Exhibit 10.1


 


FIRST
AMENDMENT

TO

SEVERANCE PROTECTION AGREEMENT


 


The
Severance Protection Agreement (the “Agreement”) dated as of July 2, 2007,
by and between NMS Communication Corporation (the “Company”) and Steve
Gladstone (the “Executive”) is hereby amended as follows:


 


1.             Section 2(b)(2) is
hereby amended by deleting said Section in its entirety and substituting
therefor the following:


 


(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 $300,000.


 


2.             Section 2(b)(3) is
hereby deleted in its entirety.


 


3.             Section 2(d) 
is hereby amended by deleting said Section in its entirety and
substituting therefor the following:


 


(d) Additional Limitation.


 


(1)           Anything in this
Agreement to the contrary notwithstanding, in the event that any compensation,
payment or distribution by the Company or an Affiliate to or for the benefit of
the Executive, whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise (the “Severance Payments”), would
be subject to the excise tax imposed by Section 4999 of the Code, the
following provisions shall apply:


 


(A)          If
the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the
total of the Federal, state, and local income and employment taxes payable by
the Executive on the amount of the Severance Payments which are in excess of
the Threshold Amount, are greater than or equal to the Threshold Amount, the
Executive shall be entitled to the full benefits payable under this Agreement.


 


(B)           If
the Threshold Amount is less than (x) the Severance Payments, but greater
than (y) the Severance Payments reduced by the sum of (1) the Excise
Tax and (2) the total of the Federal, state, and local income and
employment taxes on the amount of the Severance Payments which are in excess of
the Threshold Amount, then the benefits payable under this Agreement shall be
reduced (but not below zero) to the extent necessary so that the maximum
Severance Payments shall not exceed the Threshold Amount.  To the extent that there is more than one
method of reducing the payments to bring them within the Threshold Amount, the
Executive shall determine which method shall be followed; provided that if the
Executive fails to make such determination within 45 days after the Company has
sent the Executive written notice of the need for such reduction, the Company
may determine the amount of such reduction in its sole discretion.


 

















 


(2)           For the purposes of
this Section 2(d), “Threshold Amount” shall mean three times the Executive’s
“base amount” within the meaning of Section 280G(b)(3) of the Code
and the regulations promulgated thereunder less one dollar ($1.00); and “Excise
Tax” shall mean the excise tax imposed by Section 4999 of the Code, and
any interest or penalties incurred by the Executive with respect to such excise
tax.


 


(3)           The determination as
to which of the alternative provisions of Section 2(d)(1) shall apply
to the Executive shall be made by a nationally recognized accounting firm
selected by the Company (the “Accounting Firm”), which shall provide detailed
supporting calculations both to the Company and the Executive within 15
business days of the Date of Termination, if applicable, or at such earlier
time as is reasonably requested by the Company or the Executive.  For purposes of determining which of the
alternative provisions of Section 2(d)(1) shall apply, the Executive
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation applicable to individuals for the calendar year in
which the determination is to be made, and state and local income taxes at the
highest marginal rates of individual taxation in the state and locality of the
Executive’s residence on the Date of Termination, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state
and local taxes.  Any determination by
the Accounting Firm shall be binding upon the Company and the Executive.


 


4.             Except
as set forth herein, the Agreement remains in full force and effect without
modification or waiver.


 


5.             This
first amendment may be executed in one or more counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which together shall be deemed to constitute one
and the same agreement.


 


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Blank]


 


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IN WITNESS WHEREOF, this first amendment has been executed as a sealed
instrument by the Company and the Executive this 3rd day of December, 2008.


 


 


	
   

  	
  NMS
  COMMUNICATIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  P. Schechter

  
	
   

  	
   

  	
  Name: Robert
  P. Schechter

  
	
   

  	
   

  	
  Title:
  President, CEO and Chairman

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Steve
  Gladstone

  
	
   

  	
  Steve Gladstone

  



 


 


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