Exhibit
10.1


 


FINAL
EXECUTION COPY


 


SEVERANCE AGREEMENT AND GENERAL RELEASE


 


This
Separation and General Release Agreement (“Agreement”) is made by and between
Afsaneh Azadeh (“Azadeh” or “Employee”) and Align Technology, Inc. (“Align”
or the “Company”).


 


RECITALS


 


WHEREAS,
Azadeh has been for a time employed by Align;


 


WHEREAS,
the Company and Azadeh 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 Azadeh shall cease to be an executive officer of the
Company and otherwise cease performing services, except as expressly provided
herein, on July 25, 2008 (the “Separation Date”), and her employment with
the Company shall be terminated on July 31, 2008 (the “Termination Date”);


 


WHEREAS,
Azadeh 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
Azadeh’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 Azadeh:


 


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 Azadeh the total
amount of Four Hundred Ninety Five Thousand Nine Hundred and Thirty Dollars
($495,930) to be paid in a lump sum, less applicable deductions and
withholdings, which represents an amount equal to:  (a) the fiscal year 2008 target bonus
prorated for the number of days of Azadeh is employed in said year; (b) one
year’s base salary; and (c) the greater of the then-2008 target bonus or the
actual prior year’s bonus.


 


b.             In
accordance with Section 6(b) of the Employment Agreement, as of the
Termination Date, Azadeh shall immediately conditionally vest in an additional
number of shares under all outstanding options and restricted stock units as if
Azadeh had performed twelve (12) additional months of service measured from the
Termination Date, subject to Azadeh’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.


 


c.             Beginning after the
execution of this Agreement by Azadeh and after the expiration of the
revocation period referred to in Paragraph 7 below, if Azadeh is eligible and
timely elects to continue medical coverage for herself and her eligible
dependents under COBRA, Align will pay,


 

















 


on Azadeh’s behalf, the premiums to continue this group health
insurance, including coverage for Azadeh’s eligible dependents for a period of
twelve (12) months; provided, however, that Align will pay such premiums only
for the coverage for which Azadeh and her eligible dependents were enrolled
immediately prior to the Termination Date.


 


d.             Align
shall pay the premiums for such coverage until the earlier of (a) twelve
(12) months following the expiration of the revocation period; (b) the
effective date of Azadeh’s coverage by a health plan of a subsequent employer;
or (c) the date Azadeh is no longer eligible for COBRA coverage.  For the balance of the period that Azadeh is
entitled to coverage under COBRA, she shall be entitled to maintain coverage
for herself and her eligible dependents at her own expense as provided by
COBRA.


 


2.             In exchange for the foregoing consideration and other
good and valuable consideration set forth herein, Azadeh agrees as follows:


 


a.             Azadeh
warrants and agrees that the Company, its predecessors, successors and assigns
have paid Azadeh 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 Azadeh 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 Azadeh 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, Azadeh 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.             Azadeh
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.             Azadeh
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.  Azadeh 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.             Azadeh
understands and agrees that during the period from her Separation Date to her
Termination Date, she shall not be an executive officer of the Company, shall
not be authorized to act on behalf of the Company, and shall not represent
herself to any third party as a representative


 


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authorized to act on behalf of the Company.  Azadeh shall not report to work during this
period, but shall be available to assist the Company if the Company requests
her assistance.


 


e.             Azadeh
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 Azadeh during her employment
with Align.  Without limiting the
foregoing, Azadeh 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.  Azadeh shall also comply with
reasonable requests for information that relate to matters with the knowledge
or responsibility of Azadeh during her employment.  Align will reimburse Azadeh 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 Azadeh does not exercise her right of revocation as described in
subparagraph (g) of Paragraph 7 below.


 


4.             Azadeh 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 governmental agency.  With respect to any such non-waivable claims,
Azadeh 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
Azadeh 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
Azadeh 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.             Azadeh 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 Azadeh’s employment with the Company or the termination thereof.  It is expressly understood by Azadeh 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


 


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


 


8.             Azadeh 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.  Azadeh, however, may not sign this Agreement
on or before July 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 Azadeh desires to revoke
this


 


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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 Azadeh on July 25, 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.           Azadeh specifically acknowledges that her employment by
Align created a relationship of trust between Azadeh 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, 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 Azadeh 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.  Azadeh hereby agrees that all proprietary
information shall be the sole and exclusive property of the Company and its
assigns.  Azadeh further acknowledges and
agrees that the Employee Proprietary Information and Inventions Agreement
entered into by Azadeh and dated October 1, 2007,  remains in full
force and effect and is unaffected by this Agreement.  Azadeh 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.           Azadeh agrees not to interfere with the Company’s
relationship with current or prospective employees, suppliers, or
investors.  Azadeh 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 Azadeh.  During the
period beginning on the Separation Date and ending on the sTermination Date
Azadeh further agrees that she will not represent to any person or entity that
she is an agent or executive officer of the Company, or has any authority to
bind the Company.  On and after the
Termination Date, Azadeh 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


 


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disclaims any liability to
Azadeh 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.  Azadeh 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 Azadeh under that certain employment offer
letter by and between Azadeh and Align September 27, 2007, and the Amended
and Restated Employment Agreement by and between Azadeh and Align dated May 5,
2008.  This Agreement may be changed only
by another written agreement signed by Azadeh 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
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 Azadeh 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


 


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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.


 


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.

  	
   

  	
  AFSANEH
  AZADEH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  Roger E. George

  	
   

  	
   

  
	
   

  	
  ROGER
  E. GEORGE

  	
   

  	
  /s/
  Afsaneh Azadeh

  
	
   

  	
  Vice
  President, Corporate & Legal Affairs,

  	
   

  	
  AFSANEH
  AZADEH

  
	
   

  	
  General
  Counsel & Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:
  August 1, 2008

  	
   

  	
  Dated:
  August 1, 2008

  



 


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