Exhibit
10.8


 


December 1, 2008


 


Derek Bertocci


240 San
Mateo Avenue


Los Gatos, CA 95030-4321


 


                                  Re: EMPLOYMENT TERMS


 


Dear
Derek,


 


Accuray
Incorporated (the “Company”) is
pleased to offer you employment as the Senior Vice President and
Chief Financial Officer on the terms and conditions set forth in
this letter (the “Agreement”),
effective as of January 1, 2009 (the “Effective
Date”). Your employment start date (your “Start Date”)
will be the Effective Date.  In the event
that you do not commence employment with the Company on the Effective Date,
this Agreement shall be of no further force or effect, and you shall have no
rights to compensation, benefits or other consideration hereunder.


 


1.                        TERM.  The
employment relationship between you and the Company will be at-will.  You and the Company will have the right to
terminate the employment relationship at any time and for any reason
whatsoever, with or without cause, and without any liability or obligation
except as may be expressly provided herein.


 


The term of this agreement (the “Term”) shall be two (2) years, measured from the
Effective Date. Upon the expiration of this Agreement the provisions contained
herein, with the exception of Change of Control provisions, shall have no further
force or effect and your employment, if extended at the sole discretion of the
Company, will continue to be at-will and any terms associated with such
employment shall be embodied in a written employment agreement signed by both
parties.


 


The term of the Change of Control provisions
provided for in this Agreement (the “Change of Control Term”)
shall be three (3) years, measured from the Effective Date; however should
the Company and employee enter into a new agreement after the Term expires the
Change of Control provisions shall also automatically terminate and be
superseded by the terms in such new agreement.


 


2.                        POSITION, DUTIES AND
RESPONSIBILITIES.  During the Term of this Agreement, the
Company will employ you, and you agree to be employed by the Company, as the Senior
Vice President and Chief Financial Officer. 
In this capacity you will have such duties and responsibilities as are
normally associated with such position related to the finance organization as
well as the information technology organization within the Company and will
devote your full business time and attention to serving the Company in such
position.  Your duties may be changed
from time to time by the Company, consistent with your position.  You will report to the Chief Executive Officer of the Company, and will
work full-time at our principal offices located at 1310 Chesapeake Terrace, 


 


	
  EXECUTIVE
  EMPLOYMENT AGREEMENT – STD 11.26.08

  	
  ACCURAY CONFIDENTIAL

  



 


1

















 


Sunnyvale, California 94089
(or any other location the Company may utilize as its principal offices),
except for travel to other locations as may be necessary to fulfill your
responsibilities.


 


3.                        BASE COMPENSATION. 
During the Term, the Company will pay you a base salary of three hundred thousand dollars ($300,000) per year, less payroll deductions and
all required withholdings, payable in accordance with the Company’s normal
payroll practices and prorated for any partial month of employment.  Your base salary may be subject to increase
pursuant to the Company’s policies as in effect from time to time.


 


4.                        ANNUAL BONUS.  In
addition to the base salary set forth above, during the Term, you will be
eligible to participate in the Company’s executive bonus plan applicable to
similarly situated executives of the Company. 
The amount of your annual bonus will be based on the attainment of
performance criteria established and evaluated by the Company in accordance
with the terms of such bonus plan as in effect from time to time, provided
that, subject to the terms of such bonus plan, your target (but not necessarily
maximum) annual bonus shall be sixty-five
percent (65%) of your base salary actually paid for such year.


 


In accordance with the terms of such bonus plan,
payment of each bonus shall be made in a single lump-sum cash payment not later
than the last day of the applicable two and one-half (2 1⁄2) month short-term
deferral period with respect to such bonus payment, within the meaning of
Treasury Regulation Section 1.409A-1(b)(4).


