Exhibit
10.2


 


GENERAL RELEASE AND SEPARATION AGREEMENT


 


This General Release and Separation Agreement (hereafter “Agreement”)
is entered into between Christopher Mitchell (the “Executive”), and
Accuray Incorporated (the “Company”), effective on the eighth calendar day following the Executive’s signature
(the “Effective Date”), unless he revokes his acceptance in accordance
with the terms of Section 6(b), below.


 


WHEREAS, the Executive was
Senior Vice President, General Counsel of the Company, pursuant to the terms of
an employment offer letter dated May 3, 2007 (the “Employment Agreement”);


 


WHEREAS, the Executive
resigned effective September 11, 2008; and


 


WHEREAS, the Company and the
Executive now wish to document the termination of their employment relationship
and fully and finally to resolve all matters between them;


 


THEREFORE, in exchange for
the good and valuable consideration set forth herein, the adequacy of which is
specifically acknowledged, the Executive and the Company hereby agree as
follows:


 


1.                                       Resignation of Employment. 
The Executive confirms his resignations of his employment and of his
position as an officer of the Company effective September 11, 2008 (the “Resignation
Date”).  The parties hereby
acknowledge and agree that the Executive’s resignation of employment
constitutes a “separation from service” from the Company 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) (a “Separation from Service”).  As of the Resignation Date, the Employment
Agreement shall automatically terminate and be of no further force and effect,
and neither the Company nor the Executive shall have any further obligations
thereunder, except as expressly provided herein.  Notwithstanding the foregoing, the Company
shall be obligated to Executive for severance payments and continuation of
benefits as contemplated by Section 8 of the Employment Agreement and as
set forth in Section 3 below.


 


2.                                       Payment of Accrued Wages and Expenses.  The
Executive acknowledges receipt, on the Resignation Date, of an amount equal to
all accrued wages through the Resignation Date, including accrued, unused
vacation and/or paid time off, less applicable taxes and other authorized
withholding.  The Executive shall be
promptly reimbursed for all expenses incurred by him on behalf of the Company,
and submitted on or before October 31, 2008 for reimbursement in
accordance with the Company’s expense reimbursement policies.   The Executive also acknowledges receipt of
his bonus for the Company’s 2008 fiscal year.


 


3.                                       Cash Severance Benefits and COBRA Premiums.  The
Executive agrees that, except as set forth in this Agreement, he is entitled to
no additional pay or benefits in conjunction with the termination of his
employment.  Subject to Section 22(b) of
this Agreement, ten days following the Effective Date of this Agreement, the
Company shall pay to the Executive, in a lump-sum, cash severance in the gross
amount of $286,713.70 (two hundred eighty-six thousand,


 

















 


seven hundred thirteen dollars and seventy cents)
(the “Severance Payment”), which the parties acknowledge and agree
represents the amount of the “Severance Payment” calculated under, and as
defined in, Section 8(a) of the Employment Agreement, consisting of
eight months’ base salary ($173,334.20), target bonus at 50% of the Executive’s
base salary for a period of eight months ($86,667.10), and pro-rated bonus for
the current fiscal year at target ($26,712.40). 
The Severance Payment shall be paid net of applicable taxes and other
authorized withholding.  In addition, in
the event that the Executive elects to continue healthcare coverage pursuant to
the Consolidated Omnibus Budget and Reconciliation Act  (“COBRA”) for himself, his spouse and
his children, as applicable and to the extent eligible, the Company shall pay
the Executive’s COBRA premiums for the period commencing on the date on which
the Executive’s Company-sponsored healthcare coverage would otherwise terminate
(absent COBRA) and ending on the earlier to occur of the eight (8) month
anniversary of such date or the expiration of the period during which the
Executive would be entitled to continuation coverage under COBRA absent this
provision.


 


4.                                       Stock
Options and Restricted Stock Units. 
The Executive acknowledges that as of the Resignation Date, the
Executive was vested in Stock Options and Restricted Stock Units (“RSUs”)
as reflected in the report attached as Exhibit A hereto.  The Executive further acknowledges that vesting in the Stock Options and RSUs ceased on the
Resignation Date, and all Stock Options and RSUs not then vested were cancelled
and forfeited as of that date.  Except as
specifically set forth herein, the Executive’s rights with respect to Stock
Options and RSUs issued to him are governed by the Stock Option and Restricted
Stock Unit Agreements entered into between the Executive and the Company, and
the applicable Company equity incentive plan(s) and Notice(s) of
Grant.


 


5.                                       Outplacement Assistance and Executive Coaching
Services.  The Company will pay for outplacement
assistance for the Executive in an amount not to exceed $10,000 (ten thousand
dollars), provided that the Executive receives such outplacement assistance on
or before December 31, 2010. 
Outplacement assistance shall be provided by Challenger Gray and
Christmas.  The Executive shall continue
to have access to executive coaching through Anthony Smith, to the extent that
such services were purchased by the Company on his behalf prior to the
Resignation Date, provided that
the Executive receives such executive coaching on or before December 31,
2010.


