EXHIBIT 10.4


AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”)
is entered into as of April 5, 2007, by and between Thomas M. Prescott (the “Executive”)
and Align Technology, Inc., a Delaware corporation (the “Company”).  This Agreement supersedes and replaces in its
entirety that certain Amended and Restated Employment Agreement dated April 19,
2005 between the Executive and the Company.


1.     Duties and Scope of Employment.


(a)   Position.  For the
term of his employment under this Agreement (“Employment”), the Company agrees
to employ the Executive in the position of President and Chief Executive
Officer.  Executive shall diligently, in
good faith and to the best of his abilities perform all duties incident to his
position and as are determined and assigned to him from time to time by the
Board of Directors of the Company (the “Board”).


(b)   Obligations to the Company. 
During the term of his Employment, the Executive shall devote his 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 Board, provided, however, that the Executive
may, without the approval of the Board, 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 he is under no obligations or
commitments, whether contractual or otherwise, that are inconsistent with his
obligations under this Agreement.  The
Executive represents and warrants that he will not use or disclose, in
connection with his 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 his 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 he 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 his services a base salary at a
gross annual rate of $480,000, 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 him with an opportunity to earn a potential annual bonus













equal to 100.0% 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 Board
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.  The per share exercise price of the option
will be equal to the per share fair market value of the common stock on the
date of grant, as determined by the Board of Directors.  The term of such option shall be ten (10)
years, subject to earlier expiration in the event of the termination of the
Executive’s Employment.  The Executive
shall vest in 25% of the option shares after the first twelve (12) months of
continuous service and shall vest in the remaining option shares in equal
monthly installments over the next three (3) years of continuous service.  The grant of each such option shall 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 his Employment, the
Executive shall be eligible for 17 days vacation per year, in accordance with
the Company’s standard policy for senior management, as it may be amended from
time to time.  During the term of his
Employment, the Executive shall be eligible to participate in any employee
benefit plans maintained by the Company for senior management, subject in each
case to the generally applicable terms and conditions of the plan in question
and to the determinations of any person or committee administering such plan.


4.     Business Expenses. 
During the term of his Employment, the Executive shall be authorized to
incur necessary and reasonable travel, entertainment and other business
expenses in connection with his 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



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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 his Employment by
giving the Company fourteen (14) days advance notice in writing.  The Executive’s Employment shall terminate
automatically in the event of his death or Permanent Disability.  For purposes of this Agreement, “Permanent
Disability” shall mean that the Executive has become so physically or mentally
disabled as to be incapable of satisfactorily performing the duties under this
Agreement for a period of one hundred eighty (180) consecutive calendar days.


(c)   Rights Upon Termination. 
Except as expressly provided in Section 6, upon the termination of the
Executive’s Employment pursuant to this Section 5, the Executive shall only be
entitled to the compensation, benefits and reimbursements described in Sections
2, 3 and 4 for the period preceding the effective date of the termination.  The payments under this Agreement shall fully
discharge all responsibilities of the Company to the Executive.


(d)   Termination of Agreement. 
The termination of this Agreement shall not limit or otherwise affect
any of the Executive’s obligations under Section 7.


6.     Termination Benefits.


(a)   General Release.  Any
other provision of this Agreement notwithstanding, Subsections (b), (c) or (d)
below shall not apply unless the Executive (i) has executed a general release
in a form prescribed by the Company of all known and unknown claims that he may
then have against the Company or persons affiliated with the Company, and (ii)
has agreed not to prosecute any legal action or other proceeding based upon any
of such claims.


(b)   Termination without Cause. 
If, during the term of this Agreement, the Executive’s Employment is terminated
for any reason other than Cause, and not in connection with a Change of Control
as addressed by Subsection (c) below, then 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:  (i) the then current year’s Target Bonus
prorated for the number of days of Executive is employed in said year; (ii) twenty-four
(24) months’ Base Salary; and (iii) the greater of one hundred fifty percent (150%)
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 as to all shares under all outstanding options
and restricted stock units; and


(ii)           if
within twelve (12) months following the occurrence of the Change of Control,
one of the following events occurs:



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(A) the
Executive’s employment is terminated by the Company without Cause; or


(B) the Executive resigns for Good Reason


then 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) twenty-four (24) months’ Base Salary; and (iii) the greater of one
hundred fifty percent (150%) 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
his health insurance coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (“COBRA”)
following the termination of his Employment, then the Company shall pay the
Executive’s monthly premium under COBRA until the earliest of (i) eighteen (18)
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 his
duties for the Company that adversely affects the business or affairs of the
Company; or


(v)           Intentional
misconduct or the Executive’s failure to satisfactorily perform his/her duties
after having received written notice of such failure and at least thirty (30)
days to cure such failure.


