EXHIBIT 4.3
MSC.SOFTWARE CORPORATION
EXECUTIVE BONUS PLAN
1998 & 1999
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MSC.SOFTWARE CORPORATION
EXECUTIVE BONUS PLAN
TABLE OF CONTENTS
Page
ARTICLE I TITLE, PURPOSE AND AUTHORIZED SHARES 1
ARTICLE II DEFINITIONS 1
ARTICLE III PARTICIPATION AND ANNUAL BONUS 4
ARTICLE IV STOCK UNIT ELECTIONS 5
ARTICLE V STOCK UNIT AWARDS 7
ARTICLE VI ADMINISTRATION 7
ARTICLE VII MISCELLANEOUS 9
EXHIBIT A IRREVOCABLE ELECTION AGREEMENT
EXHIBIT B IRREVOCABLE ELECTION AGREEMENT
EXHIBIT C STOCK UNIT AWARD AGREEMENT
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MSC.SOFTWARE CORPORATION
EXECUTIVE BONUS PLAN
ARTICLE I
TITLE, PURPOSE AND AUTHORIZED SHARES
1.1 TITLE
This Plan shall be known as the MSC.Software
Corporation Executive Bonus Plan.
1.2 PURPOSE
The purpose of this Plan is to promote the success of
the Company and the interest of its stockholders by providing an
additional means to attract, motivate, retain and reward
executive officers, by providing Participants annual bonus
incentives as well as an opportunity to convert these bonus
opportunities into Stock Unit Awards and enhancing compensation
deferral opportunities.
1.3 SHARES
An aggregate number not to exceed 32,062 treasury
shares of Common Stock (subject to adjustments contemplated by
Section 7.2) shall be reserved under the Plan for the payment of
1998 and 1999 bonuses payable respectively in 1999 and 2000.
ARTICLE II
DEFINITIONS
2.1 DEFINED TERMS.
Whenever the following terms are used in this Plan they
shall have the meaning specified below, subject to the other
terms and conditions of this Plan, unless the context clearly
indicates to the contrary.
ANNUAL BONUS means an incentive award granted by the
Committee, whether or not under the terms of the Plan,
payable in shares of Common Stock or in cash, or any
combination thereof pursuant to Committee authorization
or participant elections authorized by the Committee.
APPLICABLE PERCENTAGE means fifty percent (50%) unless
the Committee, at or prior to the elections described
in Article IV for a particular year, designates a
different amount.
AWARD means the grant of the opportunity to earn a
payment or bonus under the Plan.
BASE SALARY means the base salary paid by the Company
to a Participant during Year, exclusive of any bonuses,
commissions or other actual or imputed income from any
Company-provided benefits or perquisites, but prior to
any reductions for salary deferred pursuant to any
deferred compensation plan or for contributions to a
plan qualifying under Section 401(k) of the Code or
contributions to a cafeteria plan under Section 125 of
the Code.
BOARD means the Board of Directors of the Company.
BONUS PAYMENT DATE means the date designated by the
Committee (upon or after its decisions as to awards) on
which the Annual Bonus is or would otherwise be
received by the Participant.
CASH BONUS means the percentage of an Annual Bonus
payable solely in cash.
COMMITTEE means the Board or any one or more committees
of director(s) appointed by the Board to administer the
Plan within the scope of authority delegated to the
acting Committee by the Board.
COMMON STOCK means the Common Stock, $0.01 par value
per share, of the Company, subject to adjustment
pursuant to Section 7.2.
COMPANY means MSC.Software Corporation, a Delaware
corporation, and its successors.
CONVERSION AMOUNT means the percentage of the Stock
Bonus elected by the Participant to be converted to a
Stock Unit Award under this Plan.
DEFERRED COMPENSATION PLAN means the MacNeal-Schwendler
Corporation Supplemental Retirement and Deferred
Compensation Plan, as amended.
DIVIDEND EQUIVALENT RIGHT means the amount of cash
dividends or other cash distributions paid by the
Company on that number of shares of Common Stock equal
to the number of Stock Units credited to a
Participant's Stock Unit Account as of the applicable
record date for the dividend or other distribution,
which amount shall, at the discretion of the Committee,
either be paid on the applicable dividend payment date
directly to the Participant in cash or credited in the
form of cash or additional Stock Units to the Stock
Unit Account of the Participant, as provided in the
applicable Stock Unit Award Agreement.
