UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended December 31, 2017
or
o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 001-33301
ACCURAY INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
|
Delaware |
|
20-8370041 |
|
(State or Other Jurisdiction of Incorporation or Organization) |
|
(IRS Employer Identification Number) |
1310 Chesapeake Terrace
Sunnyvale, California 94089
(Address of Principal Executive Offices Including Zip Code)
(408) 716-4600
(Registrant’s Telephone Number, Including Area Code)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes o No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large accelerated filer o |
|
Accelerated filer x |
|
|
|
|
|
Non-accelerated filer o |
|
Smaller reporting company o |
|
(Do not check if a smaller reporting company) |
|
|
|
|
|
Emerging growth company o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). o Yes x No
As of January 25, 2018, there were 85,293,273 shares of the Registrant’s Common Stock, par value $0.001 per share, outstanding.
We own or have rights to various trademarks and trade names used in our business in the United States or other countries, including the following: Accuray®, Accuray Logo®, CyberKnife®, Hi-Art®, RoboCouch®, Synchrony®, TomoTherapy®, Xsight®, Accuray Precision™, AutoSegmentation™, CTrue™, H™ Series, iDMS™, InCise™, Iris™, M6™ Series, OIS Connect™, PlanTouch™, PreciseART™, PreciseRTX™, QuickPlan™, TomoDirect™, TomoEdge™, TomoH™, TomoHD™, TomoHDA™, TomoHelical™, Tomo Quality Assurance™, Radixact™, StatRT™, and VoLO™.
Item 1. Unaudited Condensed Consolidated Financial Statements
Accuray Incorporated
Unaudited Condensed Consolidated Balance Sheets
(in thousands, except share amounts and par value)
|
|
|
December 31, |
|
June 30, |
| ||
|
|
|
2017 |
|
2017 |
| ||
|
ASSETS |
|
|
|
|
| ||
|
Current assets: |
|
|
|
|
| ||
|
Cash and cash equivalents |
|
$ |
79,509 |
|
$ |
72,084 |
|
|
Short-term investments |
|
24,516 |
|
23,909 |
| ||
|
Restricted cash |
|
2,039 |
|
12,829 |
| ||
|
Accounts receivable, net of allowance for doubtful accounts of $442 and $420 as of December 31, 2017 and June 30, 2017, respectively |
|
80,907 |
|
72,789 |
| ||
|
Inventories |
|
113,809 |
|
105,054 |
| ||
|
Prepaid expenses and other current assets |
|
15,577 |
|
18,988 |
| ||
|
Deferred cost of revenue |
|
2,316 |
|
3,350 |
| ||
|
Total current assets |
|
318,673 |
|
309,003 |
| ||
|
Property and equipment, net |
|
22,601 |
|
23,062 |
| ||
|
Goodwill |
|
57,910 |
|
57,812 |
| ||
|
Intangible assets, net |
|
893 |
|
964 |
| ||
|
Restricted cash |
|
629 |
|
322 |
| ||
|
Other assets |
|
13,231 |
|
15,301 |
| ||
|
Total assets |
|
$ |
413,937 |
|
$ |
406,464 |
|
|
LIABILITIES AND STOCKHOLDERS’ EQUITY |
|
|
|
|
| ||
|
Current liabilities: |
|
|
|
|
| ||
|
Accounts payable |
|
$ |
25,922 |
|
$ |
17,486 |
|
|
Accrued compensation |
|
22,231 |
|
25,402 |
| ||
|
Other accrued liabilities |
|
19,514 |
|
23,870 |
| ||
|
Short-term debt |
|
39,451 |
|
113,023 |
| ||
|
Customer advances |
|
19,797 |
|
16,926 |
| ||
|
Deferred revenue |
|
79,955 |
|
87,785 |
| ||
|
Total current liabilities |
|
206,870 |
|
284,492 |
| ||
|
Long-term liabilities: |
|
|
|
|
| ||
|
Long-term other liabilities |
|
10,794 |
|
10,068 |
| ||
|
Deferred revenue |
|
16,737 |
|
13,823 |
| ||
|
Long-term debt |
|
130,425 |
|
51,548 |
| ||
|
Total liabilities |
|
364,826 |
|
359,931 |
| ||
|
Commitments and contingencies (Note 8) |
|
|
|
|
| ||
|
Stockholders’ equity: |
|
|
|
|
| ||
|
Common stock, $0.001 par value; authorized: 200,000,000 shares as of December 31, 2017 and June 30, 2017, respectively; issued and outstanding: 85,287,635 and 83,739,804 shares at December 31, 2017 and June 30, 2017, respectively |
|
85 |
|
84 |
| ||
|
Additional paid-in-capital |
|
512,883 |
|
496,887 |
| ||
|
Accumulated other comprehensive income (loss) |
|
630 |
|
(52 |
) | ||
|
Accumulated deficit |
|
(464,487 |
) |
(450,386 |
) | ||
|
Total stockholders’ equity |
|
49,111 |
|
46,533 |
| ||
|
Total liabilities and stockholders’ equity |
|
$ |
413,937 |
|
$ |
406,464 |
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
Accuray Incorporated
Unaudited Condensed Consolidated Statements of Operations and Comprehensive Loss
(in thousands, except per share amounts)
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
|
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Net revenue: |
|
|
|
|
|
|
|
|
| ||||
|
Products |
|
$ |
47,106 |
|
$ |
35,398 |
|
$ |
86,022 |
|
$ |
70,997 |
|
|
Services |
|
53,223 |
|
52,104 |
|
105,257 |
|
103,011 |
| ||||
|
Total net revenue |
|
100,329 |
|
87,502 |
|
191,279 |
|
174,008 |
| ||||
|
Cost of revenue: |
|
|
|
|
|
|
|
|
| ||||
|
Cost of products |
|
26,857 |
|
22,969 |
|
48,959 |
|
46,321 |
| ||||
|
Cost of services |
|
34,117 |
|
33,146 |
|
64,859 |
|
64,956 |
| ||||
|
Total cost of revenue |
|
60,974 |
|
56,115 |
|
113,818 |
|
111,277 |
| ||||
|
Gross profit |
|
39,355 |
|
31,387 |
|
77,461 |
|
62,731 |
| ||||
|
Operating expenses: |
|
|
|
|
|
|
|
|
| ||||
|
Research and development |
|
14,664 |
|
11,944 |
|
28,757 |
|
24,173 |
| ||||
|
Selling and marketing |
|
13,872 |
|
13,904 |
|
28,629 |
|
28,222 |
| ||||
|
General and administrative |
|
11,836 |
|
10,362 |
|
23,144 |
|
21,706 |
| ||||
|
Total operating expenses |
|
40,372 |
|
36,210 |
|
80,530 |
|
74,101 |
| ||||
|
Loss from operations |
|
(1,017 |
) |
(4,823 |
) |
(3,069 |
) |
(11,370 |
) | ||||
|
Other expense, net |
|
(3,738 |
) |
(4,120 |
) |
(10,309 |
) |
(8,125 |
) | ||||
|
Loss before provision for income taxes |
|
(4,755 |
) |
(8,943 |
) |
(13,378 |
) |
(19,495 |
) | ||||
|
Provision for (benefit from) income taxes |
|
(36 |
) |
426 |
|
723 |
|
(200 |
) | ||||
|
Net loss |
|
$ |
(4,719 |
) |
$ |
(9,369 |
) |
$ |
(14,101 |
) |
$ |
(19,295 |
) |
|
|
|
|
|
|
|
|
|
|
| ||||
|
Net loss per share - basic and diluted |
|
$ |
(0.06 |
) |
$ |
(0.11 |
) |
$ |
(0.17 |
) |
$ |
(0.24 |
) |
|
Weighted average common shares used in computing net loss per share: |
|
|
|
|
|
|
|
|
| ||||
|
Basic and diluted |
|
84,586 |
|
82,328 |
|
84,167 |
|
81,952 |
| ||||
|
|
|
|
|
|
|
|
|
|
| ||||
|
Net loss |
|
$ |
(4,719 |
) |
$ |
(9,369 |
) |
$ |
(14,101 |
) |
$ |
(19,295 |
) |
|
Foreign currency translation adjustment |
|
212 |
|
(1,325 |
) |
558 |
|
(1,206 |
) | ||||
|
Unrealized gain (loss) on investments, net of tax |
|
102 |
|
(68 |
) |
124 |
|
(70 |
) | ||||
|
Comprehensive loss |
|
$ |
(4,405 |
) |
$ |
(10,762 |
) |
$ |
(13,419 |
) |
$ |
(20,571 |
) |
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
Accuray Incorporated
Unaudited Condensed Consolidated Statements of Cash Flows
(in thousands)
|
|
|
Six Months Ended |
| ||||
|
|
|
December 31, |
| ||||
|
|
|
2017 |
|
2016 |
| ||
|
Cash flows from operating activities |
|
|
|
|
| ||
|
Net loss |
|
$ |
(14,101 |
) |
$ |
(19,295 |
) |
|
Adjustments to reconcile net loss to net cash used in operating activities: |
|
|
|
|
| ||
|
Depreciation and amortization |
|
5,007 |
|
9,280 |
| ||
|
Share-based compensation |
|
5,870 |
|
6,387 |
| ||
|
Amortization of debt issuance costs |
|
868 |
|
782 |
| ||
|
Amortization and accretion of discount and premium on investments |
|
(10 |
) |
63 |
| ||
|
Accretion of interest on debt |
|
1,727 |
|
1,456 |
| ||
|
Provision for (recovery of) bad debt, net |
|
22 |
|
(63 |
) | ||
|
Provision for write-down of inventories |
|
1,189 |
|
665 |
| ||
|
Loss on disposal of property and equipment |
|
11 |
|
— |
| ||
|
Loss on extinguishment of debt |
|
3,192 |
|
— |
| ||
|
Changes in assets and liabilities: |
|
|
|
|
| ||
|
Accounts receivable |
|
(10,156 |
) |
(14,248 |
) | ||
|
Inventories |
|
(11,832 |
) |
(2,559 |
) | ||
|
Prepaid expenses and other assets |
|
5,855 |
|
(231 |
) | ||
|
Deferred cost of revenue |
|
1,206 |
|
1,471 |
| ||
|
Accounts payable |
|
8,085 |
|
10,070 |
| ||
|
Accrued liabilities |
|
(8,059 |
) |
(2,602 |
) | ||
|
Customer advances |
|
2,787 |
|
3,119 |
| ||
|
Deferred revenues |
|
(5,401 |
) |
(5,317 |
) | ||
|
Net cash used in operating activities |
|
(13,740 |
) |
(11,022 |
) | ||
|
Cash flows from investing activities |
|
|
|
|
| ||
|
Purchases of property and equipment, net |
|
(1,977 |
) |
(3,136 |
) | ||
|
Purchases of investments |
|
(5,940 |
) |
(14,992 |
) | ||
|
Sales and maturities of investments |
|
6,000 |
|
23,190 |
| ||
|
Net cash (used in) provided by investing activities |
|
(1,917 |
) |
5,062 |
| ||
|
Cash flows from financing activities |
|
|
|
|
| ||
|
Proceeds from employee stock plans |
|
2,036 |
|
2,050 |
| ||
|
Taxes paid related to net share settlement of equity awards |
|
(293 |
) |
(737 |
) | ||
|
Proceeds from issuance of Term Loan, net |
|
38,829 |
|
— |
| ||
|
Proceeds from issuance of Convertible Notes, net |
|
27,282 |
|
— |
| ||
|
Repurchase of Convertible Notes |
|
(29,581 |
) |
(42,483 |
) | ||
|
Borrowings under revolving credit facility |
|
68,171 |
|
— |
| ||
|
Repayments under revolving credit facility |
|
(94,736 |
) |
— |
| ||
|
Net cash provided by (used in) financing activities |
|
11,708 |
|
(41,170 |
) | ||
|
Effect of exchange rate changes on cash, cash equivalents and restricted cash |
|
891 |
|
(3,646 |
) | ||
|
Net decrease in cash, cash equivalents and restricted cash |
|
(3,058 |
) |
(50,776 |
) | ||
|
Cash, cash equivalents and restricted cash at beginning of period |
|
85,235 |
|
122,133 |
| ||
|
Cash, cash equivalents and restricted cash at end of period |
|
$ |
82,177 |
|
$ |
71,357 |
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
Accuray Incorporated
Notes to Unaudited Condensed Consolidated Financial Statements
Description of Business
Accuray Incorporated (together with its subsidiaries, the “Company” or “Accuray”) designs, develops and sells advanced radiosurgery and radiation therapy systems for the treatment of tumors throughout the body. The Company is incorporated in Delaware and has its principal place of business in Sunnyvale, California. The Company has primary offices in the United States, Switzerland, China, Hong Kong and Japan and conducts its business worldwide.
Note 1. Basis of Presentation and Principles of Consolidation
The unaudited condensed consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant inter-company transactions and balances have been eliminated in consolidation.
The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with United States generally accepted accounting principles (“GAAP”), pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”). Certain information and note disclosures have been condensed or omitted pursuant to such rules and regulations. The unaudited condensed consolidated financial statements have been prepared on the same basis as the annual financial statements and, in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair presentation of the periods presented. Certain amounts in the prior year’s condensed consolidated balance sheet have been reclassified to conform to the current period’s presentation. The results for the three and six months ended December 31, 2017 are not necessarily indicative of the results to be expected for the fiscal year ending June 30, 2018, or for any other future interim period or fiscal year.
These unaudited condensed consolidated financial statements should be read in conjunction with the Company’s audited consolidated financial statements and accompanying notes for the fiscal year ended June 30, 2017 included in the Company’s Annual Report on Form 10-K filed with the SEC on August 25, 2017. The Company’s significant accounting policies are described in Note 2 to those audited consolidated financial statements and there have been no subsequent material changes to such policies.
Note 2. Recent Accounting Pronouncements
Accounting Pronouncement Recently Adopted
In March 2016, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2016-09, Improvements to Employee Share-Based Payment Accounting (Topic 718). The new guidance simplifies several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, and classification on the statement of cash flows. In addition, the guidance provides an option to recognize forfeitures as they occur versus estimating them at the time of grant. The amendments in this standard are effective for annual periods beginning after December 15, 2016, and interim periods within those annual periods. The Company adopted ASU No. 2016-09 as required in the first quarter of fiscal year 2018 and has elected to continue the use of its forfeiture estimation method for share-based payment awards. The adoption of ASU 2016-09 did not have a material impact on the Company’s consolidated financial statements and related disclosures.
Accounting Pronouncements Not Yet Effective
In May 2017, the FASB issued ASU No. 2017-09, Compensation—Stock Compensation (Topic 718)—Scope of Modification Accounting. This guidance redefines which changes to the terms and conditions of a share-based payment award require an entity to apply modification accounting for a share-based payment. This guidance will be effective for the Company in the first quarter of its fiscal year 2019. The Company does not believe the adoption of this standard will have a material impact on its consolidated financial statements and related disclosures.
In March 2017, the FASB issued ASU No. 2017-07, Compensation—Retirement Benefits (Topic 715)—Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost. This guidance revises the presentation of employer-sponsored defined benefit pension and other postretirement plans for the net periodic benefit cost in the statement of operations and requires that the service cost component of net periodic benefit be presented in the same income statement line items as other employee compensation costs for services rendered during the period. The other components of the net benefit costs are required to be presented in the statement of operations separately from the service cost component and outside the subtotal of income from
operations. This guidance allows only the service cost component of net periodic benefit costs to be eligible for capitalization. The guidance will be effective for the Company in the first quarter of its fiscal year 2019. The Company is currently evaluating the impact of the adoption of this standard on its consolidated financial statements and related disclosures.
In January 2017, the FASB issued ASU No. 2017-04, Intangibles-Goodwill and Other Topics (Topic 350)-Simplifying the Test for Goodwill Impairment. This guidance simplifies the measurement of goodwill by eliminating the Step 2 impairment test. The new guidance requires companies to perform the goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount. This ASU will be effective for the Company beginning in its first quarter of fiscal year 2021. The amendment is required to be adopted prospectively. Early adoption is permitted for goodwill impairment tests performed on testing dates after January 1, 2017. The Company does not believe the adoption of this standard will have a material impact on its consolidated financial statements and related disclosures.
In August 2016, the FASB issued ASU No. 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments, which clarifies the presentation and classification of certain cash receipts and cash payments in the statement of cash flows. This ASU will be effective for the Company in the first quarter of its fiscal year 2019. The Company does not believe the adoption of this standard will have a material impact on its consolidated financial statements and related disclosures.
In June 2016, the FASB issued ASU No. 2016-13 Measurement of Credit Losses on Financial Instruments (ASU 2016-13). ASU 2016-13 requires measurement and recognition of expected credit losses for financial assets held. This ASU will be effective for the Company in the first quarter of its fiscal year 2021 and must be adopted using a modified retrospective approach, with certain exceptions. Early adoption is permitted beginning in the first quarter of the Company’s fiscal year 2020. The Company is currently evaluating the impact of the adoption of this standard on its consolidated financial statements and related disclosures.
In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842). Under the new guidance, a lessee will be required to recognize assets and liabilities for all leases with lease terms of more than 12 months. Consistent with current GAAP, the recognition, measurement, and presentation of expenses and cash flows arising from a lease by a lessee primarily will depend on its classification as a finance or operating lease. This ASU will be effective for the Company in the first quarter of its fiscal year 2020 and early adoption is permitted. The ASU requires adoption based upon a modified retrospective transition approach. However, the FASB has recently proposed guidance that would permit companies not to restate periods priors to adoption. The Company has not yet selected a transition method, has not yet determined whether it will elect early adoption and is currently evaluating the impact of the adoption of this standard on its consolidated financial statements and related disclosures.
In January 2016, the FASB issued ASU No. 2016-01, Recognition and Measurement of Financial Assets and Financial Liabilities (ASU 2016-01). This ASU changes accounting for equity investments, financial liabilities under the fair value option and the presentation and disclosure requirements for financial instruments. In addition, it clarified guidance related to the valuation allowance assessment when recognizing deferred tax assets resulting from unrealized losses on available-for-sale debt securities. The guidance will become effective for the Company beginning in the first quarter of fiscal year 2019 and must be adopted using a modified retrospective approach, with certain exceptions. Early adoption is permitted for certain provisions. The Company is currently evaluating the impact of the adoption of this standard on its consolidated financial statements and related disclosures.
In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers: Topic 606 (ASU 2014-09), to supersede nearly all existing revenue recognition guidance under GAAP. The core principle of ASU 2014-09 is to recognize revenue when promised goods or services are transferred to customers in an amount that reflects the consideration that is expected to be received for those goods or services. ASU 2014-09 defines a five-step process to achieve this core principle and, in doing so, it is possible more judgment and estimates may be required within the revenue recognition process than required under existing GAAP including identifying performance obligations in the contract, estimating the amount of variable consideration to include in the transaction price and allocating the transaction price to each separate performance obligation. ASU 2014-09 is required to be adopted, using either of two methods: (i) retrospective to each prior reporting period presented with the option to elect certain practical expedients as defined within ASU 2014-09; or (ii) retrospective with the cumulative effect of initially applying ASU 2014-09 recognized at the date of initial application and providing certain additional disclosures. The standard will be effective for the Company in the first quarter of its fiscal year 2019. The Company intends to adopt the new standard in the first quarter of fiscal year 2019 using the modified retrospective method. Based upon a preliminary assessment, the Company expects certain portions of its product revenue could be accelerated to reflect transfer of control upon delivery and an element of installation will be deferred until performed. The revenue recognition method for indirect sales and service revenues is expected to be unchanged under the new guidance. The Company also expects to capitalize incremental contract acquisition costs, such as sales commissions, and amortize over the economic life of its product or contractual relationship with the customer. The Company’s current practice is to defer sales commissions until revenue is recognized. The Company currently does not expect the application of this guidance to have a significant impact on its consolidated financial statements; however, the Company’s assessment may change as it continues its evaluation and analysis of this ASU.
Note 3. Supplemental Financial Information
Balance Sheet Components
Financing receivables
A financing receivable is a contractual right to receive money, on demand or on fixed or determinable dates, that is recognized as an asset in the Company’s balance sheet. The Company’s financing receivables, consisting of its accounts receivable with contractual maturities of more than one year and sales-type leases, totaled $8.0 million and $7.4 million at December 31, 2017 and June 30, 2017, respectively, and are included in other assets in the unaudited condensed consolidated balance sheets. The Company evaluates the credit quality of an obligor at lease inception and monitors credit quality over the term of the underlying transactions. The Company performs a credit analysis for all new customers and reviews payment history, current order backlog, financial performance of the customers and other variables that augment or mitigate the inherent credit risk of a transaction. Such variables include the underlying value and liquidity of the collateral, the essential use of the equipment, the term of the lease and the inclusion of credit enhancements, such as guarantees, letters of credit or security deposits. Accounts rated as low risk typically have the equivalent of a Moody’s rating of Baa3 or higher, while accounts rated as moderate risk generally have the equivalent of Ba1 or lower. The Company classifies accounts as high risk when it considers the financing receivable to be impaired or when management believes there is a significant near-term risk of non-payment. As of December 31, 2017, the sales-type lease portion of the financing receivables was rated at a moderate risk. The Company performed an assessment of the allowance for credit losses related to its financing receivables as of December 31, 2017 and June 30, 2017. Based upon such assessment, the Company did not record any adjustment and recorded $0.04 million to the allowance for credit losses related to such financing receivables as of December 31, 2017 and as of June 30, 2017, respectively.
A summary of the Company’s financing receivables is presented as follows (in thousands):
|
December 31, 2017 |
|
Lease |
|
Financed |
|
Total |
| |||
|
Gross |
|
$ |
3,565 |
|
$ |
7,040 |
|
$ |
10,605 |
|
|
Unearned income |
|
(342 |
) |
— |
|
(342 |
) | |||
|
Allowance for credit loss |
|
(39 |
) |
— |
|
(39 |
) | |||
|
Total, net |
|
$ |
3,184 |
|
$ |
7,040 |
|
$ |
10,224 |
|
|
Reported as: |
|
|
|
|
|
|
| |||
|
Current |
|
$ |
741 |
|
$ |
1,492 |
|
$ |
2,233 |
|
|
Non-current |
|
2,443 |
|
5,548 |
|
7,991 |
| |||
|
Total, net |
|
$ |
3,184 |
|
$ |
7,040 |
|
$ |
10,224 |
|
|
June 30, 2017 |
|
Lease |
|
Financed |
|
Total |
| |||
|
Gross |
|
$ |
4,030 |
|
$ |
6,268 |
|
$ |
10,298 |
|
|
Unearned income |
|
(433 |
) |
— |
|
(433 |
) | |||
|
Allowance for credit loss |
|
(39 |
) |
— |
|
(39 |
) | |||
|
Total, net |
|
$ |
3,558 |
|
$ |
6,268 |
|
$ |
9,826 |
|
|
Reported as: |
|
|
|
|
|
|
| |||
|
Current |
|
$ |
720 |
|
$ |
1,677 |
|
$ |
2,397 |
|
|
Non-current |
|
2,838 |
|
4,591 |
|
7,429 |
| |||
|
Total, net |
|
$ |
3,558 |
|
$ |
6,268 |
|
$ |
9,826 |
|
Actual cash collections may differ from the contracted maturities due to early customer buyouts, refinancing, or defaults. Future minimum lease payments to be received as of December 31, 2017 are presented as follows (in thousands):
|
Year Ending June 30, |
|
Amount |
| |
|
2018 (remaining 6 months) |
|
$ |
465 |
|
|
2019 |
|
930 |
| |
|
2020 |
|
930 |
| |
|
2021 |
|
930 |
| |
|
2022 |
|
310 |
| |
|
Total |
|
$ |
3,565 |
|
Inventories
Inventories consisted of the following (in thousands):
|
|
|
December 31, |
|
June 30, |
| ||
|
Raw materials |
|
$ |
42,392 |
|
$ |
38,803 |
|
|
Work-in-process |
|
18,292 |
|
15,471 |
| ||
|
Finished goods |
|
53,125 |
|
50,780 |
| ||
|
Inventories |
|
$ |
113,809 |
|
$ |
105,054 |
|
Property and equipment, net
Property and equipment, net consisted of the following (in thousands):
|
|
|
December 31, |
|
June 30, |
| ||
|
Furniture and fixtures |
|
$ |
4,389 |
|
$ |
4,364 |
|
|
Computer and office equipment |
|
11,717 |
|
11,802 |
| ||
|
Software |
|
11,420 |
|
11,457 |
| ||
|
Leasehold improvements |
|
23,239 |
|
23,164 |
| ||
|
Machinery and equipment |
|
45,988 |
|
48,742 |
| ||
|
Construction in progress |
|
4,687 |
|
3,533 |
| ||
|
|
|
101,440 |
|
103,062 |
| ||
|
Less: Accumulated depreciation |
|
(78,839 |
) |
(80,000 |
) | ||
|
Property and equipment, net |
|
$ |
22,601 |
|
$ |
23,062 |
|
Depreciation expense related to property and equipment for the three and six months ended December 31, 2017 was $2.5 million and $4.9 million, respectively. Depreciation expense related to property and equipment for the three and six months ended December 31, 2016 was $2.6 million and $5.3 million, respectively.
Accumulated Other Comprehensive Income (Loss)
The changes in accumulated other comprehensive income (loss) are excluded from earnings and reported as a component of stockholders’ equity. The foreign currency translation adjustment results from those subsidiaries not using the U.S. Dollar as their functional currency since the majority of their economic activities are primarily denominated in their applicable local currency. Accordingly, all assets and liabilities related to these operations are translated to the U.S. Dollar at the current exchange rates at the end of each period. Revenues and expenses are translated at average exchange rates in effect during the period.
The components of accumulated other comprehensive income (loss) in the equity section of the balance sheets are as follows (in thousands):
|
|
|
December 31, |
|
June 30, |
| ||
|
Net unrealized gain (loss) on short-term investments |
|
$ |
35 |
|
$ |
(89 |
) |
|
Cumulative foreign currency translation adjustment |
|
1,712 |
|
1,154 |
| ||
|
Defined benefit pension obligation |
|
(1,117 |
) |
(1,117 |
) | ||
|
Accumulated other comprehensive income (loss) |
|
$ |
630 |
|
$ |
(52 |
) |
Note 4. Goodwill and Intangible Assets
Goodwill
Activity related to goodwill consisted of the following (in thousands):
|
|
|
December 31, |
|
June 30, |
| ||
|
Balance at the beginning of the period |
|
$ |
57,812 |
|
$ |
57,848 |
|
|
Currency translation |
|
98 |
|
(36 |
) | ||
|
Balance at the end of the period |
|
$ |
57,910 |
|
$ |
57,812 |
|
In the second quarter of fiscal 2018, the Company performed its annual goodwill impairment test. Based on this analysis, the Company determined that there was no impairment to goodwill. The Company will continue to monitor its recorded goodwill for indicators of impairment.
Intangible Assets
The Company’s carrying amount of acquired intangible assets, net, is as follows (in thousands):
|
|
|
|
|
December 31, 2017 |
|
June 30, 2017 |
| ||||||||||||||
|
|
|
|
|
Gross |
|
|
|
|
|
Gross |
|
|
|
|
| ||||||
|
|
|
Useful Lives |
|
Carrying |
|
Accumulated |
|
Net |
|
Carrying |
|
Accumulated |
|
Net |
| ||||||
|
|
|
(in years) |
|
Amount |
|
Amortization |
|
Amount |
|
Amount |
|
Amortization |
|
Amount |
| ||||||
|
Patent license |
|
7 |
|
$ |
1,000 |
|
$ |
(107 |
) |
$ |
893 |
|
$ |
1,000 |
|
$ |
(36 |
) |
$ |
964 |
|
The Company did not identify any triggering events that would indicate potential impairment of its definite-lived intangible and long-lived assets as of December 31, 2017 and June 30, 2017.
Amortization expense related to intangible assets for the three and six months ended December 31, 2017 was $0.04 million and $0.07 million, respectively. Amortization expense related to intangible assets for the three and six months ended December 31, 2016 was $2.0 million and $4.0 million, respectively.
The estimated future amortization expense of acquired intangible assets as of December 31, 2017 is as follows (in thousands):
|
Year Ending June 30, |
|
Amount |
| |
|
2018 (remaining 6 months) |
|
$ |
72 |
|
|
2019 |
|
143 |
| |
|
2020 |
|
143 |
| |
|
2021 |
|
143 |
| |
|
2022 |
|
143 |
| |
|
Thereafter |
|
249 |
| |
|
|
|
$ |
893 |
|
Note 5. Investments
The Company considers all highly liquid investments held at major banks, certificates of deposit and other securities with original maturities of three months or less to be cash equivalents.
The Company classifies all of its investments as available-for-sale at the time of purchase because management intends that these investments are available for current operations and includes these investments on its balance sheet as short-term investments. Investments with original maturities longer than three months include commercial paper, U.S. agency securities, non-U.S. government securities and investment-grade corporate debt securities. Investments classified as available-for-sale are recorded at fair market value with the related unrealized gains and losses included in accumulated other comprehensive income (loss), a component of stockholders’ equity. Realized gains and losses are recorded based on specific identification of each security’s cost basis.
The Company held a total of eight investments that were in an unrealized loss position as of December 31, 2017 and June 30, 2017, respectively. The Company reviews its investments quarterly to identify and evaluate investments that have an indication of possible impairment. Gross realized gains and losses were insignificant for the six months ended December 31, 2017 and the year ended June 30, 2017. In January 2018, the Company sold eight investments for proceeds of $23.9 million, realizing an insignificant loss on the sale of investments.
Contractual maturities of available-for-sale securities at December 31, 2017 were as follows (in thousands):
|
|
|
December 31, 2017 |
| ||||
|
|
|
Amortized |
|
Estimated |
| ||
|
|
|
Cost |
|
Fair Value |
| ||
|
Due in 1 year or less |
|
$ |
24,482 |
|
$ |
24,516 |
|
The following table summarizes the available-for-sale debt securities that were in a continuous unrealized loss position, but were not deemed to be other-than-temporarily impaired (in thousands):
|
|
|
Less Than 12 Months |
|
12 Months or Greater |
|
Total |
| ||||||||||||
|
|
|
Gross |
|
|
|
Gross |
|
|
|
Gross |
|
|
| ||||||
|
|
|
Unrealized |
|
Estimated |
|
Unrealized |
|
Estimated |
|
Unrealized |
|
Estimated |
| ||||||
|
December 31, 2017 |
|
Losses |
|
Fair Value |
|
Losses |
|
Fair Value |
|
Losses |
|
Fair Value |
| ||||||
|
U. S. government agency securities |
|
$ |
(81 |
) |
$ |
23,868 |
|
$ |
— |
|
$ |
— |
|
$ |
(81 |
) |
$ |
23,868 |
|
|
June 30, 2017 |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
U. S. government agency securities |
|
$ |
(31 |
) |
$ |
11,970 |
|
$ |
(58 |
) |
$ |
11,939 |
|
$ |
(89 |
) |
$ |
23,909 |
|
|
Total |
|
$ |
(31 |
) |
$ |
11,970 |
|
$ |
(58 |
) |
$ |
11,939 |
|
$ |
(89 |
) |
$ |
23,909 |
|
Note 6. Derivative Financial Instruments
The Company manages some of its foreign currency risk through the purchase of foreign currency forward contracts that hedge against the short-term effect of currency fluctuations. These foreign currency forward contracts have a monthly maturity that mitigates the effect of rate fluctuations on certain local currency denominated intercompany balances, cash, and customer receivables.
The Company does not use derivative financial instruments for speculative or trading purposes. These forward contracts are not designated as hedging instruments for accounting purposes. Principal hedged currencies include the Euro, Japanese Yen, Swiss Franc, and U.S. Dollar. There were no outstanding foreign currency forward contracts at the end of December 31, 2017 and June 30, 2017.
The following table provides information about gains (losses) associated with the Company’s derivative financial instruments (in thousands):
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
|
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Foreign currency exchange loss on foreign contracts |
|
$ |
(2,679 |
) |
$ |
(604 |
) |
$ |
(2,438 |
) |
$ |
(1,167 |
) |
|
Foreign currency transactions gain (loss) |
|
2,521 |
|
(48 |
) |
2,525 |
|
84 |
| ||||
Note 7. Fair Value Measurements
Fair value is an exit price representing the amount that would be received to sell an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. The fair value hierarchy contains three levels of inputs that may be used to measure fair value, as follows:
Level 1— Unadjusted quoted prices that are available in active markets for the identical assets or liabilities at the measurement date.
