As filed with the Securities and Exchange Commission on July 30, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
MSC.Software Corporation
(Exact name of registrant as specified in its charter)
___________________
Delaware 95-2239450
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
815 Colorado Boulevard, Los Angeles California 90041-1777
(323) 258-9111
(Address and telephone number of principal executive offices)
___________________
MSC.Software Corporation 1998 Stock Option Plan
(Full title of the plan)
___________________
Louis A. Greco
Chief Financial Officer and Secretary
MSC.Software Corporation
815 Colorado Boulevard
Los Angeles, California 90041-1777
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service: (323) 258-9111
___________________
Copy to:
D. Stephen Antion, Esq.
O'MELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067
___________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per unit price fee
============================================================================
<S> <C> <C> <C> <C>
Common Stock, 1,500,000<1>,<2> $5.4375<2> $8,156,250<2> $2,267<2>
$0.01 par shares
value shares
============================================================================
<FN>
<1> This Registration Statement covers, in addition to the number of
shares of Common Stock stated above, options and other rights to
purchase or acquire the shares of Common Stock covered by the
Prospectus and, pursuant to Rule 416(c) under the Securities Act of
1933, as amended (the "Securities Act"), an additional indeterminate
number of shares which by reason of certain events specified
in the MSC.Software Corporation 1998 Stock Option Plan, as
amended (formerly The MacNeal-Schwendler Corporation 1998
Stock Option Plan) (the "Plan") may become subject to the
Plan.
<PAGE>
<2> Each share is accompanied by a preferred share purchase right
pursuant to the registrant's Rights Agreement dated October 5, 1998,
with ChaseMellon Shareholder Services, L.L.C. as rights agent.
<3> Pursuant to Securities Act Rule 457(h), the maximum offering price,
per share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low prices of the
Common Stock on July 27, 1999, as reported on the New York Stock
Exchange and published in The Western Edition of The Wall Street
Journal.
The Exhibit Index for this Registration Statement is at page 7.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part
I of Form S-8 (plan information and registrant information) will
be sent or given to employees as specified by Rule 428(b)(1) of
the Securities Act. Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents, which include the statement of
availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement
pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of MSC.Software Corporation (the
"Company") filed with the Commission are incorporated herein by
reference:
(a) The Company's Registration Statement on Form S-8
relating to the Plan filed with the Commission on August 25,
1998 (File No. 333-62187);
(b) The Company's Annual Report on Form 10-K for the
transition period from January 1, 1998 to December 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1999; and
(d) The Company's Current Report on Form 8-K filed with
the Commission on July 1, 1999.
Item 8. Exhibits
See the attached Exhibit Index at page 7.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the
City of Los Angeles, State of California, on the 30th day of
July, 1999.
MSC.Software Corporation
By: /s/ Louis A. Greco
---------------------------------
Louis A. Greco
Chief Financial Officer and
Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Frank Perna, Jr. and Louis A. Greco, or each of them
individually, his true and lawful attorney-in-fact and agent,
with full powers of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with all
exhibits thereto, and any other documents in connection
therewith, with the Commission, granting unto said attorneys-in-
fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them
individually, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Frank Perna, Jr.
- ------------------------------- Chairman and Chief July 30, 1999
Frank Perna, Jr. Executive Officer
(Principal Executive
Officer)
/s/ Louis A. Greco
- ------------------------------- Chief Financial July 30, 1999
Louis A. Greco Officer and Secretary
(Principal Financial
and Accounting
Officer)
/s/ s. Larry S. Barels
- ------------------------------- Director July 30, 1999
Larry S. Barels
/s/ Donald Glickman
- ------------------------------- Director July 30, 1999
Donald Glickman
- ------------------------------- Director July ___, 1999
William F. Grun
/s/ George N. Riordan
- ------------------------------- Director July 30, 1999
George N. Riordan
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------- ----------------------
4.1 MSC.Software Corporation 1998 Stock Option Plan
(Amended and Restated Effective as of June 26, 1999)
(formerly called The MacNeal-Schwendler Corporation
1998 Stock Option Plan).
5.1 Opinion of O'Melveny & Myers LLP (opinion re
legality).
23.1 Consent of Ernst & Young LLP (Consent of
Independent Auditor).
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit
5).
24.1 Power of Attorney (included in this Registration
Statement under "Signatures").
<PAGE>
EXHIBIT 4.1
THE MACNEAL-SCHWENDLER CORPORATION
1998 STOCK OPTION PLAN
The following constitute the provisions of the 1998 Stock
Option Plan of The MacNeal-Schwendler Corporation.
1. THE PLAN.
1.1 Purpose. The purpose of this Plan is to promote
the success of the Company and the interests of its
stockholders by attracting, retaining and rewarding
officers, employees, and other eligible persons through the
grant of equity incentives and to attract, motivate and
retain experienced and knowledgeable independent directors
through the benefits provided under Section 3. Capitalized
terms used herein are defined in Section 5.
1.2 Administration and Authorization; Power and
Procedure.
1.2.1 Committee. This Plan will be
administered by and all Options to Eligible Persons
will be authorized by the Committee. Action of the
Committee with respect to the administration of this
Plan will be taken pursuant to a majority vote or by
unanimous written consent of its members.