EFFECTIVE DATE means December 30, 1999.
ELIGIBLE EMPLOYEE means any officer of the Company or a
Subsidiary who earns an annual base salary of at least
$160,000 and who otherwise qualifies as a member of a
select group of management or highly compensated
employees, as described in Sections 201, 301 and 401 of
the Employee Retirement Income Security Act of 1974, as
amended, as determined by the for purposes of this
Plan.
FAIR MARKET VALUE means on any date (a) if the Common
Stock is listed or admitted to trade on a national
securities exchange, the opening price of the Common
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
Common Stock is so listed or admitted to trade, on such
date, or, if there is no trading of the Common Stock on
such date, then the opening price of the Common Stock
as quoted on such Composite Tape on the next preceding
date on which there was trading in such shares; (b) if
the Common Stock is not listed or admitted to trade on
a national securities exchange, the opening price for
the Common 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 Common
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 Common Stock on such date, as
furnished by the NASD or a similar organization; or (d)
if the Common 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.
PARTICIPANT means any Eligible Employee who has been
selected by the Committee to participate in this Plan
and received an Annual Bonus under this Plan.
PERFORMANCE TARGET(S) means the specific objective goal
or goals (which may be cumulative or alternative) that
are timely set in writing by the Committee for each
Participant for the Year.
PLAN means this MSC.Software Corporation Executive
Bonus Plan.
STOCK BONUS means the percentage of the Annual Bonus
that is payable solely in shares of Common Stock.
STOCK UNIT means a non-voting unit of measurement which
is deemed solely for bookkeeping purposes to be
equivalent to one outstanding share of Common Stock
(subject to adjustment) payable to a Participant.
STOCK UNIT AWARD means an award of Stock Units granted
by the Committee under the Plan based on the Conversion
Amount.
STOCK UNIT AWARD AGREEMENT means an agreement
substantially in the form of Exhibit C (as from time to
time revised by the Committee).
STOCK UNIT ACCOUNT means the bookkeeping account
maintained by the Company on behalf of each Participant
which is credited with Stock Units calculated in
accordance with Section 4.4.
YEAR means the applicable calendar year.
2.2 FINANCIAL AND ACCOUNTING TERMS
Except as otherwise expressly provided or the context
otherwise requires, financial and accounting terms are used as
defined for purposes of, and shall be determined in accordance
with, generally accepted accounting principles, as from time to
time in effect, and, if applicable, as specifically applied and
reflected in financial statements of the Company, prepared in the
ordinary course of business. Without limiting the generality of
the foregoing, such calculations shall be made after all
compensation accruals.
ARTICLE III
PARTICIPATION AND ANNUAL BONUS
3.1 COVERAGE; ELIGIBLE EMPLOYEES
Awards may be granted only to Eligible Employees.
Actual Participants in the Plan will be determined for each Year
by the Committee at the time Performance Targets are established.
For 1998 and 1999, the Committee designated the Eligible
Employees listed in attached Schedule A and Schedule B,
respectively, to receive Awards. For 1999, the Eligible
Employees designated in attached Schedule B will be eligible to
receive Awards if the Performance Targets are attained.
3.2 BONUS PROVISIONS
Each Participant may receive an Annual Bonus for the
Year if, and only if, the Performance Targets established by the
Committee for such Year are attained. For 1998, the Committee
established the Performance Targets set forth in attached
Schedule A. For 1999, the Committee established the Performance
Targets set forth in attached Schedule B.
3.3 TIME OF PAYMENT; DEFERRED AMOUTNS
Any Annual Bonus granted by the Committee under this
Plan shall be paid in accordance with the vesting and payment
schedule established by the Committee, or set forth in any
applicable Award Agreement, at the time of the grant of the
Annual Bonus. Any payment shall be in cash, Common Stock or any
combination thereof, as the Committee may approve or require,
subject to applicable withholding requirements. For fiscal 1998,
three-fourths (3/4) of the Annual Bonus was paid in cash and one-
fourth (1/4) was payable in shares of Common Stock. For fiscal
1999, one-half (") of the Annual Bonus will be payable in cash
and one-half (") will be payable in shares of Common Stock.