Level 2— Other observable inputs available at the measurement date, other than quoted prices included in Level 1, either directly or indirectly, including:
· Quoted prices for similar assets or liabilities in active markets;
· Quoted prices for identical or similar assets in non-active markets;
· Inputs other than quoted prices that are observable for the asset or liability; and
· Inputs that are derived principally from or corroborated by other observable market data.
Level 3— Unobservable inputs that cannot be corroborated by observable market data and require the use of significant management judgment. These values are generally determined using pricing models for which the assumptions utilize management’s estimates of market participant assumptions.
The Company’s Level 1 assets include institutional money-market funds that are classified as cash equivalents, which are valued primarily using quoted market prices in active markets for identical assets. The Company’s Level 2 assets include its U.S. government agency securities and its corporate securities as the market inputs used to value these instruments consist of market yields, reported trades and broker/dealer quotes, which are corroborated with observable market data.
The tables below set forth, by level, the Company’s financial assets that were accounted for at fair value (in thousands):
|
|
|
December 31, 2017 |
| |||||||||||||
|
|
|
|
|
|
|
|
|
Estimated Fair Value |
| |||||||
|
|
|
|
|
Gross |
|
Gross |
|
Cash and |
|
|
| |||||
|
|
|
Amortized |
|
Unrealized |
|
Unrealized |
|
Cash |
|
Short-term |
| |||||
|
|
|
Cost |
|
Gains |
|
Losses |
|
Equivalents |
|
Investments |
| |||||
|
Cash |
|
$ |
77,767 |
|
$ |
— |
|
$ |
— |
|
$ |
77,767 |
|
$ |
— |
|
|
Level 1 |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Money market funds |
|
1,742 |
|
— |
|
— |
|
1,742 |
|
— |
| |||||
|
Level 2 |
|
|
|
|
|
|
|
|
|
|
| |||||
|
U.S. government agency securities |
|
17,999 |
|
— |
|
(75 |
) |
— |
|
17,924 |
| |||||
|
U. S. treasury bills |
|
5,950 |
|
|
|
(6 |
) |
|
|
5,944 |
| |||||
|
Corporate securities |
|
533 |
|
115 |
|
|
|
|
|
648 |
| |||||
|
Total |
|
$ |
103,991 |
|
$ |
115 |
|
$ |
(81 |
) |
$ |
79,509 |
|
$ |
24,516 |
|
|
|
|
June 30, 2017 |
| |||||||||||||
|
|
|
|
|
|
|
|
|
Estimated Fair Value |
| |||||||
|
|
|
|
|
Gross |
|
Gross |
|
Cash and |
|
|
| |||||
|
|
|
Amortized |
|
Unrealized |
|
Unrealized |
|
Cash |
|
Short-term |
| |||||
|
|
|
Cost |
|
Gains |
|
Losses |
|
Equivalents |
|
Investments |
| |||||
|
Cash |
|
$ |
70,515 |
|
$ |
— |
|
$ |
— |
|
$ |
70,515 |
|
$ |
— |
|
|
Level 1 |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Money market funds |
|
1,569 |
|
— |
|
— |
|
1,569 |
|
— |
| |||||
|
Level 2 |
|
|
|
|
|
|
|
|
|
|
| |||||
|
U.S. government agency securities |
|
23,998 |
|
— |
|
(89 |
) |
— |
|
23,909 |
| |||||
|
Total |
|
$ |
96,082 |
|
$ |
— |
|
$ |
(89 |
) |
$ |
72,084 |
|
$ |
23,909 |
|
Liabilities That Are Measured at Fair Value on a Nonrecurring Basis
The debt is measured on a non-recurring basis using Level 2 inputs based upon observable inputs of the Company’s underlying stock price and the time value of the conversion option, since an observable quoted price of the 3.50% Convertible Notes (as defined below), the 3.50% Series A Convertible Notes (as defined below) and the 3.75% Convertible Notes (as defined below) (collectively the “Notes”) are not readily available. The carrying value of the Revolving Credit Facility (as defined below) and the Term Loan (as defined below) (collectively the “Credit Facilities”, together with the Notes, “Debt”) approximate its estimated fair value as these borrowings have a variable rate structure that is based on a market observable interest rate that resets periodically. The Credit Facilities are classified as Level 2 within the fair value hierarchy.
The following table summarizes the carrying value and estimated fair value of all Debt (in thousands):
|
|
|
December 31, 2017 |
|
June 30, 2017 |
| ||||||||
|
|
|
Carrying Value |
|
Fair Value |
|
Carrying Value |
|
Fair Value |
| ||||
|
3.50% Convertible Notes |
|
$ |
12,976 |
|
$ |
13,260 |
|
$ |
44,099 |
|
$ |
48,146 |
|
|
3.50% Series A Convertible Notes |
|
26,475 |
|
26,818 |
|
68,924 |
|
74,982 |
| ||||
|
3.75% Convertible Notes |
|
67,819 |
|
88,400 |
|
— |
|
— |
| ||||
|
Revolving Credit Facility |
|
24,983 |
|
24,983 |
|
51,548 |
|
51,548 |
| ||||
|
Term Loan |
|
37,623 |
|
37,623 |
|
— |
|
— |
| ||||
|
Total |
|
$ |
169,876 |
|
$ |
191,084 |
|
$ |
164,571 |
|
$ |
174,676 |
|
Note 8. Commitments and Contingencies
Litigation
From time to time, the Company is involved in legal proceedings arising in the ordinary course of its business. The Company records a provision for a loss when it believes that it is both probable that a loss has been incurred and the amount can be reasonably estimated. Currently, management believes the Company does not have any probable and estimable losses related to legal proceedings and claims. Although occasional adverse decisions or settlements may occur, management does not believe that an adverse determination with respect to any of these claims would individually or in the aggregate materially and adversely affect the Company’s financial condition or operating results. Litigation is inherently unpredictable and is subject to significant uncertainties, some of which are beyond the Company’s control. Should any of these estimates and assumptions change or prove to have been incorrect, the Company could incur significant charges related to legal matters that could have a material impact on its results of operations, financial position and cash flows.
Software License Indemnity
Under the terms of the Company’s software license agreements with its customers, the Company agrees that in the event the software sold infringes upon any patent, copyright, trademark, or any other proprietary right of a third-party, it will indemnify its customer licensees against any loss, expense, or liability from any damages that may be awarded against them. The Company includes this infringement indemnification in all of its software license agreements and selected managed services arrangements. In the event the customer cannot use the software or service due to infringement and the Company cannot obtain the right to use, replace or modify the license or service in a commercially feasible manner so that it no longer infringes, then the Company may terminate the license and provide the customer a refund of the fees paid by the customer for the infringing license or service. The Company has not recorded any liability associated with this indemnification, as it is not aware of any pending or threatened actions that represent probable losses as of December 31, 2017.
Note 9. Debt
3.50% Convertible Senior Notes due February 2018
In February 2013, the Company issued 3.50% Convertible Senior Notes due 2018 (the “3.50% Convertible Notes”) under an indenture between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee. Holders of the 3.50% Convertible Notes may convert their notes at any time until the close of the business day immediately preceding the maturity date. The 3.50% Convertible Notes are convertible into common stock of the Company at an initial conversion rate equal to 187.6877 shares of common stock per $1,000 principal amount, which is equivalent to a conversion price of approximately $5.33 per share of common stock, subject to adjustment. The 3.50% Convertible Notes bear interest at a rate of 3.50% per year, payable semi-annually in arrears in cash on February 1 and August 1 of each year. The 3.50% Convertible Notes has a maturity date of February 1, 2018, unless earlier repurchased, redeemed or converted, thus it has been classified as short-term debt on the Company’s unaudited condensed consolidated balance sheets.
Holders of the 3.50% Convertible Notes who convert their notes in connection with a “make-whole fundamental change,” as defined in the indenture, may be entitled to a make-whole premium in the form of an increase in the conversion rate. Additionally, in the event of a “fundamental change,” as defined in the indenture, holders of the 3.50% Convertible Notes may require the Company to purchase all or a portion of their 3.50% Convertible Notes at a fundamental change repurchase price equal to 100% of the principal amount of 3.50% Convertible Notes, plus accrued and unpaid interest, if any, to, but not including, the fundamental change repurchase date. As of December 31, 2017, approximately $13.0 million aggregate principal amount was outstanding. On February 1, 2018, the 3.50% Convertible Notes were settled in full. Refer to Note 14. Subsequent Events to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q.
3.50% Series A Convertible Senior Notes due February 2018
In April 2014, the Company issued 3.50% Series A Convertible Senior Notes due 2018 (the “3.50% Series A Convertible Notes”) under an indenture between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee. Holders of the 3.50% Series A Convertible Notes may convert their notes at any time on or after November 1, 2017 until the close of business on the business day immediately preceding the maturity date. The initial conversion rate is 187.6877 shares of the Company’s common stock per $1,000 principal amount, which represents an initial conversion price of approximately $5.33 per share of the Company’s common stock. The 3.50% Series A Convertible Notes generally have the same interest rate, maturity and other terms as the 3.50% Convertible Notes, except that the 3.50% Series A Convertible Notes are convertible into cash, shares of the Company’s common stock or a combination of cash and shares of common stock, at the Company’s option.
Holders of the 3.50% Series A Convertible Notes who convert their notes in connection with a “make-whole fundamental change,” as defined in the indenture, may be entitled to a make-whole premium in the form of an increase in the conversion rate. Additionally, in the event of a “fundamental change,” as defined in the indenture, holders of the 3.50% Series A Convertible Notes may require the Company to purchase all or a portion of their 3.50% Series A Convertible Notes at a fundamental change repurchase price equal to 100% of the principal amount of the 3.50% Series A Convertible Notes, plus accrued and unpaid interest, if any, to, but not including, the fundamental change repurchase date. The 3.50% Series A Convertible Notes has a maturity date of February 1, 2018; thus, it has been classified as short-term debt on the Company’s unaudited condensed consolidated balance sheets. As of December 31, 2017, approximately $26.6 million aggregate principal amount was outstanding. On February 1, 2018, the 3.50% Series A Convertible Notes were repaid in full. Refer to Note 14. Subsequent Events to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q.
3.75% Convertible Senior Notes due July 2022
In August 2017, the Company issued $85.0 million aggregate principal amount of its 3.75% Convertible Senior Notes due 2022 (the “3.75% Convertible Notes”) under an indenture between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee. $53.0 million aggregate principal amount of the 3.75% Convertible Notes were issued to certain holders of the Company’s outstanding 3.50% Convertible Notes and 3.50% Series A Convertible Notes (together, the “Existing Notes”) in exchange for approximately $47.0 million aggregate principal amount of the Existing Notes (the “Exchange”) and $32.0 million aggregate principal amount of the 3.75% Convertible Notes were issued to certain other qualified new investors for cash. The net proceeds of the cash issuance were used to repurchase approximately $28.0 million of Existing Notes (the “Repurchase”).
Holders of the 3.75% Convertible Notes may convert their notes at any time on or after April 15, 2022 until the close of the business day immediately preceding the maturity date. Prior to April 15, 2022, holders of the 3.75% Convertible Notes may convert their notes only under certain circumstances
Upon conversion, the Company will have the right to pay cash, or deliver shares of common stock of the Company or a combination thereof, at the Company’s election. The initial conversion rate is 174.8252 shares of the Company’s common stock per $1,000 principal amount (which represents an initial conversion price of approximately $5.72 per share of the Company’s common stock). The conversion rate, and thus the conversion price, is subject to adjustment as further described below.
Holders of the 3.75% Convertible Notes who convert their notes in connection with a “make-whole fundamental change,” as defined in the indenture, may be entitled to a make-whole premium in the form of an increase in the conversion rate. Additionally, in the event of a “fundamental change,” as defined in the indenture, holders of the 3.75% Convertible Notes may require the Company to purchase all or a portion of their note at a fundamental change repurchase price equal to 100% of the principal amount of the 3.75% Convertible Notes, plus accrued and unpaid interest, if any, to, but not including, the fundamental change repurchase date. As of December 31, 2017, approximately $67.8 million aggregate principal amount was outstanding.
Revolving Credit Facility
On June 14, 2017, the Company entered into a credit and security agreement with a lender (the “Credit Agreement”). The Credit Agreement provides the Company with a revolving credit facility in the initial amount of $52.0 million (the “Revolving Credit Facility”). Availability for borrowings under the Revolving Credit Facility is subject to a borrowing base that is calculated as a function of the value of the Company’s eligible accounts receivable and eligible inventory, and the Company is required to maintain a minimum drawn balance of at least 30% of such availability. Interest on the borrowings under the Revolving Credit Facility is payable monthly in arrears at an annual interest rate of reserve-adjusted, 90-day LIBOR plus 4.50% and had initial maturity date of June 14, 2021.
In December 2017, concurrently with the Term Loan Agreement described below, the Company entered into an amendment to the Credit Agreement (the “Amendment” and, collectively with the Credit Agreement, the “Amended Credit Agreement”). The Amendment reduced the maximum borrowings under the Revolving Credit Facility to $32.0 million and extended the maturity date of the Revolving Credit Facility to December 15, 2022.
The Amended Credit Agreement contains restrictions and covenants applicable to the Company. Among other requirements, the Company may not permit the Fixed Charge Coverage Ratio (as defined in the Amended Credit Agreement) to be less than a certain specified ratio for each fiscal quarter during the term of the Revolving Credit Facility. In addition, the Amended Credit Agreement contains customary restrictive covenants that limit, among other things, the ability of the Company and its subsidiaries to (i) incur additional indebtedness, (ii) incur liens on their property, (iii) pay dividends or make other distributions, (iv) sell their assets, (v) make certain loans or investments, (vi) merge or consolidate, (vii) voluntarily repay or prepay certain indebtedness and (viii) enter into transactions with affiliates, in each case subject to certain exceptions. The Company was in compliance with the covenants as of December 31, 2017. As of December 31, 2017, approximately $25.0 million aggregate principal amount was outstanding under the Revolving Credit Facility.
Term Loan
In December 2017, the Company entered into a credit and security agreement with a lender (the “Term Loan Agreement”). The Term Loan Agreement provides for an initial term loan of $40.0 million with an additional tranche of $20.0 million available through December 31, 2018, if specified conditions are met (the “Term Loan”). In connection with the Amendment, the Company used a portion of the net proceeds from the initial advance to repay a portion of the outstanding borrowings under the Revolving Credit Facility. Interest on the Term Loan is payable monthly in arrears at an annual interest rate of 6.75% plus 90-day LIBOR. The Term Loan Agreement matures December 15, 2022 and, if prepaid, has fees equal to 3%, 2%, and 1% of the prepayment amount if such termination occurs within the first year, the second year, and the third year of funding, respectively. The term of the loan is 60 months with interest only for the first 24 months followed by straight-line amortization of principal for the remaining months. In addition, the Company will pay an annual administrative fee of 0.25% and a final payment of 4.0% of the Term Loan amount.
The Term Loan issuance costs of $2.0 million, including a portion of the unamortized offering costs of Revolving Credit Facility, and a $2.0 million debt discount were deferred and being amortized over the 5-year term of the Term Loan.
The following table presents the carrying value of all Debt (in thousands):
|
As of December 31, 2017 |
|
Revolving |
|
3.50% Convertible |
|
3.50% Series A |
|
3.75% |
|
Term Loan |
|
Total |
| ||||||
|
Carrying amount of equity conversion component |
|
$ |
— |
|
$ |
— |
|
$ |
2,806 |
|
$ |
14,650 |
|
$ |
— |
|
$ |
17,456 |
|
|
Principal amount of the Notes |
|
$ |
24,983 |
|
$ |
13,000 |
|
$ |
26,552 |
|
$ |
85,000 |
|
$ |
40,000 |
|
$ |
189,535 |
|
|
Unamortized debt costs |
|
— |
|
(24 |
) |
— |
|
(3,649 |
) |
(2,002 |
) |
(5,675 |
) | ||||||
|
Unamortized debt discount |
|
— |
|
— |
|
(77 |
) |
(13,532 |
) |
(375 |
) |
(13,984 |
) | ||||||
|
Net carrying amount |
|
$ |
24,983 |
|
$ |
12,976 |
|
$ |
26,475 |
|
$ |
67,819 |
|
$ |
37,623 |
|
$ |
169,876 |
|
|
Reported as: |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Short-term debt |
|
|
|
|
|
|
|
|
|
|
|
$ |
39,451 |
|
|
Long-term debt |
|
|
|
|
|
|
|
|
|
|
|
130,425 |
| |
|
Total debt |
|
|
|
|
|
|
|
|
|
|
|
$ |
169,876 |
|
|
As of June 30, 2017 |
|
Revolving |
|
3.50% Convertible |
|
3.50% Series A |
|
Total |
| ||||
|
Carrying amount of equity conversion component |
|
$ |
— |
|
$ |
— |
|
$ |
7,844 |
|
$ |
7,844 |
|
|
Principal amount of the Notes |
|
$ |
51,548 |
|
$ |
44,654 |
|
$ |
70,346 |
|
$ |
166,548 |
|
|
Unamortized debt costs |
|
— |
|
(555 |
) |
— |
|
(555 |
) | ||||
|
Unamortized debt discount |
|
— |
|
— |
|
(1,422 |
) |
(1,422 |
) | ||||
|
Net carrying amount |
|
$ |
51,548 |
|
$ |
44,099 |
|
$ |
68,924 |
|
$ |
164,571 |
|
|
Reported as: |
|
|
|
|
|
|
|
|
| |
|
Short-term debt |
|
|
|
|
|
|
|
$ |
113,023 |
|
|
Long-term debt |
|
|
|
|
|
|
|
51,548 |
| |
|
Total debt |
|
|
|
|
|
|
|
$ |
164,571 |
|
A summary of interest expense on the Debt is as follows (in thousands):
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
|
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Interest expense related to contractual interest coupon |
|
$ |
2,427 |
|
$ |
2,339 |
|
$ |
4,836 |
|
$ |
4,870 |
|
|
Interest expense related to amortization of debt discount |
|
865 |
|
640 |
|
1,727 |
|
1,456 |
| ||||
|
Interest expense related to amortization of debt issuance costs |
|
420 |
|
379 |
|
868 |
|
782 |
| ||||
|
|
|
$ |
3,712 |
|
$ |
3,358 |
|
$ |
7,431 |
|
$ |
7,108 |
|
Note 10. Share-Based Compensation
The following table presents details of share-based compensation expenses by functional line item (in thousands):
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
|
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Cost of revenue |
|
$ |
475 |
|
$ |
418 |
|
$ |
968 |
|
$ |
942 |
|
|
Research and development |
|
634 |
|
501 |
|
1,265 |
|
1,164 |
| ||||
|
Selling and marketing |
|
530 |
|
686 |
|
367 |
|
1,308 |
| ||||
|
General and administrative |
|
1,799 |
|
1,309 |
|
3,270 |
|
2,973 |
| ||||
|
|
|
$ |
3,438 |
|
$ |
2,914 |
|
$ |
5,870 |
|
$ |
6,387 |
|
Note 11. Net Loss Per Common Share
The Company reports both basic and diluted loss per share, which is based on the weighted average number of common shares outstanding during the period.
A reconciliation of the numerator and denominator used in the calculation of basic and diluted net loss per common share follows (in thousands):
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
|
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Numerator: |
|
|
|
|
|
|
|
|
| ||||
|
Net loss used to compute basic and diluted loss per share |
|
$ |
(4,719 |
) |
$ |
(9,369 |
) |
$ |
(14,101 |
) |
$ |
(19,295 |
) |
|
Denominator: |
|
|
|
|
|
|
|
|
| ||||
|
Weighted average shares used to compute basic and diluted loss per share |
|
84,586 |
|
82,328 |
|
84,167 |
|
81,952 |
| ||||
The potentially dilutive shares of the Company’s common stock resulting from the assumed exercise of outstanding stock options, the settlement of vested Restricted Stock Units (RSU), Market Stock Units (MSU) and Performance Stock Units (PSU), and the purchase of shares under the Company’s Employee Stock Purchase Program (ESPP), as determined under the treasury stock method, are excluded from the computation of diluted net loss per share because their effect would have been anti-dilutive. Additionally, the 3.50% Convertible Notes is included in the calculation of diluted net income per share only if their inclusion is dilutive.
The following table sets forth all potentially dilutive securities excluded from the computation in the table above because their effect would have been anti-dilutive (in thousands):
|
|
|
As of December 31, |
| ||
|
|
|
2017 |
|
2016 |
|
|
Stock options |
|
2,799 |
|
2,850 |
|
|
RSUs, PSUs and MSUs |
|
5,204 |
|
5,622 |
|
|
3.50% Convertible Notes |
|
2,439 |
|
8,378 |
|
|
|
|
10,442 |
|
16,850 |
|
3.75% Convertible Notes and 3.50% Series A Convertible Notes—Diluted Share Impact
The 3.75% Convertible Notes and the 3.50% Series A Convertible Notes have an optional physical (share), cash or combination settlement feature and contain certain conditional conversion features. Due to the optional cash settlement feature and management’s intent to settle the principal amount thereof in cash, the shares of our common stock issuable upon conversion of the outstanding principal amount of the 3.75% Convertible Notes and the 3.50% Series A Convertible Notes as of December 31, 2017, totaling approximately 19.8 million shares of our common stock, were not included in the basic and diluted net loss per common share table above.
Note 12. Segment Information
The Company operates in one reportable segment (oncology systems group), which develops, manufactures and markets proprietary medical devices used in radiation therapy and radiosurgery for the treatment of cancer patients. The Company’s Chief Executive Officer, its Chief Operating Decision Maker, reviews financial information presented on a consolidated basis for purposes of making operating decisions and assessing financial performance. The Company does not assess the performance of its individual product lines on measures of profit or loss, or asset based metrics.
The following tables present net revenue and long-lived asset information based on geographic region. Net revenue is based on the destination of the shipments and long-lived assets are based on the physical location of the assets (in thousands):
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
Net Revenue |
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Americas |
|
$ |
37,754 |
|
$ |
39,183 |
|
$ |
73,777 |
|
$ |
79,825 |
|
|
Europe, Middle East, India and Africa |
|
32,006 |
|
25,638 |
|
67,154 |
|
46,920 |
| ||||
|
Asia-Pacific |
|
30,569 |
|
22,681 |
|
50,348 |
|
47,263 |
| ||||
|
Total |
|
$ |
100,329 |
|
$ |
87,502 |
|
$ |
191,279 |
|
$ |
174,008 |
|
|
|
|
December 31, |
|
June 30, |
| ||
|
Property and equipment, net |
|
2017 |
|
2017 |
| ||
|
Americas |
|
$ |
18,108 |
|
$ |
18,435 |
|
|
Europe, Middle East, India and Africa |
|
763 |
|
730 |
| ||
|
Asia-Pacific |
|
3,730 |
|
3,897 |
| ||
|
Total |
|
$ |
22,601 |
|
$ |
23,062 |
|
Note 13. Income Tax
On a quarterly basis, the Company provides for income taxes based upon an estimated annual effective income tax rate. The Company recognized an income tax benefit of less than $0.1 million and an income tax expense of $0.7 million for the three and six months ended December 31, 2017, respectively. The Company recognized an income tax expense of $0.4 million and an income tax benefit of $0.2 million for the three and six months ended December 31, 2016, respectively.
On December 22, 2017, the Tax Cuts and Jobs Act of 2017 (“Tax Act”) was signed into law. The Company believes the impact of the inclusion of accumulated post-1986 foreign earnings on which U.S. income tax is currently deferred to a one-time transition tax on December 31, 2017 would not be material to the Company. The measurement of the transition tax liability requires extensive effort on the calculation of the foreign earnings and profit on a cumulative basis. The Company has made reasonable efforts to determine that there would be no material financial impact on this one-time transition tax as the Company believes its existing tax attributes can be used to offset the transition tax without limitation, but an election is available to not claim the net operating loss deduction against the mandatory foreign earnings inclusion at December 31, 2017.
Under ASC 740, Accounting for Income Taxes, the enactment of the Tax Act also requires companies, to recognize the effects of changes in tax laws and rates on deferred tax assets and liabilities and the retroactive effects of changes in tax laws in the period in which the new legislation is enacted. There is no further change to its assertion on maintaining a full valuation allowance against its U.S. deferred tax assets. The Company’s gross deferred tax assets will be revalued from 35% to 21% with a corresponding offset to the valuation allowance and any potential other taxes arising due to the Tax Act will result in reductions to its net operating loss carryforward and valuation allowance. Deferred tax assets of approximately $174.0 million will be revalued to approximately $117.0 million with a corresponding decrease to the Company’s valuation allowance. The Company will continue to analyze the Tax Act to assess the full effects on its financial results, including disclosures, for our fiscal year ending June 30, 2018.
Note 14. Subsequent Events
3.50% Convertible Notes
On January 30, 2018, the Company entered into exchange agreements with the holders of the 3.50% Convertible Notes (the “Exchange Agreements”), which allowed the Company to settle the $13.0 million outstanding principal amount of 3.50% Convertible Notes and accrued interest in cash at maturity, and any excess equity value over the original conversion price in shares (the “Exchange Shares”) to be delivered in February 2018. The Company also agreed to pay a $0.3 million exchange premium in the form of shares of the Company’s common stock (the “Exchange Premium” and together with the Exchange Shares, the “Share Consideration”). The Share Consideration is determined based on a prescribed formula in the Exchange Agreements.
On February 1, 2018, pursuant to the Exchange Agreements, the Company paid $13.2 million in cash to settle outstanding principal and accrued interest with respect to the 3.50% Convertible Notes. The total number of shares to be delivered for the Share Consideration will be determined following the three-day averaging period specified in the Exchange Agreement.
3.50% Series A Convertible Notes
On February 1, 2018, the Company paid $27.0 million in cash and issued an insignificant number of shares of common stock to settle the outstanding principal amount and accrued interest under the 3.50% Series A Convertible Notes upon maturity.
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis of our financial condition as of December 31, 2017 and results of operations for the three and six months ended December 31, 2017 and 2016 should be read together with our unaudited condensed consolidated financial statements and related notes included in this report. Statements made in this Form 10-Q report that are not statements of historical fact are forward-looking statements that are subject to the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements in this report relate, but are not limited, to: our future results of operations and financial position, including the sufficiency of cash resources and expected cash flows to fund future operations, including the next 12 months; our backlog and expectations regarding age-outs, cancellations of contracts and foreign currency impacts; the anticipated drivers of our future capital requirements; our expectations regarding the improvements in efficiency made by the multi-leaf collimator, or InCise MLC, on the CyberKnife Systems, and its impact on our business; our expectations regarding the factors that will impact long-term success, sales, competitive positioning and long-term success for our CyberKnife and TomoTherapy Systems, including Radixact Systems; our belief that TomoTherapy and Radixact Systems offer clinicians and patients significant benefits over other radiation therapy systems in the market; the anticipated risks associated with our foreign operations and fluctuations in the U.S. Dollar and foreign currencies as well as our ability to mitigate such risks; our plans related to cash held by our foreign subsidiaries; our expectations related to the effects of the Tax Cuts and Jobs Act of 2017 on the Company; the sufficiency of our cash, cash flow equivalents and investments to meet our anticipated cash needs for working capital and capital expenditures and our business strategy, plans and objectives. Forward-looking statements generally can be identified by words such as “anticipates,” “believes,” “estimates,” “expects,” “intends,” “plans,” “predicts,” “projects,” “may,” “will be,” “will continue,” “will likely result,” and similar expressions. These forward-looking statements involve risks and uncertainties. If any of these risks or uncertainties materialize, or if any of our assumptions prove incorrect, actual results could differ materially from the results expressed or implied by these forward-looking statements. These risks and uncertainties include, those discussed in this quarterly report, in particular under the heading “Risk Factors” in Part II, Item 1A as well as the risks detailed in Part I, Item 1A of our annual report on Form 10-K for fiscal year 2017, and other filings we make with the Securities and Exchange Commission. Forward-looking statements speak only as of the date the statements are made and are based on information available to us at the time those statements are made and/or management’s good faith belief as of that time with respect to future events. We assume no obligation to update forward-looking statements to reflect actual performance or results, changes in assumptions or changes in other factors affecting forward-looking information, except to the extent required by applicable securities laws. Accordingly, investors should not place undue reliance on any forward-looking statements.
In this report, “Accuray,” the “Company,” “we,” “us,” and “our” refer to Accuray Incorporated and its subsidiaries.
Overview
Products and Markets
We are a radiation oncology company that develops, manufactures, sells and supports precise, innovative treatment solutions that set the standard of care, with the aim of helping patients live longer, better lives. Our leading-edge technologies, the CyberKnife and TomoTherapy Systems, including Radixact Systems, the next generation TomoTherapy System platform, are designed to deliver advanced radiation therapy including radiosurgery, stereotactic body radiation therapy, intensity modulated radiation therapy, image-guided radiation therapy and adaptive radiation therapy tailored to the specific needs of each patient. The CyberKnife and TomoTherapy Systems are complementary offerings serving largely separate patient populations treated by the same medical specialty, radiation oncology, with advanced capabilities that offer increased treatment flexibility to meet the needs of an expanding patient population including patients requiring retreatment with radiation therapy. We also offer comprehensive software solutions to enable and enhance the precise and efficient radiosurgery and radiotherapy treatment with our CyberKnife and TomoTherapy Systems. In addition to these products, we also provide services, which include post-contract customer support (warranty period services and post warranty services), installation services, training and other professional services.
The CyberKnife Systems
The CyberKnife Systems are robotic systems designed to deliver radiosurgery treatments to cancer tumors anywhere in the body. The CyberKnife Systems are the only dedicated, full-body robotic radiosurgery systems on the market. Radiosurgery is an alternative to traditional surgery for tumors and is performed on an outpatient basis in one to five treatment sessions. It enables the treatment of patients who typically might not otherwise be treated with radiation, who may not be good candidates for surgery, or who desire non-surgical treatments. The use of radiosurgery with CyberKnife Systems to treat tumors throughout the body has grown significantly in recent years, but currently only a small portion of the patients who develop tumors treatable with CyberKnife Systems are treated with these systems. A determination of when it may or may not be appropriate to use a CyberKnife System for treatment is at the discretion of the treating physician and depends on the specific patient. However, the CyberKnife Systems are generally not
used to treat (1) very large tumors, which are considerably wider than the radiation beam that can be delivered by CyberKnife Systems, (2) diffuse wide-spread disease, as is often the case for late stage cancers, because they are not localized (though CyberKnife Systems might be used to treat a focal area of the disease) and (3) systemic diseases, like leukemia and lymphoma, which are not localized to an organ, but rather involve cells throughout the body.
Our CyberKnife M6 Series Systems have the option of: fixed collimator, Iris Variable Aperture Collimator and/or multi-leaf collimator, or InCise MLC. The InCise MLC is designed specifically for the M6 Series. With the InCise MLC, clinicians can deliver the same precise radiosurgery treatments they have come to expect with the CyberKnife System, faster and for a wider range of tumor types than prior CyberKnife systems. The InCise MLC makes it faster and more efficient to treat a wider range of tumor types with the CyberKnife M6 Series System, including larger tumors and those with multiple sites of disease.
We believe the long term success of the CyberKnife Systems is dependent on a number of factors including the following:
· Continued adoption of our CyberKnife M6 Series Systems;
· Greater awareness among doctors and patients of the benefits of radiosurgery conducted with the CyberKnife Systems;
· Continued evolution in clinical studies demonstrating the safety, efficacy and other benefits of using the CyberKnife Systems to treat tumors in various parts of the body;
· Change in medical practice leading to utilization of stereotactic body radiosurgery more regularly as an alternative to surgery or other treatments;
· Continued advances in our technology that improve the quality of treatments and ease of use of the CyberKnife Systems;
· Receipt of regulatory approvals in various countries which are expected to improve access to radiosurgery with the CyberKnife Systems in such countries;
· Medical insurance reimbursement policies that cover CyberKnife System treatments; and
· Our ability to expand sales of CyberKnife Systems in countries throughout the world where we do not currently sell or have not historically sold a significant number of CyberKnife Systems.
