EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of December 30, 2005, by and between
Darrell Zoromski (the "Executive") and Align Technology, Inc., a Delaware
corporation (the "Company").
1. Duties and Scope of Employment.
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(a) Position. For the term of his employment under this
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Agreement ("Employment"), the Company agrees to employ the Executive in the
position of Vice President, Global Marketing and Chief Marketing Officer. The
Executive shall report to the Chief Executive Officer (the "CEO"). The Executive
accepts such employment and agrees to discharge all of the duties normally
associated with said position, and to faithfully and to the best of his
abilities perform such other services consistent with his position as Vice
President, Chief Marketing Officer as may from time to time be assigned to him
by the CEO.
(b) Obligations to the Company. During the term of his
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Employment, the Executive shall devote his full business efforts and time to the
Company. The Executive agrees not to actively engage in any other employment,
occupation or consulting activity for any direct or indirect remuneration
without the prior approval of the CEO, provided, however, that the Executive
may, without the approval of the CEO, serve in any capacity with any civic,
educational or charitable organization. The Executive may own, as a passive
investor, no more than one percent (1%) of any class of the outstanding
securities of any publicly traded corporation.
(c) No Conflicting Obligations. The Executive represents
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and warrants to the Company that he is under no obligations or commitments,
whether contractual or otherwise, that are inconsistent with his obligations
under this Agreement. The Executive represents and warrants that he will not use
or disclose, in connection with his employment by the Company, any trade secrets
or other proprietary information or intellectual property in which the Executive
or any other person has any right, title or interest and that his employment by
the Company as contemplated by this Agreement will not infringe or violate the
rights of any other person or entity. The Executive represents and warrants to
the Company that he has returned all property and confidential information
belonging to any prior employers.
(d) Commencement Date. The Executive commenced full-time
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Employment on December 30, 2005.
2. Cash and Incentive Compensation.
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(a) Salary. The Company shall pay the Executive as
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compensation for his services a base salary at a gross annual rate of $240,000,
payable in accordance with the Company's standard payroll schedule. The
compensation specified in this Subsection (a), together with any adjustments by
the Company from time to time, is referred to in this Agreement as "Base
Salary."
(b) Target Bonus. The Executive shall be eligible to
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participate in an annual bonus program (beginning in calendar year 2006) that
will provide him with an opportunity to earn a potential annual bonus equal to
60% of the Executive's Base Salary. The amount of the bonus shall be based upon
the performance of the Executive, as set by the individual performance
objectives described in this Subsection, and the Company in each calendar year,
and shall be paid by no later than January 31 of the following year, contingent
on the Executive remaining employed by the Company as of such date. The
Executive's individual performance objectives and those of the Company's shall
be set by the CEO after consultation with the Executive by no later than March
31, of each calendar year. Any bonus awarded or paid to the Executive will be
subject to the discretion of the Board.
(c) Stock Options. The Executive shall be eligible for an
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annual incentive stock option grant subject to the approval of the Board. The
per share exercise price of the option will be equal to the per share fair
market value of the common stock on the date of grant, as determined by the
Board of Directors. The term of such option shall be ten (10) years, subject to
earlier expiration in the event of the termination of the Executive's
Employment. The Executive shall vest in 25% of the option shares after the first
twelve (12) months of continuous service and shall vest in the remaining option
shares in equal monthly installments over the next three (3) years of continuous
service. The grant of each such option shall be subject to the other terms and
conditions set forth in the Company's 2005 Incentive Plan and in the Company's
standard form of stock option agreement.
3. Vacation and Executive Benefits. During the term of his
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Employment, the Executive shall be eligible for 17 days vacation per year, in
accordance with the Company's standard policy for senior management, as it may
be amended from time to time. During the term of his Employment, the Executive
shall be eligible to participate in any employee benefit plans maintained by the
Company for senior management, subject in each case to the generally applicable
terms and conditions of the plan in question and to the determinations of any
person or committee administering such plan.
