Exhibit 10.1


 


GENERAL
RELEASE AND SEPARATION AGREEMENT


 


This
General Release and Separation Agreement (hereafter “Agreement”) is
entered into between Robert E. McNamara (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 5(b), below.


 


WHEREAS,
the Executive was the Chief Financial Officer of the Company, pursuant to the
terms of an employment offer letter dated November 10, 2006 (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 his position as an officer of the Company, and his position
as a director of any Company subsidiary 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.


 


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
on or before the Resignation Date, in accordance with the Company’s expense
reimbursement policies. The Executive shall submit any request for
reimbursement of such expenses to the Company no later than October 31,
2008.


 


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. On the first business day
following the expiration of the six (6) month period measured from the
date of the Executive’s Separation from Service, the Company shall pay to the
Executive, in a lump-sum, cash severance in the gross amount of $564,140.66
(five hundred sixty-four thousand, one hundred forty dollars and sixty-six
cents) (the “Severance Payment”), which the parties acknowledge and
agree represents the amount of the “Severance Payment” calculated under, and as
defined in, Section 6(a) of the Employment Agreement, consisting of
twelve months’ base salary ($316,300), target bonus at 65% of the


 

















 


Executive’s
annual base salary ($205,595), and pro-rated bonus for the current fiscal year
at target ($42,245.66). 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 and/or any similar state law (collectively, “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 twelve (12) 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. The parties acknowledge and agree
that the payment of the Severance Payment is being delayed in compliance with Section 409A(a)(2)(B)(i) of
the Code.


 


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, pursuant to the terms of the
Employment Agreement, vesting in the Executive’s outstanding Stock Options was accelerated
as of the Resignation Date with respect
to 127,916 (one hundred twenty-seven thousand, nine hundred sixteen) Stock Options,
and an additional 2,500 (two thousand five hundred) RSUs were released. The
amount of additional Stock Option acceleration and RSU release is equivalent to
that which would have occurred during the twelve month period immediately
following the Resignation Date, had the Executive remained employed through
that additional period. The Executive
hereby agrees that except as so expressly provided, and as reflected in Exhibit A,
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. Promptly following the Effective Date of this Agreement, the released
RSUs shall be released in book to E*Trade.


 


5.                                       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 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


 


2

















 


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 (“ERISA”), 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 under this Agreement;


 


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


 


(iii)                                    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 and/or any similar state law;


 


(iv)                                   Claims to vested rights or benefits, if any,
under the Company’s 401(k) plan;


 


(v)                                      The Executive’s rights as a shareholder of
the Company;


 


(vi)                                   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; and


 


(vii)                                The Executive’s right under applicable law
(including California Labor Code Section 2802), the Indemnity Agreement
between the Company and the Executive dated as of March 17, 2006 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. The Company
represents that it has in place D&O insurance that, to the extent of the
policy terms, covers acts of and omissions by the Executive in his prior role
as Chief Financial Officer of the Company.


 


3

















 


(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.


 


(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 16 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.


 


6.                                       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 has or may have against
the Executive arising from or related in any way to his employment with the
Company or service as a director or officer of the Company or any of its
subsidiaries or affiliates or the discontinuance of his employment with the
Company or services as a director or officer of the Company or any of its
subsidiaries or affiliates and that are based upon facts known, or which in the exercise of reasonable diligence could or 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 gross recklessness (including, but not limited to, fraud,
embezzlement, misappropriation, or other malfeasance).


 


4

















 


7.                                  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 preserved under the terms of the
parties’ respective releases.


 


8.                                  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 its
Board members, officers, and investment relations management personnel shall
not disparage or otherwise communicate negative statements or opinions about
the Executive. Notwithstanding this Section 8, nothing in this Agreement
is intended to prevent the Executive or any person affiliated with the Company
from giving truthful testimony in any legal, administrative or regulatory
proceeding or investigation or as otherwise required by law, subpoena, or other
legal process.


