Exhibit 10.7


 


	
   

  	
  

  	
   

  	
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  Accuray 

  	
             

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
						



 


INDEMNIFICATION AGREEMENT


 


This
Indemnification Agreement (“Agreement”)
is effective as of
            , 2009 by
and between Accuray Incorporated, a Delaware corporation (the “Company”), and
                                       
(“Indemnitee”).


 


A.           The Company recognizes the continued difficulty in obtaining liability
insurance for its directors, officers, employees, controlling persons,
fiduciaries and other agents and affiliates, the significant increases in the
cost of such insurance and the general reductions in the coverage of such
insurance.


 


B.             The Company further recognizes the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, controlling
persons, fiduciaries and other agents and affiliates to expensive litigation
risks at the same time as the availability and coverage of liability insurance
has been severely limited.


 


C.             The current protection available to directors, officers, employees,
controlling persons, fiduciaries and other agents and affiliates of the Company
may not be adequate under the present circumstances, and directors, officers,
employees, controlling persons, fiduciaries and other agents and affiliates of
the Company (or persons who may be alleged or deemed to be the same), including
the Indemnitee, may not be willing to continue to serve or be associated with
the Company in such capacities without additional protection.


 


D.            The Company (a) desires to attract and retain the involvement of
highly qualified persons, such as Indemnitee, to serve and be associated with
the Company, and (b) accordingly, wishes to provide for the
indemnification and advancement of expenses to the Indemnitee to the maximum
extent permitted by law.


 


E.              In view of the considerations set forth above, the Company desires that
Indemnitee shall be indemnified and advanced expenses by the Company as set
forth herein. In consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:


 


1.                                      Certain Definitions.


 


(a)                                  “Change
in Control” shall be deemed to have occurred if, on or after the
date of this Agreement, (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company


 


	
  INDEMNIFICATION
  AGREEMENT STD 03.25.09

  	
   

  	
  ACCURAY CONFIDENTIAL

  
	
  [First Name Last Name] –
  [MM.DD.YY]

  	
   

  	
   

  



 


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representing
more than 50% of the total voting power represented by the Company’s then
outstanding Voting Securities (as defined below), (ii) during any period
of two (2) consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least two thirds (2/3) of
the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of (in one transaction or a series of related transactions) all or
substantially all of the Company’s assets.


 


(b)           “Claim” shall mean with respect to a
Covered Event (as defined below):  any
threatened, asserted, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative or
other.


 


(c)           References
to the “Company” shall include,
in addition to Accuray Incorporated, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger to which
Accuray Incorporated (or any of its wholly owned subsidiaries) is a party,
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees, agents or
fiduciaries, so that if Indemnitee is or was a director, officer, employee,
agent or fiduciary of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting
or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.


 


(d)           “Covered Event” shall mean any event or
occurrence related to the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or any subsidiary of the Company,
or is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action or inaction on
the part of Indemnitee while serving in such capacity.


 


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(e)           “Expenses” shall mean any and all direct
and indirect costs, losses, claims, damages, fees, expenses and liabilities,
joint or several (including attorneys’ fees and all other costs, expenses and
obligations incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to defend,
to be a witness in or to participate in, any action, suit, proceeding,
alternative dispute resolution mechanism, hearing, inquiry or investigation),
judgments, fines, penalties and amounts paid in settlement (if such settlement
is approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred, of any Claim and any federal,
state, local or foreign taxes imposed on the Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement.


 


(f)            “Expense Advance” shall mean a payment to
Indemnitee pursuant to Section 3 of Expenses in advance of the settlement
of or final judgement in any action, suit, proceeding or alternative dispute
resolution mechanism, hearing, inquiry or investigation, which constitutes a
Claim.


 


(g)           “Independent Legal Counsel” shall mean an
attorney or firm of attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or Indemnitee
within the last three (3) years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).