4. Business Expenses. During the term of his Employment, the
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Executive shall be authorized to incur necessary and reasonable travel,
entertainment and other business expenses in connection with his duties
hereunder. The Company shall reimburse the Executive for such expenses upon
presentation of an itemized account and appropriate supporting documentation,
all in accordance with the Company's generally applicable policies.
5. Term of Employment.
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(a) Basic Rule. The Company agrees to continue the
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Executive's Employment, and the Executive agrees to remain in Employment with
the Company, from the commencement date set forth in Section 1(d) until the date
when the Executive's Employment terminates pursuant to Subsection (b) below. The
Executive's Employment with the Company shall be "at will," and either the
Executive or the Company may terminate the Executive's Employment at any time,
for any reason, with or without Cause. Any contrary representations, which may
have been made to the Executive shall be superseded by this Agreement. This
Agreement shall constitute the full and complete agreement between the Executive
and the Company on the "at will" nature of the Executive's Employment, which may
only be changed in an express written agreement signed by the Executive and a
duly authorized officer of the Company.
(b) Termination. The Company may terminate the
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Executive's Employment at any time and for any reason (or no reason), and with
or without Cause, by giving the Executive notice in writing. The Executive may
terminate his Employment by giving the Company fourteen (14) days advance notice
in writing. The Executive's Employment shall terminate automatically in the
event of his death or Permanent Disability. For purposes of this Agreement,
"Permanent Disability" shall mean that the Executive has become so physically or
mentally disabled as to be incapable of satisfactorily performing the duties
under this Agreement for a period of one hundred eighty (180) consecutive
calendar days.
(c) Rights Upon Termination. Except as expressly provided
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in Section 6, upon the termination of the Executive's Employment pursuant to
this Section 5, the Executive shall only be entitled to the compensation,
benefits and reimbursements described in Sections 2, 3 and 4 for the period
preceding the effective date of the termination. The payments under this
Agreement shall fully discharge all responsibilities of the Company to the
Executive.
(d) Termination of Agreement. The termination of this
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Agreement shall not limit or otherwise affect any of the Executive's obligations
under Section 7.
6. Termination Benefits.
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(a) General Release. Any other provision of this Agreement
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notwithstanding, Subsections (b), (c) or (d) below shall not apply unless the
Executive (i) has executed a general release in a form prescribed by the Company
of all known and unknown claims that he may then have against the Company or
persons affiliated with the Company, and (ii) has agreed not to prosecute any
legal action or other proceeding based upon any of such claims.
(b) Termination without Cause. If, during the term of this
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Agreement, and not in connection with a Change of Control as addressed in
Subsection (c) below, the Company terminates Executive's employment without
Cause or due to Permanent Disability or Executive resigns for Good Reason, then:
(i) the Executive shall immediately vest in an
additional number of shares under all outstanding options as if he had performed
twelve (12) additional months of service; and
(ii) the Company shall pay the Executive, in a
lump sum upon the effectiveness of the General Release to be executed by
Executive in accordance with Section 6(a) above, an amount equal to: (x) the
then current year's Target Bonus prorated for the number of days of Executive is
employed in said year; (y) one year's Base Salary; and (z) the greater of the
then current year's Target Bonus or the actual prior year's bonus. The
Executive's Base Salary shall be paid at the rate in effect at the time of the
termination of Employment.
(c) Upon a Change of Control. In the event of the occurrence
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of a Change in Control while the Executive is employed by the Company:
(i) the Executive shall immediately vest in an
additional number of shares under all outstanding options as if he had performed
twelve (12) additional months of service; and
(ii) if within twelve (12) months following the
occurrence of the Change of Control, one of the following events occurs:
(A) the Executive's employment is terminated
by the Company without Cause; or
(B) the Executive resigns for Good Reason
then the Executive shall immediately vest as to all
shares under all outstanding options and the Company shall pay the Executive, in
a lump sum, an amount equal to: (i) the then current year's Target Bonus
prorated for the number of days of Executive is employed in said year; (ii) one
year's Base Salary; and (iii) the greater of the then current year's Target
Bonus or the actual prior year's bonus. The Executive's Base Salary shall be
paid at the rate in effect at the time of the termination of Employment.
