DATED DECEMBER 12, 2005; (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.
11.
NON-DISPARAGEMENT. HENRY 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 AND ASSIGNS.
C.
ALIGN AND HENRY.
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 HENRY, 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 HENRY CHALLENGING
THE WAIVER, RELEASE AND DISCHARGE OF RIGHTS UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT.
6.