 


(h)           References
to “other enterprises” shall
include employee benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to “serving at the request of the Company” shall
include any service as a director, officer, employee, agent or fiduciary of the
Company which imposes duties on, or involves services by, such director,
officer, employee, agent or fiduciary with respect to an employee benefit plan,
its participants or its beneficiaries; and if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall be
deemed to have acted in a manner “not opposed
to the best interests of the Company” as referred to in this
Agreement.


 


(i)            “Reviewing Party” shall mean, subject to
the provisions of Section 2(d), any person or body appointed by the Board
of Directors in accordance with applicable law to review the Company’s
obligations hereunder and under applicable law, which may include a member or
members of the Company’s Board of Directors, Independent Legal Counsel or any
other person or body not a party to the particular Claim for which Indemnitee
is seeking indemnification, exoneration or hold harmless rights.


 


(j)            “Section” refers to a section of this
Agreement unless otherwise indicated.


 


(k)           “Voting Securities” shall mean any
securities of the Company that vote generally in the election of directors.


 


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2.                                      Indemnification.


 


(a)                                  Indemnification of Expenses.  Subject to the provisions of Section 2(b) below,
the Company shall indemnify, exonerate or hold harmless Indemnitee for Expenses
to the fullest extent permitted by law if Indemnitee was or is or becomes a
party to or witness or other participant in, or is threatened to be made a
party to or witness or other participant in, any Claim (whether by reason of or
arising in part out of a Covered Event), including all interest, assessments
and other charges incurred in connection with or in respect of such Expenses.


 


(b)           Review
of Indemnification Obligations. 
Notwithstanding the foregoing, in the event any Reviewing Party shall
have determined (in a written opinion, in any case in which Independent Legal
Counsel is the Reviewing Party) that Indemnitee is not entitled to be
indemnified, exonerated or held harmless hereunder under applicable law, (i) the
Company shall have no further obligation under Section 2(a) to make
any payments to Indemnitee not made prior to such determination by such
Reviewing Party and (ii) the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all Expenses
theretofore paid in indemnifying, exonerating or holding harmless Indemnitee
(within thirty (30) days after such determination); provided,
however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee is entitled to be indemnified, exonerated or held
harmless hereunder under applicable law, any determination made by any
Reviewing Party that Indemnitee is not entitled to be indemnified hereunder
under applicable law shall not be binding and Indemnitee shall not be required
to reimburse the Company for any Expenses theretofore paid in indemnifying,
exonerating or holding harmless Indemnitee until a final judicial determination
is made with respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed).  Indemnitee’s
obligation to reimburse the Company for any Expenses shall be unsecured and no
interest shall be charged thereon.


 


(c)                                  Indemnitee Rights on
Unfavorable Determination; Binding Effect. 
If any Reviewing Party determines that Indemnitee substantively is not
entitled to be indemnified, exonerated or held harmless hereunder in whole or
in part under applicable law, Indemnitee shall have the right to commence
litigation seeking an initial determination by the court or challenging any
such determination by such Reviewing Party or any aspect thereof, including the
legal or factual bases therefor, and, subject to the provisions of Section 15,
the Company hereby consents to service of process and to appear in any such
proceeding.  Absent such litigation, any
determination by any Reviewing Party shall be conclusive and binding on the
Company and Indemnitee.


 


(d)                                 Selection of Reviewing
Party; Change in Control.  If there has not been a Change
in Control, any Reviewing Party shall be selected by the Board of Directors,
and if there has been such a Change in Control (other than a Change in Control
which has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such Change in Control), any Reviewing
Party with respect to all matters thereafter arising concerning Indemnitee’s
indemnification, exoneration or hold harmless rights for Expenses under this


 


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Agreement
or any other agreement or under the Company’s Certificate of Incorporation or
bylaws as now or hereafter in effect, or under any other applicable law, if
desired by Indemnitee, shall be Independent Legal Counsel selected by the
Indemnitee and approved by Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall render its written opinion
to the Company and Indemnitee as to whether and to what extent Indemnitee would
be entitled to be indemnified, exonerated or held harmless hereunder under
applicable law and the Company agrees to abide by such opinion.  The Company agrees to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully indemnify,
exonerate and hold harmless such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.  Notwithstanding any other provision of this
Agreement, the Company shall not be required to pay Expenses of more than one
Independent Legal Counsel in connection with all matters concerning a single
Indemnitee, and such Independent Legal Counsel shall be the Independent Legal
Counsel for any or all other Indemnitees unless (i) the Company otherwise
determines or (ii) any Indemnitee shall provide a written statement
setting forth in detail a reasonable objection to such Independent Legal
Counsel representing other Indemnitees.