 


9.                             Restrictive Covenants. The Executive acknowledges his continuing
obligations, pursuant to Section 8(a), (b) and (d) of the
Employment Agreement.


 


10.                       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, and shall compensate the Executive at the rate of
$152 per hour for time spent complying with this Section 10. The Executive
shall submit an invoice for any time spent, and expenses incurred, at the
Company’s request pursuant to this Section 10. Such invoices shall be
submitted within 10 days after the end of the month in which services were
provided and/or expenses incurred, and shall be paid by the Company within 30
days of receipt.


 


11.                       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.


 


5

















 


12.                       Confidential Information; Return of Company
Property.


 


(a)                                       The Executive hereby expressly confirms his
continuing obligations to the Company pursuant to Section 8(a) of the
Employment Agreement, and pursuant to the Employee Confidentiality and
Inventions 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 Effective 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. Notwithstanding the generality of the foregoing, the
Executive may retain his own personnel documents, agreements between the
Executive and the Company, and his own compensation and stock documents.


 


(c)                                       The Executive shall return to the Company
within five days of the Effective Date all equipment of the Company in his
possession or control. Notwithstanding the foregoing, the Executive shall have
the opportunity to purchase the Company laptop computer issued to him for the
amount of $1,200 (one thousand two hundred dollars, which is its depreciated
value; provided, however, that the Executive shall return the laptop computer
to the Company within the five-day time period stipulated by this Section 12(c) so
that the Company has the opportunity to remove from it all Company information
and software. The Company shall return the laptop computer to the Executive
within five days of his surrender of it.


 


(d)                                      Notwithstanding the provisions of Section 12(a) through
(c), the Executive shall be entitled to retain and use electronic and hard
copies of his Company Outlook Contact files.


 


13.                       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.


 


14.                       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 one (1) year
of the event(s) giving rise to the controversy, claim or dispute, and no
less than ninety (90) days after the filing party has given notice of such
breach to the other party; provided, however,
that the one-year period referenced


 


6

















 


in this Section 14
shall not to applicable in the event that commencing the arbitration is
prevented for reasons beyond the control of the party demanding arbitration; and
provided further that the 90-day
period referenced in this Section 14 shall be extended during any period
in which the parties are attempting to informally resolve any dispute. The
arbitrator shall have authority to award the prevailing party attorneys’ fees
and expert fees, as provided by law, in addition to any other relief awarded.
The Parties have the right to seek review in any California court for any
errors of law by the arbitrator. 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 12(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 12(a) and (b) of this Agreement, neither of
the parties hereto shall raise the defense that there is an adequate remedy at
law.


 


15.                                 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.


 


16.                                 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

  
	
   

  	
  cc
  to: General Counsel

  
	
   

  	
  1310
  Chesapeake Terrace

  
	
   

  	
  Sunnyvale,
  CA 94089

  
	
   

  	
  Phone:
  408-716-4600

  
	
   

  	
  Fax:
  408-716-4747

  
	
   

  	
   

  
	
  (b)

  	
  If
  to the Executive:

  
	
   

  	
   

  
	
   

  	
  Robert
  E. McNamara

  
	
   

  	
  56
  Politzer Drive

  
	
   

  	
  Menlo
  Park, CA 94025

  
	
   

  	
  Phone:
  650-326-4511

  
	
   

  	
  Fax:
  650-326-1863

  



 


17.                                 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


 


7

















 


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 Section shall
not operate, however, to sever (a) the Executive’s obligation to provide the binding release to all
entities intended to be released hereunder; or (b) the Company’s
obligations under Sections 3, 4 and 6 of this Agreement.


 


18.                                 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.


 


19.                                 Integration Clause. This Agreement, the Employment Agreement,
and the Employee Confidentiality and Inventions 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.


 


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


 


21.                                 Binding on Successors. This Agreement shall be binding on the
Parties’ respective successors and assigns.


