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 


 


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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, known or unknown, suspected or
unsuspected, anticipated or unanticipated (hereinafter referred to as “claim”
or “claims”), arising from conduct occurring on or before the date of this
Agreement, including without limitation any claims incidental to or arising out
of Clark’s employment with the Company or the termination thereof.  It is expressly understood by Clark that
among the various rights and claims being waived in this release are those
arising under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §
621. et seq.), the Older Workers Benefit Protection Act, Title VII of the Civil
Rights Act of 1964, the Equal Pay Act of 1963, the Americans With Disabilities
Act, the Civil Rights Act of 1991, the California Fair Employment and Housing
Act, the California Family Rights Act, the federal and California Worker
Adjustment and Retraining Act, or any other federal, state or local law or
regulation, except as specified herein. 
This provision is intended by the parties to be all encompassing and to
act as a full and total release of any claim, whether specifically enumerated
herein or not, that Clark might have or has had, that exists or ever has
existed on or before the date of this Agreement, which may legally be released.


 


6.                                       The parties understand the word “claim” or “claims”
to include without limitation all actions, claims and grievances, whether actual
or potential, known or unknown, related, incidental to or arising out of
Employee’s employment with the Company and the termination thereof.  All such claims, including related attorneys’
fees and costs, are forever barred by this Agreement and without regard to
whether those claims are based on any alleged breach of a duty arising in
contract or tort; any alleged unlawful act, any other claim or cause of action;
and regardless of the forum in which it might be brought.


 


7.                                       The parties hereby agree that by signing this
Agreement and by acceptance of the payment described above, Clark gives up any
and all rights she may have to file any claim or action which she may now have,
has ever had, or may in the future have, with respect to any matter pertaining to
or arising from her employment with the Company.  In this regard, Clark agrees that this
Agreement covers both known and unknown claims or actions, and as such Employee
expressly waives any rights or protection she may have under California Civil
Code section 1542, which provides:


 


A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the 


 


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release,
which if known by him or her must have materially affected his or her
settlement with the debtor.


 


8.                                       Clark understands and agrees that she:


 


a.             Has had
the opportunity of a full twenty-one (21) days within which to consider this
Agreement before signing it, and that if she has not availed herself of that
full time period that she failed to do so knowingly and voluntarily.  Clark, however, may not sign this Agreement
on or before December 31, 2008.


 


b.             Has
carefully read and fully understands all of the provisions of this Agreement.


 


c.             Is,
through this Agreement, releasing the Company and its 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 claims she may have against the Company or such individuals.


 


d.             Knowingly
and voluntarily agrees to all of the terms set forth in this Agreement.


 


e.             Knowingly
and voluntarily intends to be legally bound by the same.


 


f.              Was
advised and hereby is advised in writing to consider the terms of this
Agreement and consult with an attorney of Employee’s choice prior to signing
this Agreement.


 


g.             Has a
full seven (7) days following the execution of this Agreement to revoke
this Agreement, and has been and hereby is advised in writing that this
Agreement shall not become effective or enforceable until the revocation period
has expired.  If Clark desires to revoke
this Agreement, she must provide written notice to Roger E. George by 5:00 p.m.
on the seventh day following her execution of this Agreement.


 


h.             Understands
that rights or claims under the Age Discrimination in Employment Act of 1967
(29 U.S.C. § 621, et seq.) that may arise after the date this Agreement is
signed are not waived.


 


9.                                       The parties agree that any change made to the
Agreement offered to Clark on October 31, 2008, whether material or
immaterial and regardless of the reason for the change, will not restart the
running of the twenty-one (21) day period.


 


10.                                 This Agreement has been individually negotiated
and is not part of a group exit incentive or other termination program.


 


11.                                 Clark specifically acknowledges that her
employment by Align created a relationship of trust between Clark and the
Company with respect to any information of a confidential or secret nature of
which she became aware during the period of her employment and which (i) relates
to the business of the Company, or to the business of any customer, licensor or
supplier of the Company; or (ii) is processed by the Company and has been
created, discovered or developed by, or has otherwise become known to the
Company that has commercial value to the business in which the Company is
engaged.  All said information is
hereinafter called “proprietary information.” 
By way of illustration, and not in limitation, 


 


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proprietary information
includes trade secrets, processes, computer programs, data, know how,
strategies, forecasts, customer lists, pricing, testing methods and results,
clinical trial data, product designs, product performance data, policies,
operational procedures, staffing, billing and collection practices, and
contract provisions and philosophies.  At
all times Clark will keep in confidence and trust all such proprietary information
and will not use or disclose any such proprietary information or anything
relating to it without the written consent of the Company.  Clark hereby agrees that all proprietary
information shall be the sole and exclusive property of the Company and its assigns.  Clark further acknowledges and agrees that
the Employee Proprietary Information and Inventions Agreement entered into by
Clark and dated September 25, 2006,  remains in full force and effect
and is unaffected by this Agreement. 
Clark acknowledges and agrees that she has delivered to the Company all
documents, data and proprietary information of any nature pertaining to the
Company or its affiliated companies, and will not take from the Company or its
affiliated companies any documents or data of any description or any
reproduction containing or pertaining to any proprietary information nor
utilize same.