 


5.                        STOCK OPTIONS.  As an
added incentive, we will recommend to the Compensation Committee of the Board
of Directors that you be granted an option (the “Option”) to purchase two
hundred seventy-five thousand (275,000) shares of Accuray common stock at a per
share exercise price equal to the fair market value of a share of our common
stock on the date of the grant, as determined in accordance with the Accuray
Incorporated 2007 Incentive Award Plan (the “Incentive Plan”).   The grant of the Option is subject to and
conditioned on approval of the grant and its terms by the Compensation
Committee, and will be made as soon as practicable following your Start
Date.  Subject to your continued
employment, the Option would vest with respect to 25% of the shares subject
thereto on the first anniversary of your Start Date, and with respect to an
additional 1/48th of the shares subject thereto on each monthly anniversary
thereafter, such that the entire Option would be vested on the fourth
anniversary of your Start Date.  The
Option will be subject to the terms and conditions of the Incentive Plan and a
stock option agreement in a form prescribed by Accuray, which you will be
required to sign as a condition to receiving the Option (the “Option Agreement”).


 


6.                        BENEFITS AND PAID TIME OFF. 
During the Term, you will be eligible to participate in all incentive,
savings and retirement plans, practices, policies and programs maintained or
sponsored by the Company from time to time which are applicable to other
similarly situated executives of the Company, subject to the terms and
conditions thereof.  During the Term, you
will also be eligible for standard benefits, such as medical, vision and dental
insurance, paid time off, and holidays to the extent applicable generally to
other similarly situated executives of the Company, subject to the terms and
conditions of the applicable Company plans or policies.  The benefits described in this Section 6
will be subject to change from time to time as deemed appropriate and necessary
by the Company.


 


7.                       TERMINATION OF EMPLOYMENT.


 


(a)              If
prior to the termination of this Agreement, you incur a “separation from
service” (within the meaning of Section 409A(a)(2)(A)(i) of the
Internal Revenue Code of 1986, as amended (the “Code”),
and Treasury Regulation Section 1.409A-1(h)) (“Separation
from Service”) by 


 


2

















 


reason of (i) a termination of your employment by the Company
other than for Cause (as defined below), death or disability, or (ii) a
termination of your employment by you for Good Reason (as defined below), and
provided that you execute a general release of claims in a form prescribed by
the Company (the “Release”)
within twenty-one (21) days (or, if required by applicable law, forty-five (45)
days) after the date of such Separation from Service (the “Separation
Date”) and you do not revoke such Release, and further subject to Section 16(b) below,
then, in addition to any other accrued amounts payable to you through the
Separation Date (including any earned but unpaid bonus), (1) the Company
will, no later than thirty (30) days after the Separation Date, pay you a
lump-sum severance payment (the “Severance Payment”)
in an amount equal to six (6) months of your annual base salary as in
effect immediately prior to the Separation Date, additionally provided that you
properly elect COBRA continuation coverage, the Company will pay the COBRA
premium for health care coverage for you and your spouse and children, as
applicable and to the extent eligible (the “Severance
Benefits”), for the six (6) month period immediately following
the Separation Date, but in no event longer than the period of time during
which you would be entitled to continuation coverage under Section 4980B
of the Code absent this provision.  The
Company will also provide you with outplacement assistance in accordance with
its then current policies and practices with respect to outplacement assistance
for other similarly situated executives of the Company.


 


