Exhibit 10.4


 


VOTING AND STANDSTILL AGREEMENT


 


This VOTING AND STANDSTILL AGREEMENT (the “Agreement”),
dated as of November 18, 2008, is by and among NMS Communications
Corporation, a Delaware corporation (“NMS”), and the individuals and
entities listed on Schedule A hereto (each a “Stockholder” and
collectively the “Stockholders”).


 


WHEREAS, the Stockholders own (of record and
beneficially) shares of common stock, par value $0.01 per share, of NMS (the “Common
Stock”);


 


WHEREAS, NMS and Dialogic Corporation (“Dialogic”)
are parties to an Asset Purchase Agreement dated as of September 12, 2008
(as in effect on the date hereof, the “Purchase Agreement”), pursuant to
which, among other things, NMS has agreed to sell to Dialogic NMS’s NMS
Communications Platforms business (the “Business”) (the sale of the
Business and the other transactions contemplated by the Purchase Agreement are
collectively referred to as the “Asset Sale”);


 


WHEREAS, in connection with the Asset Sale,
on or about October 20, 2008, NMS mailed a proxy statement dated as of October 20,
2008 (such proxy statement and all related notices and related material, all as
originally filed with the U.S. Securities and Exchange Commission (the “SEC”)
and as the same may be amended, modified or supplemented by NMS are
collectively referred to as the “Proxy Statement”) to holders of Common
Stock which sets forth, among other things, a proposal to adopt and approve the
sale of the Business (such proposal and all other proposals set forth in the
Proxy Statement as of the date hereof are each a “Proposal” and are
collectively the “Proposals”);


 


WHEREAS, each Stockholder desires to support
each Proposal;


 


WHEREAS, certain other stockholders of NMS
(the “Other Stockholders”), who together with the Stockholders have
represented to NMS that they beneficially own an aggregate of 14,310,517 shares
of the Common Stock, and who are acting independently of the Stockholders, also
desire to support each Proposal, and NMS is entering into agreements similar to
this Agreement with such other stockholders; and


 


WHEREAS, in connection with the approval of
the Asset Sale, NMS desires to enlarge the Board of Directors of NMS (the “Board”)
as provided in Section 2 and resolve all matters among NMS and the
Stockholders including those matters at issue in or with respect to the
Proposals.


 


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 is hereby
acknowledged, the parties hereto hereby agree as follows:


 


Section 1.               Representations.


 


(a)           Binding Agreement; Authority.  NMS hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered by NMS, and is a
valid and binding obligation of NMS, enforceable against NMS in accordance with
its terms.  Each of the Stockholders
represents and warrants that this Agreement has been duly authorized, executed
and delivered by such Stockholder, and is a valid and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with its
terms.


 


(b)           Ownership of Common Stock.  Each of the Stockholders hereby represents
and warrants that, as of the date hereof, such Stockholder and such Stockholder’s
Affiliates (as such term is hereinafter 


 

















 


defined) are the “beneficial
owners” (as such term is hereinafter defined) of the shares of Common Stock set
forth opposite their respective name on Schedule A hereto (the “Shares”),
and that neither such Stockholder nor such Stockholder’s Affiliates
beneficially own, or have any rights, options or agreements to acquire or vote,
any other shares of Common Stock.


 


(c)           Defined Terms.  For purposes of this Agreement, the term “Affiliate”
shall have the meaning set forth in Rule 12b-2 promulgated by the SEC
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  For purposes of this Agreement, the terms “beneficial
owner” and “beneficially own” shall have the same meanings as set
forth in Rule 13d-3 promulgated by the SEC under the Exchange Act, except
that a person shall also be deemed to be the beneficial owner of all shares of
Common Stock that such person has the right to acquire pursuant to the exercise
of any rights in connection with any securities or any agreement, regardless of
when such rights may be exercised and whether they are conditional.


 


Section 2.               Directors.