 


6.                                       General Release of Claims by the Executive.


 


(a)                                  The Executive, on behalf of himself and his
executors, heirs, administrators, representatives and assigns, hereby agrees to
release and forever discharge the Company and all predecessors, successors and
their respective parent corporations, affiliates, related, and/or subsidiary
entities, and all of their past and present investors, directors, shareholders,
officers, general or limited partners, executives, attorneys, agents and
representatives, and executive benefit plans in which the Executive is or has
been a participant by virtue of his employment with the Company, from any and
all claims, debts, demands, accounts, judgments, rights, causes of action,
equitable relief, damages, costs, charges, complaints, obligations, promises,
agreements, controversies, suits, expenses, compensation, responsibility and
liability of every kind and character whatsoever (including attorneys’ fees and
costs), whether in law or equity, known or


 


2

















 


unknown, asserted or unasserted, suspected or unsuspected
(collectively, “Claims”), which the Executive has or may have had
against such entities based on any events or circumstances arising or occurring
on or prior to the date hereof or on or prior to the Resignation Date, arising
directly or indirectly out of, relating to, or in any other way involving in
any manner whatsoever the Executive’s employment by the Company or the
separation thereof, and any and all claims arising under federal, state, or
local laws relating to employment, including without limitation claims of
wrongful discharge, breach of express or implied contract, fraud,
misrepresentation, defamation, or liability in tort, claims of any kind that
may be brought in any court or administrative agency, any claims arising under
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the
Executive Retirement Income Security Act, the Family and Medical Leave Act, and
similar state or local statutes, ordinances, and regulations, including,
without limitation, the California Family Rights Act, the California Fair
Employment and Housing Act and the California Labor Code.


 


Notwithstanding the generality of the foregoing, the
Executive does not release the following claims and rights:


 


(i)                                     Claims for unemployment compensation or any
state disability insurance benefits pursuant to the terms of applicable state
law;


 


(ii)                                  Claims to continued participation in certain
of the Company’s group benefit plans pursuant to the terms and conditions of
the federal law known as COBRA;


 


(iii)                               The Executive’s right to bring to the
attention of the Equal Employment Opportunity Commission claims of
discrimination; provided, however, that the Executive does release his right to
secure damages for any alleged discriminatory treatment;


 


(iv)                              The Executive’s rights under the
Indemnification Agreement between Company and Executive and under applicable
law (including California Labor Code Section 2802), the General
Corporation Law of Delaware and the Company’s D&O policy to seek indemnity
for acts committed, or omissions, within the course and scope of the Executive’s
employment duties; and


 


(v)                                 Claims for breach of this Separation
Agreement.


 


(b)                                 In accordance with the Older Workers Benefit
Protection Act of 1990, the Executive acknowledges that he is aware of the following:


 


(i)                                     This Section and this Agreement are
written in a manner calculated to be understood by the Executive.


 


3

















 


(ii)                                  The waiver and release of claims under the
ADEA contained in this Agreement does not cover rights or claims that may arise
after the date on which the Executive signs this Agreement.


 


(iii)                               This Agreement provides for consideration in
addition to anything of value to which the Executive is already entitled.


 


(iv)                              The Executive has been advised to consult an
attorney before signing this Agreement.


 


(v)                                 The Executive has been granted forty-five
(45) days after he is presented with this Agreement to decide whether or not to
sign this Agreement.  If the Executive
executes this Agreement prior to the expiration of such period, he does so
voluntarily and after having had the opportunity to consult with an attorney,
and hereby waives the remainder of the forty-five (45) day period.


 


(vi)                              The Executive has the right to revoke this
general release within seven (7) days of signing this Agreement.  In the event this general release is revoked,
this Agreement will be null and void in its entirety, and the Executive will
not receive the benefits of this Agreement.


 


If
the Executive wishes to revoke this agreement, he must deliver written notice
stating that intent to revoke, in accordance with the notice provisions of Section 17
of this Agreement, on or before 5:00 p.m. on the seventh (7th)
day after the date on which the Executive signs this Agreement.


 


7.                                       The Company’s Release of Claims. The Company voluntarily releases and
discharges the Executive and his heirs, successors, administrators,
representatives and assigns from all Claims which it may have against the
Executive as the result of his employment or the discontinuance of his
employment and that are based upon facts known, or which in the exercise of
reasonable diligence should have been known, to the Company’s Board of
Directors.  Notwithstanding the
foregoing, nothing herein shall release or discharge any Claim by the Company
against the Executive, or the right of the Company to bring any action, legal
or otherwise, against the Executive as a result of any failure by him to
perform his obligations under this Agreement, or as a result of any acts of
intentional misconduct or recklessness (including, but not limited to, fraud,
embezzlement, misappropriation, or other malfeasance).


 


8.                                       Waiver of Rights Under California Civil Code Section 1542.  The
Company and the Executive acknowledge that they have been advised of and are
familiar with the provisions of California Civil Code Section 1542, which
provides as follows:


 


“A general release does not
extend to claims which the creditor does not know or suspect to exist in his or
her favor at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the debtor.”