TomoTherapy Systems, including Radixact Systems, the next generation TomoTherapy System
The TomoTherapy Systems are advanced, fully integrated and versatile radiation therapy systems for the treatment of a wide range of cancer types. The TomoTherapy Systems are specifically designed for image-guided intensity-modulated radiation therapy (IG-IMRT). The TomoTherapy Systems include the TomoTherapy H Series Systems with configurations of TomoH, TomoHD and TomoHDA. Based on a CT scanner platform, the systems provide continuous delivery of radiation from 360 degrees around the patient, or delivery from clinician-specified beam angles. These unique features, combined with daily 3D image guidance, enable physicians to deliver highly accurate, individualized dose distributions which precisely conform to the shape of the patient’s tumor while minimizing dose to normal, healthy tissue, resulting in fewer side effects for the patient. The TomoTherapy Systems are capable of treating all standard radiation therapy indications including breast, prostate, lung and head and neck cancers, in addition to complex and novel treatments such as total marrow irradiation. The Radixact System, the next generation TomoTherapy System, includes our integrated Accuray Precision treatment planning software and new iDMS Data Management System. The Radixact System leverages the TomoTherapy System’s efficient daily low-dose fan beam MVCT image guidance and unique ring gantry architecture, delivering precise radiation treatments for more patients, faster, with simpler, more automated workflows. We believe Radixact Systems and other TomoTherapy Systems offer clinicians and patients significant benefits over other radiation therapy systems in the market. We believe our ability to capture more sales will be influenced by a number of factors including the following:
· Continued adoption of our TomoTherapy Systems, including the adoption of Radixact Systems in markets where it is available;
· Greater awareness among doctors and patients of the unique benefits of radiation therapy using TomoTherapy Systems because of their ring gantry architecture and ability to deliver treatment from 360 degrees around the patient;
· Advances in our technology that improve the quality of treatments and ease of use of TomoTherapy Systems;
· Greater awareness among doctors of the now-established reliability of TomoTherapy Systems; and
· Our ability to expand sales of TomoTherapy Systems in countries throughout the world where we do not currently sell or have not historically sold a significant number of TomoTherapy Systems.
Sale of Our Products
Generating revenue from the sale of our systems is a lengthy process. Selling our systems, from first contact with a potential customer to a signed sales contract that meets our backlog criteria (as discussed below) varies significantly and generally spans between six months and two years. The length of time between receipt of a signed contract and revenue recognition is generally governed by the time required by the customer to build, renovate or prepare the treatment room for installation of the system.
In the United States, we primarily market directly to customers, including hospitals and stand-alone treatment facilities, through our sales organization and we also market to customers through sales agents and group purchasing organizations. Outside the United States, we market to customers directly and through distributors and sales agents. In addition to our offices in the United States, we have sales and service offices in Europe, Asia, and South America.
Backlog
For orders that cover both products and services, only the portion of the order that is recognizable as product revenue is reported as backlog. The portion of the order that is recognized as service revenue (for example, Post-Contract Customer Support (PCS), installation, training and professional services) is not included in reported backlog. Product backlog totaled $470.5 million as of December 31, 2017 compared to $452.8 million as of June 30, 2017.
In order for the product portion of a system sales agreement to be counted as backlog, it must meet the following criteria:
· The contract is properly executed by both the customer and us. A customer purchase order that incorporates the terms of our contract quote will be considered equivalent to a signed and executed contract. The contract has either cleared all its contingencies or contained no contingencies when signed.
· We have received a minimum deposit or a letter of credit; or the sale is to a customer where a deposit is deemed not necessary or customary (i.e. sale to a government entity, a large hospital, group of hospitals or cancer care group that has sufficient credit, customers with trade-in of existing equipment, sales via tender awards, or indirect channel sales that have signed contracts with end-customers);
· The specific end customer site has been identified by the customer in the written contract or written amendment; and
· Less than 2.5 years have passed since the contract met all the criteria above.
Although our backlog includes only contractual agreements with our customers for the purchase of CyberKnife Systems, TomoTherapy Systems, including Radixact Systems and related upgrades, we cannot provide assurance that we will convert backlog into recognized revenue due primarily to factors outside of our control. The amount of backlog recognized into revenue is primarily impacted by three items: cancellations, age-outs and foreign currency fluctuations. Orders could be cancelled for reasons including, without limitation, changes in customers’ needs or financial condition, changes in government or health insurance reimbursement policies, or changes to regulatory requirements. In addition to cancellations, after 2.5 years, if we have not been able to recognize revenue on a contract, we remove the revenue associated with the contract from backlog and the order is considered aged out. Contracts may age-out for many reasons, including but not limited to, inability of the customer to pay, inability of the customer to adapt their facilities to accommodate our products in a timely manner, or inability to timely obtain licenses necessary for customer facilities or operation of our equipment. Our backlog also includes amounts not denominated in U.S. Dollars and therefore fluctuations in the U.S. Dollar as compared to other currencies will impact revenue. Generally, strengthening of the U.S. Dollar will negatively impact revenue. Backlog is stated at historical foreign currency exchange rates, and revenue is released from backlog at current exchange rates, with any difference recorded as a backlog adjustment.
A summary of gross orders, net orders, and order backlog is as follows (in thousands):
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
|
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Gross orders |
|
$ |
77,908 |
|
$ |
78,454 |
|
$ |
133,554 |
|
$ |
128,789 |
|
|
Net orders |
|
52,649 |
|
54,069 |
|
103,687 |
|
91,256 |
| ||||
|
Order backlog at the end of the period |
|
470,511 |
|
426,158 |
|
470,511 |
|
426,158 |
| ||||
Gross Orders
Gross orders are defined as the sum of new orders recorded during the period adjusted for any revisions to existing orders during the period.
Gross orders decreased by $0.5 million for the three months ended December 31, 2017, as compared to the three months ended December 31, 2016. This was a result of a decrease of $1.5 million in new system order volume compared to the same prior year period, primarily driven by the decrease of CyberKnife System orders, partially offset by an increase in TomoTherapy System orders driven by Radixact Systems, which were introduced in the second half of fiscal 2017. The decrease in new system orders was partially offset by an increase of $0.9 million in upgrade orders and other amendments as compared to the same prior year period.
Gross orders increased by $4.8 million for the six months ended December 31, 2017, as compared to the six months ended December 31, 2016. This was a result of an increase of $6.7 million in new system order volume compared to the same prior year period primarily driven by TomoTherapy and Radixact System orders. Additionally, the increase in TomoTherapy and Radixact System orders was offset by a decrease in CyberKnife System orders year over year in units and dollars. Upgrade orders decreased by $1.9 million in the six months ended December 31, 207 as compared to the same prior year period.
Net Orders
Net orders are defined as gross orders less cancellations, age-outs, foreign exchange and other adjustments.
Net orders decreased by $1.4 million for the three months ended December 31, 2017, as compared to the three months ended December 31, 2016, resulting from a decrease in gross orders of $0.5 million, an increase in net age-outs of $1.1 million and negative foreign currency adjustments of $0.3 million, offset by cancellation adjustments of $0.5 million.
· The net age-outs for the three months ended December 31, 2017 was $20.9 million. There were no age-ins, which represent orders that previously aged-out but have been taken to revenue in the current period. Age-ins offset the gross amount of age-outs in a particular period.
· There were $3.1 million and $3.6 million in cancellations in the three months ended December 31, 2017 and December 31, 2016, respectively. Cancellations are outside of our control and are difficult to forecast; however, we continue to work closely with our customers to minimize the impact of cancellations on our business.
· Other adjustments and foreign currency impacts decreased net orders by $1.2 million for the three months ended December 31, 2017 while currency impacts resulted in a decrease in net orders of $0.9 million for the three months ended December 31, 2016.
Net orders increased by $12.4 million for the six months ended December 31, 2017, as compared to the six months ended December 31, 2016, resulting from an increase in gross orders of $4.8 million, decreases in net age-outs of $5.1 million and cancellations of $3.9 million, offset by negative foreign currency adjustments of $1.4 million.
· The net age-outs of $25.5 million for the six months ended December 31, 2017 include $9.1 million of age-ins, which represent orders that previously aged-out but have been taken to revenue in the current period. Age-ins offset the gross amount of age-outs in a particular period.
· There were $3.1 million in cancellations in the six months ended December 31, 2017 and $7.0 million in cancellations in the six months ended December 31, 2016. Cancellations are outside of our control and are difficult to forecast, however, we continue to work closely with our customers to minimize the impact of cancellations on our business.
· Other adjustments and foreign currency impacts decreased net orders by $1.3 million for the six months ended December 31, 2017 while currency impacts resulted in a decrease in net orders of $0.1 million for the six months ended December 31, 2016.
Results of Operations — Three and Six months ended December 31, 2017 and 2016
|
|
|
Three Months Ended December 31, |
|
Six Months Ended December 31, |
| ||||||||||||||||
|
|
|
2017 |
|
2016 |
|
Change |
|
2017 |
|
2016 |
|
Change |
| ||||||||
|
(Dollars in thousands) |
|
Amount |
|
Amount |
|
$ |
|
% |
|
Amount |
|
Amount |
|
$ |
|
% |
| ||||
|
Products |
|
$ |
47,106 |
|
$ |
35,398 |
|
11,708 |
|
33 |
|
$ |
86,022 |
|
$ |
70,997 |
|
15,025 |
|
21 |
|
|
Services |
|
53,223 |
|
52,104 |
|
1,119 |
|
2 |
|
105,257 |
|
103,011 |
|
2,246 |
|
2 |
| ||||
|
Net revenue |
|
$ |
100,329 |
|
$ |
87,502 |
|
12,827 |
|
15 |
|
$ |
191,279 |
|
$ |
174,008 |
|
17,271 |
|
10 |
|
|
Gross profit |
|
$ |
39,355 |
|
$ |
31,387 |
|
7,968 |
|
25 |
|
$ |
77,461 |
|
$ |
62,731 |
|
14,730 |
|
23 |
|
|
Products gross profit |
|
20,249 |
|
12,429 |
|
7,820 |
|
63 |
|
37,063 |
|
24,676 |
|
12,387 |
|
50 |
| ||||
|
Services gross profit |
|
19,106 |
|
18,958 |
|
148 |
|
1 |
|
40,398 |
|
38,055 |
|
2,343 |
|
6 |
| ||||
|
Research and development expenses |
|
14,664 |
|
11,944 |
|
2,720 |
|
23 |
|
28,757 |
|
24,173 |
|
4,584 |
|
19 |
| ||||
|
Selling and marketing expenses |
|
13,872 |
|
13,904 |
|
(32 |
) |
— |
|
28,629 |
|
28,222 |
|
407 |
|
1 |
| ||||
|
General and administrative expenses |
|
11,836 |
|
10,362 |
|
1,474 |
|
14 |
|
23,144 |
|
21,706 |
|
1,438 |
|
7 |
| ||||
|
Other expense, net |
|
3,738 |
|
4,120 |
|
(382 |
) |
(9 |
) |
10,309 |
|
8,125 |
|
2,184 |
|
27 |
| ||||
|
Provision for (benefit from) income taxes |
|
(36 |
) |
426 |
|
(462 |
) |
108 |
|
723 |
|
(200 |
) |
923 |
|
462 |
| ||||
|
Net loss |
|
$ |
(4,719 |
) |
$ |
(9,369 |
) |
4,650 |
|
50 |
|
$ |
(14,101 |
) |
$ |
(19,295 |
) |
5,194 |
|
27 |
|
Net Revenue
|
|
|
Three Months Ended December 31, |
|
Six Months Ended December 31, |
| ||||||||||||||||
|
|
|
2017 |
|
2016 |
|
Change |
|
2017 |
|
2016 |
|
Change |
| ||||||||
|
(Dollars in thousands) |
|
Amount |
|
Amount |
|
$ |
|
% |
|
Amount |
|
Amount |
|
$ |
|
% |
| ||||
|
Products |
|
$ |
47,106 |
|
$ |
35,398 |
|
11,708 |
|
33 |
|
$ |
86,022 |
|
$ |
70,997 |
|
15,025 |
|
21 |
|
|
Services |
|
53,223 |
|
52,104 |
|
1,119 |
|
2 |
|
105,257 |
|
103,011 |
|
2,246 |
|
2 |
| ||||
|
Net revenue |
|
$ |
100,329 |
|
$ |
87,502 |
|
12,827 |
|
15 |
|
$ |
191,279 |
|
$ |
174,008 |
|
17,271 |
|
10 |
|
Product Net Revenue.
Product net revenue increased by $11.7 million for the three months ended December 31, 2017, as compared to the three months ended December 31, 2016, primarily due to an increase in sales of Radixact Systems, which was commercially launched in prior fiscal year, as well as improved backlog conversion of orders to revenue from the Europe and Asia Pacific regions. In addition to the increase in system revenue of $9.3 million, there was an increase of $2.4 million in upgrade and other revenue as compared to the prior year period.
Product net revenue increased by $15.0 million for the six months ended December 31, 2017, as compared to the six months ended December 31, 2016, primarily due to an increase in sales of Radixact Systems, which was commercially launched in prior fiscal year, as well as backlog conversion of orders to revenue from the Europe, Asia Pacific, and Japan regions. In addition to the increase in system revenue of $14.1 million, there was an increase of $0.9 million in upgrade and other revenue as compared to the prior year period.
Services Net Revenue.
Services net revenue increased by $1.1 million for the three months ended December 31, 2017, as compared to the three months ended December 31, 2016. An increase of $2.2 million was attributable to a net increase in our installed base and installation revenue, partially offset by a decrease of $1.1 million in spare parts and training revenue.
Services net revenue increased by $2.2 million for the six months ended December 31, 2017, as compared to the three months ended December 31, 2016. An increase of $3.5 million was attributable to a net increase in our installed base, partially offset by a decrease of $1.3 million in installation, spare parts and training revenue.
Percentage of net revenue by geographic region, based on the shipping location of our customers, is as follows (in thousands, except percentages):
|
|
|
Three Months Ended |
|
Six Months Ended |
| ||||||||
|
|
|
December 31, |
|
December 31, |
| ||||||||
|
|
|
2017 |
|
2016 |
|
2017 |
|
2016 |
| ||||
|
Net revenue |
|
$ |
100,329 |
|
$ |
87,502 |
|
$ |
191,279 |
|
$ |
174,008 |
|
|
Americas |
|
38 |
% |
45 |
% |
39 |
% |
46 |
% | ||||
|
Europe, Middle East, India and Africa |
|
32 |
% |
29 |
% |
35 |
% |
27 |
% | ||||
|
Asia Pacific |
|
30 |
% |
26 |
% |
26 |
% |
27 |
% | ||||
Revenue derived from sales outside of the Americas region as a percentage of our total net revenue increased in both three and six-month periods ended December 31, 2017 over the same periods in the prior year primarily due to improved backlog conversion of orders to revenue in those regions.
Gross Profit
|
|
|
Three Months Ended December 31, |
|
Six Months Ended December 31, |
| ||||||||||||||||
|
|
|
2017 |
|
2016 |
|
Change |
|
2017 |
|
2016 |
|
Change |
| ||||||||
|
(Dollars in thousands) |
|
Amount |
|
Amount |
|
$ |
|
% |
|
Amount |
|
Amount |
|
$ |
|
% |
| ||||
|
Product gross profit |
|
$ |
20,249 |
|
$ |
12,429 |
|
7,820 |
|
63 |
|
$ |
37,063 |
|
$ |
24,676 |
|
12,387 |
|
50 |
|
|
Services gross profit |
|
19,106 |
|
18,958 |
|
148 |
|
1 |
|
40,398 |
|
38,055 |
|
2,343 |
|
6 |
| ||||
|
Gross profit |
|
$ |
39,355 |
|
$ |
31,387 |
|
7,968 |
|
25 |
|
$ |
77,461 |
|
$ |
62,731 |
|
14,730 |
|
23 |
|
Overall gross profit for the three months ended December 31, 2017 increased $8.0 million, or 25%, as compared to the three months ended December 31, 2016, primarily due to the increase in product gross margin, which was favorably impacted by product volume and unit mix in the second quarter of fiscal 2018 as compared to the same period in the prior fiscal year. Further, in prior fiscal periods, we recorded a quarterly $2.0 million intangible amortization charge related to the acquisition of TomoTherapy Incorporated, which was fully amortized in the fourth quarter of our fiscal year 2017.
Overall gross profit for the six months ended December 31, 2017 increased $14.7 million, or 23%, as compared to the six months ended December 31, 2016. Product gross margin increased 50%, or $12.4 million, primarily due to favorable volume and unit mix in the first half of fiscal 2018 as compared to the same period in the prior fiscal year. Further, in the first half of fiscal 2017, we recorded $4.0 million of intangible amortization related to the acquisition of TomoTherapy Incorporated, which was fully amortized in the fourth quarter of our fiscal year 2017. The increase was partially offset by $0.8 million in higher inventory reserves for the six months ended December 31, 2017.
Service gross margin was relatively flat for the three months ended December 31, 2017 and December 31, 2016 and service gross margin increased 6% for the six months ended December 31, 2017 and December 31, 2016, respectively due primarily to the continued installed base expansion.
Research and Development
|
|
|
Three Months Ended December 31, |
|
Six Months Ended December 31, |
| ||||||||||||||
|
|
|
2017 |
|
2016 |
|
Change |
|
2017 |
|
2016 |
|
Change |
| ||||||
|
(Dollars in thousands) |
|
Amount |
|
Amount |
|
$ |
|
% |
|
Amount |
|
Amount |
|
$ |
|
% |
| ||
|
Research and development expenses |
|
$ |
14,664 |
|
$ |
11,944 |
|
2,720 |
|
23 |
|
28,757 |
|
24,173 |
|
4,584 |
|
19 |
|
Research and development expenses increased by $2.7 million in the three months ended December 31, 2017, as compared to the same period in the prior year. The increase was primarily due to $1.9 million of higher compensation expenses for additional headcount and $0.7 million in higher consulting fees, both of which were for projects related to our product development as well as an increase of $0.1 million in IT and facilities expenses to support increased headcount.
Research and development expenses increased by $4.6 million in the six months ended December 31, 2017, as compared to the same period in the prior year. The increase was primarily due to $3.3 million of higher compensation expenses for additional headcount and $1.2 million in higher consulting fees, both of which were for projects related to our product development.
Selling and Marketing
|
|
|
Three Months Ended December 31, |
|
Six Months Ended December 31, |
| ||||||||||||||
|
|
|
2017 |
|
2016 |
|
Change |
|
2017 |
|
2016 |
|
Change |
| ||||||
|
(Dollars in thousands) |
|
Amount |
|
Amount |
|
$ |
|
% |
|
Amount |
|
Amount |
|
$ |
|
% |
| ||
|
Selling and marketing expenses |
|
$ |
13,872 |
|
$ |
13,904 |
|
(32 |
) |
— |
|
28,629 |
|
28,222 |
|
407 |
|
1 |
|
Selling and marketing expenses remained flat for the three months ended December 31, 2017, as compared to the same period in the prior year.
Selling and marketing expenses increased by $0.4 million in the six months ended December 31, 2017, as compared to the same period in the prior year. The increase was primarily due to $0.1 million in higher compensation expenses related to commissions, $0.1 million in higher tradeshow and advertising costs, and $0.2 million in higher IT and facilities expenses.
General and Administrative
|
|
|
Three Months Ended December 31, |
|
Six Months Ended December 31, |
| ||||||||||||||
|
|
|
2017 |
|
2016 |
|
Change |
|
2017 |
|
2016 |
|
Change |
| ||||||
|
(Dollars in thousands) |
|
Amount |
|
Amount |
|
$ |
|
% |
|
Amount |
|
Amount |
|
$ |
|
% |
| ||
|
General and administrative expenses |
|
$ |
11,836 |
|
$ |
10,362 |
|
1,474 |
|
14 |
|
23,144 |
|
21,706 |
|
1,438 |
|
7 |
|
General and administrative expenses increased by $1.5 million in the three months ended December 31, 2017, as compared to the same period in the prior year. The increase was primarily due to $0.9 million in higher consulting expenses related to strategic business development, travel, and recruiting fees, $0.5 million in higher stock based compensation expense and $0.1 million in higher IT and facilities expenses.
General and administrative expenses increased by $1.4 million in the six months ended December 31, 2017 as compared to the same period in the prior year. The increase was primarily due to $1.2 million in higher consulting expenses related to strategic business development, travel and recruiting fees and $0.2 million in higher stock based compensation expenses.
Other Expense, net
|
|
|
Three Months Ended December 31, |
|
Six Months Ended December 31, |
| ||||||||||||||
|
|
|
2017 |
|
2016 |
|
Change |
|
2017 |
|
2016 |
|
Change |
| ||||||
|
(Dollars in thousands) |
|
Amount |
|
Amount |
|
$ |
|
% |
|
Amount |
|
Amount |
|
$ |
|
% |
| ||
|
Other expense, net |
|
$ |
3,738 |
|
$ |
4,120 |
|
(382 |
) |
(9 |
) |
10,309 |
|
8,125 |
|
2,184 |
|
27 |
|
Other expense, net decreased by $0.4 million for the three months ended December 31, 2017, as compared to the same period in the prior year. The decrease in other expense, net was primarily due to a $0.5 million foreign exchange gains and a $0.3 million loss on extinguishment of debt that was recorded in the same period in the prior year. The decrease was partially offset by higher interest expense of $0.4 million.
Other expense, net increased by $2.2 million for the six months ended December 31, 2017, as compared to the same period in the prior year. The increase in other expense, net was primarily due to a $3.2 million loss on extinguishment of debt that occurred in the first quarter for fiscal 2018, higher interest expense of $0.3 million and lower interest income of $0.1 million. The increase was partially offset by foreign exchange gains of $1.1 million.
Provision for Income Taxes
On a quarterly basis, we provide for income taxes based upon an estimated annual effective income tax rate. We recognized an income tax benefit of less than $0.1 million and an income tax expense of $0.7 million for the three and six months ended December 31, 2017, respectively. We recognized an income tax expense of $0.4 million and an income tax benefit of $0.2 million for the three and six months ended December 31, 2016, respectively.
Tax expense decreased by $0.5 million for the three months ended December 31, 2017, as compared to the same period in the prior year was attributable to the fiscal year 2017 return to provision tax adjustment of $0.5 recorded in the quarter ended December 31, 2017.
Tax expense increased by $0.9 million for the six months ended December 31, 2017, as compared to the same period in the prior year was due to recognition of an income tax benefit of approximately $1.4 million in the first quarter of prior fiscal year as a result of the completion of tax audits by the Swiss authorities for the period from fiscal 2011 through fiscal 2015.
On December 22, 2017, the Tax Cuts and Jobs Act of 2017 (“Tax Act”) was signed into law. We believe the impact of the inclusion of accumulated post-1986 foreign earnings on which U.S. income tax is currently deferred to a one-time transition tax on December 31, 2017 would not be material to us. The measurement of the transition tax liability requires extensive effort on the calculation of the foreign earnings and profit on a cumulative basis. We have made reasonable efforts to determine that there would be no material financial impact on this one-time transition tax as we believe our existing tax attributes can be used to offset the transition tax without limitation, but an election is available to not claim the net operating loss deduction against the mandatory foreign earnings inclusion at December 31, 2017.
Under ASC 740, Accounting for Income Taxes, the enactment of the Tax Act also requires companies, to recognize the effects of changes in tax laws and rates on deferred tax assets and liabilities and the retroactive effects of changes in tax laws in the period in which the new legislation is enacted. There is no further change to our assertion on maintaining a full valuation allowance against our U.S. deferred tax assets. Our gross deferred tax assets will be revalued from 35% to 21% with a corresponding offset to the valuation allowance and any potential other taxes arising due to the Tax Act will result in reductions to our net operating loss carryforward and valuation allowance. The beginning gross deferred tax asset at July 1, 2017 of approximately $174.0 million will be revalued to approximately $117.0 million with a corresponding decrease to our valuation allowance. We will continue to analyze the Tax Act to assess the full effects on our financial results, including disclosures, for our fiscal year ending June 30, 2018.
Liquidity and Capital Resources
At December 31, 2017, we had $79.5 million in cash and cash equivalents and $24.5 million in short-term investments, for a total of $104.0 million. Refer to Note 9. Debt to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q for discussion of the Term Loan, the Revolving Credit Facility and our Convertible Notes outstanding as of December 31, 2017. Based on our current business plan and revenue prospects, we believe that we will have sufficient cash resources and anticipated cash flows to fund our operations for at least the next 12 months. In January 2018, we sold available-for-sale investments for proceeds of $23.9 million. In February 2018, we used the net proceeds of the Term Loan, combined with existing cash on hand, to repay the $13.0 outstanding principal amount of our 3.50% Convertible Notes, and agreed to pay a $0.3 million exchange premium in the form of shares of our common stock. We also repaid the $26.6 million outstanding principal amount of our 3.50% Series A Convertible Notes. Refer to Note 14. Subsequent Events to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q.
As of December 31, 2017, we had approximately $39.0 million of cash and cash equivalents in our foreign subsidiaries. If a portion of these funds were needed for and distributed to our operations in the United States, we have included all the accumulated post-1986 foreign earnings on which U.S. income tax is currently deferred to a one-time transition tax on December 31, 2017. Based on our reasonable efforts, we believe the amount of transition tax would not be material to us. There could be additional foreign taxes that would be due depending on the country from which the funds were repatriated.
Our cash flows for the six months ended December 31, 2017 and 2016 are summarized as follows (in thousands):
|
|
|
Six Months Ended |
| ||||
|
|
|
December 31, |
| ||||
|
|
|
2017 |
|
2016 |
| ||
|
Net cash used in operating activities |
|
$ |
(13,740 |
) |
$ |
(11,022 |
) |
|
Net cash (used in) provided by investing activities |
|
(1,917 |
) |
5,062 |
| ||
|
Net cash provided by (used in) financing activities |
|
11,708 |
|
(41,170 |
) | ||
|
Effect of exchange rate changes on cash, cash equivalents and restricted cash |
|
891 |
|
(3,646 |
) | ||
|
Net decrease in cash, cash equivalents and restricted cash |
|
$ |
(3,058 |
) |
$ |
(50,776 |
) |
Cash Flows from Operating Activities
Net cash used in operating activities was $13.7 million during the six months ended December 31, 2017, was primarily due to a net loss of $14.1 million and a net change in operating assets and liabilities of $17.5 million that was offset by non-cash items of $17.9 million.
· Non-cash items primarily consisted of stock-based compensation expense of $5.9 million, depreciation and amortization expense of $5.0 million, a loss on extinguishment of debt of $3.2 million, and non-cash interest expense on debt of $1.7 million;
· Net change in operating assets and liabilities was primarily due to an increase in inventories of $11.8 million to support anticipated product shipments in future periods, an increase in accounts receivable of $10.2 million due to the timing of revenue transactions in the second quarter of fiscal 2018, which collections are primarily expected in the third fiscal quarter of 2018, and a decrease in prepaid and other assets of $5.9 million, mostly due to the reclassification of unamortized debt issuance costs and decreases in long-term account receivables and VAT receivables.
Net cash used in operating activities was $11.0 million during the six months ended December 31, 2016, was primarily due to a net loss of $19.3 million and a net change in operating assets and liabilities of $10.3 million that was offset by non-cash items of $18.6 million. Non-cash items primarily consisted of depreciation and amortization expense of $9.3 million, and stock-based compensation expense of $6.4 million. The significant items in the change in operating assets and liabilities included a decrease in accrued liabilities of $3.4 million primarily related to a decrease in accrued interest due to our extinguishment of debt, a decrease in accrued severance, and a decrease in accrual for uncertain tax positions, together with an increase in inventory of $2.6 million to support anticipated future sales as well as an increase in accounts receivable of $14.2 million as a result of the timing of revenue collection.
Cash Flows from Investing Activities
Net cash used in investing activities was $2.0 million for the six months ended December 31, 2017, which was mostly due to the purchase of property and equipment.
Net cash provided by investing activities was $5.1 million for the six months ended December 31, 2016, which primarily consists of sales and maturities of investments of $23.2 million, offset by purchases of short-term investments of $15.0 million and purchases of property and equipment of $3.1 million.
Cash Flows from Financing Activities
Net cash provided by financing activities during the six months ended December 31, 2017 was $11.7 million, which was primarily due to $66.1 million of net debt proceeds related to the Term Loan and the 3.75% Convertible Notes, which was offset by $29.6 million for the repurchase of a portion of the outstanding principal amount of 3.50% Convertible Notes. In addition, there were $2.0 million in proceeds from employee stock purchase plans.
Net cash used in financing activities during the six months ended December 31, 2016 was $41.2 million, which consisted of $36.6 million in payments made to holders of our 3.75% Convertible Notes due August 2016 and $5.0 million early payment on the Secured Loan. In addition, there were $2.1 million in proceeds from employee stock plans, which was partially offset by $0.7 million in taxes paid related to net share settlements of equity awards.
Operating Capital and Capital Expenditure Requirements
Our future capital requirements depend on numerous factors. These factors include but are not limited to the following:
· The mechanism for our payment of our Notes;
· Revenue generated by sales of our products and service plans;
· Costs associated with our research and development, sales and marketing initiatives and manufacturing activities;
· Facilities, equipment and IT systems required to support current and future operations;
· Rate of progress and of our research and development activities;
· Costs of obtaining and maintaining FDA and other regulatory clearances of our products;
· Effects of competing technological and market developments; and
· Number and timing of acquisitions and other strategic transactions.
We believe that our current cash, cash equivalents and investments will be sufficient to meet our anticipated cash needs for working capital and capital expenditures for at least the next 12 months. If these sources of cash, cash equivalents and investments are insufficient to satisfy our liquidity requirements, we may seek to sell additional equity or debt securities or enter into additional credit facilities. The sale of additional equity or convertible debt securities could result in dilution to our stockholders. If additional funds are raised through the issuance of debt securities, these securities could have rights senior to those associated with our common stock and could contain covenants that would restrict our operations. Additional financing may not be available at all, or in amounts or on terms acceptable to us. If we are unable to obtain this additional financing, we may be required to reduce the scope of our planned product development and marketing efforts.
Contractual Obligations and Commitments
We presented our contractual obligations in our Annual Report on Form 10-K for the fiscal year ended June 30, 2017. As discussed in Note 9. Debt to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q, in December 2017, we borrowed $40 million under the Term Loan and used a portion of the net proceeds to repay a portion of our outstanding borrowings under the Revolving Credit Facility. Additionally, in August 2017, we exchanged and repurchased approximately $75.0 million in aggregate principal amount of the 3.50% Convertible Notes and 3.50% Series A Convertible Notes for $85.0 million in 3.75% Convertible Notes. Except for the change in debt obligations discussed above, there has been no material
changes outside of the ordinary course of business in those obligations during the six months ended December 31, 2017. However, in February 2018, we repaid in full the $13.0 outstanding principal amount of 3.50% Convertible Notes and the $26.6 million outstanding principal amount of 3.50% Series A Convertible Notes. Refer to Note 14. Subsequent Events to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q.
Off-Balance Sheet Arrangements
We did not have any off-balance sheet arrangements as of December 31, 2017.
Critical Accounting Policies and Estimates
The discussion and analysis of our financial condition and results of operations is based on our unaudited condensed consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these unaudited condensed consolidated financial statements requires management to make estimates and judgments that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements, as well as revenue and expenses during the reporting periods. We evaluate our estimates and judgments on an ongoing basis. We base our estimates on historical experience and on various other factors we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities. Actual results could therefore differ materially from those estimates if actual conditions differ from our assumptions.
During the three and six months ended December 31, 2017, we considered our estimated corporate bonus accrual to be a critical accounting estimate. Our bonus accrual for each quarter is based on our performance against defined metrics: net revenue, adjusted EBITDA and gross orders to backlog. There have been no changes to the critical accounting policies and estimates, as discussed in Part II, Item 7 of our Annual Report on Form 10-K for the year ended June 30, 2017, which we believe are those related to revenue recognition, assessment of recoverability of goodwill and intangible assets, valuation of inventories, share-based compensation expense, income taxes, allowance for doubtful accounts and loss contingencies.
Concentration of Credit and Other Risks
Our cash, cash equivalents and investments are deposited with several major financial institutions. At times, deposits in these institutions exceed the amount of insurance provided on such deposits. We have not experienced any losses in such accounts and do not believe that we are exposed to any significant risk of loss on these balances.
For the three and six months ended December 31, 2017 and 2016, there were no customers that represented 10% or more of total net revenue. As of December 31, 2017, no customer accounted for more than 10% of our total accounts receivable. Two customers accounted for 19% and 11%, respectively, of our total accounts receivable as of June 30, 2017.
We perform ongoing credit evaluations of our customers and maintain reserves for potential credit losses. Accounts receivable are deemed past due in accordance with the contractual terms of the agreement. Accounts receivable balances are charged against the allowance for doubtful accounts once collection efforts are unsuccessful.
Single-source suppliers presently provide us with several components. In most cases, if a supplier was unable to deliver these components, we believe that we would be able to find other sources for these components subject to any regulatory qualifications, if required.
