company has obtained directors and officers liability insurance for the
benefit of its directors and certain of its officers.
Item 7. Exemption From Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit
Number Description of Exhibit
------ ----------------------
Exhibit 4.1 Amended and Restated Certificate of Incorporation of the
Registrant (filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No. 33-79330)
and incorporated herein by reference).
Exhibit 4.2 Certificate of Amendment of Amended and Restated
Certificate of Incorporation of the Registrant.
<PAGE> 5
-5-
Exhibit 4.3 Amended and Restated By-laws of the Registrant (filed as
Exhibit 3.2 to the Registrant's Registration Statement
on Form S-1 (File No. 33-79330) and incorporated herein
by reference).
Exhibit 4.4 Specimen Stock certificate representing the Common
Stock of the Registrant (filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (File No.
33-79330) and incorporated herein by reference).
Exhibit 4.5 Arris Networks, Inc. 1995 Stock Option
Plan.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included
in Exhibit 5.1).
Exhibit 23.2 Consent of Coopers & Lybrand L.L.P.
Item 9. Undertakings.
-------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
<PAGE> 6
-6-
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE> 7
-7-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Cascade Communications Corp., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Westford, Commonwealth of
Massachusetts on this 20th day of June, 1996.
CASCADE COMMUNICATIONS CORP.
By: /s/ Daniel E. Smith
-------------------------------------
Daniel E. Smith
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Daniel E. Smith,
Paul E. Blondin and Frances M. Jewels his or her attorneys-in-fact, each with
the power of substitutions, for him or her in any and all capacities, to sign
any amendments to this Registration Statement on Form S-8 (including any
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his or her substitute or substitutes, may do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Daniel E. Smith President, Chief Executive June 20, 1996
- ----------------------- Officer and Director
Daniel E. Smith
/s/ Paul E. Blondin Vice President of Finance June 20, 1996
- ----------------------- and Administration, and Chief
Paul E. Blondin Financial Officer, Treasurer
and Clerk (Principle Financial
and Accounting Officer)
/s/ Victoria A. Brown Director June 20, 1996
- -----------------------
Victoria A. Brown
/s/ Gururaj Deshpande Director June 20, 1996
- -----------------------
Gururaj Deshpande
<PAGE> 8
-8-
/s/ Richard M. Burnes, Jr. Director June 20, 1996
- ---------------------------
Richard M. Burnes, Jr.
/s/ Bruns H. Grayson Director June 20, 1996
- ---------------------------
Bruns H. Grayson
/s/ Paul J. Ferri Director June 20, 1996
- ---------------------------
Paul J. Ferri
/s/ Steven Walske Director June 20, 1996
- ---------------------------
Steven Walske
<PAGE> 1
Exhibit 4.2
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CASCADE COMMUNICATIONS CORP.
(INCORPORATED OCTOBER 16, 1990)
* * * * * *
Cascade Communications Corp., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That pursuant to the authority conferred upon the Board of
Directors by the Amended and Restated Certificate of Incorporation of the
Corporation, the Board of Directors, at a meeting held on February 1, 1996, duly
adopted a resolution setting forth a proposed amendment to the Amended and
Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable and directed that the matter be submitted to the
stockholders of the Corporation for the approval of said amendment.
SECOND: That hereinafter, in accordance with Section 211(b) of the General
Corporation Law of the State of Delaware, stockholders of the Corporation
holding the necessary number of shares of the outstanding capital stock of the
Corporation as required by statute and the Amended and Restated Certificate of
Incorporation of the Corporation approved said amendment on May 2, 1996.
THIRD: That said amendment would amend the Amended and Restated
Certificate of Incorporation of the Corporation by amending and restating in its
entirety the first paragraph of Article FOURTH and substituting in lieu thereof
the following new paragraph of Article FOURTH:
"FOURTH. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 227,000,000 shares,
consisting of 225,000,000 shares of Common Stock with a par value of $.001
per share (the "Common Stock") and 2,000,000 shares of Preferred Stock
with a par value of $.01 per share (the "Preferred Stock").
