Exhibit 10.1
SHELTER AGREEMENT
ALIGN TECHNOLOGY, INC.
AND
INTERNATIONAL MANUFACTURING
SOLUTIONS OPERACIONES, S. DE R.L.
IMS/ALIGN Shelter Agreement
December 22, 2005
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
TABLE OF CONTENTS / EXHIBITS
1. PRODUCTS. 1
2. COMPONENTS. 2
2.1 CUSTOMS ADMINISTRATIVE SERVICES. 2
2.2 CUSTOMS BROKERAGE SERVICES. 2
3. EQUIPMENT. 2
3.1 COMMODATUM AGREEMENT. 2
3.2 INSTALLATION OF EQUIPMENT 3
3.3 USE OF EQUIPMENT. 3
3.4 CARE OF EQUIPMENT. 3
3.5 OWNERSHIP. 3
3.6 POSSESSION. 3
3.7 INSURANCE. 4
3.8 REPAIRS AND REPLACEMENTS. 4
3.9 TAXES. 4
4. PREMISES. 4
4.1 LOCATION. 4
4.2 PREMISES RENTAL. 4
4.3 AREA OF PREMISES. 8
4.4 PREMISES CONDITION. 8
4.5 PREMISES INSURANCE. 8
4.6 MAINTENANCE AND REPAIRS. 8
4.7 LEASE. 8
4.8 COMMUNICATIONS 8
4.9 WAREHOUSE FACILITIES. 9
5. MANUFACTURING SUPPORT SERVICES 9
5.1 EVALUATIONS 10
5.2 PROGRAM MANAGER. 10
5.3 ADDITIONAL SERVICES. 11
5.4 SECURITY. 11
5.5 INSURANCE. 11
IMS/ALIGN Shelter Agreement
December 22, 2005
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
TABLE OF CONTENTS / EXHIBITS
6. LABOR 11
6.1 EMPLOYMENT, TERMINATION AND CONDITIONS OF EMPLOYMENT. 11
6.2 LABOR RATES. 11
6.3 OVERTIME. 12
6.4 TRAINING. 12
6.5 EMPLOYEE EXCLUSIVITY. 12
6.6 USE OF PART-TIME IMS EMPLOYEES. 12
6.7 ALIGN PERSONNEL. 12
6.8 WORK VISAS. 12
6.9 CROSS-HIRING OF EMPLOYEES. 12
6.10 PRODUCTION REQUIREMENTS - EMPLOYEES. 13
6.11 INVOICING AND OTHER CHARGES. 13
6.12 REIMBURSABLE EXPENSE 13
6.13 WAGE AND TAX ADJUSTMENT. 13
6.14 FORM OF PAYMENT. 14
6.15 TERMS OF PAYMENT. 14
6.16 COST REDUCTIONS; MOST FAVORED CUSTOMER. 14
7. TECHNICAL INFORMATION. 14
7.1 IP WARRANTY. 14
7.2 PRE-EXISTING MATERIALS. 14
7.3 ALIGN NAME. 15
7.4 NON-DISCLOSURE. 15
8. REPRESENTATIONS. 15
9. TERM. 16
9.1 TERMINATION. 16
9.2 TERMINATION BY ALIGN. 17
9.3 TERMINATION AT WILL. 17
9.4 TRANSITION PERIOD. 17
9.5 ALIGN'S OBLIGATIONS UPON TERMINATION. 18
9.6 IMS' OBLIGATION UPON TERMINATION. 18
9.7 SURVIVAL. 18
IMS/ALIGN Shelter Agreement
December 22, 2005
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
TABLE OF CONTENTS / EXHIBITS
10. RETURN OF PROPERTY. 18
11. TRANSPORTATION TO/FROM MEXICO. 18
12. CUSTOMS & DUTIES. 18
12.1 MEXICAN CUSTOMS DOCUMENTATION. 19
12.2 U.S. CUSTOMS DOCUMENTATION. 19
13. RELATIONSHIP OF THE PARTIES. 19
14. INDEMNITY GENERAL. 19
14.1 IMS' INDEMNITY. 19
14.2 ALIGN'S INDEMNITY. 19
14.3 INDEMNITY PROCEDURES. 20
15. NOTICES. 20
16. ASSIGNMENT. 20
17. WAIVER. 20
18. SEVERABILITY. 20
19. GOVERNING LAW. 20
20. FORCE MAJEURE. 21
21. COUNTERPARTS. 21
22. ENTIRE AGREEMENT. 21
23. INTERNATIONAL MATTERS. 21
24. REMEDIES. 21
IMS/ALIGN Shelter Agreement
December 22, 2005
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
TABLE OF CONTENTS / EXHIBITS
EXHIBIT DESCRIPTION
- --------------------------- ----------------------------------------------
Exhibit "A" LIST OF COMPONENTS
Exhibit "B" CROSS BORDER, CUSTOMS AND TRANSPORTATION
Exhibit "C" COMMODATUM AGREEMENT
Annex 1 to Exhibit "C" EQUIPMENT USE AGREEMENT
Annex 2 to Exhibit "C" EQUIPMENT LIST
Exhibit "D" PRICING MATRIX
Exhibit "E" REQUIRED INSURANCE COVERAGE
Exhibit "F" GUARANTY
Schedule "A" MISCELLANEOUS
ALIGN/IMS Shelter Agreement
December 22, 2005
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
THIS SHELTER AGREEMENT (hereinafter, "Agreement"), made effective this 22nd day
of December, 2005 (the "Effective Date"), is made between ALIGN TECHNOLOGY,
INC., having its corporate headquarters at 881 Martin Avenue, Santa Clara, CA
95050 (hereinafter referred to as "ALIGN") and INTERNATIONAL MANUFACTURING
SOLUTIONS OPERACIONES, S. de R.L. ("IMS"), a Mexican limited liability company
having its corporate headquarters at Calle Mayas 7710, Cd. Juarez, Chih.,
Mexico. (ALIGN and IMS are also individually each a "Party" and, collectively,
are the "Parties").
R E C I T A L S
Whereas, ALIGN is currently operating under an agreement dated June 3, 2002
between ALIGN and Elamex S.A. de C.V. ("Elamex") of which on July 11, 2003, all
rights and obligations of the Agreement were assigned, with the approval of
ALIGN, from Elamex to IMS; and
Whereas, ALIGN desires to continue its relationship with IMS and further to
engage into a new agreement with IMS which is more representative of the way
operations between the Parties are currently being conducted. Additionally, it
is the desire of ALIGN to allow for an agreement which will have an extended
term and other provisions which will allow for the long term business planning
of both Parties; and
Whereas, ALIGN will continue to have 100% control over its core manufacturing
competencies while IMS professionals handle the intricacies of providing and
performing the necessary functions in Mexico, such as facilities and facility
maintenance, human resource recruiting, management and administration, MRO
sourcing and purchasing, payroll, accounting, Mexican accounts payable,
cross-border logistics management, customs administration, environmental
compliance, Mexican government management, employee medical programs, employee
transportation and cafeteria services ("Services"); and
Whereas, ALIGN is currently engaged in the manufacturing of clear, removable
aligners which general description of product types may be expanded from time to
time by ALIGN in order to include additional devices and product types under the
scope of this Agreement ( the "Products"); and
Whereas, ALIGN desires to continue the manufacturing of its Products in the
location hereinafter defined as the Premises for distribution and sale; and
Whereas, IMS possesses and will possess at all times during the term of this
Agreement the expertise to provide the Premises and to perform its obligations
hereunder; and
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth and for other good and valuable consideration, the Parties
hereto agree as follows:
A R T I C L E S
1. PRODUCTS.
IMS will continue to provide the Services described in this Agreement to enable
ALIGN to produce the Products. As of the Effective Date, the Shelter Agreement
previously entered into between ALIGN and Elamex and assigned by Elamex to IMS
will terminate. The provisions of that previously entered Shelter Agreement that
survive termination under Section 20.3 of that agreement, including without
limitation any provisions concerning indemnity, confidentiality, warranties and
intellectual property ownership, shall survive such termination, except as
otherwise expressly stated herein. Notwithstanding such survival, each party
hereby waives any claim against the other arising out of such termination,
including without limitation any claim under Section 10.3 of the previously
entered Shelter Agreement.
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IMS/ALIGN Shelter Agreement
December 22, 2005
2. COMPONENTS.
ALIGN shall continue to supply and ship, or cause to be shipped to IMS' facility
in El Paso, Texas those raw materials, components and other expendable items,
which are to be used in the production of Products under this Agreement
(hereinafter, collectively, the "Components"), as listed in the attached List of
Components (Exhibit "A") which will be changed from time to time to reflect any
changes to the Components. Prior to each shipment of Components by ALIGN, ALIGN
shall provide IMS with all such documentation as is reasonably required by IMS
to effect the exportation of Components from the United States and their
importation into Mexico in accordance with Applicable Laws (as defined herein).
For purposes of this Agreement, "Applicable Laws" are defined as any laws,
statutes, codes, rules, regulations, consents, decrees or other legislative,
judicial or administrative acts of any "Government Authority". For purposes of
this Agreement, "Government Authority" is defined as any ministry, department,
court, agency, commission, board, institution or similar institution in Mexico
or the United States.
2.1 CUSTOMS ADMINISTRATIVE SERVICES.
IMS shall continue to provide those administrative services which are necessary
to affect the exportation and importation of equipment, machinery, tools, raw
materials, packaging materials and all other items required to manufacture the
Products, from the United States to Mexico and, where necessary, the exportation
and importation of the Equipment as hereinafter defined, from Mexico to the
United States or other countries as directed by ALIGN.
2.2 CUSTOMS BROKERAGE SERVICES.
IMS will continue to provide, with respect to exportations from and importations
into Mexico, the services of a licensed Mexican Customs House brokerage service.
With respect to importations to or exportations from the United States, ALIGN
will engage a licensed U.S. customhouse brokerage service, and IMS shall
cooperate with such service to effectuate such importations and exportations.
The cost of brokerage services shall be paid directly by ALIGN in the case of
U.S. brokerage services and by IMS in the case of Mexican brokerage and charged
to ALIGN on a cost reimbursement basis as per the attached Cross-Border, Customs
and Transportation (Exhibit "B").
3. EQUIPMENT.
ALIGN will continue to furnish, without charge, and deliver to IMS, at the
Premises all tools, machinery, equipment, and such other durable goods as are
necessary to manufacture, assemble and produce Products (hereinafter, the
"Equipment"; provided, however, that Components are excluded from this
definition). IMS will be entitled to use such Equipment without charge in
accordance with the purposes set forth in this Agreement and the attached
Equipment Use Agreement (Annex 1 to Exhibit "C").
3.1 COMMODATUM AGREEMENT.
ALIGN will, contemporaneously with the execution of this Agreement, execute a
Commodatum Agreement, (hereinafter, the "Commodatum Agreement") a copy of which
is attached hereto (Exhibit "C") and made a part hereof. The Commodatum
Agreement will address, more specifically, the custody and care of Equipment and
shall include: (i) an Equipment Use Agreement, attached thereto as Annex 1; and
(ii) an equipment list, attached thereto as Annex 2, describing all Equipment
which list thereafter will be supplemented and amended from time to time to
reflect any additions to or deletions to such Equipment. The parties will meet
(i) monthly during the first three months after the Effective Date of the
Agreement and (ii) and quarterly thereafter to update the equipment list.
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IMS/ALIGN Shelter Agreement
December 22, 2005
3.2 INSTALLATION OF EQUIPMENT.
IMS will continue to coordinate and carry out the installation of the Equipment
which ALIGN will provide to IMS pursuant to the Commodatum Agreement from time
to time, all in compliance with the instructions of ALIGN and the applicable
Mexican labor, hygiene, environmental, and safety laws, and in compliance with
ALIGN's supplied guidelines. Special outside services relating to the
installation of Equipment and other adaptation services that may be required by
ALIGN will be paid directly by IMS and handled as a Reimbursable Expense. All
outside services in excess of $500 U.S. Dollars shall be subject to pre-approval
in writing by ALIGN, such approval not to be unreasonably withheld. When the job
is executed by IMS' in-house maintenance staff, a budget will be prepared at a
labor rate of $15.00 per hour.
3.3 USE OF EQUIPMENT.
The Equipment provided to ALIGN, pursuant to the Commodatum Agreement shall be
used by IMS solely in the performance of this Agreement, as further described in
the Equipment Use Agreement.
3.4 CARE OF EQUIPMENT.
IMS will care for, protect, and maintain the Equipment as specified in the
Equipment Use Agreement.
3.5 OWNERSHIP.
IMS acknowledges that Equipment, Components and Products are the sole and
exclusive property of ALIGN and its affiliated companies. IMS shall keep
Equipment, Components and Products free and clear of all liens, encumbrances,
security interests and claims, including without limitation: any and all claims
of (i) any Government Authority; (ii) any creditors of IMS, or any IMS
affiliates; or (iii) other persons asserting claims against IMS, and/or any IMS
affiliates for any reason (collectively, hereinafter "Liens").
IMS shall notify ALIGN within seven (7) days of the filing or recording of any
Liens or assertion of any claims for Liens. In accordance with Section 14.1, IMS
shall indemnify ALIGN for any and all Losses that ALIGN may incur in obtaining
the discharge of any Liens.