 


22.                                 Section 409A of the Code.


 


(a)                                  The payments and benefits under this
Agreement are intended to comply with or 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 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)                                 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.


 


8

















 


(c)                                  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 10 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.


 


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.


 


	
  ROBERT E. McNAMARA

  	
   

  	
  ACCURAY INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Robert E. McNamara

  	
   

  	
  /s/ Euan Thomson

  
	
  Robert E. McNamara

  	
   

  	
  Euan Thomson

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date 

  	
  10/17/08

  	
   

  	
  Date

  	
  10/22/08

  
					



 


 


	
   

  	
  /s/ Darren J. Milliken

  
	
   

  	
  Darren J. Milliken

  
	
   

  	
  Associate
  General Counsel

  
	
   

  	
  Accuray
  Incorporated

  
	
   

  	
  10-21-08

  



 


9

















Exhibit A


 


	
  “ Closing Statement

  	
   

  	
   

  
	
   

  	
   

  	
  Accuray Incorporated

  
	
   

  	
   

  	
  ID:
  20-8370041

  
	
   

  	
   

  	
  1310
  Chesapeake Terrace

  
	
   

  	
   

  	
  Sunnyvale,
  CA 94089

  



 


Termination
Date:    09/11/2008


 


ID:     410


 


Robert McNamara


56
Politzer Dr.


Menlo Park., CA United States 94025


 


Exercisable Options


 


	
  Number

  	
   

  	
  Grant

  Date

  	
   

  	
  Plan/

  Type

  	
   

  	
  Price (S)

  	
   

  	
  Shares

  Granted

  	
   

  	
  Shares

  Exercised

  	
   

  	
  Shares

  Exercisable

  	
   

  	
  Vesting

  Stop Date

  	
   

  	
  Total

  Price

  	
   

  	
  Last Date

  To Exercise

  	
   

  
	
  00000790

  	
   

  	
  11/07/05

  	
   

  	
  1998/ISO

  	
   

  	
  4.38000

  	
   

  	
  21,875.00

  	
   

  	
  0.00

  	
   

  	
  21,875.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  95,812.50

  	
   

  	
  12/11/08

  	
   

  
	
  00000791

  	
   

  	
  11/07/05

  	
   

  	
  1998/NQ

  	
   

  	
  4.38000

  	
   

  	
  128,125.00

  	
   

  	
  100,000.00

  	
   

  	
  28,125.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  123,187.50

  	
   

  	
  12/11/08

  	
   

  
	
  00000997

  	
   

  	
  08/23/06

  	
   

  	
  1998/ISO

  	
   

  	
  9.50000

  	
   

  	
  10,966.00

  	
   

  	
  0.00

  	
   

  	
  293.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  2,783.50

  	
   

  	
  12/11/08

  	
   

  
	
  00000997

  	
   

  	
  08/23/06

  	
   

  	
  1998/NQ

  	
   

  	
  9.50000

  	
   

  	
  89,034.00

  	
   

  	
  0.00

  	
   

  	
  74,706.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  709,707.00

  	
   

  	
  12/11/08

  	
   

  
	
  00000715

  	
   

  	
  01/25/05

  	
   

  	
  1998/ISO

  	
   

  	
  3.50000

  	
   

  	
  114,284.00

  	
   

  	
  0.00

  	
   

  	
  114,284.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  399,994.00

  	
   

  	
  12/11/08

  	
   

  
	
  00000716

  	
   

  	
  01/25/05

  	
   

  	
  1998/NQ

  	
   

  	
  3.50000

  	
   

  	
  385,716.00

  	
   

  	
  70,000.00

  	
   

  	
  315,716.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  1,105,006.00

  	
   

  	
  12/11/08

  	
   

  
	
  00001562

  	
   

  	
  08/31/07

  	
   

  	
  2007/NQ

  	
   

  	
  13.83000

  	
   

  	
  60,000.00

  	
   