 


Being
aware of said code section, the Company and the Executive hereby expressly
waive any rights they may have thereunder, as well as under any other statutes
or common law principles of similar effect; provided, however, that such waiver
is not intended to affect claims expressly


 


4

















 


preserved
under the terms of the parties’ respective releases.


 


9.                                       Nondisparagement.  The
Executive agrees that neither he nor anyone acting by, through, under or in
concert with him shall disparage or otherwise communicate negative statements
or opinions about the Company, its Board members, officers, executives or
business.  The Company agrees that
neither its Board members nor officers shall disparage or otherwise communicate
negative statements or opinions about the Executive.


 


10.                                 Restrictive Covenants.  The
Executive acknowledges his continuing obligations, pursuant to Section 10(a),
(b) and (d) of the Employment Agreement.


 


11.                                 Cooperation.  The Executive agrees to give
reasonable cooperation, at the Company’s request, in any pending or future
litigation or arbitration brought against the Company and in any investigation
that the Company or any government entity may conduct.    The Company shall reimburse the Executive
for all out of pocket expenses reasonably incurred by him in compliance with
this Section 11.


 


12.                                 Executive’s
Representations and Warranties.  The
Executive represents and warrants that:


 


(a)                                  He has been paid all wages owed to him by the
Company, including all accrued, unused vacation and/or paid time off, as of the
date of execution of this Agreement;


 


(b)                                 As of the date of execution of this
Agreement, he has not sustained any injuries for which he might be entitled to
compensation pursuant to California’s Workers Compensation law;


 


(c)                                  The Executive has not initiated any
adversarial proceedings of any kind against the Company or against any other
person or entity released herein, nor will he do so in the future, except as
specifically allowed by this Agreement.


 


13.                                 Confidential Information; Return of Company
Property.


 


(a)                                  The Executive hereby expressly confirms his
continuing obligations to the Company pursuant to Section 10(a) of
the Employment Agreement, and pursuant to the Employee Invention Assignment and
Confidentiality Agreement executed by the Executive, a copy of which is
attached as Exhibit B and incorporated herein by reference.


 


(b)                                 The Executive shall deliver to the Company
within five days of the Resignation Date, all originals and copies of
correspondence, drawings, manuals, letters, notes, notebooks, reports,
programs, plans, proposals, financial documents, or any other documents
concerning the Company and its customers’, business plans, marketing
strategies, products, processes or business of any kind, and all originals and
copies of documents that contain proprietary information or trade secrets of
the Company that are in the possession or control of the Executive or his
agents or representatives.


 


5

















 


(c)                                  The Executive shall return to the Company
within five days of  the Resignation Date
all equipment of the Company in his possession or control.  Notwithstanding the foregoing, the Executive
will be permitted to retain the personal computer (Panasonic Toughbook laptop
computer) provided by the Company for Executive’s use, which laptop computer
the parties agree has a depreciated value of $1,200 (one thousand two hundred
dollars).  Notwithstanding the foregoing,
the Company shall be permitted to retain the laptop computer for such time as
is reasonably necessary to remove from it all Company information and software.


 


14.                                 Taxes.  To the extent any taxes may be
payable by the Executive for the benefits provided to him by this Agreement
beyond those withheld by the Company, the Executive agrees to pay them himself
and to indemnify and hold the Company and the other entities released herein
harmless for any tax claims or penalties, and associated attorneys’ fees and
costs, resulting from any failure by him to make required payments.


 


15.                                 In the Event of a Claimed Breach.  All
controversies, claims and disputes arising out of or relating to this
Agreement, including without limitation any alleged violation of its terms,
shall be resolved by final and binding arbitration before a single neutral
arbitrator in San Jose, California, in accordance with the applicable dispute
resolution rules of the Judicial Arbitration and Mediation Service (“JAMS”).
The arbitration shall be commenced by filing a demand for arbitration with JAMS
within 60 (sixty) days after the filing party has given notice of such breach
to the other party.  The arbitrator shall
have authority to award the prevailing party attorneys’ fees and expert fees,
if any.  Notwithstanding the foregoing,
it is acknowledged that it will be impossible to measure in money the damages
that would be suffered if the parties fail to comply with any of the
obligations imposed on them under Sections 13(a) and (b) hereof, and
that in the event of any such failure, an aggrieved person will be irreparably
damaged and will not have an adequate remedy at law.  Any such person shall, therefore, be entitled
to injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be brought in equity to enforce any of the
provisions of Sections 13(a) and (b) of this Agreement, neither of
the parties hereto shall raise the defense that there is an adequate remedy at
law.


 


16.                                 Choice of Law.  This
Agreement shall in all respects be governed and construed in accordance with
the laws of the State of California, including all matters of construction,
validity and performance, without regard to conflicts of law principles.