FOURTH: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
<PAGE> 2
IN WITNESS WHEREOF, said Cascade Communications Corp. has caused this
certificate to be signed by Daniel E. Smith, its President and Chief Executive
Officer, and attested by John A. Meltaus, its Assistant Secretary, this 2nd day
of May, 1996.
CASCADE COMMUNICATIONS CORP.
BY: /s/ Daniel E. Smith
-------------------------------------------
President and Chief Executive Officer
ATTEST:
BY: /s/ John A. Meltaus
----------------------------
Assistant Secretary
<PAGE> 1
EXHIBIT 4.4
ARRIS NETWORKS, INC.
1995 STOCK OPTION PLAN
October 23, 1995
1. Purpose.
-------
The purpose of this plan (the "Plan") is to secure for Concert
Communications Corporation (the "Company") and its shareholders the benefits
arising from capital stock ownership by employees, officers and directors of,
and consultants or advisors to, the Company and its parent and subsidiary
corporations who are expected to contribute to the Company's future growth and
success. Except where the context otherwise requires, the term "Company" shall
include the parent and all present and future subsidiaries of the Company as
defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as
amended or replaced from time to time (the "Code"). Those provisions of the Plan
which make express reference to Section 422 shall apply only to Incentive Stock
Options (as that term is defined in the Plan).
2. Type of Options and Administration.
----------------------------------
(a) TYPES OF OPTIONS. Options granted pursuant to the Plan may be either
incentive stock options ("Incentive Stock Options") meeting the requirements of
Section 422 of the Code or Non-Statutory Options which are not intended to meet
the requirements of Section 422 of the Code ("Non-Statutory Options").
(b) Administration.
--------------
(i) The Plan will be administered by the Board of Directors of the
Company, whose construction and interpretation of the terms and provisions of
the Plan shall be final and conclusive. The Board of Directors may in its sole
discretion grant options to purchase shares of the Company's Common Stock
("Common Stock") and issue shares upon exercise of such options as provided in
the Plan. The Board shall have authority, subject to the express provisions of
the Plan, to construe the respective option agreements and the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan, to
determine the terms and provisions of the respective option agreements, which
need not be identical, and to make all other determinations which are, in
<PAGE> 2
the judgment of the Board of Directors, necessary or desirable for the
administration of the Plan. The Board of Directors may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or in any option
agreement in the manner and to the extent it shall deem expedient to carry the
Plan into effect and it shall be the sole and final judge of such expediency. No
director or person acting pursuant to authority delegated by the Board of
Directors shall be liable for any action or determination under the Plan made in
good faith.
(ii) The Board of Directors may, to the full extent permitted by or
consistent with applicable laws or regulations and Section 3(b) of this Plan
delegate any or all of its powers under the Plan to a committee (the
"Committee") appointed by the Board of Directors, and if the Committee is so
appointed all references to the Board of Directors in the Plan shall mean and
relate to such Committee.
(c) APPLICABILITY OF RULE 16b-3. Those provisions of the Plan which make
express reference to Rule 16b-3 promulgated under the Securities Exchange Act of
1934 (the "Exchange Act"), or any successor rule ("Rule 16b-3"), or which are
required in order for certain option transactions to qualify for exemption under
Rule 16b-3, shall apply only to such persons as are required to file reports
under Section 16(a) of the Exchange Act (a "Reporting Person").
3. Eligibility.
-----------
(a) GENERAL. Options may be granted to persons who are, at the time of
grant, employees, officers or directors of, or consultants or advisors to, the
Company; PROVIDED, that the class of employees to whom Incentive Stock Options
may be granted shall be limited to all employees of the Company. A person who
has been granted an option may, if he or she is otherwise eligible, be granted
additional options if the Board of Directors shall so determine. Subject to
adjustment as provided in Section 15 below, the maximum number of shares with
respect to which options may be granted to any employee under the Plan shall not
exceed 1,250,000 shares of common stock during the ten-year term of the Plan.
