Exhibit 10.2
SEVERANCE PROTECTION AGREEMENT
THIS AGREEMENT entered into as of the 28th day of January 2005 and
effective as of March 16, 2005 (the "Effective Date"), by and between NMS
Communications Corporation (the "Company") and D'Xxxx Xxxx (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the possibility of a Change in Control (as hereinafter defined) exists and
that the threat or the occurrence of a Change in Control can result in
significant distraction of the Company's key management personnel because of the
uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its stockholders for the Company to retain the
services of the Executive in the event of a threat or occurrence of a Change in
Control and to ensure the Executive's continued dedication and efforts in such
event without undue concern for the Executive's personal financial and
employment security;
WHEREAS, The Board by unanimous resolution at a meeting held on December
19, 1997, adopted a Change of Control plan to encourage such retention; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Company, particularly in the event of a threat or the occurrence of a Change in
Control, the Company desires to enter into this Agreement with the Executive to
provide the Executive with certain benefits in the event the Executive's
employment is terminated as a result of, or in connection with, a Change in
Control and to provide the Executive with the Gross-Up Payment (as hereinafter
defined).
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of the Effective
Date, and shall continue in effect until December 31, 2005 (the "Term");
provided, however, that on December 31, 2005, and on each December 31
thereafter, the Term shall automatically be extended for one (1) year unless
either the Executive or the Company shall have given written notice to the other
at least sixty (60) days prior thereto that the Term shall not be so extended;
provided, further, however, that following the occurrence of a Change in
Control, the Term shall not expire prior to the expiration of eighteen (18)
months after such occurrence.
2. Termination of Employment. If, during the Term, the Executive's
employment with the Company and with any Affiliates shall be terminated within
eighteen (18) months following a Change in Control, the Executive shall be
entitled to the following compensation and benefits:
(a) If the Executive's employment with the Company [and with any Affiliate]
shall be terminated (1) by the Company for Cause or Disability, (2) by reason of
the Executive's death, or (3) by the Executive other than for Good Reason, the
Company shall pay to the Executive his Accrued Compensation. The Executive's
entitlement to any other compensation or benefits shall be determined in
accordance with the Company's employee benefits plans and other applicable
programs and practices then in effect.
(b) If the Executive's employment with the Company [and with any Affiliate]
shall be terminated for any reason other than as specified in Section 2(a), the
Executive shall be entitled to the following:
(1) the Company shall pay the Executive all Accrued Compensation;
(2) the Company shall pay the Executive as severance pay and in lieu of any
further compensation for periods subsequent to the Termination Date, an amount
equal to the sum of (i) the Executive's Base Amount and (ii) the Executive's
Bonus Amount.
(3) for twelve (12) months after the Termination Date, the Company shall at
its expense continue on behalf of the Executive and his dependents and
beneficiaries the life insurance, disability, medical, dental and
hospitalization coverages and benefits provided to the Executive immediately
prior to the Change in Control or, if greater, the coverages and benefits
provided at any time thereafter. The coverages and benefits (including
deductibles and costs) provided in this Section 2(b)(3) during the Continuation
Period shall be no less favorable to the Executive and his dependents and
beneficiaries, than the most favorable of such coverages and benefits referred
to above. The Company's obligation hereunder with respect to the foregoing
coverages and benefits shall be reduced to the extent that the Executive obtains
any such coverages and benefits pursuant to a subsequent employer's benefit
plans, in which case the Company may reduce any of the coverages or benefits it
is required to provide the Executive hereunder so long as the aggregate
coverages and benefits of the combined benefit plans is no less favorable to the
Executive than the coverages and benefits required to be provided hereunder.
This Section 2(b)(3) shall not be interpreted so as to limit any benefits to
which the Executive, his dependents or beneficiaries may be entitled under any
of the Company's employee benefit plans, programs or practices following the
Executive's termination of employment, including without limitation, retiree
medical and life insurance benefits;
(c) If the Executive's employment is terminated by the Company without
Cause prior to the date of a Change in Control but the Executive reasonably
demonstrates that such termination (A) was at the request of a third party who
has indicated an intention or taken steps reasonably calculated to effect a
Change in Control (a "Third Party") and who effectuates a Change in Control or
(B) otherwise arose in connection with, or in anticipation of, a Change in
Control which has been threatened or proposed and which actually occurs, such
termination shall be deemed to have occurred after a Change in Control, provided
a Change in Control shall actually have occurred.