 


(a)           Additional
Directors.  The Stockholders and NMS agree that, on or
before December 10, 2008, the Board will (i) increase the size of the
Board to eight (8) members and (ii)(A) appoint one (1) Stockholder
Designee to the class of directors whose term shall expire at NMS’s 2009 annual
meeting of stockholders (such person is referred to as the “2009 Stockholder
Designee”) and (B) appoint one (1) Stockholder Designee to the
class of directors whose term shall expire at NMS’s 2010 annual meeting of
stockholders (such person is referred to as the “2010 Stockholder Designee”).  At such time as a Stockholder Designee shall
become a director of NMS in accordance with the terms of this Agreement, such
Stockholder Designee shall agree in writing to be bound by the terms and
conditions of NMS’s policies applicable to directors, including, without
limitation, NMS’s Code of Conduct, Corporate Governance Guidelines and insider
trading policy.  The Stockholders and NMS
further agree that the Board will appoint Joel Hughes as Chief Executive
Officer of NMS and as a director in the class of directors whose term shall
expire at NMS’s 2011 annual meeting of stockholders upon the sooner of (i) January 1,
2009 or (ii) the closing of the Asset Sale.


 


(b)           Nominations.  At
NMS’s 2009 annual meeting of stockholders, NMS agrees to nominate (i) the
2009 Stockholder Designee for election to the class of directors whose term shall
expire at NMS’s 2012 annual meeting of stockholders and (ii) the 2010
Stockholder Designee for election to the class of directors whose term shall
expire at NMS’s 2010 annual meeting of stockholders, and NMS shall use its
reasonable best efforts to cause the election of such persons, each to serve
for the term of the applicable class in which they serve and until his or her
successor is duly elected and qualified.


 


(c)           Changes
in Composition of Board; Size of Board.  NMS shall accept (i) the
resignation of Robert Schechter as a director of the Board, such resignation to
be effective as of January 1, 2009 (or sooner at the discretion of such
director); and (ii) the resignation of Ronald White as a director of the
Board, such resignation to be effective as of January 1, 2009 (or sooner
at the discretion of such director).  In
addition, NMS shall accept the resignation of one (1) member of the Board,
such resignation to be effective as of the later of (A) January 1,
2009 and (B) the appointment of the Additional Independent Director (as
such term is hereinafter defined) to the Board. 
NMS represents and warrants to the Stockholders that it has received
irrevocable written resignations from the two (2) directors required to
resign pursuant to the first sentence of this Section 2(c), which
resignations provide for the effectiveness thereof in accordance with the terms
of this Section 2(c).  In
addition, subject to and as promptly as practicable following the effectiveness
of the resignations contemplated by this Section 2(c), NMS shall
decrease the size of the Board to six (6) members.  NMS shall use commercially reasonable efforts
to appoint to the Board prior to February 28, 2009, in addition to the
appointments contemplated by Section 2(a), one (1) individual
who is (x) “independent” under applicable securities laws and applicable
stock 


 


2

















 


exchange rules and regulations (or, if the Common Stock is not
listed on a stock exchange, any rules or regulations of any market on
which the Common Stock is listed or traded), (y) not an Affiliate of any
Stockholder or Other Stockholder and (z) recommended by the nominating
committee of the Board (such individual so appointed to the Board is referred
to as the “Additional Independent Director”).


 


(d)           Defined
Term.  For purposes of this Agreement, the term “Stockholder
Designee” shall mean an individual that is (i) designated by holders
of a majority of the shares of Common Stock held by all Stockholders and Other
Stockholders and (ii) is reasonably determined by a majority of the Board
(not including any Stockholder Designee and any other member of the Board that
is an Affiliate of any Stockholder or Other Stockholder) (the “Independent
Directors”) to be “independent” under applicable securities laws and
applicable stock exchange rules and regulations (or, if the Common Stock
is not listed on a stock exchange, any rules or regulations of any market
on which the Common Stock is listed or traded).


 


(e)           Information.  Each
Stockholder agrees to provide NMS with (i) such information concerning the
Stockholder Designees as is required under the proxy rules of the Exchange
Act in connection with the preparation and filing of a proxy statement that
includes a proposal to elect a Stockholder Designee to the Board, and (ii) such
information concerning the Stockholder Designees as the Independent Directors
shall reasonably request for the purpose of making the independence
determination described in Section 2(d)(ii).


