EXHIBIT 10.14
EMPLOYMENT SEPARATION AND
GENERAL RELEASE AGREEMENT
This Employment Separation and
General Release Agreement (this “ Separation Agreement
”), is entered into this 8 th day of March 2005, by and between
Charles Davis, an individual (“ Davis ”), and
MSC.Software Corporation, a Delaware corporation (“
MSC ”).
WHEREAS, Davis has been employed as the Vice President of
Finance for MSC; and
WHEREAS, Davis and MSC mutually agreed to terminate
Davis’ employment relationship with MSC upon the terms set
forth herein;
NOW, THEREFORE,
in consideration of the covenants
undertaken and the releases contained in this Separation Agreement
and the Consulting Agreement attached as Exhibit C hereto
(the “ Consulting Agreement ”), Davis and MSC
agree as follows:
I. Resignation . Davis
resigned as an officer, director, employee, member, manager and in
any other capacity with MSC and each of its affiliates, effective
February 7, 2005 (the “ Separation Date ”).
Davis hereby confirms such resignation. Concurrently with the
execution of this Separation Agreement, Davis shall execute the
letter attached as Exhibit A hereto and promptly deliver
such letter to MSC. MSC and its affiliates accepted such
resignation effective February 7, 2005. MSC hereby confirms
such acceptance. Davis acknowledges and agrees that he has received
all amounts owed for his regular and usual salary (including, but
not limited to, any severance, overtime, bonus, accrued vacation,
commissions, or other wages) and usual benefits, and that all
payments due to Davis from MSC after the Separation Date shall be ,
determined under this Separation Agreement and the Consulting
Agreement.
II. Severance
.
A. Severance Pay
. MSC shall pay as
severance pay to Davis (i) a lump sum amount of Twenty-Five
Thousand Dollars and No Cents ($25,000.00), less standard
withholding and authorized deductions, within thirty (30) days
after his return of this executed Agreement to MSC (“ Lump
Sum Severance Payment ”), and (ii) a monthly
severance benefit of Sixteen Thousand Nine Hundred Fourteen Dollars
and No Cents ($16,914.00) per month, less standard withholding and
authorized deductions, for a period of six consecutive months
commencing with March 2005 and ending with August 2005 (“
Salary Continuation Payments ”). The Salary
Continuation Payment for any such month will be paid to Davis not
later than the last day of such month and may be paid, in
MSC’s discretion, in installments during such month; provided
that in no event shall MSC be required to make any such payment
earlier than thirty (30) days after Davis returns this
executed Agreement to MSC.
B. Health Benefit
Continuation . For a
period of six (6) months following the Separation Date, MSC
shall either pay or reimburse Davis for one hundred percent
(100%) of Davis’ COBRA premiums to continue for such
period the same or reasonably equivalent medical coverage for Davis
(and, if applicable, Davis’ eligible dependents) as in effect
immediately prior to the Separation Date. For a period of six
(6) months following the Separation Date, Davis
shall
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also be entitled to continued
supplemental medical benefit coverage under MSC’s executive
medical benefit program.
C. No Other Benefits
. The severance payments
and benefits pursuant to this Section II are for and in lieu of any
other payments or benefits (and, except as specifically provided
herein, none shall accrue) beyond the Separation Date. Davis
specifically acknowledges and agrees that he is entitled to receive
no severance pay or other benefits pursuant to any severance plan
or policy of MSC or any of its affiliates.
III. Non-Disparagement
. Davis agrees that he shall not (1) directly or
indirectly, make or ratify any statement, public or private, oral
or written, to any person that disparages, either professionally or
personally, MSC or any of its affiliates, past and present, and
each of them, as well as its and their trustees, directors,
officers, members, managers, partners, agents, attorneys, insurers,
employees, stockholders, representatives, assigns, and successors,
past and present, and each of them, or (2) make any statement
or engage in any conduct that has the purpose or effect of
disrupting the business of MSC or any of its affiliates.
IV. Consulting Agreement
. Concurrently with the execution of this Separation Agreement,
Davis shall execute the Consulting Agreement attached as Exhibit
C hereto.
