Exhibit 10.3


 


FORM OF


MSC.SOFTWARE CORPORATION


 


RESTRICTED STOCK PURCHASE AGREEMENT


 


This
Restricted Stock Purchase Agreement (this “Agreement”) is
dated as of August 15, 2005 by and between MSC.Software Corporation, a Delaware
corporation (the “Company”), and Glenn
R. Wienkoop (the “Executive”).


 


RECITALS


 


On August 15,
2005 (the “Effective Date”), the Company
granted to the Executive a right to purchase 100,000 shares of restricted
Company Common Stock, par value $0.01 per share (“Common Stock”),
upon the terms and conditions set forth herein.


 


The
Executive desires to exercise such purchase right as to [                   ]
shares of Common Stock, upon the terms and conditions set forth herein.


 


AGREEMENT


 


In
consideration of services to be rendered by the Executive and payment of the
purchase price for any shares of Common Stock purchased by the Executive
pursuant to the terms hereof, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


1.             Grant.  On the Effective Date, the Company granted to
the Executive a right (the “Purchase Right”)
to purchase all or any part of 100,000 shares of Common Stock.  The price per share of Common Stock subject
to the Purchase Right is $11.00.  The
shares of Common Stock that the Executive desires to purchase pursuant to this
Agreement (as set forth above) are referred to as the “Restricted Shares”
and will be subject to the restrictions set forth herein.  The grant of the Purchase Right was is in
full satisfaction of the Company’s obligation to grant stock purchase rights
covering 100,000 shares of Common Stock to the Executive at a per share price
of $11.00 pursuant to that certain letter agreement, dated on or about July 27,
2005, providing for the terms and conditions of Executive’s employment by the
Company.


 


2.             Exercise of Purchase Right.  The Purchase Right is exercisable by the
Executive as of the Effective Date and will remain exercisable only until the
first to occur of (1) the termination of the Executive’s employment with
the Company, or (2) the close of business on August 29, 2005.  To exercise the Purchase Right, the Executive
must, before the expiration of the exercise period described above, do each of
the following: (1) execute this Agreement, have the Executive’s spouse (if
the Executive is married) execute the spousal consent attached hereto, and
return such fully executed version to the Chief Executive Officer of the Company,
(2) deliver to the Company along with the executed version of this
Agreement the aggregate purchase price ($11.00 per share), in cash or check
payable to the Company, for the Restricted Shares, and (3) execute and
deliver the stock power contemplated by Section 4(e) below.  The date that the Purchase Right is validly
exercised in accordance with this Section 2 is referred to as the “Purchase Date.”


 


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3.                            Vesting; Termination of Employment.


 


(a)           Repurchase
Right.  If the Executive ceases for
any reason to be employed by the Company prior to August 15, 2006, the
Company shall have the right (but not the obligation) to repurchase from the
Executive, and the Executive shall be obligated to sell to the Company, the Restricted
Shares at a per share price (the “Repurchase Price”)
equal to the lesser of (1) $11.00 per share (subject to adjustment
pursuant to Section 7) and (2) the Fair Market Value (as such term is
defined in the Company’s 2001 Stock Option Plan) of a share of Common Stock as
of the date that the Executive’s employment by the Company terminates.  Such repurchase right shall terminate (1) if
the Executive is employed by the Company on August 15, 2006, or (2) if
the Executive’s employment by the Company terminates prior to August 15,
2006, to the extent that the Company does not exercise such repurchase right
within ninety (90) days following the last day that the Executive is employed
by the Company.  No interest shall be
credited with respect to nor shall other adjustments (other than any adjustments
that the Board determines are appropriate pursuant to Section 7) be made
to the Repurchase Price for fluctuations in the fair market value of the Common
Stock either before or after the date the Executive’s employment by the Company
terminates.


