Exhibit 10.1
EMPLOYMENT SEPARATION AND GENERAL
RELEASE AGREEMENT
This Employment
Separation and General Release Agreement (this “
Separation Agreement ”), is entered into this
31 st day of March, 2009 by and
between William J. Weyand, an individual (“
Weyand ”), and MSC.Software Corporation, a
Delaware corporation (“ MSC
”).
WHEREAS , Weyand has been employed as the Chief
Executive Officer and/or Chairman of MSC since February 9,
2005, pursuant to an employment agreement most recently amended and
restated as of December 23, 2008 (the “ Employment
Agreement ”); and
WHEREAS , Weyand and MSC have mutually agreed to
terminate Weyand’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,
Weyand and MSC agree as follows:
I. Termination; 2008 Bonus
. Weyand’s
position as an officer, director, employee, member, manager and in
any other capacity with MSC and each of its affiliates (other than
as a member of the Board of Directors of MSC) terminated effective
March 11, 2009 (“ Separation Date
”), and all benefits and perquisites of employment ceased as
of the Separation Date. Weyand resigned as a member of the Board of
Directors of MSC effective March 20, 2009. The Employment
Agreement is hereby terminated as of the Separation Date, provided,
however, that notwithstanding anything to the contrary in this
Separation Agreement, Sections 3.4 and 7 through 29 of the
Employment Agreement shall continue to apply in accordance with
their terms. All payments due to Weyand from MSC shall be
determined under this Separation Agreement. Except for the
payments referred to in the next sentence, Weyand 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, commissions, or other wages), usual benefits and
accrued but unused vacation through the Separation Date and that
all payments due to Weyand from MSC after the Separation Date shall
be determined under this Separation Agreement. On or before
April 15, 2009, MSC will pay Weyand (1) Three Hundred
Ninety Two Thousand Seven Hundred Eighty Three Dollars ($392,783),
less standard withholding and authorized deductions, as a bonus for
2008, and (2) Five Hundred Dollars ($500), less standard
withholding and authorized deductions, for a television and couch
left by Weyand at a residential property in Newport Beach,
California provided to him by MSC (the “ Newport Beach
Residence ”). Weyand will not be entitled to any
bonus with respect to 2009. In addition, MSC will reimburse Weyand
for his reasonable expenses incurred in packing and shipping his
household goods and vehicles from the Newport Beach Residence;
provided, however, that in no event shall the maximum aggregate
amount of such reimbursement exceed Five Thousand Dollars ($5,000)
and provided, further, that any such reimbursement shall be
contingent upon Weyand’s submitting to MSC a valid receipt
documenting the related expense not more than thirty (30) days
after such expense was incurred.
II. Severance Benefit
. MSC shall pay as
severance pay to Weyand the amount of Five Hundred Ninety Five
Thousand One Hundred Twenty Five Dollars ($595,125), less
standard withholding and authorized deductions (the “
Severance Amount ”). Such Severance Amount
shall be treated as deferred compensation within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”). Fifty percent
(50%) of the Severance Amount shall be paid (without interest)
as soon as practicable (and in all events within thirty (30)
days) after the date that is six (6) months after the
Separation Date (or, if earlier, as soon as practicable, and in all
events within thirty (30) days, after the date of
Weyand’s death). The remaining fifty percent (50%) of
the Severance Amount shall be paid in six (6) substantially
equal monthly installments over the six-month period thereafter. In
addition, during the twelve-month period following the Separation
Date, MSC shall either pay or reimburse Weyand for one
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hundred percent (100%) of Weyand’s
premiums to continue for such period under the Consolidated Omnibus
Budget Reconciliation Act (“ COBRA ”) the
same or reasonably equivalent medical coverage for Weyand (and, if
applicable, Weyand’s eligible dependents) as in effect
immediately prior to the Separation Date. For each such month,
Weyand shall also be entitled to continued supplemental medical
benefit coverage under MSC’s executive medical benefit
program as in effect immediately prior to the Separation Date. (The
Severance Amount and the health benefits provided under the
preceding two sentences are collectively referred to as the “
Severance Benefit .”) A listing of all of
Weyand’s equity awards vested as of the Separation Date is
listed on Exhibit A attached hereto (to the extent so
vested, the “ Vested Equity Awards ”).
Weyand has no rights with respect to any other equity awards
granted by MSC. Schedule A also sets forth the aggregate balance of
Weyand’s nonqualified deferred compensation account as of
December 31, 2008, which account (as adjusted through the date
of final distribution) shall be paid out in accordance with the
terms of MSC’s nonqualified deferred compensation plan (the
“ Deferred Compensation Benefit ”).
