Exhibit
10.2


 


STOCK PURCHASE AGREEMENT


 


This
STOCK PURCHASE AGREEMENT (this “Agreement”) is dated as of the 16th day of August, 2009 by and between Align
Technology, Inc., a Delaware corporation with its principal office located
at 881 Martin Avenue, Santa Clara, CA 95050 (the “Company”), and Danaher Corporation, a
Delaware corporation with its principal office located at 2099 Pennsylvania
Avenue, NW, Washington, DC 20006 (the “Purchaser”).


 


WHEREAS, the Company  and Ormco Corporation (“Ormco”) have entered into
the Settlement Agreement dated as of even date herewith (the “Settlement
Agreement”);


 


WHEREAS, pursuant to Section 1.1(a) of
the Settlement Agreement, the Company desires to issue and sell to the
Purchaser 7,586,489 fully paid, and nonassessable shares (the “Shares”)
of the authorized but unissued shares of common stock, $0.0001 par value per
share, of the Company (the “Common Stock”) on the terms and subject to
the conditions set forth in this Agreement;


 


WHEREAS, in light of the
HSR Clearance Condition (all capitalized terms used herein but not defined
herein have the meaning given to them in the Settlement Agreement), the Company
and the Purchaser desire to issue the Shares in two closings, with 5,561,489
fully paid and non-assessable shares of Common Stock (the “Initial Shares”)
issued to the Purchaser simultaneously with the execution and delivery of this
Agreement at the First Closing and the balance of the Shares, 2,025,000 fully
paid and non-assessable shares of Common Stock (the “Second Closing Shares”)
issued to the Purchaser at the Second Closing; provided,
however, that if the HSR Clearance Condition is not met by the HSR
Outside Date, the Company shall (at the election of the Purchaser delivered to
the Company in writing) pay the Purchaser an amount equal to the number of
Second Closing Shares multiplied by the average of the closing prices of the
Common Stock of the Company for the last 10 trading days prior to the Purchaser’s
election (the “Make-Whole HSR Cash Payment”) on the first business day
following the HSR Outside Date; and


 


WHEREAS, the Company and
the Purchaser desire, in connection with the consummation of the several
transactions contemplated by the Settlement Agreement, to make certain
covenants and agreements with one another pursuant to this Agreement.


 


NOW THEREFORE, in
consideration of the mutual agreements, representations, warranties and
covenants herein contained, the parties hereto agree as follows:


 


1.     Definitions.  As
used in this Agreement, the following terms shall have the following respective
meanings:


 


1.1   “Affiliate” of a party means any
corporation or other business entity controlled by, controlling or under common
control with such party.  For purposes of
this definition, “control”
(including, with correlative meanings, the terms “controlled by” and “under
common control with”) when used with respect to any person, means
the possession, directly or


 

















 


indirectly, of the power
to cause the direction of management and/or policies of such person, whether
through the ownership of voting securities by contract or otherwise, including
without limitation the direct or indirect beneficial ownership of fifty percent
(50%) or more of the voting or income interest in such corporation or other
business entity.


 


1.2   “Change in Control “ means any of the
following: (i) a merger, consolidation, statutory share exchange or other
business combination or transaction involving the Company where the existing
stockholders of the Company immediately prior to the effective date of such merger,
consolidation or other business combination or transaction own less than 50% of
the total voting securities of the surviving corporation following such merger,
consolidation or other business combination or transaction in equivalent
proportions to their interests prior to such effective date; (ii) any
person or 13D Group becomes a beneficial owner, directly or indirectly, of 50%
or more of the aggregate number of the voting securities of the Company or of
properties or assets constituting 50% or more of the consolidated assets of the
Company and its subsidiaries; (iii) in any case not covered by (ii), the
Company issues securities representing 50% or more of its total voting power,
including by way of a merger or other business combination with the Company or
any of its subsidiaries; or (iii) a sale of all or substantially all the
assets of the Company.


 


1.3   “Effective
Date” means the date that the Registration Statement is first
declared effective by the SEC.


 


1.4   “Exchange Act” means the Securities Exchange
Act of 1934, as amended, and all of the rules and regulations promulgated
thereunder.


 


1.5   “Holder” means the Purchaser and any
other holder of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred in compliance with Section 9.11
hereof.


 


1.6   “Losses”
means any and all losses, claims, damages, liabilities, settlement costs and
expenses, including, without limitation, reasonable attorneys’ fees.


 


1.7   “Proceeding”
means an action, claim, suit, investigation or proceeding (including, without
limitation, a partial proceeding, such as a deposition), whether commenced or
threatened in writing.


 


1.8   “Prospectus”
means the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A, 430B or Rule 430C promulgated under the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable Securities covered
by the Registration Statement, and all other amendments and supplements to the
Prospectus including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.


 


1.9   “Purchaser Controlled Corporation”
shall mean a corporation of which the Purchaser owns not less than 50% of the
outstanding voting power entitled to vote in the election of directors of such
corporation.


 


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1.10    “Registrable
Securities” means the Shares, together with any securities issued or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing.


 


1.11    “Registration
Statement” means each registration statement required to be filed
under Section 7, including (in each case) the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.


 


1.12    “SEC” means the Securities and
Exchange Commission.


 


1.13    “Second Closing Date” means the date
of the Second Closing.


 


1.14    “Securities Act” means the Securities
Act of 1933, as amended, and all of the rules and regulations promulgated
thereunder.


 


1.15    “Trading
Market” means The Nasdaq Global Select Market or any other national
securities exchange, market or trading or quotation facility on which the
Common Stock is then listed or quoted.


 


1.16    “13D Group” means any group of
persons formed for the purpose of acquiring, holding, voting or disposing of
voting securities which would be required under Section 13(d) of the
Exchange Act, and the rules and regulations promulgated thereunder, to
file a statement on Schedule 13D pursuant to Rule 13d-1(a) or a
Schedule 13G pursuant to Rule 13d-1(c) with the SEC as a “person”
within the meaning of Section 13(d)(3) of the Exchange Act if such
group beneficially owned voting securities of the Company representing more
than 5% of any class of voting securities then outstanding.


 


2.     Purchase and Sale of Shares.


 


2.1   Purchase and Sale.  Subject to and upon the terms and conditions
set forth in this Agreement, the Company agrees to issue and sell the Shares to
the Purchaser at the Closings.   The
Shares are being issued to the Purchaser in consideration of Purchaser’s
obligations under the Settlement Agreement and the transactions contemplated
thereby.  Therefore, no payment of cash
or other form of consideration is owing by the Purchaser at the Closings (as
defined below).


 


2.2   Closing.
The closings of the transactions contemplated under this Agreement (the “Closings”)
shall take place at the offices of Wilson Sonsini Goodrich & Rosati,
650 Page Mill Road, Palo Alto, California 94304-1050.  The first closing (the “First Closing”)
shall take place simultaneously with the execution and delivery of this
Agreement.  The second closing (the “Second
Closing”) shall take place  on the
second business day after all of the conditions precedent set forth in Section 5
have been satisfied in full or at such other location, date and time as may be
agreed upon between the Purchaser and the Company. At the First Closing, the
Company shall deliver to the Purchaser a single stock certificate, registered
in the name of the Purchaser, representing the Initial Shares.  At the Second Closing, the Company shall
deliver to the Purchaser a single stock certificate, registered in the name of
the Purchaser, representing the Second Closing Shares; provided,
however, that if the HSR Clearance Condition is not met by


 


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the HSR Outside Date, the
Company shall (at the election of the Purchaser delivered to the Company in
writing) pay to the Purchaser the Make-Whole HSR Cash Payment on the first
business day immediately following such date. 
Wilson Sonsini Goodrich & Rosati shall hold any such stock
certificates in escrow for Purchaser until delivered to Purchaser or one of
Purchaser’s designees.