The Equipment, as well as all Components, packaging materials, Products and
other items, will remain the sole property of ALIGN and will be returned
promptly to ALIGN at its expense, in the condition in which it was delivered by
ALIGN to IMS, except in the case of Equipment for normal wear and tear,
immediately upon written demand thereof or upon the expiration or early
termination of this Agreement. If so requested by ALIGN, Equipment, as well as
all Components, packaging materials, Products and other items shall be returned
to ALIGN in accordance with Section 10.
3.6 POSSESSION.
IMS is not authorized to sell, loan, pledge, or part with possession of the
Equipment, Components, packaging materials, Products or any other item of
personal property belonging to or under the lawful control of ALIGN, except to
deliver the Equipment to IMS and to return the Equipment to ALIGN in accordance
with the terms of this Agreement.
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IMS/ALIGN Shelter Agreement
December 22, 2005
3.7 INSURANCE.
At Align's written request, ALIGN, at its expense, or as a Reimbursable Expense
to IMS, will provide all insurance coverage for Equipment, Components, Products
and other items that ALIGN provides to IMS pursuant to this Agreement and the
Commodatum Agreement. Insurance procured by IMS and billed to ALIGN as a
Reimbursable Expense will name ALIGN as an additional insured party and loss
payee if available under Mexican law. Notwithstanding the foregoing, as set
forth below in Section 3.8, the payment of certain insurance deductibles will be
at the expense of and paid by IMS.
3.8 REPAIRS AND REPLACEMENTS.
Some repairs and replacements relating to Equipment, Components and Products
will be borne directly by IMS when practical or when sourced in Mexico and be
billed by IMS as a Reimbursable Expense to ALIGN, except for those repairs or
replacement costs, including the payment of any insurance deductibles and
shipping and handling charges in connection therewith, derived from damage or
loss of Equipment, Components or Products caused by the negligent, reckless or
willful act of IMS, or any IMS affiliate, which will be at the expense of and
paid by IMS.
3.9 TAXES.
Payment of all taxes, including VAT, assessed on Equipment, Components,
Products, use of space in the Premises as defined in Section 4.1 of this
Agreement and the Services in general by any Government Authority (collectively
"Taxes") will be made by IMS and ALIGN has no obligation, responsibility or
liability associated with Taxes under this Agreement, provided however that
Align will reimburse IMS at cost for VAT taxes associated with reimbursable
expenses including MRO plant requirements, capital purchases, capital equipment
and construction as set forth in Exhibit D - "Pricing Matrix". ALIGN shall not
be responsible or have any liability for any: (i) interest, penalties or other
charges associated with the failure of IMS to timely pay such Taxes; (ii)
income, gain, franchise, withholding, self-employment and social security taxes
of IMS or any IMS affiliate; and (iii) unemployment and workmen's compensation
insurance of IMS, or any IMS affiliate. Upon IMS request, if any Government
Authority imposes taxes not in effect as of the execution of this Agreement for
Services, Equipment, Products or space under this Agreement, the parties will
negotiate in good faith to resolve the party responsible for payment of such.
4. PREMISES.
IMS will continue to perform all services contemplated under this Agreement at
the Premises (defined in Section 4.1).
4.1 LOCATION.
The premises are located at Calle Mayas 7710, Parque Industrial Fernandez,
Ciudad Juarez, State of Chihuahua, Mexico ("Premises"). The Premises contain
approximately 68,292 square feet of which Align has the sole right to use and
occupy approximately 52,416 square feet in the areas shown on Exhibit D
(hereinafter the "Align Space").
4.2 PREMISES RENTAL.
IMS and Elamex De Juarez S.A. De C.V. ("Elamex") are parties to a certain lease
for the Premises ("Elamex Lease") that is set to expire on June 30, 2008
("Elamex Lease Expiration Date"). IMS is in current negotiations with Elamex to
purchase the Premises and expects to reach an agreement in the near future. If
for any reason IMS does not own the Premises by May 1, 2006, IMS shall have
previously obtained an extension to the term of the Elamex Lease from Elamex for
at least two and a half (2.5) additional years after Elamex Lease Expiration
Date, under similar terms and pricing as exist under the current Elamex Lease.
In addition to extending the term of the Elamex Lease, IMS shall use best
efforts to have obtained on or before May 1, 2006 an amendment to Elamex Lease
that includes the following rights for ALIGN:
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IMS/ALIGN Shelter Agreement
December 22, 2005
o (i) the right of first refusal to any sale of the Premises by
Elamex;
o (ii) a right of first refusal to use or occupy the Align Space and/
or Premises to enter into a direct lease with the Elamex to rent or
lease the Align Space if for any reason the Elamex Lease were to
expire or terminate;
o (iii) the right of first refusal to use or occupy any space within
the Premises other than the Align Space, and to enter into a direct
lease with the Elamex to rent or lease such space if for any reason
the Elamex Lease were to expire or terminate;
o (iv) the right to remain in possession of the Align Space pursuant
to this Agreement and use or occupy the Align Space for the entire
term of the Elamex Lease (to be not less than five (5) years from
the date of this Agreement), if for any reason the Elamex Lease
expires or terminates;
o (v) the right to cause Elamex to enter into a Recognition,
Non-Disturbance and Attornment Agreement wherein Elamex recognizes
and accepts ALIGN's use and/or occupancy under this Agreement,
agreeing that ALIGN can directly pay Elamex for such use or
occupancy of the Align Space at the rates currently in effect for
ALIGN under this Agreement, agreeing that ALIGN has the right to
cure any of IMS's defaults under the Elamex Lease and further
agreeing to such other commercially reasonable protections as ALIGN
may reasonably request;
o (vi) written permission for ALIGN's use or occupancy of the Align
Space under this Agreement; and
o (vii) the right to receive copies of all default notices under the
Elamex Lease.
IMS covenants and agrees that all of the foregoing rights are hereby deemed to
be given to ALIGN by IMS, as applicable, and that best efforts will be used to
obtain the same rights from Elamex on or before May 1, 2006. IMS covenants and
agrees not to cause or permit a breach or default by IMS under the Elamex Lease.
IMS further covenants and agrees not to assign, sublease or otherwise convey any
of its right, title and interest in the Elamex Lease without ALIGN's prior
written consent, which will not be unreasonably withheld. ALIGN must review and
approve any agreements contemplated herein prior to execution, including,
without limitation, any amendments or modifications to the Elamex Lease, and any
amendments or extensions thereto. If for any reason IMS fails to use best
efforts to obtain any of the foregoing rights for ALIGN from Elamex or otherwise
causes or permits a breach or default by IMS under the Elamex Lease, IMS shall
indemnify, defend and hold ALIGN, its directors, officers, employees, agents and
any successor to ALIGN's interest in the Align Space harmless from and against
any and all claims, judgments, damages, penalties, fines, costs, liabilities or
losses (including, without limitation, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise out of or relate
to such.
IMS agrees that the remaining square footage of the Premises, other than the
Align Space, will only be used as follows:
o 6,427 square feet of the Premises will be used solely by Tecma for
its headquarters in the location shown on Exhibit D, provided that
appropriate security measures are put in place by IMS for
restricting access to other areas of the Premises, including,
without limitation, the Align Space; and
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IMS/ALIGN Shelter Agreement
December 22, 2005
o For twelve (12) months from the Effective Date, 10,000 square feet
of the Premises will be used solely by IMS for a warehouse facility
in the location shown on Exhibit D ("Warehouse Space"). After that
time, if IMS no longer desires the Warehouse Space and Align does
not exercise its right of first refusal as herein provided to use or
occupy the Warehouse Space, then ALIGN shall pay IMS one-half of the
monthly base rent including occupancy costs (such as CAM, taxes,
utilities, insurance, etc.) for the Warehouse Space. The monthly
base rent for the Warehouse Space will be the rate per square foot
then in effect for the Align Space). This arrangement shall be in
effect for the remainder of this Agreement or until the parties can
locate and agree upon another entity or party to use and/or rent
such Warehouse Space; provided, however, IMS, at its sole cost and
expense, shall use commercially reasonable efforts to market the
space to third parties, including, without limitation, the hiring of
a broker, purchasing of advertising and the like, if needed.
As of the Effective Date of this Agreement there may be additional space within
the Align Space that is being used by IMS. IMS will be promptly transitioning
such space to Align and will not charge Align for use of such space until such
is completely turned over to Align.
IMS must obtain the prior written consent of ALIGN, which shall not be
unreasonably withheld, prior to any renting, leasing or provision of space for
use within the Premises to any other entity or individual, other than as set
forth in this Agreement.
If IMS or its affiliate or assignee purchases the Premises from Elamex, then:
o An affiliate or assignee of IMS will become the owner of the
Premises. IMS, its affiliate or assignee, as applicable, will obtain
the written consent of Align, which shall not be unreasonably
withheld, prior to any ownership change under this provision.
o IMS, as tenant, will execute a five (5) year lease (the "Lease")
with such affiliate or assignee, as landlord, for the Premises which
allows ALIGN to use or occupy the space within the Premises as set
forth in this Agreement.
o IMS shall not cause or permit a breach or default of the Lease.
o Except as hereinafter provided, IMS shall not to assign, sublease or
otherwise convey any of its right, title and interest in the Lease
without ALIGN's prior written consent, which shall not be
unreasonable withheld.
o ALIGN must review and approve the Lease in writing prior to its
execution and any amendments or extensions thereto.
o Concurrent with the execution of the Lease, ALIGN or ALIGN's
subsidiary will execute a Guaranty for the first five (5) years of
the Lease substantially in the form attached hereto as Exhibit F.
o Except for the Guarantees set forth in the Exhibit F, the new Lease
will not require any additional guarantees by ALIGN or its
subsidiary.
o 51,866 square feet of the Premises shall be provided by IMS solely
to ALIGN or its subsidiary for use or occupancy under this
Agreement.
o 6,427 square feet of the Premises will be used solely by Tecma for
its headquarters in the location shown on Exhibit D, provided that
appropriate security measures are put in place by IMS for
restricting access to other areas of the Premises, including,
without limitation, the Align Space.
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IMS/ALIGN Shelter Agreement
December 22, 2005
o For twelve (12) months from the Effective Date, the Warehouse space
will be used solely by IMS for a warehouse facility in the location
shown on Exhibit D. After that time, if IMS no longer desires the
Warehouse Space and Align does not exercise its right of first
refusal as herein provided to use or occupy the Warehouse Space,
then ALIGN shall pay IMS one-half of the monthly base rent
(including occupancy costs such as CAM, taxes, utilities, insurance,
etc.) for the Warehouse Space (at the same monthly base rent rate
per square foot then in effect for the Align Space). This
arrangement shall be in effect for the remainder of this Agreement
or until the parties can locate and agree upon another entity or
party to use and/or rent such Warehouse Space; provided, however,
IMS, at its sole cost and expense, shall use commercially reasonable
efforts to market the space to third parties, including, without
limitation, the hiring of a broker, purchasing of advertising and
the like, if needed.
o Rent or lease value for the Premises in the Lease between IMS and
its affiliate or assignee shall be the same or less than the rent or
lease value in effect as under this Agreement as of the effective
date of such Lease.
o The amount charged to ALIGN by IMS for use of the Align Space under
this Agreement after such purchase shall remain the same or less
than the rent or lease value in effect as under this Agreement as of
the effective date of the Lease.
o The Lease shall set forth that ALIGN has the right of first refusal
during this Agreement for (i) any sale of the Premises, (ii) any
rent or leasing of the Align Space and (iii) any use, leasing or
renting of any space within the Premises, other than the Align
Space.
o The Lease shall set forth that ALIGN has the right of first refusal
upon termination or expiration of this Agreement during the initial
five (5) year term of the Lease for (i) any sale of the Premises
(ii) any rent or leasing of the Align Space and (iii) any use,
leasing or renting of any space within the Premises, other than the
Align Space.
o IMS must obtain the written consent of ALIGN, which shall not be
unreasonably withheld, prior to renting, leasing or providing space
within the Premises for use to any other entity or individual.
o The Lease shall set forth notice and cure periods for ALIGN in the
event of a breach or default by IMS.
o The Lease shall state that should IMS default under the Lease in
violation of this Agreement:
o The Lease will remain in full force and effect.
o ALIGN will have the right to remain on the Premises and use
the Align Space for the entire term of the Lease.
o Upon ALIGN'S written request, IMS will assign all of its
right, title and interest under the Lease to ALIGN for the
entire Premises, thereby replacing IMS as tenant there
under, wherein ALIGN will directly pay landlord under the
Lease for use of the Premises at the rates currently in
effect for ALIGN under this Agreement.
o The Lease shall state that upon written notification from ALIGN or
IMS that this Agreement has expired or been terminated that:
o The Lease will remain in full force and effect.
o ALIGN will have the right to remain on the Premises and use
the space for the entire term of the lease.
o Upon ALIGN'S written request, IMS will assign all of its
right, title and interest under the Lease to ALIGN for the
entire Premises, thereby replacing IMS as tenant there
under, wherein ALIGN will directly pay landlord under the
Lease for use of the Premises at the rates currently in
effect for ALIGN under this Agreement.
