Exhibit 10.1
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into on September 25, 2006 by and
between Xxxxx Xxxxx (the "Executive") and Align Technology, Inc., a Delaware
corporation (the "Company").
1. Duties and Scope of Employment.
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(a) Position. For the term of her employment
under this Agreement ("Employment"), the Company agrees to employ the
Executive in the position of Vice President, Human Resources. The Executive
shall report to the Chief Executive Officer (the "CEO"). The Executive
accepts such employment and agrees to discharge all of the duties normally
associated with said position, and to faithfully and to the best of her
abilities perform such other services consistent with her position as Vice
President, Human Resources as may from time to time be assigned to him by
the CEO.
(b) Obligations to the Company. During the term
of her Employment, the Executive shall devote her full business efforts and
time to the Company. The Executive agrees not to actively engage in any
other employment, occupation or consulting activity for any direct or
indirect remuneration without the prior approval of the CEO, provided,
however, that the Executive may, without the approval of the CEO, serve in
any capacity with any civic, educational or charitable organization. The
Executive may own, as a passive investor, no more than one percent (1%) of
any class of the outstanding securities of any publicly traded corporation.
(c) No Conflicting Obligations. The Executive
represents and warrants to the Company that she is under no obligations or
commitments, whether contractual or otherwise, that are inconsistent with
her obligations under this Agreement. The Executive represents and warrants
that she will not use or disclose, in connection with her employment by the
Company, any trade secrets or other proprietary information or intellectual
property in which the Executive or any other person has any right, title or
interest and that her employment by the Company as contemplated by this
Agreement will not infringe or violate the rights of any other person or
entity. The Executive represents and warrants to the Company that she has
returned all property and confidential information belonging to any prior
employers.
(d) Commencement Date. The Executive commenced
full-time Employment on September 25, 2006.
2. Cash and Incentive Compensation.
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(a) Salary. The Company shall pay the Executive
as compensation for her services a base salary at a gross annual rate of
$250,000, payable in accordance with the Company's standard payroll
schedule. The compensation specified in this Subsection (a), together with
any adjustments by the Company from time to time, is referred to in this
Agreement as "Base Salary."
1.
(b) Target Bonus. The Executive shall be
eligible to participate in an annual bonus program that will provide her
with an opportunity to earn a potential annual bonus equal to 60% of the
Executive's Base Salary. The amount of the bonus shall be based upon the
performance of the Executive, as set by the individual performance
objectives described in this Subsection, and the Company in each calendar
year, and shall be paid by no later than January 31 of the following year,
contingent on the Executive remaining employed by the Company as of such
date. The Executive's individual performance objectives and those of the
Company's shall be set by the CEO after consultation with the Executive by
no later than March 31, of each calendar year. Any bonus awarded or paid to
the Executive will be subject to the discretion of the Board; provided,
however, that for calendar year 2006, the Company guarantees that Executive
will be paid a prorated bonus based on the number of days of such year that
the Executive was employed by the Company equal to $37,500.
(c) Incentive Awards. The Executive shall be
eligible for an annual incentive stock option grant and/or restricted stock
unit award subject to the approval of the Board. The per share exercise
price of the option will be equal to the per share fair market value of the
common stock on the date of grant, as determined by the Board of Directors.
The term of such option shall be ten (10) years, subject to earlier
expiration in the event of the termination of the Executive's Employment.
The Executive shall vest in 25% of the option shares after the first twelve
(12) months of continuous service and shall vest in the remaining option
shares in equal monthly installments over the next three (3) years of
continuous service. Each restricted stock unit award vests 25% on the one
year anniversary of the date of grant with 6.25% vesting quarterly
thereafter. The grant of each such option and/or restricted stock unit shall
be subject to the other terms and conditions set forth in the Company's 2005
Incentive Plan and in the Company's standard form of stock option agreement
and restricted stock unit agreement, as applicable.
3. Vacation and Executive Benefits. During the term of
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her Employment, the Executive shall be eligible for 17 days vacation per year,
in accordance with the Company's standard policy for senior management, as it
may be amended from time to time. During the term of her Employment, the
Executive shall be eligible to participate in any employee benefit plans
maintained by the Company for senior management, subject in each case to the
generally applicable terms and conditions of the plan in question and to the
determinations of any person or committee administering such plan.
