EXHIBIT 10.1
EMPLOYMENT SEPARATION AND
GENERAL RELEASE AGREEMENT
This Employment Separation and
General Release Agreement (this “ Separation
Agreement ”), is entered into this 30th day of June
2005, by and between Ken Blakely, an individual (“
Blakely ”), and MSC.Software Corporation, a Delaware
corporation (“ MSC ”).
WHEREAS , Blakely has been employed as the Vice
President of Special Projects for MSC; and
WHEREAS , Blakely and MSC have mutually agreed to
terminate Blakely’s 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,
Blakely and MSC agree as follows:
I. Resignation .
Blakely hereby resigns as an officer, director, employee, member,
manager and in any other capacity with MSC and each of its
affiliates, effective June 30, 2005 (the “ Separation
Date ”). Concurrently with the execution of this
Separation Agreement, Blakely shall execute the letter attached as
Exhibit A hereto and promptly deliver such letter to MSC.
MSC and its affiliates hereby accept such resignation, effective
immediately. Blakely 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 Blakely from MSC after the Separation Date shall be
determined under this Separation Agreement.
II. Severance
.
A. Severance Pay . MSC shall pay as
severance pay to Blakely (i) a lump sum amount of Nineteen
Thousand Dollars and No Cents ($19,000.00), less standard
withholding and authorized deductions, within thirty days after his
return of this executed Agreement to MSC (“ Lump Sum
Severance Payment ”), and (ii) a monthly severance
benefit of Nineteen Thousand Dollars and No Cents ($19,000.00) per
month, less standard withholding and authorized deductions, for a
period of five consecutive months commencing with August 2005 and
ending with December 2005 (“ Salary Continuation
Payments ”). The Salary Continuation Payment for any such
month will be paid to Blakely not later than the last day of such
month and may be paid, in MSC’s discretion, in installments
during such month. Blakely shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment
provided for in this Agreement be reduced by any compensation
earned by Blakely as a result of employment by another company,
self-employment or otherwise.
B. Health Benefit Continuation . For
a period of six (6) months following the Separation Date, MSC
shall either pay or reimburse Blakely for one hundred percent
(100%) of Blakely’s COBRA premiums to continue for such
period the same or reasonably equivalent medical coverage for
Blakely (and, if applicable, Blakely’s eligible dependents)
as in effect immediately prior to the Separation Date. For a period
of six (6) months following the Separation Date, Blakely shall
also be entitled to continued supplemental medical benefit coverage
under MSC’s executive medical benefit program.
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C. Outplacement
. MSC shall either pay or
reimburse Blakely for outplacement costs of up to Seven Thousand
Five Hundred Dollars and No Cents ($7,500.00) in the aggregate
incurred by him during the six (6) month period following the
Separation Date, subject to such reasonable documentation as MSC
may request of Blakely to substantiate such costs.
D. 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. Blakely
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
. Blakely 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 directors, officers, agents,
attorneys, insurers, employees, stockholders, 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. Release . Blakely
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 for which receipt or
satisfaction has not
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been acknowledged, (2) any right to
indemnification that Blakely may have pursuant to MSC’s
Bylaws or under applicable laws with respect to any losses that
Blakely may in the future 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 Blakely may have to insurance coverage
for such losses under any MSC directors and officers liability
insurance policy.
V. 1542 Waiver . It is
the intention of Blakely 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, Blakely 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.”
Blakely acknowledges that he may
hereafter discover claims or facts in addition to or different from
those which Blakely 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, Blakely
hereby waives any right, claim or cause of action that might arise
as a result of such different or additional claims or facts.
Blakely acknowledges that he understands the significance and
consequences of such release and such specific waiver of SECTION
1542.
VI. ADEA Waiver .
Blakely 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. Blakely 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 [
, 2005] and informed that he had twenty-one (21) days within
which to consider this Separation Agreement; and
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