(b)             If
a Change in Control (as defined in Exhibit A hereto) occurs during
the Change of Control Term and, within the twelve (12) month period immediately
following the effective date of the Change in Control, you incur a Separation
from Service by reason of (i) a termination of your employment by the
Company other than for Cause, death or disability, or (ii) a termination
of your employment by you for Good Reason, then, subject to Section 16(b) below,
and provided that you execute a general release of claims in a form prescribed
by the Company (the “Release”)
within twenty-one (21) days (or, if required by applicable law, forty-five (45)
days) after the date of such Separation from Service (the “Separation
Date”) and you do not revoke such Release, and further subject to Section 16(b) below,
then, in addition to any other accrued amounts payable to you through the
Separation Date (including any earned but unpaid bonus), (1) the Company
will, no later than thirty (30) days after the Separation Date, pay you a
lump-sum severance payment (the “Severance Payment”)
in an amount equal to the sum of (x) twenty-four (24) months of your
annual base salary as in effect immediately prior to the Separation Date plus (y) 100%
of your target annual bonus for the fiscal year of the Company in which such
Separation from Service occurs, and (2) provided that you properly elect
COBRA continuation coverage, the Company will pay the COBRA premium for health
care coverage for you and your spouse and children, as applicable and to the
extent eligible (the “Severance Benefits”),
for the twenty-four (24) month period immediately following the Separation
Date, but in no event longer than the period of time during which you would be
entitled to continuation coverage under Section 4980B of the Code absent
this provision.  In addition to the
amounts payable to you pursuant to this paragraph (b) of this Section 7,
each of your then outstanding options to purchase shares of the Company’s
common stock shall become fully vested and exercisable immediately prior to the
Separation Date.  The Company will also
provide you with outplacement assistance in accordance with its then current
policies and practices with respect to outplacement assistance for other
similarly situated executives of the Company. 
For clarity, under Change of Control this paragraph (b) shall be in
lieu of any similar payments or benefits described above in paragraph (a) of
this Section 7.


 


(c)              Notwithstanding the foregoing, your right to
receive the payments and benefits set forth in this Section 7 is
conditioned on and subject to your execution and non-revocation of the
Release.  In no event shall you or your
estate or beneficiaries be entitled to any of the payments or 


 


3

















 


benefits set forth in this Section 7
upon any termination of your employment by reason of your total and permanent
disability or your death.


 


(d)             For purposes of this letter:


 


i)             “Cause”
shall mean (i) your commission of a felony, (ii) your commission of a
crime involving moral turpitude or your commission of any other act or omission
involving dishonesty, disloyalty, breach of fiduciary duty or fraud with
respect to the Company or any of its subsidiaries or any of their customers or
suppliers, or (iii) your failure to perform the normal and customary
duties of your position with the Company as reasonably directed by the Company,
provided, that any of the acts or omissions described in the foregoing clauses
(i), (ii) or (iii) are not cured to the Company’s reasonable
satisfaction within thirty (30) days after written notice thereof is given to
you; and


 


ii)          “Good Reason” shall mean the occurrence
of any one or more of the following events without your prior written
consent:  (i) a material diminution
by the Company of your duties and responsibilities hereunder; (ii) a material
change in the geographic location at which you must perform services under this
letter, provided that in no event will a change to a location within a 35 mile
radius of the Company’s Sunnyvale corporate headquarters be deemed material for
purposes of this clause; or (iii) a material diminution by the Company of
your annual base salary, each as in effect on the date hereof or as the same
may be increased from time to time; provided, however, that a termination of
your employment by you shall only constitute a termination for “Good Reason”
hereunder if (a) you provide the Company with written notice setting forth
the specific facts or circumstances constituting Good Reason within thirty (30)
days after the initial existence of such facts or circumstances, (b) the
Company has failed to cure such facts or circumstances within thirty (30) days
after receipt of such written notice, and (c) the Separation Date occurs
no later than seventy-five (75) days after the initial occurrence of the event
constituting Good Reason.


 


8.                        CODE SECTION 280G.


 