 


17.                                 Notices.  All notices, demands or other
communications regarding this Agreement shall be in writing and shall be
sufficiently given if either personally delivered or sent by facsimile or
overnight courier, addressed as follows:


 


(a)                                  If to the Company:


 


Accuray Incorporated


Attn:  Euan
Thomson, CEO


1310 Chesapeake Terrace


Sunnyvale, CA 
94089


Phone: 
408-716-4600


Fax: 
408-716-4747


 


6

















 


(b)                                 If to the Executive:


 


Christopher Mitchell


15 Emerald Lake Place


Emerald Hills, CA 
94062


Phone: 
650-703-7549


 


18.                                 Severability. 
Except as otherwise specified below, should any portion of this
Agreement be found void or unenforceable for any reason by a court of competent
jurisdiction, the parties intend that such provision be limited or modified so
as to make it enforceable, and if such provision cannot be modified to be
enforceable, the unenforceable portion shall be deemed severed from the
remaining portions of this Agreement, which shall otherwise remain in full
force and effect.  If any portion of this
Agreement is so found to be void or unenforceable for any reason in regard to
any one or more persons, entities, or subject matters, such portion shall
remain in full force and effect with respect to all other persons, entities,
and subject matters.  This paragraph
shall not operate, however, to sever the Executive’s obligation to provide the
binding release to all entities intended to be released hereunder.


 


19.                                 Understanding and Authority.  The
parties understand and agree that all terms of this Agreement are contractual
and are not a mere recital, and represent and warrant that they are competent
to covenant and agree as herein provided.


 


20.                                 Integration Clause.  This
Agreement, the Employment Agreement, and the Employee Invention Assignment and
Confidentiality Agreement contain the entire agreement of the parties with
regard to the matters referenced herein and supersede any prior agreements as
to such matters. This Agreement may not be changed or modified, in whole or in
part, except by an instrument in writing signed by the Executive and the Chief
Executive Officer of the Company.   The
Indemnification Agreement between the Company and the Executive shall not be
affected by the existence of this Agreement, including this Section 20
hereof, and shall remain in full force and effect.


 


21.                                 Execution in Counterparts.  This
Agreement may be executed in counterparts with the same force and effectiveness
as though executed in a single document.


 


22.                                 Section 409A of the Code.


 


(a)                                  The payments and benefits under this
Agreement are intended to be exempt from the application of Section 409A
of the Code.  To the extent applicable,
this Agreement shall be interpreted in accordance with Section 409A of the
Code and Department of Treasury Regulations and other interpretive guidance
issued thereunder.  Notwithstanding any
provision of this Agreement to the contrary, if the Company determines that any
such compensation or benefits payable under this Agreement may be subject to Section 409A
of the Code and related Department of Treasury guidance, the Company may, with
the Executive’s prior written consent, adopt such amendments to this Agreement
or adopt other policies and procedures (including amendments, policies and
procedures with retroactive effect), or take any other actions, that the
Company


 


7

















 


determines are necessary or appropriate to (i) exempt
the compensation and benefits payable under this Agreement from Section 409A
of the Code and/or preserve the intended tax treatment of such compensation and
benefits, or (ii) comply with the requirements of Section 409A of the
Code and related Department of Treasury guidance.


 


(b)                                 Notwithstanding anything to the contrary in
this Agreement, no payment or benefits, including without limitation the amount
payable under Section 3 hereof, shall be paid to the Executive during the
six (6) month period following the Executive’s Separation from Service if
the Company determines that paying such amount at the time or times indicated
in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of
the Code.  If the payment of any such
amount 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
the Executive’s death), the Company shall pay the Executive a lump-sum amount
equal to the cumulative amount that would have otherwise been payable to the
Executive during such period.


 


(c)                                  To the extent permitted under Section 409A
of the Code, any separate payment or benefit under this Agreement or otherwise
shall not be deemed “nonqualified deferred compensation” subject to Section 409A
and the six (6) month delay requirement under 409A(a)(2)(B)(i) of the
Code to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4),
Section 1.409A-1(b)(9) or any other applicable exception or provision
of Section 409A of the Code.


 


(d)                                 To the extent that any reimbursements or
corresponding in-kind benefits provided to the Executive under this Agreement,
including, without limitation under Section 2 or Section 11 hereof,
are deemed to constitute compensation to the Executive, such amounts shall 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 shall not affect the expenses or in-kind benefits
eligible for payment or reimbursement in any other taxable year, and the
Executive’s right to such payments or reimbursement of any such expenses shall
not be subject to liquidation or exchange for any other benefit.


 


8

















 


The parties have carefully
read this Agreement in its entirety; fully understand and agree to its terms
and provisions; and intend and agree that it is final and binding on all
parties.


 


IN WITNESS WHEREOF, and
intending to be legally bound, the parties have executed the foregoing on the
dates shown below.