 


2.3           Second Closing Adjustments.  In the event that, at or prior to the Second
Closing, (i) the number of shares of Common Stock or securities
convertible or exchangeable into or exercisable for shares of Common Stock
issued and outstanding is changed as a result of any reclassification, stock
split (including reverse split), stock dividend or distribution (including any
dividend or distribution of securities convertible or exchangeable into or
exercisable for shares of Common Stock), merger, tender or exchange offer or
other similar transaction, or (ii) the Company fixes a record date that is
at or prior to the Second Closing Date for the payment of any non-stock
dividend or distribution on the Common Stock, then at the Purchaser’s option,
which may be exercised in the Purchaser’s sole discretion, the number of shares
of Common Stock to be issued to the Purchaser at the Second Closing under this
Agreement shall be equitably adjusted and/or the shares of Common Stock to be
issued to the Purchaser at the Second Closing under this Agreement shall be
equitably substituted with shares of other stock or securities or property (including
cash), in each case, to provide the Purchaser with substantially the same
economic benefit from this Agreement as the Purchaser had prior to the
applicable transaction.  Notwithstanding
anything in this Agreement to the contrary, in no event shall the Purchaser be
required to make any payment by virtue of the foregoing.


 


3.     Representations and Warranties of the Company. Except as
set forth in the Company’s Form 10-K for the fiscal year ended December 31,
2008 subsequent quarterly reports on Form 10-Q and subsequent current
reports on Form 8-K, each as publicly filed and available prior to the
date hereof (excluding any risk factor disclosures contained in such documents
under the heading “Risk Factors” and any disclosure of risks, uncertainties or
contingencies included in any “forward-looking statements” disclaimer or other
statements that are non-specific or are predictive or forward-looking in
nature) (such Form 10-K, Form 10-Qs and Form 8-Ks, the “Current
SEC Reports”) and in the Schedules attached hereto, the Company hereby
represents and warrants to the Purchaser as follows:


 


3.1   Organization and Qualification.  The Company is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite corporate
authority to own and use its properties and assets and to carry on its business
as currently conducted.  The Company is
not in violation of any of the provisions of its certificate of incorporation,
bylaws or other organizational or charter documents.  The Company is duly qualified to do business
and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by
it makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not, individually or
in the aggregate, (i) materially and adversely affect the legality,
validity or enforceability of any Transaction Document, (ii) have or
result in a material adverse effect on the results of operations, assets,
liabilities, business or financial condition of the Company and its
subsidiaries, taken as a whole on a consolidated basis, or (iii) materially
and adversely impair the Company’s ability to 


 


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perform fully on a timely
basis its obligations under any of the Transaction Documents (any of (i), (ii) or (iii),
a “Material Adverse Effect”).


 


3.2   Capitalization.  As of August 12, 2009, the authorized
capital stock of the Company consists of (i) 200,000,000 shares of Common
Stock, of which 66,678,118 shares are outstanding and (ii) 5,000,000
shares of preferred stock, of which no shares are outstanding.  As of August 12, 2009, except with
respect to the 8,755,192 shares of Common Stock subject to outstanding options
or awards made under the Company’s 2005 Incentive Plan, 2001 Equity Incentive
Plan and 1997 Equity Incentive Plan, 3,714,487 shares of which will be, as of January 31,
2010, subject to vested awards or vested options with exercise prices below
$14.00 per share, in each case based upon the terms and conditions of such
options or awards as they existed on August 12, 2009, there are no
existing options, warrants, calls, preemptive (or similar) rights,
subscriptions or other rights, agreements, arrangements or commitments of any
character obligating the Company to issue, transfer or sell, or cause to be
issued, transferred or sold, any shares of the capital stock of the Company or
other equity interests in the Company or any securities convertible into or
exchangeable for such shares of capital stock or other equity interests, and
there are no outstanding contractual obligations of the Company to repurchase, redeem
or otherwise acquire any shares of its capital stock or other equity
interests.  Between August 12, 2009
and the date hereof, the Company has not issued any equity securities except
through employee or director stock option exercises in the ordinary course.


 


3.3   Authorization; Enforcement.  The Company has the requisite corporate
authority to enter into and to consummate the transactions contemplated by this
Agreement, the Settlement Agreement and the Joint Development, Marketing and
Sales Agreement dated as of the date hereof between the Company and Ormco (the “Collaboration
Agreement” and together with the Agreement and the Settlement Agreement,
the “Transaction Documents”) and otherwise to carry out its obligations
hereunder and thereunder.  The execution
and delivery of the Transaction Documents by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the Company and no
further consent or action is required by the Company, its Board of Directors or
its stockholders.  Each of the
Transaction Documents is duly executed by the Company and is, or when delivered
in accordance with the terms hereof and thereof, will constitute, the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditors rights generally, and (ii) the
effect of rules of law governing the availability of specific performance
and other equitable remedies.


 


3.4   No Conflicts.  The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby do not, and will not, (i) conflict
with or violate any provision of the Company’s certificate of incorporation,
bylaws or other organizational or charter documents, (ii) conflict with,
or constitute a material default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any material credit facility or debt instrument to
which the Company is a party, or (iii) result in a material violation 


 


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of any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Company or its
properties or assets.


 


3.5   Valid Issuance of the Shares.  The Shares are duly authorized and, when
issued in accordance with this Agreement, will be duly and validly issued,
fully paid and nonassessable, free and clear of all liens and shall not be
subject to preemptive or similar rights of stockholders.


 


3.6   SEC Reports; Financial Statements.


 


(a)   Since January 1, 2008, the Company has
filed on a timely basis all reports required to be filed by it under the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof.  Such reports required to be filed by the
Company under the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, together with any materials filed or furnished by the
Company under the Exchange Act, whether or not any such reports were required
being collectively referred to herein as the “SEC Reports”.  As of their respective dates, the SEC Reports
filed by the Company complied in all material respects with the requirements of
the Securities Act and the Exchange Act and the rules and regulations of
the SEC promulgated thereunder, and none of the SEC Reports, when filed by the
Company, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.  The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and
regulations of the SEC with respect thereto as in effect at the time of
filing.  Such financial statements have
been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise
specified in such financial statements, the notes thereto and except that
unaudited financial statements may not contain all footnotes required by GAAP
or may be condensed or summary statements, and fairly present in all material
respects the consolidated financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, year-end audit adjustments.  All material agreements to which the Company
or any subsidiary is a party or to which the property or assets of the Company
or any subsidiary are subject are included as part of or identified in the SEC
Reports, to the extent such agreements are required to be included or
identified pursuant to the rules and regulations of the SEC.


 


(b)   Since January 1, 2009, except as disclosed
in Schedule 3.6(b) hereto, (i) there has been no event,
occurrence or development that, individually or in the aggregate, has had or
that would result in a Material Adverse Effect on the Company, (ii) the
Company has not incurred any material liabilities other than (A) trade
payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or required to
be disclosed in filings made with the SEC, (iii) the Company has not
altered its method of accounting or changed its auditors, (iv) the Company
has not declared or made any dividend or distribution of cash or other property
to its stockholders, in their capacities as such, or purchased, redeemed or
made any agreements to purchase or redeem any shares of its capital stock
(except for 


 


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repurchases by the
Company of shares of capital stock held by employees, officers, directors, or
consultants pursuant to an option to repurchase such shares upon the
termination of employment or services), and (v) the Company has not issued
any equity securities to any officer, director or Affiliate, except pursuant to
current or previously existing Company stock-based plans.


 


3.7   Brokers or Finders.  The Company has not incurred, and shall not
incur, directly or indirectly, any liability for any brokerage or finders’ fees
or agents commissions or any similar charges in connection with this Agreement
or any transaction contemplated hereby.


 


3.8   The Nasdaq Global Select Market. The
Company’s Common Stock is listed on The Nasdaq Global Select Market, and there
are no proceedings to revoke or suspend such listing.


 


3.9   Absence of Litigation.  Except as disclosed in the Company’s Current
SEC Reports, there is no proceeding, or, to the Company’s knowledge, inquiry or
investigation, before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company that could, individually
or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect.