(a)              In the event it shall be determined that any
payment or distribution to you or for your benefit which is in the nature of
compensation and is contingent on a change in the ownership or effective
control of the Company or the ownership of a substantial portion of the assets
of the Company (within the meaning of Section 280G(b)(2) of the
Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute
payment” under Section 280G(b)(2) of the Code and would be subject to
the excise tax imposed by Section 4999 of the Code (together with any
interest or penalties imposed with respect to such excise tax, the “Excise Tax”), then the Payments shall be
reduced to the extent necessary so that no portion thereof shall be subject to
the excise tax imposed by Section 4999 of the Code but only if, by reason
of such reduction, the net after-tax benefit received by you shall exceed the
net after-tax benefit received by you if no such reduction was made. The
specific Payments that shall be reduced and the order of such reduction shall
be determined so as to achieve the most favorable economic benefit to you, and
to the extent economically equivalent, the Payments shall be reduced pro rata,
all as determined by the Company in its sole discretion. For purposes of this Section 8(a),
“net after-tax benefit” shall mean (i) the Payments which you receive or
are then entitled to receive from the Company that would constitute “parachute
payments” within the meaning of Section 280G of the Code, less (ii) the
amount of all federal, state and local income taxes payable with respect to the
Payments calculated at the maximum marginal income tax rate for each year in
which the Payments shall be paid to you (based on 


 


4

















 


the rate in effect for such
year as set forth in the Code as in effect at the time of the first payment of
the foregoing), less (iii) the amount of Excise Taxes imposed with respect
to the Payments.


 


(b)             All determinations required to be made under
this Section 8 shall be made by such nationally recognized accounting firm
as may be selected by the Audit Committee of the Board of Directors of the
Company as constituted immediately prior to the change in control transaction
(the “Accounting Firm”), provided, that the Accounting Firm’s
determination shall be made based upon “substantial authority” within the
meaning of Section 6662 of the Code. 
The Accounting Firm shall provide its determination, together with
detailed supporting calculations and documentation, to you and the Company
within 15 business days following the date of termination of your employment,
if applicable, or such other time as requested by you (provided that you
reasonably believe that any of the Payments may be subject to the Excise Tax)
or the Company.  All fees and expenses of
the Accounting Firm shall be borne solely by the Company.


 


9.                        RESTRICTIVE COVENANTS.


 


(a)              As a condition of your employment with the
Company, you agree that during the Term and thereafter, you will not directly
or indirectly disclose or appropriate to your own use, or the use of any third
party, any trade secret or confidential information concerning the Company or
its subsidiaries or affiliates (collectively, the “Company Group”) or their businesses, whether or not developed
by you, except as it is required in connection with your services rendered for
the Company.  You further agree that,
upon termination of your employment, you will not receive or remove from the
files or offices of the Company Group any originals or copies of documents or
other materials maintained in the ordinary course of business of the Company
Group, and that you will return any such documents or materials otherwise in
your possession.  You further agree that,
upon termination of your employment, you will maintain in strict confidence the
projects in which any member of the Company Group is involved or contemplating.


 


(b)             You further agree that during the Term and continuing through the first anniversary
of the date of termination of your employment, you will not directly or
indirectly solicit, induce, or encourage any employee, consultant, agent,
customer, vendor, or other parties doing business with any member of the
Company Group to terminate their employment, agency, or other relationship with
the Company Group or such member or to render services for or transfer their
business from the Company Group or such member and you will not initiate
discussion with any such person for any such purpose or authorize or knowingly
cooperate with the taking of any such actions by any other individual or
entity.


 


(c)              While employed by the Company, you agree that
you will not engage in any business activity in competition with any member of
the Company Group nor make preparations to do so.


 


(d)             Upon the termination of your relationship
with the Company, you agree that you will promptly return to the Company, and
will not take with you or use, all items of any nature that belong to the
Company, and all materials (in any form, format, or medium) containing or
relating to the Company’s business.


 


(e)              In recognition of the facts that irreparable
injury will result to the Company in the event of a breach by you of your
obligations under Sections 9(a), (b), (c) or (d) above, that monetary
damages for such breach would not be readily calculable, and that the Company
would not have an adequate remedy at law therefore, you acknowledge, consent
and agree that in the 


 


5

















 


event of such breach, or the
threat thereof, the Company shall be entitled, in addition to any other legal
remedies and damages available, to specific performance thereof and to
temporary and permanent injunctive relief (without the necessity of posting a
bond) to restrain the violation or threatened violation of such obligations by
you.