 


	
  CHRISTOPHER MITCHELL

  	
   

  	
  ACCURAY INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Christopher D. Mitchell

  	
   

  	
  /s/ Euan Thomson

  
	
  Christopher Mitchell

  	
   

  	
  Euan Thomson

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
  Oct. 24, 2008

  	
   

  	
  Date

  	
  10-27-08

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Darren J. Milliken

  
	
   

  	
   

  	
  Associate General Counsel

  
	
   

  	
   

  	
  Accuray Incorporated

  
	
   

  	
   

  	
  10-27-08

  
							



 


9

















Exhibit A


 


	
   

  	
  Accuray Incorporated 

  
	
    Closing
  Statement

  	
  ID:
  20-8370041

  
	
   

  	
  1310
  Chesapeake Terrace

  
	
   

  	
  Sunnyvale,
  CA 94089

  
	
  Termination Date:        9/11/2008

  	
   

  



 


	
  Christopher Mitchell

  	
  ID: 758

  
	
  15 Emerald Lake Place

  	
   

  
	
  Emerald Hills, CA United States 94062

  	
   

  



 


Exercisable Options


 


	
  Number

  	
   

  	
  Grant

  Date

  	
   

  	
  Plan/

  Type

  	
   

  	
  Price ($)

  	
   

  	
  Shares

  Granted

  	
   

  	
  Shares

  Exercised

  	
   

  	
  Shares

  Exercisable

  	
   

  	
  Vesting

  Stop Date

  	
   

  	
  Total

  Price

  	
   

  	
  Last Date

  To Exercise

  	
   

  
	
  00002056

  	
   

  	
  02/29/08

  	
   

  	
  2007/NQ

  	
   

  	
  10.36000

  	
   

  	
  30,000.00

  	
   

  	
  0.00

  	
   

  	
  5,000.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  51,800.00

  	
   

  	
  12/11/08

  	
   

  
	
  00002184

  	
   

  	
  08/29/08

  	
   

  	
  2007/NQ

  	
   

  	
  8.25000

  	
   

  	
  30,000.00

  	
   

  	
  0.00

  	
   

  	
  1,250.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  10,312.50

  	
   

  	
  12/11/08

  	
   

  
	
  00001533

  	
   

  	
  05/25/07

  	
   

  	
  2007/NQ

  	
   

  	
  24.14000

  	
   

  	
  73,432.00

  	
   

  	
  0.00

  	
   

  	
  26,686.80

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  644,219.35

  	
   

  	
  12/11/08

  	
   

  
	
  00001532

  	
   

  	
  05/25/07

  	
   

  	
  2007/ISO

  	
   

  	
  24.14000

  	
   

  	
  16,568.00

  	
   

  	
  0.00

  	
   

  	
  3,313.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  79,975.82

  	
   

  	
  12/11/08

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  TOTALS

  	
   

  	
   

  	
   

  	
  150,000.00

  	
   

  	
  0.00

  	
   

  	
  36,249.80

  	
   

  	
   

  	
   

  	
  $

  	
  786,307.67

  	
   

  	
   

  	
   

  



 


Releasable
Restricted Stock Awards


 


	
  Number

  	
   

  	
  Grant

  Date

  	
   

  	
  Plan/

  Type

  	
   

  	
  Price ($)

  	
   

  	
  Shares

  Granted

  	
   

  	
  Shares

  Released

  	
   

  	
  Shares

  Releasable

  	
   

  	
  Shares

  Cancelled

  	
   

  
	
  00001526

  	
   

  	
  05/25/07

  	
   

  	
  2007/RSU

  	
   

  	
  0.00000

  	
   

  	
  10,000.00

  	
   

  	
  2,500.00

  	
   

  	
  0.00

  	
   

  	
  7,500.00

  	
   

  
	
  00002064

  	
   

  	
  02/29/08

  	
   

  	
  2007/RSU

  	
   

  	
  0.00000

  	
   

  	
  5,000.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  5,000.00

  	
   

  
	
  00002186

  	
   

  	
  08/29/08

  	
   

  	
  2007/RSU

  	
   

  	
  0.00000

  	
   

  	
  2,500.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  2,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  TOTALS

  	
   

  	
   

  	
   

  	
  17,500.00

  	
   

  	
  2,500.00

  	
   

  	
  0.00

  	
   

  	
  15,000.00

  	
   

  



 


1
















 


Exhibit B


 


Initials: Employee /s/ CM


Accuray /s/ PV


Page 1 of 7


 





 


EMPLOYEE INVENTION ASSIGNMENT AND

CONFIDENTIALITY AGREEMENT


 


In
consideration of, and as a condition of my employment with Accuray, Inc.,
a California corporation (“Accuray”),I  hereby represent to, and agree with Accuray as follows:


 


1.                                      Effective Date. I understand that this Agreement shall take
effect on the date I begin work with Accuray (“Effective Date”).


 


2.                                      Purpose of Agreement. I understand that Accuray is engaged in a continuous program of research,
development, production and marketing in connection with its business and that
it is critical for Accuray to preserve and protect its “Proprietary
Information”  (as
defined in Section 8 below), its rights in “Inventions” (as defined in Section 3 below) and in all related intellectual property rights. Accordingly, I am entering
into this Employee Invention Assignment and Confidentiality Agreement (this “Agreement”) as a condition of my employment with Accuray,
whether or not I am expected to create inventions of value for Accuray.


 


3.                                      Disclosure of Inventions. I will promptly disclose in confidence to Accuray all ideas, writings,
discoveries, inventions, improvements, designs, original works of authorship,
formulas, processes, compositions of matter, computer software programs,
databases, mask works and trade secrets that I make or conceive of or first
reduce to practice or create, either alone or jointly with others, during the
period of my employment, whether or not in the course of my employment, and
whether or not patentable, copyrightable or protectable as trade secrets (the “Inventions”). I agree to maintain adequate and current
written records on the development of all Inventions.