 


(f)            Acknowledgement.  Each
Stockholder acknowledges that such Stockholder and such Stockholder’s
directors, officers, employees, agents, consultants, advisors or other
representatives, including legal counsel, accountants and financial advisors
(collectively, “Representatives”) are aware that the United States
securities laws prohibit any person who has material, non-public information
concerning a company from purchasing or selling securities of such company or
from communicating such information to any other person under circumstances in
which it is reasonably foreseeable that such person is likely to purchase or
sell such securities.


 


(g)              Assignment.  No
Stockholder may make any assignment of any of such Stockholder’s rights under
this Section 2, by operation of law or otherwise, without the prior
written consent of NMS.


 


Section 3.               Matters Relating to the Proposals;
Irrevocable Proxy; Lock-Up.


 


(a)           Voting
for Proposals.  At any meeting of the stockholders of NMS
called to vote upon any of the Proposals, or any adjournment or postponement
thereof, or in any other circumstances upon which a vote, consent or other
approval (including by written consent) with respect to any Proposal is sought,
each Stockholder shall vote (or caused to be voted) all such Stockholder’s
Shares in favor of, and shall consent to (or cause to be consented to), the
approval of each Proposal.  In connection
with the foregoing, the Stockholders shall cause all shares of Common Stock
beneficially owned by them, and/or their Affiliates, as of the record date for
any meeting of stockholders of NMS relating to the Proposals, to be present for
quorum purposes and to be voted, at such meeting or any adjournments or
postponements thereof, in favor of any of the matters described in this Section 3(a).


 


(b)           Irrevocable
Proxy.


 


(i)            Each
Stockholder has revoked or terminated any proxies, voting agreements or similar
arrangements previously given or entered into with respect to such Stockholder’s
Shares, and hereby irrevocably appoints NMS as proxy for such Stockholder to
vote such Stockholder’s Shares for such Stockholder and in such Stockholder’s
name, place and stead, in connection with any of the matters described in Section 3(a).  The parties acknowledge and agree that
neither NMS, nor NMS’s successors, 


 


3

















 


assigns, subsidiaries, divisions, employees, officers, directors,
stockholders, agents and Affiliates shall owe any duty to, whether in law or
otherwise, or incur any liability of any kind whatsoever, including without
limitation, with respect to any and all claims, losses, demands, causes of
action, costs, expenses (including reasonable attorney’s fees) and compensation
of any kind or nature whatsoever to any Stockholder in connection with  or as a result of any voting by NMS of the
Shares subject to the irrevocable proxy hereby granted to NMS at any annual,
special or other meeting or action or the execution of any consent of the
stockholders of NMS.  The parties
acknowledge that, pursuant to the authority hereby granted under the
irrevocable proxy, NMS may vote the Shares in furtherance of its own interests,
and NMS is not acting as a fiduciary for any Stockholder.


 


(ii)           Notwithstanding
the grant to NMS of the irrevocable proxy in Section 3(c)(i) above,
if NMS elects not to exercise its rights to vote a Stockholder’s Shares
pursuant to such irrevocable proxy, then such Stockholder agrees to vote such
Stockholder’s Shares during the term of this Agreement in favor of or against,
as the case may be, or give its consent to, as applicable, in each case, the
matters set forth in Section 3(a).


 


(iii)          The
irrevocable proxy set forth in Section 3(c)(i) shall not be
terminated by any act of any Stockholder or by operation of law, whether by the
death or incapacity of a Stockholder or by the occurrence of any other event or
events (including, without limiting the foregoing, the termination of any trust
or estate for which a Stockholder is acting as a fiduciary or fiduciaries or
the dissolution or liquidation of any corporation or partnership).  If between the execution hereof and the
Termination Date (as such term is hereinafter defined), a Stockholder should
die or become incapacitated, or if any trust or estate holding such Stockholder’s
Shares should be terminated, or if any corporation or partnership holding such
Stockholder’s Shares should be dissolved or liquidated, or if any other such
similar event or events shall occur before the Termination Date, certificates
representing such Stockholder’s Shares shall be delivered by or on behalf of
such Stockholder in accordance with the terms and conditions of this Agreement,
and actions taken by NMS hereunder shall be as valid as if such death,
incapacity, termination, dissolution, liquidation or other similar event or
events had not occurred, regardless of whether or not NMS has received notice
of such death, incapacity, termination, dissolution, liquidation or other
event.