 


10.                  COMPANY RULES AND REGULATIONS.  As
an employee of the Company, you agree to abide by Company policies, procedures,
rules and regulations as set forth in the Company’s Employee Handbook,
Code of Conduct and Ethics, or as otherwise promulgated.  In addition, as a condition of your
employment, you will be required to complete, sign, return, and abide by the
Employee Confidentiality and Inventions Agreement.


 


11.                  WITHHOLDING.  The
Company may withhold from any amounts payable under this letter such federal,
state, local or foreign taxes as shall be required to be withheld pursuant to
any applicable law or regulation.


 


12.                  ARBITRATION. 
Except as set forth in Section 9(e) above, any disagreement,
dispute, controversy or claim arising out of or relating to this letter or the
interpretation of this letter or any arrangements relating to this letter or
contemplated in this letter or the breach, termination or invalidity thereof
shall be settled by final and binding arbitration administered by
JAMS/Endispute in Santa Clara County, California in accordance with the then
existing JAMS/Endispute Arbitration Rules and Procedures for Employment
Disputes.  Except as provided herein, the
Federal Arbitration Act shall govern the interpretation, enforcement and all
proceedings.  The arbitrator shall apply
the substantive law (and the law of remedies, if applicable) of the state of
California, or federal law, or both, as applicable, and the arbitrator is
without jurisdiction to apply any different substantive law.  The arbitrator shall have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any party
and shall apply the standards governing such motions under the Federal Rules of
Civil Procedure.  Judgment upon the award
may be entered in any court having jurisdiction thereof.  Each party shall pay his or its own attorneys’
fees and expenses associated with such arbitration to the extent permitted by
applicable law.


 


13.                  ENTIRE AGREEMENT.  As
of the Effective Date, this letter constitutes the final, complete and
exclusive agreement between you and the Company with respect to the subject
matter hereof and replaces and supersedes any and all other agreements, offers
or promises, whether oral or written, made to you by any member of the Company
Group.


 


14.                  SEVERABILITY. 
Whenever possible, each provision of this letter will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this letter is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
of this letter, but such invalid, illegal or unenforceable provision will be
reformed, construed and enforced so as to render it valid, legal, and
enforceable consistent with the intent of the parties insofar as possible.


 


15.                  ACKNOWLEDGEMENT.  You
hereby acknowledge (a) that you have consulted with or have had the
opportunity to consult with independent counsel of your own choice concerning
this letter, and have been advised to do so by the Company, and (b) that
you have read and understand this letter, are fully aware of its legal effect,
and have entered into it freely based on your own judgment.


 


16.                  SECTION 409A OF THE
CODE.


 


(a)              The compensation and benefits payable under
this letter are not intended to constitute “nonqualified deferred compensation”
within the meaning of Section 409A of the Code.  


 


6

















 


Notwithstanding any
provision of this letter to the contrary, in the event that the Company
determines that any payments or benefits payable hereunder may be subject to Section 409A
of the Code, the Company may (without any obligation to do so or to indemnify
you for failure to do so) adopt such amendments to this letter or take any
other actions that the Company determines are necessary or appropriate to (a) exempt
such payments and benefits from Section 409A of the Code in order to
preserve the intended tax treatment of such payments or benefits, or (b) comply
with the requirements of Section 409A of the Code and thereby avoid the
application of penalty taxes thereunder. 
To the extent that any payments or benefits under this letter are deemed
to be subject to Section 409A of the Code, this letter will be interpreted
in accordance with Section 409A of the Code and Department of Treasury
Regulations and other interpretive guidance issued thereunder.


