Exhibit 10.2


 


October 22,
2008


 


Chris
A. Raanes


50
Bear Gulch Drive


Portola
Valley, CA 94028


 


Re:                             AMENDED AND RESTATED EMPLOYMENT
TERMS


 


Dear
Chris:


 


Accuray Incorporated (the “Company”)
is pleased to offer to continue your employment as Senior Vice President, Chief
Operating Officer of the Company on the terms and conditions set forth in this
letter, effective as of October 17, 2008 (the “Effective Date”).  This letter amends and restates in its
entirety that certain employment letter, dated as of November 11, 2006
between you and the Company (the “Employment Letter”). You and the Company
mutually agree to amend certain provisions of the Employment Letter as a result
of Section 409A of the Internal Revenue Code of 1986, as amended.


 


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.


 


2.   POSITION, DUTIES AND
RESPONSIBILITIES.  During the period
of the employment relationship between you and the Company (the “Term”), the Company will employ you, and you agree to be
employed by the Company, as Senior Vice President, Chief Operating Officer of
the Company.  In the capacity of Senior
Vice President, Chief Operating Officer, you will have such duties and
responsibilities as are normally associated with such position and will devote
your full business time and attention 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 (the “CEO”), and will
work full-time at our principal offices located at 1310 Chesapeake Terrace,
Sunnyvale, California 94089 (or such other location in the greater Sunnyvale area
as 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 $345,000 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 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.   BENEFITS AND VACATION.  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, sick leave, vacations 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 5 will be subject to change from time to time as deemed
appropriate and necessary by the Company.


 


6.   TERMINATION OF EMPLOYMENT.


 


(a)                                  In the event that 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 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 the
sum of (x) eight (8) months of your annual base salary as in effect
immediately prior to the Separation Date plus (y) a pro rata portion of
your target annual bonus for the fiscal year of the Company in which such
Separation from Service occurs, calculated based on the number of days elapsed
in such fiscal year through the Separation Date plus (z) 66-2/3% 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 eight
(8) month period immediately following the 


 


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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.


 


(b)                                 If
a Change in Control (as defined in Exhibit A hereto) occurs during
the 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 15(b) below, in
addition to the amounts payable to you pursuant to paragraph (a) of this Section 6,
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.


 


(c)                                  Notwithstanding
the foregoing, your right to receive the payments and benefits set forth in
this Section 6 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 benefits set forth in this Section 6 upon any termination of
your employment by reason of your total and permanent disability or your death.


 


(d)                                 For purposes of this letter:


 


(A)  “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 CEO, 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


 


(B)  “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 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.


 


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7.   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 7(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 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 7 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.


 


8.   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 


 


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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 8(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 therefor, you acknowledge, consent and
agree that in the 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.


 


9.   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 or as otherwise
promulgated.  In addition, as a condition
of your employment, you acknowledge that you and the Company have entered into
that certain Employee Confidentiality and Inventions Agreement dated as of September 1,
2002, and you hereby agree to abide by the terms of that certain Employee
Confidentiality and Inventions Agreement dated as of September 1, 2002, by
and between you and the Company.


 


10.   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.


 


11.   ARBITRATION.  Except as set forth in Section 8(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


 


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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.


 


12.   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 (including, without limitation, the Original
Employment Letter).


 


13.  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.


 


14.  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.


 


15.  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.  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


 


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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 6 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]


 


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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 Euan Thomson, Ph.D., Chief Executive Officer of the Company.  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:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted
  and Agreed,

  	
   

  
	
  This
  22 October 2008.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Chris Raanes 10/28/08

  	
   

  
	
   

  	
  Chris Raanes

  
							



 


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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 of
Directors of the Company 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 of Directors of the Company 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.