Exhibit 10.2


 


EMPLOYMENT
AGREEMENT


 


This EMPLOYMENT AGREEMENT is
effective as of March 3, 2009 by and between SHEILA TAN (the “Executive”) and Align Technology, Inc., a Delaware
corporation (the “Company”), with
effect as of the date resolved by the Board of Directors of Align Technology, Inc.
in a meeting held February 26, 2009, that Executive’s appointment as an
executive officer of the Company is effective.


 


1.     Duties
and Scope of Employment.


 


(a)   Position.  For the
term of the Executive’s employment under this Agreement (“Employment”),
the Company agrees to employ the Executive in the position of Vice President,
Marketing and Chief Marketing Officer. 
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 Executive’s
abilities perform such other services consistent with Executive’s position as Vice
President, Marketing and Chief Marketing Officer as may from time to time be
assigned to Executive by the CEO.


 


(b)   Obligations to the Company. 
During the term of the Executive’s Employment, the Executive shall
devote Executive’s 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 Executive is under no obligations or commitments, whether
contractual or otherwise, that are inconsistent with Executive’s obligations
under this Agreement.  The Executive
represents and warrants that the Executive will not use or disclose, in
connection with the Executive’s 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 the Executive’s
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 the Executive has returned all property and confidential
information belonging to any prior employers.


 


2.     Cash
and Incentive Compensation.


 


(a)   Salary.  The Company
shall pay the Executive as compensation for the Executive’s services a base
salary at a gross annual rate of $275,000, 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.”


 





















 


(b)   Target Bonus.  The
Executive shall be eligible to participate in an annual bonus program that will
provide the Executive 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.


 


(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
in all respects, including the terms described herein.  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 accordance
with the vesting provisions approved by the Compensation Committee of the Board
of Directors, which vesting is currently 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 currently vests 25% on the one year anniversary of the date of
grant with 25% vesting yearly 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 the Executive’s Employment, the Executive shall be eligible to accrue
17 days vacation per year on a pro-rata basis throughout the year, in
accordance with the Company’s standard policy for senior management, including
provisions with respect to maximum accrual, as it may be amended from time to
time.  During the term of the Executive’s
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,
and to the right of the Company to make changes in such plans from time to
time.


 


4.     Business
Expenses.  During the term of the
Executive’s Employment, 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.


 


(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.


 


(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 the
Executive’s Employment by giving the Company fourteen (14) days advance notice
in writing.  The Executive’s Employment
shall terminate automatically in the event of Executive’s 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 essential functions of Executive’s position and 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.


 


(a)   General Release Agreement. 
Any other provision of this Agreement notwithstanding, Subsections (b), (c) or
(d) below shall not apply unless the Executive (i) has, within the
time prescribed by the Company, executed a General Release Agreement in a form
prescribed by the Company by which the Executive waives and releases with
irrevocable effect all known and unknown claims that the Executive may then
have against the Company or persons affiliated with the Company which are
waivable under applicable law, and (ii) pursuant to such General Release
Agreement has agreed not to prosecute any legal action or other proceeding
based upon any of such claims to the full extent permissible under applicable
law, and (iii) pursuant to such General Release Agreement has acknowledged
Executive’s continuing obligations under this Agreement and the Proprietary
Information and Inventions Agreement referenced below.


 


(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 the Executive resigns for
Good Reason, then:


 


(i)            as of the date of termination of Employment, Executive
shall immediately conditionally vest in an additional number of shares under
all outstanding options and restricted stock units as if the Executive had
performed twelve (12) additional months of service, subject to Executive’s
execution of the General Release Agreement described above with irrevocable
effect and suspension of exercise rights with respect to such conditionally
vested shares until such execution;


 


(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
the Executive had performed twelve (12) additional months of service; and


 


(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
conditionally vest as to all shares under all outstanding options and
restricted stock units, subject to Executive’s execution of the General Release
Agreement described above with irrevocable effect and suspension of exercise
rights with respect to such conditionally vested shares until such execution,
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 the Executive’s health insurance coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) following the
termination of Employment, then the Company shall pay the Executive’s monthly
premium under COBRA for COBRA coverage for the Executive 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;


 


(v)           Intentional misconduct; or


 


(vi)          the Executive’s failure to satisfactorily perform the
Executive’s 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, subject
to the notice and cure period described below, the Executive’s resignation for “Good
Reason” shall mean the Executive’s resignation upon written notice to the
Company delivered within ninety (90) days after the occurrence of any one or more
of the following events and with an effective date within such ninety- (90-)
day period:


 


(i)            The Executive’s position, authority or responsibilities
being significantly reduced;


 


(ii)           The Executive being asked to relocate the Executive’s
principal place of employment such that the Executive’s commuting distance from
the Executive’s residence prior to such relocation is increased by over
thirty-five (35) miles;


 


(iii)          The Executive’s annual Base Salary or bonus being materially
reduced; or


 


(iv)          The Executive’s benefits being materially reduced.