 


(b)             Notwithstanding anything to the contrary in
this letter, no compensation or benefits, including without limitation any
severance payments or benefits payable under Section 7 above, shall be
paid to you during the six (6)-month period following your Separation from
Service to the extent that paying such amounts at the time or times indicated
in this letter would result in a prohibited distribution under Section 409A(a)(2)(b)(i) of
the Code.  If the payment of any such
amounts is delayed as a result of the previous sentence, then on the first
business day following the end of such six (6)-month period  (or such
earlier date upon which such amount can be paid under Section 409A of the
Code without resulting in a prohibited distribution, including as a result of
your death), the Company shall
pay you a lump-sum amount equal to the cumulative amount that would have
otherwise been payable to you during such six-month period.


 


(c)              To the extent that any reimbursements or
corresponding in-kind benefits provided to you under this letter are deemed to
constitute compensation to you, such amounts will be paid or reimbursed
reasonably promptly, but not later than December 31 of the year following
the year in which the expense was incurred. 
The amount of any such payments or expense reimbursements in one year
will not affect the expenses or in-kind benefits eligible for payment or
reimbursement in any other taxable year, and your right to such payments or
reimbursement of any such expenses will not be subject to liquidation or
exchange for any other benefit.


 


[SIGNATURE
PAGE FOLLOWS]


 


7

















 


Please
confirm your agreement to the foregoing by signing and dating the enclosed
duplicate original of this letter in the space provided below for your
signature and returning it to us in the enclosed, self-addressed stamped
envelope.  Please retain one
fully-executed original for your files.


 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  ACCURAY INCORPORATED,

  
	
   

  	
  a Delaware Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Euan Thomson

  
	
   

  	
  Name:  Euan Thomson, Ph.D.

  
	
   

  	
  Title:  President &
  Chief Executive Officer

  



 


 


Accepted
and Agreed,


 


 


	
  By:

  	
  /s/ Derek Bertocci

  	
   

  
	
   

  	
   Derek Bertocci

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   December 1, 2008

  	
   

  
				



 


8

















 


EXHIBIT A


 


For purposes of this letter,
“Change in Control” means and includes
each of the following:


 


(a)         A transaction or series of transactions
(other than an offering of the Company’s common stock to the general public
through a registration statement filed with the Securities and Exchange
Commission) whereby any “person” or related “group” of “persons” (as such terms
are used in Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”))
(other than the Company, any of its subsidiaries, an employee benefit plan
maintained by the Company or any of its subsidiaries or a “person” that, prior
to such transaction, directly or indirectly controls, is controlled by, or is
under common control with, the Company) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange
Act) of securities of the Company possessing more than 50% of the total
combined voting power of the Company’s securities outstanding immediately after
such acquisition; or


 


(b)         During any period of two consecutive
years, individuals who, at the beginning of such period, constitute the Board
together with any new director(s) (other than a director designated by a
person who shall have entered into an agreement with the Company to effect a
transaction described in clause (a) or clause (c) hereof) whose
election by the Board or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the two-year period or
whose election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; or


 


(c)         The consummation by the Company
(whether directly involving the Company or indirectly involving the Company
through one or more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other disposition
of all or substantially all of the Company’s assets in any single transaction
or series of related transactions or (z) the acquisition of assets or
stock of another entity, in each case other than a transaction:


 


(i)            Which results in the Company’s
voting securities outstanding immediately before the transaction continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or indirectly,
all or substantially all of the Company’s assets or otherwise succeeds to the
business of the Company (the Company or such person, the “Successor
Entity”)) directly or indirectly, at least a majority of the
combined voting power of the Successor Entity’s outstanding voting securities
immediately after the transaction, and


 


(ii)           After which no person or group
beneficially owns voting securities representing 50% or more of the combined
voting power of the Successor Entity; provided,
however, that no person or group shall be treated for purposes of this
clause (c)(ii) as beneficially owning 50% or more of combined voting power
of the Successor Entity solely as a result of the voting power held in the
Company prior to the consummation of the transaction; or


 


                (d)           The
Company’s stockholders approve a liquidation or dissolution of the Company.


 


9