 


(e)                                  Mandatory Payment of
Expenses.  Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent
that Indemnitee has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in defense of
any Claim, Indemnitee shall be indemnified, exonerated and held harmless
against all Expenses incurred by Indemnitee in connection therewith.


 


(f)                                    Contribution.  If the indemnification, exoneration or hold
harmless rights provided for in this Agreement is for any reason held by a
court of competent jurisdiction to be unavailable to an Indemnitee, then in
lieu of indemnifying, exonerating or holding harmless Indemnitee thereunder,
the Company shall contribute to the amount paid or payable by Indemnitee as a
result of such Expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and Indemnitee, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company and Indemnitee in connection with the action or inaction which
resulted in such Expenses, as well as any other relevant equitable
considerations.  In connection with the
registration of the Company’s securities, the relative benefits received by the
Company and Indemnitee shall be deemed to be in the same respective proportions
that the net proceeds from the offering (before deducting expenses) received by
the Company and Indemnitee, in each case as set forth in the table on the cover
page of the applicable prospectus, bear to the aggregate public offering
price of the securities so offered.  The
relative fault of the Company and Indemnitee shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or Indemnitee and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.


 


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The Company and Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 2(f) were
determined by pro rata or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph.  In connection with
the registration of the Company’s securities, in no event shall Indemnitee be
required to contribute any amount under this Section 2(f) in excess
of the net proceeds received by Indemnitee from its sale of securities under
such registration statement.  No person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(1) of
the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.


 


3.                                      Expense Advances.


 


(a)                                  Obligation to Make Expense
Advances.  The Company shall make Expense
Advances to Indemnitee upon receipt of a written undertaking by or on behalf of
the Indemnitee to repay such amounts if it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified, exonerated or held harmless
therefor by the Company.


 


(b)                                 Form of Undertaking.  Any written undertaking by the Indemnitee to
repay any Expense Advances hereunder shall be unsecured and no interest shall
be charged thereon.


 


4.                                      Procedures for Indemnification and Expense Advances.


 


(a)                                  Timing of Payments.  All payments of Expenses (including without
limitation Expense Advances) by the Company to the Indemnitee pursuant to this
Agreement shall be made to the fullest extent permitted by law as soon as
practicable after written demand by Indemnitee therefor is presented to the
Company, but in no event later than forty-five (45) days after such written
demand by Indemnitee is presented to the Company, except in the case of Expense
Advances, which shall be made no later than twenty (20) days after such written
demand by Indemnitee is presented to the Company.


 


(b)                                 Notice/Cooperation by
Indemnitee.  Indemnitee shall, as a
condition precedent to Indemnitee’s right to be indemnified, exonerated or held
harmless or Indemnitee’s right to receive Expense Advances under this
Agreement, give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification, exoneration or hold
harmless right will or could be sought under this Agreement.  Notice to the Company shall be directed to the
President or Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the Company
shall designate in writing to Indemnitee). 
In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee’s
power.


 


(c)           No
Presumptions; Burden of Proof.  For
purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent,
shall not create a


 


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presumption
that Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification,
exoneration or hold harmless right is not permitted by this Agreement or
applicable law.  In addition, neither the
failure of any Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by any Reviewing Party that Indemnitee has
not met such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified, exonerated or held
harmless under this Agreement or applicable law, shall be a defense to
Indemnitee’s claim or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular belief.  In connection with any determination by any
Reviewing Party or otherwise as to whether the Indemnitee is entitled to be
indemnified, exonerated or held harmless hereunder, the burden of proof shall
be on the Company to establish that Indemnitee is not so entitled.