 


4.                                      Work for Hire; Assignment of
Inventions. I acknowledge and agree that any copyrightable works prepared by me
within the scope of my employment are “works for hire” under the Copyright Act
and that Accuray will be considered the author and owner of such copyrightable
works. I agree that all Inventions
that (i) are developed
using equipment, supplies, facilities or trade secrets of Accuray, (ii) result
from work performed by me for Accuray, or (iii) relate to Accuray’s
business or actual or demonstrably anticipated research and development (the “Assigned
Inventions”), will be the sole
and exclusive property of Accuray. I hereby irrevocably assign, and agree to
assign, the Assigned Inventions to Accuray.


 


5.                                      Labor Code Section 2870
Notice. I have been notified and understand that the provisions of Sections 3 and 4 of this Agreement do not apply to any Assigned Invention that qualifies
fully under the provisions of Section 2870 of the California Labor Code,
which states as follows:


 


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ANY PROVISION IN AN EMPLOYMENT AGREEMENT WHICH
PROVIDES THAT AN EMPLOYEE SHALL ASSIGN, OR OFFER TO ASSIGN, ANY OF HIS OR HER
RIGHTS IN AN INVENTION TO HIS OR HER EMPLOYER SHALL NOT APPLY TO AN INVENTION
THAT THE EMPLOYEE DEVELOPED ENTIRELY ON HIS OR HER OWN TIME WITHOUT USING THE
EMPLOYER’S EQUIPMENT, SUPPLIES, FACILITIES, OR TRADE SECRET INFORMATION EXCEPT
FOR THOSE INVENTIONS THAT EITHER: (1) RELATE AT THE TIME OF CONCEPTION OR
REDUCTION TO PRACTICE OF THE INVENTION TO THE EMPLOYER’S BUSINESS, OR ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT OF THE EMPLOYER; OR (2) RESULT
FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE EMPLOYER. TO THE EXTENT A
PROVISION IN AN EMPLOYMENT AGREEMENT PURPORTS TO REQUIRE AN EMPLOYEE TO ASSIGN
AN INVENTION OTHERWISE EXCLUDED FROM BEING REQUIRED TO BE ASSIGNED UNDER
CALIFORNIA LABOR CODE SECTION 2870(a), THE PROVISION IS AGAINST THE PUBLIC
POLICY OF THIS STATE AND IS UNENFORCEABLE.


 


Accordingly,
I acknowledge that Inventions set forth in Schedule A (“Employee’s Disclosure”)
are excluded from the operation of this Agreement. [NOTE: We recommend getting a record of all Inventions
developed prior to employment with Accuray to avoid any ambiguity or argument
as to what was developed during the period of employment.]


 


6.                                      Assignment of Other Rights. In addition to the foregoing assignment of Assigned
Inventions to Accuray, I hereby irrevocably transfer and assign to Accuray: (i) all
worldwide patents, patent applications, copyrights, mask works, trade secrets
and other intellectual property rights, including but not limited to rights in
databases, in any Assigned Inventions, along with any registrations of or
applications to register such rights; and (ii) any and all “Moral Rights”
(as defined below) that I may have in or with respect to any Assigned
Inventions. I also hereby forever waive and agree never to assert any and all
Moral Rights I may have in or with respect to any Assigned Inventions, even
after termination of my work on behalf of Accuray. “Moral Rights”  mean any rights to claim authorship of or credit on an
Assigned Inventions, to object to or prevent the modification or destruction of
any Assigned Inventions, or to withdraw from circulation or control the
publication or distribution of any Assigned Inventions, and any similar right,
existing under judicial or statutory law of any country or subdivision thereof
in the world, or under any treaty, regardless of whether or not such right is
denominated or generally referred to as a “moral right.”


 


7.                                      Cooperation. At Accuray’s request and expense, I will,
during the term of my employment and thereafter, cooperate with and assist
Accuray, and perform such further acts and execute, acknowledge and deliver to
Accuray such further documents, as Accuray may deem necessary or advisable in
order to obtain, establish, perfect, maintain, evidence, enforce or


 


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otherwise
protect any of the rights, title and interests assigned, transferred, conveyed,
or licensed (or intended to be assigned, transferred, conveyed, or licensed) to
Accuray under this Agreement, or otherwise carry out the intent and accomplish
the purposes of this Agreement. Without limiting the generality of the
foregoing, to the extent permitted by applicable law, I hereby appoint Accuray
as my attorney-in-fact (which appointment is coupled with an interest), with
full power of substitution and delegation, with the right (but not the
obligation) to perform any such acts and to execute, acknowledge and deliver
any such documents on my behalf.