 


(b)           Exercise
of Repurchase Right.  To exercise its
repurchase right under this Section 3, the Company must give written
notice thereof to the Executive (the “Call Notice”)
during the ninety (90) day exercise period described in Section 3(a).  The Call Notice is irrevocable by the Company
and must (a) be in writing and signed by an authorized officer of the Company,
and (b) set forth the Company’s intent to exercise its repurchase right
pursuant to this Agreement and contain the total number of Restricted Shares to
be sold to the Company pursuant to such repurchase.  The closing of any repurchase under this Section 3
shall be at a date to be specified by the Company, such date to be no later
than 30 days after the date of the Call Notice. 
The purchase price shall be paid at the closing in the form of a check payable
to the Executive (or his estate in the event of the Executive’s death) or by
offset of any obligation of the Executive then owes to the Company.  The Company may exercise its powers under Section 4(e) hereof
and take any other action necessary or advisable to evidence a transfer of the Restricted
Shares to the Company upon such a repurchase. 
The Executive, or the Executive’s beneficiary or personal
representative, as the case may be, shall deliver any additional documents of
transfer that the Company may request to confirm the transfer of the Restricted
Shares to the Company.


 


(c)           Continuance of Employment.  The lapse of the repurchase right referred to
above requires continued employment through August 15, 2006 as a condition
to the vesting of the Restricted Shares. 
Employment for only a portion of the vesting period, even if a substantial
portion, will not entitle the Executive to any proportionate vesting.  Nothing contained in this Agreement constitutes
an employment commitment by the Company, affects the Executive’s status as an employee
at will who is subject to termination without cause, confers upon the Executive
any right to remain employed by the Company, interferes in any way with the right
of the Company at any time to terminate such employment, or affects the right
of the Company to increase or decrease the Executive’s other compensation or
benefits.


 


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4.                            Stock Certificates.


 


(a)           Book
Entry Form.  The Company shall, in
its discretion but in any event promptly following the Purchase Date, issue the
Restricted Shares either (1) in certificate form as provided in Section 4(b) below
or (2) in book entry form, registered in the name of the Executive with
notations regarding the applicable restrictions on transfer imposed under this Agreement.


 


(b)           Certificates
to be Held by Company; Legend.  Any
certificates representing Restricted Shares that may be delivered to the Executive
by the Company prior to vesting shall be immediately redelivered by the Executive
to the Company to be held by the Company until the repurchase right on such
shares under Section 3 shall have lapsed and the shares shall thereby have
become vested or the shares represented thereby have been repurchased by the
Company pursuant to Section 3.  Such
certificates shall bear the following legend (in addition to the legend(s)
contemplated by Section 4(d)):


 


“The ownership of this certificate and the shares of stock
evidenced hereby and any interest therein are subject to substantial
restrictions on transfer and a repurchase right under a Restricted Stock
Purchase Agreement entered into between the registered owner and MSC.Software
Corporation.  A copy of such Restricted
Stock Purchase Agreement is on file in the office of the Secretary of MSC.Software
Corporation.”


 


(c)           Delivery
of Certificates Upon Vesting. 
Promptly after the vesting of any Restricted Shares pursuant to Section 3
and the satisfaction of any and all related tax withholding obligations
pursuant to Section 8, the Company shall, as applicable, either remove the
notations referencing the repurchase right under Section 3 on any Restricted
Shares issued in book entry form that have vested or deliver to the Executive a
certificate or certificates evidencing the number of Restricted Shares that have
vested (or, in either case, such lesser number of shares as may be permitted
pursuant to Section 8).  The Executive
(or the beneficiary or personal representative of the Executive in the event of
the Executive’s death or incapacity, as the case may be) shall deliver to the Company
any representations or other documents or assurances as the Company may deem
necessary or reasonably desirable to ensure compliance with all applicable legal
and regulatory requirements.