 


(d)                                 Notice to Insurers.  If, at the time of the receipt by the Company
of a notice of a Claim pursuant to Section 4(b) hereof, the Company
has liability insurance in effect which may cover such Claim, the Company shall
give prompt notice of the commencement of such Claim to the insurers in
accordance with the procedures set forth in the respective policies.  The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such Claim in accordance with
the terms of such policies.


 


(e)           Selection
of Counsel.  In the event the Company
shall be obligated hereunder to provide indemnification, exoneration or hold
harmless rights for or make any Expense Advances with respect to the Expenses
of any Claim, the Company, if appropriate, shall be entitled to assume the
defense of such Claim with counsel approved by Indemnitee (which approval shall
not be unreasonably withheld) upon the delivery to Indemnitee of written notice
of the Company’s election to do so. 
After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any fees or expenses of separate
counsel subsequently employed by or on behalf of Indemnitee with respect to the
same Claim; provided, however, that (i) Indemnitee
shall have the right to employ Indemnitee’s separate counsel in any such Claim
at Indemnitee’s expense and (ii) if (A) the employment of separate
counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee
shall have reasonably concluded that there may be a conflict of interest
between the Company and Indemnitee in the conduct of any such defense, or (C) the
Company shall not continue to retain such counsel to defend such Claim, then
the fees and expenses of Indemnitee’s separate counsel shall be Expenses for
which Indemnitee may receive indemnification, exoneration or hold harmless
rights or Expense Advances hereunder. 
The Company shall have the right to conduct such defense as it sees fit
in its sole discretion, including the right to settle any claim, action or
proceeding against Indemnitee without the consent of Indemnitee, provided that
the terms of such settlement include either: (i) a full release of
Indemnitee by the claimant from all liabilities or potential liabilities under
such claim; or (ii), in the event such full release is not obtained, the terms
of such settlement do not limit any indemnification, exoneration or hold
harmless right Indemnitee may now, or hereafter,


 


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be
entitled to under this Agreement, the Company’s Certificate of Incorporation,
bylaws, any agreement, any vote of stockholders or disinterested directors, the
General Corporation Law of the State of Delaware (the “DGCL”) or otherwise.


 


5.                                      Additional Indemnification Rights; Nonexclusivity.


 


(a)                                  Scope.  The Company hereby agrees to indemnify,
exonerate and hold harmless the Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification, exoneration or hold harmless
right is not specifically authorized by the other provisions of this Agreement,
the Company’s Certificate of Incorporation, the Company’s bylaws or by
statute.  In the event of any change
after the date of this Agreement in any applicable law, statute or rule which
expands the right of a Delaware corporation to indemnify, exonerate or hold
harmless a member of its board of directors or an officer, employee, agent or
fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits afforded by such change.  In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify, exonerate or hold harmless a member of its board of directors or an
officer, employee, agent or fiduciary, such change, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement,
shall have no effect on this Agreement or the parties’ rights and obligations
hereunder except as set forth in Section 10(a) hereof.


 


(b)                                 Nonexclusivity.  The indemnification, exoneration or hold
harmless rights and the payment of Expense Advances provided by this Agreement
shall be in addition to any rights to which Indemnitee may be entitled under
the Company’s Certificate of Incorporation, its bylaws, any other agreement,
any vote of stockholders or disinterested directors, the DGCL, or
otherwise.  The indemnification,
exoneration or hold harmless rights and the payment of Expense Advances
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified, exonerated or held harmless
capacity even though subsequent thereto Indemnitee may have ceased to serve in
such capacity.


 


6.                                      No Duplication of Payments.  The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Company’s Certificate of
Incorporation, bylaws or otherwise) of the amounts otherwise payable hereunder.


 


7.                                      Partial Indemnification.  If Indemnitee is entitled under any provision
of this Agreement to indemnification, exoneration or hold harmless rights by
the Company for some or a portion of Expenses incurred in connection with any
Claim, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify, exonerate or hold harmless Indemnitee for the portion
of such Expenses to which Indemnitee is entitled.