1.2.2 Plan Awards; Interpretation; Powers of
Committee. Subject to the express provisions of this
Plan and any express limitations on the delegated
authority of a Committee, the Committee will have the
authority to:
(a) determine eligibility and the
particular Eligible Persons who will
receive Options;
(b) grant Options to Eligible Persons, determine
the price at which securities will be offered
and the amount of securities to be offered or
awarded to any of such persons, and determine
the other specific terms and conditions of
such Options consistent with the express
limits of this Plan, and establish the
installments (if any) in which such Options
will become exercisable or will vest, or
determine that no delayed exercisability or
vesting is required, and establish the events
of termination of such Options;
(c) approve the forms of Option Agreements (which
need not be identical either as to type of
Option or among Participants);
(d) construe and interpret this Plan and any
agreements defining the rights and
obligations of the Company and Participants
under this Plan, further define the terms
used in this Plan, and prescribe, amend and
rescind rules and regulations relating to the
administration of this Plan;
(e) cancel, modify, or waive the Corporation's
rights with respect to, or modify,
discontinue, suspend, or terminate any or all
outstanding Options held by Eligible Persons,
subject to any required consent under Section
4.6;
(f) accelerate or extend the exercisability or
extend the term of any or all such
outstanding Options within the maximum ten-
year term of Options under Section 2.3; and
(g) make all other determinations and take such
other action as contemplated by this Plan or
as may be necessary or advisable for the
administration of this Plan and the
effectuation of its purposes.
Notwithstanding the foregoing, the provisions of
Section 3 relating to Non-Employee Director
Options will be automatic and, to the maximum
extent possible, self-effectuating. To the extent
required, any interpretation or administration of
this Plan in respect of Options granted under
Section 3 will be the responsibility of the Board.
1.2.3 Binding Determinations. Any action
taken by, or inaction of, the Corporation, any
Subsidiary, the Board or the Committee relating or
pursuant to this Plan will be within the absolute
discretion of that entity or body and will be
conclusive and binding upon all persons. No member of
the Board or Committee, or officer of the Corporation
or any Subsidiary, will be liable for any such action
or inaction of the entity or body, of another person
or, except in circumstances involving bad faith, of
himself or herself. Subject only to compliance with
the express provisions hereof, the Board and Committee
may act in their absolute discretion in matters within
their authority related to this Plan.
1.2.4 Reliance on Experts. In making any
determination or in taking or not taking any action
under this Plan, the Committee or the Board, as the
case may be, may obtain and may rely upon the advice of
experts, including professional advisors to the
Corporation. No director, officer or agent of the
Company will be liable for any such action or
determination taken or made or omitted in good faith.
1.2.5 Bifurcation of Plan Administration &
Delegation. Subject to the limits set forth in the
definition of "Committee" in Section 5, the Board may
delegate different levels of authority to different
Committees with administration and grant authority
under this Plan, provided that each designated
Committee granting any Options hereunder will consist
exclusively of a member or members of the Board. A
majority of the members of the acting Committee will
constitute a quorum. The vote of a majority of a
quorum or the unanimous written consent of a Committee
will constitute action by the Committee. A Committee
may delegate ministerial, non-discretionary functions
to individuals who are officers or employees of the
Company.
1.3 Participation. Options may be granted by the
Committee only to those persons that the Committee
determines to be Eligible Persons. An Eligible Person who
has been granted an Option may, if otherwise eligible, be
granted additional Options if the Committee so determines.
1.4 Shares Available for Options; Share Limits.
1.4.1 Shares Available. Subject to the
provisions of Section 4.2, the capital stock that may
be delivered under this Plan will be shares of the
Corporation's Common Stock. The Shares may be
delivered for any lawful consideration.
1.4.2 Share Limits. The maximum number of
Shares that may be delivered pursuant to Options
granted under this Plan is 2,500,000 Shares (the "Share
Limit"). The maximum number of Shares that may be
delivered pursuant to Options granted to Non-Employee
Directors is 60,000 Shares. The maximum number of
Shares subject to those Options that are granted during
any calendar year to any one individual is 200,000
Shares. Each of the foregoing numerical limits will be
subject to adjustment as contemplated by this Section
1.4 and Section 4.2.
1.4.3 Share Limit; Replenishment and Reissue
of Unvested Options. No Option may be granted under
this Plan unless, on the date of grant, the sum of (i)
the maximum number of Shares issuable at any time
pursuant to such Option, plus (ii) the number of Shares
that have previously been issued pursuant to Options
granted under this Plan, other than reacquired Shares
available for reissue consistent with any applicable
limitations, plus (iii) the maximum number of Shares
that may be issued at any time after such date of grant
pursuant to Options that are outstanding on such date,
does not exceed the Share Limit. Shares that are
subject to or underlie Options that expire or for any
reason are cancelled or terminated, are forfeited, fail
to vest, or for any other reason are not paid or
delivered under this Plan, as well as reacquired
Shares, will again, except to the extent prohibited by
law, be available for subsequent Options under this
Plan.
1.5 Grant of Option. Subject to the express
provisions of this Plan, the Committee will determine the
number of Shares subject to each Option and the price to be
paid for the Shares. Each Option will be evidenced by an
Option Agreement signed by the Corporation and, if required
by the Committee, by the Participant.
1.6 Option Period. Any option and related right will
expire not more than 10 years after the date of grant;
provided, however, that the delivery of stock pursuant to an
Option may be delayed until a future date if specifically
authorized by the Committee in writing.
1.7 Limitations on Exercise and Vesting of
Options.
1.7.1 Provisions for Exercise. Unless the
Committee otherwise expressly provides, no Option will
be exercisable or will vest until at least six months
after the initial Option Date, and once exercisable an
Option will remain exercisable until the expiration or
earlier termination of the Option.
1.7.2 Procedure. Any exercisable Option will
be deemed to be exercised when the Secretary of the
Corporation receives written notice of such exercise
from the Participant, together with any required
payment made in accordance with Section 2.2(b) or 3.3,
as the case may be.
1.7.3 Fractional Shares/Minimum Issue.
Fractional share interests will be disregarded, but may
be accumulated. The Committee, however, may determine
in the case of Eligible Persons that cash, other
securities, or other property will be paid or
transferred in lieu of any fractional share interests.
No fewer than 100 Shares may be purchased on exercise
of any Option at one time unless the number purchased
is the total number at the time available for purchase
under the Option.
