Unassociated Document


     

    
      
        	
                Exhibit
                  10.1

              	
                EXECUTION
                  COPY

              


      

    

    

      RETIREMENT
        &
        GENERAL RELEASE AGREEMENT

       

      This
        Retirement and General Release Agreement (“Agreement”) is made by and between
        Eldon M. Bullington (“Bullington”) and Align Technology, Inc. (“Align”).
        Bullington and Align will hereinafter be referred to as the
“Parties.”

      


      R
        E C I T A L S

       

      WHEREAS,
        Bullington previously notified Align of his intention to retire on December
        14,
        2007 (the “Retirement Date”); and

      


      WHEREAS,
        Align and Bullington (the “Parties”) have agreed on terms and conditions
        governing Bullington’s retirement.

      


      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.  Separation
        from Service.
        Bullington shall continue to serve as Vice President, Finance and Chief
        Financial Officer of Align until December 14, 2007. Bullington’s separation from
        employment with Align will be effective at the close of business on
        December 14, 2007 (the “Retirement Date”). 
        On the
        Retirement Date, Bullington shall cease performing services for Align, and
        after
        that date shall not be allowed to act on Align’s behalf. 

       

      2.  Incentive
        Compensation Payments.
        On the
        Retirement Date, Bullington shall be entitled to the payment of $177,216
        (the
“Target Bonus Amount”). This amount shall be paid to Bullington within ten days
        of either the Retirement Date or the date of execution of this agreement,
        whichever is later. In addition, to the extent the Compensation Committee
        of
        Align’s Board of Directors approves a performance modifier related to its
        executive officer incentive awards of greater than one (1), Align agrees
        to
        multiply the Target Bonus Amount by the applicable performance modifier and
        remit to Bullington any amount greater than the Target Bonus Amount by check
        made payable to Eldon Bullington and delivered to Bullington’s home address no
        later than January 31, 2008 (the “Additional Bonus Amount”). Each of the Target
        Bonus Amount and the Additional Bonus Amount shall be paid less applicable
        deductions and withholdings. 

       

      	B.  	
              BULLINGTON.

            


       

      1.  General
        Release.
        In
        consideration of the bonus payout described above, Bullington 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 toBullington’s 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 Bullington may have, which, as a matter of law, are not subject to
        waiver, such as:

      

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                    Exhibit
                      10.1

                  	
                    EXECUTION
                      COPY

                  


          

        

         

      

      	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, including,
                but not limited to, any claims for indemnification as a result of
                any
                lawsuits or other actions brought against Bullington and/or the Company
                arising out of Bullington’s duties as CFO, to the extent that and limited
                to such claims that are based actions that were within the course
                and
                scope of Bullington’s prior employment with the Company, including without
                limitation any litigation filed by Michael Swartzburg.
                

            


       

      With
        regard to Section B.1.e., Bullington 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.1.f., Bullington acknowledges that he is presently unaware of any
        claims for indemnification that have not already been submitted to the Company.
        

       

      2.  Waiver
        - Civil Code Section 1542.
        Bullington understands and agrees that Section B.1., above, applies to claims,
        known and presently unknown by Bullington; and that this means that if,
        hereafter, Bullington discovers facts different from or in addition to those
        which Bullington 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, Bullington 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.,
        Bullington] does not know or suspect to exist in his 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 [i.e.,
        the
        Company].

      
        

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                      Exhibit
                        10.1

                    	
                      EXECUTION
                        COPY

                    


            

          

           

        

      

      3.  No
        Other Pending Claims.
        Bullington hereby represents and warrants that he has neither filed nor served
        any claim, demand, suit or legal proceeding against the Company.

       

      4.  No
        Prior Assignments.
        Bullington 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.

       

      5.  Material
        Inducements.
        Bullington hereby agrees and acknowledges that the releases, waivers and
        promises contained in this Agreement, including the promises of confidentiality
        and non-disclosure, are material inducements for the consideration described
        in
        Section A., above. 

       

      6.  Agreement
        Inures to Align.
        Bullington 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. 

       

      7.  Proprietary
        Information.
        Bullington 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 October 1, 2002 and the Amended and Restated
        Employment Agreement by and between Bullington and Align dated April 5, 2007;
        (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.

       

      	C.  	
              ALIGN
                AND BULLINGTON.

            


       

      1.  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.

       

      2.  No
        Admission.
        Nothing
        contained in this Agreement shall constitute, be construed or be treated
        as an
        admission of liability or wrongdoing by Bullington, by Align, or by any current
        or former employee, officer or director of Align.

       

      3.  Governing
        Law.
        California law shall govern the construction, interpretation and enforcement
        of
        this Agreement.

       

      4.  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.

       

      5.  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 Clara 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 Bullington challenging the waiver, release and discharge of rights
        under the Age Discrimination in Employment Act.

      
        

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                      Exhibit
                        10.1

                    	
                      EXECUTION
                        COPY

                    


            

             

          

        

      

      6.  Counterpart
        Signatures.
        Bullington and Align hereby acknowledge that this Agreement may be executed
        in
        counterpart originals with like effect as if executed in a single original
        document.

       

      7.  Time
        to Consider; Revocation Period; Effective Date.
        Bullington understands and agrees that he may have up to a full twenty-one
        (21)
        days after receipt of this Agreement within which he may review, consider,
        and
        decide whether or not to sign this Agreement, and, if Bullington has not
        taken
        that full time period, that he expressly waives the remaining time period
        and
        will not assert the invalidity of this Agreement or any portion thereof on
        this
        basis. Bullington further acknowledges and is hereby advised that he should
        discuss the terms of this Agreement with an attorney of his choosing at his
        sole
        expense. Bullington 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”),. Bullington 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
        he
        signs this Agreement, to:

       

      Align
        Technology, Inc.

      Attn.:
        Human Resources

      881
        Martin Ave. 

      Santa
        Clara, CA 95050

      Facsimile:
        (408) 470-1024

       

      Bullington
        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. 

       

      8.
        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.

       

      9.
        Entire
        Agreement; Modification.
        The
        Parties hereby acknowledge and agree that except for any pre-existing stock,
        stock option and/or purchase agreement(s) between Bullington and Align, and
        any
        amendments and waivers thereto, no promises or representations were or are
        made
        which do not appear written in this Agreement. The Parties agree that this
        Agreement contains the entire agreement by Bullington 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 Bullington under that certain Employment Agreement by
        and
        between Bullington and Align dated October 1, 2002, including, but not limited
        to, the terms of the Amended and Restated Employment Agreement dated April
        5,
        2007. This Agreement may be changed only by another written agreement signed
        by
        Bullington and the Chief Executive Officer of Align. 

       

      10.
        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.

      
        

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                      Exhibit
                        10.1

                    	
                      EXECUTION
                        COPY

                    


            

             

            
              	 	 	 
	 	
                      ELDON
                        M.
                        BULLINGTON

                    
	 
 	 
 	 
 
	Date: December
                      14, 2007	 	/s/ Eldon
                      M.
                      Bullington
	 	
                    


            

          

        

      

      
         

        
          	 	 	 
	 	
                  ALIGN
                    TECHNOLOGY,
                    INC.

                
	 
 	 
 	 
 
	Date: December
                  14, 2007	 	/s/ Thomas
                  M.
                  Prescott
	 	
                   

                   

                  
                    By:
                      Thomas M. Prescott

                    Title:
                      President and CEO

                  

                


           

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