Exhibit 10.19A
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into on
[DATE] by and between [EXECUTIVE (the “ Executive
”) and Align Technology, Inc., a Delaware corporation
(the “ Company ”).
1.
Duties and Scope of Employment .
(a) Position . For the
term of the Executive’s employment under this Agreement
(“ Employment ”), the Company agrees to employ
the Executive in the position of [TITLE]. The Executive shall
report to the Chief Executive Officer (the “ CEO
”). The Executive accepts such employment and agrees to
discharge all of the duties normally associated with said position,
and to faithfully and to the best of Executive’s abilities
perform such other services consistent with Executive’s
position as [TITLE] as may from time to time be assigned to
Executive by the CEO.
(b) Obligations to the
Company . During the term of the Executive’s
Employment, the Executive shall devote Executive’s full
business efforts and time to the Company. The Executive
agrees not to actively engage in any other employment, occupation
or consulting activity for any direct or indirect remuneration
without the prior approval of the CEO, provided, however, that the
Executive may, without the approval of the CEO, serve in any
capacity with any civic, educational or charitable
organization. The Executive may own, as a passive investor,
no more than one percent (1%) of any class of the outstanding
securities of any publicly traded corporation.
(c) No Conflicting
Obligations . The Executive represents and warrants to
the Company that Executive is under no obligations or commitments,
whether contractual or otherwise, that are inconsistent with
Executive’s obligations under this Agreement. The
Executive represents and warrants that the Executive will not use
or disclose, in connection with the Executive’s employment by
the Company, any trade secrets or other proprietary information or
intellectual property in which the Executive or any other person
has any right, title or interest and that the Executive’s
employment by the Company as contemplated by this Agreement will
not infringe or violate the rights of any other person or
entity. The Executive represents and warrants to the Company
that the Executive has returned all property and confidential
information belonging to any prior employers.
(d) Commencement Date
. The Executive commenced full-time employment in the
position set forth in Section 1 (a) above, effective
[DATE].
2.
Cash and Incentive Compensation .
(a) Salary . The
Company shall pay the Executive as compensation for the
Executive’s services a base salary at a gross annual rate of
[SALARY] payable in accordance with the Company’s standard
payroll schedule. The compensation specified in this
Subsection (a), together with any adjustments by the Company from
time to time, is referred to in this Agreement as “Base
Salary.”
(b) Target Bonus . The
Executive shall be eligible to participate in an annual bonus
program that will provide the Executive with an opportunity to earn
a potential annual bonus equal to [60%][70% in the case of Len
Hedge] of the Executive’s Base Salary. The amount of
the bonus shall be based upon the performance of the Executive, as
set by the individual performance objectives described in this
Subsection, and the Company in each calendar year, and shall be
paid by no later than January 31 of the following year,
contingent on the Executive remaining employed by the Company as of
such date. The Executive’s individual performance
objectives and those of the Company’s shall be set by the CEO
after consultation with the Executive by no later than
March 31, of each calendar year. Any bonus awarded or
paid to the Executive will be subject to the discretion of the
Board.
(c) Incentive Awards .
The Executive shall be eligible for an annual incentive stock
option grant and/or restricted stock unit award subject to the
approval of the Board in all respects, including the terms
described herein. The per share exercise price of the option
will be equal to the per share fair market value of the common
stock on the date of grant, as determined by the Board of
Directors. The term of such option shall be ten
(10) years, subject to earlier expiration in the event of the
termination of the Executive’s Employment. The
Executive shall vest in accordance with the vesting provisions
approved by the Compensation Committee of the Board of Directors,
which vesting is currently 25% of the option shares after the first
twelve (12) months of continuous service and shall vest in the
remaining option shares in equal monthly installments over the next
three (3) years of continuous service. Each restricted
stock unit award currently vests 25% on the one year anniversary of
the date of grant with 25% vesting yearly thereafter. The grant of
each such option and/or restricted stock unit shall be subject to
the other terms and conditions set forth in the Company’s
2005 Incentive Plan and in the Company’s standard form of
stock option agreement and restricted stock unit agreement, as
applicable.
3.
Vacation and Executive Benefits . During the term of
the Executive’s Employment, the Executive shall be eligible
to accrue 17 days vacation per year on a pro-rata basis throughout
the year, in accordance with the Company’s standard policy
for senior management, including provisions with respect to maximum
accrual, as it may be amended from time to time. During the
term of the Executive’s Employment, the Executive shall be
eligible to participate in any employee benefit plans maintained by
the Company for senior management, subject in each case to the
generally applicable terms and conditions of the plan in question
and to the determinations of any person or committee administering
such plan, and to the right of the Company to make changes in such
plans from time to time.
