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Employment, Separation & Release Agreement

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Sectors: Computer Software and Services
Governing Law: Ohio, View Ohio State Laws
Effective Date: March 31, 2009
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Exhibit 10.2

EMPLOYMENT SEPARATION AND GENERAL RELEASE AGREEMENT

This Employment Separation and General Release Agreement (this " Separation Agreement" ), is entered into this 31 st day of March, 2009 by and between Glenn R. Wienkoop, an individual (" Wienkoop" ), and MSC.Software Corporation, a Delaware corporation (" MSC" ).

WHEREAS , Wienkoop has been employed as the President and Chief Operating Officer of MSC since August, 2005, and

WHEREAS , Wienkoop and MSC have mutually agreed to terminate Wienkoop' s employment relationship with MSC upon the terms set forth herein.

NOW, THEREFORE , in consideration of the covenants undertaken and the releases contained in this Separation Agreement, Wienkoop and and MSC agree as follows:

1. Termination . Wienkoop' s position as an officer, director, employee, member, manager and in any other capacity with MSC and each of its affiliates terminated effective March 11, 2009 (" Separation Date" ), and all benefits and perquisites of employment ceased as of the Separation Date. All payments due to Wienkoop from MSC shall be determined under the applicable provisions of this Separation Agreement. Except for the payments referred to in the next sentence, Wienkoop acknowledges and agrees that he has received all amounts owed for his regular and usual salary (including, but not limited to, any severance, overtime, bonus, commissions, or other wages), usual benefits and accrued but unused vacation through the Separation Date and that all payments due to Wienkoop from MSC after the Separation Date shall be determined under this Separation Agreement. On or before April 15, 2009, MSC will pay Wienkoop (1) One Hundred Fifty Three Thousand Three Hundred Thirty Three Dollars ($153,333), less standard withholding and authorized deductions, as a bonus for 2008, and (2) Five Hundred Dollars ($500), less standard withholding and authorized deductions, for a television and couch left by Wienkoop at a residential property in Newport Beach, California provided to him by MSC (the " Newport Beach Residence" ). Wienkoop will not be entitled to any bonus with respect to 2009. In addition, MSC will reimburse Wienkoop for his reasonable expenses incurred in packing and shipping his household goods and vehicles from the Newport Beach Residence; provided, however, that in no event shall the maximum aggregate amount of such reimbursement exceed Five Thousand Dollars ($5,000) and provided, further, that any such reimbursement shall be contingent upon Wienkoop' s submitting to MSC a valid receipt documenting the related expense not more than thirty (30) days after such expense was incurred.

2. Severance Benefit . MSC shall pay as severance pay to Wienkoop the amount of Three Hundred and Ninety Eight Thousand Two Hundred and Sixty Eight dollars ($398,268.00), less standard withholding and authorized deductions (the " Severance Amount" ). Such Severance Amount shall be shall be paid in twelve (12) substantially equal monthly installments, with the first such installment to be paid not later than April 30, 2009. In addition, during the twelve-month period following the Separation Date, MSC shall either pay or reimburse Wienkoop for one hundred percent (100%) of Wienkoop' s premiums to continue for such period under the Consolidated Omnibus Budget Reconciliation Act (" COBRA" ) the same or reasonably equivalent medical coverage for Wienkoop (and, if applicable, Wienkoop' s eligible dependents) as in effect immediately prior to the Separation Date. For each such month, Wienkoop shall also be entitled to continued supplemental medical benefit coverage under MSC' s executive medical benefit program as in effect immediately prior to the Separation Date. (The Severance Amount and the health benefits provided under the preceding two sentences are collectively referred to as the " Severance Benefit ." ) A listing of all of Wienkoop' s equity awards vested as of the Separation Date is listed on Exhibit A attached hereto (to the extent so vested, the " Vested Equity Awards" ). Wienkoop has no rights with respect to any other equity awards granted by MSC. Schedule