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IMS/ALIGN Shelter Agreement
December 22, 2005
If for any reason IMS causes or permits a breach or default under any of the
foregoing provisions, IMS shall indemnify, defend and hold ALIGN, its directors,
officers, employees, agents and any successor to ALIGN's interest in the Align
Space harmless from and against any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (including, without limitation,
sums paid in settlement of claims, attorneys' fees, consultant fees and expert
fees) which arise out of or relate to such breach or default.
The provisions of this Section 4.2 shall survive, to the extent applicable, any
termination or expiration of this Agreement. During the Term of this Agreement,
IMS will provide the facility at the cost specified in Pricing Matrix (Exhibit
"D"). All costs associated with the Premises and performance of Services, tenant
improvements and utilities will be paid by IMS and billed to ALIGN as a
Reimbursable Expense as per Pricing Matrix (Exhibit "D").
4.3 AREA OF PREMISES.
The Premises will consist of a portion of the building with the total area
described in the Pricing Matrix which is color coded for ease of reference
(Exhibit "D") a portion of which will be dedicated to ALIGN for the performance
of the Services, except for the specified sections for use solely by IMS as
referenced above. At the request of ALIGN and with adequate notice to IMS, the
Premises may be expanded to accommodate ALIGN growth and for additional
processes.
4.4 PREMISES CONDITION.
IMS shall continue to keep and maintain the Premises at all times during the
"Original Term" of this Agreement and any "Extended Term", as those terms are
defined in Section 9, in a condition ready and suitable for the use contemplated
under the terms of this Agreement.
4.5 PREMISES INSURANCE.
Except as otherwise set forth in Exhibit E, IMS will be responsible for
obtaining a policy of insurance, issued by an insurance company authorized to
conduct business in the United Mexican States, the provisions of which shall
protect against fire, casualty, general liability, loss of rental and extended
coverage on and about the Premises, in accordance with the terms of the lease,
the cost of which shall be borne by ALIGN as per the Price Matrix attached
hereto as Pricing Matrix (Exhibit "D"). IMS shall deliver to ALIGN a certificate
of insurance. IMS shall require the insurer to give ALIGN 30 days written notice
before the above-described policy is canceled or materially altered.
4.6 MAINTENANCE AND REPAIRS.
ALIGN shall pay for interior and exterior maintenance and repairs in the amount
stated in the Maintenance line item of the Rent section of Pricing Matrix
(Exhibit "D"), and additional maintenance and repairs as mutually agreed by the
parties.
4.7 LEASE.
During the term of this Agreement, if IMS does not purchase the Premises, then
IMS will be the tenant of the Premises, and will be fully responsible for the
terms and conditions of the Master Lease
4.8 COMMUNICATIONS.
IMS shall continue to cause the Premises to contain such Mexican phone lines, or
other technology or information services as may be requested in writing by
ALIGN. The charges for the expansion and installation of such phone lines and
other data or voice services which may be required in the future, and the
ongoing monthly service fees or toll charges in connection therewith will be at
ALIGN's expense. All such expenses must be approved in advance in writing.
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4.9 WAREHOUSE FACILITIES.
ALIGN may require a warehousing facility in El Paso, Texas for use in the
storage and/or distribution of the Products as ALIGN may from time to time
determine. IMS will work closely with ALIGN to develop a program as required
under separate agreement, when requested by ALIGN. Staging and trans-loading in
IMS' El Paso Warehouse facilities are included in the Services at no additional
cost when the Services are performed during regular warehouse operating hours.
Additional fees will be charged to ALIGN at cost plus mark up as set forth in
Exhibit D unless mutually agreed otherwise by the parties when Services are
performed outside of the regular warehouse operating hours.
5. MANUFACTURING SUPPORT SERVICES AND INPLANT SERVICES.
IMS will continue to provide, at all times, all facilities as previously
described, direct and the indirect labor included, supervisory and
administrative personnel, human resource management and administrative
expertise, necessary to enable the manufacture of the Products as described
under this Agreement. All vendors and outside contractors of IMS relating to the
Services are subject to ALIGN's approval and such must be in writing if IMS is
going to enter into an Agreement beyond a Purchase Order with such vendor or
outside contractor. The services of IMS shall include, but shall not be limited
to (a) the performance of the obligations of IMS as set forth in this Agreement
and (b) the following described activities:
(i) IMS assumes responsibility for all necessary or desirable
dealings with any appropriate Government Authority, in order
to authorize and expedite the performance of the Services and
other activities contemplated hereby and to obtain all
necessary permits and bonds.
(ii) IMS will prepare and file all payroll taxes, IVA and other tax
returns concerning their operations related to this Agreement
that are required by Applicable Laws.
(iii) IMS will perform appropriate accounting and legal services
relating to the performance of this Agreement.
(iv) IMS will employ all personnel appropriate and necessary for
the performance of this Agreement, including, but not limited
to, the direct and indirect Employees and Salaried Personnel
requested by ALIGN.
(v) IMS will prepare, and will be solely responsible for
preparing, payroll, record the Employees and Salaried
Personnel, as hereinafter defined, with any appropriate
Government Authority, including the Mexican Institute of
Social Security, and will perform all other obligations of an
employer under Applicable Laws, including the payment of wages
and benefits to hourly employees, (hereinafter, "Employees")
and salaried employees (hereinafter, "Salaried Personnel")
employed by IMS for purposes of performing the Services.
(vi) During the start up of any new processes and during the Term,
IMS will administer the transport of Equipment, Components,
Products, and other items provided by ALIGN to the Premises.
(vii) IMS shall make and keep as appropriate to the activities of
each, all records required by Applicable Laws (including
without limitation the Public Company Accounting Reform and
Investor Protection Act of 2002, aka the Sarbanes Oxley Act,
and any U.S. Food and Drug Administration regulations that may
be applicable to ALIGN or its business) concerning their
business activities under this Agreement. Such records shall
include but not be limited to those records, which are
required to be made and kept by the General Administration of
Customs of Mexico and by the United States Customs Service.
All such records shall be made in conformity with and kept for
the period(s) of time required by Applicable Laws.
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(viii) IMS will purchase all items which ALIGN may, in writing,
request IMS to purchase in Mexico or in the United States, it
being agreed that IMS will be responsible for the inspection
of the quality of the items purchased and for ensuring the
conformity thereof to written specifications provided by
ALIGN.
(ix) IMS shall keep the packaging on all Products for shipment as
they are received from ALIGN and when further shipped by IMS
such shall be in a commercially reasonable manner and in
accordance with ALIGN policy and specifications to protect
such Products from loss or damage.
(x) IMS shall provide all Services in a professional and
workmanlike manner, in accordance with the highest industry
standards, and in accordance with Align specifications and/or
requirements that have been provided to IMS (the
"Requirements").
(xi) IMS will provide the following In-Plant Support. Shared
resources to carry out all administrative functions related to
the operation: Human Resources Manager and Clerks, Customs
Supervisor and Clerks, MRO Buyer, Accounting and Payroll
Clerks, Nurse, Security Guards, Janitors, Cooks, and
Secretary/Receptionist. Also included are:
o Food necessary to cover two (2) meals a day per
shift,
o janitorial supplies,
o plant maintenance, and
o medicines
The cost of this In-Plant Support will be billed per headcount
hour (without additional mark-up) as per Schedule "D" attached
hereto.
5.1 EVALUATIONS AND NOTICE OF DEFECTS.
ALIGN shall have the right to evaluate, at any time, the quality, performance,
and timeliness of the Services to verify that the Services being performed under
this Agreement meet the Requirements that have been provided to IMS by Align and
shall provide written notice of any defects or deficiencies, including but not
limited to the quality, performance, and/or timeliness of the Services to IMS
(collectively the "Defects"). For such purposes, ALIGN and its representatives
shall have at all times unrestricted access to the Premises. In the event that
such Services do not meet the Requirements provided by Align or ALIGN identifies
Defects, Align will provide IMS with written notice outlining the failure to
meet the Requirements or the Defects. IMS will have sixty (60) days cure the
issue, unless such is business critical to Align then such cure period shall be
reduced to thirty (30) days. Unless otherwise agreed by the parties, if the
Requirement or Defect is not cured within the 30 to 60 day time frame stated
herein, Align may immediately terminate this Agreement, except as otherwise set
forth herein.
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5.2 PROGRAM MANAGER.
IMS or ALIGN shall employ a qualified program manager to manage the production
activities contemplated by this Agreement. The program manager's salary,
benefits and bonuses, should the manager be an employee of IMS, will be a
Reimbursable Expense, as hereinafter defined in Section 6.12, if paid by IMS,
provided that ALIGN has approved of such salary, benefits and bonuses in advance
and in writing.
5.3 ADDITIONAL SERVICES.
"Additional Services" shall mean those activities provided by IMS outside the
scope of this Agreement and will be billed to ALIGN as a Reimbursable Expense as
per Pricing Matrix (Exhibit "D"). The Program Manager shall have the authority
to approve the provision of Additional Services, the cost of which does not
exceed $500 (Five Hundred Dollars), legal currency of the United States of
America, per occurrence. For all Additional Services, exceeding $500 (Five
Hundred Dollars), legal currency of the United States of America, per
occurrence, IMS shall secure the prior written consent (including a detailed
description of the work to the performed and the fees therefore) of ALIGN before
such Additional Services are provided and any payment liability therefore is
incurred.
5.4 SECURITY.
IMS shall abide by the Security provisions of the attached Schedule "A".
5.5 INSURANCE.
IMS shall maintain the insurance coverage described in the attached Required
Insurance Coverage (Exhibit "E"), as well as any other insurance required by
Applicable Law or otherwise required under this Agreement. Each such policy
shall be provided subject to the conditions stated in the last four sentences of
section 4.5.
6. LABOR.
IMS will employ all direct Employees, all indirect Employees and Salaried
Personnel including, but not limited to administrative, labor, mechanical,
supervisory, security, and janitorial personnel, which are necessary and
appropriate to provide the Services required by this Agreement. All the
Employees and Salaried Personnel employed by IMS or IMS shall be considered
"Headcount Employees." ALIGN shall pay IMS for the Services of the Headcount
Employees as per Pricing Matrix (Exhibit "D") ("Service Fees"). IMS shall ensure
that all such employees and IMS abide by the Health and Safety and Hazardous
Materials provisions of the attached Schedule "A".
6.1 EMPLOYMENT, TERMINATION AND CONDITIONS OF EMPLOYMENT.
IMS, will be responsible for employee relations, including the recruiting,
hiring, firing, assignment, evaluation, promotion, demotion, transfer and, other
than as required by law or elsewhere stated in this Agreement, compensation of
Employees and Salaried Personnel and any liabilities associated with such,
except as otherwise set forth herein. The terms and conditions of each
Employee's and Salaried Personnel's employment shall comply in all respects to
the requirements of the applicable laws of the United Mexican States, including
its labor laws, regulations and all current directives of the government of
Mexico issued there under and IMS undertakes to keep ALIGN informed as to the
requirements for compliance.
ALIGN will reimburse IMS for all severance payments (at cost and according to
the laws currently in place at the time of severance in Mexico) which arise
during the original term or any extended term of this Agreement, except when the
severance payment derives from the willful or negligent acts of IMS. However,
such severance payments shall be made by ALIGN only upon a showing by IMS of the
dismissal of said employees and the reasons therefore.
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IMS/ALIGN Shelter Agreement
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6.2 LABOR RATES.
IMS will be solely responsible for the payment and provision to the Employees
and Salaried Personnel of any and all wages, salaries, benefits and income tax
and other withholding required by Mexican Federal, State, and Municipal laws,
regulations, and directives. IMS shall insure that labor rates for all Employees
and Salaried Personnel employed by IMS and by itself shall at all times comply
with applicable laws and regulations of the United Mexican States and with all
currently applicable directives issued by the government of Mexico pursuant
thereto. Labor wage rates will be set using the expertise and experience of both
ALIGN and IMS management and all final determinations of labor rates shall be
subject to approval by ALIGN.
6.3 OVERTIME.
Overtime compensation, if applicable, will be paid to the Employees and Salaried
Personnel in accordance with the requirements of the labor laws of the United
Mexican States only when the requirement for such overtime is approved by ALIGN.
6.4 TRAINING.
ALIGN will provide all Employees and Salaried Personnel with such training and
instructions in connection with the manufacture of the Product and perform the
Services, as is sufficient to enable each such person to perform the work
assigned to him or her.
6.5 EMPLOYEE EXCLUSIVITY.
IMS agrees that all Employees and Salaried Personnel may not be used other than
for the purposes of performing the Services contemplated by this Agreement.
6.6 USE OF PART-TIME IMS EMPLOYEES.
To the extent that one or more individuals employed by IMS are assigned to
provide part-time employment services at the Premises in furtherance of this
Agreement, notwithstanding any other provision contained herein to the contrary,
such IMS employees shall not be considered to be Headcount Employees. However,
their cost to IMS shall be invoiced to ALIGN, for the actual hours worked by the
part-time employees as a Reimbursable Expense as per Pricing Matrix (Exhibit
"D").
6.7 ALIGN PERSONNEL.
During the Original Term or any Extended Term of this Agreement, ALIGN shall
have the right to locate at the Premises such of its employees as it deems
appropriate. IMS shall fully cooperate with and assist any ALIGN employee
assigned to the Premises in connection with the performance of his or her
assigned duties. No employee of ALIGN shall be entitled to any benefit provided
for by the labor laws of the United Mexican States and IMS shall have no
liability for such benefits therefore to such employees.