 


8.                                      Proprietary Information. I understand that my employment by Accuray
creates a relationship of confidence and trust with respect to any information
of a confidential or secret nature that may be disclosed to me by Accuray or a
third party that relates to the business of Accuray or to the business of any
parent, subsidiary, affiliate, customer or supplier of Accuray or any other
party to which Accuray owes a duty of confidentiality, whether or not labeled
or identified as proprietary or confidential, and including any copies,
portions, extracts and derivatives thereof, except to the extent that I can
prove that such information or materials (i) are or become generally known
to the public through lawful means and through no act or omission of mine; (ii) were
part of my general knowledge prior to my employment by Accuray; or (iii) are
disclosed to me without restriction by a third party who rightfully possesses
the information and is under no duty of confidentiality with respect thereto
(the “Proprietary Information”). Such Proprietary Information includes, but is
not limited to, Assigned Inventions, marketing plans, product plans, business
strategies, financial information, forecasts, personnel information, customer
lists and data, and domain names. Except as disclosed on Schedule A to this
Agreement, I have no knowledge of Accuray’s business or Proprietary
Information, other than information I have learned from Accuray in the course
of being hired and employed


 


9.                                      Confidentiality.   At
all times, both during my employment and after its termination, I will keep and
hold all such Proprietary Information in strict confidence and trust. I agree
to maintain at my work station and/or any other place under my control only
such Proprietary information that is necessary to carry out my responsibilities
as an employee of Accuray. I agree to return to the appropriate person or
location or otherwise properly dispose of Proprietary Information once that
necessity no longer exists. I also agree not to make copies or otherwise
reproduce Proprietary Information except to the extent necessary to carry out
my, responsibilities as an employee of Accuray. [Note: Placing these
restrictions on the location and reproduction of certain proprietary
information helps to establish the employer’s efforts to “maintain the secrecy
of” of this information, a required element for trade secrets status under the
Uniform Trade Secrets Act. Cal.
Civ. Code section 3426.1(d)(2).] I understand that avoiding loss or theft of Proprietary Information is
an important part of my duties. 1 will not allow any other person to use my
office access card or computer passwords, without prior managerial approval. I
will only use secure networks established by Accuray when using Proprietary
Information. I will not use or disclose any Proprietary Information without the
prior written consent of Accuray, except as may be necessary to perform my
duties as an employee of Accuray for the benefit of Accuray.


 


10.                               Termination. Upon termination of my employment with
Accuray, I will promptly deliver to Accuray all documents and materials of any nature
pertaining to my work


 


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with
Accuray and, upon Company request, will execute a document confirming my
agreement to honor my responsibilities contained in this Agreement. I will not
take with me or retain any documents or materials or copies thereof containing
any Proprietary Information. I agree that after the termination of my employment with Accuray, I will not enter into any agreement that would cause me
to violate any of my obligations under this Agreement and will inform any
subsequent employers of my obligations under this Agreement.


 


11.                               Survival. The terms and conditions of this Agreement
and my obligations hereunder shall survive any termination of my employment
with Accuray and any expiration or termination of any employment or other
agreement between Accuray and me, and such terms and conditions shall remain in
full force and effect as set forth herein.


 


12.                               No Breach
of Prior Agreement. I
represent that my performance of all the terms of this Agreement and my duties
as an employee of Accuray will not breach any invention assignment, proprietary
information, confidentiality or similar agreement with any former employer or
other party. I represent that I will not bring with me to Accuray or use in the
performance of my duties for Accuray any documents or materials or intangibles
of a former employer or third party that are not generally available to the
public or have not been legally transferred to Accuray. Except as disclosed on
Schedule A, 1 am aware of no prior agreements between me and any other person
or entity concerning propriety information, creations, or proprietary rights.


 


13.                               Efforts;
Duty Not to Compete. I
understand that my employment with Accuray requires my undivided attention and
effort. As a result, during my employment, I will not, without Accuray’s
express written consent, engage in any other employment or business that (i) directly
competes with the current or future business of Accuray; (ii) uses any
Accuray information, equipment, supplies, facilities or materials; or (iii) otherwise
conflicts with Accuray’s business interest and causes a disruption of its
operations.


 


14.                               Notification. I hereby authorize Accuray to notify third
parties, including, without limitation, customers and actual or potential
employers, of the terms of this Agreement and my responsibilities hereunder.


 


15.                               Non-Solicitation of
Employees/Consultants. During
my employment with Accuray and for a period of one (1) year thereafter, I
will not directly or indirectly solicit away employees or consultants of
Accuray for my own benefit or for the benefit of any other person or entity.


 


16.                               Non-Solicitation of
Suppliers/Customers. During and
after the termination of my employment with Accuray, I will not directly or
indirectly solicit or otherwise take away customers or suppliers of Accuray if,
in so doing, I access, use or disclose any trade secrets or proprietary or
confidential information of Accuray. I acknowledge and agree that the names and
addresses of Accuray’s customers and suppliers, and all other confidential
information related to them, including their buying and selling habits and
special needs, whether created or obtained by, or disclosed to me during my
employment, constitute trade secrets of Accuray.


 


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17.                               Name & Likeness Rights. I hereby authorize
Accuray to use, reuse, and to grant others the right to use and reuse, my name,
photograph, likeness (including caricature), voice, and biographical
information, and any reproduction or simulation thereof, in any form of media
or technology now known or hereafter developed (including, but not limited to,
film, video and digital or other electronic media), both during and after my
employment, for whatever purposes Accuray deems necessary.