For the purpose of calculating such maximum number, (a) an option shall continue
to be treated as outstanding notwithstanding its repricing, cancellation or
expiration and (b) the repricing of an outstanding option or the issuance of a
new option in substitution for a cancelled option shall be deemed to constitute
the grant of
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<PAGE> 3
a new additional option separate from the original grant of the option that is
repriced or cancelled.
(b) GRANT OF OPTIONS TO DIRECTORS AND OFFICERS. From and after the
registration of the Common Stock of the Company under the Exchange Act, the
selection of a director or an officer (as the terms "director" and "officer" are
defined for purposes of Rule 16b-3) as a recipient of an option, the timing of
the option grant, the exercise price of the option and the number of shares
subject to the option shall be determined either (i) by the Board of Directors,
of which all members shall be "disinterested persons" (as hereinafter defined),
or (ii) by two or more directors having full authority to act in the matter,
each of whom shall be a "disinterested person." For the purposes of the Plan, a
director shall be deemed to be a "disinterested person" only if such person
qualifies as a "disinterested person" within the meaning of Rule 16b-3, as such
term is interpreted from time to time.
4. Stock Subject to Plan.
---------------------
Subject to adjustment as provided in Section 15 below, the maximum number
of shares of Common Stock which may be issued and sold under the Plan is
1,177,000 shares. If an option granted under the Plan shall expire or terminate
for any reason without having been exercised in full, the unpurchased shares
subject to such option shall again be available for subsequent option grants
under the Plan. If shares issued upon exercise of an option under the Plan are
tendered to the Company in payment of the exercise price of an option granted
under the Plan, such tendered shares shall again be available for subsequent
option grants under the Plan; provided, that in no event shall such shares be
made available for issuance to Reporting Persons or pursuant to exercise of
Incentive Stock Options.
5. Forms of Option Agreements.
--------------------------
As a condition to the grant of an option under the Plan, each recipient of
an option shall execute an option agreement in such form not inconsistent with
the Plan as may be approved by the Board of Directors. Such option agreements
may differ among recipients.
-3-
<PAGE> 4
6. Purchase Price.
--------------
(a) GENERAL. Subject to Section 3(b), the purchase price per share of stock
deliverable upon the exercise of an option shall be determined by the Board of
Directors, PROVIDED, HOWEVER, that in the case of an Incentive Stock Option, the
exercise price shall not be less than 100% of the fair market value of such
stock, as determined by the Board of Directors, at the time of grant of such
option, or less than 110% of such fair market value in the case of options
described in Section 11(b).
(b) PAYMENT OF PURCHASE PRICE. Options granted under the Plan may provide
for the payment of the exercise price by delivery of cash or a check to the
order of the Company in an amount equal to the exercise price of such options,
or, to the extent provided in the applicable option agreement, (i) by delivery
to the Company of shares of Common Stock of the Company already owned by the
optionee having a fair market value equal in amount to the exercise price of the
options being exercised or (ii) by any other means (including, without
limitation, by delivery of a promissory note of the optionee payable on such
terms as are specified by the Board of Directors) which the Board of Directors
determines are consistent with the purpose of the Plan and with applicable laws
and regulations (including, without limitation, the provisions of Regulation T
promulgated by the Federal Reserve Board). The fair market value of any shares
of the Company's Common Stock or other non-cash consideration which may be
delivered upon exercise of an option shall be determined by the Board of
Directors.
7. Option Period.
-------------
Each option and all rights thereunder shall expire on such date as shall be
set forth in the applicable option agreement, except that, in the case of an
Incentive Stock Option, such date shall not be later than ten years after the
date on which the option is granted and, in all cases, options shall be subject
to earlier termination as provided in the Plan.
8. Exercise of Options.
-------------------
Each option granted under the Plan shall be exercisable either in full or
in installments at such time or times and during such period as shall be set
forth in the agreement evidencing such option, subject to the provisions of the
Plan.
-4-
<PAGE> 5
9. Nontransferability of Options.
-----------------------------
Options shall not be assignable or transferable by the person to whom they
are granted, either voluntarily or by operation of law, except by will or the
laws of descent and distribution, and, during the life of the optionee, shall be
exercisable only by the optionee; provided, however, that Non-Statutory Options
may be transferred pursuant to a qualified domestic relations order (as defined
in Rule 16b-3).
