EXHIBIT 10.32
SETTLEMENT & GENERAL RELEASE AGREEMENT
This Settlement and General Release Agreement ("Agreement") is made by
and between Xxxxxxx Xxxxxxx ("Xxxxxxx") and Align Technology, Inc. ("Align").
Xxxxxxx and Align will hereinafter be referred to as the "Parties."
R E C I T A L S
WHEREAS, Xxxxxxx was for a time employed by Align until his employment
terminated on September 30, 2002 (the "Termination Date");
WHEREAS, Xxxxxxx and Align (together "the Parties") wish permanently
to resolve all disputes that exist or may exist between them in the future
arising out of Xxxxxxx'x 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. Payment. Within five (5) business days after the Effective Date of
this Agreement (as defined in Section 8 below), Align shall deliver to Xxxxxxx a
check made payable to "Xxxxxxx Xxxxxxx" in the gross amount of TWO HUNDRED
THOUSAND DOLLARS ($200,000), less applicable deductions and withholdings, for
which a 2002 Form W-2 shall be issued to Xxxxxxx.
2. COBRA Continuation. If Xxxxxxx is eligible and timely elects to
continue medical coverage for himself and his eligible dependents under COBRA,
Align will pay, on Xxxxxxx'x behalf, the premiums to continue this group health
insurance, including coverage for Xxxxxxx'x eligible dependents; provided,
however, that Align will pay such premiums only for the coverage for which
Xxxxxxx 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) September 30, 2003; (b) the effective date of Xxxxxxx'x coverage
by a health plan of a subsequent employer; or (c) the date Xxxxxxx is no longer
eligible for COBRA coverage. For the balance of the period that Xxxxxxx is
entitled to coverage under COBRA, he shall be entitled to maintain coverage for
himself and his eligible dependents at his own expense.
3. Vesting Acceleration. Align will accelerate the vesting of
Xxxxxxx'x restricted shares so that on the Effective Date, Xxxxxxx will be
vested in the same number of shares Xxxxxxx would have vested in had he remained
in service through the one year anniversary of the Termination Date (209,166).
X. XXXXXXX.
1. Final Pay. Xxxxxxx represents and warrants that he has received and
reviewed his final paycheck and that he has been paid all salary, wages and the
like 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.
Xxxxxxx further acknowledges and agrees that he is not entitled to any
additional payments from Align except as set forth in this Agreement.
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2. Consultation/Assistance. Xxxxxxx agrees that for the three (3)
month period following the Termination Date, he will make himself available to
consult with and assist Align as Align may reasonably request from time to time.
3. General Release. Xxxxxxx hereby fully and forever releases, waives,
discharges and promises not to xxx 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 out of or related to facts or
events occurring prior to the Effective Date of this Agreement, and/or arising
from and relating to Xxxxxxx'x 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 Xxxxxxx may have for:
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.
4. Waiver - Civil Code Section 1542. Xxxxxxx understands and agrees
that Section B.3., above, applies to claims, known and presently unknown by
Xxxxxxx; and that this means that if, hereafter, Xxxxxxx discovers facts
different from or in addition to those which Xxxxxxx now knows or believes to be
true, that the releases, waivers, discharge and promise not to xxx 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, Xxxxxxx 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 of California which states as follows
(parentheticals added):
A general release does not extend to claims which the creditor [i.e.,
Xxxxxxx] 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 [i.e., the Company].
5. Confidentiality & Non-Disclosure. Xxxxxxx hereby agrees that he
will not, without compulsion of legal process, disclose to any third party any
of the terms of this Agreement, including the amount referred to herein, either
by specific dollar amounts or by number of "figures" or otherwise, nor shall he
disclose that the fact of the payment of said dollar amount, except that he may
disclose such information to his spouse and he may disclose such information to
his attorneys and accountants to whom, and only to the extent, disclosure is
necessary to effect the purposes for which Xxxxxxx has consulted such attorneys
and accountants. Xxxxxxx agrees that in connection with any disclosure permitted
hereunder, Xxxxxxx shall cause such third party to whom disclosure has been
made, including his spouse, to agree to comply with this covenant of
confidentiality and non-disclosure, and in the event such third party breaches
this covenant of confidentiality and non-disclosure, such breach shall be deemed
to have been committed by Xxxxxxx.
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6. COBRA Continuation. Xxxxxxx hereby agrees that he will notify
Align's human resources department when he becomes eligible for medical coverage
with a subsequent employer or otherwise.
7. No Other Pending Claims. Xxxxxxx hereby represents and warrants
that he has neither filed nor served any claim, demand, suit or legal proceeding
against the Company.
8. No Prior Assignments. Xxxxxxx hereby represents and warrants that
he has not assigned or transferred, or purported to assign or transfer, to any
third person or entity any claim, right, liability, demand, obligation, expense,
action or causes of action being waived or released pursuant to this Agreement.
9. Material Inducements. Xxxxxxx hereby agrees and acknowledges that
the releases, waivers and promises contained in this Agreement, including the
promises of confidentiality and nondisclosure, are material inducements for the
consideration described in Section A., above.
10. Agreement Inures to Align. Xxxxxxx hereby agrees and understands
that this Agreement shall bind him, and his heirs, executors, administrators and
agents thereof and that it inures to the benefit of Align and its current and
former officers, directors, attorneys, shareholders, predecessors, successors,
affiliated or related companies, agents, employees and assignees thereof.