Weyand 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. Release . Weyand 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
(together, the “ Company Group ”), 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 related to his service as an officer,
director, employee, member or manager of any member of the Company
Group, his separation from his position as an officer, director,
employee, manager and/or member, as applicable, of any member of
the Company Group, 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 related to
Weyand’s employment or service with any member of the Company
Group, 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 been
acknowledged, (2) any right to indemnification that Weyand may
have pursuant to MSC’s Bylaws, its certificate of
incorporation or under the Employment Agreement with respect to any
loss, damages or expenses (including but not limited to
attorneys’ fees) that Weyand may in the future incur with
respect to his service as an employee, officer or director of MSC
or any of its subsidiaries or affiliates, (3) with respect to
any rights that Weyand may have to insurance coverage for such
losses, damages or expenses under any MSC directors and officers
liability insurance policy, (4) any right with respect to the
Vested Equity Awards pursuant to the written equity-based award
agreements entered into by and between MSC and Weyand before the
Separation Date to the extent that such right continues after the
Separation Date in accordance with the terms of the award,
(5) the right of Weyand to obtain contribution as permitted by
law in the event of an entry of judgment against Weyand as a result
of any act or failure to act for which Weyand and MSC are jointly
liable, (6) any rights to continued medical
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coverage that Weyand may have under COBRA,
(7) any rights to payment of benefits that Weyand may have
under a retirement plan sponsored or maintained by MSC that is
intended to qualify under Section 401(a) of the Code, and
(8) Weyand’s right to receive payment of the Deferred
Compensation Benefit.
IV. 1542 Waiver . It is
the intention of Weyand 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, Weyand 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.”
Weyand acknowledges that he may
hereafter discover claims or facts in addition to or different from
those which Weyand 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,
Weyand hereby waives any right, claim or cause of action that might
arise as a result of such different or additional claims or
facts. Weyand acknowledges that he understands the
significance and consequences of such release and such specific
waiver of SECTION 1542.
V. ADEA Waiver
. Weyand 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. Weyand 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 27, 2009 and informed that
he had twenty-one (21) days within which to consider this
Separation Agreement and that if he wished to execute this
Separation Agreement prior to expiration of such 21-day period, he
should execute the Acknowledgement and Waiver attached hereto as
Exhibit B ; 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.
VI. No Transferred Claims
. Weyand warrants
and represents that he has not heretofore assigned or transferred
to any person not a party to this Separation Agreement any released
matter or any part or portion thereof and he shall defend,
indemnify and hold MSC and each of its affiliates harmless from and
against any claim (including the payment of attorneys’ fees
and costs actually incurred whether or not litigation is commenced)
based on or in connection with or arising out of any such
assignment or transfer made, purported or claimed.
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VII. Removal of Certain Property; Return of
Property . Weyand
acknowledges that certain automobiles and a boat (together, the
“vehicles”) belonging to him are currently located (if
not heretofore removed by Weyand) at the Newport Beach Residence.
Weyand agrees to remove such vehicles from the property (if not
already so removed) within thirty (30) days following the date
hereof. If such vehicles have not been removed from the property
within such 30-day period, MSC will arrange to have such vehicles
removed and placed in storage at Weyand’s expense. In no
event will MSC have any liability (for expenses, damage or
otherwise) with respect to such vehicles (while they are located at
the Newport Beach Residence, being transported, in storage or
otherwise). Weyand represents and warrants that he has returned to
MSC all keys to the Newport Beach Residence that were ever in his
possession, that he has not permitted any other person to retain or
duplicate any such key, and that to his knowledge no person (other
than a person continuing in the employ of MSC after the date
hereof) is currently in possession of such a key. Weyand represents
and warrants that he has not removed from the Newport Beach
Residence any furnishings or other property other than his own
personal possessions. Weyand represents and warrants that he has
not taken, or otherwise caused or permitted there to be taken, and
to his knowledge there has not been taken, from the Newport Beach
Residence any furnishings or other property paid for by MSC
(including any such property which Weyand or another individual may
have initially purchased but for which such individual received
reimbursement from MSC). Weyand represents and warrants that he has
truthfully and faithfully accounted for and delivered to MSC all
property belonging to MSC or any of its subsidiaries or other
affiliates. If property belonging to MSC or any of its subsidiaries
or other affiliates is determined to be in Weyand’s
possession or has been transferred by Weyand to any other person
without MSC’s consent, Weyand shall immediately deliver or
cause there to be delivered to MSC all such property and, if not so
returned, MSC shall (without limiting any of MSC’s other
rights or remedies in the circumstances) be entitled to offset any
payments remainin