 


12.                                 Clark agrees not to interfere with the
Company’s relationship with current or prospective employees, suppliers, or
investors.  Clark also agrees to refrain
from communicating any disparaging, derogatory, libelous or scandalous
statements to any third party regarding the Company.  The Company agrees that its Executive
Officers have not and will not make any derogatory, disparaging or negative statements
about Clark. On and after the Termination Date, Clark agrees that she will not
represent to any person or entity that she is an agent or employee of the
Company, or has any authority to bind the Company.


 


13.                                 This Agreement and compliance with this
Agreement shall not be construed as an admission by the Company of any
liability whatsoever, or as admission by the Company of any violation of the
rights of Employee, violation of any order, law, statute, duty or contract
whatsoever.  The Company specifically
disclaims any liability to Clark for any alleged violation of the rights of
Employee, or for any alleged violation of any order, law, statute, duty or
contract on the part of the Company, or its employees or agents.


 


14.                                 The parties hereto represent and acknowledge
that in executing this Agreement they do not rely and have not relied upon any
representation or statement made by any of the parties or by any of the parties’
agents, attorneys or representatives with regard to the subject matter or
effect of this Agreement or otherwise, other than those specifically stated in
this written Agreement.


 


15.                                 This Agreement shall be binding upon the
parties hereto and upon their heirs, administrators, representatives,
executors, successors, and assigns, and shall inure to the benefit of said
parties and each of them and to their heirs, administrators, representatives,
executors, successors, and assigns. 
Clark expressly warrants that she has not transferred to any person or
entity any rights or causes of action, or claims released by this Agreement.


 


16.                                 The Parties further agree that the benefits
provided in this Agreement fully satisfy any obligations Align may have to
provide any severance or other benefits to Clark under that certain employment
offer letter by and between Clark and Align September 13, 2006, and the
Amended and Restated Employment Agreement by and between Clark and Align dated May 5,
2008.  This Agreement may be changed only
by another written agreement signed by Clark and Align’s Chief Executive
Officer.


 


17.                                 Should any provision of this Agreement be
declared or be determined by any court of competent jurisdiction to be illegal,
invalid, or unenforceable, the legality, validity and enforceability of the
remaining 


 


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parts, terms or provisions
shall not be effected thereby and said illegal, unenforceable, or invalid term,
part or provision shall be deemed not to be a part of this Agreement.


 


18.                                 With the exception of any agreement with the
Company pertaining to proprietary, trade secret or other confidential
information and/or the ownership of inventions, all of which shall remain in
full force and effect and are unaffected by this Agreement, this Agreement sets
forth the entire agreement between the parties hereto and fully supersedes any
and all prior agreements and understandings, written or oral, between the
parties hereto pertaining to the subject matter hereof.  This Agreement may only be amended or modified
by a writing signed by the parties hereto. 
Any waiver of any provision of this Agreement shall not constitute a
waiver of any other provision of this Agreement unless expressly so indicated
otherwise.


 


19.                                 This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto.


 


20.                                 This Agreement is made and entered into in
the State of California, and shall in all respects be interpreted, enforced and
governed by and under the laws of the State of California.  The parties agree that any and all disputes
arising out of the terms of this Agreement, their interpretation, and any of
the matters herein released, shall be subject to binding arbitration in Santa
Clara County in accordance with the JAMS/Endispute Arbitration Rules and
Procedures for Employment Disputes. 
Either Clark or the Company may initiate arbitration within the statute
of limitations for the underlying claim, or else said claim shall be deemed
waived.  Other than specified below, the
parties agree that they shall each bear the same costs in arbitration as it
would bear in civil litigation.  The
parties agree that in any arbitration held to enforce or interpret the terms of
this Agreement, and/or should it be necessary for either party to file a
petition to compel arbitration, the arbitrator or the court, as the case may
be, shall have the authority to award the prevailing party reasonable attorneys’
fees and costs as allowed by law.  Said
attorneys’ fees and costs shall extend to any appeal process related hereto and
to the enforcement and collection of any court judgment and any execution
related thereto.


 


21.                                 This Agreement may be executed in
counterparts and each counterpart, when executed, shall have the efficacy of a
second original.  Photographic or facsimile
copies of any such signed counterparts may be used in lieu of the original for
any said purpose.


 


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In
Witness Whereof, the parties hereto have executed this Severance Agreement and
General Release as of the date upon which the last party to sign this Agreement
does so, as set forth below.


 


 


	
  ALIGN
  TECHNOLOGY, INC.

  	
   

  	
  SONIA
  CLARK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Thomas M. Prescott

  	
   

  	
  /s/
  Sonia Clark

  
	
   

  	
  THOMAS
  M. PRESCOTT

  	
   

  	
   

  
	
   

  	
  President &
  CEO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:
  October 23, 2008

  	
   

  	
   

  
	
   

  	
   

  	
  Dated:
  December 31, 2008

  



 


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