(d) (1) Gross-Up Payment. In the event it shall be determined that any
payment (other than the payment provided for in this Section 2(d)) or
distribution of any type to or for the benefit of the Executive, by the Company,
any Affiliate, any Person (as defined in Section 14.6(a) hereof) who acquires
ownership or effective control of the Company or ownership of a substantial
portion of the Company's assets (within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder) or any affiliate of such Person, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Total Payments"), is or will be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income tax,
employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Total Payments.
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(2) Determination By Accountant. All mathematical determinations, and all
determinations as to whether any of the Total Payments are "parachute payments"
(within the meaning of Section 280G of the Code), that are required to be made
under this Section 2(d), including determinations as to whether a Gross-Up
Payment is required, the amount of such Gross-Up Payment and amounts relevant to
the last sentence of this Section 2(d)(2), shall be made by an independent
accounting firm selected by the Executive from among the six (6) largest
accounting firms in the United States (the "Accounting Firm"), which shall
provide its determination (the "Determination"), together with detailed
supporting calculations regarding the amount of any Gross-Up Payment and any
other relevant matter, both to the Company and the Executive by no later than
ten (10) days following the Termination Date, if applicable, or such earlier
time as is requested by the Company or the Executive (if the Executive
reasonably believes that any of the Total Payments may be subject to the Excise
Tax). If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Executive and the Company with a written
statement that such Accounting Firm has concluded that no Excise Tax is payable
(including the reasons therefor) and that the Executive has substantial
authority not to report any Excise Tax on his federal income tax return. If a
Gross-Up Payment is determined to be payable, it shall be paid to the Executive
within twenty (20) days after the Determination (and all accompanying
calculations and other material supporting the Determination) is delivered to
the Company by the Accounting Firm. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive, absent manifest error. As a
result of uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments not made by the Company should have been made
("Underpayment"), or that Gross-Up Payments will have been made by the Company
which should not have been made ("Overpayments"). In either such event, the
Accounting Firm shall determine the amount of the Underpayment or Overpayment
that has occurred. In the case of an Underpayment, the amount of such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive. In the case of an Overpayment, the Executive shall, at the direction
and expense of the Company, take such steps as are reasonably necessary
(including the filing of returns and claims for refund), follow reasonable
instructions from, and procedures established by, the Company, and otherwise
reasonably cooperate with the Company to correct such Overpayment, provided,
however, that (i) the Executive shall not in any event be obligated to return to
the Company an amount greater than the net after-tax portion of the Overpayment
that he has retained or has recovered as a refund from the applicable taxing
authorities and (ii) this provision shall be interpreted in a manner consistent
with the intent of Section 2(d)(1), which is to make the Executive whole, on an
after-tax basis, from the application of the Excise Tax, it being understood
that the correction of an Overpayment may result in the Executive repaying to
the Company an amount which is less than the Overpayment. The amounts provided
for in Sections 2(a) and 2(b)(1) and (2) shall be paid in a single lump sum cash
payment within thirty (30) days after the Executive's Termination Date (or
earlier, if required by applicable law).
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(e) The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise
and no such payment shall be offset or reduced by the amount of any compensation
or benefits provided to the Executive in any subsequent employment except as
provided in Section 2(b)(3).
(f) The severance pay and benefits provided for in this Section 2 shall be
in lieu of any other severance pay to which the Executive may be entitled under
the Company's Severance Procedure or any other plan, agreement or arrangement of
the Company or any Affiliate.
3. Notice of Termination. Following a Change in Control, any intended
termination of the Executive's employment by the Company shall be communicated
by a Notice of Termination from the Company to the Executive, and any intended
termination of the Executive's employment by the Executive for Good Reason shall
be communicated by a Notice of Termination from the Executive to the Company.
4. Fees and Expenses. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Executive as they become due as a result of (a) the termination of the
Executive's employment by the Company or by the Executive for Good Reason
(including all such fees and expenses, if any, incurred in contesting, defending
or disputing the basis for any such termination of employment), (b) the
Executive's hearing before the Board as contemplated in Section 14.5 of this
Agreement or (c) the Executive seeking to obtain or enforce any right or benefit
provided by this Agreement or by any other plan or arrangement maintained by the
Company under which the Executive is or may be entitled to receive benefits.