Notwithstanding the foregoing, the Committee, in its sole
discretion, may provide, for any Year, that Eligible Employees
may elect in advance to receive all or part (in increments and on
forms authorized by the Committee) of any Annual Bonus that may
be granted in the future in the form of Stock Units to the extent
provided in Article IV.
ARTICLE IV
STOCK UNIT ELECTIONS
4.1 TIME AND TYPES OF DEFERRAL ELECTIONS
For 1998, the Eligible Employees listed in attached
Schedule A elected on the dates set forth in Schedule A to defer
the payment of the amounts listed in attached Schedule A under
the Deferred Compensation Plan. On or before December 31, 1999,
each Eligible Employee may make an irrevocable election to
receive all or a part of any Stock Bonus that may be payable to
the Eligible Employee during the following Year in Stock Units.
This election shall become effective only if the Committee, in
authorizing the Stock Bonus, expressly recognizes such
alternative payment opportunity in Stock Units and authorizes the
Stock Unit Awards at that time. A person who first becomes an
Eligible Employee after the applicable deadline may, within 30
days of becoming and being designated as an Eligible Employee,
make an irrevocable election to receive any Stock Bonus granted
for the applicable Year (or remaining portion thereof, as the
case may be) in Stock Units.
4.2 ELECTION PROCEDURES
The elections shall be made in writing on forms
provided by the Company and authorized by the Committee. These
forms shall take the form of the Distribution Election Agreement
attached hereto as Exhibit A, as from time to time amended by the
Committee. Neither the distribution nor completion of election
agreements shall convey any right to receive an Annual Bonus, in
cash, Common Stock or Stock Units, unless the Committee otherwise
provides. Failure to timely elect Stock Units, however, will
result in the payment in Common Stock if any Stock Bonus is
awarded.
4.3 DISTRIBUTION OF BENEFITS
(a) TIME AND MANNER OF DISTRIBUTION. A Participant
shall be entitled to receive a distribution of shares of Common
Stock in an amount equal to the number of Stock Units, if any,
allocated to his or her Stock Unit Account, if the Stock Units
have vested, at such time and in such manner as set forth in the
form of agreement approved by the Committee. A Participant may
elect any of the distribution commencement dates and methods of
distribution (lump sum or annual installments) set forth in the
form of Distribution Election Agreement, from time to time,
approved by the Committee, for the applicable year, subject to
such conditions as it may impose.
(b) CHANGE IN TIME OR MANNER OF DISTRIBUTION OF STOCK
UNITS.
(1) To the extent permitted by the Committee and
set forth in any applicable Distribution Election Agreement,
a Participant may change the manner of any distribution
election from a lump sum to annual installments (or vice
versa) made with respect to Stock Units credited under any
Stock Unit Account by filing a written election with the
Committee on a form provided by the Committee; provided,
however, that no such election shall be effective until 12
months after such election is filed with the Committee, and
no such election shall be effective if it is made with
respect to any Stock Unit Account after distributions with
respect to such Stock Unit Account have commenced. An
election made pursuant to this Section 4.3(b) shall not
affect the date of the commencement of benefits.
(2) To the extent permitted by the Committee and
set forth in any applicable Distribution Election Agreement,
a Participant may elect to further defer the commencement of
any distribution to be made with respect to Stock Units
credited under any Stock Unit Account by filing a new
written election with the Committee on a form approved by
the Committee; provided, however, that (A) no such election
shall be effective until 12 months after such election is
filed with the Committee, (B) no such new election shall be
effective with respect to any Stock Unit Account after
benefits with respect to such Stock Unit Account shall have
commenced, and (C) no more than three new elections shall be
valid as to any Stock Unit Account. An election made
pursuant to this Section 4.3(b)(2) shall not affect the
manner of distribution (i.e., lump sum versus installments),
the terms of which shall be subject to Section 4.3(b)(1)
above.
4.4 AMOUNT OF STOCK BONUS/NUMBER OF STOCK UNITS
Unless otherwise provided by the Committee, the number
of shares of Common Stock comprising the Stock Bonus shall be
determined by the Committee in its sole discretion and shall
equal the Applicable Percentage times the Annual Bonus divided by
the Fair Market Value of the Common Stock on the first business
day of the Year for which the Annual Bonus is to be paid (i.e.,
the period in which the service being compensated was rendered),
subject to adjustment pursuant to Section 7.2 of this Plan.