 


18.                               Remedies. I recognize that nothing in this Agreement
is intended to limit any remedy of Accuray under any law concerning trade
secrets or other Proprietary Rights. I recognize that my violation of this
Agreement could cause Accuray irreparable harm and acknowledge that Accuray may
have the right to apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Agreement.


 


19.                               Governing Law; Severability. This Agreement
will be governed by and construed in accordance with the laws of the State of
California, without giving effect to its laws pertaining to conflict of laws.
If any provision of this Agreement is determined by any court or arbitrator of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision will be enforced to the maximum extent possible given the intent
of the parties hereto. If such clause or provision cannot be so enforced, such
provision shall be stricken from this Agreement and the remainder of this
Agreement shall be enforced as if such invalid, illegal or unenforceable clause
or provision had (to the extent not enforceable) never been contained in this
Agreement.


 


20.                               Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered will be deemed an
original, and all of which together shall constitute one and the same
agreement.


 


21.                               Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement and understanding of the parties with
respect to the subject matter of this Agreement, and supersede all prior
understandings and agreements, whether oral or written, between or among the
parties hereto with respect to the specific subject matter hereof.


 


22.                               Amendment and Waivers. This Agreement may
be amended only by a written agreement executed by each of the parties hereto.
No amendment of or waiver of, or modification of any obligation under this
Agreement will be enforceable unless set forth in a writing signed by the party
against which enforcement is sought. For Accuray, any such writing must be
signed by one of the following: CEO, CFO or General Counsel. Any amendment
effected in accordance with this section will be binding upon all parties
hereto and each of their respective successors and assigns. No delay or failure
to require performance of any provision of this Agreement shall constitute a
waiver of that provision as to that or any other instance. No waiver granted
under this Agreement as to any one provision herein shall constitute a
subsequent waiver of such provision or of any other provision herein, nor shall
it constitute the waiver of any performance other than the actual performance
specifically waived.


 


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23.                               Successors and Assigns; Assignment. I acknowledge and agree that my obligations
hereunder are personal, and that I shall have no right to assign, transfer or
delegate and shall not assign, transfer or delegate or purport to assign,
transfer or delegate this Agreement or any of my rights or obligations
hereunder. This Agreement and any rights and obligations of Accuray hereunder
may be freely assigned, transferred or delegated by Accuray. Any assignment,
transfer or delegation in violation of this Article 23 shall be null and void. Subject to the foregoing restrictions on assignments,
transfers and delegations, this Agreement shall inure to the benefit of Accuray
and its affiliates, officers, directors, agents, successors and assigns; and
shall be binding on me and my heirs, devisees, spouses, agents, legal
representatives and successors


 


24.                               “At Will” Employment. I understand that this Agreement does not constitute a contract of
employment or obligate Accuray to employ me for any stated period of time. I
understand that I am an “at will” employee of Accuray and that
my employment can be terminated at any time, with or without notice and with or
without cause, for any reason or for no reason, by either Accuray or myself. I
acknowledge that any statements or representations to the contrary are
ineffective, unless put into a writing signed by Accuray. I further acknowledge
that my participation in any stock option or benefit program is not to be
construed as any assurance of continuing employment for any particular period
of time.


 


I
REPRESENT THAT I HAVE
READ THIS AGREEMENT, AND THAT I
FULLY UNDERSTAND ALL OF ITS TERMS AND CONDITIONS; I HAVE EXECUTED THIS
AGREEMENT WITHOUT COERCION OR DURESS OF ANY KIND.


 


IN WITNESS WHEREOF, the parties have signed
this Agreement as of the Effective Date.


 


	
  ACCURAY,
  INC.:

  	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Paul A. Vagadori

  	
   

  	
  /s/ Christopher D. Mitchell

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Paul
  A. Vagadori

  	
   

  	
  Christopher D. Mitchell

  
	
   

  	
   

  	
  Name
  (Please Print)

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Sr.
  Director, HR

  	
   

  	
   

  



 


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SCHEDULE A


 


EMPLOYEE’S DISCLOSURE


 


1.  Proprietary
Information. Except as set forth below, I acknowledge
that at this time I know nothing about the business or Proprietary Information
of Accuray, other than the following information I have learned from Accuray in
the course of being hired:


 


 


 


2.  Previous Creations. Except for the items set forth below, there
is nothing that I wish to exclude from the operation of this Agreement:


 


 


 


3.  Prior Agreements. Except as set forth below, I am aware of no
prior agreements between me and any other person or entity concerning
proprietary information, creations or proprietary rights (of the nature
described in Section 2 above) (attach copies, or summary of terms, of all
agreements in your possession):


 


 


	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  Christopher
  D. Mitchell

  
	
   

  	
  Employee
  Name

  
	
   

  	
   

  
	
   

  	
  /s/
  Christopher D. Mitchell

  
	
   

  	
  Employee
  Signature

  



 


ACCURAY CONFIDENTIAL