6.8 WORK VISAS.
IMS shall obtain all necessary Mexican work visas for ALIGN's designated
non-Mexican employees who may be assigned by ALIGN to be present at the Premises
for any purpose. The visas, which shall be legally obtained, shall be of the
type required under the circumstances by the immigration laws of the United
Mexican States. The actual costs of administering and obtaining such visas shall
be a Reimbursable Expense.
6.9 CROSS-HIRING OF EMPLOYEES.
IMS as one part and ALIGN as the other part each agree that they will neither
employ nor solicit the termination of employment by resignation of the other's
employees during the Original Term and any Extended Term of this Agreement and
for a period of one (1) year after the termination of this Agreement without the
prior written consent of that employer.
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6.10 PRODUCTION REQUIREMENTS - EMPLOYEES.
IMS shall employ only that number of Employees and Salaried Personnel as
directed by ALIGN. To the extent that ALIGN's production requirements
necessitate an increase in the number of such Head Count Employees, IMS shall
consult with a designated employee of ALIGN and the number and types of
Headcount Employees shall be increased in accordance with the increased number
to which ALIGN agrees. To the extent that the production requirements of ALIGN
necessitate a reduction of the number of Headcount Employees, during the period
covered by any updated production schedule, IMS and the designated ALIGN
employee shall confer in the manner above described and the number of Headcount
Employees shall be reduced by the number to which ALIGN agrees. In the event
that the circumstances described in this Section 6.10 require the termination of
one or more persons employed in a Salaried Personnel capacity, IMS and ALIGN
shall confer concerning such termination(s) and the Parties shall agree as to
the method of negotiation and the estimated severance pay anticipated.
6.11 INVOICING AND OTHER CHARGES.
ALIGN shall pay to IMS a reimbursement of any and all expenses incurred by IMS
in accordance with the terms of this Agreement, plus additional percentages of
those expenses according to the schedule as per the attached Pricing Matrix
(Exhibit "D"). All expenses are subject to approval as described in Section 5.3.
6.12 REIMBURSABLE EXPENSE.
The term "Reimbursable Expense" is defined as any actual, out-of-pocket cost
incurred by IMS, including taxes, on behalf of ALIGN for which reimbursement by
ALIGN is required. Reimbursable Expenses shall be billed to ALIGN as per Pricing
Matrix (Exhibit "D"). IMS may be able to recover all of the value-added taxes,
"IVA", for expenses incurred or purchases made on behalf of ALIGN. This tax
credit, if obtained, will accrue to the benefit of IMS.
6.13 WAGE AND TAX ADJUSTMENT.
If, at any time during the Original Term or any Extended Term of this Agreement,
the National Commission of Minimum Wages of the government of Mexico decrees, by
official publication, an increase in the minimum wage payment to minimum wage
employees, the wages of all IMS' Headcount Employees shall be increased in
accordance with the requirements of such official publication and in accordance
with the terms of this Agreement. Once agreed upon by IMS and ALIGN the wages
will be adjusted accordingly and such will be passed through to ALIGN as set
forth in Exhibit D. Once agreed upon by IMS and ALIGN, the wages of non-minimum
wage Headcount Employees shall be increased accordingly and such will be passed
through to ALIGN as set forth in Exhibit D.
Should local or national labor demand cause increased or decreased salary
requirements, as documented by the independent publication of the National
Maquila Association, a proportional adjustment shall be made at the discretion
of ALIGN considering advise and council of IMS management.
Should local or national tax authorities demand increases or decreases with
respect to taxes paid by governmental authorities, the Headcount Employee cost
presented in this Agreement and paid by ALIGN will be adjusted on a dollar per
dollar basis.
The cost basis of each invoice sent to ALIGN is converted from Pesos to US
Dollars based on the current in effect exchange rate on the date of invoice and
IMS will make commercially reasonable efforts to obtain the most favorable
exchange rate for ALIGN. Upon ALIGN'S request, IMS will provide back up
information for each such exchange. In addition, if ALIGN does not agree with
the exchange house used to complete the transaction, then IMS will work with
ALIGN to find a mutually agreed exchange house for future exchange rates.
Invoices will be processed by IMS in a timely fashion.
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IMS/ALIGN Shelter Agreement
December 22, 2005
6.14 FORM OF PAYMENT.
Payment to IMS for invoices of any category described herein will be made in
U.S. Dollars, official currency of the United States, by direct wire transfer or
check drawn upon ALIGN's account, payable to IMS or to IMS' account. In the
event that IMS' account is other than at an institution located and operating
within the United States, and as a result ALIGN is charged a fee for such wire
transfer or check, IMS shall pay such fee.
6.15 TERMS OF PAYMENT.
An invoice for Headcount Employee cost and overtime hours, and Reimbursable
Expense invoices for cross border transportation (pursuant to Section 11) and
brokerage, (pursuant to Section 2.2) shall be submitted by IMS to ALIGN on a
weekly basis and shall be approved and paid by ALIGN no later than twenty (20)
calendar days after the submission of such invoice.
6.16 COST REDUCTIONS.
IMS shall use commercially reasonable efforts to achieve cost savings on
personnel, overhead and other Reimbursable Expenses, and shall implement
reasonable cost reduction proposals reasonably suggested by ALIGN. Any resulting
savings shall be reflected in a reduction of the fees hereunder. Align may
review and shall have access to the cost savings information from IMS from time
to time which may include a breakdown of the savings realized there from.
7. TECHNICAL INFORMATION.
IMS hereby assigns and shall assign to ALIGN all rights, title, and interest in,
and the sole right to use for any purpose whatsoever, all information, design,
specifications, drawings, reports, plans, documents, software, and other
technical information, as well as copyrights, patents, rights in proprietary
information and trademarks (hereinafter collectively referred to as "Technical
Data"), regarding the Products to be produced by IMS, and provided to IMS by
ALIGN or acquired by IMS, during the performance of this Agreement. During the
performance of this Agreement, IMS and its subsidiaries or affiliates may
receive other knowledge and information regarding ALIGN, the Products and
ALIGN's designs, manufacturing processes, marketing methods, or other business
practices, some or all of which may be confidential and proprietary to ALIGN,
all of which Technical Data, knowledge and information shall be subject to
Section 7.4. IMS shall assist ALIGN, or ALIGN's designee, at ALIGN's expense and
in every proper way to secure ALIGN's intellectual property and other rights in
and to the Technical Data, including by disclosing to ALIGN all pertinent
information, and by executing all applications, specifications, oaths,
assignments and all other instruments deemed necessary by ALIGN. Where ALIGN is
unable to secure IMS's signature to apply for or pursue any application for any
intellectual property right assigned to ALIGN, then IMS hereby irrevocably
appoints ALIGN and its duly authorized officers and agents as IMS's agent and
attorney in fact, to act for IMS to execute and file, or to do any other lawful
act in furtherance of, such application with the same legal force and effect as
if executed by IMS.
7.1 INTELLECTUAL PROPERTY WARRANTY.
IMS hereby represents and warrants that its performance of the Services
hereunder will not infringe, or result in the infringement of, any intellectual
property right of any third party.
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IMS/ALIGN Shelter Agreement
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7.2 PRE-EXISTING MATERIALS.
If in the course of performing the Services IMS incorporates into any Product
any invention, improvement, development, concept, discovery or other proprietary
information owned by IMS or in which IMS has an interest, IMS shall: (i) inform
ALIGN in writing before such incorporation; and (ii) grant, and hereby grants,
to ALIGN, under all of IMS's rights therein, a nonexclusive, royalty-free,
perpetual, irrevocable, sublicenseable, worldwide license to use, reproduce,
distribute, perform, display, prepare derivative works of, make, have made, sell
and export such item as part of or in connection with such Product. This
provision specifically excludes the bruxism device used for the treatment of
grinding teeth that was created prior to this Agreement, unless otherwise agreed
by the parties. IMS shall not incorporate any invention, improvement,
development, concept, discovery or other proprietary information owned by any
third party into any Product without ALIGN's prior written permission.
7.3 ALIGN NAME.
IMS acknowledges that, under this Agreement, IMS will acquire no right or
interest in the ALIGN name and logotype, or in any of the trademarks and trade
names used by ALIGN in connection with its products. IMS further acknowledges
that this Agreement grants it no right to use any trademark, service mark or
logo of ALIGN without the written consent of Align. Use of the ALIGN name in a
customer list may be authorized if the content of such is approved in advance by
Align.
7.4 NON-DISCLOSURE.
IMS warrants that during the performance hereof, and for so long as such
Technical Data and other confidential and proprietary knowledge and information
remain proprietary, IMS and other IMS' subsidiaries or affiliates, their
directors, officers, employees and agents, shall not, except as authorized in
writing by ALIGN, use, divulge, publish, disclose, or authorize any other entity
or person to use, divulge, publish, or disclose, the Technical Data, or other
knowledge or information and IMS shall take all reasonable actions to prevent
the respective employees of each from using, divulging, publishing, or
disclosing the same. IMS shall require all of its employees, representatives,
and/ or contractors to execute non-disclosure agreements in a form to be
approved by ALIGN prior to such employees / contractors being provided any
access to ALIGN information. In addition, IMS acknowledges that ALIGN's clients
may provide ALIGN with Protected Health Information ("PHI"), defined as
individually identifiable health information that is protected by HIPAA and
regulations promulgated there under. IMS, its employees and consultants shall
not use or disclose such PHI, if any, provided to IMS other than as permitted
hereunder or as required by law. IMS shall use appropriate safeguards to prevent
the use, reproduction or disclosure of PHI, including without limitation the
training of Employees and Salaried Personnel concerning IMS's policies and
procedures to protect PHI. Employees and Salaried Personnel will adhere to the
policies and procedures of ALIGN related to HIPAA, as such are provided by ALIGN
to IMS.
8. REPRESENTATIONS.
IMS represents, warrants, and undertakes to ALIGN and ALIGN represents, warrants
and undertakes to IMS the following:
(i) IMS' and ALIGN officers, directors, controlling shareholders,
agents or employees thereof are not prohibited by any
agreement, contract or other obligation from fulfilling any
obligations and this Agreement;
(ii) Neither the execution of this Agreement nor compliance with
the terms and conditions hereof will constitute a breach of
any statute, ordinance, law, or regulation of any governmental
authority or of any instrument, document or other duty to
which IMS is a party or may be bound either in the United
States or Mexico; and
(iii) IMS and ALIGN are corporations duly organized and validly
existing under Applicable Laws. This Agreement has been duly
authorized, executed and delivered by IMS and ALIGN, and is
legally valid and enforceable against IMS and ALIGN in
accordance with its terms. Neither the execution and delivery
nor the performance by IMS or ALIGN of this Agreement requires
the approval of, notice to, or any other action respecting any
government authority.
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IMS/ALIGN Shelter Agreement
December 22, 2005
IMS represents, warrants, and undertakes to ALIGN the following:
(i) All Services and related activities to be performed by IMS
under or in connection with this Agreement including, without
limitation, all importations into and exportations from
Mexico, services, all shipments of Equipment and other items
into and out of Mexico, and all labor, production, and other
performance of this Agreement to be performed in Mexico will
be accomplished in strict compliance with all applicable
statutes, ordinances, laws, and regulations of any
governmental authority in both the United States of American
and the United Mexican States;
(ii) IMS is aware of and understands the United States Foreign
Corrupt Practices Act of 1977, as amended, and agrees to abide
by and instruct IMS, to abide by its applicable provisions.
IMS warrants that no portion of any compensation paid to it
hereunder will be given directly or indirectly as payment to
any person or entity, specifically including any official,
employee, or representative of any government or governmental
agency, as a fee, bribe, kick-back, or other illegal payment
in connection with the application for any approval necessary
for the performance of this Agreement.
(iii) IMS shall not during this Agreement or in the future enter
into any agreement with, or perform any services for, any
direct competitor of ALIGN. In addition IMS will not enter
into any agreement for any other entity in the orthodontics or
dental products or services industries during this Agreement
and for a period of one year thereafter without the written
consent of ALIGN that may not be unreasonably withheld. This
provision does not limit or restrict IMS's current contractual
obligations with White Hill Oral Technologies as associated
with dental floss.
9. TERM.
This Agreement shall be effective upon the Effective Date agreed upon and
inserted into paragraph 1, page 1 and ALIGN covenants and agrees that it will
continue in effect for an original term (herein, "Original Term") of FIVE (5)
years. This Agreement may be extended in writing by ALIGN no later than ninety
(90) days prior to end of the then-current Original Term or Extended Term for
successive two (2) year periods (each an "Extended Term"), at the sole
discretion of ALIGN. Each Extended Term shall be subject to the same terms and
conditions as are established herein, unless otherwise agreed to by the parties
in writing.
