Exhibit
10.1


NMS COMMUNICATIONS
CORPORATION


NON-QUALIFIED
STOCK OPTION AGREEMENT






 


NON-QUALIFIED
STOCK OPTION AGREEMENT (this “Agreement”) by and between NMS COMMUNICATIONS
CORPORATION, a Delaware corporation (the “Company”), and the employee of the
Company or an Affiliate of the Company (the “Optionee”) specified in
Schedule A appended to this Agreement (“Schedule A”).


WHEREAS,
the Company assumed the Openera Technologies, Inc. 2005 Equity Incentive Plan
and India Supplement thereto (collectively the “Plan”) from Openera
Technologies, Inc. (“Openera Corp.”) pursuant to the Agreement and Plan of
Merger, dated as of February 13, 2006, by and among the Company, Openera, Orca
Acquisition Corporation, the Company’s wholly-owned subsidiary, certain
stockholders of Openera and Joel A. Hughes as Stockholder Representative
(the ”Merger Agreement”) pursuant to which the Company acquired Openera
Corp. and Openera’s wholly-owned subsidiary Openera Technologies Pvt. Ltd. (“NMS
India”);


WHEREAS,
each of Openera Corp. and NMS India is an Affiliate of the Company;


WHEREAS,
a copy of the Plan has been made available to Optionee electronically or
delivered in paper form;


WHEREAS,
the Optionee renders important Services to the Company or an Affiliate of the
Company, and the Company desires to grant a stock option to the Optionee; and


WHEREAS,
the Board of Directors of the Company (the “Board”) or the Compensation
Committee of the Board (the “Committee”), acting pursuant to the Plan, has
authorized the grant of this Nonqualified Stock Option to the Optionee subject
to the terms and conditions of the Plan and the additional terms and conditions
of this Agreement;


NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Optionee hereby agree as follows:


1.             Grant of Option.   The
Company hereby grants to the Optionee, and the Optionee hereby accepts, a
Nonqualified Stock Option (the “Option”) to purchase from the Company that
number of shares of the Company’s Common Stock, $0.01 par value per share (the “Shares”),
specified in Schedule A.  This Agreement
and the Option hereby 









 



granted to the
Optionee are subject to all of the terms and conditions of the Plan which are
incorporated herein by this reference. 
Any capitalized term used herein shall have the meaning assigned thereto
in the Plan, unless such term is otherwise specifically defined herein.


This
Option is intended to constitute a Nonqualified Stock Option and is not
intended to constitute an “incentive stock option” within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”), nor
to qualify for any other special tax treatment under the Code.


2.             Option Price; Date of Grant.   This
Option may be exercised at the option price per Share specified in Schedule A,
which the Board or Committee has determined, in accordance with Section 6.2 of
the Plan, is 100% of the Fair Market Value of a Share on the Grant Date of this
Option.  The Grant Date of this Option is
specified in Schedule A.


3.             Term of Option; Vesting and
Employment Requirements.   This Option shall expire on the date
specified in Schedule A (the “Expiration Date”). This Option shall be
exercisable, in whole or in part, to the extent of the number of Shares then
vested, in accordance with the vesting schedule provided in Schedule A.
The vesting installments provided in Schedule A are cumulative, and this
Option will remain exercisable with respect to all vested but unexercised
installments until the Option expires on the Expiration Date, unless the Option
is sooner terminated as provided in Section 8 or Section 9 of this Agreement.


4.             Other Conditions and Limitations.   The
Option shall not be assignable or transferable by the Optionee otherwise than
by will or by the laws of descent and distribution, and the Option shall be
exercisable during the lifetime of the Optionee by the Optionee only.


5.             Exercise of Option.   Written
notice of the exercise of the Option or any portion thereof shall be given to
the Plan Administrator of the Company accompanied by the option price (i) in
cash or by check, (ii) if permitted by the Board or Committee, by delivery and
assignment to the Company of Shares having a value equal to the option price,
(iii) if permitted by the Board or Committee, in accordance with a
deferred payment or other arrangement, (iv) if permitted by the Board or
Committee, by any other form of legal consideration, including by delivery of
the Optionee’s personal recourse note, or (v) if permitted by the Board or
Committee, a combination of (i), (ii), (iii) and (iv).


6.             Stock Dividends; Stock Splits;
Stock Combinations; Recapitalizations.   Appropriate adjustment shall
be made in the maximum number of Shares subject to this Option and in the
number, kind and option price of Shares covered by this Option to the extent it
remains outstanding, to give effect to any stock dividends, stock splits, stock
combinations, recapitalizations and other similar changes in the capital
structure of the 









 



Company after the
Grant Date of this Option, as determined by the Board or Committee in
accordance with Section 9.13 of the Plan.


7.             Merger, Reorganization or Sale
of Asset.   In the event of a change of the Common Stock of the Company
resulting from a merger or similar reorganization as to which the Company is
the surviving corporation, the number and kind of Shares then subject to this
Option and the price per share thereof shall be appropriately adjusted in such
manner as the Board or Committee may deem equitable to prevent substantial
dilution or enlargement of the rights available or granted hereunder. In the
event of a merger or a similar reorganization which the Company does not
survive, or a sale of all or substantially all of the assets of the Company,
the rights of the Optionee shall be as determined by the Board or Committee in
accordance with Sections 9.4 and 9.5 of the Plan.