4. Business Expenses. During the term of her Employment,
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the Executive shall be authorized to incur necessary and reasonable travel,
entertainment and other business expenses in connection with her duties
hereunder. The Company shall reimburse the Executive for such expenses upon
presentation of an itemized account and appropriate supporting documentation,
all in accordance with the Company's generally applicable policies.
5. Term of Employment.
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(a) Basic Rule. The Company agrees to continue
the Executive's Employment, and the Executive agrees to remain in Employment
with the Company, from the commencement date set forth in Section 1(d) until
the date when the Executive's Employment terminates pursuant to Subsection
(b) below. The Executive's Employment with the Company shall be "at will,"
and either the Executive or the Company may terminate the Executive's
Employment at any time, for any reason, with or without Cause. Any contrary
representations, which may have been made to the Executive shall be
superseded by this Agreement. This Agreement shall constitute the full and
complete agreement between the Executive and the Company on the "at will"
nature of the Executive's Employment, which may only be changed in an
express written agreement signed by the Executive and a duly authorized
officer of the Company.
2.
(b) Termination. The Company may terminate the
Executive's Employment at any time and for any reason (or no reason), and
with or without Cause, by giving the Executive notice in writing. The
Executive may terminate her Employment by giving the Company fourteen (14)
days advance notice in writing. The Executive's Employment shall terminate
automatically in the event of her death or Permanent Disability. For
purposes of this Agreement, "Permanent Disability" shall mean that the
Executive has become so physically or mentally disabled as to be incapable
of satisfactorily performing the duties under this Agreement for a period of
one hundred eighty (180) consecutive calendar days.
(c) Rights Upon Termination. Except as
expressly provided in Section 6, upon the termination of the Executive's
Employment pursuant to this Section 5, the Executive shall only be entitled
to the compensation, benefits and reimbursements described in Sections 2, 3
and 4 for the period preceding the effective date of the termination. The
payments under this Agreement shall fully discharge all responsibilities of
the Company to the Executive.
(d) Termination of Agreement. The termination
of this Agreement shall not limit or otherwise affect any of the Executive's
obligations under Section 7.
6. Termination Benefits.
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(a) General Release. Any other provision of
this Agreement notwithstanding, Subsections (b), (c) or (d) below shall not
apply unless the Executive (i) has executed a general release in a form
prescribed by the Company of all known and unknown claims that he may then
have against the Company or persons affiliated with the Company, and (ii)
has agreed not to prosecute any legal action or other proceeding based upon
any of such claims.
(b) Termination without Cause. If, during the
term of this Agreement, and not in connection with a Change of Control as
addressed in Subsection (c) below, the Company terminates Executive's
employment without Cause or Executive resigns for Good Reason, then:
(i) the Executive shall immediately
vest in an additional number of shares under all outstanding options
and restricted stock units as if she had performed twelve (12)
additional months of service; and.
(ii) the Company shall pay the
Executive, in a lump sum upon the effectiveness of the General Release
to be executed by Executive in accordance with Section 6(a) above, an
amount equal to: (x) the then current year's Target Bonus prorated for
the number of days of Executive is employed in said year; (y) one
year's Base Salary; and (z) the greater of the then current year's
Target Bonus or the actual prior year's bonus. The Executive's Base
Salary shall be paid at the rate in effect at the time of the
termination of Employment.
(c) Upon a Change of Control. In the event of
the occurrence of a Change in Control while the Executive is employed by the
Company:
(i) the Executive shall immediately
vest in an additional number of shares under all outstanding options
and restricted stock units as if she had performed twelve (12)
additional months of service; and
3.
(ii) if within twelve (12) months
following the occurrence of the Change of Control, one of the following
events occurs:
(A) the Executive's employment is
terminated by the Company without
Cause; or
(B) the Executive resigns for Good
Reason
then the Executive shall immediately
vest as to all shares under all outstanding options and restricted
stock units and the Company shall pay the Executive, in a lump sum, an
amount equal to: (i) the then current year's Target Bonus prorated for
the number of days of Executive is employed in said year; (ii) one
year's Base Salary; and (iii) the greater of the then current year's
Target Bonus or the actual prior year's bonus. The Executive's Base
Salary shall be paid at the rate in effect at the time of the
termination of Employment.