10. Effect of Termination of Employment or Other Relationship.
---------------------------------------------------------
Except as provided in Section 11(d) with respect to Incentive Stock
Options, and subject to the provisions of the Plan, the Board of Directors shall
determine the period of time during which an optionee may exercise an option
following (i) the termination of the optionee's employment or other relationship
with the Company or (ii) the death or disability of the optionee. Such periods
shall be set forth in the agreement evidencing such option.
11. Incentive Stock Options.
-----------------------
Options granted under the Plan which are intended to be Incentive Stock
Options shall be subject to the following additional terms and conditions:
(a) EXPRESS DESIGNATION. All Incentive Stock Options granted under the Plan
shall, at the time of grant, be specifically designated as such in the option
agreement covering such Incentive Stock Options.
(b) 10% SHAREHOLDER. If any employee to whom an Incentive Stock Option is
to be granted under the Plan is, at the time of the grant of such option, the
owner of stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company (after taking into account the attribution
of stock ownership rules of Section 424(d) of the Code), then the following
special provisions shall be applicable to the Incentive Stock Option granted to
such individual:
(i) The purchase price per share of the Common Stock subject to such
Incentive Stock Option shall not be less than 110% of the fair market value
of one share of Common Stock at the time of grant; and
-5-
<PAGE> 6
(ii) the option exercise period shall not exceed five years from the
date of grant.
(c) DOLLAR LIMITATION. For so long as the Code shall so provide, options
granted to any employee under the Plan (and any other incentive stock option
plans of the Company) which are intended to constitute Incentive Stock Options
shall not constitute Incentive Stock Options to the extent that such options, in
the aggregate, become exercisable for the first time in any one calendar year
for shares of Common Stock with an aggregate fair market value (determined as of
the respective date or dates of grant) of more than $100,000.
(d) TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY. No Incentive Stock
Option may be exercised unless, at the time of such exercise, the optionee is,
and has been continuously since the date of grant of his or her option, employed
by the Company, except that:
(i) an Incentive Stock Option may be exercised within the period of
three months after the date the optionee ceases to be an employee of the
Company (or within such lesser period as may be specified in the applicable
option agreement), PROVIDED, that the agreement with respect to such option
may designate a longer exercise period and that the exercise after such
three-month period shall be treated as the exercise of a non-statutory
option under the Plan;
(ii) if the optionee dies while in the employ of the Company, or
within three months after the optionee ceases to be such an employee, the
Incentive Stock Option may be exercised by the person to whom it is
transferred by will or the laws of descent and distribution within the
period of one year after the date of death (or within such lesser period as
may be specified in the applicable option agreement); and
(iii) if the optionee becomes disabled (within the meaning of Section
22(e) (3) of the Code or any successor provision thereto) while in the
employ of the Company, the Incentive Stock Option may be exercised within
the period of one year after the date the optionee ceases to be such an
employee because of such disability (or within such lesser period as may be
specified in the applicable option agreement).
-6-
<PAGE> 7
For all purposes of the Plan and any option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of the
Income Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions, no Incentive Stock Option may be exercised after its
expiration date.
12. Additional Provisions.
---------------------
(a) ADDITIONAL OPTION PROVISIONS. The Board of Directors may, in its sole
discretion, include additional provisions in option agreements covering options
granted under the Plan, including without limitation restrictions on transfer,
repurchase rights, commitments to pay cash bonuses, to make, arrange for or
guaranty loans or to transfer other property to optionees upon exercise of
options, or such other provisions as shall be determined by the Board of
Directors; PROVIDED THAT such additional provisions shall not be inconsistent
with any other term or condition of the Plan and such additional provisions
shall not cause any Incentive Stock Option granted under the Plan to fail to
qualify as an Incentive Stock Option within the meaning of Section 422 of the
Code.
(b) ACCELERATION, EXTENSION, ETC. The Board of Directors may, in its sole
discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all, or any particular, option or options granted under the
Plan may be exercised.