 


(c)           Lock-Up.  Each
Stockholder hereby covenants and agrees that between the date hereof and the
Termination Date, such Stockholder will not (i) directly or indirectly,
sell, transfer, assign, pledge, hypothecate, tender, encumber or otherwise
dispose of or limit its right to vote in any manner any of such Stockholder’s
Shares, or agree to do any of the foregoing, or (ii) take any action which
would have the effect of preventing or disabling such Stockholder from
performing such Stockholder’s obligations under this Agreement.  Notwithstanding the foregoing, a Stockholder
may transfer any or all of such Stockholder’s Shares as follows: (1) in
the case of a Stockholder that is an entity, to any subsidiary, partner or
member of such Stockholder, and (2) in the case of an individual
Stockholder, to such Stockholder’s spouse, ancestors, descendants or any trust
for any of their benefits or to a charitable trust; provided, that
in any such case, prior to and as a condition to the effectiveness of such
transfer, (x) each person to which any of such Shares or any interest in
any of such Shares is or may be transferred (i) shall have executed and
delivered to NMS a counterpart to this Agreement pursuant to which such person
shall be bound by all of the terms and provisions of this Agreement, and (ii) shall
have agreed in writing with NMS to hold such Shares or interest in such Shares
subject to all of the terms and provisions of this Agreement, and (y) this
Agreement shall be the legal, valid and binding agreement of such person,
enforceable against such person in accordance with its terms.


 


(d)           Defined
Term.  For purposes of this Agreement, the term “Termination
Date” shall mean the earliest to occur of (i) 11:59 pm (Boston time)
on the date on which the Proposals are approved by the 


 


4

















 


stockholders of NMS, or (ii) the date on which the Purchase
Agreement is terminated in accordance with its terms, or (iii) 11:59 pm
(Boston time) on December 10, 2008.


 


Section 4.               Matters Relating to Stockholder Meetings.


 


(a)           Generally. 
During the Standstill Period (as such term is hereinafter defined), the
Stockholders, together with their Affiliates, will not submit any stockholder
proposal (pursuant to Rule 14a-8 or otherwise), or any notice of
nomination or other business under NMS’s by-laws, and will not nominate (except
as provided in Section 2 of this Agreement) or oppose directors for
election at any meeting of stockholders of NMS. 
In addition, during the Standstill Period, the Stockholders shall cause
all shares of Common Stock beneficially owned by them, and/or their Affiliates,
as of the record date for any meeting of stockholders of NMS, to be present for
quorum purposes and to be voted, at such meeting or any adjournments or
postponements thereof, in favor of any matter brought before such meeting upon
the recommendation of a majority of directors then serving on the Board; provided,
however, that, except as otherwise provided in Section 3
above, the foregoing will not restrict the Stockholders from voting as they
deem appropriate with respect to a merger, tender offer, reorganization, recapitalization,
sale of assets (other than the Asset Sale) or other similar transaction that is
submitted for stockholder approval at such meeting (it being understood that to
the extent any such proposal includes the proposed election of an alternate slate
of directors in lieu of directors nominated by NMS, the Stockholders, together
with their Affiliates, will in all events be required to vote in favor of NMS’s
nominees).


 


(b)           Further
Assurances.  The Stockholders further agree to take all
action reasonably necessary to carry out the intention of this Section 4,
including, without limitation, delivering to NMS upon its written request (and
compliance by it with applicable laws) executed proxies naming the proxies
appointed by NMS for all shares of Common Stock beneficially owned by the
Stockholders and/or their Affiliates as of the record dates for the
aforementioned meetings of stockholders.