Revenue Recognition
Our revenue is primarily derived from sales of CyberKnife and TomoTherapy Systems and services, which include post-contract customer support (“PCS”), installation services, training and other professional services. We record our revenue net of any value added or sales tax. In all sales arrangements, we recognize revenue when there is persuasive evidence of an arrangement, the fee is fixed or determinable, collection of the fee is reasonably assured and delivery has occurred. Payments received in advance of system shipment are recorded as customer advances and are recognized as revenue or deferred revenue upon product shipment or installation. We assess the probability of collection based on a number of factors, including past transaction history with the customer and credit-worthiness of the customer. We generally do not request collateral from our customers. If we determine that collection is not reasonably assured, we will defer the transaction fee and recognize revenue upon receipt of cash.
We frequently enter into sales arrangements that contain multiple elements or deliverables. For sale arrangements that contain multiple elements, we allocate the arrangement consideration to each element based on the relative selling price method, whereby the relative selling price of each deliverable is determined using vendor specific objective evidence (“VSOE”) of fair value, if it exists.
VSOE of fair value for each element is based on our standard rates charged for the product or service when such product or service is sold separately or based upon the price established by our pricing committee when that product or service is not yet being sold separately. When we are not able to establish VSOE for all deliverables in an arrangement with multiple elements, which may be due to infrequently selling each element separately, not pricing products within a narrow range, or only having a limited sales history, we attempt to estimate the selling price of each element based on third-party evidence of selling price (“TPE”), as determined based on competitors’ or third-party vendors’ prices for similar deliverables when sold separately. When we are not able to establish selling price using VSOE or TPE, we use our best estimate of selling price (“BESP”) in our allocation of arrangement consideration. The objective of BESP is to determine the price at which we would transact a sale if the product or service were sold on a stand-alone basis. We determine BESP for a product or service by considering multiple factors including, but not limited to, pricing practices, internal costs, geographies and gross margin. The determination of BESP is made through annual analysis of our pricing practices and adjusted if necessary.
We have certain software offerings, which are not required to deliver our systems’ essential functionality and can be sold separately. We account for the separate sale of our software products in accordance with the applicable guidance for software revenue recognition. Our multiple-element arrangements may also include software deliverables that are subject to the software revenue recognition guidance; and in these cases, the revenue for these multiple-element arrangements is allocated to the software deliverable and the non-software deliverables based on the relative selling prices of all of the deliverables in the arrangement using VSOE, TPE or BESP.
We regularly review VSOE, TPE and BESP for all of our products and services. As our go-to-market strategies and other factors change, we may modify our pricing practices in the future, which may impact the selling prices of systems and services as well as VSOE, TPE and BESP of systems and services. As a result, our future revenue recognition for multiple element arrangements could differ materially from that recorded in the current period.
Product Revenue
The majority of product revenue is generated from sales of CyberKnife and TomoTherapy Systems, including Radixact Systems. If we are responsible for installation, we recognize revenue after installation and acceptance of the system. Otherwise, revenue is generally recognized upon delivery, assuming all other revenue recognition criteria are met.
We could also sell our systems with PCS contracts, installation services, training, and at times, professional services. PCS contracts provide planned and corrective maintenance services, software updates, bug fixes, as well as call-center support.
We record revenue from sales of systems, product upgrades and accessories to distributors depending on the terms of the distribution agreement as well as terms and conditions executed for each sale, and once all revenue recognition criteria have been met.
Our agreements with customers and distributors for system sales generally do not contain product return rights. Certain distributor agreements include parts inventory buy-back provisions upon distributorship termination. We accrue an inventory buy-back liability when and if such distributorship termination is expected and the liability can be estimated.
Service Revenue
Service revenue is generated primarily from PCS contracts (warranty period services and post warranty services), installation services, training and professional services. Service revenue is recognized either ratably over the contractual period or when service is performed, depending on specific terms and conditions in agreements with customers.
Costs associated with service revenue are expensed when incurred, except when those costs are related to system upgrades purchased within a service contract. In those cases, the costs of such upgrades are recognized at the time the upgrade revenue is recognized.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
We do not utilize derivative financial instruments, derivative commodity instruments or other market risk sensitive instruments, positions or transactions.
Foreign Currency Exchange Rate Risk
A portion of our net sales are denominated in foreign currencies, most notably the Euro and the Japanese Yen. Future fluctuations in the value of the U.S. Dollar may affect the price competitiveness of our products outside the United States. For direct sales outside the United States, we sell in both U.S. Dollars and local currencies, which could expose us to additional foreign currency
risks, including changes in currency exchange rates. Our operating expenses in countries outside the United States are payable in foreign currencies and therefore expose us to currency risk. To the extent that management can predict the timing of payments under sales contracts or for operating expenses that are denominated in foreign currencies, we may engage in hedging transactions to mitigate such risks in the future. We expect the changes in the fair value of the net foreign currency assets arising from fluctuations in foreign currency exchange rates to be materially offset by the changes in the fair value of the forward contracts. As of December 31, 2017, we had no open forward contracts and all open positions had been settled.
The purpose of these forward contracts is to minimize the risk associated with foreign exchange rate fluctuations. We have developed a foreign exchange policy to govern our forward contracts. These foreign currency forward contracts do not qualify as cash flow hedges and all changes in fair value are reported in earnings as part of other expenses, net. We have not entered any other types of derivative financial instruments for trading or speculative purpose. Our foreign currency forward contract valuation inputs are based on quoted prices and quoted pricing intervals from public data and do not involve management judgment.
Interest Rate Risk
We maintain an investment portfolio of various holdings, types and maturities. These securities are generally classified as available for sale and consequently, are recorded on the balance sheet at fair value with unrealized gains and losses reported as a separate component of accumulated other comprehensive income. At any time, a sharp rise or decline in interest rates could have a material adverse impact on the fair value of our investment portfolio. Likewise, increases and decreases in interest rates could have a material impact on interest earnings for our portfolio. The following table presents the hypothetical change in fair values in the financial instruments we held at December 31, 2017, that are sensitive to changes in interest rates. The modeling technique measures the change in fair values arising from selected potential changes in interest rates on our investment portfolio, which had a fair value of $23.9 million at December 31, 2017. Market changes reflect immediate hypothetical parallel shifts in the yield curve of plus or minus 100, 75, 50 and 25 basis points (in thousands):
|
|
|
Decrease in interest rates |
|
Increase in interest rates |
| ||||||||||||||||||||
|
Change in interest rate |
|
-100 BPS |
|
-75 BPS |
|
-50 BPS |
|
-25 BPS |
|
25 BPS |
|
50 BPS |
|
75 BPS |
|
100 BPS |
| ||||||||
|
Unrealized gain (loss) |
|
$ |
136 |
|
$ |
102 |
|
$ |
68 |
|
$ |
34 |
|
$ |
(34 |
) |
$ |
(68 |
) |
$ |
(102 |
) |
$ |
(136 |
) |
Our debt obligations consist of a variety of financial instruments that expose us to interest rate risk, including, but not limited to the Credit Facilities and the Notes. The interest rates on the Notes are fixed and interest rate on the Credit Facilities are at variable rates, which are tied to a “prime rate” and LIBOR. As of December 31, 2017, borrowings under the Term Loan totaled $40.0 million with an annual interest rate of 6.75% plus 90-day LIBOR, and borrowings under the Revolving Credit Facility totaled $25.0 million with an annual interest rate of 4.50% plus 90-day LIBOR. If the amount outstanding under the Credit Facilities remained at this level for the next 12 months and interest rates increased or decreased by 50 basis point change, our annual interest expense would increase or decrease, respectively, approximately $0.3 million. Refer to Note 9. Debt to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q for a discussion regarding our debt obligations.
Equity Price Risk
On August 7, 2017, we issued approximately $85.0 million aggregate principal amount of 3.75% Convertible Notes. Upon conversion, we can settle the obligation by issuing our common stock, cash or a combination thereof at an initial conversion rate equal to 174.8252 shares of common stock per $1,000 principal amount of the 3.75% Convertible Notes, which is equivalent to a conversion price of approximately $5.72 per share of common stock, subject to adjustment. There is no equity price risk if the share price of our common stock is below $5.72 upon conversion of the 3.75% Convertible Notes. For every $1 that the share price of our common stock exceeds $5.72, we expect to issue an additional $14.9 million in cash or shares of our common stock, or a combination thereof, if all of the 3.75% Convertible Notes are converted.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow for timely decisions regarding required disclosure.
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2017. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that as of December 31, 2017 our disclosure controls and procedures were effective to provide reasonable assurance that the information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
Changes in Internal Control Over Financial Reporting
During the three months ended December 31, 2017, there was no change in our internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations of Internal Control Over Financial Reporting
Internal control over financial reporting cannot provide absolute assurance of achieving financial reporting objectives because of its inherent limitations. Internal control over financial reporting is a process that involves human diligence and compliance and is subject to lapses in judgment and breakdowns resulting from human failures. Internal control over financial reporting also can be circumvented by collusion or improper management override. Because of such limitations, there is a risk that material misstatements may not be prevented or detected on a timely basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting process. Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and in reaching a reasonable level of assurance, management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.
The information set forth in Note 8. Commitments and Contingencies—Litigation, to our unaudited condensed consolidated financial statements included in this Quarterly Report on Form 10-Q is incorporated herein by reference.
A description of the risk factors associated with our business is included under “Risk Factors” contained in Part I, Item 1A of our Annual Report on Form 10-K for the year ended June 30, 2017. The descriptions below include material changes to the risk factors affecting our business that were previously disclosed in such filing. Any risk factor included below supersedes the description of the relevant risk factor in such filing. Other than the items discussed below, there have been no material changes in our risk factors since such filing.
Our ability to achieve profitability depends in part on maintaining or increasing our gross margins on product sales and services, which we may not be able to achieve.
As of December 31, 2017, we had an accumulated deficit of $464.5 million. We may incur net losses in the future, particularly as we improve our selling and marketing activities. Our ability to achieve and sustain long-term profitability is largely dependent on our ability to successfully market and sell the CyberKnife and TomoTherapy Systems, maintaining or increasing our gross margins, control our costs and effectively manage our growth. We cannot assure you that we will be able to achieve profitability. In the event we fail to achieve profitability, our stock price could decline.
A number of factors may adversely impact our gross margins on product sales and services, including:
· lower than expected manufacturing yields of high cost components leading to increased manufacturing costs;
· low production volume, which will result in high levels of overhead cost per unit of production;
· the timing of revenue recognition and revenue deferrals;
· increased material or labor costs;
· increased service or warranty costs or the failure to reduce service or warranty costs;
· increased price competition;
· variation in the margins across products installed in a particular period; and
· how well we execute on our strategic and operating plans.
If we are unable to maintain or increase our gross margins on product sales and services, our results of operations could be adversely impacted, we may not achieve profitability and our stock price could decline.
Our operating results, including our quarterly orders, revenues and margins fluctuate from quarter to quarter and may be unpredictable, which may result in a decline in our stock price.
We have experienced and expect in the future to experience fluctuations in our operating results, including gross orders, revenue and margins, from period to period. Drivers of orders include the introduction and timing of new product or product enhancement announcements by us and our competitors, as well as changes or anticipated changes in third-party reimbursement amounts or policies applicable to treatments using our products. The availability of economic stimulus packages or other government funding, or reductions thereof, may also affect timing of customer purchases. Our products have a high unit price and require significant capital expenditures by our customers. Accordingly, we experience long sales and implementation cycles, which is of greater concern during the current volatile economic environment where we have had customers delaying or cancelling orders. When orders are placed, installation, delivery or shipping, as applicable, is accomplished and the revenue recognized affect our quarterly results. Further, because of the high unit price of the CyberKnife and TomoTherapy Systems and the relatively small number of units sold or installed each quarter, each sale or installation of a CyberKnife or TomoTherapy System can represent a significant percentage of our net orders, backlog or revenue for a particular quarter.
Once orders are received and booked into backlog, factors that may affect whether these orders become revenue (or are cancelled or deemed aged-out and reflected as a reduction in net orders) and the timing of revenue include:
· economic or political instability in foreign countries;
· delays in the customer obtaining funding or financing;
· delays in construction at the customer site and delays in installation;
· delays in the customer obtaining receipt of local or foreign regulatory approvals such as certificates of need in certain states or Class A user licenses in China;
· timing of when we are able to recognize revenue associated with sales of the CyberKnife and TomoTherapy Systems, which varies depending upon the terms of the applicable sales and service contracts; and
· the proportion of revenue attributable to orders placed by our distributors which may be more difficult to forecast due to factors outside our control.
Our operating results may also be affected by a number of other factors some of which are outside of our control, including:
· the proportion of revenue attributable to our legacy service plans;
· timing and level of expenditures associated with new product development activities;
· regulatory requirements in some states for a certificate of need prior to the installation of a radiation device or foreign regulatory approvals, such as Class A user licenses in China;
· delays in shipment, for example, due to unanticipated construction delays at customer locations where our products are to be installed, cancellations by customers, natural disasters or labor disturbances;
· delays in our manufacturing processes or unexpected manufacturing difficulties
· the timing of the announcement, introduction and delivery of new products or product upgrades by us and by our competitors;
· timing and level of expenditures associated with expansion of sales and marketing activities such as trade shows and our overall operations; and
· fluctuations in our gross margins and the factors that contribute to such fluctuations, as described in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of this Quarterly Report on Form 10-Q.
Because many of our operating expenses are based on anticipated sales and a high percentage of these expenses are fixed for the short term, a small variation in the timing of revenue recognition can cause significant variations in operating results from quarter to quarter. Our overall gross margins are impacted by a number of factors described in our risk factor entitled “Our ability to achieve profitability depends in part on maintaining or increasing our gross margins on product sales and services, which we may not be able to achieve.” If our financial results fall below the expectation of securities analysts and investors, the trading price of our common stock would almost certainly decline.
We report on a quarterly and annual basis our orders and backlog. Unlike revenues, orders and backlog are not defined by U.S. GAAP, and are not within the scope of the audit conducted by our independent registered public accounting firm. Also, for the reasons discussed in Management’s Discussion and Analysis of Financial Condition and Results of Operations, our orders and backlog cannot necessarily be relied upon as accurate predictors of future revenues. Order cancellation or significant delays in installation date will reduce our backlog and future revenues, and we cannot predict if or when orders will mature into revenues. Particularly high levels of cancellations or age-outs in one or more periods may cause our revenue and gross margins to decline in current or future periods and will make it difficult to compare our operating results from quarter to quarter.
As a strategy to assist our sales efforts, we may offer extended payment terms, which may potentially result in higher Days Sales Outstanding and greater payment defaults.
We offer longer or extended payment terms for qualified customers in some circumstances. As of December 31, 2017, customer contracts with extended payment terms of more than one year amounted to approximately 9% of our total accounts receivable balance. While we qualify customers to whom we offer longer or extended payment terms, their financial positions may change adversely over the longer time period given for payment. This may result in an increase in payment defaults, which would affect our revenue, as we recognize revenue on such transactions on a cash basis.
Our liquidity could be adversely impacted by adverse conditions in the financial markets.
At December 31, 2017, we had $79.5 million in cash and cash equivalents and $24.5 million in investments. The available cash and cash equivalents are held in accounts managed by third-party financial institutions and consist of cash in our operating accounts and cash invested in money market funds. The investments are managed by third-party financial institutions and primarily consist of U.S. agency and corporate debt securities. To date, we have experienced no material realized losses on or lack of access to our invested cash, cash equivalents or investments; however, we can provide no assurances that access to our invested cash and cash equivalents will not be impacted by adverse conditions in the financial markets.
At any point in time, we also have funds in our operating accounts that are with third-party financial institutions that exceed the Federal Deposit Insurance Corporation (FDIC) insurance limits. While we monitor daily the cash balances in our operating accounts and adjust the cash balances as appropriate, these cash balances could be impacted if the underlying financial institutions fail or become subject to other adverse conditions in the financial markets. To date, we have experienced no loss or lack of access to cash in our operating accounts.
We have outstanding indebtedness in the form of our Convertible Notes, Revolving Credit Facility and Term Loan and may incur other debt in the future, which may adversely affect our financial condition and future financial results.
In February 2013, we issued $115.0 million aggregate principal amount of our 3.50% Convertible Senior Notes due February 1, 2018 (the “3.50% Convertible Notes”). In August 2017, we issued $85.0 million aggregate principal amount of our 3.75% Convertible Senior Notes due 2022 (the “3.75% Convertible Notes,” and collectively with the Existing 3.50% Convertible Notes as defined below, the “Convertible Notes”). As the debt matures, we will have to expend significant resources to either repay or refinance the Convertible Notes. For example, in in April 2014, we issued approximately $70.3 million aggregate principal amount of 3.50% Series A Convertible Senior Notes due February 1, 2018 (the “3.50% Series A Convertible Notes”, and collectively with the 3.50% Convertible Notes, the “Existing 3.50% Convertible Notes”) and paid approximately $0.4 million in cash to refinance approximately $70.3 million aggregate principal amount of our 3.50% Convertible Notes. Additionally, in August 2017, we (i) exchanged
approximately $47.0 million aggregate principal amount of 3.50% Convertible Notes for $53.0 million aggregate principal amount of 3.75% Convertible Notes and (ii) repurchased approximately $28.0 million of Existing 3.50% Convertible Notes. If we decide to further refinance the Convertible Notes in the future, we may be required to do so on different or less favorable terms or we may be unable to refinance the Convertible Notes at all, both of which may adversely affect our financial condition.
In June 2017, we entered into a credit and security agreement that provided us with an initial revolving credit facility (the “Revolving Credit Facility”) of $52.0 million, which was amended in December 2017 to reduce the Revolving Credit Facility to $32.0 million. In December 2017, we also entered into a credit and security agreement that provides for an initial term loan of $40.0 million with an additional tranche of $20.0 million if specified conditions are met on or prior to December 31, 2018 (the “Term Loan” and, together with the Revolving Credit Facility, the “Credit Facilities”).
As of December 31, 2017, we had total consolidated liabilities of approximately $364.8 million; including the short-term liability components of the 3.50% Convertible Notes of $13.0 million and the 3.50% Series A Convertible Notes of $26.5 million, the long-term liability components of the 3.75% Convertible Notes of $67.8 million, the Revolving Credit Facility of $25.0 million and the Term Loan of $37.6 million. Following December 31, 2017, we repaid in full the remaining outstanding principal amount of our 3.50% Convertible Notes and 3.50% Series A Convertible Notes. Our existing and future levels of indebtedness could have important consequences to stockholders and note holders and may adversely affect our financial conditions and future financial results by, among other things:
· affecting our ability to satisfy our obligations under the Convertible Notes and Credit Facilities;
· requiring a substantial portion of our cash flows from operations will have to be dedicated to interest and principal payments and may not be available for operations, working capital, capital expenditures, expansion, acquisitions or general corporate or other purposes;
· impairing our ability to obtain additional financing in the future;
· limiting our flexibility in planning for, or reacting to, changes in our business and industry; and
· increasing our vulnerability to downturns in our business, our industry or the economy in general.
The credit and security agreements governing the Credit Facilities also includes certain restrictive covenants that limit, among other things, the ability of the Company and its subsidiaries to (i) incur indebtedness, (ii) incur liens on their property, (iii) pay dividends or make other distributions, (iv) sell their assets, (v) make certain loans or investments, (vi) merge or consolidate, (vii) voluntarily repay or prepay certain indebtedness and (viii) enter into transactions with affiliates, in each case subject to certain exceptions. In addition, the such agreements require us to meet certain financial covenants, including a “Fixed Charge Coverage Ratio” and minimum consolidated “Net Revenue,” both as defined in the applicable credit and security agreement governing the Credit Facilities. These restrictions could adversely affect our ability to finance our future operations or capital needs, withstand a future downturn in our business or the economy in general, engage in business activities, including future opportunities that may be in our interest, and plan for or react to market conditions or otherwise execute our business strategies. Our ability to comply with the covenants and other terms governing the Credit Facilities will depend in part on our future operating performance. If we fail to comply with such covenants and terms, we may be in default and the maturity of the related debt could be accelerated and become immediately due and payable. In addition, because our assets are pledged as a security under the Credit Facilities, if we are not able to cure any default or repay outstanding borrowings, our assets are subject to the risk of foreclosure by our lenders. From time to time to we may not be in compliance with such covenants or other terms governing the Credit Facilities and we may be required to obtain waivers or amendments to the applicable credit and security agreement from our lenders in order to maintain compliance and there can be no certainty that any such waiver or amendment will be available, or what the cost of such waiver or amendment, if obtained, would be. If we are unable to obtain necessary waivers and the debt under such credit facility is accelerated, we would be required to obtain replacement financing at prevailing market rates. Additionally, a default on indebtedness could result in a default under the terms of the indentures governing our Convertible Notes. There is no guarantee that we would be able to satisfy our obligations if any of our indebtedness is accelerated.
Our ability to raise capital in the future may be limited, and our failure to raise capital when needed could prevent us from executing our growth strategy.
While we believe that our existing cash, cash equivalents and investments will be sufficient to meet our anticipated cash needs for at least the next twelve months, the timing and amount of our working capital and capital expenditure requirements may vary significantly depending on numerous factors, including the other risk factors described in this Quarterly Report on Form 10-Q and our Annual Report on Form 10-K for the year ended June 30, 2017.
If our capital resources are insufficient to satisfy our liquidity requirements, we may seek to sell additional equity securities or debt securities or obtain other debt financing, which could be difficult or impossible in the current economic and capital markets environments. If we are unable to access capital on satisfactory terms and conditions, we may not be able to expand our business or meet our payment requirements under the Credit Facilities. Our ability to obtain new or additional financing will depend on a variety of factors, many of which are beyond our control. We may not be able to obtain new or additional financing because we have substantial debt or because we may not have sufficient cash flow to service or repay our existing or future debt. The sale of additional equity securities or convertible debt securities would result in additional dilution to our stockholders. In addition, depending on market conditions and our financial performance, neither debt nor equity financing may be available in amounts or on terms acceptable to us, if at all.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Not applicable.
None.
|
Exhibit |
|
|
|
Incorporated by Reference |
|
Filed | ||||||
|
No. |
|
Exhibit Description |
|
Form |
|
File No. |
|
Exhibit |
|
Filing Date |
|
Herewith |
|
4.1 |
|
|
8-K |
|
001-33301 |
|
4.1 |
|
12/04/17 |
|
| |
|
10.1‡ |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
10.2‡ |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
10.3** |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
10.4** |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
10.5** |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
10.6** |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
10.7** |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
31.1 |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
31.2 |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
32.1* |
|
|
— |
|
— |
|
— |
|
— |
|
X | |
|
101.INS |
|
XBRL Instance Document |
|
|
|
|
|
|
|
|
|
X |
|
101.SCH |
|
XBRL Taxonomy Extension Schema Document |
|
|
|
|
|
|
|
|
|
X |
|
101.CAL |
|
XBRL Taxonomy Extension Calculation Linkbase Document |
|
|
|
|
|
|
|
|
|
X |
|
Exhibit |
|
|
|
Incorporated by Reference |
|
Filed | ||||||
|
No. |
|
Exhibit Description |
|
Form |
|
File No. |
|
Exhibit |
|
Filing Date |
|
Herewith |
|
101.DEF |
|
XBRL Taxonomy Extension Definition Linkbase Document |
|
|
|
|
|
|
|
|
|
X |
|
101.LAB |
|
XBRL Taxonomy Extension Label Linkbase Document |
|
|
|
|
|
|
|
|
|
X |
|
101.PRE |
|
XBRL Taxonomy Extension Presentation Linkbase Document |
|
|
|
|
|
|
|
|
|
X |
*The certification attached as Exhibit 32.1 that accompanies this Quarterly Report on Form 10-Q is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Accuray Incorporated under the Securities Act or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Quarterly Report on Form 10-Q, irrespective of any general incorporation language contained in such filing.
**Management contract or compensatory plan or arrangement.
‡Portions of the exhibit have been omitted pursuant to a request for confidential treatment. The omitted information has been filed separately with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
ACCURAY INCORPORATED | |
|
|
| |
|
Date: February 2, 2018 |
| |
|
|
By: |
/s/ Joshua H. Levine |
|
|
|
Joshua H. Levine |
|
|
|
President and Chief Executive Officer |
|
|
|
(Principal Executive Officer) |
|
|
| |
|
|
| |
|
|
By: |
/s/ Kevin M. Waters |
|
|
|
Kevin M. Waters |
|
|
|
Senior Vice President, Chief Financial Officer |
|
|
|
(Principal Financial Officer) |
ASTERISKS INDICATE THAT CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.
CREDIT AND SECURITY AGREEMENT
dated as of December 15, 2017
by and among
ACCURAY INCORPORATED and TOMOTHERAPY INCORPORATED
each as a Borrower, and collectively as Borrowers,
and
MIDCAP FINANCIAL TRUST,
as Agent and as a Lender,
and
THE ADDITIONAL LENDERS
FROM TIME TO TIME PARTY HERETO
TABLE OF CONTENTS
|
|
|
Page |
|
|
|
|
|
ARTICLE 1 |
DEFINITIONS |
1 |
|
|
|
|
|
Section 1.1 |
Certain Defined Terms |
1 |
|
Section 1.2 |
Accounting Terms and Determinations |
33 |
|
Section 1.3 |
Other Definitional and Interpretive Provisions |
34 |
|
Section 1.4 |
Time is of the Essence |
34 |
|
|
|
|
|
ARTICLE 2 |
LOANS |
34 |
|
|
|
|
|
Section 2.1 |
Loans |
34 |
|
Section 2.2 |
Interest, Interest Calculations and Certain Fees |
38 |
|
Section 2.3 |
Notes |
40 |
|
Section 2.4 |
Reserved |
40 |
|
Section 2.5 |
Reserved |
40 |
|
Section 2.6 |
General Provisions Regarding Payment; Loan Account |
40 |
|
Section 2.7 |
Maximum Interest |
41 |
|
Section 2.8 |
Taxes; Capital Adequacy |
41 |
|
Section 2.9 |
Appointment of Borrower Representative |
45 |
|
Section 2.10 |
Joint and Several Liability; Rights of Contribution; Subordination and Subrogation |
45 |
|
Section 2.11 |
Reserved |
48 |
|
Section 2.12 |
Termination; Restriction on Termination |
48 |
|
|
|
|
|
ARTICLE 3 |
REPRESENTATIONS AND WARRANTIES |
49 |
|
|
|
|
|
Section 3.1 |
Existence and Power |
49 |
|
Section 3.2 |
Organization and Governmental Authorization; No Contravention |
49 |
|
Section 3.3 |
Binding Effect |
49 |
|
Section 3.4 |
Capitalization |
50 |
|
Section 3.5 |
Financial Information |
50 |
|
Section 3.6 |
Litigation |
50 |
|
Section 3.7 |
Ownership of Property |
50 |
|
Section 3.8 |
No Default |
50 |
|
Section 3.9 |
Labor Matters |
50 |
|
Section 3.10 |
Regulated Entities |
51 |
|
Section 3.11 |
Margin Regulations |
51 |
|
Section 3.12 |
Compliance With Laws; Anti-Terrorism Laws |
51 |
|
Section 3.13 |
Taxes |
51 |
|
Section 3.14 |
Compliance with ERISA |
52 |
|
Section 3.15 |
Consummation of Operative Documents; Brokers |
52 |
|
Section 3.16 |
Related Transactions |
53 |
|
Section 3.17 |
Material Contracts |
53 |
|
Section 3.18 |
Compliance with Environmental Requirements; No Hazardous Materials |
53 |
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
|
Section 3.19 |
Intellectual Property |
54 |
|
Section 3.20 |
Solvency |
54 |
|
Section 3.21 |
Full Disclosure |
54 |
|
Section 3.22 |
Reserved |
55 |
|
Section 3.23 |
Subsidiaries |
55 |
|
Section 3.24 |
Reserved |
55 |
|
Section 3.25 |
Regulatory Matters |
55 |
|
|
|
|
|
ARTICLE 4 |
AFFIRMATIVE COVENANTS |
57 |
|
|
|
|
|
Section 4.1 |
Financial Statements and Other Reports |
58 |
|
Section 4.2 |
Payment and Performance of Obligations |
58 |
|
Section 4.3 |
Maintenance of Existence |
59 |
|
Section 4.4 |
Maintenance of Property; Insurance |
59 |
|
Section 4.5 |
Compliance with Laws and Material Contracts |
60 |
|
Section 4.6 |
Inspection of Property, Books and Records |
61 |
|
Section 4.7 |
Use of Proceeds |
61 |
|
Section 4.8 |
Excess Cash |
61 |
|
Section 4.9 |
Notices of Litigation and Defaults |
61 |
|
Section 4.10 |
Hazardous Materials; Remediation |
62 |
|
Section 4.11 |
Further Assurances |
62 |
|
Section 4.12 |
Power of Attorney |
64 |
|
Section 4.13 |
Reserved |
64 |
|
Section 4.14 |
Schedule Updates |
64 |
|
Section 4.15 |
Intellectual Property and Licensing |
64 |
|
|
|
|
|
ARTICLE 5 |
NEGATIVE COVENANTS |
66 |
|
|
|
|
|
Section 5.1 |
Debt; Contingent Obligations |
66 |
|
Section 5.2 |
Liens |
66 |
|
Section 5.3 |
Distributions |
66 |
|
Section 5.4 |
Restrictive Agreements |
66 |
|
Section 5.5 |
Payments and Modifications of Subordinated Debt |
67 |
|
Section 5.6 |
Consolidations, Mergers and Sales of Assets; Change in Control |
67 |
|
Section 5.7 |
Purchase of Assets, Investments |
67 |
|
Section 5.8 |
Transactions with Affiliates |
68 |
|
Section 5.9 |
Modification of Organizational Documents |
68 |
|
Section 5.10 |
Modification of Certain Agreements |
68 |
|
Section 5.11 |
Conduct of Business |
68 |
|
Section 5.12 |
Reserved |
68 |
|
Section 5.13 |
Limitation on Sale and Leaseback Transactions |
68 |
|
Section 5.14 |
Deposit Accounts and Securities Accounts; Payroll and Benefits Accounts |
69 |
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
|
Section 5.15 |
Compliance with Anti-Terrorism Laws |
69 |
|
Section 5.16 |
Transfers to Subsidiaries |
69 |
|
Section 5.17 |
Limitations on Morphormics, Inc. |
69 |
|
|
|
|
|
ARTICLE 6 |
FINANCIAL COVENANTS |
70 |
|
|
|
|
|
Section 6.1 |
Additional Defined Terms |
70 |
|
Section 6.2 |
Fixed Charge Coverage Ratio |
70 |
|
Section 6.3 |
Minimum Net Revenue |
70 |
|
Section 6.4 |
Evidence of Compliance |
70 |
|
|
|
|
|
ARTICLE 7 |
CONDITIONS |
70 |
|
|
|
|
|
Section 7.1 |
Conditions to Closing |
70 |
|
Section 7.2 |
Conditions to Each Loan |
71 |
|
Section 7.3 |
Searches |
72 |
|
Section 7.4 |
Post-Closing Requirements |
72 |
|
|
|
|
|
ARTICLE 8 |
RESERVED |
72 |
|
|
|
|
|
ARTICLE 9 |
SECURITY AGREEMENT |
72 |
|
|
|
|
|
Section 9.1 |
Generally |
72 |
|
Section 9.2 |
Representations and Warranties and Covenants Relating to Collateral |
72 |
|
|
|
|
|
ARTICLE 10 |
EVENTS OF DEFAULT |
76 |
|
|
|
|
|
Section 10.1 |
Events of Default |
76 |
|
Section 10.2 |
Acceleration and Suspension or Termination of Term Loan Commitment |
79 |
|
Section 10.3 |
UCC Remedies |
79 |
|
Section 10.4 |
Reserved |
81 |
|
Section 10.5 |
Default Rate of Interest |
82 |
|
Section 10.6 |
Setoff Rights |
82 |
|
Section 10.7 |
Application of Proceeds |
82 |
|
Section 10.8 |
Waivers |
83 |
|
Section 10.9 |
Injunctive Relief |
85 |
|
Section 10.10 |
Marshalling; Payments Set Aside |
85 |
|
Section 10.11 |
Cure Right |
85 |
|
|
|
|
|
ARTICLE 11 |
AGENT |
86 |
|
|
|
|
|
Section 11.1 |
Appointment and Authorization |
86 |
|
Section 11.2 |
Agent and Affiliates |
86 |
|
Section 11.3 |
Action by Agent |
86 |
|
Section 11.4 |
Consultation with Experts |
87 |
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
|
Section 11.5 |
Liability of Agent |
87 |
|
Section 11.6 |
Indemnification |
87 |
|
Section 11.7 |
Right to Request and Act on Instructions |
87 |
|
Section 11.8 |
Credit Decision |
88 |
|
Section 11.9 |
Collateral Matters |
88 |
|
Section 11.10 |
Agency for Perfection |
88 |
|
Section 11.11 |
Notice of Default |
89 |
|
Section 11.12 |
Assignment by Agent; Resignation of Agent; Successor Agent |
89 |
|
Section 11.13 |
Payment and Sharing of Payment |
90 |
|
Section 11.14 |
Right to Perform, Preserve and Protect |
91 |
|
Section 11.15 |
Additional Titled Agents |
91 |
|
Section 11.16 |
Amendments and Waivers |
91 |
|
Section 11.17 |
Assignments and Participations |
93 |
|
Section 11.18 |
Funding and Settlement Provisions Applicable When Non-Funding Lenders Exist |
96 |
|
Section 11.19 |
Buy-Out Upon Refinancing |
96 |
|
|
|
|
|
ARTICLE 12 |
MISCELLANEOUS |
97 |
|
|
|
|
|
Section 12.1 |
Survival |
97 |
|
Section 12.2 |
No Waivers |
97 |
|
Section 12.3 |
Notices |
97 |
|
Section 12.4 |
Severability |
98 |
|
Section 12.5 |
Headings |
98 |
|
Section 12.6 |
Confidentiality |
98 |
|
Section 12.7 |
Waiver of Consequential and Other Damages |
99 |
|
Section 12.8 |
GOVERNING LAW; SUBMISSION TO JURISDICTION |
99 |
|
Section 12.9 |
WAIVER OF JURY TRIAL |
100 |
|
Section 12.10 |
Publication; Advertisement |
101 |
|
Section 12.11 |
Counterparts; Integration |
101 |
|
Section 12.12 |
No Strict Construction |
101 |
|
Section 12.13 |
Lender Approvals |
101 |
|
Section 12.14 |
Expenses; Indemnity |
102 |
|
Section 12.15 |
Reserved |
103 |
|
Section 12.16 |
Reinstatement |
103 |
|
Section 12.17 |
Successors and Assigns |
104 |
|
Section 12.18 |
USA PATRIOT Act Notification |
104 |
|
Section 12.19 |
Cross Default and Cross Collateralization |
104 |
ANNEXES, EXHIBITS AND SCHEDULES
ANNEXES
|
Annex A |
— |
Commitment Annex |
EXHIBITS
|
Exhibit A |
— |
Reserved |
|
Exhibit B |
— |
Form of Compliance Certificate |
|
Exhibit C |
— |
Reserved |
|
Exhibit D |
— |
Form of Notice of Borrowing |
|
Exhibit E |
— |
Payment Notification |
SCHEDULES
|
Schedule 2.1 |
— |
Scheduled Principal Payments for Term Loan |
|
Schedule 3.1 |
— |
Existence, Organizational ID Numbers, Foreign Qualification, Prior Names |
|
Schedule 3.4 |
— |
Capitalization |
|
Schedule 3.6 |
— |
Litigation |
|
Schedule 3.15 |
— |
Brokers |
|
Schedule 3.17 |
— |
Material Contracts |
|
Schedule 3.18 |
— |
Environmental Compliance |
|
Schedule 3.19 |
— |
Intellectual Property |
|
Schedule 4.9 |
— |
Litigation, Governmental Proceedings and Other Notice Events |
|
Schedule 5.1 |
— |
Debt; Contingent Obligations |
|
Schedule 5.2 |
— |
Liens |
|
Schedule 5.7 |
— |
Permitted Investments |
|
Schedule 5.8 |
— |
Affiliate Transactions |
|
Schedule 5.14 |
— |
Deposit Accounts and Securities Accounts |
|
Schedule 7.4 |
— |
Post-Closing Requirements |
|
Schedule 9.1 |
— |
Collateral |
|
Schedule 9.2 |
— |
Location of Collateral |
CREDIT AND SECURITY AGREEMENT
THIS CREDIT AND SECURITY AGREEMENT (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Agreement”) is dated as of December 15, 2017 by and among ACCURAY INCORPORATED, a Delaware corporation (“Accuray” or “Borrower Representative”), TOMOTHERAPY INCORPORATED, a Wisconsin corporation, and any additional borrower that may hereafter be added to this Agreement (collectively, “Other Borrowers” and, together with Borrower Representative, each individually as a “Borrower”, and collectively as “Borrowers”), MIDCAP FINANCIAL TRUST, a Delaware statutory trust, individually as a Lender, and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender.