9.1 TERMINATION.
This Agreement may be terminated by either Party hereto in the event that the
other Party:
(i) breaches any material term or condition of this Agreement and
the material breach is not cured within thirty (30) days,
unless another period of time is specified herein as to a
specific breach, of the date of written notice of the breach
to the breaching Party specifying the circumstances which
constitute such breach. Should the material breach so
specified in the notice not be cured at the end of such thirty
(30) day period, the Party giving such notice may terminate
this Agreement immediately upon expiration of such 30 day
period;
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IMS/ALIGN Shelter Agreement
December 22, 2005
(ii) ceases business in the ordinary course, admits in writing its
inability to pay any amounts due, files or has filed against
it a proceeding in bankruptcy or insolvency under any
Applicable Laws, or makes an assignment for the benefit of
creditors;
9.2 TERMINATION BY ALIGN.
ALIGN may terminate this Agreement immediately upon notice to IMS upon the
enactment of any law, decree, or regulation by any government that would impair
or restrict: (i) the right of ALIGN to terminate or elect not to renew this
Agreement as herein provided; (ii) ALIGN's right to fully benefit from the
Services to be provided by IMS hereunder; or (iii) ALIGN's right, title or
interest in or to its rights in the intellectual property belonging to or
assigned to ALIGN under Section 7.
9.3 TERMINATION AT WILL.
At any time after the end of the third year of the Original Term:
o IMS may terminate this Agreement upon no less than 9 months
written notice to ALIGN.
o Align may terminate the Agreement provided that ninety (90)
day written notice is provided to IMS.
9.4 TRANSITION PERIOD.
IMS shall provide to ALIGN, at no additional cost, transition services for
thirty (30) consecutive days prior to the expiration and/or termination of this
Agreement, except in cases where the termination was immediate pursuant to the
Agreement. The transition services will include the continuation of Services
(unless otherwise requested by Align), advice and assistance with respect to all
activities of ALIGN in Mexico along, including without limitation, manufacturing
and operations with reasonable cooperation in transitioning the Services
internally to Align or to another third party provider ("Transition Services").
Align will extend the Transition Services from the date of termination and/or
expiration of this Agreement for an additional sixty (60) days time and ALIGN
may enter into a longer transition period if the parties mutually agree
(collectively hereinafter, "Extended Transition Period") wherein IMS will
provide the same services required under the Transition Services. ALIGN shall
pay IMS a Transition Fee equal to $1.50 in U.S. Dollars for each payroll hour
worked (i) on the Premises or for ALIGN and (ii) during the Extended Transition
period by personnel of IMS that have transferred or will be transferred to ALIGN
upon the termination or expiration of the Agreement or shortly thereafter.
During the Transition Period or Extended Transition Period IMS will, at ALIGN's
request:
(i) transfer all employees, except as set forth above, without
additional fees to Align (except those reasonably expected for
such transfer such as legal fees, registration fees which
shall be passed through to ALIGN by IMS at cost), engaged in
providing services to ALIGN;
(ii) use reasonable efforts to transfer to ALIGN the lease for the
Premises or, if such transfer is not feasible, to enter into a
space-sharing arrangement to allow the Employees and Salaried
Personnel to continue manufacturing the ALIGN Products from
such location;
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December 22, 2005
(iii) provide ALIGN with machine-readable copies of all
electronically stored Technical Data and other ALIGN
confidential and proprietary information:
(iv) deliver to ALIGN all paper copies of the Technical Data and
other ALIGN confidential and proprietary information, or
destroy the same and then certify such destruction to ALIGN in
writing; and
(v) transfer to ALIGN, or to a third party designated by ALIGN,
any maintenance agreements relating to the Equipment, the
Equipment (by practical means, for example via a virtual
export/import if allowed by law) as well as any supplier,
software license or other agreements necessary to effectuate a
seamless transition of the Services to ALIGN.
9.5 ALIGN'S OBLIGATIONS UPON TERMINATION.
Upon the termination of this Agreement for causes attributed to IMS, ALIGN's
sole obligation shall be to pay to IMS any unpaid Service Fees, and Reimbursable
Expense which IMS has or properly incurred and which have been accepted by ALIGN
through the date of termination and, if this Agreement is terminated or
production is stopped due to causes not attributable to the fault or negligence
of IMS, to reimburse IMS for any severance payments which it has paid in
accordance with ALIGN's instructions and the terms and conditions of this
Agreement. ALIGN's obligation to make any payment under this Section 9.5 will
not accrue until 30 days after IMS has provided ALIGN with an accounting of all
amounts due hereunder.
9.6 IMS' OBLIGATION UPON TERMINATION.
IMS shall immediately prepare and provide to ALIGN invoices covering all unpaid,
earned Service Fees through the date of termination, and all Reimbursable
Expenses which are properly payable to IMS and which have not been invoiced to
ALIGN.
9.7 SURVIVAL.
The rights and obligations of Sections 3.5, 4.2, 7.4, 6.9, 9.4, 9.5, 9.6, 10,
and 13-25 will survive any expiration or termination of this Agreement.
10. RETURN OF PROPERTY.
Upon expiration or termination of this Agreement for any reason and upon request
by ALIGN, IMS shall assist ALIGN, and cause ALIGN to immediately return to
ALIGN, on a Reimbursable Expense basis, to such location(s) as ALIGN may specify
in writing, all Equipment, Components, unfinished and finished Products and all
other items of any nature which are the personal property or subject to the
lawful control of ALIGN. The existence of any outstanding invoice of IMS said to
be payable by ALIGN or of any dispute between the parties of any nature shall
not be cause for IMS to delay such return.
11. TRANSPORTATION TO/FROM MEXICO.
The Components, Technical Data, and Equipment to be supplied by ALIGN will be
shipped by IMS to ALIGN at the Premises, under the costs set forth in Exhibit B.
IMS will ship, on a Reimbursable Expense basis, completed Products to any
destination or place designated by ALIGN. IMS ship Products in conformance with
good commercial practice, government regulations and other applicable standards,
using any packaging materials supplied by ALIGN. IMS shall not alter any
packaging materials supplied by ALIGN.
12. U.S. CUSTOMS & DUTIES.
ALIGN will be the importer and exporter of record however IMS will comply with
all U.S. and foreign export control laws and/or regulations.
Page 18 of 22
IMS/ALIGN Shelter Agreement
December 22, 2005
12.1 MEXICAN CUSTOMS DOCUMENTATION.
IMS will assist ALIGN to import all Equipment, Components, Products and other
items into and out of Mexico. IMS shall be responsible for the preparation of
all documents, including commercial invoices, required by the government of
Mexico in connection therewith and the prompt payment of duties, fees, etc.
ALIGN will be responsible for all applicable Mexican Customs duties and
brokerages fees, bonds, taxes and any other charges, if any, imposed by the
Mexican government and by other parties for private services relating to
importation and exportation, in the understanding that IMS will make its best
efforts and carry out all procedures which may be required in order to reduce
the amounts of duties paid, including but not limited to obtaining Sector
Development Program registrations or reclassifying the items in question. This
expense will be billed as set forth in Exhibit B..
12.2 U.S. CUSTOMS DOCUMENTATION.
IMS will assist ALIGN with respect to the preparation of any and all documents
to be submitted to the United States Customs Service concerning any importation
to or exportation from the United States in which ALIGN is the importer or
exporter of record.
13. RELATIONSHIP OF THE PARTIES.
IMS will act at all times as an independent contractor, not as a partner, a
joint venture, subsidiary, affiliate, agent, or employee of ALIGN or its
subsidiaries and affiliates. No agent or employee of IMS will be entitled to
receive or be eligible to participate in any benefits, privileges, plans, or
compensation given or extended by ALIGN or its affiliates and subsidiaries to
ALIGN's employees. ALIGN shall exercise no control, other than as specified
herein, over the activities or operations of IMS. ALIGN is in no way associated
with or otherwise connected to the performance of this Agreement by IMS, nor is
ALIGN involved in or otherwise connected to the employment by IMS of labor, or
to the incurring by IMS of expenses in connection herewith (except as expressly
provided for herein).
14. INDEMNITY GENERAL.
Each Party shall indemnify, defend and hold the other Party and its
subsidiaries, affiliates, and their officers, directors, employees and agents
harmless from and against all claims, losses, damages, attorneys fees, costs,
etc., whether actual or alleged, arising out or resulting from any breach of
such Party's representations or warranties in this Agreement.
14.1 IMS' INDEMNITY.
IMS shall indemnify, defend and hold ALIGN and its subsidiaries, affiliates,
their officers, directors, employees and agents harmless from and against all
claims, losses, damages, punitive damages, liabilities, suits and related costs
and expenses, including reasonable attorney's fees and other costs of litigation
(hereinafter, the "Losses"), whether actual or alleged, arising out of or
related to any negligent or intentional acts or omissions of IMS in providing
services to ALIGN pursuant to the terms of this Agreement. The indemnity
obligation provided for herein will remain in effect during the period
established by the corresponding statute of limitations which may apply to the
obligation in question, as the case may be.
14.2 ALIGN'S INDEMNITY.
ALIGN will indemnify, defend and hold IMS and its subsidiaries, affiliates,
their officers, directors, employees and agents harmless from and against all
Losses arising from claims made by third parties, whether actual or alleged,
arising or resulting from the acts, omissions or negligence of ALIGN or its
employees or agents with respect to the design or marketing of the Products. The
indemnity obligation provided for herein will remain in effect during the period
established by the corresponding statute of limitations which may apply to the
obligation in question, as the case may be.
Page 19 of 22
IMS/ALIGN Shelter Agreement
December 22, 2005
14.3 INDEMNITY PROCEDURES.
The indemnified Party shall: (i) promptly notify the indemnifying Party of any
claim; (ii) allow the indemnifying Party full control over the defense and
settlement of such claim; and (iii) provide the indemnifying Party full
cooperation in the defense and settlement of such claim. The indemnified Party
may participate in the defense of any such claim with counsel of its own choice,
at its own expense.
15. NOTICES.
All notices, demands, and requests required under this Agreement shall be in
writing, and will be properly given if served personally, by registered or
certified mail (return receipt requested) or by overnight recognized courier,
addressed to the respective Party at the address last designated. Until the
parties designate otherwise, their addresses will be as follows:
INTERNATIONAL MANUFACTURING
ALIGN TECHNOLOGY, INC. SOLUTIONS - OPERACIONES, S. de R.L.
881 Martin Avenue c/o The Tecma Group, 2000 Wyoming Ave.
Santa Clara, CA 95050 El Paso, TX 79912
Attn: CEO and General Counsel Attn: K. Alan Russell
President
16. ASSIGNMENT.
This Agreement may not be assigned by either Party to any other without the
prior written consent of the other Party which will not be unreasonably
withheld, and any assignment in violation of the foregoing will be null and
void. IMS shall not delegate any of its obligations hereunder to any third party
without the prior written consent of ALIGN. However, ALIGN may assign this
Agreement to a subsidiary without such consent or in connection with a merger,
acquisition, or sale of all or substantially all of its relevant assets provided
that prior written notice is provided. Subject to the foregoing, this Agreement
will be binding upon the parties and their successors and assigns.
17. WAIVER.
The delay or failure of either Party to exercise any rights hereunder will not
be deemed to be a waiver of such right and the delay of failure of either Party
to terminate this Agreement or to pursue any other remedy provided for breach
will not be deemed to be a waiver of the right to do so for that or for any
subsequent breach, or for the persistence in a breach of a continuous nature.
18. SEVERABILITY.
If any term or provision of this Agreement or the application of it to any
person, entity or circumstances proves to any extent to be invalid or
unenforceable in any court of appropriate jurisdiction, the remainder shall not
be affected, but shall be valid and enforceable as if the invalid term or
provision were not a part of the Agreement.
19. GOVERNING LAW.
This Agreement shall be deemed to have been entered into in the State of New
York, in the United States of America. It shall be governed and construed by the
laws of the State of New York, without reference to its conflicts of laws
principles that would direct the application of the laws of another
jurisdiction. Any suit, action or proceeding with respect to the Agreement may
be brought only in the state courts of Federal or the federal courts of the
United States located therein and the Parties hereby submit to the jurisdiction
of such courts for such purposes and waive any other jurisdiction by any reason,
including, but not limited to, a Party's present or future domicile, personal
jurisdiction, any claim of inconvenient forum or otherwise.
Page 20 of 22
IMS/ALIGN Shelter Agreement
December 22, 2005
20. FORCE MAJEURE.
Neither Party shall be liable for failure to perform as required by any
provision of this Agreement where such failure results from a force majeure
beyond such Party's control, provided it has exercised commercially reasonable
efforts to avoid such failure. In the event of any delay attributable to a force
majeure, the time for performance affected thereby shall be extended for a
period equal to the time lost by reason of the delay; provided, however, that in
the event performance by IMS is delayed for longer than 30 days, ALIGN may
terminate this Agreement. Under this provision the parties may mutually agree to
terminate this Agreement.
21. COUNTERPARTS.
This Agreement may be executed in identical counterparts, including by facsimile
signature, each of which shall be deemed an original and which together shall
constitute one and the same instrument.
22. ENTIRE AGREEMENT.
This Agreement, together with the exhibits and any other attachments thereto,
constitutes the complete and exclusive agreement of the Parties with respect to
the subject matter hereof and supersedes all prior agreements, written or oral,
relating thereto. Any amendment of this Agreement must be made upon the express
written agreement of the Parties.
23. INTERNATIONAL MATTERS.
This Agreement is in the English language only, which language shall be
controlling in all respects, and all versions hereof in any other language shall
not be binding on the parties hereto. All communications and notices to be made
or given pursuant to this Agreement shall be in the English language. All
references to "dollars", "U.S. $" or "$" shall mean United States dollars.