 


4.     Representations and Warranties of the Purchaser.  The Purchaser represents and warrants to the
Company as follows:


 


4.1   Organization; Authority.  The Purchaser is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization with the requisite corporate, partnership or other power and
authority to enter into and to consummate the transactions contemplated by the
Transaction Documents and otherwise to carry out its obligations hereunder and
thereunder.  The purchase by the Purchaser
of the Shares hereunder has been duly authorized by all necessary corporate,
partnership or other action on the part of the Purchaser.  Each of the Transaction Documents has been
duly executed and delivered by the Purchaser and constitutes the valid and
binding obligation of the Purchaser, enforceable against it in accordance with
its terms, except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditors rights generally, and (ii) the
effect of rules of law governing the availability of specific performance
and other equitable remedies.


 


4.2   No Public Sale or Distribution; Investment
Intent.  The Purchaser is acquiring
the Shares for its own account and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except pursuant to
sales registered under the Securities Act or under an exemption from such
registration and in compliance with applicable federal and state securities
laws, and the Purchaser does not have a present arrangement to effect any
distribution of the Shares to or through any person or entity; provided, however, that by making the representations
herein, the Purchaser does not agree to hold any of the Shares for any minimum
or other specific term and reserves the right to dispose of the Shares at any
time in accordance with or pursuant to a registration statement or an exemption
under the Securities Act.


 


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4.3   Investor Status; Etc.  At the time the Purchaser was offered the
Shares, it was, and at the date hereof it is, an “accredited investor” as
defined in Rule 501(a) under the Securities Act.  The Purchaser has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the
Shares, and has so evaluated the merits and risks of such investment.  The Purchaser is able to bear the economic
risk of an investment in the Shares and, at the present time, is able to afford
a complete loss of such investment.


 


4.4   Shares Not Registered.  The Purchaser understands that the Shares
have not been registered under the Securities Act, by reason of their issuance
by the Company in a transaction exempt from the registration requirements of
the Securities Act, and that the Shares must continue to be held by the
Purchaser unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration.  The Purchaser understands that the exemptions
from registration afforded by Rule 144 (the provisions of which are known
to it) promulgated under the Securities Act depend on the satisfaction of
various conditions, and that, if applicable, Rule 144 may afford the basis
for sales only in limited amounts.


 


4.5   No Conflict.  The execution and delivery of the Transaction
Documents by the Purchaser and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in any
violation of or default by the Purchaser (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit under (i) any
provision of the organizational documents of the Purchaser or (ii) any
agreement or instrument, permit, franchise, license, judgment, order, statute,
law, ordinance, rule or regulations, applicable to the Purchaser or its
respective properties or assets.


 


4.6   Brokers.  The Purchaser has not retained, utilized or
been represented by any broker or finder in connection with the transactions
contemplated by this Agreement.


 


4.7   No Ownership.  Immediately prior to the issuance of the
Shares hereunder, except as set forth on Schedule 4.7 hereof, neither the
Purchaser nor any of its Affiliates beneficially owned any voting securities of
the Company.


 


5.     Conditions Precedent.


 


5.1   Conditions to the Obligation of the
Purchaser to Consummate the Second Closing.  The obligation of
the Purchaser to consummate the Second Closing and to purchase and pay for the
Second Closing Shares being purchased by it pursuant to this Agreement is
subject to the satisfaction of the following conditions precedent:


 


(a)   The representations and warranties contained
herein of the Company shall be true and correct on and as of the Second Closing
Date in all material respects with the same force and effect as though made on
and as of the Second Closing Date.


 


(b)   The Company shall have performed in all
material respects all obligations and conditions herein required to be
performed or observed by the Company on or prior to the Second Closing Date.


 


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(c)   No proceeding challenging this Agreement or
the transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Second Closing, shall have been instituted before any
court, arbitrator or governmental body, agency or official and shall be
pending.


 


(d)   The issuance of the Second Closing Shares to
the Purchaser shall not be prohibited by any law or governmental order or
regulation.  All necessary consents,
approvals, licenses, permits, orders and authorizations of, or registrations,
declarations and filings with, any governmental or administrative agency or of
any other person with respect to any of the transactions contemplated hereby
shall have been duly obtained or made and shall be in full force and effect.


 


(e)           All instruments and corporate
proceedings in connection with the transactions specifically contemplated by
this Agreement to be consummated at the Second Closing shall be reasonably
satisfactory in form and substance to the Purchaser, and the Purchaser shall
have received copies (executed or certified, as may be appropriate) of all documents
which the Purchaser may have reasonably requested in connection with such
transactions.


 


(f)            Any waiting periods (and any
extensions thereof) applicable to the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the “HSR Act”) shall have been terminated or
expired.


 


5.2   Conditions to the Obligation of the
Company to Consummate the Second Closing.  The obligation of the
Company to consummate the Second Closing and to issue and sell to the Purchaser
the Second Closing Shares to be purchased by it at the Second Closing is
subject to the satisfaction of the following conditions precedent:


 


(a)   The representations and warranties contained
herein of the Purchaser shall be true and correct on and as of the Second
Closing Date in all material respects with the same force and effect as though
made on and as of the Second Closing Date.


 


(b)   The Purchaser shall have performed in all
material respects all obligations and conditions herein required to be
performed or observed by the Purchaser on or prior to the Second Closing Date.


 


(c)   No proceeding challenging this Agreement or
the transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Second Closing, shall have been instituted before any
court, arbitrator or governmental body, agency or official and shall be
pending.


 


(d)   The sale of the Second Closing Shares by the
Company shall not be prohibited by any law or governmental order or
regulation.  All necessary consents,
approvals, licenses, permits, orders and authorizations of, or registrations,
declarations and filings with, any governmental or administrative agency or of
any other person with respect to any of the transactions contemplated hereby
shall have been duly obtained or made and shall be in full force and effect.


 


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(e)           All instruments and corporate
proceedings in connection with the transactions contemplated by this Agreement
to be consummated at the Second Closing shall be reasonably satisfactory in form
and substance to the Company, and the Company shall have received counterpart
originals, or certified or other copies of all documents, including without
limitation records of corporate or other proceedings, which it may have
reasonably requested in connection therewith.


 


(f)            Any waiting periods (and any
extensions thereof) applicable to the HSR Act shall have been terminated or
expired.


 


6.     Other Agreements of the Parties.


 


6.1   Securities Law Transfer Restrictions.   The Purchaser shall not sell, assign,
pledge, transfer or otherwise dispose or encumber any of the Shares being
purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an
available exemption from registration under the Securities Act and applicable
state securities laws.  Any transfer or
purported transfer of the Shares in violation of this Section 6.1 shall be
voidable by the Company.  The Company
shall not register any transfer of the Shares in violation of this Section 6.1.  The Company may, and may instruct any
transfer agent for the Company, to place such stop transfer orders as may be
required on the transfer books of the Company in order to ensure compliance
with the provisions of this Section 6.1.


 


6.2   Legends.  Until all of the Shares can be sold pursuant
to Rule 144 promulgated under the Securities Act, each certificate
requesting any of the Shares shall be endorsed with the legends set forth
below, and the Purchaser covenants that, except to the extent such restrictions
are waived in writing by the Company, it shall not transfer the shares
represented by any such certificate without complying with the restrictions on
transfer described in this Agreement and the legends endorsed on such
certificate (such legends to be removed by the Company from any such
certificate at the request of Purchaser at such time that all of the Shares can
be sold pursuant to Rule 144 promulgated under the Securities Act):


 


“THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID
ACT.”


 


“THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND CERTAIN OTHER RESTRICTIONS, ALL AS SET FORTH IN
A CERTAIN DEFINITIVE AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF
THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF
THE COMPANY.”


