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