(d) Health Insurance. If Subsection (b) or (c)
above applies, and if the Executive elects to continue her health insurance
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended ("COBRA") following the termination of his Employment, then the
Company shall pay the Executive's monthly premium under COBRA until the
earliest of (i) 12 months following the termination of the Executive's
Employment, or (ii) the date upon which the Executive commences employment
with an entity other than the Company.
(e) Definition of "Cause." For all purposes
under this Agreement, "Cause" shall mean any of the following:
(i) Unauthorized use or disclosure of
the confidential information or trade secrets of the Company;
(ii) Any breach of this Agreement or the
Employee Proprietary Information and Inventions Agreement between the
Executive and the Company;
(iii) Conviction of, or a plea of
"guilty" or "no contest" to, a felony under the laws of the United
States or any state thereof;
(iv) Misappropriation of the assets of
the Company or any act of fraud or embezzlement by Executive, or any
act of dishonesty by Executive in connection with the performance of
her duties for the Company that adversely affects the business or
affairs of the Company; or
(v) Intentional misconduct or the
Executive's failure to satisfactorily perform his/her duties after
having received written notice of such failure and at least thirty (30)
days to cure such failure.
The foregoing shall not be deemed an exclusive list of all
acts or omissions that the Company may consider as grounds for the termination
of the Executive's Employment.
(f) Definition of "Good Reason." For all
purposes under this Agreement, the Executive's resignation for "Good Reason"
shall mean the Executive's resignation within ninety (90) days the
occurrence of any one or more of the following events:
4.
(i) The Executive's position,
authority or responsibilities being significantly reduced;
(ii) The Executive being asked to
relocate her principal place of employment such that her commuting
distance from her residence prior to the Change of Control is increased
by over thirty-five (35) miles;
(iii) The Executive's annual Base Salary
or bonus being reduced; or
(iv) The Executive's benefits being
materially reduced.
(g) Definition of "Change of Control." For
all purposes under this Agreement, "Change of Control" shall mean any of the
following:
(i) a sale of all or substantially all
of the assets of the Company;
(ii) the acquisition of more than fifty
percent (50%) of the common stock of the Company (with all classes or
series thereof treated as a single class) by any person or group of
persons;
(iii) a reorganization of the Company
wherein the holders of common stock of the Company receive stock in
another company (other than a subsidiary of the Company), a merger of
the Company with another company wherein there is a fifty percent (50%)
or greater change in the ownership of the common stock of the Company
as a result of such merger, or any other transaction in which the
Company (other than as the parent corporation) is consolidated for
federal income tax purposes or is eligible to be consolidated for
federal income tax purposes with another corporation; or
(iv) in the event that the common
stock is traded on an established securities market, a public
announcement that any person has acquired or has the right to acquire
beneficial ownership of more than fifty percent (50%) of the
then-outstanding common stock and for this purpose the terms "person"
and "beneficial ownership" shall have the meanings provided in Section
13(d) of the Securities and Exchange Act of 1934 or related rules
promulgated by the Securities and Exchange Commission, or the
commencement of or public announcement of an intention to make a tender
offer or exchange offer for more than fifty percent (50%) of the then
outstanding Common Stock.
(h) Section 409A. Notwithstanding anything to
the contrary in this Agreement, any cash severance payments otherwise due to
Executive pursuant to this Section 6 or otherwise on or within the six-month
period following Executive's termination will accrue during such six-month
period and will become payable in a lump sum payment on the date six (6)
months and one (1) day following the date of Executive's termination,
provided, that such cash severance payments will be paid earlier, at the
times and on the terms set forth in the applicable provisions of this
Section 6, if the Company reasonably determines that the imposition of
additional tax under Section 409A of the Internal Revenue Code of 1986, as
amended ("Code Section 409A"), will not apply to an earlier payment of such
cash severance payments. In addition, this Agreement will be deemed amended
to the extent necessary to avoid imposition of any additional tax or income
recognition prior to actual payment to Executive under Code Section 409A and
any temporary, proposed or final Treasury Regulations and guidance
promulgated thereunder and the parties agree to cooperate with each other
and to take reasonably necessary steps in this regard.