 


10

















 


6.3   Other Transfer Restrictions.


 


(a)   In addition to the restrictions set forth in Section 6.1,
until the date that is twelve (12) months after the date hereof, the Purchaser
shall not, directly or indirectly, sell, transfer, pledge, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise dispose of,
any Shares to any competitor of the Company (or any Affiliate thereof) or any
activist investor (or any Affiliate thereof).


 


(b)   No transferee of the Shares sold, transferred
or otherwise disposed of by the Purchaser as permitted by this Section 6.3
shall be bound (other than a Purchaser Controlled Corporation) by the terms of
this Agreement, nor shall such transferee (other than a Purchaser Controlled
Corporation) be entitled, in any manner whatsoever, to any rights afforded Purchaser
under this Agreement.


 


(c)   Any attempted sale, transfer or other
disposition by Purchaser or a Purchaser Controlled Corporation which is not in
compliance with this Section 6.3 shall be null and void.


 


6.4   Standstill.  (a) For a period commencing with the
date of this Agreement and ending on the earliest to occur of (i) the
termination of the period of exclusivity pursuant to its terms set forth in the
Collaboration Agreement, (ii) the eighteenth month anniversary of the date
hereof or (iii) a Standstill Termination Event (as defined below) (such
period, the “Standstill Period”), none of the Purchaser, any Affiliate
of the Purchaser or any of their directors, officers, employees, agents or
advisors (“Representatives”) shall, for or on behalf of the Purchaser,
without the prior written consent of the Company:


 


(a)   acquire, offer to acquire, or agree to
acquire, directly or indirectly, by purchase or otherwise, any voting
securities such that, upon such acquisition, Purchaser would beneficially own
in excess of the Contemplated Percentage, or direct or indirect rights to
acquire any voting securities of the Company or any subsidiary thereof such
that, upon such acquisition, Purchaser would beneficially own in excess of the
Contemplated Percentage (for the purposes of this Agreement, the “Contemplated
Percentage” shall mean the percentage of outstanding voting securities of
the Company determined by dividing (i) the sum of the (x) number of
outstanding shares of Common Stock of the Company beneficially owned by the
Purchaser as of the date hereof, plus (y) the Shares, by (ii) the
total number of outstanding voting securities of the Company as of the date
hereof, plus the Shares; provided, however, if a party or 13D Group acquires
more shares of outstanding Common Stock of the Company than the Contemplated
Percentage, the Contemplated Percentage will be increased to equal the
percentage of outstanding Common Stock held by such party or 13D Group, but in
no event shall the Contemplated Percentage exceed 14.9%);


 


(b)   make, or in any way participate, directly or
indirectly, in any “solicitation” of “proxies” to vote (as such terms are used
in the rules of the SEC), seek to advise or influence any person or entity
with respect to the voting of any voting securities of the Company;


 


11
















 


(c)   deposit any Shares in a voting trust or,
except as otherwise provided or contemplated herein, subject any Shares to any
arrangement or agreement with any third party with respect to the voting of
such Shares;


 


(d)   make any public announcement with respect to,
or submit a proposal for, or offer of (with or without conditions) any
extraordinary transaction involving the Company or any of its securities or
assets;


 


(e)   form, join or in any way participate in a 13D
Group, partnership, limited partnership, syndicate or other group or otherwise
act in concert with any third person for the purpose of acquiring, holding,
voting or disposing of securities of the Company; provided, however, that by agreeing to this clause (e), the
Purchaser does not agree to hold any of the Shares for any minimum or other
specific term and reserves the right to dispose of the Shares at any time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act and Sections 6.1 and 6.3 of this Agreement;


 


(f)    otherwise act or seek to control the
management, Board of Directors or policies of the Company;


 


(g)   take any action that would reasonably be
expected to require the Company to make a public announcement regarding the
possibility of any of the events described in clauses (a) through (f) above;
or


 


(h)   request the Company, directly or indirectly,
to amend or waive any provision of this Section 6.4;


 


provided, however, that nothing in this Agreement shall
prevent or limit in any way the Purchaser or its Affiliates from:


 


(i)    subject to Sections 6.1, 6.3 and 6.5 of this
Agreement, voting (including the granting or withholding of any consent) or
disposing of any voting securities then beneficially owned by the Purchaser or
its Affiliates in any manner;


 


(ii)   making confidential proposals to the Board of
Directors with respect to transactions involving the Company, any of the
Company’s subsidiaries or any properties, assets or businesses of the Company
or any of the Company’s subsidiaries;


 


(iii)  making any offer or entering into any
agreement with respect to, or otherwise consummating, any transaction involving
the Company or Company securities, assets or properties in the ordinary course
of business or pursuant to the terms of the Collaboration Agreement or any
subsequent definitive agreement with the Company; or


 


(iv)  acquiring or offering to acquire, directly or
indirectly, any company or business unit thereof that beneficially owns Company
securities so long as such securities are not a material portion of the assets
of such company or business unit.


 


12

















 


Notwithstanding
the foregoing, the restrictions on Purchaser and its Representatives in the
above provisions of this Section 6.4 shall automatically and immediately
terminate upon the occurrence of a Standstill Termination Event.


 


For purposes of
this Agreement, a “Standstill Termination Event” means:


 


(i)    the Company enters into any agreement or
agreement in principle with respect to any Change in Control;


 


(ii)   any person or 13D Group shall have become the
beneficial owner of 20% or more of any class of securities of the Company;


 


(iii)  the Company redeems any rights under, or
modifies or agrees to modify, the Company’s Rights Plan or other shareholder
rights plan to facilitate any Change in Control or any acquisition of
securities by any person or 13D Group, unless with respect to a modification in
connection with an acquisition of securities which would result in a person or
13D Group  becoming the beneficial owner
of less than 20% of any class of securities of the Company, contemporaneously
with such modification the Company takes such action as may be necessary to
permit Purchaser to acquire the same beneficial ownership in the aggregate as
such person or 13D Group and the Company agrees to amend the definition of “Contemplated
Percentage” to permit such acquisition;


 


(iv)  a tender or exchange offer that if consummated
would constitute a Change in Control is made for securities of the Company;


 


(v)   any person or 13D Group publicly proposes, or
announces an intention to commence a tender or exchange offer that if
consummated would constitute a Change in Control;


 


(vi)  any person or 13D Group commences (or publicly
proposes to commence) a proxy solicitation by which the person or 13D Group
would, if successful, elect or acquire the ability to elect or to have elected
a majority of the Board of Directors; or


 


(vii) the Company or any of its subsidiaries makes an
assignment for the benefit of creditors or commences any proceeding under any
bankruptcy, reorganization, insolvency, dissolution or liquidation law of any
jurisdiction or any such petition is filed or any such proceeding is commenced
against the Company or any of its subsidiaries and either (A) the Company
or such subsidiary by any act indicates its approval thereof, consent thereto
or acquiescence therein or (B) such petition, application or proceeding is
not dismissed within 60 days.


 


6.5           Purchaser’s
Voting Obligations. During the Standstill Period, on all matters submitted
to the vote, written consent or approval of the stockholders of the Company,
the Purchaser shall take all such action as may be required so that the Shares
then beneficially owned by the Purchaser are voted for or cast in favor of : (i) nominees
to the Board of Directors of the Company in accordance with recommendations of
the Board of Directors of the Company, (ii) increases in the authorized
capital stock of the Company and amendments to, or adoptions of, employee stock
option plans and employee stock purchase plans, in each case which are approved
by the Company’s Board of Directors, and (iii) all other ordinary course,
non-extraordinary 


 


13

















 


matters
approved by the Company’s Board of Directors where such matters are submitted
to a vote, action by written consent or other approval of the stockholders of
the Company.