 


Section 5.               Standstill Agreements.  Each
Stockholder agrees that, during the period from the date of this Agreement
through and including the date on which NMS holds its 2009 annual meeting of
stockholders (which date shall be no later than June 29, 2009) or, if the
Asset Sale is not consummated by 11:59 pm (Boston time) on December 31,
2008, through and including the earlier of (i) 11:59 pm (Boston time) on December 31,
2008 or (ii) the date on which the Purchase Agreement is terminated in
accordance with its terms  (the “Standstill
Period”), neither such Stockholder nor any of such Stockholder’s Affiliates
will, except as may be required by the performance of its obligations under
this Agreement, without the written consent of NMS, directly or indirectly,
solicit, request, advise, assist or encourage others to:


 


(a)           form,
join in or in any other way participate in a “partnership, limited partnership,
syndicate or other group” within the meaning of Section 13(d)(3) of
the Exchange Act with respect to the Common Stock or deposit any shares of
Common Stock in a voting trust or similar arrangement or subject any shares of
Common Stock to any voting agreement or pooling arrangement;


 


(b)           solicit
proxies or written consents of stockholders with respect to Common Stock under
any circumstances, or make, or in any way participate in, any “solicitation” of
any “proxy” to vote any shares of Common Stock, or become a “participant” in
any contested solicitation for the election of directors with respect to NMS
(as such terms are defined or used in Rules 14a-1 and Item 4 of Schedule
14A under the Exchange Act), or seek to advise or influence any person with
respect to the voting, holding or disposition of any shares of Common Stock;


 


5

















 


(c)           seek
to call, or to request the call of, a special meeting of the stockholders of
NMS, or seek to make, or make, a stockholder proposal at any meeting of the
stockholders of NMS or make a request for a list of NMS’s stockholders;


 


(d)           commence
or announce any intention to commence any tender offer for any shares of Common
Stock, or file with or send to the SEC a Schedule 13D or any amendments to any
Schedule 13D under the Exchange Act with respect to the Common Stock to reflect
changes to the disclosures set forth therein and exhibits filed therewith,
except (i) for an amendment to the Schedule 13D previously filed with the
SEC by a Stockholder with respect to the Shares (a “Current Schedule 13D”),
provided  that such Stockholder shall, prior to the filing of such
amendment with the SEC, provide NMS with a copy of such amendment as it is
proposed to be so filed and a reasonable opportunity to review and comment
thereon, or (ii) to the extent such amendment is filed solely to report
one or a combination of (A) purchases of Common Stock, (B) dispositions
of Common Stock (including dispositions that reduce such Stockholder’s
beneficial ownership below 5%), (C) other action (if any) permitted by
this Agreement, or (D) material litigation involving this Agreement (if,
but only if, the reporting of such litigation on such amendment is required by
law and such Stockholder has given NMS, in writing, a copy of the proposed
amendment at least three (3) days prior to the filing thereof).  In addition, a Stockholder may file a
Schedule 13D to comply with amendments after the date hereof to Section 13(d) of
the Exchange Act, to the rules promulgated thereunder, or to the SEC’s
interpretation of either of the foregoing (it being understood that nothing
contained in this Section 6(d) shall be deemed to permit any
action or disclosure that is otherwise prohibited by this Agreement).  Such permitted amendments shall be referred
to as the “Permitted Schedule 13D Amendments.”  In no case shall Item 4 of the Current
Schedule 13D be amended, except as otherwise permitted by this Section 6;


 


(e)           take
any action or form any intention which would require an amendment to a Current
Schedule 13D (other than amendments containing only Permitted Schedule 13D
Amendments);


 


(f)            make
a proposal or bid with respect to, or announce any intention or desire to make,
or publicly make or disclose, cause to be made or disclosed publicly, any
proposal or bid with respect to, the acquisition of any substantial portion of
the assets of NMS or of all or any portion of the outstanding Common Stock
(except that a Stockholder may file Permitted Schedule 13D Amendments), or any
merger, consolidation, other business combination, restructuring,
recapitalization, liquidation or other extraordinary transaction involving NMS;


