UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
August
16, 2009
Date of
Report (date of earliest event reported)
ALIGN
TECHNOLOGY, INC.
(Exact
name of Registrant as specified in its charter)
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Delaware
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0-32259
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94-3267295
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(State
or other jurisdiction of
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(Commission
File Number)
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
Number)
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881
Martin Avenue
Santa
Clara, California 95050
(Address
of principal executive offices)
(408)
470-1000
(Registrant’s
telephone number, including area code)
Not
applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry into a Material Definitive Agreement.
Settlement
Agreement
On August
16, 2009, Align Technology, Inc. (“Align”) and Ormco Corporation (“Ormco”)
entered into a Settlement Agreement (the “Settlement Agreement”), pursuant to
which Align has (1) paid Ormco a cash amount equal to approximately $13.15
million, and (2) agreed to issue to Danaher Corporation (“Danaher”), an
affiliate of Ormco up to 7,586,489 fully paid and nonassessable
shares of its Common Stock (the “Shares”), 5,561,489 of which were issued to
Danaher on August 16, 2009 pursuant to the Stock Purchase Agreement entered into
between Align and Danaher on August 16, 2009 (the “Stock Purchase Agreement”),
and subject to clearance under the Hart-Scott-Rodino Antitrust Improvements Act,
as amended (the “HSR Act”), 2,025,000 of which will be issued to Danaher as soon
as HSR Act clearance is received and all other conditions are met also pursuant
to the Stock Purchase Agreement (the “Second Tranche Shares”). If HSR
Act clearance has not been received by September 30, 2009, then from September
30, 2009 to February 28, 2010, Danaher may elect to receive either the Second
Tranche Shares or a cash payment in an amount equal to the number of such shares
times the average closing price for the 10 trading days preceding such
election. If the Second Tranche Shares have not been issued by
February 28, 2010, Danaher will receive the cash payment.
Pursuant
to the terms of the Settlement Agreement, Ormco and Align will request judgment
be entered on the claims resolved by the jury in the litigation involving the
parties that is pending in the U.S. District Court for the Central District of
California, Western Division, Case No. SACV 03-16 CAS (ANx) (the “Litigation”),
and that all remaining claims in the Litigation be dismissed with
prejudice.
In
addition, the Settlement Agreement includes the following terms:
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·
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A
release by Ormco of all past claims asserted by it against Align based
upon Ormco’s U.S. Patent Number 6,616,444 (the “Patent”) and an agreement
by Ormco not to assert against Align any claim of infringement based upon
the Patent as a result of Align’s activities relating to removable
aligners.
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·
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A
release by Align of any and all past and future claims that claims 37, 38,
39, 40, and 69 of the Patent are not infringed by Align, that claims 37,
38, 39, 40, 45 and 69 of the Patent are invalid, and that the Patent is
unenforceable and a waiver by Align of any right to appeal from or contest
any of the findings, judgments, rulings or orders made by the court in the
Litigation;
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·
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A
covenant by Align that it will not, anywhere in the world, initiate or
cause to be initiated against Ormco any claim of infringement of any
patent owned or controlled by Align that is existing as of August 16,
2009, or that issues from any patent application having a filing date, or
claiming priority to any patent application having a filing date, no later
than August 16, 2009, for any activities relating to those products
currently being manufactured and/or sold by Ormco, including any
enhancements to those products; provided, however, that those removable
aligner products are created without using a computer or other digital
means to create the physical model of the teeth on which the aligners are
formed; and
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Stock Purchase
Agreement
On August
16, 2009, Align and Danaher entered into the Stock Purchase
Agreement. The Shares may not be resold except pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the “Securities Act”) or an available exemption from registration under the
Securities Act and applicable state securities laws. In addition,
Danaher is contractually restricted from selling the Shares to any of Align’s
competitors or any activist investor until August 16, 2010.
The
Shares are also subject to a standstill period commencing on August 16, 2009 and
ending on the first to occur of (1) termination of the exclusivity period set
forth in the Joint Development, Marketing and Sales Agreement dated as of August
16, 2009 between Align and Ormco (the “Joint Development, Marketing and Sales
Agreement”), (2) February 16, 2011, or (3) a Standstill Termination Event (as
defined below), during which time Danaher may not: (i) acquire any voting
securities or rights to acquire any voting securities such that Danaher would
beneficially own in excess of approximately 11.4% of the outstanding voting
securities of Align (the “Contemplated Percentage”); provided, however, if a
party or group of persons formed for the purpose of acquiring, holding, voting
or disposing of voting securities which would be required under
Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) to file a statement on Schedule 13D (a “13D Group”) acquires
more shares of outstanding Align Common Stock than the Contemplated Percentage,
the Contemplated Percentage will be increased to that percentage, but not in
excess of 14.9%; (ii) participate in any solicitation of proxies; (iii) subject
any Shares to any voting arrangement or agreement with any third party; (iv)
make any public announcement of or proposal for extraordinary transaction
involving Align; (v) form or join a 13D Group, or other group for the purpose of
acquiring, holding, voting or disposing of securities of Align; (vi) otherwise
act or seek to control the management, Board of Directors or policies of Align;
or (vii) take any action that would reasonably be expected to require Align to
make a public announcement regarding the possibility of any of the events
described above.
