Exhibit 10.1





Exhibit 10.1




SECOND AMENDMENT TO EMPLOYMENT AGREEMENT

(Non CEO)




This Second Amendment to Employment Agreement is executed as of March 6, 2011, by and between
TomoTherapy Incorporated, a Wisconsin corporation (the “Company”), and Brenda S. Furlow, an
individual (“Employee”), and amends that certain Employment Agreement between the Employee
and Company entered into effective November 5, 2008, which was amended by the First Amendment
effective July 1, 2009 (the “Agreement”).



RECITALS




The Company wishes to revise the provision of the Agreement limiting benefits payable in
connection with a change in control, and the Employee agrees to such revised provision as set forth
herein.



NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the Company and Employee,




IT IS HEREBY AGREED AS FOLLOWS:



1. Section 3.2(d) of the Agreement is amended to delete the words “, subject to Section
3.2(g)” as they appear therein.



2. Section 3.2(g) of the Agreement is deleted in its entirety and replaced by the
following:




(g) Certain Additional Payments by the Company. (i) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined that any
payment, distribution or benefit by the Company or its affiliated companies to or for the
benefit of Employee (whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 3.2(g)) (a “Payment”) would be subject to the excise
tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by
Employee with respect to such excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee
shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such
that after payment by Employee of all taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.


 


 









 






(ii) Subject to the provisions of Section 3.2(g)(iii), all determinations
required to be made under this Section 3.2(g), including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by the
Company’s public accounting firm (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and Employee within 15 business
days of the receipt of notice from Employee that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting Firm
is serving as accountant or auditor for the individual, entity or group effecting
the Change of Control, Employee shall appoint another nationally recognized public
accounting firm to make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). All fees and expenses
of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,
as determined pursuant to this Section 3.2(g), shall be paid by the Company to
Employee within five days of the receipt of the Accounting Firm’s determination, but
in no event later than the last day of the calendar year following the calendar year
in which the related tax is remitted to the Internal Revenue Service. If the
Accounting Firm determines that no Excise Tax is payable by Employee, it shall
furnish Employee with a written opinion that failure to report the Excise Tax on
Employee’s applicable federal income tax return would not result in the imposition
of a negligence or similar penalty. Any determination by the Accounting Firm shall
be binding upon the Company and Employee. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made (“Underpayment”), consistent
with the calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 3.2(g)(iii) and Employee thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall determine
the amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of Employee.




(iii) Employee shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon as practicable but no
later than 10 business days after Employee is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid. Employee shall not pay such claim prior to the
expiration of the 30-day period following the date on which Employee gives such
notice to the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies Employee in
writing prior to the expiration of such period that it desires to contest such
claim, Employee shall:




(A) give the Company any information reasonably requested by the
Company relating to such claim,


 


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(B) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,




(C) cooperate with the Company in good faith in order effectively to
contest such claim, and




(D) permit the Company to participate in any proceedings relating to
such claim;




provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold Employee harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and penalties
with respect thereto) imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing provisions of this Section
3.2(g)(iii), the Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in respect
of such claim and may, at its sole option, either direct Employee to pay the tax
claimed and sue for a refund or contest the claim in any permissible manner, and
Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided further,
that if the Company directs Employee to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to Employee on an interest-free
basis and shall indemnify and hold Employee harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and provided further, that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
Employee with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company’s control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and Employee shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.


 


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(iv) If, after the receipt by Employee of an amount advanced by the Company
pursuant to Section 3.2(g), Employee becomes entitled to receive, and receives, any
refund with respect to such claim, Employee shall (subject to the Company’s
complying with the requirements of Section 3.2(g)(iii)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Employee of an amount advanced
by the Company pursuant to Section 3.2(g)(iii), a determination is made that
Employee shall not be entitled to any refund with
respect to such claim and the Company does not notify Employee in writing of
its intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.



3. All other provisions of the Agreement are not altered by this Second Amendment and remain
in full force and effect.



IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year written
above.



	 	 	 	 	 	 	 	 	 
	EMPLOYEE:	 	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 	 	 
	Brenda S. Furlow	 	 	 	TomoTherapy Incorporated	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Brenda S. Furlow

	 	 	 	By:	 	/s/ Frederick A. Robertson	 	 
	 


	 	 
	 	 	 	Name: Frederick A. Robertson, M.D.
Title:   Chief Executive Officer

	 	 







 


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