 


(g)           act
alone or in concert with others to seek control or influence in any manner the
management, the Board (including the composition thereof) or the business,
operation or affairs of NMS; provided, however, that nothing
contained herein shall prohibit a Stockholder Designee from exercising his or
her duties and obligations as a director of NMS or otherwise taking any action
while acting in such capacity as a director of NMS, nor shall anything
contained herein prohibit or restrict any Stockholder from discussing matters
relating to the management, the Board, or the business, operation or affairs of
NMS with management, the Board or any director of NMS to the extent any such
discussions comply with applicable securities laws; or


 


(h)           publicly
disclose, or cause or facilitate the public disclosure (including by disclosure
to any journalist or other representative of media) of, any request to obtain
any waiver or consent under, or any amendment of, any provision of this
Agreement.


 


Section 6.               Cessation of
Objection to Proposals.  Upon the
date hereof, the Stockholders shall immediately cease all efforts, direct or
indirect, to object to the Proposals and any related solicitation.


 


6

















 


Section 7.               Press Releases
and Other Public Statements.  During
the Standstill Period, NMS and the Stockholders agree as follows:


 


(a)           NMS
agrees, subject to the requirements of applicable federal securities laws, to
provide the Stockholders with an opportunity to review and comment on any press
release, public filing, or letter to NMS’s stockholders containing statements about
the Stockholders, prior to its public release.


 


(b)           The
Stockholders agree, subject to the requirements of applicable federal
securities laws, to provide NMS with an opportunity to review and comment on
any press release, public filing, or letter to NMS’s stockholders containing
statements about NMS, prior to its public release.


 


(c)           The
initial press release with respect to the execution of this Agreement shall be
a press release to be reasonably agreed upon by NMS and the Stockholders.


 


(d)           Neither
NMS nor any of the Stockholders, nor any of their Affiliates, shall directly or
indirectly make or issue or cause to be made or issued any disclosure,
announcement or statement (including without limitation the filing of any
document or report with the SEC or any other governmental agency or any
disclosure to any journalist, member of the media or securities analyst)
concerning the other party or any of its respective past, present or future
general partners, directors, officers or employees, which disparages any of
such other party’s respective past, present or future general partners,
directors, officers or employees as individuals (recognizing that the parties
shall be free to comment in good faith regarding the business of NMS, provided
that any such comment shall not otherwise violate the terms of this Agreement).


 


Section 8.               General Release.


 


(a)           Each
Stockholder, on its own behalf and on behalf of such Stockholder’s Affiliates,
successors, assigns, heirs, beneficiaries, attorneys, partners, limited partners,
members, stockholders, employees and agents (as applicable) (collectively, a “Stockholder
Releasors”), hereby releases and discharges NMS and its subsidiaries and
their respective directors, officers and employees (the “NMS Releasees”)
from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses, known or unknown
(collectively, “Claims”), which the Stockholder Releasors may have had
or may now have, own, or hold, or claim to have, own, or hold against the NMS
Releasees up to the date of this Agreement arising from, relating to or in
connection with the Asset Sale, the Proxy Statement or the Proposals.  The Stockholder Releasors specifically waive
any rights under any statute, regulation or rule which purports to limit
the right of persons to release or waive unknown Claims.  Each of the Stockholder Releasors represents
and warrants hereby that it has not filed any complaints or charges asserting
any Claims against any of the NMS Releasees with any local, state or federal
agency or court, or assigned any such Claim to any other person and has no
knowledge of any Claim it may currently have against any of the NMS Releasees
that is not arising from, relating to or in connection with the Asset Sale, the
Proxy Statement or the Proposals.  Each
of the Stockholder Releasors agrees never to sue any of the NMS Releasees or
cause any of the NMS Releasees to be sued regarding any matter within the scope
of this Section 9(a).  If any
of the Stockholder Releasors violates this Agreement by suing any NMS Releasee
or causing any NMS Releasee to be sued, the undersigned Stockholder Releasors
agree to pay all costs and expenses of defending against the suit incurred by
the NMS Releasees, including reasonable attorneys’ fees.