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A also sets forth the aggregate balance of Wienkoop' s nonqualified deferred compensation account as of December 31, 2008, which account (as adjusted through the date of final distribution) shall be paid out in accordance with the terms of MSC' s nonqualified deferred compensation plan (the " Deferred Compensation Benefit" ). Wienkoop specifically acknowledges and agrees that he is entitled to receive no severance pay or other benefits pursuant to any severance plan or policy of MSC or any of its affiliates. 3. Release . Wienkoop on behalf of himself, his descendants, dependents, heirs, executors, administrators, assigns, and successors, and each of them, hereby covenants not to sue and fully releases and discharges MSC and each of its parents, subsidiaries and affiliates, past and present (together, the " Company Group" ), as well as its and their trustees, directors, officers, members, managers, partners, agents, attorneys, insurers, employees, stockholders, representatives, assigns, and successors, past and present, and each of them, hereinafter together and collectively referred to as the " Releasees ," with respect to and from any and all claims, wages, demands, rights, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, debts, costs, expenses, attorneys' fees, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which he now owns or holds or he has at any time heretofore owned or held or may in the future hold as against any of said Releasees, arising out of or in any way related to his service as an officer, director, employee, member or manager of any member of the Company Group, his separation from his position as an officer, director, employee, manager and/or member, as applicable, of any member of the Company Group, or any other transactions, occurrences, acts or omissions or any loss, damage or injury whatever, known or unknown, suspected or unsuspected, resulting from any act or omission by or on the part of said Releasees, or any of them, committed or omitted prior to the date of this Separation Agreement related to Wienkoop' s employment or service with any member of the Company Group, including, without limiting the generality of the foregoing, any claim under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act of 1993, the California Fair Employment and Housing Act, the California Family Rights Act, or any claim for severance pay, bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical insurance or any other fringe benefit, workers' compensation or disability; provided that such release shall not apply to (1) any obligation created by or arising out of this Separation Agreement for which receipt or satisfaction has not been acknowledged, (2) any right to indemnification that Wienkoop may have pursuant to MSC' s Bylaws or its certificate of incorporation with respect to any loss, damages or expenses (including but not limited to attorneys' fees) that Wienkoop may in the future incur with respect to his service as an employee, officer or director of MSC or any of its subsidiaries or affiliates, (3) with respect to any rights that Wienkoop may have to insurance coverage for such losses, damages or expenses under any MSC directors and officers liability insurance policy, (4) any right with respect to the Vested Equity Awards pursuant to the written equity-based award agreements entered into by and between MSC and Wienkoop before the Separation Date to the extent that such right continues after the Separation Date in accordance with the terms of the award, (5) the right of Wienkoop to obtain contribution as permitted by law in the event of an entry of judgment against Wienkoop as a result of any act or failure to act for which Wienkoop and MSC are jointly liable, (6) any rights to continued medical coverage that Wienkoop may have under COBRA, (7) any rights to payment of benefits that Wienkoop may have under a retirement plan sponsored or maintained by MSC that is intended to qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended, and (8) Wienkoop' s right to receive payment of the Deferred Compensation Benefit. 4. 1542 Waiver . It is the intention of Wienkoop in executing this instrument that the same shall be effective as a bar to each and every claim, demand and cause of action hereinabove specified. In furtherance of this intention, Wienkoop hereby expressly waives any and all rights and benefits conferred upon him by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and expressly


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consents that this Separation Agreement shall be given full force and effect according to each and all of its express terms and provisions, including those related to unknown and unsuspected claims, demands and causes of action, if any, as well as those relating to any other claims, demands and causes of action hereinabove specified. SECTION 1542 provides: " A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

Wienkoop acknowledges that he may hereafter discover claims or facts in addition to or different from those which Wienkoop now knows or believes to exist with respect to the subject matter of this Separation Agreement and which, if known or suspected at the time of executing this Separation Agreement, may have materially affected this settlement. Nevertheless, Wienkoop hereby waives any right, claim or cause of action that might arise as a result of such different or additional claims or facts. Wienkoop acknowledges that he understands the significance and consequences of such release and such specific waiver of SECTION 1542.

5. ADEA Waiver . Wienkoop expressly acknowledges and agrees that by entering into this Separation Agreement, he is waiving any and all rights or claims that he may have arising under the Age Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of execution of this Separation Agreement. Wienkoop further expressly acknowledges and agrees that:

a. In return for this Separation Agreement, he will receive consideration beyond that which he was already entitled to receive before entering into this Separation Agreement;

b. He is hereby advised in writing by this Separation Agreement to consult with an attorney before signing this Separation Agreement; c. He was given a copy of this Separation Agreement on March 27, 2009 and informed that he had twenty-one (21) days within which to consider this Separation Agreement and that if he wished to execute this Separation Agreement prior to expiration of such 21-day period, he should execute the Acknowledgement and Waiver attached hereto as Exhibit B ; and d. He was informed that he had seven (7) days following the date of execution of this Separation Agreement in which to revoke this Separation Agreement.

6. No Transferred Claims . Wienkoop warrants and represents that he has not heretofore assigned or transferred to any person not a party to this Separation Agreement any released matter or any part or portion thereof and he shall defend, indemnify and hold MSC and each of its affiliates harmless from and against any claim (including the payment of attorneys' fees and costs actually incurred whether or not litigation is commenced) based on or in connection with or arising out of any such assignment or transfer made, purported or claimed.

7. Removal of Certain Property; Return of Property . Wienkoop acknowledges that an automobile belonging to him is currently located (if not heretofore removed by Wienkoop) at the Newport Beach
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