Exhibit 10.3
SEPARATION & GENERAL RELEASE
AGREEMENT
This Separation and General Release Agreement
(“Agreement”) is made by and between Michael J. Henry
(“Henry”) and Align Technology, Inc.
(“Align”). Henry and Align will hereinafter be
referred to as the “Parties.”
R E
C I T A
L S
WHEREAS, Henry has been for a time employed by
Align;
WHEREAS, the Parties agree that his employment
shall be terminated on July 23, 2007 (the “Termination
Date”);
WHEREAS, Henry and Align (together “the
Parties”) wish permanently to resolve all disputes that exist
or may exist between them in the future arising out of
Henry’s employment with Align and the termination
thereof;
NOW, THEREFORE, for and in consideration of the
promises and undertakings described below, the Parties agree as
follows:
A G
R E E M
E N T
S
A.
ALIGN.
1. Severance
Pay. Beginning upon the first regular pay day following
the execution of this Agreement by Henry and after the expiration
of the revocation period referred to in Section C.7. below, Align
shall pay to Henry the total amount of One Hundred Twenty Three
Thousand Seven Hundred and Fifty Dollars ($123,750) to be paid in
accordance with Align’s standard payroll schedule and
practices, less applicable deductions and withholdings, which
represents six months of Henry’s current base salary. A
Form W-2 shall be issued to Henry for each year during which these
payments are made and/or waivers are issued.
2. COBRA
Continuation. Beginning after the execution of this
Agreement by Henry and after the expiration of the revocation
period referred to in Section C.7. below, if Henry is eligible and
timely elects to continue medical coverage for himself and his
eligible dependents under COBRA, Align will pay, on Henry’s
behalf, the premiums to continue this group health insurance,
including coverage for Henry’s eligible dependents for a
period of six (6) months; provided, however, that Align will pay
such premiums only for the coverage for which Henry and his
eligible dependents were enrolled immediately prior to the
Termination Date.
Align shall pay the premiums for such coverage
until the earlier of (a) six (6) months following the expiration of
the revocation period; (b) the effective date of Henry’s
coverage by a health plan of a subsequent employer; or (c) the date
Henry is no longer eligible for COBRA coverage. For the
balance of the period that Henry is entitled to coverage under
COBRA, he shall be entitled to maintain coverage for himself and
his eligible dependents at his own expense.
B.
HENRY.
1. Final Pay.
Henry represents and warrants that he has received and
reviewed his final paycheck and that he has been paid all salary,
wages and compensation of any type earned by him and owed to him by
Align, including, but not limited to, all accrued but unused
vacation as well as any reimbursable business
expenses. Henry further acknowledges and
agrees that he is not entitled to any additional payments from
Align except as set forth in this Agreement.
2. General
Release . Henry hereby fully and forever releases,
waives, discharges and promises not to sue or otherwise institute
or cause to be instituted any legal or administrative proceedings
against Align or any of its current and former officers, directors,
attorneys, shareholders, predecessor, successor, affiliated or
related companies, agents, employees and assignees thereof
(collectively, the “Company”), with respect to any and
all liabilities, claims, demands, contracts, debts, obligations and
causes of action of any nature, kind, and description, whether in
law, equity or otherwise, whether or not now known or ascertained,
which currently do or may exist, including without limitation any
matter, cause or claim arising from or relating in any way to
Henry’ employment with Align or the termination therefrom,
including, but not limited to any claims for unpaid wages,
severance, benefits, penalties, breach of contract, breach of the
covenant of good faith and fair dealing, infliction of emotional
distress, misrepresentation, claims under Title VII of the Civil
Rights Act, under the Age Discrimination in Employment Act, under
the California Fair Employment and Housing Act, under the
California Labor Code, under the Employment Retirement Income and
Security Act and under any other statutory or common law claims
relating to employment or the termination thereof, except
any claims Henry may have, which, as a matter of law, are not
subject to waiver, such as:
a.
unemployment insurance benefits pursuant to the terms of applicable
law;
b.
workers’ compensation insurance benefits pursuant to Division
4 of the California Labor Code, under the terms of any
workers’ compensation insurance policy or fund of Align;
c.
continued participation in certain of Align’s group benefit
plans on a temporary basis pursuant to the federal law known as
COBRA;
d.
rights or claims under the Age Discrimination in Employment Act
(“ADEA”) that may arise after the date this Agreement
is signed;
e.
the right to file an administrative charge with the Equal
Employment Opportunity Commission, the Department of Fair
Employment & Housing, the National Labor Relations Board and
any other governmental entity to which waiver of the right to file
an administrative claim is unlawful;
f.
claims for indemnification under California Labor Code section
2802.
With regard to Section B.2.e., Henry
understands and agrees that, in the event he files an
administrative charge, he shall not seek, be entitled to, or accept
any financial remuneration of any type as a result of the
charge. With regard to Section B.2.f., Henry acknowledges
that he is presently unaware of any claims for indemnification that
have not already been submitted to the Company.
3. Waiver –
Civil Code Section 1542 . Henry understands
and agrees that Section B.2., above, applies to claims, known and
presently unknown by Henry; and that this means that if, hereafter,
Henry discovers facts different from or in addition to those which
Henry now knows or believes to be true, that the releases, waivers,
discharge and promise not to sue or otherwise institute legal
action shall be and remain effective in all respects
notwithstanding such different or additional facts or the discovery
of such fact. Accordingly, Henry hereby agrees that he fully
and forever waives any and all rights and benefits conferred upon
his by the provisions of Section 1542 of the Civil Code of the
State
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