13. General Restrictions.
--------------------
(a) INVESTMENT REPRESENTATIONS. The Company may require any person to whom
an option is granted, as a condition of exercising such option, to give written
assurances in substance and form satisfactory to the Company to the effect that
such person is acquiring the Common Stock subject to the option for his or her
own account for investment and not with any present intention of selling or
otherwise distributing the same, and to such other effects as the Company deems
necessary or appropriate in order to comply with federal and applicable state
securities laws, or with covenants or representations made by the Company in
connection with any public offering of its Common Stock.
(b) COMPLIANCE WITH SECURITIES LAWS. Each option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or
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<PAGE> 8
qualification of the shares subject to such option upon any securities exchange
or under any state or federal law, or the consent or approval of any
governmental or regulatory body, or that the disclosure of non-public
information or the satisfaction of any other condition is necessary as a
condition of, or in connection with, the issuance or purchase of shares
thereunder, such option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, or satisfaction of
such condition shall have been effected or obtained on conditions acceptable to
the Board of Directors. Nothing herein shall be deemed to require the Company to
apply for or to obtain such listing, registration or qualification, or to
satisfy such condition.
14. Rights as a Shareholder.
-----------------------
The holder of an option shall have no rights as a shareholder with respect
to any shares covered by the option (including, without limitation, any rights
to receive dividends or non-cash distributions with respect to such shares)
until the date of issue of a stock certificate to him or her for such shares. No
adjustment shall be made for dividends or other rights for which the record date
is prior to the date such stock certificate is issued.
15. Adjustment Provisions for Recapitalizations and Related Transactions.
--------------------------------------------------------------------
(a) GENERAL. If, through or as a result of any merger, consolidation, sale
of all or substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar transaction, (i) the outstanding shares of Common Stock
are increased, decreased or exchanged for a different number or kind of shares
or other securities of the Company, or (ii) additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Common Stock or other securities, an
appropriate and proportionate adjustment may be made in (x) the maximum number
and kind of shares reserved for issuance under the Plan, (y) the number and kind
of shares or other securities subject to any then outstanding options under the
Plan, and (z) the price for each share subject to any then outstanding options
under the Plan, without changing the aggregate purchase price as to which such
options remain exercisable. Notwithstanding the foregoing, no adjustment shall
be made pursuant to this Section 15 if such
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<PAGE> 9
adjustment would cause the Plan to fail to comply with Section 422 of the Code.
(b) BOARD AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments under this Section
15 will be made by the Board of Directors, whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding
and conclusive. No fractional shares will be issued under the Plan on account of
any such adjustments.
16. Merger, Consolidation, Asset Sale, Liquidation, etc.
---------------------------------------------------
(a) GENERAL. In the event of a consolidation or merger or sale of all or
substantially all of the assets of the Company in which outstanding shares of
Common Stock are exchanged for securities, cash or other property of any other
corporation or business entity or in the event of a liquidation of the Company,
the Board of Directors of the Company, or the board of directors of any
corporation assuming the obligations of the Company, may, in its discretion,
take any one or more of the following actions, as to outstanding options: (i)
provide that such options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), PROVIDED that any such options substituted for Incentive Stock Options
shall meet the requirements of Section 424(a) of the Code, (ii) upon written
notice to the optionees, provide that all unexercised options will terminate
immediately prior to the consummation of such transaction unless exercised by
the optionee within a specified period following the date of such notice, (iii)
in the event of a merger under the terms of which holders of the Common Stock of
the Company will receive upon consummation thereof a cash payment for each share
surrendered in the merger (the "Merger Price"), make or provide for a cash
payment to the optionees equal to the difference between (A) the Merger Price
times the number of shares of Common Stock subject to such outstanding options
(to the extent then exercisable at prices not in excess of the Merger Price) and
(B) the aggregate exercise price of all such outstanding options in exchange for
the termination of such options, and (iv) provide that all or any outstanding
options shall become exercisable in full immediately prior to such event.