 


8.                                      Mutual Acknowledgment.  Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying, exonerating or holding harmless its directors,
officers, employees, agents or


 


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fiduciaries
under this Agreement or otherwise. 
Indemnitee understands and acknowledges that the Company may be required
in the future to undertake with the Securities and Exchange Commission to
submit the question of indemnification, exoneration or hold harmless rights to
a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify, exonerate or hold harmless Indemnitee.


 


9.                                      Liability Insurance.  To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Company’s directors, if Indemnitee is a director; or of the
Company’s officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company’s key employees, agents or fiduciaries, if Indemnitee
is not an officer or director but is a key employee, agent or fiduciary.


 


10.                               Exceptions.  Notwithstanding any other provision of this
Agreement, the Company shall not be obligated pursuant to the terms of this
Agreement:


 


(a)           Excluded
Action or Omissions.  To indemnify,
exonerate or hold harmless Indemnitee for Expenses resulting from acts,
omissions or transactions for which Indemnitee is prohibited from receiving
indemnification, exoneration or hold harmless rights under this Agreement or
applicable law; provided, however, that
notwithstanding any limitation set forth in this Section 10(a) regarding
the Company’s obligation to provide indemnification, exoneration or hold
harmless rights to Indemnitee shall be entitled under Section 3 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that Indemnitee has engaged in acts, omissions or transactions for
which Indemnitee is prohibited from receiving indemnification under this
Agreement or applicable law.


 


(b)                                 Claims Initiated by
Indemnitee.  To indemnify, exonerate or
hold harmless or make Expense Advances to Indemnitee with respect to Claims
initiated or brought voluntarily by Indemnitee and not by way of defense,
counterclaim or cross claim, except (i) with respect to actions or
proceedings brought to establish or enforce an indemnification, exoneration or
hold harmless right under this Agreement or any other agreement or insurance
policy or under the Company’s Certificate of Incorporation or bylaws now or
hereafter in effect relating to Claims for Covered Events, (ii) in
specific cases if the Board of Directors has approved the initiation or
bringing of such Claim, or (iii) as otherwise required under Section 145
of the DGCL, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, exoneration, hold harmless right, Expense
Advances or insurance recovery, as the case may be.


 


(c)                                  Lack of Good Faith.  To indemnify, exonerate or hold harmless
Indemnitee for any Expenses incurred by the Indemnitee with respect to any
action instituted (i) by Indemnitee to enforce or interpret this
Agreement, if a court having jurisdiction over such action determines as
provided in Section 13 that each of the material assertions made by the


 


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Indemnitee
as a basis for such action was not made in good faith or was frivolous, or (ii) by
or in the name of the Company to enforce or interpret this Agreement, if a
court having jurisdiction over such action determines as provided in Section 13
that each of the material defenses asserted by Indemnitee in such action was
made in bad faith or was frivolous.


 


(d)           Claims
Under Section 16(b).  To
indemnify, exonerate or hold harmless Indemnitee for expenses and the payment
of profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any similar successor statute; provided, however,
that notwithstanding any limitation set forth in this Section 10(d) regarding
the Company’s obligation to provide indemnification or exoneration or hold
harmless, Indemnitee shall be entitled under Section 3 to receive Expense
Advances hereunder with respect to any such Claim unless and until a court
having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that Indemnitee has violated said statute.


 


11.                               Counterparts.  This Agreement may be executed in
counterparts and by facsimile or electronic transmission, each of which shall
constitute an original and all of which, together, shall constitute one
instrument.


 


12.                               Binding Effect; Successors and Assigns.  This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors, assigns, including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business and/or assets of the Company, spouses,
heirs, and personal and legal representatives. 
The Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all, substantially
all, or a substantial part, of the business and/or assets of the Company, by
written agreement in form and substance satisfactory to Indemnitee, expressly
to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession
had taken place.  This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as a
director, officer, employee, agent or fiduciary (as applicable) of the Company
or of any other enterprise at the Company’s request.