  	
  0.00

  	
   

  	
  32,500.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  449,475.00

  	
   

  	
  12/11/08

  	
   

  
	
  00002180

  	
   

  	
  08/29/08

  	
   

  	
  2007/NQ

  	
   

  	
  8.25000

  	
   

  	
  60,000.00

  	
   

  	
  0.00

  	
   

  	
  17,500.00

  	
   

  	
  9/11/2008

  	
   

  	
  $

  	
  144,375.00

  	
   

  	
  12/11/08

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  TOTALS

  	
   

  	
   

  	
   

  	
  870,000.00

  	
   

  	
  170,000.00

  	
   

  	
  604,999.00

  	
   

  	
   

  	
   

  	
  $

  	
  3,030,340.50

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Releasable
  Restricted Stock Awards

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Number

  	
   

  	
  Grant

  Date

  	
   

  	
  Plan/

  Type

  	
   

  	
  Price (S)

  	
   

  	
  Shares

  Granted

  	
   

  	
  Shares

  Released

  	
   

  	
  Shares

  Releasable

  	
   

  	
  Shares

  Cancelled

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  00001564

  	
   

  	
  08/31/07

  	
   

  	
  2007/RSU

  	
   

  	
  0.00000

  	
   

  	
  10,000.00

  	
   

  	
  2,500.00

  	
   

  	
  2,500.00

  	
   

  	
  5,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  TOTALS

  	
   

  	
   

  	
   

  	
  10,000.00

  	
   

  	
  2,500.00

  	
   

  	
  2,500.00

  	
   

  	
  5,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
																						



 
















 


Exhibit B


 


EMPLOYEE
CONFIDENTIALITY AND INVENTIONS AGREEMENT


 


This
confidentiality and inventions agreement (the “Agreement”) is made as of Dec
13, 2004 by and between Accuray Incorporated, a California corporation having a
principal place of business at 1310 Chesapeake Terrace, Sunnyvale, California (“Company”)
and Robert McNamara (“Employee”).


 


RECITALS:


 


A.                                   Company and Employee are engaged in
discussions in contemplation of Company’s employment of Employee.


 


B.                                     In the course of dealings between the Company
and Employee, either prior to or during Employee’s employment by Company, each
party may have access to or have disclosed
to it information which is of a confidential nature as that term is later
defined in this Agreement.


 


C.                                     In addition, Employee may possess
confidential information which Employee does not have the right to share with
Company, or may be bound by agreements with or policies of third parties which
purport to limit what Employee may do with or for the Company.


 


D.                                    Company and Employee each desire to establish
and set forth their individual obligations with respect to the other’s
Confidential Information and obligations.


 


AGREEMENT:


 


In
consideration of the foregoing and of the following promises, agreements,
warranties and representations, Company and Employee agree as follows:


 


Confidentiality/Non-disclosure


 


1.                                  “Confidential Information” as used in this
Agreement shall mean any and all technical and non-technical information
including patent, copyright, trade secret, and proprietary information,
techniques, sketches, drawings, models, inventions, know-how, processes,
apparatus, equipment, algorithms, software programs, software source documents,
and formulae, and includes, without limitation, information concerning
research, experimental work, development, design details and
specifications, engineering, financial information, procurement requirements,
purchasing, manufacturing, customer information and lists, business
forecasts, sales and merchandising, and marketing plans and information.


 


2.                                  Each of the parties agrees that it will not
make any use of any Confidential Information of the other party which is
supplied to or obtained by it in writing, orally or by
observation, except to the extent necessary for negotiations, discussions, and consultations
with personnel or authorized representatives of the other party; and any
purpose the other party to whom such information is confidential may hereafter
authorize in writing.


 


3.                                  Each of the parties agrees that it shall
treat all Confidential Information of the other party with the same degree of care as it accords to its own Confidential Information,
and each of the parties represents that it exercises reasonable care to protect its own Confidential Information.