1.8 No Transferability.
1.8.1 Limit on Exercise and Transfer. Unless
otherwise expressly provided in (or pursuant to) this
Section 1.8, by applicable law and by the Option
Agreement, as the same may be amended, (i) all Options
are non-transferable and will not be subject in any
manner to sale, transfer, anticipation, alienation,
assignment, pledge, encumbrance or charge; (ii) Options
will be exercised only by the Participant; and (iii)
amounts payable or Shares issuable pursuant to an
Option will be delivered only to (or for the account
of) the Participant.
1.8.2 Exceptions. The Committee may permit
Options to be exercised by and paid only to certain
persons or entities related to the Participant pursuant
to such conditions and procedures as the Committee may
establish. Any permitted transfer will be subject to
the condition that the Committee receive evidence
satisfactory to it that the transfer is being made for
estate and/or tax planning purposes and without
consideration (other than nominal consideration).
Incentive Stock Options will be subject to any and all
additional transfer restrictions under the Code
(notwithstanding Section 1.8.3).
1.8.3 Further Exceptions to Limits On
Transfer. The exercise and transfer restrictions in
Section 1.8.1 will not apply to:
(a) transfers to the Corporation,
(b) the designation of a beneficiary to receive
benefits if the Participant dies or, if the
Participant has died, transfers to or
exercise by the Participant's beneficiary,
or, in the absence of a validly designated
beneficiary, transfers by will or the laws of
descent and distribution,
(c) transfers pursuant to a QDRO
if approved or ratified by the
Committee,
(d) if the Participant has suffered a disability,
permitted transfers or exercises on behalf of
the Participant by the Participant's legal
representative, or
(e) the authorization by the Committee of
"cashless exercise" procedures with third
parties who provide financing for the purpose
of (or who otherwise facilitate) the exercise
of Options consistent with applicable laws
and the express authorization of the
Committee.
2. ELIGIBLE PERSON OPTIONS.
2.1 Grants. One or more Options may be granted under
this Section 2 to any Eligible Person. Each Option granted
will be designated in the applicable Option Agreement, by
the Committee, as either an Incentive Stock Option, subject
to Section 2.4, or a Nonqualified Stock Option.
2.2 Option Price.
2.2.1 Pricing Limits. The purchase price per
Share covered by each Option will be determined by the
Committee at the time of the grant, but in all cases
will not be less than 100% (110% in the case of a
Participant described in Section 2.4.3) of the Fair
Market Value of the Common Stock on the date of grant
and in all cases will not be less than the par value
thereof.
2.2.2 Payment Provisions. The purchase price
of any Shares purchased on exercise of an Option
granted under this Section 2 will be paid in full at
the time of each purchase in one or a combination of
the following methods: (i) in cash or by electronic
funds transfer; (ii) by certified or cashier's check
payable to the order of the Corporation; (iii) by
notice and third party payment in such manner as may be
authorized by the Committee; or (iv) by the delivery of
shares of Common Stock of the Corporation already owned
by the Participant, provided, however, that the
Committee may in its absolute discretion limit the
Participant's ability to exercise an Option by
delivering such Shares, and any Shares delivered that
were initially acquired upon exercise of a stock option
must have been owned by the Participant at least six
months as of the date of delivery. Shares used to
satisfy the exercise price of an Option will be valued
at their Fair Market Value on the date of exercise.
Without limiting the generality of the foregoing, the
Committee may provide that the Option can be exercised
and payment made by delivering a properly executed
exercise notice together with irrevocable instructions
to a broker to promptly deliver to the Corporation the
amount of sale proceeds necessary to pay the exercise
price and, unless otherwise prohibited by the Committee
or applicable law, any applicable tax withholding under
Section 4.5. The Corporation will not be obligated to
deliver certificates for the Shares unless and until it
receives full payment of the exercise price therefor
and any related withholding obligations have been
satisfied.
2.3 Vesting; Option Period.
2.3.1 Vesting. Subject to Section 1.6, each
Option will vest and become exercisable as of the date
or dates determined by the Committee and set forth in
the applicable Option Agreement.
2.3.2 Option Period. Subject to Section 1.6,
each Option and all rights thereunder will expire no
later than 10 years after the Option Date.
2.4 Limitations on Grant and Terms of Incentive
Stock Options.
2.4.1 $100,000 Limit. To the extent that the
aggregate "Fair Market Value" of stock with respect to
which incentive stock options first become exercisable
by a Participant in any calendar year exceeds $100,000,
taking into account both Common Stock subject to
Incentive Stock Options under this Plan and stock
subject to incentive stock options under all other
plans of the Company or any parent corporation, such
options will be treated as Nonqualified Stock Options.
For this purpose, the "Fair Market Value" of the stock
subject to options will be determined as of the date
the options were awarded. In reducing the number of
options treated as incentive stock options to meet the
$100,000 limit, the most recently granted options will
be reduced first. To the extent a reduction of
simultaneously granted options is necessary to meet the
$100,000 limit, the Committee may, in the manner and to
the extent permitted by law, designate which shares are
to be treated as shares acquired pursuant to the
exercise of an Incentive Stock Option.
2.4.2 Other Code Limits. Incentive Stock
Options may only be granted to Eligible Employees of
the Corporation or a Subsidiary that satisfies the
other eligibility requirements of the Code. There will
be imposed in any Option Agreement relating to
Incentive Stock Options such other terms and conditions
as from time to time are required in order that the
Option be an "incentive stock option" as that term is
defined in Section 422 of the Code.
2.4.3 Limits on 10% Holders. No Incentive
Stock Option may be granted to any person who, at the
time the Option is granted, owns (or is deemed to own
under Section 424(d) of the Code) shares of outstanding
Common Stock possessing more than 10% of the total
combined voting power of all classes of stock of the
Corporation, unless the exercise price of such Option
is at least 110% of the Fair Market Value of the stock
subject to the Option and such Option by its terms is
not exercisable after the expiration of five years from
the date such Option is granted.