24. REMEDIES.
The Parties agree that the covenants and obligations contained in this Agreement
relate to special, unique and extraordinary matters, and that one Party's
violation of any of such covenants or obligations may cause the other Party
irreparable injury for which adequate remedy at law will not be available; and
therefore, that upon any such breach of any such covenant or obligation, or any
threat thereof, the non-breaching Party shall be entitled to the immediate
remedy of a temporary restraining order, preliminary injunction or other such
form of injunctive or equitable relief in addition to whatever remedies they
might have at law.
Page 21 of 22
IMS/ALIGN Shelter Agreement
December 22, 2005
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
caused this Agreement to be executed by their duly authorized officers and have
signed their names on this the 22nd of December, 2005.
INTERNATIONAL MANUFACTURING ALIGN TECHNOLOGY, INC.
SOLUTIONS OPERACIONES, S. de R.L.
/s/ K. Alan Russell /s/ Thomas M. Prescott
---------------------- ----------------------
By: K. Alan Russell By: Thomas M. Prescott
Title: President Title: President and CEO
Date: December 22, 2005 Date: December 22, 2005
Page 22 of 22
ALIGN/IMS Shelter Agreement
Exhibit "A
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
EXHIBIT "A"
LIST OF COMPONENTS
UNIT OF
DESCRIPTION PART NUMBER MEASURE TYPE
- ---------------------------- ------------- ----------- ---------------
SLA 200-0058-0 ea Raw Material
SLA Brown Box AT0108 ea Raw Material
UPS Air Large Box AT0109 ea Raw Material
UPS Bubble Bag AT0110B ea Raw Material
UPS Envelope AT0110C ea Raw Material
Blue Box C01311 ea Raw Material
White Envelope C06293 ea Raw Material
PC15 Sheet C1028 ea Raw Material
EX30 Sheet C1026 ea Raw Material
EX30 roll C2454 ea Raw Material
EX-40 Sheet C1537 ea Raw Material
Block out Compound C1043 ea Raw Material
Tray lid C3254 ea Raw Material
Double Tray C1341 ea Raw Material
White Box C1081 ea Raw Material
Labels C1086 ea Raw Material
Sporox C1051-0 ea Raw Material
Liquid Nox C1050 ea Raw Material
Zymex ea Raw Material
KFL Compound AT-CB-5000046 ea Raw Material
Liquid Silicone C104 ea Raw Material
Resin CSL7520 ea Raw Material
Sporox Test Vials * ea Mfg Supplies
Hot Stamping Foil * ea Mfg Supplies
Abrasive Polisher 3/8 * ea Mfg Supplies
Metallic Stone * ea Mfg Supplies
3mm End Mill * ea Mfg Supplies
Zebra Label * ea Mfg Supplies
Zebra Ribbon * ea Mfg Supplies
3mm Porcelain Spheres * ea Mfg Supplies
1' V2030 Media Germany * ea Mfg Supplies
* These are not considered as part of the Bill of Materials because they are
consumable products
Exhibit "A
Page 1 of 1
ALIGN/IMS Shelter Agreement
Exhibit "B
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
EXHIBIT "B"
CROSS-BORDER, CUSTOMS AND TRANSPORTATION
BILLED BY IMS
-------------
TO MEXICO: SOUTHBOUND
o Shipper's export declaration, Mexican brokerage charges,
import documentation & Mexican broker's fees $ 60.00
o Bridge toll $ 22.00
o Transportation company:
o Full truck $ 80.00
-------------
o Total cost to Mexico (including a full truck) $ 162.00
TO THE UNITED STATES: Northbound
o Shipper's export declaration, Mexican brokerage charges,
import documentation & Mexican broker's fees $ 60.00
o Bridge toll $ 22.00
o Transportation company:
o Full truck $ 80.00
-------------
o Total cost to Mexico (including a full truck) $ 162.00
-------------
Total round trip cost: $ 324.00
-------------
Note: Bobtail or small truck cost is charged at $50 per crossing vs. $80
for large trailer.
TRANSPORTATION FEES DUE TO PLANT OPERATIONS (IN ADDITION TO THE ABOVE COST):
DESCRIPTION ACTION FLAT FEE
- ------------------------- ---------------------------------- -----------
Local movements Same side of border $ 38.00
Dock movements Moving trailers $ 13.00
Late After 30 minutes of wait time $ 13.00
False trip Called in, no load ready $ 38.00
Overnight stay Too late to cross $ 57.00
Held at customs U.S. or Mexico, for 1 day or more $ 100.00
Trailer rental Per day $ 35.00
Trailer rental Per month $ 250.00
Empty trailer Crossing $ 47.00
Exhibit "B"
Page 1 of 1
ALIGN/IMS Shelter Agreement
Exhibit "C
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
EXHIBIT "C"
COMMODATUM AGREEMENT
THIS COMMODATUM AGREEMENT (hereinafter "Agreement"), effective this
_______________, 2005 made between INTERNATIONAL MANUFACTURING SOLUTIONS
OPERACIONES, S. de R.L., a company organized and existing under the laws of the
Mexican United States having its corporate headquarters at Mayas 7710, Cd.
Juarez, Chihuahua, Mexico (hereinafter referred to as "IMS"), represented herein
by Mr. K. Alan Russell in his capacity as Legal Representative, and ALIGN
TECHNOLOGY, INC., a California corporation having its corporate headquarters at
881 Martin Avenue, Santa Clara, CA 95050 (hereinafter referred to as "ALIGN") is
as follows:
PREMISES
WHEREAS, IMS is a company organized and existing under the laws of the Mexican
United States; and
WHEREAS, IMS, for all legal purposes, designates the following as its address:
Mayas 7710, Parque Industrial Fernandez, Cd. Juarez, Chihuahua, Mexico; and
WHEREAS, IMS is a company devoted to the assembly and/or manufacturing of
finished products, their components and accessories, and
WHEREAS, IMS wishes to have in commodatum the Equipment, as hereinafter defined,
in order to fulfill the purposes mentioned hereinafter.
WHEREAS, IMS has the right to use certain machinery and equipment which is the
subject matter of this Agreement from ALIGN TECHNOLOGY CO. (hereinafter "ALIGN")
pursuant to an Equipment Use Agreement (a copy of the Equipment Use Agreement is
attached hereto as Annex 1 to this Agreement) and
WHEREAS, pursuant to the contractual terms of the Equipment Use Agreement
mentioned in the above paragraph, ALIGN is willing to give in commodatum to IMS
the machinery and equipment list (Equipment List, Attachment 2) which duly
signed by the parties will be attached to this Agreement (hereinafter referred
to as the "Equipment").
NOW THEREFORE, in consideration of the Premises and for other good and valuable
consideration, the parties hereto agree as follows:
ARTICLES
1. DEFINITIONS
Capitalized terms used herein but not otherwise defined shall have the meanings
given to them in the Shelter Agreement and Equipment Use Agreement.
Exhibit C
Page 1 of 4
ALIGN/IMS Shelter Agreement
Exhibit "C
2. USE OF EQUIPMENT.
IMS's use of the Equipment shall be in accordance with the terms and conditions
established in the Equipment Use Agreement.
3. DELIVERY OF EQUIPMENT.
Any Equipment delivered by ALIGN to IMS shall be in commodatum, at the times
agreed to by the parties and as otherwise specified in the Shelter Agreement.
The parties may, from time to time, amend the list attached (Equipment List,
Attachment 2 of this Commodatum Agreement) so that it may include machinery,
which may be delivered to IMS pursuant to the Shelter Agreement or other
agreement of the parties. These will be completed with all their parts,
additions and accessories in operating condition.
For identification purposes, IMS shall maintain adhered to the Equipment in
their original form the necessary labels and other ownership identification
indicating that the Equipment is the property of ALIGN. IMS shall also follow
any security provisions concerning the Equipment contained in the Shelter
Agreement.
4. EXPENSES.
Except as otherwise set forth in the Equipment Use Agreement or the Shelter
Agreement, the necessary expenses for the use, maintenance, repair and
preservation of the Equipment hereby given in commodatum shall be borne
exclusively by ALIGN.
5. LOCATION AND TITLE OF EQUIPMENT.
IMS shall maintain the Equipment at the Premises (as such term is defined in the
Equipment Use Agreement) and may not remove them from said location without the
prior written consent of ALIGN. IMS may not sell, assign, lease or encumber the
Equipment or any of its rights and obligations derived from this Agreement in
any manner whatsoever.
6. PRESERVATION AND MAINTENANCE OF EQUIPMENT.
IMS covenants and agrees to preserve and maintain the Equipment in accordance
with the requirements of the Equipment Use Agreement.
7. LIABILITY.
Except as otherwise set forth in the Equipment Use Agreement, IMS shall be
liable towards ALIGN for the total or partial loss of the Equipment, as well as
for the deterioration suffered thereby, except for the deterioration deriving
from its normal use, even when such is a result of acts of God or force majeure,
until the Equipment is returned to IMS pursuant to the terms of this Agreement.
8. RETURN OF EQUIPMENT.
This Agreement shall commence upon the Effective Date of the Shelter Agreement
and shall be for an indefinite term. Notwithstanding the foregoing, the
termination of the Equipment Use Agreement and Shelter Agreement will be a cause
of termination of this Agreement. This Agreement can be also terminated
immediately upon receipt by IMS of written termination notice from ALIGN.
IMS shall cease using and immediately return the Equipment to ALIGN when ALIGN
so requests it, or if IMS defaults pursuant to Section 9 of the Equipment Use
Agreement, since no specific duration for the commodatum has been agreed upon
hereunder. ALIGN has the right to demand the return of the Equipment at any
time, in which case this Agreement will immediately terminate.
Exhibit C
Page 2 of 4
ALIGN/IMS Shelter Agreement
Exhibit "C
9. RESPONSIBILITY.
Except as otherwise set forth in the Equipment Use Agreement, IMS will not
assume any responsibility or commitment towards any third party, with respect to
their personal property or their persons, resulting from the possession or use
of the Equipment or from the lack of skill in using them, nor for any other
reason whatsoever. IMS agrees to indemnify and hold ALIGN harmless with respect
to any such responsibility, liability or commitment.
10. INSPECTION OF EQUIPMENT.
IMS reserves unto itself the right to inspect the Equipment at any time
whatsoever, for the purpose of verifying the correct use and operation thereof;
provided, however, that any such inspection shall be in accordance with the
terms of the Equipment Use Agreement. IMS will permit ALIGN to inspect the
Equipment at any time.
11. COMPLIANCE.
IMS covenants, at its own expense, to comply with all laws, regulations and
other legal provisions applicable to the Equipment, including those set forth in
the Equipment Use Agreement, and to notify ALIGN immediately, in writing, of any
claim, demand, litigation, or any other lien, that might affect the Equipment.
12. RECOVERY OF EQUIPMENT.
IMS acknowledges that ALIGN will have the right to recover the Equipment at any
time and IMS covenants to deliver them to the Customs House of the City of El
Paso, upon request by ALIGN in accordance to Section 10 of the Equipment Use
Agreement. All expenses such as Mexican customs fees, export duties,
transportation and any other type of expense shall be borne exclusively by IMS.
13. GOVERNING LAW.
The parties agree that the applicable laws of the State of Chihuahua in the
United States of Mexico will govern this Agreement.
14. CONFLICT WITH EQUIPMENT USE AGREEMENT.
In the event of a conflict between this Agreement and the Equipment Use
Agreement or the Shelter Agreement, the terms and conditions of the Shelter
Agreement shall prevail, followed by the terms of the Equipment Use Agreement.
Any amendment of this Agreement must be made upon the express written agreement
of the Parties.
Exhibit C
Page 3 of 4
ALIGN/IMS Shelter Agreement
Exhibit "C
HAVING READ THE ABOVE AGREEMENT, the parties accepted and ratified it as of this
____ day of __________, 2004.
ALIGN TECHNOLOGY, INC. INTERNATIONAL MANUFACTURING
SOLUTIONS OPERACIONES, S. DE R.L.
_______________________________ ___________________________________
By: By: K. Alan Russell
Its _________________________ Its President
Date: _________________________ Date: _____________________________
WITNESS WITNESS
_______________________________ ___________________________________
Exhibit C
Page 4 of 4
ALIGN/IMS Shelter Agreement
Annex 1 to Exhibit "C"
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
ANNEX 1 TO EXHIBIT "C"
EQUIPMENT USE AGREEMENT
THIS EQUIPMENT USE AGREEMENT (hereinafter "Agreement") effective this
_______________, 2004, made between ALIGN TECHNOLOGY, INC. a California
corporation having its principal office at 881 Martin Avenue, Santa Clara, CA
95050 (hereinafter referred to as "ALIGN"), and INTERNATIONAL MANUFACTURING
SOLUTIONS OPERACIONES, S. DE R. L., a Mexican limited liability company having
its corporate headquarters at Mayas 7710 Parque Industrial Fernandez, Cd.