5.
7. Non-Solicitation and Non-Disclosure.
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(a) Non-Solicitation. During the period
commencing on the date of this Agreement and continuing until the first
anniversary of the date when the Executive's Employment terminated for any
reason, the Executive shall not directly or indirectly, personally or
through others, solicit or attempt to solicit (on the Executive's own behalf
or on behalf of any other person or entity) the employment of any employee
of the Company or any of the Company's affiliates.
(b) Proprietary Information. As a condition
of employment, the Executive has entered into a Proprietary Information and
Inventions Agreement with the Company, attached to this Agreement as Exhibit
A, which is incorporated herein by reference.
8. Successors.
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(a) Company's Successors. This Agreement shall
be binding upon any successor (whether direct or indirect and whether by
purchase, lease, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company's business and/or assets. For all purposes
under this Agreement, the term "Company" shall include any successor to the
Company's business and/or assets which becomes bound by this Agreement.
(b) Executive's Successors. This Agreement
and all rights of the Executive hereunder shall inure to the benefit of, and
be enforceable by, the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
9. Miscellaneous Provisions.
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(a) Notice. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by overnight
courier, U.S. registered or certified mail, return receipt requested and
postage prepaid. In the case of the Executive, mailed notices shall be
addressed to him at the home address which he most recently communicated to
the Company in writing. In the case of the Company, mailed notices shall be
addressed to its corporate headquarters, and all notices shall be directed
to the attention of its Secretary.
(b) Modifications and Waivers. No provision of
this Agreement shall be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by the
Executive and by an authorized officer of the Company (other than the
Executive). No waiver by either party of any breach of, or of compliance
with, any condition or provision of this Agreement by the other party shall
be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) Whole Agreement. No other agreements,
representations or understandings (whether oral or written) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter of this Agreement. This
Agreement and the Proprietary Information and Inventions Agreement contain
the entire understanding of the parties with respect to the subject matter
hereof.
(d) Withholding Taxes. All payments made under
this Agreement shall be subject to reduction to reflect taxes or other
charges required to be withheld by law.
6.
(e) Choice of Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws
of the State of California (except provisions governing the choice of law).
(f) Severability. The invalidity or
unenforceability of any provision or provisions of this Agreement shal not
affect the validity or enforceability of any other provision hereof, which
shall remain in full force and effect.
(g) Arbitration. Each party agrees that any and
all disputes which arise out of or relate to the Executive's employment, the
termination of the Executive's employment, or the terms of this Agreement
shall be resolved through final and binding arbitration. Such arbitration
shall be in lieu of any trial before a judge and/or jury, and the Executive
and Company expressly waive all rights to have such disputes resolved via
trial before a judge and/or jury. Such disputes shall include, without
limitation, claims for breach of contract or of the covenant of good faith
and fair dealing, claims of discrimination, claims under any federal, state
or local law or regulation now in existence or hereinafter enacted and as
amended from time to time concerning in any way the subject of the
Executive's employment with the Company or its termination. The only claims
not covered by this Agreement to arbitrate disputes are: (i) claims for
benefits under the unemployment insurance benefits; (ii) claims for workers'
compensation benefits under any of the Company's workers' compensation
insurance policy or fund; (iii) claims arising from or relating to the
non-competition provisions of this Agreement; and (iv) claims concerning the
validity, infringement, ownership, or enforceability of any trade secret,
patent right, copyright, trademark or any other intellectual property right,
and any claim pursuant to or under any existing
confidential/proprietary/trade secrets information and inventions
agreement(s) such as, but not limited to, the Proprietary Information and
Inventions Agreement. With respect to such disputes, they shall not be
subject to arbitration; rather, they will be resolved pursuant to applicable
law.
Arbitration shall be conducted in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association ("AAA Rules"), provided, however, that the arbitrator shall allow
the discovery authorized by California Code of Civil Procedure section 1282, et
seq., or any other discovery required by applicable law in arbitration
proceedings, including, but not limited to, discovery available under the
applicable state and/or federal arbitration statutes. Also, to the extent that
any of the AAA Rules or anything in this arbitration section conflicts with any
arbitration procedures required by applicable law, the arbitration procedures
required by applicable law shall govern.