RECITALS
Borrowers have requested that Lenders make available to Borrowers the financing facilities as described herein. Lenders are willing to extend such credit to Borrowers under the terms and conditions herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Borrowers, Lenders and Agent agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Defined Terms. The following terms have the following meanings:
“2018 Convertible Notes” means, collectively, (a) the 3.50% Convertible Senior Notes due February 1, 2018, issued pursuant to the Indenture, dated as of February 13, 2013, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $115 million (of which $13,000,000 is outstanding as of the Closing Date), and (b) the 3.50% Series A Convertible Senior Notes due February 1, 2018 issued pursuant to the Indenture, dated as of April 24, 2014, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of approximately $70.3 million (of which $26,600,000 is outstanding as of the Closing Date).
“2018 Specified Amendment” has the meaning set forth in Section 5.5.
“2022 Convertible Notes” means, (a) the 3.75% Convertible Senior Notes due July 15, 2022, issued pursuant to the Indenture, dated as of August 7, 2017, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $85 million (of which $85,000,000 is outstanding as of the Closing Date), and (b) any Permitted Refinancing Debt of (a).
“Acceleration Event” means the occurrence of an Event of Default (a) in respect of which Agent has declared all or any portion of the Obligations to be immediately due and payable pursuant to Section 10.2, (b) pursuant to Section 10.1(a), and in respect of which Agent has suspended or terminated the Term Loan Commitment pursuant to Section 10.2, and/or (c) pursuant to either Section 10.1(e) and/or Section 10.1(f).
“Access Agreement Location” has the meaning set forth in Section 4.11(c).
“Account Debtor” means “account debtor”, as defined in Article 9 of the UCC, and any other obligor in respect of an Account.
“Accounts” means, collectively, (a) any right to payment of a monetary obligation, whether or not earned by performance and (b) without duplication, any “account” (as defined in the UCC), any accounts receivable (whether in the form of payments for services rendered or goods sold, rents, license fees or otherwise), any “health-care-insurance receivables” (as defined in the UCC), any “payment intangibles” (as defined in the UCC) and all other rights to payment and/or reimbursement of every kind and description, whether or not earned by performance.
“Acquisition” has the meaning set forth in the definition of “Permitted Acquisition”.
“Acquisition Consideration” has the meaning set forth in the definition of “Permitted Acquisition”.
“Affected Lender” has the meaning set forth in Section 11.17(c).
“Affiliate” means, with respect to any Person, (a) any Person that directly or indirectly controls such Person and (b) any Person which is controlled by or is under common control with such controlling Person.”
“Affiliated Credit Agreement” that certain Credit and Security Agreement (as the same may be amended, restated, supplemented or otherwise modified from time to time) dated as of June 14, 2017, among MidCap Funding IV Trust (together with its successors and assigns), as Agent and a lender, the other lenders party thereto and Borrowers pursuant to which such Agent and lenders have extended a revolving credit facility to Borrowers.
“Affiliated Financing Agent” means the “Agent” under and as defined in the Affiliated Credit Agreement.
“Affiliated Financing Documents” means the “Financing Documents” as defined in the Affiliated Credit Agreement.
“Affiliated Intercreditor Agreement” means that certain Intercreditor Agreement dated as of the date hereof between Agent and the Affiliated Financing Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Affiliated Obligations” means all “Obligations”, as such term is defined in the Affiliated Financing Documents.
“Agent” means MCF, in its capacity as administrative agent for itself and for Lenders hereunder, as such capacity is established in, and subject to the provisions of, Article 11, and the successors and assigns of MCF in such capacity.
“Anti-Terrorism Laws” means any Laws relating to terrorism or money laundering, including, without limitation, Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by OFAC.
“Applicable Margin” means with respect to Term Loans and all other Obligations six and three-quarters percent (6.75%).
“Approved Fund” means any (a) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the Ordinary Course of Business, or (b) any Person (other than a natural person) which temporarily warehouses loans for any Lender or any entity described in the preceding clause (a) and that, with respect to each of the preceding clauses (a) and (b), is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender, or (iii) a Person (other than a natural person) or an Affiliate of a Person (other than a natural person) that administers or manages a Lender. Notwithstanding the foregoing, in no event shall any Person that is an Excluded Person constitute an Approved Fund.
“Asset Disposition” means any sale, lease, license, transfer, assignment or other consensual disposition by any Credit Party of any asset.
“Assignment Agreement” means an assignment agreement in form and substance acceptable to Agent.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as the same may be amended, modified or supplemented from time to time, and any successor statute thereto.
“Base LIBOR Rate” means, for each Interest Period, the rate per annum, determined by Agent in accordance with its customary procedures, and utilizing such electronic or other quotation sources as it considers appropriate (rounded upwards, if necessary, to the next 1/100%), to be the rate at which Dollar deposits (for delivery on the first day of such Interest Period or, if such day is not a Business Day on the preceding Business Day) in the amount of $1,000,000 are offered to major banks in the London interbank market on or about 11:00 a.m. (Eastern time) two (2) Business Days prior to the first day of each calendar month, for a term comparable to such Interest Period, which determination shall be conclusive in the absence of manifest error.
“Base Rate” means the per annum rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate,” with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate; provided, however, that Agent may, upon prior written notice to Borrower, choose a reasonably comparable index or source to use as the basis for the Base Rate.
“Blocked Person” means any Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, including any Person that is, or is owned 50% or more by any Person(s) that are, named on any OFAC Lists.
“Bona Fide Lending Affiliate” shall mean any bona fide debt fund, investment vehicle, regulated banking entity or non-regulated lending entity (in each case, other than a Person that is excluded pursuant to clause (a)(i) of the definition of Excluded Person) that is (a) primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and (b) managed, sponsored or advised by any person that is controlling, controlled by or under common control with a Competitor or Affiliate thereof, as applicable, but only to the extent that no personnel involved with the investment in such Competitor or Affiliate thereof, as applicable, (i) makes (or has the right to make or participate with others in making) investment decisions on behalf of such debt fund, investment vehicle, regulated banking entity or non-regulated lending entity or (ii) has access to any information (other than information that is publicly available) relating to the Credit Parties’ business.
“Borrower” and “Borrowers” mean the entity(ies) described in the first paragraph of this Agreement and each of their successors and permitted assigns.
“Borrower Representative” means Accuray, in its capacity as Borrower Representative pursuant to the provisions of Section 2.9, or any successor Borrower Representative selected by Borrowers and approved by Agent.
“Business Day” means any day except a Saturday, Sunday or other day on which either the New York Stock Exchange is closed, or on which commercial banks in Washington, DC and New York City are authorized by law to close.
“Capital Expenditures” means, for any period, the aggregate of all expenditures during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property or equipment” or similar items reflected in the financial statements of Accuray and its Consolidated Subsidiaries for such period.
“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six (6) months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Moody’s or A-1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are
secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; (f) marketable tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within 270 days from the date of acquisition thereof; (g) in the case of any Foreign Subsidiary, cash and cash equivalents that are substantially equivalent in such jurisdiction to those described in clauses (a) through (f) above in respect of each country that is a member of the Organization for Economic Co-operation and Development, and (h) any other security meeting the requirements set forth in Borrower Representative’s Investment Policy as provided to Agent prior to the Closing Date.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. § 9601 et seq., as the same may be amended from time to time.
“CFC” means a “controlled foreign corporation” as defined in Section 957 of the Code.
“Change in Control” means any of the following events: (a) any Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of, or shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of or control over, voting stock of Accuray (or other securities convertible into such voting stock) representing 40% or more of the combined voting power of all voting stock of Accuray or (b) Accuray ceases to own, directly or indirectly, 100% (or such lesser portion as may be owned by Accuray as of the date hereof) of the capital stock of any Borrower (with the exception of any Borrower permitted to be sold, dissolved or merged to the extent otherwise permitted by this Agreement); or (c) the occurrence of any “Change of Control”, “Change in Control”, or terms of similar import under any document or instrument governing or relating to Debt of or equity in such Person having a principal amount in excess of $10,000,000. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934.
“Chattel Paper” means “chattel paper”, as defined in Article 9 of the UCC.
“Chicago Premises” means the location located at 11601 W. Touhy Avenue Suite 893, Unit 2, Chicago, IL 60666 at which Collateral is stored.
“Closing Date” means the date of this Agreement.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means all property, now existing or hereafter acquired, mortgaged or pledged to, or purported to be subjected to a Lien in favor of, Agent, for the benefit of Agent and Lenders, pursuant to this Agreement and the Security Documents, including all of the property described in Schedule 9.1 hereto; provided that the Collateral shall not include any Excluded Property.
“Commitment Annex” means Annex A to this Agreement.
“Commitment Expiry Date” means the date that is five (5) years following the Closing Date (the “Stated Commitment Expiry Date”); provided, however, that if, as of the Early Maturity Date with respect to any series of notes included as Convertible Notes Debt (collectively, “Convertible Notes”), a Convertible Notes Event with respect to such series of Convertible Notes has not occurred, then the Commitment Expiry Date shall be the Early Maturity Date with respect to such series of Convertible Notes (the occurrence of the event described in this proviso, an “Early Maturity Event”); provided further, however, that if a Convertible Notes Event with respect to all of such series of Convertible Notes has not occurred prior to the Early Maturity Date with respect to such series of Convertible Notes, but as of such Early Maturity Date with respect to such series of Convertible Notes the Liquidity Condition is satisfied with respect to the portion of such series that is not subject to a Convertible Notes Event, then (a) an Early Maturity Event shall not occur and (b) the Commitment Expiry Date shall continue to be the Stated Commitment Expiry Date unless, as of any time (the date on which such time occurs, the “Accelerated Commitment Expiry Date”) on or after the Early Maturity Date with respect to such series of Convertible Notes when a Convertible Notes Event with respect to such series of Convertible Notes has not occurred, (y) the Liquidity Condition with respect to such series of Convertible Notes is not satisfied, in which event the Commitment Expiry Date shall be the Accelerated Commitment Expiry Date or (z) an Early Maturity Event occurs with respect to any other series of Convertible Notes and Borrowers have not caused the Commitment Expiry Date to remain the Stated Commitment Expiry Date in accordance with the second proviso of this definition.
“Competitor” means any Person that is an operating company directly and primarily engaged in the business of developing, manufacturing and servicing radiation oncology devices.
“Compliance Certificate” means a certificate, duly executed by a Responsible Officer of Borrower Representative, appropriately completed and substantially in the form of Exhibit B hereto.
“Consolidated Subsidiary” means, at any date, any Subsidiary the accounts of which would be consolidated with those of “parent” Borrower (or any other Person, as the context may require hereunder) in its consolidated financial statements if such statements were prepared as of such date.
“Contingent Obligation” means, with respect to any Person, any direct or indirect liability of such Person: (a) with respect to any Debt of another Person (a “Third Party Obligation”) if the purpose or intent of such Person incurring such liability, or the effect thereof, is to provide assurance to the obligee of such Third Party Obligation that such Third Party Obligation will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Third Party Obligation will be protected, in whole or in part, against loss with respect thereto; (b) with respect to any undrawn portion of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for the reimbursement of any drawing; (c) to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement; or (d) for any obligations of another Person pursuant to any Guarantee or pursuant to any agreement to purchase, repurchase or otherwise acquire any obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to preserve the solvency, financial condition or level of income of another Person. The amount of any Contingent Obligation shall be equal to the amount of the obligation so Guaranteed or otherwise supported or, if not a fixed and determinable amount, the maximum amount so Guaranteed or otherwise supported.
“Controlled Group” means all members of any group of corporations and all members of a group of trades or businesses (whether or not incorporated) under common control which, together with any Borrower, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.
“Convertible Notes” has the meaning set forth in the definition of “Commitment Expiry Date”.
“Convertible Notes Debt” has the meaning set forth in the definition of “Permitted Debt”.
“Convertible Notes Event” means, with respect to all or a part of any series of Convertible Notes, any of the following: (a) the redemption, repayment, defeasance or other discharge of all or a part of such series of Convertible Notes (including, in each case, all accrued but unpaid interest, fees and other amounts in respect thereof) in accordance with the terms of the applicable Indenture; (b) the amendment to or other modification of such series of Convertible Notes causing the stated maturity date of such series of Convertible Notes to be extended to a date that is at least 91 days after the Commitment Expiry Date; and/or (c) solely with respect to the 2022 Convertible Notes, the refinancing of all or a part of such series of Convertible Notes with, or the exchange of all or part of such series of Convertible Notes for, Debt having a maturity date that is at least 91 days after the Stated Commitment Expiry Date and otherwise satisfying the definition of Permitted Refinancing Debt; provided that (x) a Convertible Notes Event with respect to less than all of any series of Convertible Notes shall only apply to that portion of such series with respect to which such Convertible Notes Event occurred and (y) in the case of clauses (b) and (c) of this definition, such series of Convertible Notes as so amended, or any Permitted Refinancing Debt in respect thereof, does not require (i) any amortization prior to the date that is 91 days after the Stated Commitment Expiry Date or (ii) any mandatory prepayment or redemption at the option of the holders thereof (except for redemptions in respect of asset sales and changes in control on terms not less favorable to Borrower Representative than the terms of such series of Convertible Notes as in effect on the date hereof and other conversion provisions) prior to the date that is 91 days after the Stated Commitment Expiry Date.
“Credit Exposure” means, at any time, any portion of the Term Loan Commitment and of any other Obligations that remains outstanding; provided, however, that no Credit Exposure shall be deemed to exist solely due to the existence of contingent indemnification liability, absent the assertion of a claim, or the known existence of a claim reasonably likely to be asserted, with respect thereto.
“Credit Party” means any Guarantor under a Guarantee of the Obligations or any part thereof, any Borrower and any other Person (other than Agent, a Lender or a participant of a Lender), whether now existing or hereafter acquired or formed, that becomes obligated as a borrower, guarantor, surety, indemnitor, pledgor, assignor or other obligor under any Financing Document; and “Credit Parties” means all such Persons, collectively.
“Cure Amount” has the meaning set forth in Section 10.11(a).
“Cure Notice Deadline” has the meaning set forth in Section 10.11(a).
“Cure Period” has the meaning set forth in Section 10.11(a).
“Cure Right” has the meaning set forth in Section 10.11(a).
“Cure Right Fiscal Quarter” has the meaning set forth in Section 10.11(b).
“Debt” of a Person means at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except (i) trade accounts payable arising in the Ordinary Course of Business and paid within 120 days of when due, (ii) current non-trade payables arising and paid on a timely basis in the Ordinary Course of Business, and (iii) liabilities associated with customary prepayments and deposits, (d) all capital leases of such Person, (e) all non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument, (f) all Disqualified Equity Interests, (g) all obligations secured by a Lien on any asset of such Person, whether or not such obligation is otherwise an obligation of such Person, (h) “earnouts”, purchase price adjustments, profit sharing arrangements, deferred purchase money amounts and similar payment obligations or continuing obligations of any nature of such Person arising out of purchase and sale contracts, in each case only to the extent such obligation has become a liability on the balance sheet of such person in accordance with GAAP, (i) all Debt of others Guaranteed by such Person, (j) off-balance sheet liabilities and/or Pension Plan or Multiemployer Plan liabilities of such Person, (k) obligations arising under non-compete agreements, and (l) obligations arising under bonus, deferred compensation, incentive compensation or similar arrangements, other than those arising in the Ordinary Course of Business. Without duplication of any of the foregoing, Debt of Borrowers shall include any and all Loans.
“Default” means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulted Lender” means, so long as such failure shall remain in existence and uncured, any Lender which shall have failed to make any Loan or other credit accommodation, disbursement, settlement or reimbursement required pursuant to the terms of any Financing Document.
“Deficiency Amount” has the meaning set forth in Section 2.10(e).
“Deposit Account” means a “deposit account” (as defined in Article 9 of the UCC), an investment account, or other account in which funds are held or invested for credit to or for the benefit of any Borrower.
“Deposit Account Control Agreement” means an agreement, in form and substance reasonably satisfactory to Agent, among Agent, any Borrower and each financial institution in which such Borrower maintains a Deposit Account, which agreement provides that (a) such financial institution shall comply with instructions originated by Agent directing disposition of the funds in such Deposit Account without further consent by the applicable Borrower, and (b) such
financial institution shall agree that it shall have no Lien on, or right of setoff or recoupment against, such Deposit Account or the contents thereof, other than in respect of usual and customary service fees and returned items for which Agent has been given value, in each such case expressly consented to by Agent (acting reasonably), and containing such other terms and conditions as Agent may reasonably require.
“Device” means any instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is (a) recognized in the official National Formulary, or the United States Pharmacopeia, or any supplement to them, (b) intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals, (c) intended to affect the structure or any function of the body of man or other animals; and which does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes, or (d) any product otherwise classified as a “device” under the FD&C Act.
“Device Approval Application” means, with respect to any Device, a premarket approval application (PMA) submitted under Section 515 of the FD&C Act (21 U.S.C. § 360e), a de novo request submitted under Section 513(f) of the FD&C Act (21 U.S.C. § 360c(f)), or premarket notification submitted under Section 510(k) of the FD&C Act (21 U.S.C. § 360(k)), or any corresponding foreign application.
“Disqualified Equity Interest” means, with respect to any Person, any equity interest in such Person that by its terms (or by the terms of any security or other equity interest into which it is convertible or for which it is exchangeable, either mandatorily or at the option of anyone other than such Person), or upon the happening of any date certain, event or other condition (except, in the case of the following clauses (a), (b) and (c), as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale shall be subject to the prior payment in full of all Loans and all other Obligations (other than with respect to contingent indemnification obligations for which no claim has been made), and the termination of the Term Loan Commitment): (a) matures or is mandatorily redeemable (other than solely for equity interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such equity interests), whether pursuant to a sinking fund obligation or otherwise; (b) is convertible or exchangeable at the option of the holder thereof for Debt or equity interests (other than solely for equity interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such equity interests); (c) is or may be redeemable (other than solely for equity interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such equity interests) or is or may be required to be repurchased by such Person or any of its Affiliates, in whole or in part, at the option of the holder thereof; (d) requires the payment of any cash dividend or any other scheduled cash payment constituting a return of capital; or (e) is or becomes convertible into or exchangeable for Debt or any other equity interests that would constitute Disqualified Equity Interests; in each case, on or prior to the date that occurs 91 days after the Stated Commitment Expiry Date, provided that if such equity interests are issued pursuant to a plan to, or for the benefit of, future, current or former employees, directors, officers, member of management or consultants of any Borrower or any Subsidiary, such equity interests shall not constitute “Disqualified Equity Interests” solely because they may be permitted to be repurchased by such Borrower or such
Subsidiary in order to satisfy applicable statutory or regulatory obligations or as a result of any employee’s, director’s, officer’s, management member’s or consultant’s termination of employment or service (as applicable), death or disability.
“Distribution” means as to any Person (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any equity interest in such Person (except those payable solely in its equity interests to the extent not Disqualified Equity Interests), (b) any payment by such Person on account of (i) the purchase, redemption, retirement, defeasance, surrender, cancellation, termination or acquisition of any equity interests in such Person or any claim respecting the purchase or sale of any equity interest in such Person, or (ii) any option, warrant or other right to acquire any equity interests in such Person, (c) any management fees, salaries or other fees or compensation to any Person holding an equity interest in a Borrower or a Subsidiary of a Borrower (other than (i) payments of salaries to individuals, (ii) directors’ fees, and (iii) advances and reimbursements to employees or directors, all in the Ordinary Course of Business), an Affiliate of a Borrower or an Affiliate of any Subsidiary of a Borrower or (d) repayments of or debt service on loans or other indebtedness held by any Person holding an equity interest in a Borrower or a Subsidiary of a Borrower unless permitted under and made pursuant to a Subordination Agreement applicable to such loans or other indebtedness. The parties hereto agree, for the avoidance of doubt but without limiting in any way the terms of this Agreement that may restrict such payments, that any payments with respect to the Convertible Notes Debt do not constitute a Distribution.
“Dollars” or “$” means the lawful currency of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.
“Early Maturity Date” means, with respect to any series of 2018 Convertible Notes or 2022 Convertible Notes, the date that is 91 days prior to the stated maturity date for such series of 2018 Convertible Notes or 2022 Convertible Notes set forth in the applicable Indenture.
“EBITDA” has the meaning provided in the Compliance Certificate.
“Eligible Assignee” means any Person, other than an Excluded Person, that is (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by Agent; provided, however, that notwithstanding the foregoing, (x) “Eligible Assignee” shall not include any Borrower or any of a Borrower’s Affiliates, and (y) no proposed assignee intending to assume all or any portion of the Term Loan Commitment shall be an Eligible Assignee unless such proposed assignee either already holds a portion of such Term Loan Commitment, or has been approved as an Eligible Assignee by Agent.
“Elk Grove Village Premises” means the location located at 1200 Kirk Street, Elk Grove Village, IL 60007 at which Collateral is stored.
“Environmental Laws” means any Laws pertaining to the protection of environment, natural resources, pollution, or health and human safety (in relation to exposure to Hazardous Materials), that apply to any Borrower, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 5101 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), the Residential Lead-Based Paint Hazard Reduction Act (42 U.S.C. § 4851 et seq.), any analogous state or local laws, any amendments thereto, and the regulations promulgated pursuant to said laws, together with all amendments from time to time to any of the foregoing and judicial interpretations thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended, modified or supplemented from time to time, and any successor statute thereto, and any and all rules or regulations promulgated from time to time thereunder.
“ERISA Plan” means any “employee benefit plan”, as such term is defined in Section 3(3) of ERISA (other than a Multiemployer Plan), which any Borrower maintains, sponsors or contributes to, or, in the case of an employee benefit plan which is subject to Section 412 of the Code or Title IV of ERISA, to which any Borrower or any member of the Controlled Group may have any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five (5) years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
“Event of Default” has the meaning set forth in Section 10.1.
“Excluded Account” means (a) any Deposit Account specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Credit Party’s employees and (b) any Deposit Accounts holding deposits at any time in an aggregate amount not in excess of $1,000,000 for any one Deposit Account and $3,000,000 in the aggregate for all such Deposit Accounts.
“Excluded Perfection Assets” has the meaning set forth in Section 9.2(g).
“Excluded Person” means any Person that is (a) designated by Borrower Representative, by written notice delivered to Agent on or prior to the date hereof, as a (i) disqualified institution or (ii) Competitor or (b) clearly identifiable, solely on the basis of such Person’s name, as an Affiliate of any Person referred to in clause (a) above; provided, however, Excluded Person shall (A) exclude any Person that Borrower Representative has designated as no longer being a Excluded Person by written notice delivered to Agent from time to time and (B) include any Person that is added as a Competitor, pursuant to a written replacement list of Competitors that are Excluded Persons, that is delivered by Borrower Representative to Agent not more than once per year. Such replacement list shall become ninety (90) days after the date that such written supplement is delivered to Agent, but which shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Loans and/or Term Loan Commitment as permitted herein. In no event shall a Bona Fide Lending Affiliate be an Excluded Person unless such Bona Fide Lending Affiliate is identified under clause (a)(i) above. Notwithstanding any other provision of this Agreement, there shall be no Excluded Persons other than Competitors if an Event of Default has occurred and is continuing.
“Excluded Property” means (a) more than 65% of the voting stock of each Excluded Subsidiary that is a Foreign Subsidiary or FSHCO directly held by any Borrower; (b) any lease, license, contract, permit, letter of credit, instrument, or agreement to which a Borrower is a party or any of its rights or interests thereunder if and to the extent that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Borrower therein or (ii) result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, permit, agreement or other property right (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law); provided, however, that such security interest or lien (x) shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied, (y) to the extent severable, shall attach immediately to each term of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above and (z) shall attach immediately to each such lease, license, contract, property rights or agreement to which the Account Debtor or the Borrower’s counterparty has consented to such attachment; (c) any asset, including any asset that is the subject of any Permitted Debt contemplated by subpart (c) of the definition thereof, the grant of a security interest in which would result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Credit Party therein or (ii) result in a breach or termination pursuant to the terms of, or a default under, any contract relating to such asset (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law); provided, however, that such security interest or lien (x) shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied, (y) to the extent severable, shall attach immediately to each term of such asset that does not result in any of the consequences specified in (i) or (ii) above and (z) shall attach immediately to each such asset to which the Account Debtor or the Borrower’s counterparty has consented to such attachment; (d) any real estate asset that (i) is a leasehold interest, or (ii) is not Material Real Property; (e) any assets located outside the United States (other than with respect to the equity interests of any direct Foreign Subsidiary of a Borrower) that require action under the law of any jurisdiction other than the United States to create or perfect a security interest in such assets under such jurisdiction other than the United States, including any Intellectual Property registered in any jurisdiction other than the United States, if the creation of pledges of, or security interests in, any such property or assets would reasonably be expected to result in material adverse income tax consequences to Borrower Representative and its Subsidiaries, as reasonably determined by Agent; (f) any motor vehicle, airplane or any other asset subject to a certificate of title to the extent a Lien therein cannot be perfected by the filing of a UCC financing statement; and (g) any “intent-to-use” trademark or service mark application for which an amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. § 1051(d), respectively, or if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or examined and accepted, respectively by the United States Patent and Trademark Office.
“Excluded Subsidiary” means (a) any Foreign Subsidiary, (b) any FSHCO, (c) any Subsidiary that is not a direct or indirect Wholly-Owned Subsidiary of Accuray, (d) any Subsidiary that is prohibited or restricted by applicable Law as in effect on the Closing Date (or, in the case of any newly acquired Subsidiary, in existence at the time of acquisition) from guaranteeing the Obligations or if guaranteeing the Obligations would require any governmental (including regulatory) consent, approval, license or authorization in order to provide such guarantee that has not been obtained, (e) a Subsidiary with respect to which, in the reasonable judgment of Agent, the burden or cost of providing a Guarantee shall be excessive in view of the benefits to be obtained by Lenders therefrom and (f) subject to Section 5.17, Morphormics Inc.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to Agent, any Lender or required to be withheld or deducted from a payment to Agent or any Lender, (a) Taxes imposed on or measured by such Agent’s or Lender’s (as applicable) net income (however denominated), franchise Taxes and branch profit Taxes, in each case, imposed by the jurisdiction (or any political subdivision thereof) under which Agent or such Lender is organized, has its principal office or conducts business with respect to entering into this Agreement or taking any action hereunder, (b) Other Connection Taxes, (c) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Loans pursuant to a Law in effect on the date on which (i) such Lender becomes a party to this Agreement other than as a result of an assignment requested by a Credit Party under the terms hereof or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.8, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Term Loan Commitment or to such Lender immediately before it changed its lending office, (d) Taxes attributable to Agent or any Lender’s failure to comply with Section 2.8(c)(i) and (e) any withholding Taxes imposed under FATCA.
“FATCA” means (i) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to the implementation of Section 1471(b)(1) of the Code, and any intergovernmental agreement between the United States Internal Revenue Service, the United States Government and any governmental or taxation authority under any other jurisdiction which agreement’s principal purposes deals with the implementation of such sections of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.
“FDA” means the United States Food and Drug Administration and any successor agency or entity thereof or any analogous agency or entity in any other jurisdiction.
“FD&C Act” means the United States Food, Drug and Cosmetic Act (21 U.S.C. 321 et seq., including, without limitation, the Electronic Product Radiation Control provisions and Medical Device provisions thereof (or any successor thereto), as amended from time to time, and the rules, regulations, guidelines, guidance documents and compliance policy guides issued or promulgated thereunder, or any analogous requirements of Law in any other jurisdiction, including but not limited to the various states of the United States.
“Federal Funds Rate” means, for any day, the rate of interest per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided, however, that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day, and (b) if no such rate is so published on such next preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Agent on such day on such transactions as determined by Agent.
“Fee Letter” means that certain letter agreement between Agent and Borrowers relating to fees payable to Agent, for its own account, in connection with the execution of this Agreement.
“Financial Statements” means (a) the audited consolidated balance sheet of Accuray and its Consolidated Subsidiaries for the fiscal year ended June 30, 2017 and the related consolidated statement of operations, shareholders’ equity and cash flows for the fiscal year then ended and (b) the unaudited consolidated balance sheet of Accuray and its Consolidated Subsidiaries for the three (3) months ended September 30, 2017 and the related consolidated statement of operations, shareholders’ equity and cash flows for the three (3) months then ended.