 


(d)           Share
Legend Generally.  The certificate(s)
representing the Restricted Shares (both before and after such shares shall
have become vested pursuant to Section 3) shall bear the following legend
and/or any other appropriate or required legends under applicable laws (and in
addition to any legend provided in Section 4(b) above):


 


“The securities represented hereby have not been registered or qualified
under the Securities Act of 1933, as amended (“Act”), nor have they been
registered or qualified under the securities laws of any state.  No transfer of such securities will be
permitted unless a registration statement under the Act is then in effect as to
such transfer, the transfer is made in accordance with Rule 144 under the
Act, or in the opinion of counsel to MSC.Software Corporation registration
under the Act is unnecessary in order for such transfer to comply with the Act
and with applicable state securities laws.”


 


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Any Restricted Shares issued in book entry form shall
include a notation referencing such restrictions (both before and after such
shares shall have become vested pursuant to Section 3).


 


(e)           Stock
Power; Power of Attorney.  Concurrent
with the execution and delivery of this Agreement, the Executive shall deliver
to the Company an executed stock power in the form attached hereto as Exhibit A,
in blank, with respect to the Restricted Shares.  The Executive, by execution of this Agreement,
appoints the Company and each of its authorized representatives as the Executive’s
attorney(s)-in-fact to effect any transfer of any Restricted Shares that are
repurchased by the Company pursuant to Section 3 to the Company and to
execute such documents as the Company or such representatives deem necessary or
advisable in connection with any such transfer.


 


5.         Dividend and Voting Rights.  After the issuance of the Restricted Shares,
the Executive shall be entitled to cash dividends and voting rights with
respect to such shares even though such shares are not vested pursuant to Section 3,
provided that such rights shall terminate immediately as to any Restricted
Shares that are repurchased by the Company pursuant to Section 3.


 


6.         Restrictions on Transfer.


 


(a)           Restrictions
Prior to Vesting.  Prior to the time
that the Restricted Shares have become vested pursuant to Section 3,
neither the Restricted Shares, nor any interest therein, amount payable in
respect thereof (other than cash dividends), nor Restricted Property (as
defined in Section 7) with respect thereto may be sold, assigned,
transferred, pledged or otherwise disposed of, alienated or encumbered, either
voluntarily or involuntarily (other than to the Company pursuant to a
repurchase in accordance with Section 3).


 


(b)           Restrictions
After Vesting.  Upon and after the
time that the Restricted Shares have become vested pursuant to Section 3,
neither the Restricted Shares, nor any interest therein, amount payable in
respect thereof (other than cash dividends), nor Restricted Property shall be
disposed of, in whole or in part, except in compliance with all applicable
federal and state securities laws and unless and until:


 


•                  there is
then in effect a registration statement under the Securities Act of 1933, as
amended (the “Securities Act”), covering such proposed disposition and such
disposition is made in accordance with such registration statement; or


 


•                  such
disposition is made in accordance with Rule 144 under the Securities Act;
or


 


•                  the
Executive notices the Company of the proposed disposition and furnishes the
Company with a statement of the circumstances surrounding the proposed
disposition, and, if requested by the Company, furnishes the Company with an
opinion of counsel acceptable to the Company’s counsel, that such disposition


 


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will not require registration under the Securities Act
and will be in compliance with all applicable state securities laws.


 


Notwithstanding
anything else herein to the contrary, the Company has no obligation to register
or cause to be registered any of the Restricted Shares.


 


(c)           Other
Transfers Void.  Any sale or
transfer, or purported sale or transfer, of any Restricted Shares acquired
pursuant to this Agreement or any interest therein, amount payable in respect
thereof (other than cash dividends) or Restricted Property with respect
thereto, other than to the Company shall be null and void unless the terms,
conditions and provisions of this Agreement are strictly observed and followed.