For example, assume that for 1999, the Company grants a
Participant an Annual Bonus in a designated amount of $40,000,
payable on March 1, 2000 and that the Committee determines that
the Applicable Percentage for the Stock Bonus portion of the
Annual Bonus is 50%. The Fair Market Value of a share of Common
Stock on January 2, 1999 was $20. The Participant will receive
$20,000 in cash and 1,000 shares of Common Stock, regardless of
the Fair Market Value of the Common Stock on the date of the
grant or payment.
The number of Stock Units to be credited under the Plan
shall equal the number of shares of Common Stock otherwise
comprising the Stock Bonus multiplied by the percentage of the
Stock Bonus which the Participant has elected to defer, subject
to adjustment pursuant to Section 7.2 of this Plan.
For example, assume that prior to December 31, 1999 the
Participant from the prior example elects to receive 40% of her
Stock Bonus in Stock Units. On March 1, 2000,The Participant
will receive $20,000 in cash, 600 shares of Common Stock and 400
Stock Units.
The amount of the Annual Bonus remains subject to the
discretion of the Committee until paid and no part of it shall be
deemed vested or payable until that time.
4.5 NO FRACTIONAL SHARE INTERESTS
If a distribution would result in the issuance of a
fractional share, the amount of Stock Units granted shall be
rounded down to the next whole share and the cash alternative
amount in lieu of the fractional interest shall be paid in cash.
ARTICLE V
STOCK UNIT AWARDS
The grant of Stock Unit Awards, including, but not
limited to, the terms of grant, conditions and restrictions, the
consideration (other than services) to be paid, the form and
content of Dividend Equivalent rights, vesting terms, and
adjustments in case of changes in the Common Stock, shall be
governed by the terms of the Stock Unit Award Agreement,
substantially in the form of Exhibit B (as from time to time
revised by the Committee), to be executed and delivered by the
Company and the Participant. After an election is made, the form
of the Stock Unit Award Agreement (if applicable) may not be
changed in any manner materially adverse to the Participant
without his or her consent. All Stock Unit Awards are subject to
express prior authorization by the Committee of the terms of the
Stock Unit Award and the specific number of shares of Common
Stock referenced in the Participant's Stock Unit Account. The
number of Stock Units credited (and the number of Shares to which
the Participant is entitled under this Plan) shall be subject to
adjustment in accordance with Section 7.2 of this Plan.
ARTICLE VI
ADMINISTRATION
6.1 RIGHTS AND DUTIES.
This Plan shall be administered by and all Awards to
Eligible Employees shall be authorized by the Committee. The
Committee shall have all powers necessary to accomplish those
purposes, including, but not by way of limitation, the following:
(a) to determine the particular Eligible Employees who
will receive Annual Bonuses, the extent to which and price at
which an Annual Bonus will or may be settled in shares of Common
Stock or Stock Units, and the other specific terms and conditions
of Stock Unit Awards consistent with the express limits of this
Plan;
(b) to approve from time to time the election
agreement and other forms of Award Agreements (which need not be
identical either as among Participants or from year to year); and
(c) to resolve any questions concerning benefits
payable to a Participant and make all other determinations and
take such other action as contemplated by this Plan or as may be
necessary or advisable for the administration or interpretation
of this Plan.
6.2 COMMITTEE CERTIFICATION.
No payment may be made and no Participant will be
entitled to receive any payment under the Plan, unless the
Committee first certifies, by resolution of the Committee or
other appropriate action, that (a) the payment amount has been
accurately determined in accordance with the provisions of the
Plan, (b) the applicable Performance Target(s) have been met, and
(c) any other material terms have been satisfied.
6.3 CLAIMS PROCEDURES.
To the extent the Committee permits deferral elections
extending to the termination of employment or beyond, the
following claims procedures shall apply:
(a) The Committee shall notify Participants and, where
appropriate, the Beneficiary(ies) of their right to claim
benefits under these claims procedures, shall make forms
available for filing of such claims, and shall provide the name
of the person or persons with whom such claims should be filed.