 


(b)           NMS,
on its own behalf and on behalf of its Affiliates, successors, assigns, heirs,
beneficiaries, attorneys, partners, limited partners, employees and agents (as
applicable) (collectively, the “NMS Releasors”), hereby releases and
discharges each Stockholder and such Stockholder’s directors, 


 


7

















 


officers  and  employees  (the  “Stockholder  Releasees”)  from  any  and  all  Claims  which  the  NMS  Releasors  may  have  had  or  may  now  have,  own,  or  hold,  or  claim  to  have,  own,  or  hold  against  the  Stockholder  Releasees  up  to  the  date  of  this  Agreement  arising  from,  relating  to  or  in  connection  with  the  Asset  Sale,  the  Proxy  Statement  or  the  Proposals.  The  NMS  Releasors  specifically  waive  any  rights  under  any  statute,  regulation  or  rule  which  purports  to  limit  the  right  of  persons  to  release  or  waive  unknown  Claims.  Each  of  the  NMS  Releasors  represents  and  warrants  hereby  that  it  has  not  filed  any  complaints  or  charges  asserting  any  Claims  against  any  of  the  Stockholder  Releasees  with  any  local,  state  or  federal  agency  or  court,  or  assigned  any  such  Claim  to  any  other  person  and  has  no  knowledge  of  any  Claim  it  may  currently  have  against  any  of  the  Stockholder  Releasees  that  is  not  arising  from,  relating  to  or  in  connection  with  the  Asset  Sale,  the  Proxy  Statement  or  the  Proposals.  Each  of  the  NMS  Releasors  agrees  never  to  sue  any  of  the  Stockholder  Releasees  or  cause  any  of  the  Stockholder  Releasees  to  be  sued  regarding  any  matter  within  the  scope  of  this  Section  9(b).  If  any  of  the  NMS  Releasors  violates  this  Agreement  by  suing  any  Stockholder  Releasee  or  causing  any  Stockholder  Releasee  to  be  sued,  the  undersigned  NMS  Releasors  agree  to  pay  all  costs  and  expenses  of  defending  against  the  suit  incurred  by  the  Stockholder  Releasees,  including  reasonable  attorneys’  fees.


 


(c)           Each
of the undersigned Stockholder Releasors and NMS Releasors acknowledge that it
has read the contents of this Section 9, that it has had the
opportunity to review this Section 9 with counsel of its choice,
that it understands the same and that it has given the releases contemplated by
this Section 9 as its own free act and deed.


 


(d)              Notwithstanding
anything contained in this Section 9 to the contrary, this Section 9
shall not apply to any Claim arising out of a breach of the obligations
contained in this Agreement.


 


Section 9.               Remedies.


 


(a)           Each
party hereto hereby acknowledges and agrees that irreparable harm would occur
in the event any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached.  It is accordingly agreed that the parties
shall be entitled to specific relief hereunder, including, without limitation,
an injunction or injunctions to prevent and enjoin breaches of the provisions
of this Agreement and to enforce specifically the terms and provisions hereof
in any state or federal court in the State of Delaware, in addition to any other
remedy to which they may be entitled at law or in equity.  Any requirements for the securing or posting
of any bond with such remedy are hereby waived.


 


(b)           The
parties hereto agree that any actions, suits or proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby shall be
brought solely and exclusively in the courts of the State of Delaware and/or
the courts of The United States of America located in the State of Delaware
(and the parties agree not to commence any action, suit or proceeding relating
thereto except in such courts), and further agree that service of any process,
summons, notice or document by U.S. registered mail to the respective addresses
set forth in Section 12 hereof shall be effective service of
process for any such action, suit or proceeding brought against any party in
any such court.  The parties irrevocably
and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby, in the courts of the State of Delaware or The United
States of America located in the State of Delaware, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in any inconvenient forum.


 


8

















 


Section 10.             Entire Agreement.  This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and may
be amended only by an agreement in writing executed by the parties hereto.