 


6.6           Pre-emptive
Rights.


 


(a)   Sale of New Securities.  At any time that the Company makes any public
or nonpublic offering or sale of any equity securities, options or debt that is
convertible or exchangeable into equity or that includes an equity component
(such as, an “equity” kicker) (including any hybrid security) (any such
security other than that issued (i) pursuant to the granting or exercise
of stock options or other stock incentives pursuant to the Company’s stock
incentive plans approved by the Board of Directors or the issuance of stock
pursuant to the Company’s employee stock purchase plan approved by the Board of
Directors or similar plan, (ii) in connection with acquisitions by the
Company to stockholders of acquired companies, or (iii) to banks,
equipment lessors or other financial institutions pursuant to commercial
leasing or debt financing transactions, in connection with sponsored research,
collaboration, technology license, development, OEM, marketing or other similar
agreements or strategic partnerships, or to suppliers or third party service
providers in connection with the provision of goods or services, a “New
Security”) the Purchaser shall be afforded the opportunity to acquire from
the Company for the same price (net of any underwriting discounts or sales
commissions) and on the same terms (except that, to the extent permitted by law
and the Certificate of Incorporation and bylaws of the Company, the Purchaser
may elect to receive such securities in nonvoting form, convertible into voting
securities) as such securities are proposed to be offered to others, up to the
amount of New Securities required to enable Purchaser to maintain the
Contemplated Percentage interest in the Company.


 


(b)           Notice.  In the event the Company proposes to offer or
sell New Securities, it shall give the Purchaser written notice of its
intention, describing the price (or range of prices), anticipated amount of
securities, timing and other terms upon which the Company proposes to offer the
same (including, in the case of a registered public offering and to the extent
possible, a copy of the prospectus included in the registration statement filed
with respect to such offering), no later than ten business days, as the case
may be, after the initial filing of a registration statement with the SEC with
respect to an underwritten public offering, after the commencement of marketing
with respect to a Rule 144A offering or after the Company proposes to
pursue any other offering).  The
Purchaser shall have ten business days from the date of receipt of such a
notice to notify the Company in writing that it intends to exercise its rights
provided in this Section 6.6 and as to the amount of New Securities the
Purchaser desires to purchase, up to the maximum amount calculated pursuant to Section 6.6(a).  Such notice shall constitute a binding
indication of interest of the Purchaser to purchase the amount of New
Securities so specified at the price and other terms set forth in the Company’s
notice to it.  The failure of the
Purchaser to respond within such ten business day period shall be deemed to be
a waiver of the Purchaser’s rights under this Section 6.6 only with
respect to the offering described in the applicable notice.


 


(c)           Purchase Mechanism.  If the Purchaser exercises its rights
provided in this Section 6.6, the closing of the purchase of the New
Securities with respect to which such right has been exercised shall take place
within 15 calendar days after the giving of notice of such exercise, which
period of time shall be extended for a maximum of 90 days in order to comply


 


14

















 


with applicable laws and
regulations (including receipt of any applicable regulatory or stockholder
approvals).  Each of the Company and the
Purchaser agrees to use its commercially reasonable efforts to secure any
regulatory or stockholder approvals or other consents, and to comply with any
law or regulation necessary in connection with the offer, sale and purchase of,
such New Securities.


 


(d)           Failure of Purchase.  In the event the Purchaser fails to exercise
its rights provided in this Section 6.6 within said ten-business day
period or, if so exercised, the Purchaser is unable to consummate such purchase
within the time period specified in Section 6.6(c) above because of
its failure to obtain any required regulatory or stockholder consent or
approval, the Company shall thereafter be entitled (during the period of 60
days following the conclusion of the applicable period) to sell or enter into
an agreement to sell the New Securities not elected to be purchased pursuant to
this Section 6.6 or which the Purchaser is unable to purchase because of
such failure to obtain any such consent or approval, at a price and upon terms,
taken together in the aggregate, no more favorable to the purchasers of such
securities than were specified in the Company’s notice to the Purchaser.  Notwithstanding the foregoing, if such sale
is subject to the receipt of any regulatory or stockholder approval or consent
or the expiration of any waiting period, the time period during which such sale
may be consummated shall be extended until the expiration of five business days
after all such approvals or consents have been obtained or waiting periods
expired, but in no event shall such time period exceed 120 days from the date
of the applicable agreement with respect to such sale.  In the event the Company has not sold the New
Securities within said 60-day period (as such period may be extended in the
manner described above for a period not to exceed 120 days from the date of
said agreement), the Company shall not thereafter offer, issue or sell such New
Securities without first offering such securities to the Purchaser in the
manner provided above.


 


(e)           Non-Cash Consideration.  In the case of the offering of New Securities
for consideration in whole or in part other than cash, including securities
acquired in exchange therefor (other than securities by their terms so
exchangeable), the consideration other than cash shall be deemed to be the fair
value thereof as determined by the Board of Directors in good faith; provided, however,
that such fair value as determined by the Board of Directors shall not exceed
the aggregate market price of the securities being offered as of the date the
Board of Directors authorizes the offering of such securities.


 


(f)            Cooperation.  The Company and the Purchaser shall cooperate
in good faith to facilitate the exercise of the Purchaser’s rights under this Section 6.6,
including to secure any required approvals or consents.


 


6.7   Listing of Common Stock.  As soon as reasonably practicable, the
Company will apply for additional listing of the Shares on The Nasdaq Global
Select Market.


 


6.8   Form D; Blue Sky Filings.  The Company agrees to timely file a Form D
with respect to the Shares as required under Regulation D and to provide a copy
thereof, promptly upon request of the Purchaser. The Company shall take such
action as the Company shall reasonably determine is necessary in order to
obtain an exemption for, or to qualify the Shares for, sale to the Purchaser at
the Closings under applicable securities or “Blue Sky” laws of the


 


15

















 


states of the
United States, and shall provide evidence of such actions promptly upon request
of the Purchaser.


 


6.9   Taking of Necessary Action.  Each of the Company and the Purchaser shall
use its commercially reasonable efforts promptly to take or cause to be taken
all action and promptly to do or cause to be done all things necessary, proper,
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement.  Without limiting the foregoing, the Company
and the Purchaser will use its commercially reasonable efforts to make all
filings (including without limitation, under the HSR Act as applicable) and
obtain all consents of governmental entities which may be necessary or, in the
reasonable opinion of the Purchaser or the Company, as the case may be,
advisable for the consummation of the transactions contemplated by this
Agreement. The Purchaser shall (i) file, or have caused to be filed, all
necessary filings required to be made by the Purchaser under the HSR Act in
connection with the transactions contemplated by this Agreement as soon as
reasonably practicable following the date hereof, and (ii) use all
commercially reasonable efforts to have such filings made within seven (7) trading
days of the date hereof.


 


7.     Registration Rights.


 


7.1   Registration Statement.


 


(a)   As soon as commercially practicable (but in
any event within ninety (90) days) following receipt of a written request from
the Purchaser, the Company shall prepare and file with the SEC a shelf
Registration Statement covering the resale of all Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415.  The Registration Statement shall be on Form S-3
(except if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, in which case such registration shall
be on another appropriate form in accordance with the Securities Act and the
Exchange Act).


 


(b)   The Company shall use its commercially
reasonable efforts to cause the shelf Registration Statement to be declared
effective by the SEC as promptly as possible after the filing thereof, and
shall use its commercially reasonable efforts to keep the Registration
Statement continuously effective under the Securities Act until the earlier of
the date that all Shares covered by such Registration Statement have been sold
or can be sold publicly under Rule 144 (the “Effectiveness  Period”).  Notwithstanding the
foregoing, if the SEC, by written or oral comment or otherwise, limits the
Company’s ability to request effectiveness, or prohibits the effectiveness of,
a Registration Statement with respect to any or all the Registrable Securities
pursuant to Rule 415, it shall not be a breach or default by the Company
under this Agreement and shall not be deemed a failure by the Company to use
commercially reasonable efforts.


 


(c)   The Company shall notify the Purchaser in
writing promptly (and in any event within two trading days) after receiving
notification from the SEC that the Registration Statement has been declared
effective.