2.5 Cancellation and Regrant/Waiver of Restrictions/No
Repricing. Subject to Section 1.4 and Section 4.6 and the
specific limitations on Options contained in this Plan, the
Committee from time to time may authorize, generally or in
specific cases only, for the benefit of any Eligible Person
any adjustment in the vesting schedule, the number of Shares
subject to, or the restrictions upon or the term of, an
Option granted under this Section 2 by cancellation of an
outstanding Option and a subsequent regranting of an Option,
by amendment, by substitution of an outstanding Option, by
waiver or by other legally valid means; provided, however,
that no such amendment, cancellation and regrant, or other
adjustment to an Option shall reduce the per Share exercise
price of the Option to a price less than 100% of the Fair
Market Value of the Common Stock on the Option Date of the
initial Option (subject to permitted adjustments pursuant to
Section 4.2). Such amendment or other action may provide,
subject to Section 2.2, for among other changes, for a
greater or lesser number of Shares subject to the Option, or
provide for a longer or shorter vesting or exercise period.
2.6 Options in Substitution for Stock Options Granted
by Other Corporations. Options may be granted to Eligible
Persons under this Plan in substitution for employee stock
options granted by other entities to persons who are or who
will become Eligible Persons in respect of the Company, in
connection with a distribution, merger or reorganization by
or with the granting entity or an affiliated entity, or the
acquisition by the Company, directly or indirectly, of all
or a substantial part of the stock or assets of the
employing entity.
3. NON-EMPLOYEE DIRECTOR OPTIONS.
3.1 Participation/Commencement. Options under this
Section 3 will be made only to Non-Employee Directors and
will be evidenced by Option Agreements substantially in the
form of Exhibit A hereto. No Option shall be granted under
the 1998 Plan to any Non-Employee Director until the earlier
of (i) the termination of the 1991 Plan (for any reason), or
(ii) the lack of capacity under Article III of the 1991 Plan
to grant further Non-Employee Director Options.
3.2 Option Grants.
3.2.1 Initial Options. After approval of this
Plan by the stockholders of the Corporation and after
the commencement of this Section 3 of the Plan upon the
earlier occurance of (i) or (ii) as listed in Section
3.1 above (the "Commencement Date"), if any person who
is not then an officer or employee of the Company
becomes a Non-Employee Director, on the date of
election to the Board such person will automatically be
granted (without any action by the Board or the
Committee) a Nonqualified Stock Option (the Option Date
of which shall be the date such person takes office) to
purchase 10,000 shares of Common Stock.
3.2.2 Subsequent Annual Options. Subject to
Section 3.2.3, at the close of trading on the first
business day in each calendar year during the term of
this Plan commencing in the following year after the
year in which the Commencement Date occurs, there will
be granted automatically (without any action by the
Board or the Committee) a Nonqualified Stock Option
(the Option Date of which shall be such date) to each
Non-Employee Director then in office to purchase 3,000
shares of Common Stock.
3.2.3 Maximum Number of Options/Shares.
Annual grants that would otherwise exceed the maximum
number of shares under Section 1.4.2 will be prorated
within such limitation.
3.3 Option Price. The purchase price per Share of the
Common Stock covered by each Option granted pursuant to
Section 3.2 will be 100% of the Fair Market Value of the
Common Stock on the Option Date. The purchase price of any
Shares purchased shall be paid in full at the time of each
purchase either in cash or by check or in shares of Common
Stock valued at their Fair Market Value on the date of
exercise of the Option, or partly in Shares and partly in
cash; provided that any Shares used for such payment must be
owned by the Participant at least six months prior to the
date of such exercise.
3.4 Option Period and Exercisability. Each Option
granted under Section 3.2 and all rights or obligations
thereunder will expire on the day before the fifth
anniversary of the Option Date and will be subject to
earlier termination as provided below. Each Option granted
under Section 3.2 will become 100% vested and exercisable on
the day before the first anniversary of the Option Date.
3.5 Termination of Directorship. If a Non-Employee
Director's services as a member of the Board terminate for
any reason, an Option granted pursuant to Section 3.2 that
is held by such Participant will terminate to the extent
that it is not then exercisable, and any portion of such
Option that is then exercisable may be exercised for only
six months after the date of such termination or until the
expiration of the stated term of such Option, whichever
first occurs.
3.6 Adjustments; Acceleration; Termination. Options
granted under Section 3.2 will be subject to adjustments,
accelerations, and terminations as provided in Section 4.2,
but only to the extent that such adjustment and any Board or
Committee action in respect thereof in the case of a Change
in Control is effected pursuant to the terms of a
reorganization agreement approved by stockholders of the
Corporation, or is otherwise consistent with adjustments to
Options held by persons other than executive officers of the
Corporation (or, if there are none, consistent in respect of
the underlying Shares with the effect on stockholders
generally).
4. OTHER PROVISIONS.
4.1 Rights of Eligible Persons, Participants and
Beneficiaries.
4.1.1 Employment Status. Status as an
Eligible Person will not be construed as a commitment
that any Option will be granted under this Plan to an
Eligible Person or to Eligible Persons generally.
4.1.2 No Employment Contract. Nothing
contained in this Plan (or in any other documents
related to this Plan or to any Option) will confer upon
any Eligible Person or other Participant any right to
continue in the employ or other service of the Company
or constitute any contract or agreement of employment
or other service, nor will interfere in any way with
the right of the Company to change such person's
compensation or other benefits or to terminate the
employment (or services) of such person, with or
without cause, but nothing contained in this Plan or
any related document will adversely affect any
independent contractual right of such person without
the person's consent thereto.