 


7.         Adjustments Upon Specified Events.  Upon the occurrence of a stock split, reverse
stock split, stock dividend or any other change in capitalization,
reorganization, merger or similar event affecting the Common Stock, the
restrictions and limitations applicable to the Restricted Shares under this
Agreement will continue in effect with respect to any consideration or other
securities (the “Restricted Property” and, for the purposes of this
Agreement, “Restricted Shares” shall include Restricted Property, unless
the context otherwise requires) received in respect of such Restricted
Shares.  In connection with any such
event, the Company’s Board of Directors or a duly authorized committee thereof
(the “Board”) shall, in such manner, to such
extent (if any) and at such time as it deems appropriate and equitable in the
circumstances, proportionately adjust the per share repurchase price
contemplated by Section 3(a) above. 
Any Restricted Property shall be subject to the Company’s repurchase
rights under this Agreement and shall vest at such times and in such proportion
as the Restricted Shares to which the Restricted Property is attributable vest,
or would have vested pursuant to the terms hereof if such Restricted Shares had
remained outstanding.  To the extent that
the Restricted Property includes any cash (other than regular cash dividends
provided for in Section 5 hereof), such cash shall be invested, pursuant
to policies established by the Board, in interest bearing, FDIC-insured
(subject to applicable insurance limits) deposits of a depository institution
selected by the Board, the earnings on which shall be added to and become a
part of the Restricted Property.  Any
adjustment or determination by the Board pursuant to this Section 7 shall
be final, binding, and conclusive. 
Unless otherwise expressly provided by the Board, in no event shall a
new issuance of securities by the Company for consideration be deemed, in and
of itself, to require an adjustment pursuant to this Section 7.


 


8.         Tax Withholding.  The Company shall reasonably determine the
amount of any federal, state, local or other income, employment, or other taxes
which the Company or any of its affiliates may reasonably be obligated to
withhold with respect to the purchase, vesting, making of an election under Section 83(b) of
the Internal Revenue Code of 1986, as amended (the “Code”),
or other event with respect to the Restricted Shares or any bonus payment
pursuant to the terms hereof.  The Company
may, in its sole discretion, withhold and/or reacquire a sufficient number of Restricted
Shares in connection with the vesting of such shares at their then Fair Market
Value (determined either as of the date of such withholding or as of the
immediately preceding trading day, as determined by the Company in its discretion)
to satisfy the amount of any such withholding obligations that arise with
respect to the vesting of such shares. 
The Company may take such action(s) without notice to the Executive and
shall remit to the Executive the balance of any proceeds from withholding
and/or reacquiring such shares in excess


 


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of the
amount reasonably determined to be necessary to satisfy such withholding
obligations.  The Executive shall have no
discretion as to the satisfaction of tax withholding obligations in such
manner.  If, however, the Executive makes
an election under Section 83(b) of the Code with respect to the Restricted
Shares, if any other withholding event occurs with respect to the Restricted
Shares other than the vesting of such stock, or if the Company for any reason
does not satisfy the withholding obligations with respect to the vesting of the
Restricted Shares as provided above in this Section 8, the Company shall
be entitled to require a cash payment by or on behalf of the Executive and/or
to deduct from other compensation payable to the Executive the amount of any
such withholding obligations.  The
Company’s obligation to delivery the Restricted Shares or any certificates
representing the Restricted Shares is subject to the condition precedent that
all such tax withholding obligations have been satisfied by the Executive. The
Company may reduce any cash payment by the amount it reasonably determines is
required to be withheld with respect to such payment.


 


9.         Investment
Representations.  The Executive
acknowledges that the Restricted Shares are not being registered under the
United States Securities Act of 1933, as amended (the “Securities
Act”), based, in part, in reliance upon an exemption from registration
under the Securities Act and a comparable exemption from qualification under
the applicable state securities law, as each may be amended from time to
time.  By execution of this Agreement,
the Executive makes the representations set forth below to the Company and
acknowledges that the Company’s reliance on federal and state securities law
exemptions from registration and qualification is predicated, in part, on such
representations.


 


•                  Accredited Investor.  The Executive (1) has individual net
worth, or joint net worth with his spouse, that currently exceeds $1 million
and/or (2) has had individual income in excess of $200,000 in each of the
two most recent years or joint income with his spouse in excess of $300,000 in
each of those years and has a reasonable expectation of reaching the same
income level in the current year.  The
Executive is an “accredited investor” within the meaning of Rule 501
promulgated under the Securities Act. 
The Executive has a copy of and is familiar with such Rule.