(b) The Committee shall act upon claims as required
and communicate a decision to the claimant promptly and, in any
event, not later than 90 days after the claim is received by the
Committee, unless special circumstances require an extension of
time for processing the claim. If an extension is required,
notice of the extension shall be furnished to the claimant prior
to the end of the initial 90-day period, which notice shall
indicate the reasons for the extension and the expected decision
date. The extension shall not exceed 90 days. The claim may be
deemed by the claimant to have been denied for purposes of
further review described below in the event a decision is not
furnished to the claimant within the period described in the
preceding three sentences. Every claim for benefits which is
denied shall be denied by written notice setting forth in a
manner calculated to be understood by the claimant (i) the
specific reason or reasons for the denial, (ii) specific
reference to any provisions of this Plan on which denial is
based, (iii) description of any additional material or
information necessary for the claimant to perfect his claim with
an explanation of why such material or information is necessary,
and (iv) an explanation of the procedure for further review of
the denial of the claim under this Plan.
(c) The claimant or his or her duly authorized
representative shall have 60 days after receipt of denial of his
or her claim to request a review of such denial, the right to
review all pertinent documents and the right to submit issues and
comments in writing. Upon receipt of a request for a review of
the denial of a benefit claim, the Committee shall undertake a
full and fair review of the denial.
(d) The Committee shall issue a decision not later
than 60 days after receipt of a request for review from a
claimant unless special circumstances, such as the need to hold a
hearing, require a longer period of time, in which case a
decision shall be rendered as soon as possible but not later than
120 days after receipt of the claimant's request for review. The
decision on review shall be in writing and shall include specific
reasons for the decision written in a manner calculated to be
understood by the claimant with specific reference to any
provisions of this Plan on which the decision is based.
ARTICLE VII
MISCELLANEOUS
7.1 AMENDMENT, TERMINATION AND SUSPENSION
The Committee or the Board may, at any time, terminate
or, from time to time, amend, modify or suspend this Plan, in
whole or in part, subject to Section 1.2. No Stock Unit Awards
may be granted under this Plan during any suspension of this Plan
or after termination of this Plan. Termination or amendment of
this Plan shall have no effect on any then outstanding Stock Unit
Awards.
7.2 ADJUSTMENTS
Notwithstanding any other provisions hereof, if there
shall occur any change in the outstanding shares of the Company's
Common Stock by reason of any extraordinary dividend or other
extraordinary distribution 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 Company, 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 Company as an entirety, the Committee shall make
such proportionate and equitable adjustments consistent with the
effect of such event on stockholders generally (but without
duplication of benefits if Dividend Equivalents are credited), as
the Committee determines to be necessary or appropriate, in the
number, kind and/or character of shares of Common Stock or other
securities, property and/or rights payable in respect of Stock
Bonuses, Stock Units and Stock Unit Accounts credited under this
Plan and, if appropriate, the applicable Fair Market Value on
which the number of shares or such other securities, property or
rights was determined.
7.3 TERM OF THIS PLAN
The term of this Plan is indefinite, subject to the
provisions of Section 7.1. All authority of the Committee with
respect to Awards hereunder, including its authority to amend an
Award, shall continue during any suspension of this Plan, in
respect of outstanding Awards on the Termination Date.
7.4 NON-EXCLUSIVITY OF PLAN
Nothing in this Plan shall limit or be deemed to limit
the authority of the Board or the Committee to grant bonuses or
other awards or authorize any other compensation, with or without
reference to the Common Stock, under any other plan or authority.
7.5 NO RESTRICTION ON CORPORATE POWERS
The existence of the Plan and the Stock Unit Awards
granted hereunder shall not affect or restrict in anyway the
right or power of the Board or the stockholders of the Company to
make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure
or its business, any merger or consolidation of the Company, any
issue of bonds, debenture, preferred or prior preference stock
ahead of or affecting the Company's capital stock or the rights
thereof, the dissolution or liquidation of the Company or any
sale or transfer of all or any part of its assets or business, or
any other corporate act or proceeding.
<PAGE>
Exhibit A
December 1999 Election
MSC.SOFTWARE CORPORATION
IRREVOCABLE ELECTION AGREEMENT
EXECUTIVE BONUS PLAN
IF DURING THE YEAR 1999, THE COMPENSATION COMMITTEE APPROVES AN
ANNUAL BONUS TO ME UNDER THE PLAN AND IF THE COMPENSATION
COMMITTEE THEN EXPRESSLY AUTHORIZES ME TO RECEIVE ALL OR PART OF
THE STOCK BONUS IN THE FORM OF A STOCK UNIT AWARD:
I IRREVOCABLY ELECT TO TAKE ____% OF MY STOCK BONUS IN THE FORM
OF A STOCK UNIT AWARD.