 


13.          Expenses
Incurred in Action Relating to Enforcement or Interpretation.  In the event
that any action is instituted by Indemnitee under this Agreement or under any
liability insurance policies maintained by the Company to enforce or interpret
any of the terms hereof or thereof, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee with respect to such action
(including without limitation attorneys’ fees), regardless of whether
Indemnitee is ultimately successful in such action, unless as a part of such
action a court having jurisdiction over such action makes a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that each of the material assertions made by Indemnitee as a basis
for such action was not made in good faith or was frivolous; provided, however, that until such final judicial
determination is made, Indemnitee shall be entitled under Section 3 to
receive payment of Expense Advances hereunder with respect to such action.  In the


 


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event of an action instituted by or in the name of the Company under
this Agreement to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be indemnified, exonerated or held harmless for
all Expenses incurred by Indemnitee in defense of such action (including
without limitation costs and expenses incurred with respect to Indemnitee’s
counterclaims and cross-claims made in such action), unless as a part of such
action a court having jurisdiction over such action makes a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that each of the material defenses asserted by Indemnitee in such
action was made in bad faith or was frivolous; provided,
however, that until such final judicial determination is made,
Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action.


 


14.                               Notices.  All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
duly given (i) if delivered by hand and signed for by the party addressed,
on the date of such delivery, or (ii) if mailed by domestic certified or
registered mail with postage prepaid, on the third business day after the date
postmarked.  Addresses for notice to
either party are as shown on the signature page of this Agreement or as
subsequently modified by written notice.


 


15.                               Consent to Jurisdiction.  The Company
and Indemnitee each hereby irrevocably consent to the jurisdiction of the
courts of the State of Delaware for all purposes in connection with any action
or proceeding which arises out of or relates to this Agreement and agree that
any action instituted under this Agreement shall be commenced, prosecuted and
continued only in the Court of Chancery of the State of Delaware in and for
Kent County, which shall be the exclusive and only proper forum for adjudicating
such a claim.


 


16.                               Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent
permitted by law.  Furthermore, to the
fullest extent possible, the provisions of this Agreement (including without
limitation each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.


 


17.                               Choice of Law.  This Agreement, and all rights, remedies,
liabilities, powers and duties of the parties to this Agreement, shall be
governed by and construed in accordance with the laws of the State of Delaware
without regard to principles of conflicts of laws.


 


18.                               Subrogation.  In the event
of payment under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery of Indemnitee from any
insurance policy purchase by the Company, who shall execute all documents
required and shall do all acts that may be necessary to secure such rights and
to enable the Company effectively to bring suit to enforce such rights.  In no event, however, shall the Company or
any


 


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other person
have any right of recovery, through subrogation or otherwise, against (i) Indemnitee
or (ii) any insurance policy purchased or maintained by Indemnitee.


 


19.                               Amendment and Termination.  No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless it is in writing signed by both the parties hereto.  No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver.


 


20.                               Integration and Entire Agreement.  This
Agreement sets forth the entire understanding between the parties hereto and
supersedes and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.


 


21.                               No Construction as Employment Agreement.  Nothing contained in this Agreement shall be
construed as giving Indemnitee any right to employment by the Company or any of
its subsidiaries or affiliated entities.


 


22.                               Additional Acts.  If for the validation of any of the
provisions in this Agreement any act, resolution, approval or other procedure
is required, the Company undertakes to cause such act, resolution, approval or
other procedure to be affected or adopted in a manner that will enable the
Company to fulfill its obligations under this Agreement.


 


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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.


 


	
   

  	
  ACCURAY
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:
  Wayne Wu

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:
  Chairman of the Board of Directors

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  Accuray
  Incorporated

  
	
   

  	
   

  	
  1310
  Chesapeake Terrace

  
	
   

  	
   

  	
  Sunnyvale,
  CA 94089

  
	
   

  	
   

  	
  Attn:
  General Counsel

  
	
   

  	
   

  
	
  AGREED
  TO AND ACCEPTED BY:

  	
   

  
	
   

  	
   

  
	
  INDEMNITEE:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


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