4.
Business Expenses . During the term of the
Executive’s Employment, the Executive shall be authorized to
incur necessary and reasonable travel, entertainment and other
business expenses in connection with her duties hereunder.
The Company shall reimburse the Executive for such expenses upon
presentation of an itemized account and appropriate supporting
documentation, all in accordance with the Company’s generally
applicable policies.
5.
Term of Employment .
(a) Basic Rule . The
Company agrees to continue the Executive’s Employment, and
the Executive agrees to remain in Employment with the Company, from
the commencement date set forth in Section 1(d) until the
date when the Executive’s Employment terminates pursuant to
Subsection (b) below. The Executive’s Employment
with the Company shall be “at will,” and either the
Executive or the Company may terminate the Executive’s
Employment at any time, for any reason, with or without
Cause. Any contrary representations, which may have
been
made to the Executive shall be superseded by
this Agreement. This Agreement shall constitute the full and
complete agreement between the Executive and the Company on the
“at will” nature of the Executive’s Employment,
which may only be changed in an express written agreement signed by
the Executive and a duly authorized officer of the
Company.
(b) Termination . The
Company may terminate the Executive’s Employment at any time
and for any reason (or no reason), and with or without Cause, by
giving the Executive notice in writing. The Executive may
terminate the Executive’s Employment by giving the Company
fourteen (14) days advance notice in writing. The
Executive’s Employment shall terminate automatically in the
event of Executive’s death or Permanent Disability. For
purposes of this Agreement, “Permanent Disability”
shall mean that the Executive has become so physically or mentally
disabled as to be incapable of satisfactorily performing the
essential functions of Executive’s position and duties under
this Agreement for a period of one hundred eighty (180) consecutive
calendar days.
(c) Rights Upon Termination
. Except as expressly provided in Section 6, upon the
termination of the Executive’s Employment pursuant to this
Section 5, the Executive shall only be entitled to the
compensation, benefits and reimbursements described in Sections 2,
3 and 4 for the period preceding the effective date of the
termination. The payments under this Agreement shall fully
discharge all responsibilities of the Company to the
Executive.
(d) Termination of Agreement
. The termination of this Agreement shall not limit or
otherwise affect any of the Executive’s obligations under
Section 7.
6.
Termination Benefits .
(a) General Release
Agreement . Any other provision of this Agreement
notwithstanding, Subsections (b), (c) or (d) below shall
not apply unless the Executive (i) has, within the time
prescribed by the Company, executed a General Release Agreement in
a form prescribed by the Company by which the Executive waives and
releases with irrevocable effect all known and unknown claims that
the Executive may then have against the Company or persons
affiliated with the Company which are waivable under applicable
law, and (ii) pursuant to such General Release Agreement has
agreed not to prosecute any legal action or other proceeding based
upon any of such claims to the full extent permissible under
applicable law, and (iii) pursuant to such General Release
Agreement has acknowledged Executive’s continuing obligations
under this Agreement and the Proprietary Information and Inventions
Agreement referenced below.
(b) Termination without
Cause . If, during the term of this Agreement, and not in
connection with a Change of Control as addressed in Subsection
(c) below, the Company terminates Executive’s Employment
without Cause or the Executive resigns for Good Reason,
then:
(i)
as of the date of termination of Employment, Executive shall
immediately conditionally vest in an additional number of shares
under all outstanding options and restricted stock units as if the
Executive had performed twelve (12) additional months of service,
subject to Executive’s execution of the General Release
Agreement described above with irrevocable effect and suspension of
exercise rights with respect to such conditionally vested shares
until such execution;
(ii)
the Company shall pay the Executive, in a lump sum upon the
effectiveness of the General Release to be executed by Executive in
accordance with Section 6(a)
above, an amount equal to: (x) the
then current year’s Target Bonus prorated for the number of
days of Executive is employed in said year; (y) one
year’s Base Salary; and (z) the greater of the then
current year’s Target Bonus or the actual prior year’s
bonus. The Executive’s Base Salary shall be paid at the
rate in effect at the time of the termination of
Employment.
(c) Upon a Change of Control
. In the event of the occurrence of a Change in Control while the
Executive is employed by the Company:
(i)
the Executive shall immediately vest in an additional number of
shares under all outstanding options and restricted stock units as
if the Executive had performed twelve (12) additional months of
service; and
(ii)
if within twelve (12) months following the occurrence of the Change
of Control, one of the following events occurs:
(A) the Executive’s employment is
terminated by the Company without Cause; or
(B) the Executive resigns for Good
Reason
then the Executive shall immediately
conditionally vest as to all shares under all
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