4.1.3 Plan Not Funded. Options payable under
this Plan will be payable in Shares or from the general
assets of the Corporation. No Participant, Beneficiary
or other person will have any right, title or interest
in any fund or in any specific asset (including Shares,
except as expressly otherwise provided) of the Company
by reason of any Option hereunder. Neither the
provisions of this Plan (or of any related documents),
nor the creation or adoption of this Plan, nor any
action taken pursuant to the provisions of this Plan
will create, or be construed to create, a trust of any
kind or a fiduciary relationship between the Company
and any Participant, Beneficiary or other person. To
the extent that a Participant, Beneficiary or other
person acquires a right to receive payment pursuant to
any Option hereunder, such right will be no greater
than the right of any unsecured general creditor of the
Company.
4.2 Adjustments; Acceleration.
4.2.1 Adjustments. The following provisions
will apply if any extraordinary dividend or other
extraordinary distribution occurs in respect of the
Common Stock (whether in the form of cash, Common
Stock, other securities, or other property), or any
reclassification, recapitalization, stock split
(including a stock split in the form of a stock
dividend), reverse stock split, reorganization, merger,
combination, consolidation, split-up, spin-off,
repurchase, or exchange of Common Stock or other
securities of the Corporation, or any similar, unusual
or extraordinary corporate transaction (or event in
respect of the Common Stock) or a sale of substantially
all the assets of the Corporation as an entirety
occurs. The Committee will, in such manner and to such
extent (if any) as it deems appropriate and equitable:
(a) proportionately adjust any or all of (i) the
number and type of Shares (or other
securities) that thereafter may be made the
subject of Options (including the specific
maxima and numbers of Shares set forth
elsewhere in this Plan), (ii) the number,
amount and type of Shares (or other
securities or property) subject to any or all
outstanding Options, (iii) the grant,
purchase, or exercise price of any or all
outstanding Options, or (iv) the securities,
cash or other property deliverable upon
exercise of any outstanding Options, or
(b) in the case of an extraordinary dividend or
other distribution, recapitalization,
reclassification, merger, reorganization,
consolidation, combination, sale of assets,
split up, exchange, or spin off, make
provision for a cash payment or for the
substitution or exchange of any or all
outstanding Options or the cash, securities
or property deliverable to the holder of any
or all outstanding Options based upon the
distribution or consideration payable to
holders of the Common Stock upon or in
respect of such event. In each case, with
respect to Incentive Stock Options, no such
adjustment will be made that would cause this
Plan to violate Section 422 or 424(a) of the
Code or any successor provisions without the
written consent of the holders materially
adversely affected thereby. In any of such
events, the Committee may take such action
sufficiently prior to such event if necessary
to permit the Participant to realize the
benefits intended to be conveyed with respect
to the underlying shares in the same manner
as is available to stockholders generally.
4.2.2 Acceleration of Options Upon Change in
Control. Unless prior to a Change in Control Event the
Committee determines that, upon its occurrence,
benefits under any or all Options will not accelerate
or determines that only certain or limited benefits
under any or all Options will be accelerated and the
extent to which they will be accelerated, and/or
establishes a different time in respect of such Change
in Control Event for such acceleration, then upon the
occurrence of a Change in Control Event, each Option
and Stock Appreciation Right will become fully vested
and immediately exercisable.
However, in the case of a transaction intended to be
accounted for as a pooling of interests transaction,
the Committee will have no discretion with respect to
the foregoing acceleration of Options. The Committee
may override the limitations on acceleration in this
Section 4.2.2 by express provision in the Option
Agreement and may accord any Eligible Person a right to
refuse any acceleration, whether pursuant to the Option
Agreement or otherwise, in such circumstances as the
Committee may approve. Any acceleration of Options
will comply with applicable legal requirements.
4.2.3 Possible Early Termination of
Accelerated Options. If any Option under this Plan
(other than an Option granted under Section 3.2) has
been fully accelerated as permitted by Section 4.2.2
but is not exercised prior to (i) a dissolution of the
Corporation, or (ii) a reorganization event described
in Section 4.2.1 that the Corporation does not survive,
or (iii) the consummation of reorganization event
described in Section 4.2.1 that results in a Change in
Control Event approved by the Board, and no provision
has been made for the survival, substitution, exchange
or other settlement of such Option, such Option will
thereupon terminate.
4.3 Effect of Termination of Employment; Termination
of Subsidiary Status; Discretionary Provisions.
4.3.1 Options - Resignation or Dismissal. If
the Participant's employment by (or other service
specified in the Option Agreement to) the Company
terminates for any reason (the date of such termination
being referred to as the "Severance Date") other than
due to Retirement, Total Disability or death, or "for
cause" (as determined in the discretion of the
Committee), the Participant will have, unless otherwise
provided in the Option Agreement and subject to earlier
termination pursuant to or as contemplated by
Section 1.6 or Section 4.2, three months after the
Severance Date to exercise any Option to the extent it
has become vested the Severance Date. In the case of a
termination "for cause", the Option will terminate on
the Severance Date (whether or not vested). In all
cases, the Option, to the extent not vested on the
Severance Date, will terminate.
4.3.2 Options - Death or Disability. If the
Participant's employment by (or specified service to)
the Company terminates as a result of Total Disability
or death, the Participant, the Participant's Personal
Representative or the Participant's Beneficiary, as the
case may be, will have, unless otherwise provided in
the Option Agreement and subject to earlier termination
pursuant to or as contemplated by Section 1.6 or
Section 4.2, until 12 months after the Severance Date
to exercise any Option to the extent it has become
vested on the Severance Date. The Option, to the
extent not vested on the Severance Date, will
terminate.