I UNDERSTAND THAT:
. THE CONVERSION RATE, FOR PURPOSES OF DETERMINING THE NUMBER
OF SHARES UNDERLYING THE AWARD WILL BE 1.
. THE STOCK UNIT AWARD WILL BE AT ALL TIMES FULLY VESTED AND
NOT SUBJECT TO A RISK OF FORFEITURE.
. THIS ELECTION IS IRREVOCABLE AND MUST BE FILED BY DECEMBER
31, 1999 WITH:
LOUIS A. GRECO
815 COLORADO BOULEVARD
LOS ANGELES, CALIFORNIA 90041
. IF THIS ELECTION IS NOT TIMELY FILED, I WILL NOT HAVE AN
OPPORTUNITY TO DEFER ANY STOCK BONUS IN THE PLAN FOR THE YEAR
1999.
. THIS ELECTION IS SUBJECT TO THE TERMS OF THE PLAN AND THE
APPLICABLE STOCK UNIT AWARD AGREEMENT.
. THIS ELECTION DOES NOT CONSTITUTE A GUARANTEE THAT I WILL
RECEIVE ANY BONUS FROM THE COMPANY.
ACKNOWLEDGMENT AND AGREEMENT
I acknowledge and agree to the foregoing terms of this Election
Agreement.
_________________________
(Participant's Signature)
_________________________ _______________
(Print Name) (Date)
<PAGE>
Exhibit B
December 1999 Election
MSC.SOFTWARE CORPORATION
IRREVOCABLE ELECTION AGREEMENT
1999 EXECUTIVE BONUS PLAN
IF DURING THE YEAR 2000, THE COMPENSATION COMMITTEE APPROVES AN
ANNUAL BONUS TO ME UNDER THE PLAN AND IF THE COMPENSATION
COMMITTEE THEN EXPRESSLY AUTHORIZES ME TO RECEIVE ALL OR PART OF
THE STOCK BONUS IN THE FORM OF A STOCK UNIT AWARD:
I IRREVOCABLE ELECT TO TAKE __% OF MY STOCK BONUS IN THE FORM OF
A STOCK UNIT AWARD.
I UNDERSTAND THAT:
. THE CONVERSION RATE, FOR PURPOSES OF DETERMINING THE NUMBER
OF SHARES UNDERLYING THE AWARD WILL BE 1.
. THE STOCK UNIT AWARD WILL BE AT ALL TIMES FULLY VESTED AND
NOT SUBJECT TO A RISK OF FORFEITURE.
. THIS ELECTION IS IRREVOCABLE AND MUST BE FILED BY DECEMBER
31, 1999 WITH:
LOUIS A. GRECO
815 COLORADO BOULEVARD
LOS ANGELES, CALIFORNIA 90041
. IF THIS ELECTION IS NOT TIMELY FILED, I WILL NOT HAVE AN
OPPORTUNITY TO DEFER ANY STOCK BONUS IN THE PLAN FOR THE YEAR
2000.
. THIS ELECTION IS SUBJECT TO THE TERMS OF THE PLAN AND THE
APPLICABLE STOCK UNIT AWARD AGREEMENT.
. THIS ELECTION DOES NOT CONSTITUTE A GUARANTEE THAT I WILL
RECEIVE ANY BONUS FROM THE COMPANY.
ACKNOWLEDGMENT AND AGREEMENT
I acknowledge and agree to the foregoing terms of this Election
Agreement.
_________________________
(Participant's Signature)
_________________________ _______________
(Print Name) (Date)
<PAGE>
Exhibit C
MSC.SOFTWARE CORPORATION
STOCK UNIT AWARD AGREEMENT
EXECUTIVE BONUS PLAN
Participant Name: ______________
Soc. Sec. No.: _________________
No. Stock Units: _______________
Award Date: ____________ __, 200_
THIS AGREEMENT is among MSC.SOFTWARE CORPORATION, a
Delaware corporation (the "Company") and the employee named above
(the "Participant") and is delivered under the Executive Bonus
Plan (the "Plan").