“Financing Documents” means this Agreement, any Notes, the Security Documents, the Fee Letter, the Affiliated Intercreditor Agreement, any subordination or intercreditor agreement pursuant to which any Debt and/or any Liens securing such Debt are subordinated to all or any portion of the Obligations and all other documents, instruments and agreements related to the Obligations and heretofore executed, executed concurrently herewith or executed at any time and from time to time hereafter, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fraudulent Conveyance” has the meaning set forth in Section 2.10(b).
“FSHCO” means a Domestic Subsidiary (i) all of the assets (other than immaterial assets) of which consist of equity interests (or equity interests and indebtedness) of one or more CFCs, (ii) that, with respect to any CFC in which it holds an equity interest, owns no less than sixty-six and two-thirds percent (66 2/3%) of the voting (within the meaning of Treasury Regulation Section 1.956 2(c)(2)) stock or equity interests of such CFC and (iii) that does not conduct any business or activity other than ownership of such equity interests; provided, further, that a FSHCO shall be a “FSHCO” only for so long as it meets each of the requirements of the foregoing definition.
“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the United States accounting profession), which are applicable to the circumstances as of the date of determination.
“General Intangible” means any “general intangible” as defined in Article 9 of the UCC, and any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil, gas or other minerals before extraction, but including payment intangibles and software.
“Governmental Authority” means any nation or government, any state, local or other political subdivision thereof, and any agency, department or Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation or other Person owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing, whether domestic or foreign.
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise), or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided, however, that the term Guarantee shall not include endorsements for collection or deposit in the Ordinary Course of Business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” means any Credit Party that has executed or delivered, or shall in the future execute or deliver, any Guarantee of any portion of the Obligations, in each case, other than an Excluded Subsidiary.
“Hazardous Materials” means petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials; and any other material or substance defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,” “toxic pollutant,” “contaminant,” “pollutant” or other words of similar import within the meaning of any Environmental Law.
“Healthcare Law” means the laws, codes, policies and guidelines of all Governmental Authorities relating to the production, preparation, propagation, compounding, conversion, pricing, marketing, promotion, sale, distribution, coverage, or reimbursement of a drug, device, biological or other medical item, supply or service, including, without limitation, the FD&C Act, the federal False Claims Act (31 U.S.C. §§ 3729 et seq.), the federal healthcare program anti-kickback statute (42 U.S.C. § 1320a-7b), the healthcare fraud, false statement and health information privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act (“HIPAA”), the federal healthcare program civil money penalty and exclusion authorities, the applicable requirements of Medicare, Medicaid and other healthcare programs of other Governmental Authorities, including the Veterans Health Administration and United States Department of Defense healthcare and contracting programs, and the analogous requirements of Law of any other jurisdiction.
“HIPAA” has the meaning set forth in the definition of Healthcare Laws.
“IDE” means an application, including an application filed with a Governmental Authority, for authorization to commence human clinical studies, including (a) an Investigational Device Exemption as defined in the FD&C Act or any successor application or procedure filed with the FDA, (b) an abbreviated IDE as specified in FDA regulations in 21 C.F.R. § 812.2(b), (c) any equivalent of a United States IDE in other countries or regulatory jurisdictions, (d) all amendments, variations, extensions and renewals thereof that may be filed with respect to the foregoing and (e) all related documents and correspondence thereto, including documents and correspondence with institutional review boards or IECs.
“IECs” means independent ethics committees.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrowers or any other Credit Party under any Financing Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning set forth in Section 12.14(b).
“Indenture” means (a) that certain Indenture, dated as of February 13, 2013, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee, (b) that certain Indenture, dated as of April 24, 2014, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee, (c) that certain Indenture, dated as of August 7, 2017, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented by the First Supplemental Indenture dated as of December 4, 2017), and (d) any indenture or similar document setting forth the terms of any Permitted Refinancing Debt described in clause (b) of the definition of 2022 Convertible Notes.
“Instrument” means “instrument”, as defined in Article 9 of the UCC.
“Intellectual Property” means, with respect to any Person, all patents and patent applications, including improvements divisions, continuation, renewals, reissues, extensions and continuations in part of the same, trademarks, trade names, trade styles, trade dress, service marks, logos and other business identifiers and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of such Person connected with and symbolized thereby, copyright rights, copyright applications and copyright registrations in each work of authorship and derivative works, whether published or unpublished, technology, know-how and processes, operating manuals, trade secrets, computer hardware and software, rights to unpatented inventions and all applications and licenses therefor, used in or necessary for the conduct of business by such Person and all claims for damages by way of any past, present or future infringement of any of the foregoing.
“Intercompany Loans” has the meaning set forth in Section 2.9.
“Interest Period” means any ninety (90) day period commencing on the first day of each calendar month, reset monthly.
“Inventory” means “inventory” as defined in Article 9 of the UCC.
“Investment” means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the Ordinary Course of Business), capital contributions or acquisitions of debt (including, any bonds, notes, debentures or other debt securities), equity interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (c) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment, less any Returns to any Credit Party or the applicable Subsidiary in respect of such Investment; provided the aggregate amount of such Returns shall not exceed the original amount of such Investment.
“IRS” has the meaning set forth in Section 2.8(c)(i).
“Laws” means any and all federal, state, provincial, territorial, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, codes, injunctions, permits, governmental agreements and governmental restrictions, whether now or hereafter in effect, which are applicable to any Credit Party in any particular circumstance. “Laws” includes, without limitation, Environmental Laws.
“Lender” means each of (a) MCF, in its capacity as a lender hereunder, (b) each other Person party hereto in its capacity as a lender hereunder, (c) each other Person that becomes a party hereto as Lender pursuant to Section 11.17, and (d) the respective successors of all of the foregoing, and “Lenders” means all of the foregoing.
“LIBOR Rate” means, for each Loan, a per annum rate of interest equal to the greater of (a) 1.00% and (b) the rate determined by Agent (rounded upwards, if necessary, to the next 1/100th%) by dividing (i) the Base LIBOR Rate for the Interest Period, by (ii) the sum of one minus the daily average during such Interest Period of the aggregate maximum reserve requirement (expressed as a decimal) then imposed under Regulation D of the Board of Governors of the Federal Reserve System (or any successor thereto) for “Eurocurrency Liabilities” (as defined therein).
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, in respect of such asset. For the purposes of this Agreement and the other Financing Documents, any Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.
“Liquidity” means, on any date of determination, the sum of (x) the aggregate Qualified Cash and (y) the Revolving Loan Availability under (and as defined in) the Affiliated Credit Agreement, in each case as of the date of determination.
“Liquidity Condition” means that, on any date of determination, Borrowers have aggregate Qualified Cash of not less than the sum of (x) $5,000,000 plus (y) the outstanding principal amount of the applicable series of 2018 Convertible Notes or 2022 Convertible Notes with respect to which the Early Maturity Date has occurred.
“Litigation” means any action, suit or proceeding before any court, mediator, arbitrator or Governmental Authority.
“Loan Account” has the meaning set forth in Section 2.6(b).
“Loan(s)” means the Term Loan and each and every advance under the Term Loan Commitments. All references herein to the “making” of a Loan or words of similar import mean, with respect to the Term Loan, the making of any advance in respect of a Term Loan.
“Madison Premises” means the location leased by TomoTherapy and located at 1209-1240 Deming Way, Madison, WI 53717.
“Material Adverse Effect” means a material adverse effect on any of (a) the operations, assets, liabilities or financial condition of the Credit Parties taken as a whole, (b) the ability of the Credit Parties taken as a whole to perform any of their payment or other material obligations under any Financing Document, (c) the legality, validity or enforceability against a Credit Party of this Agreement or any other Financing Document, (d) the rights and remedies of Agent or any Lender under any Financing Document, or (e) the validity, perfection or priority of a Lien in favor of Agent for the benefit of Lenders on Collateral having a fair market value in excess of $1,000,000.
“Material Contracts” has the meaning set forth in Section 3.17.
“Material Intangible Assets” means all of (a) Borrower’s Intellectual Property and (b) license or sublicense agreements or other agreements with respect to rights in Intellectual Property, in each case that are material to the condition (financial or other), business or operations of Borrower, as determined by Agent.
“Material Real Property” means any real property located in the United States that is owned by any Borrower with a fair market value (as reasonably determined by the Borrower Representative) in excess of $250,000 individually or $500,000 in the aggregate in fee together with all other real property that is owned by Borrowers and located in the United States.
“Material Subsidiary” means any Subsidiary that, at any time, accounts for more than 3% of the EBITDA of Accuray and its Subsidiaries for the most recently ended period for which financial statements have been (or are required to have been) delivered.
“Maximum Lawful Rate” has the meaning set forth in Section 2.7.
“MCF” means MidCap Financial Trust, a Delaware statutory trust, and its successors and assigns.
“Middleton Premises” means the location leased by Accuray and located at 2200 Eagle Drive, Middleton, WI 53562.
“Multiemployer Plan” means a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any Borrower or any other member of the Controlled Group is making or accruing an obligation to make contributions or has within the preceding five plan years (as determined on the applicable date of determination) made, or been obligated to make, contributions.
“Note” has the meaning set forth in Section 2.3.
“Notice of Borrowing” means a notice of a Responsible Officer of Borrower Representative, appropriately completed and substantially in the form of Exhibit D hereto.
“NRC” means the United States Nuclear Regulatory Commission, and any successor agency or entity thereof or any analogous agency or entity in any other jurisdiction.
“Obligations” means all obligations, liabilities and indebtedness (monetary (including, without limitation, the payment of interest and other amounts arising after the commencement of any case with respect to any Credit Party under the Bankruptcy Code or any similar statute which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case) or otherwise) of each Credit Party under this Agreement or any other Financing Document, in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due.
“OFAC” means the United States Department of the Treasury’s Office of Foreign Assets Control.
“OFAC Lists” means, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC and/or any other list of terrorists or other restricted Persons maintained by OFAC.
“Operative Documents” means the Financing Documents, Subordinated Debt Documents, and any documents effecting any purchase or sale or other transaction that is closing contemporaneously with the closing of the financing under this Agreement.
“Ordinary Course of Business” means, in respect of any transaction involving any Credit Party, the ordinary course of business of such Credit Party, as conducted by such Credit Party.
“Organizational Documents” means, with respect to any Person other than a natural person, the documents by which such Person was organized (such as a certificate of incorporation, certificate of limited partnership or articles of organization, and including, without limitation, any certificates of designation for preferred stock or other forms of preferred equity) and which relate to the internal governance of such Person (such as by-laws, a partnership agreement or an operating, limited liability company or members agreement), including any and all shareholder agreements or voting agreements relating to the capital stock or other equity interests of such Person.
“Other Connection Taxes” means, with respect to Agent or any Lender, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Agent or such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or enforced any Financing Documents).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Financing Document, except any such taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.8(e) or Section 11.7(c)).
“Participant” has the meaning set forth in Section 11.17(b)(i).
“Participant Register” has the meaning set forth in Section 11.17(b)(ii).
“Payment Account” means the account specified on the signature pages hereof into which all payments by or on behalf of each Borrower to Agent under the Financing Documents shall be made, or such other account as Agent shall from time to time specify by notice to Borrower Representative.
“Payment Notification” means a notification given by a Responsible Officer of Borrower Representative substantially in the form of Exhibit E hereto.
“PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any or all of its functions under ERISA.
“Pension Plan” means any ERISA Plan that is subject to Section 412 of the Code or Title IV of ERISA.
“Permits” means all licenses, certificates, accreditations, product clearances or approvals, provider numbers or provider authorizations, supplier numbers, provider numbers, marketing authorizations, other authorizations, registrations, permits, consents and approvals of Accuray and each of its Subsidiaries required under any Law applicable to the business of Accuray or any of its Subsidiaries or necessary in the manufacturing, importing, exporting, possession, ownership, warehousing, marketing, promoting, sale, labeling, furnishing, distribution or delivery of goods or services under Law applicable to the business of Accuray or any of its Subsidiaries. Without limiting the generality of the foregoing, “Permits” includes all governmental authorizations and Product Authorizations of Accuray and each of its Subsidiaries.
“Permitted Acquisition” means any acquisition by a Borrower (an “Acquisition”), in each case, to the extent that each of the following conditions shall have been satisfied:
(a) Borrower Representative shall have delivered to Agent (i) for any Acquisition or series of related Acquisitions with an aggregate purchase price (including any deferred compensation) greater than or equal to $5,000,000, (A) at least five (5) Business Days (or such shorter period as approved by Agent in its sole discretion) prior to the closing of the proposed Acquisition: (x) a description of the proposed Acquisition and (y) to the extent available, a due diligence package (including, to the extent available, a quality of earnings report); and (B) not less than five (5) Business Days following the consummation of such Acquisition, executed counterparts of the material agreements, documents or instruments pursuant to which such Acquisition is to be consummated and any schedules to such agreements, documents or instruments or (ii) for any Acquisition or series of related Acquisitions with an aggregate purchase price (including any deferred compensation) less than $5,000,000, not less than five (5) Business Days following such Acquisition (or such shorter period as approved by Agent in its sole discretion), executed counterparts of the material agreements, documents or instruments pursuant to which such Acquisition is to be consummated and any schedules to such agreements, documents or instruments;
(b) Borrowers (including any new Subsidiary to the extent required by Section 4.11) shall execute and deliver the agreements, instruments and other documents to the extent required by Section 4.11;
(c) no Event of Default has occurred and is continuing, or would exist after giving effect to the proposed Acquisition;
(d) all transactions in connection with such Acquisition shall be consummated, in all material respects, in accordance with applicable Laws;
(e) the assets acquired in such Acquisition are for use in the same line of business as Borrowers are currently engaged or a line of business reasonably related thereto;
(f) such Acquisition shall not be hostile and, if applicable, shall have been approved by the board of directors (or other similar body) and/or the stockholders or other equity holders of any Person being acquired in such Acquisition;
(g) no Debt or Liens are assumed or created (other than Permitted Liens and Permitted Debt) in connection with such Acquisition;
(h) Agent shall have received a certificate of a Responsible Officer of Borrower Representative demonstrating, on a pro forma basis after giving effect to the consummation of such Acquisition, that Borrowers are in compliance with the financial covenant set forth in Section 6.2;
(i) Except as otherwise agreed by Agent, the total consideration paid or payable (including without limitation, costs and expenses, deferred purchase price, seller notes and other liabilities incurred, assumed or to be reflected on a consolidated balance sheet of the Credit Parties and their Subsidiaries after giving effect to such Acquisition but excluding (i) any equity interests issued as consideration for such Acquisition and (ii) other consideration paid exclusively from cash proceeds from the issuance of equity interests (other than Disqualified Equity Interests) of Accuray within the ninety (90) day period prior to the consummation of such Acquisition; such
non-excluded consideration, “Acquisition Consideration”), shall be in an amount not to exceed (A) (i) $25,000,000 in the aggregate for all such Acquisitions during any fiscal year and (B) $75,000,000 in the aggregate for all such Acquisitions during the term of this Agreement; and
(j) Agent has received, prior to the consummation of such Acquisition, evidence demonstrating that immediately after giving effect to the consummation of such Acquisition, Liquidity is equal to or greater than $50,000,000.
“Permitted Asset Dispositions” means the following Asset Dispositions: (a) dispositions of Inventory in the Ordinary Course of Business and not pursuant to any bulk sale; (b) disposition of cash and Cash Equivalents in the Ordinary Course of Business; (c) dispositions of assets in the Ordinary Course of Business that the applicable Borrower determines in good faith is no longer used or useful in the business of such Borrower; (d) to the extent constituting an Asset Disposition, Permitted Investments, Permitted Liens and any mergers, consolidations, dispositions, dissolutions and liquidations expressly permitted pursuant to Section 5.6; (e) disposals of obsolete, worn out or surplus tangible personal property; (f) the lapse, abandonment or disposition of Intellectual Property that, in Borrower’s reasonable business discretion, (i) is not material to Borrowers’ business and (ii) the cost of maintaining such Intellectual Property would outweigh the benefit to Borrowers of so maintaining it; (g) sales, transfers and disposition of Accounts in connection with the compromise, settlement or collection thereof in the Ordinary Course of Business, to the extent not in violation of the terms of this Agreement; (h) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between any joint venture parties set forth in joint venture arrangements and similar binding arrangements; (i) leasing or subleasing of assets in the Ordinary Course of Business; (j) (i) voluntary cancellations, terminations or surrender by any Borrower of any immaterial lease or license, (ii) the expiration of any option agreement in respect of real or personal property and (iii) the settlement of any litigation claims (to the extent such claims constitutes an asset), in each case, in the Ordinary Course of Business; (k) Asset Dispositions by any Borrower to any other Borrower; (l) sales, transfers and other dispositions of assets that are not permitted by any other subpart of this definition of “Permitted Asset Dispositions” to the extent such sale, transfer or disposition is a “Permitted Asset Disposition” (as defined the Affiliated Credit Agreement); provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (l) shall not exceed $5,000,000 during any fiscal year; (m) sales of equity interests of Restoration Robotics, Inc. owned by Accuray as of the Closing Date; and (n) dispositions approved by Agent.
“Permitted Contest” means, with respect to any tax obligation or other obligation allegedly or potentially owing from any Borrower or its Subsidiary to any governmental tax authority or other third party, a contest maintained in good faith by appropriate proceedings promptly instituted and diligently conducted and with respect to which such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made on the books and records and financial statements of the applicable Credit Party(ies); provided, however, that (a) compliance with the obligation that is the subject of such contest is effectively stayed during such challenge; (b) Borrowers’ and its Subsidiaries’ title to, and its right to use, the Collateral is not adversely affected thereby and Agent’s Lien and priority on the Collateral are not adversely affected, altered or impaired thereby; (c) any material portion of the Collateral shall not be in any danger of being sold, forfeited or lost by reason of such contest by Borrowers or its
Subsidiaries; (d) if such contest relates to a material obligation, Borrowers have given Agent notice of the commencement of such contest and upon request by Agent, from time to time, notice of the status of such contest by Borrowers and/or confirmation of the continuing satisfaction of this definition; and (e) upon a final determination of such contest, Borrowers and its Subsidiaries shall promptly comply with the requirements thereof.
“Permitted Contingent Obligations” means: (a) Contingent Obligations arising in respect of the Debt under the Financing Documents; (b) Contingent Obligations resulting from endorsements for collection or deposit in the Ordinary Course of Business; (c) Contingent Obligations outstanding on the date of this Agreement and set forth on Schedule 5.1 (but not including any refinancings, extensions, increases or amendments to the Debt underlying such Contingent Obligations other than Permitted Refinancing Debt); (d) Contingent Obligations incurred in the Ordinary Course of Business with respect to surety and appeal bonds, performance bonds and other similar obligations; (e) Contingent Obligations arising under indemnity agreements with title insurers to cause such title insurers to issue to Agent mortgagee title insurance policies; (f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions of personal property assets permitted under Section 5.6; (g) so long as there exists no Event of Default both immediately before and immediately after giving effect to any such transaction, Contingent Obligations existing under any swap contract; provided, however, that such obligations are (or were) entered into by a Borrower in the Ordinary Course of Business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person and not for purposes of speculation; (h) Contingent Obligations incurred with respect to Permitted Debt provided that (x) any such Contingent Obligation is subordinated to the Obligations to the same extent as the Debt to which it relates is subordinated to the Obligations and (y) no Borrower may incur Contingent Obligations under this clause (i) in respect of Debt incurred by any Person that is not a Borrower or Guarantor, other than to extent consisting of a Permitted Investment; (i) Contingent Obligations in respect of any customary indemnification obligations, purchase price adjustments, non-compete obligations (other than contingent earn-out obligations) of any Credit Party incurred in connection with the consummation of any Permitted Acquisition or other Permitted Investment; (j) Contingent Obligations in respect of obligations to suppliers, customers, franchisees and licensees incurred in the Ordinary Course of Business; and (k) other Contingent Obligations not permitted by clauses (a) through (j) above, not to exceed $5,000,000 in the aggregate at any time outstanding.
“Permitted Debt” means: (a) Borrowers’ Debt to Agent and each Lender under this Agreement and the other Financing Documents; (b) Debt incurred as a result of endorsing negotiable instruments received in the Ordinary Course of Business; (c) purchase money Debt not to exceed $10,000,000 at any time (whether in the form of a loan or a capitalized lease) used solely to acquire equipment used in the Ordinary Course of Business and secured only by such equipment; (d) Debt existing on the date of this Agreement and described on Schedule 5.1 (but not including any refinancings, extensions, increases or amendments to such Debt other than Permitted Refinancing Debt); (e) Debt in the form of insurance premiums financed through the applicable insurance company; (f) Debt owed to any Person providing worker’s compensation, health, disability or other employee benefits (other than ERISA) pursuant to reimbursement or indemnification obligations to such Person, in each case in the Ordinary Course of Business; (g) Subordinated Debt; (h) (i) Debt in respect of the 2018 Convertible Notes and/or 2022
Convertible Notes and (ii) solely with respect to the 2022 Convertible Notes, any Permitted Refinancing Debt and additional convertible notes issued on the same terms as such Permitted Refinancing Debt; provided that the aggregate principal amount of Debt permitted by this subclause (ii) shall not exceed $100,000,000 at any time (all Debt incurred pursuant to this clause (h), “Convertible Notes Debt”); (i) Debt of Borrowers related to commercial credit cards; so long as such Debt is incurred in the Ordinary Course of Business; (j) Debt in respect of treasury services agreements, netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs and similar arrangements, in each case so long as such Debt is incurred in the Ordinary Course of Business and is unsecured; (k) to the extent constituting Debt, any Permitted Contingent Obligations; (l) unsecured earn-out obligations and other similar contingent purchase price obligations incurred in connection with a Permitted Acquisition to the extent earned and payable and permitted pursuant to the definition of “Permitted Acquisition” and the other terms of this Agreement; (m) to the extent constituting Debt, take-or-pay obligations contained in supply arrangements incurred in the Ordinary Course of Business; (n) Debt that represents extensions, renewals, refinancings or replacements of any Debt described in clauses (c), (d), (h) (o) and (s) of this definition so long as such Debt constitutes Permitted Refinancing Debt; (o) Debt of any Person that becomes a Borrower after the date hereof in connection with a Permitted Acquisition; provided that (i) such Debt exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of Debt permitted by this clause (o), together with any Permitted Refinancing Debt in respect thereof, shall not exceed $2,000,000 at any time outstanding; (p) to the extent constituting Debt, the transactions permitted pursuant to Section 5.8; (q) to the extent constituting Debt, deferred purchase price, seller notes and other liabilities incurred or assumed in connection with any Permitted Acquisition to the extent the same constitutes Acquisition Consideration and is permitted to be incurred pursuant to clause (i) of the definition of “Permitted Acquisition”; (r) Debt of the Credit Parties incurred under the Affiliated Financing Documents; and (s) other unsecured Debt not to exceed $5,000,000 outstanding at any one time.
“Permitted Distributions” means the following Distributions: (a) Distributions by any Borrower to another Borrower; (b) dividends payable solely in equity interests that are not Disqualified Equity Interests (including stock splits); (c) without duplication of any Distribution described in clause (d) below, repurchases or redemptions of stock or options of former employees, directors or consultants upon the death, termination, disability, resignation or other voluntary or involuntary cessation of such person’s employment, or otherwise in accordance with any stock option or stock appreciation rights plan or any stock ownership or subscription plan or equity incentive or other similar plan or termination agreement, provided, that such repurchase does not exceed $1,000,000 in the aggregate per fiscal year; (d) so long as no Event of Default has occurred and is continuing prior to making such Distribution or would arise after giving effect thereto, Distributions by Accuray in accordance with stock option plans or other benefit plans for management or employees of Accuray or its Subsidiaries in an aggregate amount not to exceed $1,000,000 in the aggregate per fiscal year; (e) the cashless repurchase of equity interests deemed to occur upon the exercise of any option or warrant of Accuray; (f) cash payments in lieu of issuing fractional or “odd lot” equity interests in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests in Accuray (including any Convertible Notes Debt) in an aggregate amount not to exceed $1,000,000 during the term of this Agreement; (g) to the extent constituting Distributions, any
payments made in respect of the Convertible Notes Debt made (i) solely with respect to the 2022 Convertible Notes, with the proceeds of any Permitted Refinancing Debt in respect thereof or any offering of equity interests that are not Disqualified Equity Interests and (ii) solely with respect to the 2018 Convertible Notes, with proceeds of Loans or Qualified Cash as described more fully in Section 5.5; (h) Distributions of the type set forth in clause (b) of the definition thereof by Accuray of its common stock made contemporaneously with, or within ten (10) Business Days before, the pricing and closing of any Convertible Notes Debt after the Closing Date; provided that (i) no Default or Event of Default has occurred and is continuing prior to making any such Distribution or would arise after giving effect thereto, and (ii) the aggregate amount of all such Distributions in reliance on this clause (h) does not exceed $15,000,000 during the term of this Agreement; and (i) other Distributions provided that (i) no Default or Event of Default has occurred and is continuing prior to making such Distribution or would arise after giving effect thereto, (ii) the aggregate amount of all such Distributions in reliance on this clause (i) in any fiscal year does not exceed $2,000,000, and (iii) after giving effect to such Distribution, (A) the Credit Parties have Liquidity in an amount not less than $50,000,000, and (B) on a pro forma basis after giving effect to the making of such Distribution, as at the end of the most recently ended fiscal quarter for which financial statements have been provided (or were required to have been provided) to Lenders, the Total Leverage Ratio for the Credit Parties for a trailing twelve-month period ending on the last day of such fiscal quarter is equal to or less than 4.00 to 1.00, which covenant shall be calculated as if such Distribution was made on the first day of such period.
“Permitted Intercompany Investments” means Investments (including guarantees of Debt) made by (a) a Borrower to or in another Borrower and (b) a Borrower to or in a Subsidiary that is not a Borrower so long as, in the case of this clause (b), (i) the aggregate amount of all such Investments by Borrowers in reliance on this clause (b) does not exceed $7,500,000 at any time outstanding and (ii) Borrowers have Liquidity of not less than $50,000,000 after giving effect to any such Investment.
“Permitted Investments” means: (a) Investments (i) shown on Schedule 5.7 and existing on the Closing Date, (ii) consisting of capital contributions made to Subsidiaries prior to the Closing Date and (iii) any modification, replacement, renewal or extension of any Investments made by a Borrower in an Excluded Subsidiary so long as any such modification, replacement, renewal or extension thereof does not increase the amount of such Investment except as otherwise permitted by Section 5.7; (b) cash and Cash Equivalents; (c) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the Ordinary Course of Business; (d) advances made in connection with purchases of goods or services in the ordinary course of business; (e) Investments constituting installment sales of equipment in the ordinary course of business; (f) Investments received in settlement of bona fide disputes with respect to amounts due to any Credit Party or any of its Subsidiaries from trade creditors or customers effected in the ordinary course of business and consistent with past practice, or owing to any Credit Party or any of its Subsidiaries as a result of a proceeding relating to bankruptcy, insolvency, reorganization or relief of debtors involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Credit Party or its Subsidiaries; (g) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the Ordinary Course of Business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrowers pursuant to employee stock purchase plans or agreements approved by Borrowers’ Board of Directors (or other
governing body), but the aggregate principal amount of all such loans outstanding may not exceed $1,000,000 at any time; (h) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the Ordinary Course of Business, provided, however, that this subpart (h) shall not apply to Investments of Borrowers in any Subsidiary; (i) Investments consisting of deposit accounts in which Agent has received a Deposit Account Control Agreement; (j) Permitted Intercompany Investments; (k) Permitted Acquisitions; (l) Investments in Excluded Subsidiaries in an aggregate amount not to exceed $1,000,000 during the term of this Agreement; (m) Investments the consideration for which is (x) equity interests (other than Disqualified Equity Interests) of Accuray or (y) solely with respect to Investments that are Permitted Acquisitions, cash proceeds of the issuance of equity interests (other than Disqualified Equity Interests) of Accuray (as described more fully in clause (i) of the definition of “Permitted Acquisition”; (n) Capital Expenditures; (o) Investments of any Person existing at the time such Person becomes a Subsidiary of Accuray and a Borrower (including in connection with a Permitted Acquisition) so long as such Investments were not made in contemplation of such Person becoming a Subsidiary; (p) cashless Investments relating to reorganizations of, and mergers and consolidations among, Foreign Subsidiaries so long as any resulting Foreign Subsidiary is wholly owned by a Borrower; and (q) any other Investments in an aggregate amount not to exceed $5,000,000 at any time outstanding; provided that immediately before and after giving effect to the making of such Investment, (i) no Default or Event of Default shall have occurred and be continuing, (ii) on a pro forma basis after the consummation of such Investment, as at the end of the most recently ended fiscal quarter for which financial statements have been provided (or were required to have been provided) to Lenders, the Total Leverage Ratio for the Credit Parties for a trailing twelve-month period ending on the last day of such fiscal quarter is equal to or less than 4.00 to 1.00, which covenant shall be calculated as if such Investment was made on the first day of such period, (iii) the Credit Parties shall have Liquidity in an amount not less than $50,000,000 after giving effect to such Investment, and (iv) the chief financial officer of the Borrower Representative shall have delivered a certificate to Agent certifying as to the matters contained in clauses (i) through (iii) above, accompanied by reasonable evidence thereof.
“Permitted License” means (a) any non-exclusive license of patent rights of Borrowers or their Subsidiaries so long as all such Permitted Licenses are granted to third parties in the Ordinary Course of Business, do not result in a legal transfer of title to the licensed property, and have been granted in exchange for fair consideration, (b) any exclusive license of patent rights of Borrowers or their Subsidiaries so long as such Permitted Licenses do not result in a legal transfer of title to the licensed property, are exclusive solely as to either (i) discrete geographical areas outside of the United States or (ii) a field of use outside of the field of photon based radiation therapy, radiosurgery, or teletherapy, and have been granted in exchange for fair consideration and (c) any exclusive licenses of trademark or service mark rights or other Intellectual Property rights of Borrowers or their Subsidiaries to customers or other third parties in the Ordinary Course of Business, including for use in connection with such customers’ corporate names, trade names, domain names, websites, social media accounts, handles and identifiers and any other business identifiers.
“Permitted Liens” means: (a) deposits or pledges of cash to secure obligations under workmen’s compensation, social security or similar laws, or under unemployment insurance (but excluding Liens arising under ERISA or, with respect to any Pension Plan or Multiemployer Plan, the Code) pertaining to a Borrower’s employees, if any; (b) deposits or pledges of cash to secure
bids, tenders, contracts (other than contracts for the payment of money or the deferred purchase price of property or services), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the Ordinary Course of Business; (c) carrier’s, warehousemen’s, mechanic’s, workmen’s, materialmen’s or other like Liens on Collateral, to the extent such Liens are “Permitted Liens” under the Affiliated Credit Agreement, arising in the Ordinary Course of Business with respect to obligations which are not overdue for a period of more than sixty (60) days, or which are being contested pursuant to a Permitted Contest; (d) Liens on Collateral, other than Accounts, for taxes or other governmental charges not at the time delinquent or thereafter payable without penalty or the subject of a Permitted Contest; (e) attachments, appeal bonds, judgments and other similar Liens on Collateral other than Accounts, so long as such Liens do not constitute an Event of Default hereunder; provided, however, that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are the subject of a Permitted Contest; (f) with respect to real estate, easements, rights of way, restrictions, minor defects or irregularities of title and other similar restrictions, including environmental and land use restrictions, none of which, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Security Documents, materially affect the value or marketability of the Collateral, materially impair the use or operation of the Collateral for the use currently being made thereof or materially impair Borrowers’ ability to pay the Obligations in a timely manner or materially impair the use of the Collateral or the ordinary conduct of the business of any Borrower or any Subsidiary and which, in the case of any real estate which is part of the Collateral, are set forth as exceptions to or subordinate matters in the title insurance policy accepted by Agent insuring the lien of the Security Documents; (g) non-exclusive licenses of Intellectual Property rights granted in the Ordinary Course of Business; (h) rights of set-off or bankers’ liens upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business; (i) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Debt; (j) Liens and deposits in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (k) Liens and encumbrances in favor of Agent under the Financing Documents; (l) Liens on Collateral, existing on the date hereof and set forth on Schedule 5.2; (m) Liens (i) arising from operating leases with respect to assets not owned by any Borrower and the precautionary UCC filings in respect thereof and (ii) on equipment or other materials which are not owned by any Borrower and located on the premises of any Borrower (but not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course of Business and consistent with customary practices of Borrowers and the precautionary UCC filings in respect thereof; (n) any Lien on any equipment securing Debt permitted under subpart (c) of the definition of Permitted Debt, provided, however, that such Lien attaches concurrently with or within sixty (60) days after the acquisition thereof; (o) Liens of landlords and mortgagees of landlords arising by statute; (p) the interest of lessors or sublessor under operating leases and licensors or sub-licensors under license agreements to the extent such license, lease, sublease or sublicense is otherwise permitted under this Agreement; (q) other Liens or encumbrances which do not secure Debt for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $2,000,000; and (r) Liens and encumbrances in favor of the holders of (or an agent representing the holders of) the Affiliated Obligations.