Arbitration will be conducted in Santa Xxxxx County,
California or, if the Executive does not reside within 100 miles of Santa Xxxxx
County at the time the dispute arises, then the arbitration may take place in
the largest metropolitan area within 50 miles of the Executive's place of
residence when the dispute arises.
During the course of the arbitration, the Executive and the
Company will each bear equally the arbitrator's fee and any other type of
expense or cost of arbitration, unless applicable law requires otherwise, and
each shall bear their own respective attorneys' fees incurred in connection with
the arbitration. The arbitrator will not have authority to award attorneys' fees
unless a statute or contract at issue in the dispute authorizes the award of
attorneys' fees to the prevailing party. In such case, the arbitrator shall have
the authority to make an award of attorneys' fees as required or permitted by
the applicable statute or contract. If there is a dispute as to whether the
Executive or the Company is the prevailing party in the arbitration, the
arbitrator will decide this issue.
7.
The arbitrator shall issue a written award that sets forth the
essential findings of fact and conclusions of law on which the award is based.
The arbitrator shall have the authority to award any relief authorized by law in
connection with the asserted claims or disputes. The arbitrator's award shall be
subject to correction, confirmation, or vacation, as provided by applicable law
setting forth the standard of judicial review of arbitration awards. Judgment
upon the arbitrator's award may be entered in any court having jurisdiction
thereof.
(h) No Assignment. This Agreement and all rights
and obligations of the Executive hereunder are personal to the Executive and
may not be transferred or assigned by the Executive at any time. The Company
may assign its rights under this Agreement to any entity that assumes the
Company's obligations hereunder in connection with any sale or transfer of
all or a substantial portion of the Company's assets to such entity.
(i) Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
[The remainder of this page intentionally left blank.]
8.
IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.
XXXXX XXXXX
/s/ Xxxxx Xxxxx
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ALIGN TECHNOLOGY, INC.
/s/ Xxxxxx X. Xxxxxxxx
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By: Xxxxxx X. Xxxxxxxx
Title: President and CEO
9.
EXHIBIT A
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
(ATTACHED)
10.
ALIGN TECHNOLOGY, INC.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued
employment by ALIGN TECHNOLOGY, INC. (the "Company"), and the compensation now
and hereafter paid to me, I hereby agree as follows:
1. PROPRIETARY INFORMATION. At all times during my employment and
thereafter, I will hold in strictest confidence and will not disclose, use,
lecture upon or publish any of the Company's Proprietary Information (defined
below), except as such disclosure, use or publication may be required in
connection with my work for the Company, or unless an officer of the Company
expressly authorizes such in writing. "Proprietary Information" shall mean any
and all confidential and/or proprietary knowledge, data or information of the
Company, its affiliated entities, customers and suppliers, including but not
limited to information relating to products, processes, know-how, designs,
formulas, methods, developmental or experimental work, improvements,
discoveries, inventions, ideas, source and object codes, data, programs, other
works of authorship, and plans for research and development. During my
employment by the Company I will not improperly use or disclose any confidential
information or trade secrets, if any, of any former employer or any other person
to whom I have an obligation of confidentiality, and I will not bring onto the
premises of the Company any unpublished documents or any property belonging to
any former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing by that former employer or
person.
2. ASSIGNMENT OF INVENTIONS.
2.1. Proprietary Rights. The term "Proprietary Rights" shall mean
all trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2. Inventions. The term "Inventions" shall mean all trade
secrets, inventions, mask works, ideas, processes, formulas, source and object
codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques.
2.3. Prior Inventions. I have set forth on Exhibit B (Previous
Inventions) attached hereto a complete list of all Inventions that I have, alone
or jointly with others, made prior to the commencement of my employment with the
Company that I consider to be my property or the property of third parties and
that I wish to have excluded from the scope of this Agreement (collectively
referred to as "Prior Inventions"). If no such disclosure is attached, I
represent that there are no Prior Inventions. If, in the course of my employment
with the Company, I incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I
will not incorporate, or permit to be incorporated, Prior Inventions in any
Company Inventions without the Company's prior written consent.
