As filed with the Securities and Exchange Commission on February 5, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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ALIGN TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3267295
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
851 MARTIN AVENUE
SANTA CLARA, CALIFORNIA 95050
(Address of principal executive offices) (Zip Code)
2001 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
ZIA CHISHTI
CHIEF EXECUTIVE OFFICER
ALIGN TECHNOLOGY, INC.
851 MARTIN AVENUE
SANTA CLARA, CALIFORNIA 95050
(Name and address of agent for service)
(408) 470-1000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Maximum Aggregate
Title of Securities to be Amount to be Offering Price Offering Amount of
Registered Registered(1) per Share(2) Price(2) Registration Fee
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2001 Stock Incentive Plan
Common Stock, $0.0001 par value 12,171,362 shares $13.69 $166,625,946 $ 41,657
Employee Stock Purchase Plan
Common Stock, $0.0001 par value 1,500,000 shares $13.69 $ 20,535,000 $ 5,134
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13,671,362 shares Aggregate Registration Fee $ 46,791
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 2001 Stock Incentive Plan or
the Employee Stock Purchase Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, (the "1993 Act") on the basis of the
average of the high and low selling prices per share of the Registrant's
Common Stock on February 1, 2001 as reported by the Nasdaq National
Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
ALIGN TECHNOLOGY, INC. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's prospectus filed with the Commission pursuant to Rule
424(b) promulgated under the 1933 Act filed with the Commission on
January 26, 2001, in connection with the Registrant's Registration
Statement No. 333-49932 on Form S-1, in which there is set forth the
audited financial statements for the Registrant's fiscal year ended
December 31, 1999; and
(b) The Registrant's Registration Statement No. 000-32259 on Form 8-A12G
filed with the Commission on January 25, 2001, pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the 1934 Act) in which
are described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court
to award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit the indemnification
under some circumstances for liabilities (including reimbursement for expenses
incurred) arising under the 1933 Act. Article VII of the Amended and Restated
Certificate of Incorporation of the Registrant provides that, subject to
Delaware law, its directors will not be personally liable for monetary damages
for breach of the directors' fiduciary duty as directors to the Registrant and
its stockholders. This provision does not eliminate the directors' fiduciary
duty, and in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law.
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The provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
The Registrant expects to enter into indemnification agreements with its
directors. The indemnification agreements provide the Registrant's directors
with further indemnification to the maximum extent permitted by the Delaware
General Corporation Law. The Registrant expects to obtain insurance covering
directors and officers for claims they may otherwise be required to pay or for
which the Registrant is required to indemnify them.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 000-32259 on Form 8-A12G,
together with the exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(b) to this Registration Statement.
5 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Public
Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 2001 Stock Incentive Plan.
99.2 Employee Stock Purchase Plan.
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement: (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 Act each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the Registrant's 2001
Stock Incentive Plan, and/or the Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 Act and is, therefore, unenforceable. In the event that a claim for
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indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Santa Clara, State of California on
this 5th day of February, 2001.
ALIGN TECHNOLOGY, INC.
By: /s/ ZIA CHISHTI
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Zia Chishti
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Align Technology, Inc., a
Delaware corporation, do hereby constitute and appoint Zia Chishti and
Stephen Bonelli and each of them, the lawful attorneys-in-fact and agents with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ ZIA CHISHTI Chief Executive Officer and February 5, 2001
- ------------------------------ Chairman of the Board (Principal
Zia Chishti Executive Officer)
/s/ STEPHEN BONELLI Chief Financial Officer and February 5, 2001
- ------------------------------ Vice President, Finance (Principal Financial
Stephen Bonelli and Accounting Officer)
/s/ KELSEY WIRTH President February 5, 2001
- ------------------------------
Kelsey Wirth
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SIGNATURE TITLE DATE
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/s/ Brian Dovey Director February 5, 2001
- ------------------------------
Brian Dovey
/s/ Joseph Lacob Director February 5, 2001
- ------------------------------
Joseph Lacob
/s/ Mark Logan Director February 5, 2001
- ------------------------------
Mark Logan
/s/ H. Kent Bowen Director February 5, 2001
- ------------------------------
H. Kent Bowen
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EXHIBIT INDEX
Exhibit
Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-32259 on Form
8-A12G, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(b) to this
Registration Statement.
5 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Public
Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 2001 Stock Incentive Plan.
99.2 Employee Stock Purchase Plan.