(d) Health Insurance. If Subsection (b) or (c) above applies,
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and if the Executive elects to continue his health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA")
following the termination of his Employment, then the Company shall pay the
Executive's monthly premium under COBRA until the earliest of (i) 12 months
following the termination of the Executive's Employment, or (ii) the date upon
which the Executive commences employment with an entity other than the Company.
(e) Definition of "Cause." For all purposes under this
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Agreement, "Cause" shall mean any of the following:
(i) Unauthorized use or disclosure of the
confidential information or trade secrets of the Company;
(ii) Any breach of this Agreement or the Employee
Proprietary Information and Inventions Agreement between the Executive and the
Company;
(iii) Conviction of, or a plea of "guilty" or
"no contest" to, a felony under the laws of the United States or any state
thereof;
(iv) Misappropriation of the assets of the
Company or any act of fraud or embezzlement by Executive, or any act of
dishonesty by Executive in connection with the performance of his duties for the
Company that adversely affects the business or affairs of the Company; or
(v) Intentional misconduct or the Executive's
failure to satisfactorily perform his/her duties after having received written
notice of such failure and at least thirty (30) days to cure such failure.
The foregoing shall not be deemed an exclusive list of all acts or
omissions that the Company may consider as grounds for the termination of the
Executive's Employment.
(f) Definition of "Good Reason." For all purposes under this
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Agreement, the Executive's resignation for "Good Reason" shall mean the
Executive's resignation within ninety (90) days the occurrence of any one or
more of the following events:
(i) The Executive's position, authority or
responsibilities being significantly reduced;
(ii) The Executive being asked to relocate his
principal place of employment such that his commuting distance from his
residence prior to the Change of Control is increased by over thirty-five (35)
miles;
(iii) The Executive's annual Base Salary or bonus
being reduced; or
(iv) The Executive's benefits being materially
reduced.
(g) Definition of "Change of Control." For all purposes under
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this Agreement, "Change of Control" shall mean any of the following:
(i) a sale of all or substantially all of the
assets of the Company;
(ii) the acquisition of more than fifty percent
(50%) of the common stock of the Company (with all classes or series thereof
treated as a single class) by any person or group of persons;
(iii) a reorganization of the Company wherein the
holders of common stock of the Company receive stock in another company (other
than a subsidiary of the Company), a merger of the Company with another company
wherein there is a fifty percent (50%) or greater change in the ownership of the
common stock of the Company as a result of such merger, or any other transaction
in which the Company (other than as the parent corporation) is consolidated for
federal income tax purposes or is eligible to be consolidated for federal income
tax purposes with another corporation; or
(iv) in the event that the common stock is traded
on an established securities market, a public announcement that any person has
acquired or has the right to acquire beneficial ownership of more than fifty
percent (50%) of the then-outstanding common stock and for this purpose the
terms "person" and "beneficial ownership" shall have the meanings provided in
Section 13(d) of the Securities and Exchange Act of 1934 or related rules
promulgated by the Securities and Exchange Commission, or the commencement of or
public announcement of an intention to make a tender offer or exchange offer for
more than fifty percent (50%) of the then outstanding Common Stock.
(h) Section 409A. Notwithstanding anything to the contrary in
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this Agreement, any cash severance payments otherwise due to Executive pursuant
to this Section 6 or otherwise on or within the six-month period following
Executive's termination will accrue during such six-month period and will become
payable in a lump sum payment on the date six (6) months and one (1) day
following the date of Executive's termination, provided, that such cash
severance payments will be paid earlier, at the times and on the terms set forth
in the applicable provisions of this Section 6, if the Company reasonably
determines that the imposition of additional tax under Section 409A of the
Internal Revenue Code of 1986, as amended ("Code Section 409A"), will not apply
to an earlier payment of such cash severance payments. In addition, this
Agreement will be deemed amended to the extent necessary to avoid imposition of
any additional tax or income recognition prior to actual payment to Executive
under Code Section 409A and any temporary, proposed or final Treasury
Regulations and guidance promulgated thereunder and the parties agree to
cooperate with each other and to take reasonably necessary steps in this regard.