 


•                  No Intent to Sell.  The Executive represents that he is acquiring
the Restricted Shares solely for his own account, for investment purposes only,
and not with a view to or an intent to sell, or to offer for resale in
connection with any unregistered distribution of all or any portion of the shares
within the meaning of the Securities Act or other applicable state securities
laws.


 


•                  No Reliance on Company.  In evaluating the merits and risks of an
investment in the Restricted Shares, the Executive represents that he has and
will rely upon the advice of his own legal counsel, tax advisors, and/or
investment advisors.  The Executive
recognizes that this Agreement is a legally binding contract.


 


•                  Relationship to and Knowledge About Company.  The Executive represents that he is
knowledgeable about the Company and has a preexisting personal and business
relationship with the Company.  As a
result of such relationship, he is familiar with, among other characteristics,
its business and financial


 


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circumstances and has access on a regular basis to and
may request the Company’s balance sheet and income statement setting forth
information material to the Company’s financial condition, operations and
prospects.


 


•                  Restrictions on Shares.  The Executive represents that he understands
that the Restricted Shares (both before and after such shares vest) are and
will be characterized as “restricted securities” under the federal securities
laws since the shares are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act
only in certain limited circumstances. 
The Executive acknowledges receiving a copy of Rule 144 promulgated
under the Securities Act, as presently in effect, and represents that he is
familiar with such rule, and understands the resale limitations imposed thereby
and by the Securities Act and the applicable state securities law.


 


•                  Additional Restrictions.  The Executive represents that he has read and
understands the restrictions and limitations imposed on the Restricted Shares,
including, but not limited to, the following: 
(1) the non-transferability provisions of Section 6; and (2) the
repurchase rights contained in Section 3.


 


•                  No Company Representations.  The Executive represents that at no time was
an oral representation made to him relating to the purchase of the Restricted
Shares and that he was not presented with or solicited by any promotional
meeting or material relating to the shares.


 


•                  Share Certificate Legend.  The Executive represents that he understands
and acknowledges that any certificate evidencing the Restricted Shares (or
evidencing any other securities issued with respect thereto pursuant to any
stock split, stock dividend, merger or other form of reorganization or
recapitalization) when issued shall bear, in addition to any other legends
which may be required by applicable state securities laws, the legend(s) set
forth in Section 4.


 


10.       Effect of this Agreement.  This Agreement shall be assumed by, be
binding upon and inure to the benefit of any successor or successors to the
Company.  The term “Company” for purposes
of this Agreement includes any such successor(s).  The Executive has no right to transfer the
Purchase Right or any portion thereof.


 


11.       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 to the attention of the Chief Executive Officer, and to the Executive
at the Executive’s last address reflected on the Company’s records, or at such
other address as either party may hereafter designate in writing to the
other.  Any such notice shall be given
only when received, but if the Executive is no longer an employee of the Company,
shall be deemed to have been duly given by the Company when enclosed in a
properly sealed envelope addressed as aforesaid, registered or certified, and
deposited (postage and registry or certification fee prepaid) in a post office
or branch post office regularly maintained by the United States Government.


 


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12.       Counterparts.  This Agreement may be executed in one or more
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts together shall constitute but one agreement.  Photographic copies of such signed
counterparts may be used in lieu of the originals for any purpose.


 


13.       Section Headings.  The section headings of this Agreement
are for convenience of reference only and shall not be deemed to alter or
affect any provision hereof.


 


14.       Governing Law.  This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would case the laws of any
jurisdiction other than the State of Delaware to be applied.  In furtherance of the foregoing, the internal
law of the State of Delaware will control the interpretation and construction
of this Agreement, even if under such jurisdiction’s choice of law or conflict
of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.