 


(d)           Notwithstanding anything in this
Agreement to the contrary, at any time after the initial Registration Statement
is filed and declared effective pursuant to this Agreement, the Company may, by
written notice to the Purchaser, suspend sales under a 


 


16

















 


Registration Statement
after the Effective Date thereof and/or require that the Purchaser immediately
cease the sale of shares of Common Stock pursuant thereto and/or defer the
filing of any subsequent Registration Statement if the Board of Directors
determines in good faith, by appropriate resolutions, that, as a result of
material undisclosed information or events with respect to the Company, it
would be detrimental to the Company (other than as relating solely to the price
of the Common Stock) to maintain  a
Registration Statement at such time. 
Upon receipt of such notice, the Purchaser shall immediately discontinue
any sales of Registrable Securities pursuant to such registration until the
Purchaser is advised in writing by the Company that the current Prospectus or
amended Prospectus, as applicable, may be used. 
The total number of days that any such suspension may be in effect in
any 180 day period shall not exceed 90 days. 
Immediately after the end of any suspension period under this Section 7.1(d),
the Company shall take all necessary actions (including filing any required
supplemental prospectus) to restore the effectiveness of the applicable
Registration Statement and the ability of the Purchaser to publicly resell its
Registrable Securities pursuant to such effective Registration Statement.


 


(e)           The Company shall not be obligated to
effect any such registration pursuant to this Section 7:


 


(i)    Prior to one (1) year anniversary of
the date hereof;


 


(ii)   In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the Company
is already subject to service in such jurisdiction and except as may be
required by the Securities Act;


 


(iii)  Subject to Section7.1(f) with respect to
Piggyback Registration Rights, during the period starting with the date sixty
(60) days prior to the Company’s good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective date of,
a Company-initiated registration; provided
that the Company is actively employing in good faith commercially reasonable
efforts to cause such registration statement to become effective; or


 


(iv)  If (i) in the good faith judgment of the
Board of Directors of the Company, the filing of a Registration Statement
covering the Registrable Securities would be detrimental to the Company and the
Board of Directors of the Company concludes, as a result, that it is in the
best interests of the Company to defer the filing of such Registration
Statement at such time, and (ii) the Company shall furnish to the
Purchaser a certificate signed by the President of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
detrimental to the Company for such Registration Statement to be filed in the
near future and that it is, therefore, in the best interests of the Company to
defer the filing of such Registration Statement, then (in addition to the
limitations set forth above) the Company shall have the right to defer such
filing for a period of not more than one hundred eighty (180) days after
receipt of the request of the Purchaser, and, provided further, that the
Company shall not defer its obligation in this manner more than once in any
twelve-month period.


 


(f)    Piggyback Registration Rights.  Whenever the Company proposes to register any
of its equity securities other than a registration statement under Section 7.1(a) or
a


 


17

















 


Special
Registration (as defined below) and the registration form to be filed may be
used for the registration or qualification for distribution of Registrable
Securities, the Company will give prompt written notice to the Purchaser and
all other Holders of its intention to effect such a registration (but in no
event less than ten days prior to the anticipated filing date) and (subject to
the next paragraph below) will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within ten business days after the date of the Company’s
notice (a “Piggyback Registration”). 
Any such person that has made such a written request may withdraw its
Registrable Securities from such Piggyback Registration by giving written
notice to the Company and the managing underwriter, if any, on or before the
fifth business day prior to the planned effective date of such Piggyback
Registration. The Company may terminate or withdraw any registration under this
Section 7.1(f) prior to the effectiveness of such registration,
whether or not the Purchaser or any other Holders have elected to include
Registrable Securities in such registration. 
“Special Registration”  means
the registration of (i) equity securities and/or options or other rights
in respect thereof solely registered on Form S-4 or Form S-8 (or
successor form) or (ii) shares of equity securities and/or options or
other rights in respect thereof to be offered to directors, members of
management, employees, consultants, customers, lenders or vendors of the Company
or Company subsidiaries or in connection with dividend reinvestment plans.


 


If (x) the
Company grants “piggyback” registration rights to one or more third parties to
include their securities in an underwritten offering under the Registration
Statement or (y) a Piggyback Registration relates to an underwritten
primary offering on behalf of the Company, and in either case the managing
underwriters advise the Company that in their reasonable opinion the number of
securities requested to be included in such offering exceeds the number which
can be sold without adversely affecting the marketability of such offering
(including an adverse effect on the per share offering price), the Company will
include in such registration or prospectus only such number of securities that
in the reasonable opinion of such underwriters can be sold without adversely
affecting the marketability of the offering (including an adverse effect on the
per share offering price), which securities will be so included in the
following order of priority: (i) first, in the case of a Piggyback
Registration, the securities the Company proposes to sell, (ii) second,
Registrable Securities of the Purchaser and all other Holders who have
requested registration of Registrable Securities, pro rata on the basis of the aggregate number of such
securities or shares owned by each such person and (iii) third, any other
securities of the Company that have been requested to be so included, subject
to the terms of this Agreement.


 


7.2   Registration Procedures.  In connection with the Company’s registration
obligations hereunder, the Company shall:


 


(a)   (i) Subject to Section 7.1(d),
prepare and file with the SEC such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep the Registration Statement
continuously effective, as to the applicable Registrable Securities for the
Effectiveness Period and prepare and file with the SEC such additional
Registration Statements in order to register for resale under the Securities
Act all of the Registrable Securities; (ii) cause the related Prospectus
to be amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424; (iii) respond
as promptly as reasonably possible, and in any event within 15 trading days
(except to the extent that the Company reasonably


 


18

















 


requires
additional time to respond to accounting or Rule 415 comments), to any
comments received from the SEC with respect to the Registration Statement or
any amendment thereto; and (iv) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the disposition
of all Registrable Securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
Purchaser thereof set forth in the Registration Statement as so amended or in
such Prospectus as so supplemented.


 


(b)   Notify the Purchaser as promptly as
reasonably practicable (and in any event within one business day) of any of the
following events:  (i) the SEC
notifies the Company whether there will be a “review” of any Registration Statement;
(ii) the SEC comments in writing on any Registration Statement; (iii) any
Registration Statement or any post-effective amendment is declared effective; (iv) the
SEC or any other federal or state governmental authority requests any amendment
or supplement to any Registration Statement or Prospectus or requests
additional information related thereto; (v) the SEC issues any stop order
suspending the effectiveness of any Registration Statement or initiates any
proceedings for that purpose; (vi) the Company receives notice of any
suspension of the qualification or exemption from qualification of any
Registrable Securities for sale in any jurisdiction, or the initiation or
threat of any proceeding for such purpose; or (vii) the financial
statements included in any Registration Statement become ineligible for
inclusion therein or any Registration Statement or Prospectus or other document
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.


 


(c)   Use its commercially reasonable efforts to
avoid the issuance of or, if issued, obtain the withdrawal of (i) any
order suspending the effectiveness of any Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, as soon as possible.


 


(d)   Promptly deliver to the Purchaser, without
charge, as many copies of the Prospectus or Prospectuses (including each form
of prospectus) and each amendment or supplement thereto as the Purchaser may
reasonably request.


 


(e)   (i) In the time and manner required by
each Trading Market, prepare and file with such Trading Market an additional
shares listing application covering all of the Registrable Securities; (ii) take
all steps necessary to cause such Shares to be approved for listing on each
Trading Market as soon as possible thereafter; and (iii) during the
Effectiveness Period, maintain the listing of such Shares on such Trading
Market.


 


(f)    Comply in all material respects with all rules and
regulations of the SEC applicable to the registration of the Shares.


 


7.3   Registration Expenses.  The Company shall pay all fees and expenses
incident to the performance of or compliance with Section 7 of this
Agreement by the Company, including without limitation (a) all
registration and filing fees and expenses, including without limitation those
related to filings with the SEC, any Trading Market, and in connection with
applicable state securities or blue sky laws, (b) printing expenses
(including without limitation 


 


19

















 


expenses of
printing certificates for Registrable Securities), (c) messenger,
telephone and delivery expenses, (d) fees and disbursements of counsel for
the Company, (e) fees and expenses of all other persons retained by the
Company in connection with the consummation of the transactions contemplated by
this Agreement, and (f) all listing fees to be paid by the Company to the
Trading Market.