W I T N E S S E T H
WHEREAS, pursuant to the Plan, the Company has granted
to the Participant with reference to services rendered and to be
rendered to the Company, effective as of the Award Date, a stock
unit award (the "Stock Unit Award" or "Award"), upon the terms
and conditions set forth herein and in the Plan.
NOW THEREFORE, in consideration of services rendered by
the Participant and the mutual promises made herein and the
mutual benefits to be derived therefrom, the parties agree as
follows:
1. Defined Terms. Capitalized terms used herein and
not otherwise defined herein shall have the meaning assigned to
such terms in the Plan.
2. Grant. Subject to the terms of this Agreement and
the Plan the Company grants to the Participant a Stock Unit Award
with respect to an aggregate number of Stock Units (the "Stock
Units") set forth above. The Company acknowledges receipt of
consideration for the shares payable with respect to the Stock
Units on the terms set forth in this Agreement in the form of
services rendered to the Company by the Participant prior to the
Award Date with a value equal to the Annual Bonus that would
otherwise have been payable to the Participant but for the
Participant's election to receive Stock Units under the Plan.
3. Vesting. The Award shall be at all times fully
vested and not subject to risk of forfeiture, with respect to the
total number of Stock Units comprising the Award (subject to
adjustment under Section 7.2 of the Plan.
4. Dividend and Voting Rights.
(a) Limitations on Rights Associated with Units.
The Participant shall have no rights as a stockholder of the
Company, no dividend rights (except as expressly provided in
Section 4(b) with respect to Dividend Equivalent Rights) and no
voting rights, with respect to the Stock Units and any shares of
Common Stock underlying or issuable in respect of such Stock
Units until such shares of Common Stock are actually issued to
and held of record by the Participant. No adjustments will be
made for dividends or other rights of a holder for which the
record date is prior to the date of issuance of the stock
certificate.
(b) Dividend Equivalent Rights Distributions. As
of any applicable dividend or distribution payment date, the
Participant shall receive a cash payment in an amount equal to
the amount of the Dividend Equivalent Rights multiplied by the
number of Units in the Account as of the applicable dividend
payment date.
5. Timing and Manner of Distribution with Respect to
Stock Units. At the time the Participant executes this Agreement
and subject to any changes imposed by or allowed under the
provisions of the Plan, the Participant shall make an irrevocable
election for the manner of distribution with respect to his or
her Stock Units credited under the Plan pursuant to this
Agreement, in shares of Common Stock, subject to and in
accordance with the Plan and the elections made by the
Participant. The election shall specify the time of payout and
shall be made on a Distribution Election Agreement, substantially
in the form of Exhibit A. If no election is made, any Stock Unit
credited to a Participant's Stock Unit Account will be
distributed in a single lump sum of shares of Common Stock upon
the Participant's termination of employment.
6. Tax Withholding. Upon payment of Dividend
Equivalent Rights and/or the distribution of shares of Common
Stock in respect of a Participant's Stock Unit Account, the
entity within the Company last employing the Participant shall
have the right at its option to (i) require the Participant (or
the Participant's Personal Representative or Beneficiary, as the
case may be) to pay or provide for payment in cash of the amount
of any taxes which the Company may be required to withhold with
respect to such payment or distribution or (ii) deduct from any
amount payable to the Participant the amount of any taxes which
the Company may be required to withhold with respect to such
payment or distribution. In any case where a tax is required to
be withheld in connection with the delivery of shares of Common
Stock under this Agreement, the Committee may permit the
Participant to elect, pursuant to such rules and subject to such
conditions as the Committee may establish, to have the Company
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.
7. Notices. Any notice to be given under the terms
of this Agreement shall be in writing and addressed to the
Company at its principal office located at 815 Colorado
Boulevard, Los Angeles, California 90041, to the attention of the
Corporate Secretary and to the Participant at the address given
beneath the Participant's signature hereto, or at such other
address as either party may hereafter designate in writing to the
other.
8. Plan. The Award and all rights of the Participant
with respect thereto are subject to, and the Participant agrees
to be bound by, all of the terms and conditions of the provisions
of the Plan, incorporated herein by reference, to the extent such
provisions are applicable to Awards granted to Eligible
Employees. The Participant acknowledges receipt of a copy of the
Plan, which is made a part hereof by this reference, and agrees
to be bound by the terms thereof. Unless otherwise expressly
provided in other Sections of this Agreement, provisions of the
Plan that confer discretionary authority on the Committee do not
(and shall not be deemed to) create any rights in the Participant
unless such rights are expressly set forth herein or are
otherwise in the sole discretion of the Committee so conferred by
appropriate action of the Committee under the Plan after the date
hereof.