(b) SUBSTITUTE OPTIONS. The Company may grant options under the Plan in
substitution for options held by employees of another corporation who become
employees of the Company, or a subsidiary of the Company, as the result of a
merger or consolidation of the
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<PAGE> 10
employing corporation with the Company or a subsidiary of the Company, or as a
result of the acquisition by the Company, or one of its subsidiaries, of
property or stock of the employing corporation. The Company may direct that
substitute options be granted on such terms and conditions as the Board of
Directors considers appropriate in the circumstances.
17. No Special Employment Rights.
----------------------------
Nothing contained in the Plan or in any option shall confer upon any
optionee any right with respect to the continuation of his or her employment by
the Company or interfere in any way with the right of the Company at any time to
terminate such employment or to increase or decrease the compensation of the
optionee.
18. Other Employee Benefits.
-----------------------
Except as to plans which by their terms include such amounts as
compensation, the amount of any compensation deemed to be received by an
employee as a result of the exercise of an option or the sale of shares received
upon such exercise will not constitute compensation with respect to which any
other employee benefits of such employee are determined, including, without
limitation, benefits under any bonus, pension, profit-sharing, life insurance or
salary continuation plan, except as otherwise specifically determined by the
Board of Directors.
19. Amendment of the Plan.
---------------------
(a) The Board of Directors may at any time, and from time to time, modify
or amend the Plan in any respect, except that if at any time the approval of the
shareholders of the Company is required under Section 422 of the Code or any
successor provision with respect to Incentive Stock Options, or under Rule
16b-3, the Board of Directors may not effect such modification or amendment
without such approval.
(b) The termination or any modification or amendment of the Plan shall not,
without the consent of an optionee, affect his or her rights under an option
previously granted to him or her. With the consent of the optionee affected, the
Board of Directors may amend outstanding option agreements in a manner not
inconsistent with the Plan. The Board of Directors shall have the right to amend
or modify (i) the terms and provisions of the Plan and of any outstanding
Incentive Stock Options granted under the Plan to the extent necessary to
qualify any or all such options for such
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<PAGE> 11
favorable federal income tax treatment (including deferral of taxation upon
exercise) as may be afforded incentive stock options under Section 422 of the
Code and (ii) the terms and provisions of the Plan and of any outstanding option
to the extent necessary to ensure the qualification of the Plan under Rule
16b-3.
20. Withholding.
-----------
(a) The Company shall have the right to deduct from payments of any kind
otherwise due to the optionee any federal, state or local taxes of any kind
required by law to be withheld with respect to any shares issued upon exercise
of options under the Plan. Subject to the prior approval of the Company, which
may be withheld by the Company in its sole discretion, the optionee may elect to
satisfy such obligations, in whole or in part, (i) by causing the Company to
withhold shares of Common Stock otherwise issuable pursuant to the exercise of
an option or (ii) by delivering to the Company shares of Common Stock already
owned by the optionee. The shares so delivered or withheld shall have a fair
market value equal to such withholding obligation. The fair market value of the
shares used to satisfy such withholding obligation shall be determined by the
Company as of the date that the amount of tax to be withheld is to be
determined. An optionee who has made an election pursuant to this Section 20(a)
may only satisfy his or her withholding obligation with shares of Common Stock
which are not subject to any repurchase, forfeiture, unfulfilled vesting or
other similar requirements.
(b) Notwithstanding the foregoing, in the case of a Reporting Person, no
election to use shares for the payment of withholding taxes shall be effective
unless made in compliance with any applicable requirements of Rule 16b-3 (unless
it is intended that the transaction not qualify for exemption under Rule 16b-3).
21. Cancellation and New Grant of Options, Etc.
------------------------------------------
The Board of Directors shall have the authority to effect, at any time and
from time to time, with the consent of the affected optionees, (i) the
cancellation of any or all outstanding options under the Plan and the grant in
substitution therefor of new options under the Plan covering the same or
different numbers of shares of Common Stock and having an option exercise price
per share which may be lower or higher than the exercise price per share of the
cancelled options or (ii) the amendment of the terms of any and all outstanding
options under the Plan to provide an
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<PAGE> 12
option exercise price per share which is higher or lower than the then-current
exercise price per share of such outstanding options.