2.4. Assignment of Inventions. Subject to Section 2.6 and except
for those Inventions which I can prove qualify fully under the provisions of
California Labor Code 2870 (as set forth in Exhibit A), I hereby assign and
agree to assign in the future (when any such Inventions or Proprietary Rights
are first reduced to practice or first fixed in a tangible medium, as
applicable) to the Company all my right, title and interest in and to any and
all Inventions (and all Proprietary Rights with respect thereto). I will, at the
Company's request, promptly execute a written assignment to the Company of any
such Company Invention, and I will preserve any such Invention as part of the
Proprietary Information of the Company (the "Company Inventions").
2.5. Obligation to Keep Company Informed. I will promptly and fully
disclose in writing to the Company all Inventions during my employment and for
one (1) year after my employment, including any that may be covered by Section
2870. I agree to assist in every proper way and to execute those documents and
take such acts as are reasonably requested by the Company to obtain, sustain and
from time to time enforce patents, copyrights and other rights and protections
relating to Inventions in the United States or any other country.
11.
2.6. Government or Third Party. I also agree to assign all my
right, title and interest in and to any particular Company Invention to a third
party, including without limitation the United States, as directed by the
Company.
3. NO CONFLICTING OBLIGATION. I REPRESENT that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
4. RETURN OF COMPANY DOCUMENTS. Upon termination of my employment with the
Company for any reason whatsoever, voluntarily or involuntarily, and at any
earlier time the Company requests, I will deliver to the person designated by
the Company all originals and copies of all documents and other property of the
Company in my possession, under my control or to which I may have access. I will
not reproduce or appropriate for my own use, or for the use of others, any
property, Proprietary Information or Company Inventions.
5. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
6. NOTICES. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three (3) days after the date of mailing.
7. EMPLOYMENT. I agree and understand that nothing in this Agreement shall
confer any right with respect to continuation of employment by the Company, nor
shall it interfere in any way with my right or the Company's right to terminate
my employment at any time, with or without cause.
GENERAL PROVISIONS. This Agreement will be governed by and construed according
to the laws of the State of California, as such laws are applied to agreements
entered into and to be performed entirely within California between California
residents. In case any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. This Agreement will be binding upon my heirs, executors, administrators
and other legal representatives and will be for the benefit of the Company, its
successors, and its assigns. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee. No waiver by the Company of any
breach of this Agreement shall be a waiver of any preceding or succeeding
breach. No waiver by the Company of any right under this Agreement shall be
construed as a waiver of any other right. The obligations pursuant to Sections 1
and 2 of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no
other agreement governs nondisclosure and assignment of inventions during such
period. This Agreement is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior discussions between us. No modification of or amendment to this Agreement,
nor any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
12.
This Agreement shall be effective as of the first day of my employment
with the Company.
Dated: ____________
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(Signature)
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(Printed Name)
ACCEPTED AND AGREED TO:
ALIGN TECHNOLOGY, INC.
By:
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Title:
----------------------------
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(Address)
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Dated: _____________
13.
EXHIBIT A
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California
Labor Code that the foregoing Agreement between you and the Company does not
require you to assign or offer to assign to the Company any invention that you
developed entirely on your own time without using the Company's equipment,
supplies, facilities or trade secret information except for those inventions
that either:
1. Relate at the time of conception or reduction to practice of
the invention to the Company's business, or actual or demonstrably anticipated
research or development of the Company;
2. Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to require you to
assign an invention otherwise excluded from the preceding paragraph, the
provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or invention
covered by a contract between the Company and the United States or any of its
agencies requiring full title to such patent or invention to be in the United
States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By:
--------------------------
(PRINTED NAME OF EMPLOYEE)
Date:
--------------------------
WITNESSED BY:
--------------------------------
(PRINTED NAME OF REPRESENTATIVE)
A-1.
EXHIBIT B
TO: ALIGN TECHNOLOGY, INC.
FROM:
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DATE:
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SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list
of all inventions or improvements relevant to the subject matter of my
employment by ALIGN TECHNOLOGY, INC. (the "Company") that have been made or
conceived or first reduced to practice by me alone or jointly with others prior
to my engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
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[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1.
------------------------ -------------- ------------------
2.
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3.
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[ ] Additional sheets attached.
2.