 


15.       Entire
Agreement.  This Agreement
constitutes the entire agreement and supersedes all prior understandings,
negotiations and agreements, written or oral, of the parties hereto with
respect to the subject matter hereof.  This
Agreement is intended by the parties as a complete and exclusive statement of
the terms of their agreement with respect to the subject matter hereof.  Any representation, promise or agreement with
respect to the subject matter hereof not specifically included in this
Agreement shall not be binding upon or enforceable against either party.  This Agreement constitutes a fully integrated
agreement.  This Agreement may be amended
only by a written agreement signed by each of the parties hereto.  The waiver by either party of a breach of any
provision of this Agreement must be in writing and shall not operate or be
construed as a waiver of any other or subsequent breach.


 


16.       Construction.  The terms of this Agreement have resulted
from the negotiations of the parties and each of the parties has had an
opportunity to obtain and consult with its own counsel.  Each party has participated in the drafting
and in the preparation of this Agreement. 
Hence, in any construction of this Agreement, the same shall not be construed
against either party on the basis that the party was the drafter.  The language of all parts of this Agreement
shall in all cases be construed as a whole, according to its fair meaning, and
not strictly for or against either of the parties.


 


17.       Limited
Rights.  The Executive shall have
no rights as a stockholder of the Company with respect to the Restricted Shares
until such shares have actually been issued in the name of the Executive.  The Executive’s rights with respect to the Restricted
Shares after the date of such issuance are subject to the terms and conditions
of this Agreement.


 


18.       Severability.  It is the desire and intent of the parties
hereto that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. 
Accordingly, if any particular provision of this Agreement shall be
adjudicated by a court of competent jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.  Notwithstanding the


 


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foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.


 


19.       Executive’s
Undertaking.  The Executive
hereby agrees to take whatever additional actions and execute whatever
additional documents the Company may in its reasonable judgment deem necessary
or advisable in order to carry out or effect one or more of the obligations or
restrictions imposed on the Executive pursuant to the express provisions of
this Agreement.


 


IN WITNESS WHEREOF, the Company has caused
this Agreement to be executed on its behalf by a duly authorized officer and
the Executive has hereunto set his or her hand as of the date and year first
above written.


 


	
   

  	
  MSC.SOFTWARE
  CORPORATION,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  John A.
  Mongelluzzo,

  
	
   

  	
  Sr. Vice
  President, Business Administration,

  
	
   

  	
  Corporate
  Secretary and General Counsel

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Glenn R. Wienkoop

  



 


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CONSENT OF SPOUSE


 


In
consideration of the execution of the foregoing Restricted Stock Purchase Agreement
by MSC.Software Corporation, a Delaware corporation, I,                                                  ,
the spouse of the Executive therein named, do hereby join with my spouse in
executing the foregoing Restricted Stock Purchase Agreement and do hereby agree
to be bound by all of the terms and provisions thereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature
  of Spouse

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print
  Name

  



 


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EXHIBIT A


 


STOCK POWER


 


FOR
VALUE RECEIVED and pursuant to that certain Restricted Stock Purchase Agreement
between MSC.Software Corporation, a Delaware corporation (the “Company”),
and the individual named below (the “Individual”) dated as of August    ,
2005, the Individual hereby sells, assigns and transfers to the Company, an
aggregate                    shares
of Common Stock of the Company, standing in the Individual’s name on the books
of the Company and represented by stock certificate number(s)                                      to
which this instrument is attached, and hereby irrevocably constitutes and
appoints                                                                     as
his or her lawful attorney in fact and agent to transfer such shares on the
books of the Company, with full power of substitution in the premises.


 


	
  Dated

  	
   

  	
   

  
	
   

  
	
   

  	
   

  
	
   

  	
  Glenn R.Wienkoop

  
				



 





















 


(Instruction:
Please do not fill in any blanks on the preceding Stock Power other than the
signature line.  The purpose of the
assignment is to enable the Company to exercise its rights set forth in the Restricted
Stock Purchase Agreement in connection with a repurchase of any restricted
shares subject thereto without requiring additional signatures on the part of
the Individual.)


 


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