8.             Change of Control.   Notwithstanding
the foregoing, effective immediately prior to (but subject to the completion
of) a Change in Control, the Option shall be vested and exercisable as to all
Shares that have become vested as of the Change in Control in accordance with
the vesting schedule set forth on Schedule A plus such additional options that,
in accordance with the vesting schedule, would have become vested over the next
succeeding twelve (12) months from the date of the Change in Control.  The remainder of the Shares shall continue to
vest subject to Schedule A as if accelerated by twelve (12) months.  The Optionee must otherwise be eligible to
exercise the Option as of the date of the Change in Control pursuant to the
other terms of this Agreement.  The
foregoing rights are cumulative and (subject to Section 9.6 of the Plan upon
the termination of the Optionee’s Service to the Company or an Affiliate) may
be exercised only before the expiration date set forth on Schedule A.


9.             Termination of Option.   In
the event that the Optionee ceases for any reason to be an employee of the
Company, or an Affiliate of the Company, at a time prior to the exercise of
this Option in full, this Option shall terminate in accordance with the
provisions in Section 9.6 of the Plan.


10.           Taxation; Tax Withholding
Requirements.   The Optionee understands and acknowledges that upon his
exercise of the Option hereunder he will recognize for income tax purposes an
amount of ordinary income equal to the excess, if any, of the fair market value
of the Shares over the option price.  Any
amounts required by any then applicable tax law to be withheld by the Company
from the compensation the Optionee is deemed to have received upon any exercise
of this Option or portion thereof shall, to the extent possible, be withheld
from the cash compensation paid by the Company to the Optionee; to the extent
such withholding amounts cannot be so withheld, the Company shall, within seven
(7) days after it receives notice of such exercise, notify the Optionee of such
withholding amounts not so withheld and the Optionee shall pay to the Company
the stated withholding amounts within ten (10) days of such notification and
prior to delivery of any certificate(s) for Shares purchased by the Optionee.


11.           Compliance With Securities Laws.   The
Company shall not be obligated to sell or issue any Shares pursuant to this
Option unless the Shares with respect to which 









 



this Option is
being exercised are at that time effectively registered or exempt from
registration under the 1933 Act, and any applicable state securities or “blue
sky” law (“Blue Sky Law”).  In the event
Shares or other securities shall be issued which shall not be so registered,
the Optionee hereby represents, warrants and agrees that he will receive such
Shares or other securities for investment and not with a view to the resale or
distribution thereof, and will not transfer such Shares or other securities unless
they are effectively registered for such transfer under the Act and any
applicable Blue Sky Law or unless an opinion of counsel satisfactory to the
Company has been received by the Company to the effect that such registration
is not required.  The Optionee further
agrees that the stock certificate or certificates evidencing such Shares may
bear a legend setting forth such restrictions on their transferability.  The exercisability and vesting of this Option
shall be subject to the provisions of the Plan.


12.           Rights as a Stockholder; No
Obligation to Continue Employment.   The Optionee shall have no rights
as a stockholder with respect to the Shares subject to the Option until the
exercise of the Option and the issuance of a stock certificate for the Shares
with respect to which the Option shall have been exercised.  Nothing herein contained shall impose any
obligation on the Company or any of its Affiliates or the Optionee with respect
to the Optionee’s continued employment by the Company or any of its
Affiliates.  Nothing herein contained
shall impose any obligation upon the Optionee to exercise the Option.


13.           Relationship to Plan.   The
Option contained in this Agreement has been granted pursuant to the Plan, and
is in all respects subject to the terms, conditions and definitions of the
Plan, as amended from time to time.  If
there is any inconsistency between the provisions of this Agreement and the
provisions of the Plan, the latter shall control.  The Optionee hereby accepts this Option
subject to all the terms and provisions of the Plan and agrees that all
decisions under and interpretations of the Plan by the Board or Committee shall
be final, binding and conclusive upon the Optionee and his permitted heirs,
executors, administrators, successors and assigns.


14.           Miscellaneous.   In case
any one or more of the provisions or part of any provision contained in this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of this Agreement, but this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or part of a provision had never been contained herein.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and to their respective heirs,
executors, administrators, successors and assigns.  This Agreement shall be governed by and
construed and administered in accordance with the internal laws of the State of
Delaware.


IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed as of the
Grant Date specified in Schedule A.









 



 


	
  

  	
  NMS COMMUNICATIONS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Robert P. Schechter

  
	
   

  	
   

  	
  Chairman of the Board, President and

  
	
   

  	
   

  	
  Chief Executive Officer

  



 









 



 


A C C E P T A N C
E


I
hereby accept the within Option in accordance with the terms and conditions
thereof, and subject to the terms and conditions of the Openera Technologies,
Inc.  2005 Equity Incentive Plan, as
assumed by NMS Communications Corporation and as amended from time to time.


	
  

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Signature of
  Optionee)