A
“Standstill Termination Event” means: (i) Align enters
into any agreement with respect to any change in control of Align; (ii) any
person or 13D Group shall have become the beneficial owner of 20% or more of any
class of securities of Align; (iii) Align redeems any rights under any
shareholder rights plan to facilitate any change in control or any acquisition
of securities by any person or 13D Group, unless with respect to a modification
which would result in a person or 13D Group becoming the beneficial
owner of less than 20% of any class of securities of Align, Align
contemporaneously takes such action as may be necessary to permit Danaher to
acquire the same beneficial ownership in the aggregate as such person or 13D
Group and Align agrees to amend the definition of “Contemplated Percentage” to
permit such acquisition; (iv) a tender or exchange offer is made that if
consummated would constitute a change in control of Align; (v) any person or 13D
Group publicly announces an intention to commence a tender or exchange offer
that if consummated would constitute a change in control of Align; (vi) any
person or 13D Group commences a proxy solicitation by which the person or 13D
Group would, if successful, elect or acquire the ability to elect a majority of
the Board of Directors; or (vii) Align makes an assignment for the benefit of
creditors or commences any proceeding under any bankruptcy, reorganization,
insolvency, dissolution or liquidation law of any jurisdiction or any such
petition is filed or any such proceeding is commenced against Align or any of
its subsidiaries.
In
addition, during the Standstill Period, Danaher has agreed to vote all of the
Shares then owned by Danaher in favor of all ordinary course, non-extraordinary
matters approved by Align’s Board of Directors where such matters are submitted
to a vote, action by written consent or other approval of Align’s stockholders,
including nominees to the Board of Directors in accordance with recommendations
of the Board of Directors, increases in the authorized capital stock of Align
and amendments to, or adoptions of, employee stock option plans and employee
stock purchase plans, in each case which are approved by Align’s Board of
Directors.
Danaher
also has a preemptive right to maintain its Contemplated
Percentage. If at any time Align makes any public or nonpublic
offering or sale of any securities, other than those issued (i) pursuant to the
granting or exercise of stock options or awards under Align’s stock incentive
plans approved by the Board of Directors, (ii) in connection with acquisitions
by Align to stockholders of acquired companies, or (iii) to banks or similar
institutions pursuant to leasing or debt financing transactions, in connection
with sponsored research, collaboration, technology license, development, OEM,
marketing or other similar agreements or strategic partnerships, or to suppliers
or third party service providers in connection with the provision of goods or
services (the “New Securities”), Danaher has the right to acquire on the same
terms up to the amount of New Securities required to enable Danaher to maintain
the Contemplated Percentage.
In
addition, at any time upon Danaher’s request , Align has agreed to prepare and
file a shelf registration statement after August 16, 2010 covering the public
resale of all Shares, subject to certain conditions, including Align’s right to
postpone such registration as a result of a registration initiated by Align, or
if in the good faith judgment of Align’s Board of Directors, the filing of such
shelf registration statement would be detrimental to Align. Align has also
agreed to allow Danaher to “piggyback” its Shares on any registration initiated
by Align (other than the registration of securities and/or options or other
rights in respect thereof solely registered on Form S-4 or Form S-8), subject to
Align’s right to cutback the amount of such Shares from the registration under
certain conditions.
Joint Development, Marketing
and Sales Agreement
On August
16, 2009, Align and Ormco entered into the Joint Development, Marketing and
Sales Agreement, pursuant to which the parties have agreed to an exclusive
collaboration over the next seven years to jointly develop and commercialize a
unique orthodontic treatment system involving the use of both Align’s
Invisalign®
system and Ormco Insignia® brand customized
brackets and arch wire system, which system will be capable of treating even the
most complex orthodontic cases. While each party retains its rights
to all of its existing intellectual property, each grants a limited license to
the other to use its intellectual property in the development and
commercialization of the new treatment system.
A copy of
the Settlement Agreement and the Stock Purchase Agreement will be filed as an
exhibit to Align’s quarterly report on Form 10-Q for the period ending September
30, 2009.
The press
release announcing the transactions described above is attached as
Exhibit 99.1 to this Current Report on Form 8-K and is incorporated
herein by reference.
Item
3.02. Unregistered Sales of Equity Securities.
The
information called for by this item is contained in Item 1.01, which is
incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
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99.1
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Press
Release of Align Technology, Inc. issued on August 17,
2009.
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly
authorized.
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ALIGN TECHNOLOGY,
INC. |
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Date: August
17, 2009
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By:
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/s/
Thomas M. Prescott |
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Thomas
M. Prescott, |
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President
and Chief Executive Officer
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