V. Release . Davis on
behalf of himself, his descendants, dependents, heirs, executors,
administrators, assigns, and successors, and each of them, hereby
covenants not to sue and fully releases and discharges MSC and each
of its parents, subsidiaries and affiliates, past and present, as
well as its and their trustees, directors, officers, members,
managers, partners, agents, attorneys, insurers, employees,
stockholders, representatives, assigns, and successors, past and
present, and each of them, hereinafter together and collectively
referred to as the “Releasees,” with respect to and
from any and all claims, wages, demands, rights, liens, agreements,
contracts, covenants, actions, suits, causes of action,
obligations, debts, costs, expenses, attorneys’ fees,
damages, judgments, orders and Liabilities of whatever kind or
nature in law, equity or otherwise, whether now known or unknown,
suspected or unsuspected, and whether or not concealed or hidden,
which he now owns or holds or he has at any time heretofore owned
or held or may in the future hold as against any of said Releasees,
arising out of or in any way connected with his service as an
officer, director, employee, member or manager of any Releasee, his
separation from his position as an officer, director, employee,
manager and/or member, as applicable, of any Releasee, or any other
transactions, occurrences, acts or omissions or any loss, damage or
injury whatever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of said
Releasees, or any of them, committed or omitted prior to the date
of this Separation Agreement including, without limiting the
generality of the foregoing, any claim under Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Family and Medical Leave Act
of 1993, the California Fair Employment and Housing Act, the
California Family Rights Act, or any claim for severance pay,
bonus, sick leave, holiday pay, vacation pay, life insurance,
health or medical insurance or any other fringe benefit,
workers’ compensation or disability; provided that
such release shall not apply to (1) any obligation created by
or arising out of this Separation Agreement or the Consulting
Agreement for which receipt or satisfaction has not been
acknowledged, (2) any right to indemnification that Davis may
have pursuant to MSC’s Bylaws with respect to any losses that
Davis may in the future
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incur with respect to his past service as an
officer or employee of MSC, and (3) with respect to any such
losses, any rights that Davis may have to insurance coverage for
such losses under any MSC directors and officers liability
insurance policy.
VI. 1542 Waiver . It
is the intention of Davis in executing this instrument that the
same shall be effective as a bar to each and every claim, demand
and cause of action hereinabove specified. In furtherance of this
intention, Davis hereby expressly waives any and all rights and
benefits conferred upon him by the provisions of SECTION 1542 OF
THE CALIFORNIA CIVIL CODE and expressly consents that this
Separation Agreement shall be given full force and effect according
to each and all of its express terms and provisions, including
those related to unknown and unsuspected claims, demands and causes
of action, if any, as well as those relating to any other claims,
demands and causes of action hereinabove specified. SECTION 1542
provides:
“A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”
Davis acknowledges that he may
hereafter discover claims or facts in addition to or different from
those which Davis now knows or believes to exist with respect to
the subject matter of this Separation Agreement and which, if known
or suspected at the time of executing this Separation Agreement,
may have materially affected this settlement. Nevertheless, Davis
hereby waives any right, claim or cause of action that might arise
as a result of such different or additional claims or facts. Davis
acknowledges that he understands the significance and consequences
of such release and such specific waiver of SECTION
1542.
VII. ADEA Waiver .
Davis expressly acknowledges and agrees that by entering into this
Agreement, he is waiving any and all rights or claims that he may
have arising under the Age Discrimination in Employment Act of
1967, as amended, which have arisen on or before the date of
execution of this Separation Agreement. Davis further expressly
acknowledges and agrees that:
A. In return for this Separation Agreement, he will
receive consideration beyond that which he was already entitled to
receive before entering into this Separation Agreement;
B. He is hereby advised in writing by this
Separation Agreement to consult with an attorney before signing
this Separation Agreement;
C. He was given a copy of this Separation Agreement
on March 2, 2005 and informed that he had twenty-one
(21) days within which to consider this Separation Agreement;
and
D. He was informed that he had seven (7) days
following the date of execution of this Separation Agreement in
which to revoke this Separation Agreement.
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