The foregoing shall not be deemed an exclusive list of
all acts or omissions that the Company may consider as grounds for the
termination of the Executive’s Employment.


(f)    Definition of ”Good Reason.”  For all
purposes under this Agreement, the Executive’s resignation for “Good Reason”
shall mean the Executive’s resignation within ninety (90) days the occurrence
of any one or more of the following events:



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


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


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


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


(g)   Definition of “Change of Control.”  For all
purposes under this Agreement, “Change of Control” shall mean any of the
following:


(i)            a
sale of all or substantially all of the assets of the Company;


(ii)           the
acquisition of more than fifty percent (50%) of the common stock of the Company
(with all classes or series thereof treated as a single class) by any person or
group of persons;


(iii)          a
reorganization of the Company wherein the holders of common stock of the
Company receive stock in another company (other than a subsidiary of the
Company), a merger of the Company with another company wherein there is a fifty
percent (50%) or greater change in the ownership of the common stock of the
Company as a result of such merger, or any other transaction in which the
Company (other than as the parent corporation) is consolidated for federal
income tax purposes or is eligible to be consolidated for federal income tax
purposes with another corporation; or


(iv)          in
the event that the common stock is traded on an established securities market,
a public announcement that any person has acquired or has the right to acquire
beneficial ownership of more than fifty percent (50%) of the then-outstanding
common stock and for this purpose the terms “person” and “beneficial ownership”
shall have the meanings provided in Section 13(d) of the Securities and
Exchange Act of 1934 or related rules promulgated by the Securities and
Exchange Commission, or the commencement of or public announcement of an
intention to make a tender offer or exchange offer for more than fifty percent
(50%) of the then outstanding Common Stock.


(h)   Section 409A.
Notwithstanding anything to the contrary in this Agreement, any cash severance
payments otherwise due to Executive pursuant to this Section 6 or
otherwise on or within the six-month period following Executive’s termination
will accrue during such six-month period and will become payable in a lump sum
payment on the date six (6) months and one (1) day following the date of
Executive’s termination, provided, that such cash severance payments will be
paid earlier, at the times and on the terms set forth in the applicable
provisions of this Section 6, if the Company reasonably determines that
the imposition of additional tax under Section 409A of the Internal Revenue
Code of



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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 ad 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. 
The Executive has entered into a Proprietary Information and Inventions
Agreement with the Company, dated March 27, 2002, the terms of which are 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 him at the home
address which he most recently communicated to the Company in writing.  In the case of the Company, mailed notices shall
be addressed to its corporate headquarters, and all notices shall be directed
to the attention of its Secretary.


(b)   Modifications and Waivers. 
No provision of this Agreement shall be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed
by the Executive and by an authorized officer of the Company (other than the
Executive).  No waiver by either party of
any breach of, or of compliance with, any condition or



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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,
except for that certain Employment Agreement dated March 27, 2002 between the
Executive and the Company which is superseded and replaced in its entirety
hereby.  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 (except provisions governing
the choice of law).


(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.  The only claims not covered by this Agreement
to arbitrate disputes are:  (i) claims
for benefits under the unemployment insurance benefits; (ii) claims for workers’
compensation benefits under any of the Company’s workers’ compensation
insurance policy or fund; (iii) claims arising from or relating to the
non-competition provisions of this Agreement; and (iv) claims concerning the
validity, infringement, ownership, or enforceability of any trade secret,
patent right, copyright, trademark or any other intellectual property right,
and any claim pursuant to or under any existing confidential/proprietary/trade
secrets information and inventions agreement(s) such as, but not limited to,
the Proprietary Information and Inventions Agreement.  With respect to such disputes, they shall not
be subject to arbitration; rather, they will be resolved pursuant to applicable
law.


Arbitration shall be conducted in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association (“AAA Rules”), provided, however, that the arbitrator
shall allow the discovery authorized by California Code of Civil
Procedure section 1282, et seq., or any
other discovery required by applicable law in arbitration proceedings,
including, but not limited to, discovery available under the applicable



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state and/or federal arbitration statutes.  Also, to the extent that any of the AAA Rules
or anything in this arbitration section conflicts with any arbitration
procedures required by applicable law, the arbitration procedures required by
applicable law shall govern.


Arbitration will be conducted in Santa 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.]



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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.


	
  

  	
  THOMAS M.
  PRESCOTT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas M.
  Prescott

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALIGN
  TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Roger E.
  George

  	
   

  
	
   

  	
  Name:  Roger E. George

  
	
   

  	
  Title:

  	
  Vice-President,
  Legal and Corporate Affairs, General Counsel and Corporate Secretary

  
				



 



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