Exhibit 10.5


 


EMPLOYMENT AGREEMENT


 


This
EMPLOYMENT AGREEMENT is executed as of June 16, 2008 entered into
effective as of June 16, 2008 by and between DANA CAMBRA (the “Executive”) and Align Technology, Inc., a Delaware
corporation (the “Company”), with
effect as of Executive’s first day of employment with the Company.


 


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,
Research & Development.  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, Research & Development 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.


 


(d)   Commencement Date.  It is expected that Executive will commence
full-time Employment on or before June 16, 2008.


 


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 $279,000, 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.


 


(d)   One Time Bonus and
Relocation Assistance.  The Company
agrees to provide Executive with a furnished two bedroom apartment in
California for up to six (6) months, which may be extended upon the CEO’s
approval. Executive will also be granted a sign on bonus of $100,000.  This bonus payment will be added to and
included in Executive’s first regularly scheduled paycheck, and is subject to
all normal and appropriate payroll withholdings. In the event Executive
voluntarily leaves the Company within the first twelve  months of his employment, Executive will be
responsible for returning 100% of the sign on bonus.   In the event Executive voluntarily leaves
the Company after twelve months but prior to twenty four months of his
employment, Executive will be responsible for returning a portion of the sign
on bonus as follows:  For each full month
of full-time employment, the Company will forgive 1/24 of the sign on bonus and
the remaining unforgiven portion will be due and payable to the Company on
demand.


 


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 


 


2

















 


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 


 


3

















 


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 


 


4

















 


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 


 


5

















 


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 


 


6

















 


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 entered into a Proprietary Information and Inventions Agreement with the
Company, attached to this Agreement as Exhibit A, which is incorporated
herein by reference.


 


8.     Successors.


 


(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.


 


7

















 


(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, 


 


8

















 


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.


 


[The remainder of this page intentionally
left blank.]


 


9

















 


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/ Dana Cambra

  
	
   

  	
   

  
	
   

  	
  DANA CAMBRA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALIGN TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas M. Prescott

  
	
   

  	
  By:  Thomas M. Prescott

  
	
   

  	
  Title:  President and CEO

  



 


10
















 


EXHIBIT A


 


PROPRIETARY INFORMATION AND INVENTIONS
AGREEMENT


(ATTACHED)


 


11

















 


ALIGN TECHNOLOGY, INC.


 


EMPLOYEE PROPRIETARY INFORMATION


AND INVENTIONS AGREEMENT


 


In consideration of my employment or continued
employment by ALIGN TECHNOLOGY, INC. (the “Company”), and the compensation now and hereafter paid to
me, I hereby agree as follows:


 


1.             PROPRIETARY
INFORMATION.  At all times during my employment and
thereafter, I will hold in strictest confidence and will not disclose, use,
lecture upon or publish any of the Company’s Proprietary Information (defined
below), except as such disclosure, use or publication may be required in
connection with my work for the Company, or unless an officer of the Company
expressly authorizes such in writing.  “Proprietary Information” shall mean any and all confidential
and/or proprietary knowledge, data or information of the Company, its
affiliated entities, customers and suppliers, including but not limited to
information relating to products, processes, know-how, designs, formulas,
methods, developmental or experimental work, improvements, discoveries,
inventions, ideas, source and object codes, data, programs, other works of
authorship, and plans for research and development.  During my employment by the Company I will
not improperly use or disclose any confidential information or trade secrets,
if any, of any former employer or any other person to whom I have an obligation
of confidentiality, and I will not bring onto the premises of the Company any
unpublished documents or any property belonging to any former employer or any
other person to whom I have an obligation of confidentiality unless consented
to in writing by that former employer or person.


 


2.             Assignment of
Inventions.


 


2.1.         Proprietary Rights.  The
term “Proprietary Rights” shall
mean all trade secret, patent, copyright, mask work and other intellectual
property rights throughout the world.


 


2.2.         Inventions. The term “Inventions” shall mean all trade
secrets, inventions, mask works, ideas, processes, formulas, source and object
codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques.


 


2.3.         Prior Inventions. I have set forth on Exhibit B (Previous
Inventions) attached hereto a complete list of all Inventions that I have,
alone or jointly with others, made prior to the commencement of my employment
with the Company that I consider to be my property or the property of third
parties and that I wish to have excluded from the scope of this Agreement
(collectively referred to as “Prior Inventions”).  If no such disclosure is attached, I
represent that there are no Prior Inventions. 
If, in the course of my employment with the Company, I incorporate a
Prior Invention into a Company product, process or machine, the Company is
hereby granted and shall have a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license (with rights to sublicense through multiple tiers
of sublicensees) to make, have made, modify, use and sell such Prior
Invention.  Notwithstanding the
foregoing, I agree that I will not incorporate, or permit to be incorporated,
Prior Inventions in any Company Inventions without the Company’s prior written
consent.


 


2.4.         Assignment of Inventions. 
Subject to Section 2.6 and except for those Inventions which I can
prove qualify fully under the provisions of California Labor Code 2870 (as set
forth in Exhibit A), I hereby assign and
agree to assign in the future (when any such Inventions or Proprietary Rights
are first reduced to practice or first fixed in a tangible medium, as
applicable) to the Company all my right, title and interest in and to any and
all Inventions (and all Proprietary Rights with respect thereto).  I will, at the Company’s request, promptly
execute a written assignment to the Company of any such Company Invention, and
I will preserve any such Invention as part of the Proprietary Information of
the Company (the “Company Inventions”).