9. No Service Commitment by Company. Nothing
contained in this Agreement or the Plan constitutes an employment
or other commitment by the Company as to the Participant's
service, confers upon the Participant any right to remain
employed by or in service of the Company or any subsidiary,
interferes in any way with the right of the Company or any
subsidiary at any time to terminate such employment or service,
or affects the right of the Company or any subsidiary to increase
or decrease his or her other compensation.
10. Limitation on Participant's Rights. Participation
in the Plan confers no rights or interests other than as herein
provided. This Agreement creates only a contractual obligation
on the part of the Company as to amounts payable and shall not be
construed as creating a trust. The Plan, in and of itself, has
no assets. The Participant shall have only the rights of a
general unsecured creditor of the Company with respect to amounts
credited and benefits payable, if any, on Stock Unit Account(s),
and rights no greater than the right to receive the Common Stock
(or equivalent value) as a general unsecured creditor with
respect to Stock Units, as and when payable thereunder.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written. By the
Participant's execution of this Agreement, the Participant agrees
to the terms and conditions hereof and of the Plan.
MSC.SOFTWARE CORPORATION PARTICIPANT
(a Delaware corporation)
By ___________________________ _____________________________
Louis A. Greco (Signature)
_____________________________
(Print Name)
_____________________________
(Address)
_____________________________
(City, State, Zip Code)
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Stock Unit Award Agreement by MSC.Software Corporation, I,
__________________, the spouse of the Participant therein named,
do hereby join with my spouse in executing the foregoing Stock
Unit Award Agreement and do hereby agree to be bound by all of
the terms and provisions thereof and of the Plan.
Dated: _____________, _____.
___________________________
Signature of Spouse
<PAGE>
EXHIBIT A
DISTRIBUTION ELECTION AGREEMENT
MSC.SOFTWARE CORPORATION
EXECUTIVE BONUS PLAN
IRREVOCABLE DISTRIBUTION ELECTION AGREEMENT
_________________________________________________________________
I hereby irrevocably elect to receive the payments of benefits in
accordance with the choice indicated by me below, except as may
be otherwise provided in the Plan.
Lump sum or installments [check applicable item and enter
number (if any)]:
___ A Single Lump Sum, deliverable as elected below.
___ In Annual Installments: Specify number (not less
than 5 nor more than 10): _______, commencing as
elected below.
Time of Commencement of Distribution [check applicable
item]:
___ Delivered or commencing as soon as practicable
after _______________, 200__ (select a date not
earlier than 12 months from the date of election).
___ Delivered or commencing as soon as practicable
after a termination of service.
___ Delivered or commencing as soon as practicable
after the earlier of _______________, 200__
(select a date not earlier than 12 months from the
date of election) or a termination of service.
___ Delivered or commencing as soon as practicable
after the later of _______________, 200__ (select
a date not earlier than 12 months from the date of
election) or a termination of service.
Remaining balances of less than 100 stock units will be paid in
shares of Common Stock in a single lump sum.
I understand that if I fail to complete this Distribution
Election Agreement, my Stock Unit Account will be distributed in
a single distribution of shares of Common Stock as soon as
practicable after a termination of service.
__________________________________________________
SIGNATURE AND ACKNOWLEDGMENT
I hereby acknowledge that I understand and consent to
the terms of this Distribution Election Agreement and the Plan.
I understand that the payment periods above are irrevocable
(except as provided in Section 4.3(b) of the Plan) and are
subject to the terms of the Plan, which require among other
things that I pay or provide for (through withholding and other
acceptable means) payment in cash of all applicable tax
withholding in respect of any payment of the shares of Common
Stock to me. The Committee may permit the offset of shares of
Common Stock at their then market value to cover withholding
obligations, but I have no right to such offset, and (in the
absence of Committee approval to offset shares of Common Stock) I
will be required to pay withholding obligations to the Company in
cash.
______________________________ _______________________
(Signature) (Date)
______________________________
(Print Name)
