Exhibit 10.19
SEVERANCE AGREEMENT AND GENERAL
RELEASE
This Separation
and General Release Agreement (“Agreement”) is made by
and between Sonia Clark (“Clark” or
“Employee”) and Align Technology, Inc.
(“Align” or the “Company”).
R E C I T A L S
WHEREAS, Clark
has been for a time employed by Align;
WHEREAS, the
Company and Clark have entered into an Amended and Restated
Employment Agreement dated May 5, 2008 (the “Employment
Agreement”), which provided for an individually negotiated
severance package in the event of the termination of her employment
under certain circumstances;
WHEREAS, the
Parties agree that Clark shall cease to be an executive officer of
the Company and otherwise cease performing services and her
employment with the Company shall be terminated on
December 31, 2008 (the “Termination
Date”);
WHEREAS, Clark
and Align (together “the Parties”) wish permanently to
resolve all disputes that exist now or may exist between them in
the future arising out of Clark’s employment with Align and
the termination thereof and that such resolution shall constitute a
General Release as described below;
NOW, THEREFORE,
for and in consideration of the promises and undertakings described
below, the Parties agree as follows:
1.
In consideration
for this Agreement, the Company shall provide the following to
Clark:
a.
In accordance with Section 6(b) of the Employment
Agreement, following the execution of this Agreement and after the
expiration of the revocation period referred to in Paragraph 7
below, Align shall pay to Clark the total amount of
seven hundred and
twenty two thousand five hundred and seventy five dollars and
seventy cents ($722,575.70) to be paid in a lump sum, less
applicable deductions and withholdings, which represents an amount
equal to: (a) $160,192.50, which amount equals the
fiscal year 2008 target bonus; (b) $266,987.50, which amount
equals one year’s base salary; (c) $266,987.50, which
amount equals the greater of the then-2008 target bonus or the
actual prior year’s bonus; (d) $25,808.20, which amount
equals twelve months of COBRA; and (e) $2,600, for
outplacement services.
b.
In accordance with Section 6(b) of the Employment
Agreement, as of the Termination Date, Clark shall immediately
conditionally vest in an additional number of shares under all
outstanding options and restricted stock units as if Clark had
performed twelve (12) additional months of service measured from
the Termination Date, subject to Clark’s execution of this
Agreement and provided that she does not revoke this Agreement as
allowed in Paragraph 7 below and the exercise rights with respect
to such conditionally vested shares shall be suspended until such
execution and expiration of such revocation period.
2.
In exchange for
the foregoing consideration and other good and valuable
consideration set forth herein, Clark agrees as
follows:
a.
Clark warrants and agrees that the Company, its predecessors,
successors and assigns have paid Clark any and all compensation due
to her, including vacation pay, salary, other wages or expenses,
and all compensation of any type, except as identified in Paragraph
1 above, due or due to become due and that, to the extent that any
of the foregoing remain unpaid, any such payments are included in
the sum specified in Paragraph 1 above, which is more than
sufficient to cover such amounts, if any. Excluding the
amounts in Paragraph 1, which may come due upon satisfaction of the
conditions herein, the Company denies Clark is owed any
compensation other than her final paycheck and accrued but unused
vacation, which shall be paid on her final day of employment
whether or not she signs this agreement. At such time as
Align pays the amounts in Paragraph 1 above, all obligations to
Clark shall cease and she shall be entitled to no further payments
of any kind from Align, including but not limited to any salary,
bonuses or incentive compensation payments, or payments of any
type. In this regard, Clark understands and agrees that she
has not earned any bonuses or other amounts and, except for such
amounts referred to in Paragraph 1 above and subject to the
conditions herein, is and shall be entitled to no other bonuses,
payments or compensation of any type.
b.
Clark agrees that the foregoing shall constitute an accord and
satisfaction and a full and complete settlement of her claims,
shall constitute the entire amount of monetary consideration
provided to her under this Agreement, and that she will not seek
any further compensation for any other claimed damage, costs or
attorneys’ fees in connection with the matters encompassed in
this Agreement.
c.
Clark acknowledges and agrees that the Company has made no
representations to her regarding the tax consequences of any
amounts received by her pursuant to this Agreement. Clark
further agrees to pay federal or state taxes that are required by
law to be paid with respect to this Agreement, and further agrees
to indemnify the Company for any fines, penalties, interest or
other levies due to any federal or state taxing authorities as a
result of the characterization of any of the payments described
herein.
d.
Clark also agrees to cooperate with the Company regarding any
pending or subsequently filed litigation, claims, or other disputes
involving Align that relate to matters within the knowledge or
responsibility of Clark during her employment with Align.
Without limiting the foregoing, Clark agrees (i) to meet with
Company representatives, its counsel, or other designees at
mutually convenient times and places with respect to any items
within the scope of this provision; (ii) to provide truthful
testimony regarding same to any court, agency, or other
adjudicatory body; and (iii) to provide the Company with
notice of contact by any adverse party or such adverse
party’s representative, except as may be required by
law. Clark shall also comply with reasonable requests for
information that relate to matters with the knowledge or
responsibility of Clark during her employment. Align will
reimburse Clark for all reasonable expenses in connection with the
cooperation described in this paragraph.
3.
This Agreement,
all of its terms, and all of the obligations of the Company
contained herein are expressly contingent upon the condition that
Clark does not exercise her right of revocation as described in
subparagraph (g) of Paragraph 7 below.
4.
Clark represents
that she will not file (or ask or allow anyone to file on her
behalf), any charge, complaint, claim or lawsuit of any kind in
connection with any claim released by this Agreement. This
provision shall not apply, however, to any non-waivable charges or
claims brought before any
2
governmental agency.
With respect to any such non-waivable claims, Clark agrees to waive
her right (if any) to any monetary or other recovery should any
governmental agency or other third party pursue any claims on her
behalf, either individually, or as part of any collective
action. Nothing herein shall preclude any claim Clark may
file alleging that the waiver of claims under the Age
Discrimination in Employment Act of 1967 (“ADEA”) was
not knowing or voluntary. Likewise, nothing herein shall
preclude Clark from making any claims for workers’
compensation benefits, unemployment benefits, indemnification or
reimbursement for business expenses under Labor Code section 2802,
or any other claims that cannot be waived by private agreement
under applicable laws. With regard to claims under section
2802, Employee acknowledges and agrees that she has conducted a
reasonable investigation and is unaware of any indemnification
claims that have not been disclosed in writing to the
Company.
5.
Clark without
limitation hereby irrevocably and unconditionally releases and
forever discharges the Company, its current and former
subsidiaries, divisions, affiliates, officers, agents, directors,
supervisors, employees, representatives, successors and assigns,
and all persons acting by, through, under, or in concert with any
of them from any and all charges, complaints, claims, causes of
action, debts, demands, sums of money, controversies, agreements,
promises, damages and liabilities of any kind or nature whatsoever,
both at law and equity, kno
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