22. Effective Date and Duration of the Plan.
---------------------------------------
(a) EFFECTIVE DATE. The Plan shall become effective when adopted by the
Board of Directors, but no option granted under the Plan shall become
exercisable unless and until the Plan shall have been approved by the Company's
shareholders. If such shareholder approval is not obtained within twelve months
after the date of the Board's adoption of the Plan, options previously granted
under the Plan shall not vest and shall terminate and no options shall be
granted thereafter. Amendments to the Plan not requiring shareholder approval
shall become effective when adopted by the Board of Directors; amendments
requiring shareholder approval (as provided in Section 19) shall become
effective when adopted by the Board of Directors, but no option granted after
the date of such amendment shall become exercisable (to the extent that such
amendment to the Plan was required to enable the Company to grant such option to
a particular person) unless and until such amendment shall have been approved by
the Company's shareholders. If such shareholder approval is not obtained within
twelve months of the Board's adoption of such amendment, any options granted on
or after the date of such amendment shall terminate to the extent that such
amendment was required to enable the Company to grant such option to a
particular optionee. Subject to this limitation, options may be granted under
the Plan at any time after the effective date and before the date fixed for
termination of the Plan.
(b) TERMINATION. Unless sooner terminated in accordance with Section 16,
the Plan shall terminate upon the close of business on the day next preceding
the tenth anniversary of the date of its adoption by the Board of Directors.
Options outstanding on such date shall continue to have force and effect in
accordance with the provisions of the instruments evidencing such options.
23. Provision for Foreign Participants.
----------------------------------
The Board of Directors may, without amending the Plan, modify awards or
options granted to participants who are foreign nationals or employed outside
the United States to recognize
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<PAGE> 13
differences in laws, rules, regulations or customs of such foreign jurisdictions
with respect to tax, securities, currency, employee benefit or other matters.
Adopted by the Board of Directors on
October 23, 1995.
Approved by the Stockholders of the
Company on February 2, 1996.
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<PAGE> 14
First Amendment to 1995 Stock Option Plan
-----------------------------------------
The 1995 Stock Option Plan of Concert Communications Corporation is hereby
amended by adding the following paragraph at the end of Section 16(a):
"Notwithstanding the foregoing, upon any consolidation, merger, sale or
liquidation referred to in the preceding paragraph, each option then
held by such optionee shall become exercisable as to 50% of the shares
subject to such option that are not then otherwise exercisable and the
number of shares that shall become exercisable on each date during the
remainder of the original vesting period shall be reduced by 50%."
Adopted by the Board of Directors on
December 7, 1995
<PAGE> 1
Exhibit 5.1
June 18, 1996
Cascade Communications Corp.
5 Carlisle Road
Westford, MA 01886
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by Cascade Communications Corp. (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to an aggregate of two hundred forty two thousand
twenty one (242,021) shares of Common Stock, $.001 par value, of the Company
(the "Shares").
We are counsel to the Company and are familiar with the proceedings of its
stockholders and Board of Directors. We have examined original or certified
copies of the Company's certificate of incorporation, as amended, the Company's
by-laws, as amended, the corporate records of the Company to the date hereof,
and such other certificates, documents, records and materials as we have deemed
necessary in connection with this opinion letter.
We are members of the Bar of the Commonwealth of Massachusetts and are not
expert in, and express no opinion regarding, the laws of any jurisdictions other
than the Commonwealth of Massachusetts, the General Corporation Law of the State
of Delaware and the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares proposed to be issued by the Company pursuant to the Arris Networks, Inc.
1995 Stock Option Plan (the "Plan") will be, upon receipt of the consideration
provided for in the Plan, validly issued, fully paid and nonassessable after
issuance of such Shares in accordance with the terms of the Plan.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Cascade Communications Corp. on Form S-8 of our report dated February 1, 1996,
on our audits of the consolidated financial statements and financial statement
schedule of Cascade Communication Corp. as of December 31, 1995 and 1994, and
for each of the three years in the period ended December 31, 1995 which report
is included in the Cascade Communications Corp. 1995 Annual Report on Form 10K.
Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 19, 1996