“Permitted Modifications” means (a) such amendments or other modifications to a Borrower’s Organizational Documents as are required under this Agreement or by applicable Law and fully disclosed to Agent within thirty (30) days after such amendments or modifications have become effective, and (b) such amendments or modifications to a Borrower’s Organizational Documents (other than those involving a change in the name of a Borrower or involving a reorganization of a Borrower under the laws of a different jurisdiction) that would not adversely affect the rights and interests of Agent or Lenders and are fully disclosed to Agent within thirty (30) days after such amendments or modifications have become effective.
“Permitted Refinancing Debt” means the extension of maturity, refinancing, renewal, replacement, exchange or modification of the terms of Debt so long as:
(a) after giving effect to such extension, refinancing, replacement, exchange or modification, the principal amount of such Debt is not greater than the amount of Debt outstanding immediately prior to such extension, refinancing, renewal, replacement, exchange or modification (other than by the amount of premiums or penalties paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto); provided, however, that in order to permit an exchange of the Convertible Notes Debt into newly issued convertible notes, the principal amount of the newly issued convertible notes may be greater than the principal amount of the Convertible Notes Debt that are exchanged, to the extent required by arms-length, commercial negotiations in connection with such exchange;
(b) such extension, refinancing, renewal, replacement, exchange or modification does not result in a shortening of the average weighted maturity (measured as of the extension, refinancing or modification) of the Debt so extended, refinanced, renewed, replaced or modified (and in the case of any permitted refinancing of the Convertible Notes Debt, the scheduled maturity date of the Debt (after giving effect to such extension, refinancing, renewal, replacement or modification) shall be at least 91 days following the Commitment Expiry Date (determined in accordance with clause (a) of the definition thereof));
(c) such extension, refinancing, renewal, replacement, exchange or modification is pursuant to terms that are, taken as a whole, (A) on prevailing market terms at the time of borrowing for the time of financing and the quality of the applicable borrower; provided that, in no event shall additional security or collateral (or any security or collateral if the Debt subject to a permitted refinancing is unsecured) be granted on the basis that it was required by prevailing market terms or (B) other than interest rate (so long as the interest rate thereto shall not increase by more than 2.50% per annum) and conversion premium terms with respect to the refinancing, replacement or exchange of Convertible Notes Debt, not less favorable to the Credit Parties and Lenders than the terms of the Debt (including, without limitation, terms relating to the collateral (if any) and subordination (if any)) being extended, refinanced, renewed, replaced, exchanged or modified (and in the case of any permitted refinancing of the Convertible Notes Debt, no security or collateral shall be granted and no principal amortization shall be provided for (it being understood that conversion terms consistent with those applicable to the 2022 Convertible Notes shall not constitute principal amortization); and
(d) the Debt that is extended, refinanced, renewed, replaced or modified is not recourse to any Credit Party or any of its Subsidiaries that is liable on account of the obligations, in each case other than those Persons which were obligated with respect to the Debt that was extended, refinanced, renewed, replaced or modified.
For purposes of clarity, Permitted Refinancing Debt shall not apply to the 2018 Convertible Notes.
“Person” means any natural person, corporation, limited liability company, professional association, limited partnership, general partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority.
“Prepayment Fee” has the meaning set forth in Section 2.2(g).
“Product” means any current or future service or product researched, designed, developed, manufactured, licensed, marketed, sold, performed, distributed or otherwise commercialized by Accuray or any of its Subsidiaries, and any such product in development or which may be developed; provided, that for purposes of Article III, “Product” shall not include products designed, developed and manufactured by third parties that are not Affiliates of Accuray or any of its Subsidiaries.
“Product Authorizations” means any and all approvals (including pricing and reimbursement approvals), licenses, notifications, registrations or authorizations of any Governmental Authority necessary for the manufacture, development, distribution, use, storage, import, export, transport, promotion, marketing, sale or other commercialization of a Product in any country or jurisdiction, including without limitation registration and listing, IDEs, Device Approval Applications (including any supplements and amendments thereto) or similar applications, post-approval marketing authorizations (including any prerequisite manufacturing approval or authorization related thereto), labeling approvals, and technical, medical, and scientific licenses.
“Pro Rata Share” means (a) with respect to a Lender’s obligation to make advances in respect of a Term Loan Commitment and such Lender’s right to receive payments of principal and interest with respect to the Term Loans, the Term Loan Commitment Percentage of such Lender in respect of such Term Loan, and (b) for all other purposes (including, without limitation, the indemnification obligations arising under Section 11.6) with respect to any Lender, the percentage obtained by dividing (i) the Term Loan Commitment Amount of such Lender (or, in the event the Term Loan Commitment shall have been terminated, such Lender’s then outstanding principal advances of such Lender under the Term Loan), by (ii) the sum of the Term Loan Commitment (or, in the event the Term Loan Commitment shall have been terminated, the then outstanding principal advances of such Lenders under the Term Loan) of all Lenders.
“Qualified Cash” means, as of any date of determination, the aggregate amount of unrestricted cash and Cash Equivalents on-hand of the Credit Parties maintained in Deposit Accounts or Securities Accounts in the name of a Credit Party in the United States as of such date, which, in each case, are subject to Deposit Account Control Agreements or a Securities Account Control Agreement.
“Recovery Amount” has the meaning set forth in Section 2.10(e).
“Required Lenders” means at any time Lenders holding (a) more than sixty percent (60%) of the Term Loan Commitment, or (b) if the Term Loan Commitment has been terminated, more than sixty percent (60%) of the then aggregate outstanding principal balance of the Loans.
“Replacement Lender” has the meaning set forth in Section 11.17(c).
“Responsible Officer” means any of the Chief Executive Officer, Chief Financial Officer, General Counsel or any other officer of the applicable Borrower acceptable to Agent.
“Returns” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from an asset sale or otherwise) and other amounts received or realized in respect of such Investment, in each case on an after-tax basis.
“Revolving Loans” has the meaning set forth in the Affiliated Credit Agreement.
“SEC” means the United States Securities and Exchange Commission.
“Securities Account” means a “securities account” (as defined in Article 9 of the UCC), an investment account, or other account in which investment property or securities are held or invested for credit to or for the benefit of any Borrower.
“Securities Account Control Agreement” means an agreement, in form and substance satisfactory to Agent, among Agent, any applicable Borrower and each securities intermediary in which such Borrower maintains a Securities Account pursuant to which Agent shall obtain “control” (as defined in Article 9 of the UCC) over such Securities Account.
“Securitization” has the meaning set forth in Section 12.6(b).
“Security Document” means this Agreement and any other agreement, document or instrument executed concurrently herewith or at any time hereafter pursuant to which one or more Credit Parties or any other Person either (a) Guarantees payment or performance of all or any portion of the Obligations, and/or (b) provides, as security for all or any portion of the Obligations, a Lien on any of its assets in favor of Agent for its own benefit and the benefit of Lenders, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time.
“Settlement Service” has the meaning set forth in Section 11.17(a)(v).
“Solvent” means, with respect to any Person, that such Person (a) owns assets the fair saleable value of which are (i) greater than the total amount of its liabilities (including Contingent Obligations), and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted or after giving effect to any contemplated transaction; and (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due.
“Stated Commitment Expiry Date” has the meaning set forth in the definition of “Commitment Expiry Date”.
“Stated Rate” has the meaning set forth in Section 2.7.
“Subordinated Debt” means any Debt of Borrowers incurred pursuant to the terms of the Subordinated Debt Documents, and with prompt notice to Agent, all of which documents must be in form and substance acceptable to Agent in its sole discretion. As of the Closing Date, there is no Subordinated Debt. The parties hereto agree, for the avoidance of doubt, that the Convertible Notes Debt does not constitute Subordinated Debt.
“Subordinated Debt Documents” means any documents evidencing and/or securing Debt governed by a Subordination Agreement, all of which documents must be in form and substance acceptable to Agent in its sole discretion. As of the Closing Date, there are no Subordinated Debt Documents.
“Subordination Agreement” means any agreement between Agent and another creditor of Borrowers, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof, pursuant to which the Debt owing from any Borrower(s) and/or the Liens securing such Debt granted by any Borrower(s) to such creditor are subordinated in any way to the Obligations and the Liens created under the Security Documents, the terms and provisions of such Subordination Agreements to have been agreed to by and be acceptable to Agent in the exercise of its sole discretion.
“Subsidiary” means, with respect to any Person, (a) any corporation of which an aggregate of more than fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, capital stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of more than fifty percent (50%) of such capital stock whether by proxy, agreement, operation of law or otherwise, and (b) any partnership or limited liability company in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%) or of which any such Person is a general partner or may exercise the powers of a general partner. Unless the context otherwise requires, each reference to a Subsidiary shall be a reference to a Subsidiary of a Borrower.
“Taxes” has the meaning set forth in Section 2.8(a).
“Termination Date” means the earlier to occur of (a) the Commitment Expiry Date, (b) any date on which Agent accelerates the maturity of the Loans pursuant to Section 10.2, or (c) the termination date stated in any notice of termination of this Agreement provided by Borrowers in accordance with Section 2.12.
“Term Loan” and “Term Loans” means, collectively, the Term Loan Tranche 1 and the Term Loan Tranche 2.
“Term Loan Commitment” means, the sum of each Lender’s Term Loan Commitment Amount, which is equal to $60,000,000,
“Term Loan Commitment Amount” means, with respect to each Lender, the sum of such Lender’s Term Loan Tranche 1 Commitment Amount and Term Loan Tranche 2 Commitment Amount.
“Term Loan Commitment Percentage” means, as to any Lender with respect to each of such Lender’s Term Loan Commitments, (a) on the Closing Date with respect to each tranche of the Term Loan, the applicable percentage set forth opposite such Lender’s name on the Commitment Annex under the column “Term Loan Tranche 1 Commitment Percentage” and “Term Loan Tranche 2 Commitment percentage” (if such Lender’s name is not so set forth thereon, then, on the Closing Date, such percentage for such Lender shall be deemed to be zero), and (b) on any date following the Closing Date, as applicable to each tranche of Term Loan, the percentage equal to (i) the Term Loan Tranche 1 Commitment of such Lender on such date divided by the aggregate Term Loan Tranche 1 Commitments on such date or (ii) the Term Loan Tranche 2 Commitment of such Lender on such date divided by the aggregate Term Loan Tranche 2 Commitments on such date.
“Term Loan Tranche 1” has the meaning set forth in Section 2.1(a)(i)(A).
“Term Loan Tranche 1 Commitment Amount” means, with respect to each Lender, the amount set forth opposite such Lender’s name on Annex A hereto under the caption “Term Loan Tranche 1 Commitment Amount”, as amended from time to time to reflect any permitted and effective assignments and as such amount may be reduced or terminated pursuant to this Agreement.
“Term Loan Tranche 1 Commitments” means the sum of each Lender’s Term Loan Tranche 1 Commitment Amount.
“Term Loan Tranche 2” has meaning set forth in Section 2.1(a)(ii)(B).
“Term Loan Tranche 2 Commitment Amount” means, with respect to each Lender, the amount set forth opposite such Lender’s name on Annex A hereto under the caption “Term Loan Tranche 2 Commitment Amount”, as amended from time to time to reflect any permitted and effective assignments and as such amount may be reduced or terminated pursuant to this Agreement.
“Term Loan Tranche 2 Commitment Termination Date” means December 31, 2018.
“Term Loan Tranche 2 Commitments” means the sum of each Lender’s Term Loan Tranche 2 Commitment Amount.
“Total Debt” means, at any time, all Debt described in clauses (a), (b), (c), (d), and (e) (but in the case of clause (e), only to the extent such letter of credit has been drawn and not reimbursed within 3 Business Days) in the definition thereof of such Person and its Subsidiaries at such time.
“Total Leverage Ratio” means, the ratio of (a) the Total Debt as of the end of such period (including, for the avoidance of doubt, the Convertible Notes Debt), to (b) EBITDA for such period.
“UCC” means the Uniform Commercial Code of the State of New York or of any other state the laws of which are required to be applied in connection with the perfection of security interests in any Collateral.
“Unfinanced Capital Expenditures” means, for any period, the Capital Expenditures for such period; provided Unfinanced Capital Expenditures shall not include any Capital Expenditure (i) for replacements, restorations or substitutions for assets to the extent made with the net cash proceeds of a Permitted Asset Disposition, (ii) for any asset acquired in exchange for an existing asset (but only to the extent of the value of such existing asset), (iii) that constitutes a Permitted Acquisition, (iv) made during such period to the extent made with the identifiable proceeds of an issuance of equity by Borrower Representative, (v) that, pursuant to a written agreement, are reimbursed (or reimbursable and reasonably expected to be received in cash within 120 days of the last day of such period) by a third Person (excluding Borrower Representative or any of its Subsidiaries) or (vi) that is paid with the proceeds of Permitted Debt.
“United States” means the United States of America.
“Wholly-Owned Subsidiary” means, as to any Person, another Person, all of the equity interests of which (except directors’ qualifying shares) are, at the time, directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.
Section 1.2 Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder (including, without limitation, determinations made pursuant to the exhibits hereto) shall be made, and all financial statements required to be delivered hereunder shall be prepared on a consolidated basis in accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of each Borrower and its Consolidated Subsidiaries delivered to Agent and each of Lenders on or prior to the Closing Date. If at any time any change in GAAP would affect the computation of any financial ratio or financial requirement set forth in any Financing Document, and either Borrowers or the Required Lenders shall so request, Agent, Lenders and Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Borrower Representative and the Required Lenders); provided, however, that until so amended, (a) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (b) Borrowers shall provide to Agent and Lenders financial statements and other documents required under this Agreement which shall include a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, (i) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Debt or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value”, as defined therein and (ii) to the extent that any change in GAAP after the
Closing Date results in leases which are, or would have been, classified as operating leases under GAAP as it exists on the Closing Date being classified as a Capital Lease under as revised GAAP (whether such lease is entered into before or after the date hereof), such change in classification of leases from operating leases to Capital Leases shall be ignored for purposes of this Agreement, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.
Section 1.3 Other Definitional and Interpretive Provisions. References in this Agreement to “Articles”, “Sections”, “Annexes”, “Exhibits”, or “Schedules” shall be to Articles, Sections, Annexes, Exhibits or Schedules of or to this Agreement unless otherwise specifically provided. Any term defined herein may be used in the singular or plural. “Include”, “includes” and “including” shall be deemed to be followed by “without limitation”. Except as otherwise specified or limited herein, references to any Person include the successors and assigns of such Person. References “from” or “through” any date mean, unless otherwise specified, “from and including” or “through and including”, respectively. Unless otherwise specified herein, the settlement of all payments and fundings hereunder between or among the parties hereto shall be made in lawful money of the United States and in immediately available funds. References to any statute or act shall include all related current regulations and all amendments and any successor statutes, acts and regulations. All amounts used for purposes of financial calculations required to be made herein shall be without duplication. References to any statute or act, without additional reference, shall be deemed to refer to federal statutes and acts of the United States. References to any agreement, instrument or document shall include all schedules, exhibits, annexes and other attachments thereto. As used in this Agreement, the meaning of the term “material” or the phrase “in all material respects” is intended to refer to an act, omission, violation or condition which reflects or could reasonably be expected to result in a Material Adverse Effect. References to capitalized terms that are not defined herein, but are defined in the UCC, shall have the meanings given them in the UCC. All references herein to times of day shall be references to daylight or standard time, as applicable.
Section 1.4 Time is of the Essence. Time is of the essence in Borrower’s and each other Credit Party’s performance under this Agreement and all other Financing Documents
ARTICLE 2
LOANS
Section 2.1 Loans.
(a) Term Loans.
(i) Term Loan Amounts.
(A) On the terms and subject to the conditions set forth herein, each Lender with a Term Loan Tranche 1 Commitment severally hereby agrees to make to Borrowers a term loan on the Closing Date in an original aggregate principal amount equal to the Term Loan Tranche 1 Commitment (the “Term Loan Tranche 1”). Each such Lender’s obligation to fund the Term Loan Tranche 1 shall be limited to such Lender’s Term Loan Tranche 1 Commitment Percentage, and no Lender shall have any obligation to fund any portion of any Term Loan required to be funded by any other Lender, but not so funded.
(B) On the terms and subject to the conditions set forth herein and in the other Financing Documents, each Lender with a Term Loan Tranche 2 Commitment severally hereby agrees to make to Borrowers a term loan on a Business Day occurring after the Closing Date and on or prior to the Term Loan Tranche 2 Commitment Termination Date (the “Term Loan Tranche 2 Funding Date”) in an original aggregate principal amount not to exceed the Term Loan Tranche 2 Commitment (the “Term Loan Tranche 2”); provided that the original aggregate principal amount of the Term Loan Tranche 2 shall not be less than $5,000,000 and, if greater, shall be a multiple of $5,000,000. Each such Lender’s obligation to fund the Term Loan Tranche 2 shall be limited to such Lender’s Term Loan Tranche 2 Commitment Percentage, and no Lender shall have any obligation to fund any portion of any Term Loan required to be funded by any other Lender, but not so funded. Unless previously terminated, on the Term Loan Tranche 2 Commitment Termination Date, the Term Loan Tranche 2 Commitment shall thereupon automatically be terminated and the Term Loan Tranche 2 Commitment Amount of each Lender as of such date shall be reduced by such Lender’s Pro Rata Share of such total reduction in the Term Loan Commitments. Similarly, if the full amount of the Term Loan Tranche 2 Commitment is not funded on the Term Loan Tranche 2 Funding Date, the unfunded portion of the Term Loan Tranche 2 Commitment shall thereupon automatically be terminated and the Term Loan Tranche 2 Commitment Amount of each Lender as of such date shall be reduced by such Lender’s Pro Rata Share of such total reduction in the Term Loan Commitments.
(C) No Borrower shall have any right to reborrow any portion of the Term Loan that is repaid or prepaid from time to time. Borrowers shall deliver to Agent a Notice of Borrowing with respect to each proposed Term Loan advance, such Notice of Borrowing to be delivered no later than noon (Eastern time) two (2) Business Days prior to such proposed borrowing; provided that for the borrowing of the Term Loan on the Closing Date, Borrower may deliver the Notice of Borrowing on the Closing Date; provided further that, with respect to Term Loan Tranche 2, Borrowers further shall provide Agent written notice of its intent to borrow not less than thirty (30) days prior to such proposed borrowing, which notice shall set forth the proposed date of borrowing.
(ii) Scheduled Repayments; Mandatory Prepayments; Optional Prepayments.
(A) There shall become due and payable, and Borrowers shall repay the Term Loan through, scheduled payments as set forth on Schedule 2.1 attached hereto. Notwithstanding the payment schedule set forth above, the outstanding principal amount of the Term Loan shall become immediately due and payable in full on the Termination Date.
(B) There shall become due and payable and Borrowers shall prepay the Term Loan in the following amounts and at the following times:
(1) Unless Agent shall otherwise consent in writing, on the date on which any Credit Party (or Agent as loss payee or assignee) receives any casualty proceeds in excess of $1,000,000 with respect to assets upon which Agent maintained a Lien, an amount equal to one hundred percent (100%) of such proceeds (net of anticipated taxes, out-of-pocket expenses and repayment of secured debt permitted under clause (c) of the definition of Permitted Debt and encumbering the property that suffered such casualty), or such lesser portion of such proceeds as Agent shall elect to apply to the Obligations;
(2) an amount equal to any interest that is deemed to be in excess of the Maximum Lawful Rate (as defined below) and is required to be applied to the reduction of the principal balance of the Loans by any Lender as provided for in Section 2.7;
(3) unless Agent shall otherwise consent in writing, upon receipt by any Credit Party of the proceeds of any Asset Disposition that is not made in the Ordinary Course of Business, other than Asset Dispositions constituting Permitted Asset Dispositions under clauses (d), (k) or (m) of such definition, in excess of $1,000,000, an amount equal to one hundred percent (100%) of the net cash proceeds of such Asset Disposition (net of taxes, out-of-pocket expenses and repayment of secured debt permitted under clause (c) of the definition of Permitted Debt and encumbering such asset), or such lesser portion as Agent shall elect to apply to the Obligations;
(4) unless Agent shall otherwise consent in writing, upon receipt by any Credit Party of any proceeds from the incurrence of Debt that is not Permitted Debt or equity securities issued to pay the Cure Amount, an amount equal to one hundred percent (100%) of such Debt or equity securities or such lesser portion as Agent shall elect to apply to the Obligations; and
(5) Upon the termination of all Revolving Loan Commitments (as defined in the Affiliated Financing Documents) and the payment of the then existing aggregate outstanding principal amount of the Revolving Loans, the aggregate outstanding Obligations.
Notwithstanding the foregoing and so long as no Event of Default or Default then exists: (y) any such casualty proceeds in excess of $1,000,000 (other than with respect to Inventory and any real property encumbered by a Lien in favor of Agent, unless Agent shall otherwise elect) within one hundred eighty (180) days (or such longer period as Agent may agree in its reasonable discretion) from the receipt of such proceeds to purchase new or replacement assets so long
as such proceeds are deposited into an account that is subject to a Deposit Account Control Agreement or Securities Account Control Agreement; and (z) proceeds of Asset Dispositions described in clause (3) above may be used by Borrowers within one hundred eighty (180) days (or such longer period as Agent may agree in its reasonable discretion) from the receipt of such proceeds to purchase new or replacement assets, provided, however, that such proceeds are deposited into an account that is subject to a Deposit Account Control Agreement or Securities Account Control Agreement.
(C) Borrowers may from time to time, with at least two (2) Business Days prior delivery to Agent of an appropriately completed Payment Notification, prepay the Term Loan in whole but not in part (other than mandatory partial prepayments required under this Agreement); provided, however, that each such prepayment shall be accompanied by any prepayment fees required hereunder.
(iii) All Prepayments. Except as this Agreement may specifically provide otherwise, all prepayments of the Term Loan shall be applied by Agent to the Obligations in inverse order of maturity. The monthly payments required under Schedule 2.1 shall continue in the same amount (for so long as the Term Loan and/or (if applicable) any advance thereunder shall remain outstanding) notwithstanding any partial prepayment, whether mandatory or optional, of the Term Loan.
(iv) LIBOR Rate.
(A) Except as provided in subsection (C) below, the Term Loan shall accrue interest at the LIBOR Rate plus the Applicable Margin.
(B) The LIBOR Rate may be adjusted by Agent by notice to Borrower Representative with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining any eurodollar deposits or increased costs, in each case, due to changes in applicable Law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), which additional or increased costs would increase the cost of funding loans bearing interest based upon the LIBOR Rate; provided, however, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in applicable Law”, regardless of the date enacted, adopted or issued. In any such event, the affected Lender shall give Borrowers and Agent notice of such a determination and adjustment and Agent promptly shall transmit the notice to each other Lender and,
along with a certificate from such Lender setting forth the basis for adjusting such LIBOR Rate and the method for determining the amount of such adjustment. Upon receipt of such notice, Borrowers may, by notice to such affected Lender, repay the Loans bearing interest based upon the LIBOR Rate with respect to which such adjustment is made.
(C) In the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to fund or maintain Loans bearing interest based upon the LIBOR Rate or to continue such funding or maintaining, or to determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such changed circumstances to Agent and Borrowers and Agent promptly shall transmit the notice to each other Lender and (I) in the case of any outstanding Loans of such Lender bearing interest based upon the LIBOR Rate, the date specified in such Lender’s notice shall be deemed to be the last day of the Interest Period of such Loans, and interest upon such Lender’s Loans thereafter shall accrue interest at Base Rate plus the Applicable Margin, and (II) such Loans shall continue to accrue interest at Base Rate plus the Applicable Margin until such Lender determines that it would no longer be unlawful or impractical to maintain such Loans at the LIBOR Rate.
(D) Anything to the contrary contained herein notwithstanding, neither Agent nor any Lender is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues based on the LIBOR Rate.
(b) Reserved.
(c) Reserved.
Section 2.2 Interest, Interest Calculations and Certain Fees.
(a) Interest. From and following the Closing Date, except as expressly set forth in this Agreement, Loans and the other Obligations shall bear interest at the sum of the LIBOR Rate plus the Applicable Margin. Interest on the Loans shall be paid in arrears on the first (1st) day of each month and on the maturity of such Loans, whether by acceleration or otherwise. Interest on all other Obligations shall be payable upon demand.
(b) Reserved.
(c) Fee Letter. In addition to the other fees set forth herein, Borrowers agree to pay Agent the fees set forth in the Fee Letter.
(d) Reserved.
(e) Reserved.
(f) Reserved.
(g) Prepayment Fee. If any advance under the Term Loan is prepaid at any time, in whole or in part, for any reason (whether by voluntary prepayment by Borrowers, by reason of the occurrence of an Event of Default or the acceleration of the Term Loan, or otherwise), or if the Term Loan shall become accelerated and due and payable in full, Borrowers shall pay to Agent, for the benefit of all Lenders committed to make Term Loan advances, as compensation for the costs of such Lenders making funds available to Borrowers under this Agreement, a prepayment fee (the “Prepayment Fee”) calculated in accordance with this subsection. The Prepayment Fee in respect of each of Term Loan Tranche 1 shall be equal to an amount determined by multiplying the amount being prepaid (or required to be prepaid, if such amount is greater) by the following applicable percentage amount: (w) three percent (3.0%) for the first year following the Closing Date, (x) two percent (2.0%) for the second year following the Closing Date, (y) one percent (1.0%) for the third year following the Closing Date and (z) zero percent (0.0%) thereafter. The Prepayment Fee in respect of each of Term Loan Tranche 2 shall be equal to an amount determined by multiplying the amount being prepaid (or required to be prepaid, if such amount is greater) by the following applicable percentage amount: (w) three percent (3.0%) for the first year following the Term Loan Tranche 2 Funding Date, (x) two percent (2.0%) for the second year following the Term Loan Tranche 2 Funding Date, (y) one percent (1.0%) for the third year following the Term Loan Tranche 2 Funding Date and (z) zero percent (0.0%) thereafter. The Prepayment Fee shall not apply to or be assessed upon any prepayment made by Borrowers if such payments were required by Agent to be made pursuant to Section 2.1(a)(ii)(B) subpart (i) (relating to casualty proceeds), or subpart (ii) (relating to payments exceeding the Maximum Lawful Rate). All fees payable pursuant to this paragraph shall be deemed fully earned and non-refundable as of the Closing Date.
(h) Audit Fees. Borrowers shall pay to Agent, for its own account and not for the benefit of any other Lenders, all reasonable fees and expenses in connection with audits and inspections of Borrowers’ books and records, audits, valuations or appraisals of the Collateral, audits of Borrowers’ compliance with applicable Laws and such other matters as Agent shall deem appropriate, which shall be due and payable on the first Business Day of the month following the date of issuance by Agent of a written request for payment thereof to Borrowers.
(i) Wire Fees. Borrowers shall pay to Agent, for its own account and not for the account of any other Lenders, on written demand, fees for incoming and outgoing wires made for the account of Borrowers, such fees to be based on Agent’s then current wire fee schedule (available upon written request of Borrowers).
(j) Late Charges. If payments of principal (other than a final installment of principal upon the Termination Date), interest due on the Obligations, or any other amounts due hereunder or under the other Financing Documents are not timely made and remain overdue for a period of five (5) days, Borrowers, without notice or demand by Agent, promptly shall pay to Agent, for its own account and not for the benefit of any other Lenders, as additional compensation to Agent in administering the Obligations, an amount equal to five percent (5.0%) of each delinquent payment.
(k) Computation of Interest and Related Fees. All interest and fees under each Financing Document shall be calculated on the basis of a 360-day year for the actual number of days elapsed. The date of funding of a Loan shall be included in the calculation of interest. The date of payment of a Loan shall be excluded from the calculation of interest. If a Loan is repaid on the same day that it is made, one (1) day’s interest shall be charged.
(l) Automated Clearing House Payments. If Agent (or its designated servicer or trustee on behalf of a securitization vehicle) so elects, monthly payments of principal, interest, fees, expenses or any other amounts due and owing from Borrowers to Agent hereunder shall be paid to Agent by Automated Clearing House debit of immediately available funds from the financial institution account designated by Borrower Representative in the Automated Clearing House debit authorization executed by Borrowers or Borrower Representative in connection with this Agreement, and shall be effective upon receipt. Borrowers shall execute any and all forms and documentation necessary from time to time to effectuate such automatic debiting. In no event shall any such payments be refunded to Borrowers.
Section 2.3 Notes. The portion of the Loans made by each Lender shall be evidenced, if so requested by such Lender, by one or more promissory notes executed by Borrowers on a joint and several basis (each, a “Note”) in an original principal amount equal to such Lender’s Term Loan Commitment Amount.
Section 2.4 Reserved.
Section 2.5 Reserved.
Section 2.6 General Provisions Regarding Payment; Loan Account.
(a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day.
(b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at
any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.
Section 2.7 Maximum Interest. In no event shall the interest charged with respect to the Loans or any other Obligations of any Borrower under any Financing Document exceed the maximum amount permitted under the laws of the State of New York or of any other applicable jurisdiction. Notwithstanding anything to the contrary herein or elsewhere, if at any time the rate of interest payable hereunder or under any Note or other Financing Document (the “Stated Rate”) would exceed the highest rate of interest permitted under any applicable law to be charged (the “Maximum Lawful Rate”), then for so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the Stated Rate is less than the Maximum Lawful Rate, each Borrower shall, to the extent permitted by law, continue to pay interest at the Maximum Lawful Rate until such time as the total interest received is equal to the total interest which would have been received had the Stated Rate been (but for the operation of this provision) the interest rate payable. Thereafter, the interest rate payable shall be the Stated Rate unless and until the Stated Rate again would exceed the Maximum Lawful Rate, in which event this provision shall again apply. In no event shall the total interest received by any Lender exceed the amount which it could lawfully have received had the interest been calculated for the full term hereof at the Maximum Lawful Rate. If, notwithstanding the prior sentence, any Lender has received interest hereunder in excess of the Maximum Lawful Rate, such excess amount shall be applied to the reduction of the principal balance of the Loans or to other amounts (other than interest) payable hereunder, and if no such principal or other amounts are then outstanding, such excess or part thereof remaining shall be paid to Borrowers. In computing interest payable with reference to the Maximum Lawful Rate applicable to any Lender, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made.
Section 2.8 Taxes; Capital Adequacy.
(a) Except as required by applicable Law, all payments of principal and interest on the Loans and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp, documentary, payroll, employment, property or franchise taxes and other taxes, fees, duties, levies, assessments, withholdings or other charges of any nature whatsoever (including interest and penalties thereon) imposed by any taxing authority, (“Taxes”). If any withholding or deduction from any payment to be made by any Borrower hereunder is required in respect of any Taxes pursuant to any applicable Law, then Borrowers will: (i) be entitled to make such withholding or deduction, (ii) pay directly to the relevant authority the full amount required to be so withheld or deducted; (iii) promptly forward to Agent an official receipt or other documentation satisfactory to Agent evidencing such payment to such authority; and (iv) if such Tax is an Indemnified Tax, pay to Agent for the account of Agent
and Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by Agent and each Lender will equal the full amount Agent and such Lender would have received had no such withholding or deduction been required (including, without limitation, such withholdings and deductions applicable to additional sums payable under this Section 2.8). If any Indemnified Taxes are directly asserted against Agent or any Lender with respect to any payment received by Agent or such Lender hereunder, Agent or such Lender may pay such Indemnified Taxes and Borrowers will promptly pay such additional amounts (including any penalty, interest or expense) as is necessary in order that the net amount received by such Person after the payment of such Indemnified Taxes (including any Indemnified Taxes on such additional amount) shall equal the amount such Person would have received had such Indemnified Taxes not been asserted so long as such amounts have accrued on or after the day which is two hundred seventy (270) days prior to the date on which Agent or such Lender first made written demand therefor.