Juarez, Chihuahua, Mexico (referred to as "IMS") represented herein by K. Alan
Russell in his capacity as Legal Representative and, collectively, with ALIGN,
the "Parties" and, individually, each a "Party") is as follows:
RECITALS:
WHEREAS, the Parties executed a certain Shelter Agreement (the "Shelter
Agreement") of even date herewith, under which IMS has agreed to perform certain
Services (as such term is defined in the Shelter Agreement and any other
capitalized terms used herein but not otherwise defined shall have the meanings
given to them in the Shelter Agreement); and
WHEREAS, included within the scope of the Services will be the manufacture of
the Products in Mexico; and
WHEREAS, INTERNATIONAL MANUFACTURING SOLUTIONS OPERACIONES, S. DE R.L.,
(hereinafter referred to as "IMS"), has certain facilities and capabilities
necessary to assist with the Services; and
WHEREAS, ALIGN and IMS desire to enter into this Agreement so as to authorize
IMS' use of Equipment necessary for the manufacture, assembly and production of
the Products and specify further the obligations of IMS and ALIGN in connection
therewith.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth and for other good and valuable consideration, the Parties
hereto agree as follows:
ARTICLES:
1. USE OF EQUIPMENT.
ALIGN agrees to provide gratuitously to IMS, upon the terms and conditions set
forth in this Agreement and the Shelter Agreement, the machinery, tooling and
other equipment (hereinafter collectively referred to as the "Equipment"),
described in the Equipment List attached as Annex 2 to the Commodatum Agreement
and made a part hereof (and such other machinery, tooling, and other equipment
as ALIGN may subsequently provide to IMS, all of which will be added to the
Equipment List and, thus, become Equipment hereunder), for the exclusive purpose
of enabling IMS to fulfill its obligations under the Shelter Agreement and so
that, in furtherance thereof, IMS may enter into a commodatum agreement with
ALIGN (the "Commodatum Agreement"). ALIGN will deliver the Equipment to IMS in
accordance with the terms of the Shelter Agreement. IMS shall use the Equipment
only for the purposes for which it was built, and shall operate the Equipment
within the space, power and environmental conditions, if any, specified by
ALIGN.
Annex 1 to Exhibit "C"
Page 1 of 5
ALIGN/IMS Shelter Agreement
Annex 1 to Exhibit "C"
2. TERM.
This Agreement shall commence upon the Effective Date of the Shelter Agreement
and shall terminate upon termination of the Shelter Agreement.
3. RENT-FREE.
The Equipment shall be provided free of charge. The Parties understand and agree
that ALIGN is providing the Equipment to IMS in order that it may enter into the
Commodatum Agreement, and in order that IMS may provide the Services required
under the Shelter Agreement.
4. USE.
IMS will use the Equipment in a careful and safe manner and solely in connection
with the normal operation for the business required under the terms of the
Shelter Agreement and all in accordance with the other specifications set forth
therein. The Equipment, as indicated in the Shelter Agreement, shall be kept at
all times at the Premises, and shall not be removed there from by IMS without
the prior written consent of ALIGN.
5. TITLE.
As more specifically set forth in the Shelter Agreement, title to each item of
the Equipment shall remain the property of ALIGN at all times. All items of the
Equipment shall be deemed personal property; notwithstanding that, any item may
become affixed to the real estate on which the Premises are situated. As more
particularly set forth in the Shelter Agreement, IMS shall keep the Equipment
free and clear of all liens, encumbrances, security interests and claims.
6. MAINTENANCE AND REPAIR.
IMS, subject to the reimbursement and other provisions of the Shelter Agreement,
shall pay all installation costs with respect to each item of Equipment. At all
times during the term of this Agreement, IMS will take all reasonable steps to
care for, protect, and maintain each item of Equipment and all mechanical
devises in the condition in which they have been received by IMS (reasonable
wear and tear expected) and in such condition that they are capable of producing
goods which are of acceptable market quality, all in accordance with the terms
of the Shelter Agreement and any written instructions and guidelines provided by
ALIGN. With respect to any additions to Equipment or repairs thereto, IMS
further agrees and acknowledges that:
(i) all additions, attachments, accessories, and repairs that may
be made to or placed upon the Equipment shall only be done
upon the prior written approval of ALIGN and any such
additions, attachments, accessories, and repairs shall be
deemed to become part of the Equipment and shall be the sole
property of ALIGN; and
(ii) subject to the reimbursement and other provisions of the
Shelter Agreement, and the other guidelines provided by ALIGN
in accordance therewith, ALIGN shall have no responsibility
for the maintenance or repair of any item of Equipment after
it has been delivered to and accepted by IMS.
7. RISK AND LOSS.
All risk of loss or damage to the Equipment shall be borne by ALIGN, unless such
loss or damage results from a breach of IMS' obligations under Sections 4 and 6.
The Equipment shall be covered by insurance as provided for in the Shelter
Agreement. Except as otherwise set forth in the Shelter Agreement, IMS further
agrees and acknowledges that with respect to the making of repairs and, subject
to the reimbursement and other provisions of the Shelter Agreement:
Annex 1 to Exhibit "C"
Page 2 of 5
ALIGN/IMS Shelter Agreement
Annex 1 to Exhibit "C"
(i) IMS shall have the responsibility for the repair of any
damaged Equipment and shall repair or cause such Equipment to
be repaired promptly after damage, subject to the prior
approval and written instructions of ALIGN.
8. TAXES, FEES AND CHARGES.
Subject to the reimbursement and other provisions of the Shelter Agreement, and
except as otherwise provided for by the Shelter Agreement, IMS shall pay any and
all sales taxes, use taxes, excise taxes, personal property taxes, assessments,
employment taxes, and all other governmental exactions of any nature, whether
charged to ALIGN or IMS or others, on or relating to the Equipment or the use,
registration, rental, shipment, transportation, delivery, or operation thereof,
excepting federal or state income taxes of ALIGN.
9. DEFAULT.
The Parties agree and acknowledge that the termination events and corresponding
time periods set forth in Section 9 of the Shelter Agreement shall apply mutatis
mutandi to this Agreement. Upon the termination of this Agreement or the Shelter
Agreement, then ALIGN may elect either to: (i) retake possession of the
Equipment wherever found and for this purpose it may enter upon the Premises or
the property locations of IMS and remove the same; or (ii) request the return of
the Equipment in accordance with any procedures set forth in this Agreement and
the Shelter Agreement.
10. RE-DELIVERY.
Upon ALIGN's demand for the return of all or certain of the Equipment in
accordance with the procedures set forth in this Agreement and the Shelter
Agreement, IMS shall, at ALIGN's expense, deliver such Equipment to such address
as shall be specified by ALIGN, in the same condition as when received, subject
only to normal depreciation and wear and tear, all regardless of any then
existing default by ALIGN under this Agreement, the Shelter Agreement, the ease
regarding the Premises, or any other agreement between ALIGN and IMS.
11. ADDITIONAL UNDERTAKINGS.
IMS further covenants and agrees to the following:
(i) As more specifically stated in the Shelter Agreement, ALIGN
retains all title to the Equipment. IMS agrees not to modify
or duplicate any of the Equipment without first obtaining
ALIGN's written consent. As more specifically stated herein,
IMS agrees to care for properly, repair and maintain the
Equipment, and to instruct properly IMS employees as to the
proper and safe care and use of same; and
(ii) IMS agrees to take the actions necessary to ensure that third
persons are not misled as to who owns the Equipment and to
ensure that, in accordance with IMS's obligations under the
Shelter Agreement, no liens or other security interests are
attached to same; and
(iii) IMS AGREES TO TAKE DELIVERY OF THE EQUIPMENT "AS IS," AND
ALIGN HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IMS
further agrees that it shall indemnify and hold harmless ALIGN
against all losses, liabilities, costs and expenses, including
reasonable attorneys fees, arising out of, or relating to, any
breach of IMS' obligations under this Agreement or the Shelter
Agreement and any personal injuries to IMS' employees or other
persons and property damage that occur while the Equipment is
in IMS' possession.
Annex 1 to Exhibit "C"
Page 3 of 5
ALIGN/IMS Shelter Agreement
Annex 1 to Exhibit "C"
12. NOTICES.
All notices, demands and requests required under this Agreement shall be in
writing, and shall be properly given if served personally or if sent by
registered or certified mail, return receipt requested, addressed to the
respective Party, as the case may be, at the respective address last designated
by the other Party to this Agreement for such purpose, and will be deemed to be
effective upon the date of the Party's receipt of such notice. Until the Parties
designate other addresses, their addresses shall be as follows:
ALIGN: ALIGN TECHNOLOGY INC.
881 Martin Avenue,
Santa Clara, CA 95050
Attn.: CEO and General Counsel
IMS: International Manufacturing Solutions Operaciones,
S. de R.L.
c/o The TECMA Group, LLC
2000 Wyoming Ave.
El Paso, Texas 79903
Attn: K. Alan Russell
13. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the Parties
hereto and the successors and assigns of each, but shall not be assignable to
any third party without the written consent of the other Party, which consent
shall not be unreasonably withheld.
14. QUIET ENJOYMENT.
So long as IMS is not in default under this Agreement or the Shelter Agreement,
IMS shall peacefully and quietly have, hold and enjoy the use of the Equipment
during the term of this Agreement and the Shelter Agreement.
15. APPLICABLE LAW.
This Agreement shall be deemed to have been entered into in the State of
California, in the United States of America. It shall be governed and construed
by the laws of the State of New York, without reference to its conflicts of laws
principles that would direct the application of the laws of another
jurisdiction. Any suit, action or proceeding with respect to the Agreement may
be brought only in the state courts of New York or the federal courts of the
United States located therein and the Parties hereby submit to the jurisdiction
of such courts for such purposes and waive any other jurisdiction by any reason,
including, but not limited to, a Party's present or future domicile, personal
jurisdiction, any claim of inconvenient forum or otherwise.
16. COMMODATUM.
The Commodatum Agreement shall be co-terminus with the Shelter Agreement and
this Agreement.
Annex 1 to Exhibit "C"
Page 4 of 5
ALIGN/IMS Shelter Agreement
Annex 1 to Exhibit "C"
17. AUTHORIZATION.
By executing this Agreement, ALIGN expressly grants its authorization and
consent to IMS to enter into the Commodatum Agreement, under the terms and
conditions established herein. Each party acknowledges that is has the right to
have an attorney review the contents of this Agreement and failure to do so
shall be an express waiver of such right and shall not be a defense, including
but not limited to, failure to provide Services or adherence to the terms of
this Agreement.
18. ENTIRE AGREEMENT.
This Agreement, together with the Shelter Agreement and Commodatum Agreement,
constitute the complete and exclusive agreement of the Parties with respect to
the subject matter hereof and together such agreements supersede all prior
agreements, written or oral, relating thereto. Notwithstanding the foregoing, in
the event of a conflict between this Agreement and the Shelter Agreement, the
terms and conditions of the Shelter Agreement shall prevail. Any amendment of
this Agreement must be made upon the express written agreement of the Parties.
19. COUNTERPARTS.
This Agreement may be executed in identical counterparts, including by facsimile
signature, each of which shall be deemed an original and which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed multiple copies of this
Agreement as of the date set forth above.
ALIGN TECHNOLOGY, INC. INTERNATIONAL MANUFACTURING
SOLUTIONS OPERACIONES, S. DE R.L.
_______________________________ ___________________________________
By: By: K. Alan Russell
Title: Title: President
Annex 1 to Exhibit "C"
Page 5 of 5
ALIGN/IMS Shelter Agreement
Annex 2 to Exhibit "C"
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
ANNEX 2 TO EXHIBIT "C"
EQUIPMENT LIST
Hard copy attached hereto.
Annex 2 to Exhibit "C"
Page 1 of 1
ALIGN/IMS Shelter Agreement
Exhibit "D"
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
EXHIBIT "D"
PRICING MATRIX
1. PREMISES
The Align Space is a 51,866 sq ft portion of a facility commonly referred to as
IMS Plant 11, the Premises, which consists of a total area of 68,293sq ft.
o Pricing for the above described premises will be $0.46 per ft.
per month, invoiced monthly in advance without additional
mark-up.
o Total:
51,866 sq. ft. X $0.46 / sq. ft. = $ 23,858
Property Taxes @ $0.006 / sq. ft. = $ 311
Insurance @ $0.03 / sq. ft. = $ 1,556
Maintenance @ $0.02 / sq. ft. = $ 1,037
----------
Total per month = $ 26,762
Map of the Premises:
[GRAPHIC APPEARS HERE]
IMS will pay all VAT taxes associated with the Premises and such will not be
billed back to Align.
Exhibit "D"
Page 1 of 2
ALIGN/IMS Shelter Agreement
Exhibit "D"
2. HUMAN RESOURCES
Charges will be based on the cost of Headcount hours actually worked, plus the
percentage mark-up as per the matrix shown below. Weekly Headcount hours will
determine which matrix column applies for the invoice period.
Headcount 250-300 301-350 351-400 401-450
Headcount hrs/wk 11,350 to 13,500 13,545 to 15,750 15,795 to 18,000 18,045 to 20,250
Markup 38% 37% 36% 35%
Headcount 451-500 501-550 551-600 +
Headcount hrs/wk 20,295 to 22,500 22,545 to 24,750 24,795 to 27,000
Markup 34% 33% 32%
3. SHARED IN-PLANT SUPPORT.
The cost of this In-Plant Support will be billed per headcount hour (without
additional markup) based on the schedule shown below.