7. Non-Solicitation and Non-Disclosure.
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(a) Non-Solicitation. During the period commencing on the date
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of this Agreement and continuing until the first anniversary of the date when
the Executive's Employment terminated for any reason, the Executive shall not
directly or indirectly, personally or through others, solicit or attempt to
solicit (on the Executive's own behalf or on behalf of any other person or
entity) the employment of any employee of the Company or any of the Company's
affiliates.
(b) Proprietary Information. As a condition of employment, the
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Executive has entered into a Proprietary Information and Inventions Agreement
with the Company, attached to this Agreement as Exhibit A, which is incorporated
herein by reference.
8. Successors.
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(a) Company's Successors. This Agreement shall be binding upon
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any successor (whether direct or indirect and whether by purchase, lease,
merger, consolidation, liquidation or otherwise) to all or substantially all of
the Company's business and/or assets. For all purposes under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which becomes bound by this Agreement.
(b) Executive's Successors. This Agreement and all rights of
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the Executive hereunder shall inure to the benefit of, and be enforceable by,
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
9. Miscellaneous Provisions.
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(a) Notice. Notices and all other communications contemplated
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by this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by overnight courier, U.S.
registered or certified mail, return receipt requested and postage prepaid. In
the case of the Executive, mailed notices shall be addressed to him at the home
address which he most recently communicated to the Company in writing. In the
case of the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Secretary.
(b) Modifications and Waivers. No provision of this Agreement
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shall be modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by the Executive and by an
authorized officer of the Company (other than the Executive). No waiver by
either party of any breach of, or of compliance with, any condition or provision
of this Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another time.
(c) Whole Agreement. No other agreements, representations or
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understandings (whether oral or written) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter of this Agreement. This Agreement and the Proprietary
Information and Inventions Agreement contain the entire understanding of the
parties with respect to the subject matter hereof.
(d) Withholding Taxes. All payments made under this Agreement
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shall be subject to reduction to reflect taxes or other charges required to be
withheld by law.
(e) Choice of Law. The validity, interpretation, construction
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and performance of this Agreement shall be governed by the laws of the State of
California (except provisions governing the choice of law).
(f) Severability. The invalidity or unenforceability of any
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(g) Arbitration. Each party agrees that any and all disputes
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which arise out of or relate to the Executive's employment, the termination of
the Executive's employment, or the terms of this Agreement shall be resolved
through final and binding arbitration. Such arbitration shall be in lieu of any
trial before a judge and/or jury, and the Executive and Company expressly waive
all rights to have such disputes resolved via trial before a judge and/or jury.
Such disputes shall include, without limitation, claims for breach of contract
or of the covenant of good faith and fair dealing, claims of discrimination,
claims under any federal, state or local law or regulation now in existence or
hereinafter enacted and as amended from time to time concerning in any way the
subject of the Executive's employment with the Company or its termination. The
only claims not covered by this Agreement to arbitrate disputes are: (i) claims
for benefits under the unemployment insurance benefits; (ii) claims for workers'
compensation benefits under any of the Company's workers' compensation insurance
policy or fund; (iii) claims arising from or relating to the non-competition
provisions of this Agreement; and (iv) claims concerning the validity,
infringement, ownership, or enforceability of any trade secret, patent right,
copyright, trademark or any other intellectual property right, and any claim
pursuant to or under any existing confidential/proprietary/trade secrets
information and inventions agreement(s) such as, but not limited to, the
Proprietary Information and Inventions Agreement. With respect to such disputes,
they shall not be subject to arbitration; rather, they will be resolved pursuant
to applicable law.
Arbitration shall be conducted in accordance with the National Rules
for the Resolution of Employment Disputes of the American Arbitration
Association ("AAA Rules"), provided, however, that the arbitrator shall allow
the discovery authorized by California Code of Civil Procedure section 1282, et
seq., or any other discovery required by applicable law in arbitration
proceedings, including, but not limited to, discovery available under the
applicable state and/or federal arbitration statutes. Also, to the extent that
any of the AAA Rules or anything in this arbitration section conflicts with any
arbitration procedures required by applicable law, the arbitration procedures
required by applicable law shall govern.