 


Section 11.             Notices.  All notices, consents, requests,
instructions, approvals and other communications provided for herein and all
legal process in regard hereto shall be validly given, made or served, if in
writing and sent by U.S. registered mail, return receipt requested:


 


	
  if to NMS:

  	
   

  	
  NMS Communications
  Corporation

  	
   

  	
   

  
	
   

  	
   

  	
  100 Crossing Boulevard

  	
   

  	
   

  
	
   

  	
   

  	
  Framingham,
  MA 01702

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:
  General Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Goodwin Procter LLP

  	
   

  	
   

  
	
   

  	
   

  	
  Exchange Place

  	
   

  	
   

  
	
   

  	
   

  	
  Boston, Massachusetts 02109

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: Mark T. Bettencourt

  	
   

  	
   

  
	
   

  	
   

  	
  James R. Kasinger

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  if to the Stockholders: addressed to such Stockholder at the address

  	
   

  	
   

  
	
   

  	
   

  	
  set forth on Schedule A hereto

  	
   

  	
   

  



 


Section 12.             Law Governing.  This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to any conflict of laws provisions thereof.


 


Section 13.             Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


Section 14.             No Presumption
Against Draftsman.  Each of the
undersigned parties hereby acknowledges the undersigned parties fully
negotiated the terms of this Agreement, that each such party had an equal
opportunity to influence the drafting of the language contained in this
Agreement and that there shall be no presumption against any such party on the
ground that such party was responsible for preparing this Agreement or any part
hereof.


 


Section 15.             Enforceability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.  It is hereby stipulated and declared to be
the intention of the parties that the parties would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.  In addition, the parties agree to use their
best efforts to agree upon and substitute a valid and enforceable term,
provision, covenant or restriction for any such that is held invalid, void or
unenforceable by a court of competent jurisdiction.


 


Section 16.             Reimbursement of
Certain Expenses.  As of the date
hereof, NMS will pay to the Stockholders and the Other Stockholders an
aggregate amount up to $10,000 as reimbursement for all of the Stockholders and
the Other Stockholders reasonable and documented out-of-pocket expenses
incurred in connection the negotiation of this Agreement.


 


9

















 


Signature Page to Voting and Standstill Agreement


 


 


IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or
caused the same to be executed by its duly authorized representative as of the
date first above written.


 


 


	
   

  	
  NMS:

  
	
   

  	
   

  
	
   

  	
  NMS
  COMMUNICATIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Robert P. Schechter

  
	
   

  	
  Name:

  	
  Robert
  P. Schechter

  
	
   

  	
  Title:

  	
  Chairman
  of the Board and Chief Executive

  
	
   

  	
   

  	
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS FUND III QP, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David Greenhouse

  
	
   

  	
  Name:

  	
  David Greenhouse

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS CAYMAN FUND, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David Greenhouse

  
	
   

  	
  Name:

  	
  David Greenhouse

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS TECHNOLOGY FUND II, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David Greenhouse

  
	
   

  	
  Name:

  	
  David Greenhouse

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS TECHNOLOGY FUND, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David Greenhouse

  
	
   

  	
  Name:

  	
  David Greenhouse

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  
					



 

















 


Schedule A


 


	
  Stockholder Name and Address

  	
   

  	
  Number of Shares of Common

  Stock Held Beneficially

  	
   

  	
  Number of Shares of Common

  Stock Held of Record

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Special Situations Fund III QP, L.P.

  527 Madison Ave, Suite 2600

  New York, NY 10022

  	
   

  	
  2,100,063

  	
   

  	
  2,100,063

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Special Situations Cayman Fund, L.P.

  527 Madison Ave, Suite 2600

  New York, NY 10022

  	
   

  	
  647,281

  	
   

  	
  647,281

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Special Situations Technology Fund II, L.P.

  527 Madison Ave, Suite 2600

  New York, NY 10022

  	
   

  	
  1,096,277

  	
   

  	
  1,096,277

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Special Situations Technology Fund, L.P.

  527 Madison Ave, Suite 2600

  New York, NY 10022

  	
   

  	
  236,185

  	
   

  	
  236,185