 


1

















 


4.                                       Each of the parties further agrees that it
shall not publish, copy or disclose any Confidential Information of the other
party to any third party and that it shall use best efforts to
prevent inadvertent disclosure of such Confidential Information to any third
party.


 


5.                                       Each
party’s obligations under Paragraphs 2, 3, and 4 with respect to any portion of
the other party’s Confidential Information shall terminate when the party
receiving that Confidential Information (the “receiving party”) can document
that:


 


(a)                             the Confidential Information was in the public domain at the time it was communicated to the receiving
party by the other party;


 


(b)                            it entered the public domain subsequent to the time it was communicated to the receiving party by the other party through no
fault of the receiving party;


 


(c)                             it was in the receiving party’s
possession free of any obligation of confidence at the time it was communicated
to the receiving party by the other party;


 


(d)                            it was rightfully communicated to the
receiving party free of any obligation of confidence subsequent to the time it
was communicated to the receiving party by the other party;


 


(e)                             it was developed by employees or agents of
the receiving party independently of and without reference to any information
communicated to the receiving party by the other party;


 


(f)                               it was communicated by the other party to an
unaffiliated third party free of any obligation of confidence; or


 


(g)                            the communication was in response to a valid
order by a court or other governmental body, was otherwise required by law, or
was necessary to establish the rights of either party under this Agreement.


 


6.                                       All materials (including, without limitation,
documents, drawings, models, apparatus, sketches,
designs and lists) furnished to one party by the other, and which are
designated in writing in an Attachment to this Agreement to be the property of
such party, shall remain the property of such party and shall be returned to it
promptly at its request, together with any copies thereof.


 


7.                                       Neither party shall communicate
any information to the other in violation
of the proprietary rights of any
third party.


 


8.                                       Neither party shall export, directly or
indirectly, any technical data acquired from the other pursuant to this
Agreement or any product utilizing any such data to any country for which the U.S.
Government or any agency thereof at the time of export requires an export license or other
government approval without first obtaining such license or approval.


 


9.                                       This Agreement shall govern all
communications between the parties that are made during the period from the
effective date of this Agreement to the date on which either party receives from
the other written notice that subsequent communications shall not be so governed, provided, however, that each party’s obligations under Paragraphs 2, 3, and 4 with respect to
Confidential Information of the other party which it has previously received
shall continue in perpetuity unless terminated pursuant to paragraph 5.


 


2

















 


10.                                 Employee warrants and represents to the
Company that Employee can carry out Employee’s obligations in this
Agreement, can be employed by the Company in the capacity described in the employment agreement between them or in the
Company’s letter offering employment to the Employee, and can carry out all of
the duties of such employment without breaching or violating any contractual or
other duty which Employee owes to any former employer or other third party.


 


11.                                 Employee further warrants and
represents to the Company that, in performing the Employee’s duties to the Company under this and any other
agreements between them,
Employee shall neither make use of nor disclose
to the Company any Confidential Information of any third party unless Employee has the legal right to so use
or disclose.


 


12.                                 Employee agrees to hold harmless, defend, and
indemnify the Company from and against any claim or suit against the Company by
a third party which is based upon Employee’s failure to act in full accord with
Employee’s warranties and representations contained in 10 and 11 above.


 


Inventions/Assignment


 


13.                                 Inventions shall mean all of the Employee’s
right (including rights in copyrights), title and interest in and to ideas, inventions, developments, improvements,
enhancements, creations, and other
manifestations of intellectual property, whether or not protected or
protectable by patent, copyright, trade name or trade secret laws, which are conceived or developed or reduced to
practice (a) by Employee or with Employee’s participation during the
course and within the scope of his employment by the Company, (b) at any
time utilizing any human or other resources of the Company, or (c) during
the period of employment and which relate to the business of the Company as
being conducted or contemplated by the Company.