 


7.4   Indemnification


 


(a)   Indemnification by the Company.  The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless the Purchaser, and
the affiliates, officers, directors, partners, members, agents and employees of
the Purchaser, to the fullest extent permitted by applicable law, from and
against any and all Losses, as incurred, arising out of or relating to any
untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any Prospectus or any form of Company prospectus or in
any amendment or supplement thereto or in any Company preliminary prospectus,
or arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
(in the case of any Prospectus or form of prospectus or supplement thereto, in
the light of the circumstances under which they were made) not misleading,
except to the extent, but only to the extent, that (A) such untrue
statements, alleged untrue statements, omissions or alleged omissions are based
solely upon information regarding the Purchaser furnished in writing to the
Company by the Purchaser  for use
therein, or to the extent that such information relates to the Purchaser or the
Purchaser’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved by the Purchaser expressly for use in the Registration
Statement, or (B) with respect to any prospectus, if the untrue statement
or omission of material fact contained in such prospectus was corrected on a
timely basis in the prospectus, as then amended or supplemented, if such
corrected prospectus was timely made available by the Company to the Purchaser,
and the Purchaser was advised in writing not to use the incorrect prospectus
prior to the use giving rise to Losses.


 


(b)   Indemnification by the Purchaser.  The Purchaser shall indemnify and hold harmless
the Company and the officers, directors, partners, members, agents and
employees of the Company, to the fullest extent permitted by applicable law,
from and against all Losses arising solely out of any untrue statement of a
material fact contained in the Registration Statement, any Prospectus, or any
form of prospectus, or in any amendment or supplement thereto, or arising out
of or relating to any omission of a material fact required to be stated therein
or necessary to make the statements therein (in the case of any Prospectus or
form of prospectus or supplement thereto, in the light of the circumstances
under which they were made) not misleading, but only to the extent that such
untrue statement or omission is contained in any information so furnished by
the Purchaser in writing to the Company specifically for inclusion in such
Registration Statement or such Prospectus or to the extent that (i) such
untrue statements or omissions are based solely upon information regarding the
Purchaser furnished to the Company by the Purchaser in writing expressly for
use therein, or (ii) to the extent that such information relates to
Purchaser or Purchaser’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved by the Purchaser expressly
for use in the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto.  In no event shall the liability of the
Purchaser hereunder be greater in amount than the dollar amount of the net
proceeds (after discounts and commissions but before expenses)


 


20

















 


received by the
Purchaser upon the sale of the Registrable Securities giving rise to such
indemnification obligation.


 


(c)   Conduct of Indemnification Proceedings.  If any Proceeding shall be brought or
asserted against any person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the person from whom
indemnity is sought (the “Indemnifying Party”) in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the payment of
all fees and expenses incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its obligations or liabilities pursuant to this Agreement, except (and only)
to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have proximately and materially adversely prejudiced
the Indemnifying Party.


 


An
Indemnified Party shall have the right to employ one separate counsel in any
such Proceeding and to participate in the defense thereof, but the fees and
expenses of such one separate counsel shall be at the expense of such
Indemnified Party or Parties unless:  (i) the
Indemnifying Party has agreed in writing to pay such fees and expenses; or (ii) the
Indemnifying Party shall have failed promptly to assume the defense of such
Proceeding and to employ counsel reasonably satisfactory to such Indemnified
Party in any such Proceeding; or (iii) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that a conflict of interest is likely to exist if the same counsel were
to represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
the reasonable fees and expenses of separate counsel shall be at the expense of
the Indemnifying Party).  It being
understood, however, that the Indemnifying Party shall not, in connection with
any one such Proceeding (including separate Proceedings that have been or will
be consolidated before a single judge) be liable for the fees and expenses of
more than one separate firm of attorneys at any time for all Indemnified
Parties, which firm shall be appointed by a majority of the Indemnified
Parties.  The Indemnifying Party shall
not be liable for any settlement of any such Proceeding effected without its
written consent, which consent shall not be unreasonably withheld.  No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such Proceeding.


 


(d)   Contribution.  If a claim for indemnification under Section 7.4(a) or 
(b) is unavailable to an Indemnified Party (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations.  The relative fault of
such Indemnifying Party and


 


21
















 


Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such Indemnifying
Party or Indemnified Party, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or
omission.  The amount paid or payable by a
party as a result of any Losses shall be deemed to include, subject to the
limitations set forth in Section 7.4(c), any reasonable attorneys’ or
other reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees
or expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms.


 


The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 7.4(d) were
determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the
immediately preceding paragraph. 
Notwithstanding the provisions of this Section 7.4(d), the
Purchaser shall not be required to contribute, in the aggregate, any amount in
excess of the amount by which the proceeds actually received by the Purchaser
from the sale of the Registrable Securities subject to the Proceeding exceeds
the amount of any damages that the Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.


 


The indemnity and contribution
agreements contained in this Section 7.4(d) are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties.


 


7.5   Rule 144; Rule 144A Reporting.  With a view to making available to the
Purchaser and Holders the benefits of certain rules and regulations of the
SEC which may permit the sale of the Registrable Securities to the public
without registration, the Company agrees to use its commercially reasonable
efforts to:


 


(a)   make and keep public information available,
as those terms are understood and defined in Rule 144(c)(1) or any
similar or analogous rule promulgated under the Securities Act, at all
times after the effective date of this Agreement;


 


(b)   file with the SEC, in a timely manner, all
reports and other documents required of the Company under the Exchange Act, and
if at any time the Company is not required to file such reports, make
available, upon the request of any Holder, such information necessary to permit
sales pursuant to Rule 144A (including the information required by Rule 144A(d)(4) and
the Securities Act); and


 


(c)   so long as the Purchaser or a Holder owns any
Registrable Securities, furnish to the Purchaser or such Holder forthwith upon
request:  a written statement by the
Company as to its compliance with the reporting requirements of Rule 144
under the Securities Act, and of the Exchange Act; a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as the Purchaser or Holder may reasonably


 


22

















 


request in availing
itself of any rule or regulation of the SEC allowing it to sell any such
securities without registration; and


 


(d)   to take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act.


 


7.6   Dispositions.  The Purchaser
agrees that it will comply with the prospectus delivery requirements of the
Securities Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement and shall sell its
Registrable Securities in accordance with the Plan of Distribution set forth in
the Prospectus.  The Purchaser further
agrees that, upon receipt of a notice from the Company of the occurrence of any
event of the kind described in Sections 7.2(b)(iv), (v), (vi) or (vii),
the Purchaser will discontinue disposition of such Registrable Securities under
the Registration Statement until the Purchaser is advised in writing by the
Company that the use of the Prospectus, or amended Prospectus, as applicable,
may be used.  The Company may provide
appropriate stop orders to enforce the provisions of this paragraph.


 


8.     Termination; Liabilities Consequent Thereon.  This Agreement may be terminated and the
transactions contemplated hereunder abandoned at any time prior to the Second
Closing by mutual agreement of the Company and the Purchaser.  Any termination pursuant to this Section 8
shall be without liability on the part of any party, unless such termination is
the result of a material breach of this Agreement by a party to this Agreement
in which case such breaching party shall remain liable for such breach
notwithstanding any termination of this Agreement; provided, however,
that if at the time of termination both the Second Closing Shares remain
unissued and the Make-Whole HSR Cash Payment remains unpaid, then the Company
shall pay the Make-Whole HSR Cash Payment to the Investor on the first business
day immediately following the termination.