4.3.3 Options - Retirement. If the
Participant's employment by (or specified service to)
the Company terminates as a result of Retirement, the
Participant, Participant's Personal Representative or
the Participant's Beneficiary, as the case may be, will
have, unless otherwise provided in the Option Agreement
and subject to earlier termination pursuant to or as
contemplated by Section 1.6 or Section 4.2, until 12
months after the Severance Date to exercise any
Nonqualified Stock Option (three months after the
Severance Date in the case of an Incentive Stock
Option) to the extent it has become vested on the
Severance Date. The Option, to the extent not vested
on the Severance Date, will terminate.
4.3.4 Committee Discretion. Notwithstanding
the foregoing provisions of this Section 4.3, in the
event of, or in anticipation of, a termination of
employment with the Company for any reason, other than
discharge for cause, the Committee may increase the
portion of the Participant's Option available to the
Participant, or Participant's Beneficiary or Personal
Representative, as the case may be, or, subject to the
provisions of Section 1.6, extend the exercisability
period upon such terms as the Committee determines and
expressly sets forth in or by amendment to the Option
Agreement.
4.4 Compliance with Laws. This Plan, the granting and
vesting of Options under this Plan and the offer, issuance
and delivery of securities and/or the payment of money under
this Plan or under Options granted hereunder are subject to
compliance with all applicable federal and state laws, rules
and regulations (including but not limited to state and
federal securities law and federal margin requirements) and
to such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the
Corporation, be necessary or advisable in connection
therewith. Any securities delivered under this Plan will be
subject to such restrictions and to any restrictions the
Committee may require to preserve a pooling of interests
under generally accepted accounting principles, and the
person acquiring such securities will, if requested by the
Corporation, provide such assurances and representations to
the Corporation as the Corporation may deem necessary or
desirable to assure compliance with all applicable legal
requirements.
4.5 Tax Withholding.
4.5.1 Cash or Shares. Upon any exercise,
vesting, or payment of any Option or upon the
disposition of Shares acquired pursuant to the exercise
of an Incentive Stock Option prior to satisfaction of
the holding period requirements of Section 422 of the
Code, the Company will have the right at its option to
(i) require the Participant (or Personal Representative
or Beneficiary, as the case may be) to pay or provide
for payment of the amount of any taxes which the
Company may be required to withhold with respect to
such Option event or payment or (ii) deduct from any
amount payable in cash the amount of any taxes which
the Company may be required to withhold with respect to
such cash payment. In any case where a tax is required
to be withheld in connection with the delivery of
shares of Common Stock under this Plan, the Committee
may in its sole discretion (subject to Section 4.4)
grant (either at the time of the Option or thereafter)
to the Participant the right to elect, pursuant to such
rules and subject to such conditions as the Committee
may establish, to have the Corporation reduce the
number of Shares to be delivered by (or otherwise
reacquire) the appropriate number of Shares valued at
their then Fair Market Value, to satisfy such
withholding obligation.
4.5.2 Tax Loans. The Company may, in its
discretion, authorize a loan to an Eligible Person in
the amount of any taxes which the Company may be
required to withhold with respect to Shares received
(or disposed of, as the case may be) pursuant to a
transaction described in Section 4.5.1. Such a loan
shall be for a term, at a rate of interest and pursuant
to such other terms and conditions as the Company,
under applicable law may establish.
4.6 Plan Amendment, Termination and Suspension.
4.6.1 Board Authorization. The Board may, at
any time, terminate or, from time to time, amend,
modify or suspend this Plan, in whole or in part. No
Options may be granted during any suspension of this
Plan or after termination of this Plan, but the
Committee shall retain jurisdiction as to Options then
outstanding in accordance with the terms of this Plan.
4.6.2 Stockholder Approval. To the extent
then required under Sections 422 and 424 of the Code or
any other applicable law, or deemed necessary or
advisable by the Board, any amendment to this Plan will
be subject to stockholder approval.
4.6.3 Amendments to Options. Without limiting
any other express authority of the Committee under but
subject to the express limits of this Plan, the
Committee by agreement or resolution may waive
conditions of or limitations on Options to Eligible
Persons that the Committee in the prior exercise of its
discretion has imposed, without the consent of a
Participant, and may make other changes to the terms
and conditions of Options that do not affect in any
manner materially adverse to the Participant, his or
her rights and benefits under an Option.
4.6.4 Limitations on Amendments to Plan and
Options. No amendment, suspension or termination of
this Plan or change of or affecting any outstanding
Option will, without written consent of the
Participant, affect in any manner materially adverse to
the Participant any rights or benefits of the
Participant or obligations of the Corporation under any
Option granted under this Plan prior to the effective
date of such change. Changes contemplated by
Section 4.2 will not be deemed to constitute changes or
amendments for purposes of this Section 4.6.
4.7 Privileges of Stock Ownership. Except as
otherwise expressly authorized by the Committee or this
Plan, a Participant will not be entitled to have any
privilege of stock ownership as to any Shares not actually
delivered to and held of record by the Participant. No
adjustment will be made for dividends or other rights as a
stockholder for which a record date is prior to such date of
delivery.
4.8 Effective Date of the Plan. This Plan will be
effective upon its approval by the Board (the "Effective
Date"), subject to approval by the stockholders of the
Corporation within twelve months after the date of such
Board approval.
4.9 Term of the Plan. Unless earlier terminated by
the Board, this Plan will terminate at the close of business
on the day before the tenth anniversary of the Effective
Date (the "Termination Date") and no Options may be granted
under this Plan after that date. Unless otherwise expressly
provided in this Plan or in an applicable Option Agreement,
any Option theretofore granted may extend beyond such date,
and all authority of the Committee with respect to Options
hereunder, including the authority to amend an Option, will
continue during any suspension of this Plan and in respect
of outstanding Options on the Termination Date.