Arbitration will be conducted in Santa Clara County, California or, if
the Executive does not reside within 100 miles of Santa Clara County at the time
the dispute arises, then the arbitration may take place in the largest
metropolitan area within 50 miles of the Executive's place of residence when the
dispute arises.
During the course of the arbitration, the Executive and the Company
will each bear equally the arbitrator's fee and any other type of expense or
cost of arbitration, unless applicable law requires otherwise, and each shall
bear their own respective attorneys' fees incurred in connection with the
arbitration. The arbitrator will not have authority to award attorneys' fees
unless a statute or contract at issue in the dispute authorizes the award of
attorneys' fees to the prevailing party. In such case, the arbitrator shall have
the authority to make an award of attorneys' fees as required or permitted by
the applicable statute or contract. If there is a dispute as to whether the
Executive or the Company is the prevailing party in the arbitration, the
arbitrator will decide this issue.
The arbitrator shall issue a written award that sets forth the
essential findings of fact and conclusions of law on which the award is based.
The arbitrator shall have the authority to award any relief authorized by law in
connection with the asserted claims or disputes. The arbitrator's award shall be
subject to correction, confirmation, or vacation, as provided by applicable law
setting forth the standard of judicial review of arbitration awards. Judgment
upon the arbitrator's award may be entered in any court having jurisdiction
thereof.
(h) No Assignment. This Agreement and all rights and
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obligations of the Executive hereunder are personal to the Executive and may not
be transferred or assigned by the Executive at any time. The Company may assign
its rights under this Agreement to any entity that assumes the Company's
obligations hereunder in connection with any sale or transfer of all or a
substantial portion of the Company's assets to such entity.
(i) Counterparts. This Agreement may be executed in two or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
DARRELL ZOROMSKI
/s/ Darrell Zoromski
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ALIGN TECHNOLOGY, INC.
/s/ Thomas M. Prescott
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By: Thomas M. Prescott
Title: President and CEO
EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
(ATTACHED)
ALIGN TECHNOLOGY, INC.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by
ALIGN TECHNOLOGY, INC. (the "Company"), and the compensation now and hereafter
paid to me, I hereby agree as follows:
1. PROPRIETARY INFORMATION. At all times during my employment and
thereafter, I will hold in strictest confidence and will not disclose, use,
lecture upon or publish any of the Company's Proprietary Information (defined
below), except as such disclosure, use or publication may be required in
connection with my work for the Company, or unless an officer of the Company
expressly authorizes such in writing. "Proprietary Information" shall mean any
and all confidential and/or proprietary knowledge, data or information of the
Company, its affiliated entities, customers and suppliers, including but not
limited to information relating to products, processes, know-how, designs,
formulas, methods, developmental or experimental work, improvements,
discoveries, inventions, ideas, source and object codes, data, programs, other
works of authorship, and plans for research and development. During my
employment by the Company I will not improperly use or disclose any confidential
information or trade secrets, if any, of any former employer or any other person
to whom I have an obligation of confidentiality, and I will not bring onto the
premises of the Company any unpublished documents or any property belonging to
any former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing by that former employer or
person.
2. ASSIGNMENT OF INVENTIONS.
2.1. Proprietary Rights. The term "Proprietary Rights" shall mean
all trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2. Inventions. The term "Inventions" shall mean all trade
secrets, inventions, mask works, ideas, processes, formulas, source and object
codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques.
2.3. Prior Inventions. I have set forth on Exhibit B (Previous
Inventions) attached hereto a complete list of all Inventions that I have, alone
or jointly with others, made prior to the commencement of my employment with the
Company that I consider to be my property or the property of third parties and
that I wish to have excluded from the scope of this Agreement (collectively
referred to as "Prior Inventions"). If no such disclosure is attached, I
represent that there are no Prior Inventions. If, in the course of my employment
with the Company, I incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I
will not incorporate, or permit to be incorporated, Prior Inventions in any
Company Inventions without the Company's prior written consent.