Headcount 250-300 301-350 351-400 401-450
Headcount 11,350 to 13,500 13,545 to 15,750 15,795 to 18,000 18,045 to 20,250
hrs/wk
In-Plant Support Cost
per Hour $0.90 $0.85 $0.80 $0.75
Headcount 451-500 501-550 551-600 +
Headcount 20,295 to 22,500 22,545 to 24,750 24,795 to 27,000
hrs/wk
In-Plant Support Cost $0.70 $0.65 $0.60
per Hour
4.- MEXICAN PAYABLES AND OTHER REMBURSABLE EXPENSES
o All MRO plant requirements, for capital purchases as desired,
utilities and customs and cross border transport will be Actual Cost
including IVA with no additional markup.
o Pricing for capital equipment will be Actual Cost including IVA with
no additional markup.
o Pricing for construction or installation management including design,
vendor payments and oversight will be Actual Cost including IVA with
no additional markup.
Exhibit "D"
Page 1 of 2
ALIGN/IMS Shelter Agreement
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
EXHIBIT "E"
REQUIRED INSURANCE COVERAGE
The parties will within 30 days from the Effective Date mutually agree on
acceptable coverage for all insurance policies and items referenced within the
Agreement.
IMS will provide a quote to Align for pollution liability insurance.
If the policy will provide a quantifiable break out of the loss of rental for
the premises, IMS will provide such to Align and the parties will discuss
elimination of such fee to Align.
ALIGN/IMS Shelter Agreement
EXHIBIT F
GUARANTY
THIS GUARANTY ("Guaranty") is made and entered into as of the __ day of
________________________, 2005, between ALIGN TECHNOLOGY, INC., represented
herein by _____________________________ (hereinafter referred to as the
"Guarantor"), and INMOBILIARIA PREMIER, S. DE R.L. DE C,V,, represented herein
by __________________________ (hereinafter referred to as the "Lessor").
W I T N E S S E T H:
WHEREAS, Guarantor and International Manufacturing Solutions
Operaciones, S. de R.L. de C.V. ("IMS") have entered into a cross-border
manufacturing transaction;
WHEREAS, IMS and Lessor have entered into a Lease Agreement, dated
____________________________, a copy of which is attached hereto as Addendum
"A"("Lease") regarding a portion of a facility comprising _______ sq. ft. and
allocated common areas totaling _____________ sq. ft., located at Calle Mayas
7710, Parque Industrial Fernandez, Ciudad Juarez, Chihuahua, Mexico; and
WHEREAS, Lessor entered into a five (5) year Lease with IMS provided
that Guarantor guarantees the performance of IMS for the first five (5) years of
such Lease as contained herein;
NOW, THEREFORE, in consideration of the promises, obligations and
liabilities mutually exchanged and created herein and in the Lease, and for
other good and valuable consideration, receipt of which is hereby acknowledged,
Guarantor agrees as follows:
1. To induce Lessor to enter into the Lease, Guarantor hereby, in
accordance with the terms hereof, unconditionally and irrevocably guarantees to
Lessor, its heirs, legal representatives and assigns, the punctual payment of
all monthly base rent (including occupancy costs such as CAM, taxes, utilities,
insurance, etc.) (the "Obligations") for the first five (5) years of the Lease
(the "Obligations Period"). That Lessor will provide prompt written notice to
Guarantor if Lessor has been unable to pay any of its obligations under the
Lease.
2. This is an irrevocable continuing guaranty that shall remain
in effect until the expiration of the last statute of limitations period for any
claims for the Obligations during the Obligations Period that Lessor may have
against IMS. Unless otherwise expressly agreed in writing by Guarantor, this
Guaranty shall not apply to any addendums, renewals, extensions, options,
expansions, amendments and modifications of the Lease or of any Obligation there
under.
3. No invalidity, irregularity or unenforceability of all or any
part of the Obligations of IMS guaranteed hereunder shall affect, impair or be a
defense to Guarantor's obligations under this Guaranty, and this Guaranty shall
be a primary obligation of Guarantor. The Obligations, covenants, agreements and
duties of Guarantor under this Agreement shall in no way be affected or impaired
by (i) the voluntary or involuntary bankruptcy, assignment for the benefit of
creditors, reorganization or similar proceeding affecting IMS or any of IMS'
assets, or (ii) the release of IMS from the performance or observation of any of
the Obligations by IMS' bankruptcy or other operation of law.
ALIGN/IMS Shelter Agreement
4. No failure by Lessor to insist upon the strict performance of
any provision hereof or of the Lease or to exercise any right, power or remedy
consequent upon a breach of the Lease, and no submission by the Guarantor or IMS
or acceptance by Lessor of full or partial rent or performance during the
continuance of any such breach, shall constitute a waiver of any such breach or
of any such provision. No waiver of any breach of the Lease or of this Agreement
shall affect or alter this Agreement or the rights of Lessor with respect to any
other then existing or subsequent breach.
5. Guarantor agrees that Lessor may proceed against Guarantor
directly and independently and that the cessation of the liability or
responsibility of others for the Obligations for any reason other than full
payment, shall not in anywise affect the liability of the Guarantor. The
obligations of the Guarantor and those of any other guarantor or guarantors who
may have guaranteed or who hereafter guaranty the Obligations are and will be
joint and several, and Lessor may release or settle with any one or more of the
guarantors at any time without affecting the continuing liability of the
remaining guarantor or guarantors.
6. This Agreement is for the benefit of Lessor, and for such
other persons as may from time to time be the assignee of Lessor and this
Agreement shall be transferable and assignable with the same force and effect
and to the same extent as the Lease may be assignable and transferable, it being
understood that upon the assignment or transfer by Lessor of the Lease, the
assignee of such Lease shall have all the rights granted to Lessor under this
Agreement. Should Lessor have to enforce this Guaranty and collect for
Obligations that IMS has failed to pay, Lessor acknowledges and agrees that IMS
is obligated to assign and Lessor agrees to authorize, at Guarantor's sole
election, all of its right, title and interest in the Lease to Guarantor,
thereby replacing IMS as Lessee. In addition, upon written notification from IMS
or ALIGN that the Shelter Agreement has terminated or has expired, IMS is
obligated to assign, and Lessor agrees to authorize, at Guarantor's sole
election, all of its right, title and interest in the Lease to Guarantor,
wherein ALIGN will replace IMS as lessee under the Lease. Lessor hereby consents
to such assignment of the Lease by IMS and assumption by Guarantor.
7. Lessor will give Guarantor notice of IMS' default in payment
or performance of the Obligations and an opportunity to cure such default for
thirty (30) business days after such notice is sent, prior to taking action to
enforce this Guaranty against Guarantor. Unless and until the Obligations have
been satisfied in full, Guarantor hereby further waives all of its rights of
subrogation, contribution and reimbursement which it would otherwise have
against IMS in the event Guarantor suffers any liability under this Guaranty.
8. No agreement exists between Guarantor and Lessor other than as
set forth herein. The rights and remedies of Lessor under this Guaranty and any
others otherwise created are cumulative and may be exercised singly or
concurrently, and the exercise of any one or more of them will not be a waiver
of any other. No acts, delay, or omission or course of dealing between Lessor
and IMS or Guarantor will act as a waiver of any of Lessor's rights or remedies
under this Agreement, and no wavier, change, modification or discharge of this
Agreement or any obligation created hereby will be effective unless in writing
signed by Lessor.
9. Guarantor hereby acknowledges that it has investigated fully
the benefits and advantages which will be derived by Guarantor from execution of
this Guaranty, and the Guarantor does hereby acknowledge, warrant and represent
that a direct or indirect benefit will accrue to Guarantor by reason of
execution of this Guaranty.
ALIGN/IMS Shelter Agreement
10. In an action for the interpretation and performance of this
Guaranty, Guarantor and Lessor each agrees to submit itself in the jurisdiction
of the Federal or State District Court, in the State of New York, United States
of America. The parties expressly waive the right to any other jurisdiction they
may have as a result of their present or future domiciles, or due to any other
cause whatsoever.
All notices and demands required or given under this Guaranty shall be
in writing and transmitted by facsimile, delivered by internationally
recognized air courier addressed as follows or as otherwise specified
by Lessor or Guarantor by notice hereunder, provided however that
facsimile alone is not sufficient notice.
To Guarantor: ALIGN TECHNOLOGY, INC.
881 Martin Avenue
Santa Clara, CA 95050
Attn: CEO and General Counsel
Fax: (408) 470-1024
To Lessor: INMOBILIARIA PREMIER, S de R.L.
C/O THE TECMA GROUP, L.P.
2000 Wyoming Ave.
El Paso, Texas 79903
Attn.: K. Alan Russell
Fax: 915-534-4252
CC: T.O. GILSTRAP, JR., P.C.
5915 Silver Springs
Building 2
El Paso, Texas 79912
Fax: 915-581-7934
Notices shall be deemed effective upon the earlier of receipt or 5
business days after they are sent.
ALIGN/IMS Shelter Agreement
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
entered into as of the day and year first above written.
THE "GUARANTOR"
ALIGN TECHNOLOGY, INC.
By: _________________________________
Printed Name: _________________________________
Title: _________________________________
THE "LESSOR"
INMOBILIARIA PREMIER, S. de R.L.
By: _________________________________
Printed Name: _________________________________
Title: _________________________________
ALIGN/IMS Shelter Agreement
ADDENDUM A
"Lease"
Intentionally left blank.
ALIGN/IMS Shelter Agreement
Schedule "A"
SHELTER AGREEMENT BETWEEN ALIGN AND IMS
SCHEDULE "A"
MISCELLANEOUS
HAZARDOUS MATERIALS
In General. IMS shall not cause, nor permit, any hazardous materials to be
brought upon, produced, stored, used, discharged or disposed of in, on or about
the premises unless such is in compliance with applicable environmental laws and
ALIGN's procedures as designated by ALIGN from time to time. "Hazardous
materials" shall mean, collectively, any pollutant, contaminant, or flammable,
explosive, radioactive material, biohazards, hazardous waste, toxic substance or
related material.
Mixing of Chemicals. IMS shall take steps to ensure that its employees take
appropriate precautions so as to avoid mixing any hazardous materials, or mixing
any non-hazardous materials in ways that may cause injury to persons or
property.
Training. Employees must be given training and information on hazardous
materials as well as non-hazardous materials, prior to initial assignment and
during employment, in their work area. Each employee who may be exposed to
hazardous chemicals when working must be provided information and trained prior
to initial assignment to work with a hazardous chemical, and whenever the hazard
changes. Employees must also be given training and information regarding
procedures relating to the disposal and transport of hazardous and non-hazardous
materials. IMS shall also ensure that employees are properly informed as to
appropriate procedures to contain or clean up any accident involving hazardous
materials.
Labeling. Each hazardous substance container must be labeled with both the
identity of the hazardous materials and the appropriate warnings. Labels
provided by the product manufacturers or distributors may not be removed,
altered or defaced. In lieu of affixing labels to the containers, IMS may
communicate the required information through appropriate signage, placards,
operating procedures or other written materials.
HEALTH AND SAFETY
Protective Equipment. Protective equipment, including personal protective
equipment for eyes, face, head, and extremities, protective clothing,
respiratory devices, and protective shields and barriers, shall be provided,
used, and maintained in a sanitary and reliable condition wherever necessary or
appropriate by reason of hazards of processes or environment, chemical hazards,
radiological hazards, or mechanical irritants encountered in a manner capable of
causing injury or impairment in the function of any part of the body through
absorption, inhalation or physical contact. IMS shall select and require
employees to use appropriate hand protection when employees' hands are exposed
to hazards such as those from skin absorption of harmful substances; severe cuts
or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and
harmful temperature extremes.
Schedule "A"
Page 1 of 2
Training. IMS shall provide employees with training and information on health
and safety issues, including without limitation the procedures to seek medical
help for work-related health issues.
Work Environment. IMS shall maintain a clean work environment so as to prevent
any health and safety problems.
Material Safety Data Sheets. IMS shall maintain a Material Safety Date Sheet
(MSDS) for each hazardous chemical it uses. Each MSDS must provide information
about the hazardous chemical, including its potential hazardous effects, its
physical and chemical characteristics and recommendations for appropriate
protective measures. IMS shall provide access to the MSDSs to its employees by
maintaining copies of them at each point of use, the front lobby and in the
chemical storage area.
Emergency Exits and Routes. Emergency exits and routes must be clearly
identified. IMS shall inform employees of appropriate evacuation procedures in
the event of an emergency. Each exit route must be a permanent part of the
workplace. Employees must be able to open an exit route door from the inside at
all times without keys, tools, or special knowledge. A device such as a panic
bar that locks only from the outside is permitted on exit discharge doors. Exit
route doors must be free of any device or alarm that could restrict emergency
use of the exit route if the device or alarm fails.
Additional Precautions. Safeguards designed to protect employees during an
emergency (e.g., sprinkler systems, alarm systems, fire doors, exit lighting)
must be in proper working order at all times. IMS must install and maintain an
operable employee alarm system that has a distinctive signal to warn employees
of fire or other emergencies, unless employees can promptly see or smell a fire
or other hazard in time to provide adequate warning to them.
SECURITY
IMS and Align shall cooperate in good faith to produce no later than ninety (90)
days after the Effective Date of the Agreement an information and security plan
to be followed by IMS in the performance of the Services. Upon completion such
shall be attached hereto and incorporated into this Agreement.
Schedule "A"
Page 2 of 2