4.10 Governing Law/Construction/Severability.
4.10.1 Choice of Law. This Plan, the Options,
all documents evidencing Options and all other related
documents will be governed by, and construed in
accordance with the laws of the State of Delaware.
4.10.2 Severability. If a court of competent
jurisdiction holds any provision invalid and
unenforceable, the remaining provisions of this Plan
will continue in effect.
4.10.3 Plan Construction.
(a) Rule 16b-3. It is the intent of the
Corporation that transactions in and
affecting Options in the case of
Participants who are or may be subject
to Section 16 of the Exchange Act
satisfy any then applicable requirements
of Rule 16b-3 so that such persons
(unless they otherwise agree) will be
entitled to the benefits of Rule 16b-3
or other exemptive rules under Section
16 of the Exchange Act in respect of
those transactions and will not be
subjected to avoidable liability
thereunder.
(b) Section 162(m). It is the further
intent of the Company that Options with
an exercise price not less than Fair
Market Value on the date of grant that
are granted to or held by a person
subject to Section 162(m) will qualify
as performance-based compensation under
Section 162(m) to the extent that the
Committee authorizing the Option
satisfies the administrative
requirements thereof.
This Plan will be interpreted consistent with such
intent.
4.11 Captions. Captions and headings are given to the
sections and subsections of this Plan solely as a
convenience to facilitate reference. Such headings will not
be deemed in any way material or relevant to the
construction or interpretation of this Plan or any provision
thereof.
4.12 Effect of Change of Subsidiary Status. For
purposes of this Plan and any Option hereunder, if an entity
ceases to be a Subsidiary, a termination of employment and
service will be deemed to have occurred with respect to each
Eligible Person in respect of such Subsidiary who does not
continue as an Eligible Person in respect of another entity
within the Company.
4.13 Non-Exclusivity of Plan. Nothing in this Plan
will limit or be deemed to limit the authority of the Board
or the Committee to grant awards or authorize any other
compensation, with or without reference to the Common Stock,
under any other plan or authority.
5. DEFINITIONS.
"Beneficiary" means the person, persons, trust or
trusts designated by a Participant or, in the absence of a
designation, entitled by will or the laws of descent and
distribution, to receive the benefits specified in the
Option Agreement and under this Plan if the Participant
dies, and means the Participant's executor or administrator
if no other Beneficiary is designated and able to act under
the circumstances.
"Board" means the Board of Directors of the
Corporation.
"Change in Control Event" means any of the following:
(a) Approval by the stockholders of the
Corporation of the dissolution or liquidation
of the Corporation;
(b) Approval by the stockholders of the
Corporation of an agreement to merge or
consolidate, or otherwise reorganize, with or
into one or more entities that are not
Subsidiaries or other affiliates, as a result
of which less than 50% of the outstanding
voting securities of the surviving or
resulting entity immediately after the
reorganization are, or will be, owned,
directly or indirectly, by stockholders of
the Corporation immediately before such
reorganization (assuming for purposes of such
determination that there is no change in the
record ownership of the Corporation's
securities from the record date for such
approval until such reorganization and that
such record owners hold no securities of the
other parties to such reorganization), but
including in such determination any
securities of the other parties to such
reorganization held by affiliates of the
Corporation);
(c) Approval by the stockholders of the
Corporation of the sale of substantially all
of the Corporation's business and/or assets
to a person or entity that is not a
Subsidiary or other affiliate; or;
(d) Any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act
but excluding any person described in and
satisfying the conditions of Rule 13d-1(b)(1)
thereunder) becomes the beneficial owner (as
defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities
of the Corporation representing more than 30%
of the combined voting power of the
Corporation's then outstanding securities
entitled to then vote generally in the
election of directors of the Corporation; or
(e) During any period not longer than two
consecutive years, individuals who at the
beginning of such period constituted the
Board cease to constitute at least a majority
thereof, unless the election, or the
nomination for election by the Corporation's
stockholders, of each new Board member was
approved by a vote of at least three-fourths
of the Board members then still in office who
were Board members at the beginning of such
period (including for these purposes, new
members whose election or nomination was so
approved).
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commission" means the Securities and Exchange
Commission.
"Committee" shall mean the Board or any one or more
committees of directors appointed by the Board to administer
this Plan with respect to the Options within the scope of
authority delegated by the Board. At least one committee
will be comprised only of two or more directors, each of
whom, in respect of any decision involving both (i) a
Participant affected by the decision who is or may be
subject to Section 162(m), and (ii) compensation intended as
performance-based compensation within the meaning of Section
162(m), will be Disinterested; in acting on any transaction
with or for the benefit of a Section 16 Person, the
participating members of such Committee also shall be Non-
Employee Directors within the meaning of Rule 16b-3.
"Common Stock" means the Common Stock of the
Corporation, par value $0.01 per share, and such other
securities or property as may become the subject of Options,
or become subject to Options, pursuant to an adjustment made
under Section 4.2 of this Plan.
"Company" means, collectively, the Corporation and
its Subsidiaries.
"Corporation" means The MacNeal-Schwendler Corporation,
a Delaware corporation, and its successors.
"Disinterested" means a director who is an "outside
director" within the meaning of Section 162(m) and any
applicable legal or regulatory requirements.
"Eligible Employee" means an officer (whether or not a
director) or other employee of the Company.
"Eligible Person" means an Eligible Employee, or any
Other Eligible Person, as determined by the Committee.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended from time to time.
"Fair Market Value" on any date means (a) if the stock
is listed or admitted to trade on a national securities
exchange, the closing price of the stock on the Composite
Tape, as published in the Western Edition of The Wall Street
Journal, of the principal national securities exchange on
which the stock is so listed or admitted to trade, on such
date, or, if there is no trading of the stock on such date,
then the closing price of the stock as quoted on such
Composite Tape on the next preceding date on which there was
trading in such shares; (b) if the stock is not listed or
admitted to trade on a national securities exchange, the
last/closing price for the stock on such date, as furnished
by the National Association of Securities Dealers, Inc.