5. Transfer of Employment. Notwithstanding any other provision herein to
the contrary, the Company shall cease to have any further obligation or
liability to the Executive under this Agreement if (a) the Executive's
employment with the Company terminates as a result of the transfer of his
employment to any Affiliate, (b) this Agreement is assigned to such other
Affiliate, and (c) such other Affiliate expressly assumes and agrees to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no assignment had taken place. Any Affiliate to
which this Agreement is so assigned shall be treated as the "Company" for all
purposes of this Agreement on or after the date as of which such assignment to
the Affiliate, and the Affiliate's assumption and agreement to so perform this
Agreement, becomes effective.
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6. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including any Notice of
Termination) shall be in writing, shall be signed by the Executive if to the
Company or by a duly authorized officer of the Company if to the Executive, and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses last given by each party to the other, provided that all
notices to the Company shall be directed to the attention of the Board with a
copy to the Secretary of the Company. All notices and communications shall be
deemed to have been received on the date of delivery thereof or on the third
business day after the mailing thereof, except that notice of change of address
shall be effective only upon receipt.
7. Nature of Rights. The Executive shall have the status of a mere
unsecured creditor of the Company with respect to his right to receive any
payment under this Agreement. This Agreement shall constitute a mere promise by
the Company to make payments in the future of the benefits provided for herein.
It is the intention of the parties hereto that the arrangements reflected in
this Agreement shall be treated as unfunded for tax purposes and, if it should
be determined that Title I of ERISA is applicable to this Agreement, for
purposes of Title I of ERISA. Except as provided in Section 2(g), nothing in
this Agreement shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plan or program provided
by the Company or any Affiliate and for which the Executive may qualify, nor
shall anything herein limit or reduce such rights as the Executive may have
under any other agreements with the Company or any Affiliate. Amounts which are
vested benefits or which the Executive is otherwise entitled to receive under
any plan or program of the Company or any Affiliate shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
8. Settlement of Claims. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, defense, recoupment, or other right which
the Company may have against the Executive or others.
9. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by the Executive and the Company. No waiver by any party hereto at
any time of any breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreement or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by any party which are not expressly set forth in this Agreement.
10. Successors; Binding Agreement.
(a) This Agreement shall be binding upon and shall inure to the benefit of
the Company and its Successors and Assigns. The Company shall require its
Successors and Assigns to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place.
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(b) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
11. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts
without giving effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be brought and maintained in a
court of competent jurisdiction in Middlesex or Suffolk Counties in the
Commonwealth of Massachusetts.
12. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto,
with respect to the subject matter hereof.
14. Definitions.
14.1. Accrued Compensation. For purposes of this Agreement, "Accrued
Compensation" shall mean all amounts of compensation for services rendered to
the Company [or any other Affiliate] that have been earned or accrued through
the Termination Date but that have not been paid as of the Termination Date
including (a) base salary, (b) reimbursement for reasonable and necessary
business expenses incurred by the Executive on behalf of the Company during the
period ending on the Termination Date, (c) vacation pay and (d) bonuses and
incentive compensation; provided, however, that Accrued Compensation shall not
include any amounts described in clause (a) or clause (d) that have been
deferred pursuant to any salary reduction or deferred compensation elections
made by the Executive.
14.2. Affiliate. For purposes of this Agreement, "Affiliate" means any
entity, directly or indirectly, controlled by, controlling or under common
control with the Company or any corporation or other entity acquiring, directly
or indirectly, all or substantially all the assets and business of the Company,
whether by operation of law or otherwise.
14.3. Base Amount. For purposes of this Agreement, "Base Amount" shall mean
the Executive's annual base salary at the rate in effect as of the date of a
Change in Control or, if greater, at any time thereafter, determined without
regard to any salary reduction or deferred compensation elections made by the
Executive.
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14.4. Bonus Amount. For purposes of this Agreement, "Bonus Amount" shall
mean the greater of (a) the target annual bonus payable to the Executive under
the Incentive Plan in respect of the fiscal year during which the Termination
Date occurs or (b) the highest annual bonus paid or payable under the Incentive
Plan in respect of any of the three full fiscal years ended prior to the
Termination Date or, if greater, the three (3) full fiscal years ended prior to
the Change in Control.