 


14.                                 Employee acknowledges and agrees that part of
what Employee is being paid for is Employee’s work in connection with Inventions and,
accordingly, Employee agrees that all Inventions are the property of the
Company. Employee agrees to execute such patent and other applications, in the
United States and other countries for the purpose of protecting Inventions, and
such instruments of assignment of Inventions to the Company, as the Company
requests, either during or after the period of Employee’s employment by the
Company.


 


Miscellaneous


 


15.                                 Since unauthorized disclosure of Confidential
Information and failure to participate in an application or assignment will
diminish the value to the parties of the proprietary interests that are the
subject of this Agreement, if either party breaches any of its obligations
hereunder, the other shall be entitled to equitable relief to protect its
interests therein, including but not limited to injunctive relief, as well as
money damages.


 


16.                                 This Agreement shall be construed in
accordance with the laws of the State of California, the state in which the
Company is located and in which
Employee is to be employed,
without giving effect to principles of choice of law or conflict of laws.


 


17.                                 This Agreement is the complete and exclusive
statement of the agreement between the parties, and supersedes all prior written and oral
communications and agreements relating
to the subject matter hereof.


 


3

















 


18.                                 Any notice required to be given under this
Agreement shall be deemed received upon personal delivery or acknowledgment of
receipt of facsimile, the day following delivery to a reputable overnight courier,
or three (3) days after mailing if sent by registered or certified
mail, return receipt requested, to the addresses of the parties set forth
below, or to such other address as either of the parties shall have furnished
to the other in writing.


 


19.                                  In the event of invalidity of any provision
of this Agreement, the parties agree that such invalidity shall not affect the
validity of the remaining portions of this Agreement, and further agree to
substitute for the invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid provision.


 


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


 


 


	
  Accuray
  Incorporated

  	
   

  	
  “Employee”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Robert E. McNamara

  	
   

  	
  /s/ Loretta
  Hillberry

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert E. McNamara

  	
   

  	
   

  
	
  Printed Name

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
  1310
  Chesapeake Terrace

  	
   

  	
  Address

  
	
  Sunnyvale,
  CA 94089

  	
   

  	
  Accuray, Inc.

  
	
   

  	
   

  	
  1310 Chesapeake Terrace

  
	
  56 Politzer Drive

  	
   

  	
  Sunnyvale, CA 94089

  
	
  Menlo Park, CA 94025

  	
   

  	
   

  
					



 


4

















 


III.  ACKNOWLEDGEMENT OF ACCURAY’S CODE OF CONDUCT AND ETHICS


 


I
have received and read Accuray’s Code of Conduct and Ethics. I understand the
standards and policies contained in Accuray’s Code of Conduct and Ethics,
Accuray’s Code of Ethics on Interactions with Health Care Professionals and
understand that there may be additional policies or laws specific to my job. I
further agree to comply with Accuray’s Code of Conduct and Ethics, Accuray’s
Code of Ethics on Interactions with Health Care Professionals.


 


If
I have questions concerning the meaning or application of Accuray’s Code of
Conduct and Ethics, Accuray’s Code of Ethics on Interactions with Health Care
Professionals, any company policies or the legal and regulatory requirements
applicable to my job, I know I can consult my supervisor, the Human Resources
Department, the in-house General Counsel, the CFO or the Compliance Officer,
knowing that my questions or reports to these sources will be maintained in
confidence.


 


 


	
   

  	
  /s/
  Robert McNamara

  
	
   

  	
  Employee
  Name

  
	
   

  	
   

  
	
   

  	
  /s/
  Robert McNamara

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
  12/13/04

  
	
   

  	
  Date

  



 


Please
sign and return this form to the Human Resources Department at Accuray Headquarters:


 


	
   

  	
   

  	
  Att’n:
  Human Resources Manager

  
	
   

  	
   

  	
  1310
  Chesapeake Terrace

  
	
   

  	
   

  	
  Sunnyvale,
  CA 94089