with all applicable laws, rules and regulations.
The Executive and the
Corporation shall mutually agree on the fair market value for such shares, and
in the event that no mutual agreement can be reached, the determination of the
fair market value for such shares shall be determined in accordance with an
appraisal procedure set out in a letter agreement of even date herewith.
The
Executive's right under this Section 6 is subject to the Corporation's ability
to effect such a repurchase of shares in compliance with all applicable laws,
rules and regulations.
7.
Notices.
(a)
All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given and made if (i) delivered by hand,
(ii) otherwise delivered against receipt therefor, or (iii) sent by registered
or certified mail, postage prepaid, return receipt requested.
Any notice shall
be duly addressed to the parties as follows:
If to the Corporation:
MSC.Software Corporation
2 MacArthur Place
Santa Ana,
California 92707
Attn: Board of Directors
with a copy to:
Jeffrey W. Walbridge, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
If to the Executive:
William J. Weyand
6805 Alberly Lane
Cincinnati, Ohio 45243
(b)
Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this Section 7 for the giving of
notice.
Any communication shall be effective when delivered by hand, when
otherwise delivered against receipt therefor, or five (5) business days after
being mailed in accordance with the foregoing.
8.
General Provisions.
(A)
WITHHOLDING TAXES.
NOTWITHSTANDING
ANYTHING ELSE HEREIN TO THE CONTRARY, THE CORPORATION MAY WITHHOLD (OR CAUSE
THERE TO BE WITHHELD, AS THE CASE MAY BE) FROM ANY AMOUNTS OTHERWISE DUE OR
PAYABLE UNDER OR PURSUANT TO THIS AGREEMENT SUCH FEDERAL, STATE AND LOCAL
5
INCOME, EMPLOYMENT, OR OTHER TAXES AS MAY BE REQUIRED TO BE WITHHELD PURSUANT TO
ANY APPLICABLE LAW OR REGULATION.
(B)
ASSIGNMENT.
THIS AGREEMENT IS PERSONAL IN
ITS NATURE AND NEITHER OF THE PARTIES HERETO SHALL, WITHOUT THE CONSENT OF THE
OTHER, ASSIGN OR TRANSFER THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER;
PROVIDED, HOWEVER, THAT IN THE EVENT OF A MERGER, CONSOLIDATION, OR TRANSFER OR
SALE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE CORPORATION WITH OR TO ANY
OTHER INDIVIDUAL(S) OR ENTITY, THIS AGREEMENT SHALL, SUBJECT TO THE PROVISIONS
HEREOF, BE BINDING UPON AND INURE TO THE BENEFIT OF SUCH SUCCESSOR AND SUCH
SUCCESSOR SHALL DISCHARGE AND PERFORM ALL THE PROMISES, COVENANTS, DUTIES, AND
OBLIGATIONS OF THE CORPORATION HEREUNDER.
(C)
RIGHTS REGARDING EMPLOYMENT.
THE TERMS AND
CONDITIONS OF EXECUTIVE'S EMPLOYMENT ARE PROVIDED PURSUANT TO THE EMPLOYMENT
AGREEMENT, AND NOTHING IN THIS AGREEMENT WILL BE CONSTRUED TO CONFLICT WITH OR
ALTER THOSE TERMS OR CONDITIONS.
(D)
NUMBER AND GENDER.
WHERE THE CONTEXT
REQUIRES, THE SINGULAR SHALL INCLUDE THE PLURAL, THE PLURAL SHALL INCLUDE THE