14.5. Cause. For purposes of this Agreement, a termination of employment is
for "Cause" if the Executive has been convicted of a felony or the termination
is evidenced by a resolution adopted in good faith by two-thirds of the Board
that the Executive:
(a) intentionally and continually failed substantially to perform his
reasonably assigned duties with the Company (other than a failure resulting from
the Executive's incapacity due to physical or mental illness or from the
assignment to the Executive of duties that would constitute Good Reason) which
failure continued for a period of at least thirty (30) days after a written
notice of demand for substantial performance, signed by a duly authorized
officer of the Company, has been delivered to the Executive specifying the
manner in which the Executive has failed substantially to perform, or
(b) intentionally engaged in conduct which is demonstrably and materially
injurious to the Company; provided, however, that no termination of the
Executive's employment shall be for Cause as set forth in this Section 14.5(b)
until (1) there shall have been delivered to the Executive a copy of a written
notice, signed by a duly authorized officer of the Company, setting forth that
the Executive was guilty of the conduct set forth in this Section 14.5(b) and
specifying the particulars thereof in detail, and (2) the Executive shall have
been provided an opportunity to be heard in person by the Board (with the
assistance of the Executive's counsel if the Executive so desires).
No act, nor failure to act, on the Executive's part, shall be considered
"intentional" unless the Executive has acted, or failed to act, with a lack of
good faith and with a lack of reasonable belief that the Executive's action or
failure to act was in the best interest of the Company. Notwithstanding anything
contained in this Agreement to the contrary, no failure to perform by the
Executive after a Notice of Termination is given to the Company by the Executive
shall constitute Cause for purposes of this Agreement.
14.6. Change in Control. A "Change in Control" shall mean the occurrence
during the term of the Agreement of:
(a) the direct or indirect acquisition by any person, entity or group
acting in concert of more than 35% of the aggregate voting power of the
outstanding securities of the Company having the right to vote at elections of
directors;
(b) a majority of the board of directors of the Company ceasing to consist
of individuals who are members of such board on December 19, 1997 (the
"Incumbent Board"); provided, however, that if the election, or nomination for
election by the Company's shareholders, of any new director was approved by a
vote of at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this definition, be considered as a member of the Incumbent Board;
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(c) the disposition by the Company of substantially all its business, other
than in connection with a mere change of place of incorporation or similar mere
change in form; or
(d) a complete liquidation or dissolution of the Company;
provided, however, in determining whether a Change in Control has occurred,
voting securities which are acquired in a Non-Control Acquisition (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i)
a Company employee benefit plan (or a trust forming a part thereof) maintained
(A) by the Company or (B) by any corporation or other entity of which a majority
of its voting power is owned, directly or indirectly, by the Company (a
"Subsidiary") or (ii) the Company or its Subsidiaries.
14.7. Company. For purposes of this Agreement, all references to the
Company shall include its Successors and Assigns.
14.8. Disability. For purposes of this Agreement, "Disability" shall mean a
physical or mental infirmity which impairs the Executive's ability to
substantially perform his duties with the Company for six (6) consecutive
months, and within the time period set forth in a Notice of Termination given to
the Executive (which time period shall not be less than thirty (30) days), the
Executive shall not have returned to full-time performance of his duties;
provided, however, that if the Company's long term disability plan, or any
successor plan (the "Disability Plan"), is then in effect, the Executive shall
not be deemed disabled for purposes of this Agreement unless the Executive is
also eligible for "Total Disability" (as defined in the Disability Plan)
benefits (or similar benefits in the event of a successor plan) under the
Disability Plan.