 


2.5.         Obligation to Keep
Company Informed.  I will promptly and fully disclose in writing
to the Company all Inventions during my employment and for one (1) year
after my employment, including any that may be covered by Section 2870.  I agree to assist in every proper way 


 


12

















 


and to execute those documents and take such acts as are reasonably
requested by the Company to obtain, sustain and from time to time enforce
patents, copyrights and other rights and protections relating to Inventions in
the United States or any other country.


 


2.6.         Government or Third
Party.  I also agree to assign all my right, title
and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.


 


3.             NO CONFLICTING
OBLIGATION.  I REPRESENT that
my performance of all the terms of this Agreement and as an employee of the
Company does not and will not breach any agreement to keep in confidence
information acquired by me in confidence or in trust prior to my employment by
the Company.  I have not entered into,
and I agree I will not enter into, any agreement either written or oral in
conflict herewith.


 


4.             RETURN OF COMPANY
DOCUMENTS.  Upon termination of my employment with the
Company for any reason whatsoever, voluntarily or involuntarily, and at any
earlier time the Company requests, I will deliver to the person designated by
the Company all originals and copies of all documents and other property of the
Company in my possession, under my control or to which I may have access.  I will not reproduce or appropriate for my
own use, or for the use of others, any property, Proprietary Information or
Company Inventions.


 


5.             LEGAL AND EQUITABLE
REMEDIES.  Because my services are personal and unique
and because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or
other equitable relief, without bond and without prejudice to any other rights
and remedies that the Company may have for a breach of this Agreement.


 


6.             NOTICES.  Any
notices required or permitted hereunder shall be given to the appropriate party
at the address specified below or at such other address as the party shall
specify in writing.  Such notice shall be
deemed given upon personal delivery to the appropriate address or if sent by
certified or registered mail, three (3) days after the date of mailing.


 


7.             EMPLOYMENT.  I
agree and understand that nothing in this Agreement shall confer any right with
respect to continuation of employment by the Company, nor shall it interfere in
any way with my right or the Company’s right to terminate my employment at any
time, with or without cause.


 


GENERAL PROVISIONS.  This Agreement will be governed
by and construed according to the laws of the State of California, as such laws
are applied to agreements entered into and to be performed entirely within
California between California residents. 
In case any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.  This Agreement will be binding
upon my heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its assigns.  The provisions of this Agreement shall
survive the termination of my employment and the assignment of this Agreement
by the Company to any successor in interest or other assignee.  No waiver by the Company of any breach of
this Agreement shall be a waiver of any preceding or succeeding breach.  No waiver by the Company of any right under
this Agreement shall be construed as a waiver of any other right.  The obligations pursuant to Sections 1 and 2
of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no
other agreement governs nondisclosure and assignment of inventions during such
period.  This Agreement is the final,
complete and exclusive agreement of the parties with respect to the subject
matter hereof and supersedes and merges all prior discussions between us.  No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing and signed by the party to be charged.  Any subsequent change or changes in my
duties, salary or compensation will not affect the validity or scope of this
Agreement.


 


13

















 


This Agreement shall be effective as of the first day of my employment
with the Company.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Signature)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Printed Name)

  	
   

  
	
   

  	
   

  
	
  ACCEPTED AND AGREED TO:

  	
   

  
	
  ALIGN TECHNOLOGY, INC.

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
							



 


14

















 


EXHIBIT A


 


LIMITED
EXCLUSION NOTIFICATION


 


THIS IS TO NOTIFY you
in accordance with Section 2872 of the California Labor Code that the
foregoing Agreement between you and the Company does not require you to assign
or offer to assign to the Company any invention that you developed entirely on
your own time without using the Company’s equipment, supplies, facilities or
trade secret information except for those inventions that either:


 


1.      Relate
at the time of conception or reduction to practice of the invention to the
Company’s business, or actual or demonstrably anticipated research or
development of the Company;


 


2.      Result
from any work performed by you for the Company.


 


To the extent a provision in the foregoing
Agreement purports to require you to assign an invention otherwise excluded
from the preceding paragraph, the provision is against the public policy of
this state and is unenforceable.


 


This limited exclusion does not apply to any patent or invention covered
by a contract between the Company and the United States or any of its agencies
requiring full title to such patent or invention to be in the United States.


 


I ACKNOWLEDGE RECEIPT of
a copy of this notification.


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
              (PRINTED
  NAME OF EMPLOYEE)

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSED BY:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (PRINTED NAME OF REPRESENTATIVE)

  	
   

  
				



 


A-1

















 


EXHIBIT B


 


	
  TO:

  	
  ALIGN TECHNOLOGY, INC.

  
	
   

  	
   

  
	
  FROM:

  	
   

  	
   

  
	
   

  	
   

  
	
  DATE:

  	
   

  	
   

  
	
   

  	
   

  
	
  SUBJECT:

  	
  Previous Inventions

  
				



 

















 


1.             Except as listed in Section 2
below, the following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by ALIGN
TECHNOLOGY, INC. (the “Company”) that
have been made or conceived or first reduced to practice by me alone or jointly
with others prior to my engagement by the Company:


 


o      No inventions or improvements.


 


o      See below:


 


 


 


 


o                          Additional
sheets attached.


 


2.             Due to a prior confidentiality
agreement, I cannot complete the disclosure under Section 1 above with respect
to inventions or improvements generally listed below, the proprietary rights
and duty of confidentiality with respect to which I owe to the following
party(ies):


 


 


	
  Invention or Improvement

  	
   

  	
  Party(ies)

  	
   

  	
  Relationship

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


o            Additional sheets attached.


 


2