 


9.     Miscellaneous Provisions.


 


9.1   Public Statements or Releases.  None of the parties to this Agreement shall
make, issue, or release any announcement, whether to the public generally, or
to any of its suppliers or customers, with respect to this Agreement or the
transactions provided for herein, or make any statement or acknowledgment of
the existence of, or reveal the status of, this Agreement or the transactions
provided for herein, without the prior consent of the other parties, which
shall not be unreasonably withheld or delayed, provided, that nothing in
this Section 9.1 shall prevent any of the parties hereto from making such
public announcements as it may consider necessary in order to satisfy its legal
obligations, but to the extent not inconsistent with such obligations, it shall
provide the other parties with an opportunity to review and comment on any
proposed public announcement before it is made.


 


9.2   Further Assurances.  Each party agrees to cooperate fully with the
other party and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
the other party to better evidence and reflect the transactions described
herein and contemplated hereby, and to carry into effect the intents and
purposes of this Agreement.


 


23

















 


9.3   Rights Cumulative.  Each and all of the various rights, powers
and remedies of the parties shall be considered to be cumulative with and in
addition to any other rights, powers and remedies which such parties may have
at law or in equity in the event of the breach of any of the terms of this
Agreement.  The exercise of any right,
power or remedy shall neither constitute the exclusive election thereof nor the
waiver of any other right, power or remedy available to such party.


 


9.4   Pronouns.  All pronouns or any variation thereof shall
be deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person, persons, entity or entities may require.


 


9.5   Notices.


 


(a)   Any notices, reports or other correspondence
(hereinafter collectively referred to as “correspondence”) required or
permitted to be given hereunder shall be sent by postage prepaid first class
mail, courier or telecopy or delivered by hand to the party to whom such
correspondence is required or permitted to be given hereunder.  Any notice or other communication delivered
by hand or mailed shall be deemed to have been delivered on the date on which
such notice or communication is delivered by hand, or in the case of certified
mail deposited with the appropriate postal authorities on the date when such
notice or communication is actually received, and in any other case shall be
deemed to have been delivered on the date on which such notice or communication
is actually received.


 


(b)  All
correspondence to the Company shall be addressed as follows:


 


Align Technology, Inc.


881 Martin Avenue


Santa Clara, CA 95050


Attention : President and Chief Executive Officer


Facsimile:  408-470-1010


 


with a copy to:


 


Wilson Sonsini Goodrich &
Rosati


650 Page Mill Road


Palo Alto, CA  94304


Attention:  Chris F. Fennell


Facsimile:
650-493-6811


 


(c)  All
correspondence to the Purchaser shall be addressed as follows:


 


Danaher Corporation


2099 Pennsylvania Avenue, NW


Washington, DC 20006


Attention:  General Counsel


Facsimile:  202-419-7676


 


with a copy to:


 


24

















 


Wachtell, Lipton, Rosen & Katz


51 West 52nd Street


New York, NY 10019


Attention:  Trevor S. Norwitz


Facsimile: 212-403-2333


 


9.6   Captions.  The captions and paragraph headings of this
Agreement are solely for the convenience of reference and shall not affect its
interpretation.


 


9.7   Severability.  Should any part or provision of this
Agreement be held unenforceable or in conflict with the applicable laws or
regulations of any jurisdiction, the invalid or unenforceable part or
provisions shall be replaced with a provision which accomplishes, to the extent
possible, the original business purpose of such part or provision in a valid
and enforceable manner, and the remainder of this Agreement shall remain
binding upon the parties hereto.


 


9.8   Governing Law; Injunctive Relief.


 


(a)   This Agreement shall be governed by and
construed in accordance with the internal and substantive laws of Delaware and
without regard to any conflicts of laws concepts which would apply the
substantive law of some other jurisdiction.


 


(b)   Each of the parties hereto acknowledges and
agrees that damages will not be an adequate remedy for any material breach or
violation of this Agreement if such material breach or violation would cause
immediate and irreparable harm (an “Irreparable Breach”).  Accordingly, in the event of a threatened or
ongoing Irreparable Breach, each party hereto shall be entitled to seek, in any
state or federal court in the State of Delaware, equitable relief of a kind
appropriate in light of the nature of the ongoing or threatened Irreparable
Breach, which relief may include, without limitation, specific performance or
injunctive relief.  Such remedies shall
not be the parties’ exclusive remedies, but shall be in addition to all other
remedies provided in this Agreement.


 


9.9   Amendments.  No provision of this agreement may be waived,
changed or modified, or the discharge thereof acknowledged orally, but only by
an agreement in writing signed by the party against which the enforcement of
any waiver, change, modification or discharge is sought.


 


9.10    Expenses.  Each party will bear its own costs and
expenses in connection with this Agreement.


 


9.11    Assignment.  This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns.  Except as otherwise set forth in this
Agreement, the Company may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchaser, except in
connection with a Change in Control of the Company.  The Purchaser may designate one of its
subsidiaries to hold the Shares and may assign its rights under this Agreement
to any person to whom the Purchaser assigns or transfers any Shares, provided (i) such
transferor agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company after


 


25

















 


such assignment, (ii) the
Company is furnished with written notice of the name and address of such
transferee or assignee, (iii)  such
transferee agrees in writing to be bound, with respect to the transferred
Shares, by the provisions hereof that apply to the Purchaser and (iv) such
transfer shall have been made in accordance with the applicable requirements of
this Agreement and with all laws applicable thereto.


 


9.12    Survival.  The respective representations and warranties
given by the parties hereto, and the other covenants and agreements contained
herein, shall survive the Second Closing Date and the consummation of the
transactions contemplated herein for a period of two years, without regard to
any investigation made by any party.


 


9.13    Entire Agreement.  This Agreement and the other Transaction
Documents constitute the entire agreement between the parties hereto respecting
the subject matter hereof and supersedes all prior agreements, negotiations,
understandings, representations and statements respecting the subject matter
hereof, whether written or oral.  


 


26

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement under seal as of the day and year
first above written.


 


 


	
   

  	
  Company

  
	
   

  	
   

  
	
   

  	
  ALIGN TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas M.
  Prescott

  
	
   

  	
  Name:   Thomas
  M. Prescott

  
	
   

  	
  Title:     President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchaser

  
	
   

  	
   

  
	
   

  	
  DANAHER CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert S. Lutz

  
	
   

  	
  Name:   Robert
  S. Lutz

  
	
   

  	
  Title:   
   VP - Chief Accounting Officer

  



 

















 


Schedule 3.6(b)


 


Any
matter disclosed in this Schedule 3.6(b) shall not be deemed an
admission or representation as to the materiality of the item so
disclosed.  No disclosure in this Schedule
3.6(b) relating to any possible breach or violation of any agreement,
law or regulation shall be construed as an admission or indication that any
such breach or violation exists or has actually occurred, and nothing in this Schedule
3.6(b) constitutes an admission of any liability or obligation of
Align Technology, Inc. (the “Company”) to any third party or shall
confer upon or give to any third party any remedy, claim, liability,
reimbursement, cause of action or other right.


 


This
Schedule 3.6(b) and the information and disclosures contained in
this Schedule 3.6(b) shall provide an exception to or otherwise
qualify the representations, warranties and covenants of Company contained in
the Stock Purchase Agreement dated August 16, 2009 between the Company and
Danaher Corporation specifically referred to in such disclosure and such other
representations, warranties and covenants, to the extent such disclosure shall
reasonably appear to be applicable to such other representations, warranties
and covenants.


 


On August 11, 2009, a purported class action
complaint was filed in the United States District Court for the Northern
District of California by Charles Wozniak against the Company and its president
and chief executive officer. The complaint alleges that, during a purported class
period of January 30, 2007 through October 24, 2007, the
defendants made false and misleading statements concerning the Company’s
business, operations and financial prospects in violation of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5
promulgated thereunder. The plaintiff in the action seeks damages of an
unspecified amount.


 

















 


Schedule 4.7


 


As of the date of this
Agreement, Purchaser owns 850,643 shares of Purchaser Common Stock.