14.9. Good Reason. (a) For purposes of this Agreement, "Good Reason" shall
mean the occurrence after a Change in Control of any of the following events or
conditions:
(1) an election by the Executive, in his or her sole discretion, to
terminate employment, as evidenced by notice to the Company given within four
(4) months after a Change of Control, such termination to be effective within
such four month period; provided that Executive has continued as an employee of
the Company [or any Affiliate] for at least sixty (60) days after a Change of
Control;
(2) a change in the Executive's status, title, position or responsibilities
(including reporting responsibilities) which, in the Executive's reasonable
judgment, represents an adverse change from his status, title, position or
responsibilities as in effect immediately prior thereto; the assignment to the
Executive of any duties or responsibilities which, in the Executive's reasonable
judgment, are inconsistent with his status, title, position or responsibilities;
or any removal of the Executive from or failure to reappoint or reelect him to
any of such offices or positions, except in connection with the termination of
his employment for Disability, Cause, as a result of his death or by the
Executive other than for Good Reason;
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(3) a reduction in the Executive's annual base salary below the Base
Amount;
(4) the relocation of the offices of the Company at which the Executive is
principally employed to a location more than twenty-five (25) miles from the
location of such offices immediately prior to the Change in Control, or the
Company's requiring the Executive to be based anywhere other than such offices,
except to the extent the Executive was not previously assigned to a principal
location and except for required travel on the Company's business to an extent
substantially consistent with the Executive's business travel obligations at the
time of the Change in Control;
(5) the failure by the Company to pay to the Executive any portion of the
Executive's current compensation or to pay to the Executive any portion of an
installment of deferred compensation under any deferred compensation program of
the Company in which the Executive participated, within seven (7) days of the
date such compensation is due;
(6) the failure by the Company to (A) continue in effect (without reduction
in benefit level, and/or reward opportunities) any material compensation or
employee benefit plan in which the Executive was participating immediately prior
to the Change in Control, unless a substitute or replacement plan has been
implemented which provides substantially identical compensation or benefits to
the Executive or (B) provide the Executive with compensation and benefits, in
the aggregate, at least equal (in terms of benefit levels and/or reward
opportunities) to those provided for under each other compensation or employee
benefit plan, program and practice in which the Executive was participating
immediately prior to the Change in Control;
(7) the failure of the Company to obtain from its Successors or Assigns the
express assumption and agreement required under Section 10 hereof; or
(8) any purported termination of the Executive's employment by the Company
which is not effected pursuant to a Notice of Termination satisfying the terms
set forth in the definition of Notice of Termination (and, if applicable, the
terms set forth in the definition of Cause).
(b) Any event or condition described in Section 14.9(a)(2) through (8)
which occurs [(1) within three (3) months prior to a Change in Control or (2)]
prior to a Change in Control but which the Executive reasonably demonstrates (A)
was at the request of a Third Party or (B) otherwise arose in connection with,
or in anticipation of a Change in Control which has been threatened or proposed
and which actually occurs, shall constitute Good Reason for purposes of this
Agreement notwithstanding that it occurred prior to a Change in Control.
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14.10. Incentive Plan. For purposes of this Agreement, "Incentive Plan"
shall mean the annual executive incentive plan, maintained by the Company [or
any other Affiliate].
14.11. Notice of Termination. For purposes of this Agreement, following a
Change in Control, "Notice of Termination" shall mean a written notice of
termination of the Executive's employment, signed by the Executive if to the
Company or by a duly authorized officer of the Company if to the Executive,
which indicates the specific termination provision in this Agreement, if any,
relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
14.12. Successors and Assigns. For purposes of this Agreement, "Successors
and Assigns" shall mean, with respect to the Company, a corporation or other
entity acquiring all or substantially all the assets and business of the
Company, as the case may be (including this Agreement), whether by operation of
law or otherwise.
14.13. Termination Date. For purposes of this Agreement, "Termination Date"
shall mean (a) in the case of the Executive's death, his date of death, (b) if
the Executive's employment is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that the Executive shall not have
returned to the performance of his duties on a full-time basis during such
thirty (30) day period) and (c) if the Executive's employment is terminated for
any other reason, the date specified in the Notice of Termination (which, in the
case of a termination for Cause shall not be less than thirty (30) days, and in
the case of a termination for Good Reason shall not be more than sixty (60)
days, from the date such Notice of Termination is given); provided, however,
that if within thirty (30) days after any Notice of Termination is given the
party receiving such Notice of Termination in good faith notifies the other
party that a dispute exists concerning the basis for the termination, the
Termination Date shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, or by the final judgment,
order or decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been taken). Notwithstanding the
pendency of any such dispute, the Company shall continue to pay the Executive
his Base Amount and continue the Executive as a participant in all compensation,
incentive, bonus, pension, profit sharing, medical, hospitalization, dental,
life insurance and disability benefit plans in which he was participating when
the notice giving rise to the dispute was given, until the dispute is finally
resolved in accordance with this Section whether or not the dispute is resolved
in favor of the Company, and the Executive shall not be obligated to repay to
the Company any amounts paid or benefits provided pursuant to this sentence.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officers and the Executive has executed this Agreement as of
the day and year first above written.
NMS Communications Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
ATTEST: Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx Xxxxxx Chairman, President and CEO
--------------------------------
Xxxxxx Xxxxxx, Secretary
/s/ D'Xxxx Xxxx
----------------------
D'Xxxx Xxxx
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