 


The Executive shall provide
written notice to the Company at least thirty (30) days prior to the effective
date of Executive’s resignation, identifying the event or events Executive
claims constitute Good Reason and describing in reasonable detail the fact
supporting the claim.  The Company shall
have at least thirty (30) days to take action to remedy the condition claimed
by the Executive as Good Reason, but shall have no obligation to take such
action.  In the event the Company
remedies the condition then Good Reason shall be deemed not to exist.  At the expiration of the remedial period and
prior to the effective date of Executive’s resignation, Executive shall provide
written notice to the Company, stating whether Executive (A) withdraws
Executive’s resignation based on the Company’s remedy of the condition, (B) chooses
to resign anyway notwithstanding such remedy, or (C) claims the condition
has not been remedied and chooses to resign based on a claim of Good Reason.  In the absence of such notice, Executives
resignation shall become effective and Executive shall be deemed to have
resigned without Good Reason.


 


(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.


 


7.     Non-Solicitation
and Non-Disclosure.


 


(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 previously entered into
a Proprietary Information and Inventions Agreement with the Company, which is
incorporated herein by reference.


 





















 


8.     Successors.


 


(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.


 


(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 the Executive at the home address which
the Executive 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.


 


(e)   Choice of Law.  The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
California without applications of its provisions with respect to choice of law,
except for the Arbitration provision in paragraph 11, below, which is governed
by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.


 


(f)    Severability.  The
invalidity or unenforceability of any provision or provisions of this Agreement
shall 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.  Nothing in this Agreement
shall prohibit any party from seeking provisional remedies in court in aid of
arbitration including temporary restraining orders, preliminary injunctions and
other provisional remedies pursuant to California Code of Civil Procedure
section 1281.8 (or any successor statutes) and/or applicable federal law.   Likewise, nothing in this Agreement shall
should be interpreted as restricting or prohibiting Employee from filing a
charge or complaint with a federal, state, or local governmental or
administrative agency charged with investigating and/or prosecuting charges or
complaints under any applicable federal, state or municipal law or regulation.
Claims or disputes arising under any law that permits resort to an
administrative or governmental agency notwithstanding an agreement to arbitrate
those claims may be brought before that agency as permitted by applicable law,
including, without limitation, claims or charges brought before the National
Labor Relations Board, the U.S. Equal Employment Opportunity Commission, the
United States Department of Labor, the California Workers’ Compensation Appeals
Board, and the California Employment Development Department. Nothing in this
Agreement shall be deemed to preclude a party from bringing an administrative
claim before any agency in order to fulfill the party’s obligation to exhaust
administrative remedies before making a claim in arbitration


 


This arbitration section of
the Agreement shall be exclusively governed by and construed and enforced
pursuant to the substantive and procedural provisions of the Federal
Arbitration Act, 9 U.S.C. § 1 (“FAA”), and not individual state substantive and
procedural laws regarding enforcement of arbitration agreements.  A neutral arbitrator shall be selected by
mutual agreement of the parties from the then-available arbitrators associated
with ADR Services, Judicate West, ARC or such other arbitration service that
the parties may mutually agree upon.  If,
for any reason, the parties are unable to mutually agree upon the selection of
an arbitrator, either party may apply to a court of competent jurisdiction for
appointment of a neutral arbitrator. The court shall then appoint a retired
judge to serve as the arbitrator, who shall act under this Policy with the same
force and effect as if the parties had selected the arbitrator by mutual
agreement.The arbitrator shall allow the
parties to take discovery and bring motions as authorized by the forum
state’s procedural rules, 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 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 Clara County, California or, if the Executive does not
reside within 100 miles of Santa Clara 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.


 

















 


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.


 


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blank.]


 

















 


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.


 


 


	
   

  	
  /s/ Sheila Tan

  
	
   

  	
  Sheila
  Tan

  
	
   

  	
   

  
	
   

  	
  ALIGN
  TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Thomas M. Prescott

  
	
   

  	
  By:
  Thomas M. Prescott

  
	
   

  	
  Title:
  President and CEO