11. Proprietary Information. Xxxxxxx hereby acknowledges and agrees
that (a) he is bound by, and has continuing obligations under, the Proprietary
Information and Inventions Agreement ("PIIA") signed by him on November 10,
2000; (b) he has returned to Align all items of property paid for and/or
provided by Align for his use during employment with Align including, but not
limited to, any laptops, computer and office equipment, software programs, cell
phones, pagers, access cards and keys, credit and calling cards; and (c) he has
returned to Align all documents (electronic and paper) created and received by
him during his employment with Align, and he has not retained any such
documents, except he may keep his personal copies of (i) documents evidencing
his hire, compensation, benefits and termination (including this Agreement);
(ii) any materials distributed generally to stockholders of the Company, and
(iii) his copy of the PIIA. The PIIA is incorporated herein by this reference.
12. Non-Disparagement. Xxxxxxx agrees not to make any derogatory
statements about the Company and/or the Company's officers, directors,
employees, investors, stockholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations an Assigns. Align agrees
not to make any derogatory statements about Xxxxxxx.
C. ALIGN AND XXXXXXX.
1. Restricted Shares. The Parties agree that if Xxxxxxx executes this
Agreement and it becomes effective pursuant to Section 8 below, on the Effective
Date, Xxxxxxx will be vested in 209,166 of the restricted shares of Align
Technology Inc. common stock held by him. At that time, Align will repurchase
the 23,491 shares of Align Technology Inc. common stock that have not vested as
of the Effective Date by issuing a check payable to Xxxxxxx Xxxxxxx in the
amount of $25,017.92 .
2. Attorneys Fees and Expenses. Each party to this Agreement shall
bear their own respective attorneys' fees and expenses related to the
negotiation of this Agreement, and each agrees to hold the other harmless from
the payment of all such attorneys' fees and expenses.
3. No Admission. Nothing contained in this Agreement shall constitute,
be construed or be treated as an admission of liability or wrongdoing by
Xxxxxxx, by Align, or by any current or former employee, officer or director of
Align.
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4. Governing Law. California law shall govern the construction,
interpretation and enforcement of this Agreement.
5. Severability. If any provision, or portion thereof, of this
Agreement shall for any reason be held to be invalid or unenforceable or to be
contrary to public policy or any law, then the remainder of the Agreement shall
not be affected thereby.
6. Arbitration of Disputes Arising from Agreement. Any and all
disputes that arise out or relate to this Agreement or any of the subjects
hereof shall be resolved through final and binding arbitration. Binding
arbitration will be conducted in Santa Xxxxx County in accordance with
California Code of Civil Procedure section 1282, et seq., and the rules and
regulations of the American Arbitration Association then in effect for
resolution of commercial disputes. Each of the Parties understands and agrees
that arbitration shall be instead of any civil litigation, each waives its right
to a jury trial, and each understands and agrees that the arbitrator's decision
shall be final and binding to the fullest extent permitted by law and
enforceable by any court having jurisdiction thereof. Each of the Parties will
bear their own respective attorneys' fees and will equally share the cost of
arbitration, although the arbitrator may award the prevailing party his/its
reasonable attorneys' fees and costs of arbitration except that such fees and
costs may not be recovered by Align that result from Align's defense against any
claim by Xxxxxxx challenging the waiver, release and discharge of rights under
the Age Discrimination Employment Act.
7. Counterpart Signatures. Xxxxxxx and Align hereby acknowledge that
this Agreement may be executed in counterpart originals with like effect as if
executed in a single original document.
8. Time to Consider; Revocation Period; Effective Date. Xxxxxxx
understands that he may have up to twenty-one (21) days after receipt of this
Agreement within which he may review and consider, and should discuss with an
attorney of his own choosing, and decide whether or not to sign this Agreement.
Xxxxxxx also understands that, for the period of seven (7) days after the date
he signs this Agreement, he may revoke the release of his claims under the Age
Discrimination in Employment Act ("ADEA"), in which case this Agreement shall
remain effective and enforceable in all other respects but the payment in
Section A.1. will be reduced by 40%. Xxxxxxx understands that if he wishes to
revoke his release of claims under the ADEA, he must deliver written notice of
revocation, no later than the seventh day after she signs this General Release,
to:
Align Technology, Inc.
Attn. Human Resources
000 Xxxxxx Xxx.
Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxxx further understands that the Effective Date of this General Release will
be the eighth day after both of the Parties have signed it and it has been
delivered to Align. Xxxxxxx understands that he should deliver his signed
General Release to Align via the address, above.
9. Results of Negotiation; Knowing and Voluntary Execution. The
Parties hereby acknowledge that this Agreement is the result of negotiation
between them, that each were represented by an attorney of their own choosing in
deciding whether or not to sign this Agreement and that each has read and
understands the foregoing Agreement and that each affixes their respective
signature to this Agreement knowingly, voluntarily and without coercion.
10. Entire Agreement; Modification. The Parties hereby acknowledge and
agree that except for any pre-existing stock, stock option and/or purchase
agreement(s) between Xxxxxxx and Align, and any amendments and waivers thereto,
no promises or representations were or are made which do not
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appear written in this Agreement. The Parties agree that this Agreement contains
the entire agreement by Xxxxxxx and Align, and that neither is relying on any
representation or promise that does not appear in this Agreement. 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 Xxxxxxx
under that certain employment offer letter by and between Xxxxxxx and Align
dated November 6, 2000. This Agreement may be changed only by another written
agreement signed by Xxxxxxx and the Chief Executive Officer of Align.
11. Enforcement Costs. If an action is brought by either party for
breach of any provision of this Agreement, the non-breaching party shall be
entitled to recover all reasonable attorneys' fees and costs in defending or
bringing such an action.
Date: October 1, 2002 /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Align Technology Inc.:
Date: September 30, 2002 By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
President & CEO
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