2.4. Assignment of Inventions. Subject to Section 2.6 and except
for those Inventions which I can prove qualify fully under the provisions of
California Labor Code 2870 (as set forth in Exhibit A), I hereby assign and
agree to assign in the future (when any such Inventions or Proprietary Rights
are first reduced to practice or first fixed in a tangible medium, as
applicable) to the Company all my right, title and interest in and to any and
all Inventions (and all Proprietary Rights with respect thereto). I will, at the
Company's request, promptly execute a written assignment to the Company of any
such Company Invention, and I will preserve any such Invention as part of the
Proprietary Information of the Company (the "Company Inventions").
2.5. Obligation to Keep Company Informed. I will promptly and fully
disclose in writing to the Company all Inventions during my employment and for
one (1) year after my employment, including any that may be covered by Section
2870. I agree to assist in every proper way and to execute those documents and
take such acts as are reasonably requested by the Company to obtain, sustain and
from time to time enforce patents, copyrights and other rights and protections
relating to Inventions in the United States or any other country.
2.6. Government or Third Party. I also agree to assign all my
right, title and interest in and to any particular Company Invention to a third
party, including without limitation the United States, as directed by the
Company.
3. NO CONFLICTING OBLIGATION. I REPRESENT that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
4. RETURN OF COMPANY DOCUMENTS. Upon termination of my employment with the
Company for any reason whatsoever, voluntarily or involuntarily, and at any
earlier time the Company requests, I will deliver to the person designated by
the Company all originals and copies of all documents and other property of the
Company in my possession, under my control or to which I may have access. I will
not reproduce or appropriate for my own use, or for the use of others, any
property, Proprietary Information or Company Inventions.
5. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
6. NOTICES. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three (3) days after the date of mailing.
7. EMPLOYMENT. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's right
to terminate my employment at any time, with or without cause.
GENERAL PROVISIONS. This Agreement will be governed by and construed according
to the laws of the State of California, as such laws are applied to agreements
entered into and to be performed entirely within California between California
residents. In case any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. This Agreement will be binding upon my heirs, executors, administrators
and other legal representatives and will be for the benefit of the Company, its
successors, and its assigns. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee. No waiver by the Company of any
breach of this Agreement shall be a waiver of any preceding or succeeding
breach. No waiver by the Company of any right under this Agreement shall be
construed as a waiver of any other right. The obligations pursuant to Sections 1
and 2 of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no
other agreement governs nondisclosure and assignment of inventions during such
period. This Agreement is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior discussions between us. No modification of or amendment to this Agreement,
nor any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company.
Dated: ________________
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(Signature)
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(Printed Name)
ACCEPTED AND AGREED TO:
ALIGN TECHNOLOGY, INC.
By:
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Title:
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(Address)
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Dated: _____________
EXHIBIT A
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California
Labor Code that the foregoing Agreement between you and the Company does not
require you to assign or offer to assign to the Company any invention that you
developed entirely on your own time without using the Company's equipment,
supplies, facilities or trade secret information except for those inventions
that either:
1. Relate at the time of conception or reduction to practice of
the invention to the Company's business, or actual or demonstrably anticipated
research or development of the Company;
2. Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to require you to
assign an invention otherwise excluded from the preceding paragraph, the
provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or invention
covered by a contract between the Company and the United States or any of its
agencies requiring full title to such patent or invention to be in the United
States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By:
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(PRINTED NAME OF EMPLOYEE)
Date: _______________
WITNESSED BY:
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(PRINTED NAME OF REPRESENTATIVE)
EXHIBIT B
TO: ALIGN TECHNOLOGY, INC.
FROM:
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DATE: _________________
SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list
of all inventions or improvements relevant to the subject matter of my
employment by ALIGN TECHNOLOGY, INC. (the "Company") that have been made or
conceived or first reduced to practice by me alone or jointly with others prior
to my engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
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[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1.
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2.
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3.
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[ ] Additional sheets attached.