("NASD") through the NASDAQ National Market Reporting System
or a similar organization if the NASD is no longer reporting
such information; (c) if the stock is not listed or admitted
to trade on a national securities exchange and is not
reported on the National Market Reporting System, the mean
between the bid and asked price for the stock on such date,
as furnished by the NASD or a similar organization; or
(d) if the stock is not listed or admitted to trade on a
national securities exchange, is not reported on the
National Market Reporting System and if bid and asked prices
for the stock are not furnished by the NASD or a similar
organization, the value as established by the Committee at
such time for purposes of this Plan. Any determination as
to fair market value made pursuant to this Plan shall be
determined without regard to any restriction other than a
restriction which, by its terms, will never lapse, and shall
be conclusive and binding on all persons.
"Incentive Stock Option" means an Option that is
designated and intended as an incentive stock option within
the meaning of Section 422 of the Code, the award of which
contains such provisions (including but not limited to the
receipt of stockholder approval of this Plan, if the award
is made prior to such approval) and is made under such
circumstances and to such persons as may be necessary to
comply with that section.
"Nonqualified Stock Option" means an Option that is
designated as a Nonqualified Stock Option and will include
any Option intended as an Incentive Stock Option that fails
to meet the applicable legal requirements thereof. Any
Option granted hereunder that is not designated as an
incentive stock option will be deemed to be designated a
nonqualified stock option under this Plan and not an
incentive stock option under the Code.
"Non-Employee Director" means a member of the Board who
is not an officer or employee of the Company.
"Option" means an option to purchase Common Stock
granted under this Plan. The Committee shall designate any
Option granted to an Eligible Employee as a Nonqualified
Stock Option or an Incentive Stock Option. Options granted
under Section 3 shall be Nonqualified Stock Options.
"Option Agreement" means any writing setting forth the
terms of an Option that has been authorized by the
Committee.
"Option Date" means the date upon which the Committee
took the action granting an Option or such later date as the
Committee designates as the Option Date at the time of the
Option or, in the case of Options under Section 3, the
applicable dates set forth therein.
"Other Eligible Person" means any individual consultant
or advisor who or, to the extent provided in the next
sentence, agent who renders or has rendered bona fide
services (other than services in connection with the
offering or sale of securities of the Company in a capital
raising transaction) to the Company, and who is selected to
participate in this Plan by the Committee; provided,
however, that no person shall be selected as an Other
Eligible Person if such person's participation in this Plan
would adversely affect (a) the Corporation's eligibility to
use Form S-8 to register under the Securities Act the
offering of shares issuable under this Plan by the Company
or (b) the Corporation's compliance with any other
applicable laws.
"Participant" means an Eligible Person who has been
granted an Option under this Plan and a Non-Employee
Director who has been granted an Option under Section 3.2 of
this Plan.
"Personal Representative" means the person or persons
who, upon the disability or incompetence of a Participant,
has acquired on behalf of the Participant, by legal
proceeding or otherwise, the power to exercise the rights or
receive benefits under this Plan and who by virtue of having
become the legal representative of the Participant.
"Plan" means this The MacNeal-Schwendler
Corporation 1998 Stock Option Plan.
"QDRO" means a qualified domestic relations order as
defined in Section 414(p) of the Code or Title I, Section
206(d)(3) of ERISA (to the same extent as if this Plan were
subject thereto), or the applicable rules thereunder.
"Rule 16b-3" means Rule 16b-3 as promulgated by the
Commission pursuant to the Exchange Act, as amended from
time to time.
"Section 16 Person" means a person subject to
Section 16(a) of the Exchange Act.
"Securities Act" means the Securities Act of 1933,
as amended from time to time.
"Share" means a share of Common Stock.
"Subsidiary" means any corporation or other entity a
majority of whose outstanding voting stock or voting power
is beneficially owned, directly or indirectly, by the
Corporation.
"Total Disability" means a "permanent and total
disability" within the meaning of Section 22(e)(3) of the
Code and (except in the case of Incentive Stock Options and
Options granted to Non-Employee Directors) such other
disabilities, infirmities, affliction or conditions as the
Committee may include under Section 3.
<PAGE>
EXHIBIT 5.1
July 30, 1999
MSC.Software Corporation
815 Colorado Boulevard
Los Angeles, California 90041-1777
Re: Registration on Form S-8 of MSC.Software Corporation
Gentlemen:
We have acted as counsel to MSC.Software Corporation, a
Delaware corporation (the "Company"), in connection with the
filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as
amended, covering 1,500,000 shares of Common Stock, $.01 par
value (the "Shares"), of the Company to be issued pursuant to
the MSC.Software Corporation 1998 Stock Option Plan, as amended
(the "Plan").
In our capacity as such counsel, we have examined originals
or copies of those corporate and other records and documents we
considered appropriate.
Based upon such examination and upon such matters of fact
and law as we have deemed relevant, we are of the opinion that
the Shares have been duly authorized by all necessary corporate
action on the part of the Company and, upon payment for and
delivery of the Shares in accordance with the Plan and the
countersigning of the certificate or certificates representing
the Shares by a duly authorized signatory of the registrar for
the Company's common stock, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement.
Respectfully submitted,
/s/ O'MELVENY & MYERS LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in this
Registration Statement on Form S-8 dated July 30, 1999 and
related Prospectus pertaining to the MSC.Software Corporation
1998 Stock Option Plan of our report dated March 18, 1999,
with respect to the consolidated financial statements and
schedule of MSC.Software Corporation (formerly the
MacNeal-Schwendler Corporation) included in its Transition
Report (Form 10-K) for the transition period ended December
31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Los Angeles, California
July 28, 1999