(b) The Credit Parties shall indemnify Agent and Lenders, within ten (10) days after demand thereof, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.8) payable or paid by Agent or any Lender or required to be withheld or deducted from a payment to Agent or any Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes and Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate in reasonable detail as to the amount of such payment or liability delivered to Borrower Representative by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(c)
(i) Each Lender that (i) is organized under the laws of a jurisdiction other than the United States, and (ii)(A) is a party hereto on the Closing Date or (B) purports to become an assignee of an interest as a Lender under this Agreement after the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) shall, to the extent legally entitled to do so, deliver on or prior to the date on which such Lender becomes a Lender (or such assignee acquires such assigned interest) to Borrower Representative and Agent one or more (as Borrower Representative or Agent may reasonably request) United States Internal Revenue Service (“IRS”) Forms W-8ECI, W-8BEN, W-8BEN-E, W-8IMY (as applicable) and other applicable forms, certificates or documents prescribed by the United States Internal Revenue Service or reasonably requested by Agent certifying as to such Lender’s entitlement to a complete exemption from, or reduced rate of, withholding or deduction of Taxes. Each Lender that is a United States Person and is a party hereto on the Closing Date or purports to become an assignee of an interest as a Lender under this Agreement after the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) shall deliver on or prior to the date on which such Lender becomes a Lender (or such assignee acquires such assigned interest) to Borrower Representative and Agent an IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax.
(ii) To the extent permitted by Law, each Lender shall deliver, at the time or times reasonably requested by Borrower Representative or Agent, such additional properly completed and executed documentation as is reasonably requested by Borrower Representative or Agent to permit payments hereunder to be made without withholding or at a reduced rate of withholding. Without limiting the foregoing, each Lender shall timely provide any documentation reasonably requested by Borrower Representative or Agent sufficient for Borrowers and Agent to comply with their obligations under FATCA and to determine whether such Lender has complied with applicable reporting requirements under FATCA.
(iii) Each Lender shall (to the extent legally entitled to do so) provide updated forms to Borrower Representative and Agent on or prior to the date any prior form previously provided under this Section 2.8(c) becomes obsolete or expires, after the occurrence of an event requiring a change in the most recent form or certification previously delivered by it pursuant to this Section 2.8(c) or from time to time if requested by Borrowers or Agent.
(d) If any Lender shall determine in its commercially reasonable judgment that the adoption or taking effect of, or any change in, any applicable Law regarding capital adequacy, in each instance, after the Closing Date, or any change after the Closing Date in the interpretation, administration or application thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation, administration or application thereof, or the compliance by any Lender or any Person controlling such Lender with any request, guideline or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency adopted or otherwise taking effect after the Closing Date, has or would have the effect of reducing the rate of return on such Lender’s or such controlling Person’s capital as a consequence of such Lender’s obligations hereunder to a level below that which such Lender or such controlling Person could have achieved but for such adoption, taking effect, change, interpretation, administration, application or compliance (taking into consideration such Lender’s or such controlling Person’s policies with respect to capital adequacy) then from time to time, upon written demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall promptly pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is two hundred seventy (270) days prior to the date on which such Lender first made demand therefor; provided, however, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in applicable Law”, regardless of the date enacted, adopted or issued.
(e) If any Lender requires compensation under Section 2.8(d), or requires any Borrower to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.8(a), then, upon the written request of Borrower Representative, such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder (subject
to the terms of this Agreement) to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or materially reduce amounts payable pursuant to any such subsection, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender (as determined in its sole discretion). Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(f) If any Lender determines, in its sole discretion exercised in good faith, that it has received a refund in respect of any Taxes as to which it has been indemnified by any Borrower pursuant to this Section 2.8 (including the payment of additional amounts pursuant to this Section 2.8), then it shall promptly pay an amount equal to such refund to Borrower Representative, net of all reasonable out-of-pocket expenses of such Lender or of Agent with respect thereto, including any Taxes; provided, however, that each Borrower, upon the written request of such Lender or Agent, agrees to repay any amount paid over to Borrower Representative to such Lender or to Agent (plus any related penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Lender or Agent is required, for any reason, to disgorge or otherwise repay such refund. Notwithstanding anything to the contrary in this Section 2.8, in no event will a Lender be required to pay any amount to a Borrower pursuant to this Section 2.8(f) the payment of which would place such Lender in a less favorable net after-Tax position than such Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.8 shall not be construed to require any Lender (or Agent) to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower (or affiliate, successor or assignee thereof) or any other Person.
(g) Each Lender shall severally indemnify Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.17(b)(ii) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Agent in connection with any Financing Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Agent to set off and apply any and all amounts at any time owing to such Lender under any Financing Document or otherwise payable by Agent to such Lender from any other source against any amount due to Agent under this paragraph (g).
(h) Each party’s obligations under this Section 2.8 shall survive the resignation or replacement of Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Obligations and the repayment, satisfaction or discharge of all obligations under any Financing Document.
Section 2.9 Appointment of Borrower Representative. Each Borrower hereby designates Borrower Representative as its representative and agent on its behalf for the purposes of issuing Notices of Borrowing and giving instructions with respect to the disbursement of the proceeds of the Loans, giving and receiving all other notices and consents hereunder or under any of the other Financing Documents and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or Borrowers under the Financing Documents. Borrower Representative hereby accepts such appointment. Notwithstanding anything to the contrary contained in this Agreement, no Borrower other than Borrower Representative shall be entitled to take any of the foregoing actions. The proceeds of each Loan made hereunder shall be advanced to or at the direction of Borrower Representative and if not used by Borrower Representative in its business (for the purposes provided in this Agreement) shall be deemed to be immediately advanced by Borrower Representative to the appropriate other Borrower hereunder as an intercompany loan (collectively, “Intercompany Loans”). All collections of each Borrower in respect of Accounts and other proceeds of Collateral of such Borrower received by Agent and applied to the Obligations shall also be deemed to be repayments of the Intercompany Loans owing by such Borrower to Borrower Representative. Borrowers shall maintain accurate books and records with respect to all Intercompany Loans and all repayments thereof. Agent and each Lender may regard any notice or other communication pursuant to any Financing Document from Borrower Representative as a notice or communication from all Borrowers, and may give any notice or communication required or permitted to be given to any Borrower or all Borrowers hereunder to Borrower Representative on behalf of such Borrower or all Borrowers. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.
Section 2.10 Joint and Several Liability; Rights of Contribution; Subordination and Subrogation.
(a) Borrowers are defined collectively to include all Persons named as a Borrower herein; provided, however, that any references herein to “any Borrower”, “each Borrower” or similar references, shall be construed as a reference to each individual Person named as a Borrower herein. Each Person so named shall be jointly and severally liable for all of the obligations of Borrowers under this Agreement. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities would not be made available on the terms herein in the absence of the collective credit of all of the Persons named as a Borrower herein, the joint and several liability of all such Persons, and the cross-collateralization of the collateral of all such Persons. Accordingly, each Borrower individually acknowledges that the benefit to each of the Persons named as a Borrower as a whole constitutes reasonably equivalent value, regardless of the amount of the credit facilities actually borrowed by, advanced to, or the amount of collateral provided by, any individual Borrower. In addition, each entity named as a Borrower herein hereby acknowledges and agrees that all of the representations, warranties, covenants, obligations, conditions, agreements and other terms contained in this Agreement shall be applicable to and shall be binding upon and measured and enforceable individually against each Person named as a Borrower herein as well as all such Persons when taken together. By way of illustration, but without limiting the generality of the foregoing, the terms of Section 10.1 of this Agreement are to be applied to each individual Person named as a Borrower herein (as well as to
all such Persons taken as a whole), such that the occurrence of any of the events described in Section 10.1 of this Agreement as to any Person named as a Borrower herein shall constitute an Event of Default even if such event has not occurred as to any other Persons named as a Borrower or as to all such Persons taken as a whole.
(b) Notwithstanding any provisions of this Agreement to the contrary, it is intended that the joint and several nature of the liability of each Borrower for the Obligations and the Liens granted by Borrowers to secure the Obligations, not constitute a Fraudulent Conveyance (as defined below). Consequently, Agent, Lenders and each Borrower agree that if the liability of a Borrower for the Obligations, or any Liens granted by such Borrower securing the Obligations would, but for the application of this sentence, constitute a Fraudulent Conveyance, the liability of such Borrower and the Liens securing such liability shall be valid and enforceable only to the maximum extent that would not cause such liability or such Lien to constitute a Fraudulent Conveyance, and the liability of such Borrower and this Agreement shall automatically be deemed to have been amended accordingly. For purposes hereof, the term “Fraudulent Conveyance” means a fraudulent conveyance under Section 548 of Chapter 11 of Title II of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the applicable provisions of any fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit, as in effect from time to time.
(c) Agent is hereby authorized, without notice or demand (except as otherwise specifically required under this Agreement) and without affecting the liability of any Borrower hereunder, at any time and from time to time, to: (i) renew, extend or otherwise increase the time for payment of the Obligations; (ii) with the written agreement of any Borrower, change the terms relating to the Obligations or otherwise modify, amend or change the terms of any Note or other agreement, document or instrument now or hereafter executed by any Borrower and delivered to Agent for any Lender; (iii) accept partial payments of the Obligations; (iv) take and hold any Collateral for the payment of the Obligations or for the payment of any guaranties of the Obligations and exchange, enforce, waive and release any such Collateral; (v) apply any such Collateral and direct the order or manner of sale thereof as Agent, in its sole discretion, may determine; and (vi) settle, release, compromise, collect or otherwise liquidate the Obligations and any Collateral therefor in any manner, all guarantor and surety defenses being hereby waived by each Borrower. Without limitation of the foregoing, with respect to the Obligations, each Borrower hereby makes and adopts each of the agreements and waivers set forth in each Guarantee, the same being incorporated hereby by reference. Except as specifically provided in this Agreement or any of the other Financing Documents, Agent shall have the exclusive right to determine the time and manner of application of any payments or credits, whether received from any Borrower or any other source, and such determination shall be binding on all Borrowers. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of the Obligations that Agent shall determine, in its sole discretion, without affecting the validity or enforceability of the Obligations of the other Borrower.
(d) Each Borrower hereby agrees that, except as hereinafter provided, its obligations hereunder shall be unconditional, irrespective of: (i) the absence of any attempt to collect the Obligations from any obligor or other action to enforce the same; (ii) the waiver or consent by Agent with respect to any provision of any instrument evidencing the Obligations, or any part thereof, or any other agreement heretofore, now or hereafter executed by a Borrower and
delivered to Agent; (iii) failure by Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations; (iv) the institution of any proceeding under the Bankruptcy Code, or any similar proceeding, by or against a Borrower or Agent’s election in any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code; (v) any borrowing or grant of a security interest by a Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code; (vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Agent’s claim(s) for repayment of any of the Obligations; or (vii) any other circumstance other than payment in full of the Obligations which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety.
(e) Borrowers hereby agree, as between themselves, that to the extent that Agent, on behalf of Lenders, shall have received from any Borrower any Recovery Amount (as defined below), then the paying Borrower shall have a right of contribution against each other Borrower in an amount equal to such other Borrower’s contributive share of such Recovery Amount; provided, however, that in the event any Borrower suffers a Deficiency Amount (as defined below), then the applicable Borrower suffering the Deficiency Amount shall be entitled to seek and receive contribution from and against the other Borrowers in an amount equal to the Deficiency Amount; and provided, further, that in no event shall the aggregate amounts so reimbursed by reason of the contribution of any Borrower equal or exceed an amount that would, if paid, constitute or result in Fraudulent Conveyance. Until all Obligations have been paid and satisfied in full, no payment made by or for the account of a Borrower including, without limitation, (i) a payment made by such Borrower on behalf of the liabilities of any other Borrower, or (ii) a payment made by any other Guarantor under any Guarantee, shall entitle such Borrower, by subrogation or otherwise, to any payment from such other Borrower or from or out of such other Borrower’s property. The right of each Borrower to receive any contribution under this Section 2.10(e) or by subrogation or otherwise from any other Borrower shall be subordinate in right of payment to the Obligations and such Borrower shall not exercise any right or remedy against such other Borrower or any property of such other Borrower by reason of any performance of such Borrower of its joint and several obligations hereunder, until the Obligations have been indefeasibly paid and satisfied in full, and no Borrower shall exercise any right or remedy with respect to this Section 2.10(e) until the Obligations have been indefeasibly paid and satisfied in full. As used in this Section 2.10(e), the term “Recovery Amount” means the amount of proceeds received by or credited to Agent from the exercise of any remedy of Lenders under this Agreement or the other Financing Documents, including, without limitation, the sale of any Collateral. As used in this Section 2.10(e), the term “Deficiency Amount” means any amount that is less than the entire amount a Borrower is entitled to receive by way of contribution or subrogation from, but that has not been paid by, the other Borrowers in respect of any Recovery Amount attributable to such Borrower entitled to contribution, until the Deficiency Amount has been reduced to Zero Dollars ($0) through contributions and reimbursements made under the terms of this Section 2.10(e) or otherwise.
Section 2.11 Reserved.
Section 2.12 Termination; Restriction on Termination.
(a) Termination by Lenders. In addition to the rights set forth in Section 10.2, Agent may, and at the direction of Required Lenders shall, terminate this Agreement without notice during the existence of an Event of Default.
(b) Termination by Borrowers. Upon at least five (5) Business Days’ (or such shorter period as Agent, in its sole discretion, shall agree) prior written notice to Agent and Lenders, Borrowers may, at their option, terminate this Agreement; provided, however, that no such termination shall be effective until Borrowers have (i) paid or collateralized to Agent’s reasonable satisfaction all of the Obligations in immediately available funds, and (ii) complied with Section 2.2(g) and the terms of the Fee Letter. Any notice of termination given by Borrowers shall be irrevocable unless all Lenders otherwise agree in writing and no Lender shall have any obligation to make any Loans on or after the termination date stated in such notice. Borrowers may elect to terminate this Agreement in its entirety only. No section of this Agreement or type of Loan available hereunder may be terminated singly.
(c) Effectiveness of Termination. All of the Obligations shall be immediately due and payable upon the Termination Date. All undertakings, agreements, covenants, warranties and representations of Borrowers contained in the Financing Documents shall survive any such termination and Agent shall retain its Liens in the Collateral and Agent and each Lender shall retain all of its rights and remedies under the Financing Documents notwithstanding such termination until all Obligations (other than with respect to contingent indemnification obligations for which no claim has been made) have been discharged or paid, in full, in immediately available funds, including, without limitation, all Obligations under Section 2.2(g) and the terms of the Fee Letter resulting from such termination. Notwithstanding the foregoing or the payment in full of the Obligations, Agent shall not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agent may reasonably expect to incur as a result of dishonored checks or other items of payment received by Agent from Borrower or any Account Debtor and applied to the Obligations, Agent shall, at its option, (i) have received a written agreement reasonably satisfactory to Agent, executed by Borrowers and by any Person whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying Agent and each Lender from any such loss or damage or (ii) have retained cash Collateral or other Collateral for such period of time as Agent, in its reasonable discretion, may deem necessary to protect Agent and each Lender from any such loss or damage.
(d) Partial Collateral Release. In respect of Collateral that is disposed of in connection with a Permitted Asset Disposition, the security interest in such Collateral (but not in respect of Collateral not so disposed of) shall be automatically terminated upon such disposition without any further action by any party.
(e) Actions by Agent. Without limiting the foregoing clauses (a) — (d), Agent will, at the sole expense of Borrowers, take such actions as may be reasonably requested by Borrowers to evidence any of the foregoing releases set forth in clauses (c) and (d) above (including duly assigning, transferring and delivering to or at the direction of Borrowers (without
recourse and without any representation or warranty) such of the Collateral as may then be in the possession of Agent, together with any monies at the time held by Agent hereunder, and executing and delivering to Borrowers a proper instrument or instruments, as reasonably requested, acknowledging the satisfaction and termination of this Agreement (in the case of clause (c) above) and the release of Liens hereunder and under the other Financing Documents), all of which shall be in form and substance acceptable to Agent.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lenders to enter into this Agreement and to make the Loans and other credit accommodations contemplated hereby, each Borrower hereby represents and warrants to Agent and each Lender that:
Section 3.1 Existence and Power. Each Credit Party is an entity as specified on Schedule 3.1, is duly organized, validly existing and in good standing under the laws of the jurisdiction specified on Schedule 3.1 and no other jurisdiction, has the same legal name as it appears in such Credit Party’s Organizational Documents and an organizational identification number (if any), in each case as specified on Schedule 3.1, and has all powers and all Permits necessary or desirable in the operation of its business as presently conducted or as proposed to be conducted, except where the failure to have such Permits could not reasonably be expected to have a Material Adverse Effect. Each Credit Party is qualified to do business as a foreign entity in each jurisdiction in which it is required to be so qualified, which jurisdictions as of the Closing Date are specified on Schedule 3.1, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, except as set forth on Schedule 3.1, no Credit Party (a) has had, over the five (5) year period preceding the Closing Date, any name other than its current name, or (b) was incorporated or organized under the laws of any jurisdiction other than its current jurisdiction of incorporation or organization.
Section 3.2 Organization and Governmental Authorization; No Contravention. The execution, delivery and performance by each Credit Party of the Operative Documents to which it is a party are within its powers, have been duly authorized by all necessary action pursuant to its Organizational Documents, require no further action by or in respect of, or filing with, any Governmental Authority, except for the filings necessary to perfect the Liens created by the Financing Documents and any necessary filings with the SEC, and do not violate, conflict with or cause a breach or a default under (a) any Law applicable to any Credit Party or any of the Organizational Documents of any Credit Party, or (b) any agreement or instrument binding upon it, except for such violations, conflicts, breaches or defaults as could not, with respect to this clause (b), reasonably be expected to have a Material Adverse Effect.
Section 3.3 Binding Effect. Each of the Operative Documents to which any Credit Party is a party constitutes a valid and binding agreement or instrument of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.
Section 3.4 Capitalization. The authorized equity securities of each of the Credit Parties (other than Accuray) as of the Closing Date are as set forth on Schedule 3.4. All issued and outstanding equity securities of each of the Credit Parties (other than Accuray) are duly authorized and validly issued, fully paid, nonassessable, free and clear of all Liens other than those in favor of Agent for the benefit of Agent and Lenders, and such equity securities were issued in compliance with all applicable Laws. The identity of the holders of the equity securities of each of the Credit Parties (other than Accuray) and the percentage of their fully-diluted ownership of the equity securities of each of the Credit Parties (other than Accuray) as of the Closing Date is set forth on Schedule 3.4. No shares of the capital stock or other equity securities of any Credit Party (other than Accuray), other than those described above, are issued and outstanding as of the Closing Date. Except as set forth on Schedule 3.4, as of the Closing Date there are no preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition from any Credit Party (other than Accuray) of any equity securities of any such entity.
Section 3.5 Financial Information. The Financial Statements delivered to Agent fairly present, in all material respects, the financial position of Accuray and its Consolidated Subsidiaries as of such date in conformity with GAAP. Since June 30, 2017, no Material Adverse Effect has occurred.
Section 3.6 Litigation. Except as set forth on Schedule 3.6 as of the Closing Date, and except as hereafter disclosed to Agent in writing, there is no Litigation pending against, or to such Borrower’s knowledge threatened, in writing, against or affecting, any Credit Party that, individually or the aggregate, could reasonably be expected to have a Material Adverse Effect or which in any manner draws into question the validity of any of the Operative Documents.
Section 3.7 Ownership of Property. Each Borrower is the lawful owner of, has good and marketable title to, subject to Permitted Liens, and is in lawful possession of, or has valid leasehold interests in, all properties and other assets (real or personal, tangible, intangible or mixed) purported or reported to be owned or leased (as the case may be) by such Person, except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes.
Section 3.8 No Default. No Event of Default, or to such Borrower’s knowledge, Default, has occurred and is continuing. No Credit Party is in breach or default under or with respect to any contract, agreement, lease or other instrument to which it is a party or by which its property is bound or affected, which breach or default could reasonably be expected to have a Material Adverse Effect.
Section 3.9 Labor Matters. As of the Closing Date, there are no strikes or other labor disputes pending or, to any Borrower’s knowledge, threatened in writing against any Credit Party. Hours worked and payments made to the employees of the Credit Parties have not been in material violation of the Fair Labor Standards Act or any other applicable Law dealing with such matters. All material payments due from the Credit Parties, or for which any claim may be made against any of them, on account of wages and employee retirement and health and welfare benefits or insurance have been paid or accrued as a liability on their books, as the case may be. The consummation of the transactions contemplated by the Financing Documents will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which it is a party or by which it is bound.
Section 3.10 Regulated Entities. No Credit Party is required to be registered as an “investment company” under the Investment Company Act of 1940.
Section 3.11 Margin Regulations. None of the proceeds from the Loans have been or will be used, directly or indirectly, for the purpose of purchasing or carrying any “margin stock” (as defined in Regulation U of the Federal Reserve Board) or for any other purpose which might cause any of the Loans to be considered a “purpose credit” within the meaning of Regulation T, U or X of the Federal Reserve Board.
Section 3.12 Compliance With Laws; Anti-Terrorism Laws.
(a) Each Credit Party is in compliance with the requirements of all applicable Laws, except for such Laws the noncompliance with which could not reasonably be expected to have a Material Adverse Effect.
(b) None of the Credit Parties and, to the knowledge of the Credit Parties, none of their Affiliates (i) is in violation of any Anti-Terrorism Law, (ii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, (iii) is a Blocked Person, (iv) is acting or will act for or on behalf of a Blocked Person, (v) is associated with, or will become associated with, a Blocked Person or (vi) is providing, or will provide, material, financial or technical support or other services to or in support of acts of terrorism of a Blocked Person. No Credit Party nor, to the knowledge of any Credit Party, any of its Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, except in compliance with applicable Law or (B) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law.
Section 3.13 Taxes. All material federal, state, foreign and local tax returns, reports and statements required to be filed by or on behalf of each Credit Party have been filed with the appropriate Governmental Authorities in all jurisdictions in which such returns, reports and statements are required to be filed and, except to the extent subject to a Permitted Contest, all income and other material Taxes (including real property Taxes) and other charges shown to be due and payable in respect thereof have been timely paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof. Except to the extent subject to a Permitted Contest, all material state and local sales and use Taxes required to be paid by each Credit Party have been paid. All income and other material federal and state Tax returns have been filed by each Credit Party for all periods for which returns were due with respect to employee income tax withholding, social security and unemployment taxes, and, except to the extent subject to a Permitted Contest, the material amounts shown thereon to be due and payable have been paid in full or adequate provisions therefor have been made. For purposes of this Section 3.13, any federal, state, local or foreign tax, assessment, deposit or contribution, and any
return with respect thereto, shall not be considered “material” only if and to the extent that the amount of such tax, assessment, deposit or contribution, when added to all other outstanding taxes, assessments, deposits or contributions, is equal to or less than $1,000,000 in the aggregate at any time.
Section 3.14 Compliance with ERISA.
(a) Each ERISA Plan (and the related trusts and funding agreements) complies in form and in operation with, has been administered in compliance with, and the terms of each ERISA Plan satisfy, the applicable requirements of ERISA and the Code in all material respects. Each ERISA Plan which is intended to be qualified under Section 401(a) of the Code is so qualified, and the United States Internal Revenue Service has issued a favorable determination letter with respect to each such ERISA Plan which may be relied on currently. No Credit Party has incurred liability for any material excise tax under any of Sections 4971 through 5000 of the Code.
(b) Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, each Borrower and each Subsidiary is in compliance with the applicable provisions of ERISA and the provision of the Code relating to ERISA Plans and the regulations and published interpretations therein. During the thirty-six (36) month period prior to the Closing Date or the making of any Loan, (i) no steps have been taken to terminate any Pension Plan, and (ii) no contribution failure has occurred with respect to any Pension Plan sufficient to give rise to a Lien under Section 303(k) of ERISA or Section 430(k) of the Code and no event has occurred that would give rise to a Lien under Section 4068 of ERISA. No condition exists or event or transaction has occurred with respect to any Pension Plan that could be reasonably expected to result in the incurrence by any Credit Party of any material liability, fine or penalty. No Credit Party has incurred liability to the PBGC (other than for current premiums) with respect to any Pension Plan. Except as could not reasonably be expected to result in material liability to any Credit Party, all contributions (if any) have been made on a timely basis to any Multiemployer Plan that are required to be made by any Credit Party or any other member of the Controlled Group under the terms of the plan or of any collective bargaining agreement or by applicable Law; no Credit Party nor any member of the Controlled Group has withdrawn or partially withdrawn from any Multiemployer Plan, incurred any withdrawal liability with respect to any such plan or received notice of any claim or demand for withdrawal liability or partial withdrawal liability from any such plan, and no condition has occurred which, if continued, could result in a withdrawal or partial withdrawal from any such plan, and no Credit Party nor any member of the Controlled Group has received any notice that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan is being or is likely to be terminated, or that any such plan is being or is likely to become insolvent.
Section 3.15 Consummation of Operative Documents; Brokers. Except for fees payable to Agent and/or Lenders and as scheduled on Schedule 3.15, no broker, finder or other intermediary has brought about the obtaining, making or closing of the transactions contemplated by the Operative Documents, and no Credit Party has or will have any obligation to any Person in respect of any finder’s or brokerage fees, commissions or other expenses in connection herewith or therewith.
Section 3.16 Related Transactions. All transactions contemplated by the Operative Documents to be consummated on or prior to the date hereof have been so consummated (including, without limitation, the disbursement and transfer of all funds in connection therewith) in all material respects pursuant to the provisions of the applicable Operative Documents, true and complete copies of which have been delivered to Agent, and in compliance with all applicable Law, except for such Laws the noncompliance with which would not reasonably be expected to have a Material Adverse Effect.
Section 3.17 Material Contracts. Except for (a) the Operative Documents, (b) the Convertible Notes Debt, (c) the Indenture and any other indenture in respect of Convertible Notes Debt, and (d) the other agreements set forth on Schedule 3.17 (collectively with the Operative Documents, the “Material Contracts”), as of the Closing Date there are no agreements or instruments to which any Credit Party is a party, and the breach, nonperformance or cancellation of which, or the failure of which to renew, could reasonably be expected to have a Material Adverse Effect. Schedule 3.17 sets forth, with respect to each real estate lease agreement to which any Borrower is a party (as a lessee) as of the Closing Date, the address of the subject property and the annual rental (or, where applicable, a general description of the method of computing the annual rental). The consummation of the transactions contemplated by the Financing Documents will not give rise to a right of termination in favor of any party to any Material Contract (other than any Credit Party), except for such Material Contracts the noncompliance with which would not reasonably be expected to have a Material Adverse Effect.
Section 3.18 Compliance with Environmental Requirements; No Hazardous Materials. Except in each case as set forth on Schedule 3.18:
(a) no Credit Party has received notice, notification, demand, request for information, citation, summons, complaint or order, no complaint has been filed and served on any Credit Party, and no penalty has been assessed and no investigation or review is pending, or to such Borrower’s knowledge, threatened by any Governmental Authority or other Person with respect to any (i) alleged violation by any Credit Party of any Environmental Law, (ii) alleged failure by any Credit Party to have any Permits required under Environmental Law in connection with the conduct of its business or to comply with the terms and conditions thereof, (iii) any generation, treatment, storage, recycling, transportation or disposal of any Hazardous Materials, or (iv) release of Hazardous Materials, which, in each case, could reasonably be expected to have a Material Adverse Effect; and
(b) no property now owned or leased by any Credit Party and, to the knowledge of each Borrower, no such property previously owned or leased by any Credit Party, to which any Credit Party has, directly or indirectly, transported or arranged for the transportation of any Hazardous Materials, is listed or, to such Borrower’s knowledge, proposed for listing, on the National Priorities List promulgated pursuant to CERCLA, or CERCLIS (as defined in CERCLA) or any similar state list or is the subject of federal, state or local enforcement actions or, to the knowledge of such Borrower, other investigations which may lead to claims against any Credit Party for clean-up costs, remedial work, damage to natural resources or personal injury claims, including, without limitation, claims under CERCLA, except for such listings or claims that could not reasonably be expected to have a Material Adverse Effect.
Section 3.19 Intellectual Property. Except as would not reasonably be expected to have a Material Adverse Effect, each Credit Party owns, is licensed to use or otherwise has the right to use, all Intellectual Property that is necessary for the conduct of such Credit Party’s business. All Intellectual Property existing as of the Closing Date which is issued, registered or pending with any United States or foreign Governmental Authority (including, without limitation, any and all applications for the registration of any Intellectual Property with any such United States or foreign Governmental Authority) owned by each Credit Party, all material in-bound license or sub-license agreements, all exclusive out-bound license or sub-license agreements, and all other rights of any Credit Party to use any Intellectual Property of any Person that is material to the business of the Credit Parties as currently conducted, taken as a whole (but excluding in-bound licenses of over-the-counter software that is commercially available to the public), as of the Closing Date and, as updated pursuant to Section 4.11, is set forth on Schedule 3.19 in a form acceptable to Agent, including the information required to sufficiently identify each item individually. Except as indicated on Schedule 3.19, the applicable Credit Party is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to each such registered Intellectual Property (or application therefor) owned by such Credit Party, free and clear of any Liens and/or licenses in favor of third parties (other than Permitted Liens and non-exclusive licenses of Intellectual Property). All registered Intellectual Property of each Credit Party is duly and properly registered, filed or issued in the appropriate office and jurisdictions for such registrations, filings or issuances, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. No Credit Party is party to, nor bound by, any material license or other material agreement, as the licensee thereto, that prohibits or otherwise restricts such Credit Party from granting a security interest in such license or agreement or other property (after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law). To each Credit Party’s knowledge, (i) such Credit Party’s conduct of its business does not infringe any Intellectual Property rights of others and (ii) no third party has infringed or is infringing any Intellectual Property rights of any Credit Party, in each case, except as would not reasonably be expected to have a Material Adverse Effect.
Section 3.20 Solvency. After giving effect to the Loan advance and the liabilities and obligations of each Borrower under the Operative Documents, each Borrower and each additional Credit Party is Solvent.
Section 3.21 Full Disclosure. None of the written information (financial or otherwise) (other than projections, other forward-looking information and industry information) furnished by or on behalf of any Credit Party to Agent or any Lender in connection with the consummation of the transactions contemplated by the Operative Documents, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not materially misleading in light of the circumstances under which such statements were made. Such projections represent each Borrower’s best estimate of such Borrower’s future financial performance and such assumptions are believed by such Borrower to be fair and reasonable in light of the business conditions at the time such projections were made; provided, however, that (i) projections as to future events are not to be viewed as facts, (ii) Borrowers can give no assurance that such projections will be attained and (iii) Agent and Lenders are hereby notified that the differences between projected results and actual results may be material.
Section 3.22 Reserved.
Section 3.23 Subsidiaries. Borrowers do not own any stock, partnership interests, limited liability company interests or other equity securities or Subsidiaries except for Permitted Investments.
Section 3.24 Reserved.
Section 3.25 Regulatory Matters.
(a) (i) The businesses of Borrowers have been and are being conducted in compliance in all material respects with all applicable Law, including the Healthcare Laws, and all Permits, (ii) each Product (whether manufactured by Accuray or any of its Subsidiaries, any of their respective Affiliates or by a third party manufacturer under contract to Accuray or any of its Subsidiaries) has been, and currently is, being researched, developed, designed, investigated, manufactured, made, assembled, stored, packaged, labeled, marketed and distributed in compliance with all applicable Law, including, without limitation, the Healthcare Laws, all required Permits, cGMP, QSR, the Device Master Record as defined in 21 CFR 820.181 and Document Controls under 21 CFR 820.40 and all Product specifications as established in company documentation, except to the extent any failure to so comply could not reasonably be expected to result in any adverse consequences to the Credit Parties (other than immaterial consequences), (iii) each contract between Accuray and any of its Subsidiaries on the one hand, and any third party manufacturer on the other hand contain (and Accuray and each of its Subsidiaries implement), appropriate quality assurance arrangements in accordance with FDA requirements, (iv) Accuray and its Subsidiaries are in compliance in all material respects with applicable Law governing reporting and recordkeeping of Product modifications, adverse event reporting, reporting of corrections and removals, and recordkeeping for each Product, and all manufacturing and release documents and records are true and accurate in all material respects, and (v) neither Accuray nor any of its Subsidiaries has received or been subject to any written or oral communications from the FDA, the NRC or any other Governmental Authority asserting that Accuray, any such Subsidiary or any such Product was not in compliance in any material respect with any applicable Law or any Permit.
(b) Other than routine surveillance audits and inspections, no investigation by any Governmental Authority with respect to Accuray or any of its Subsidiary is pending or, to the knowledge of the Credit Parties, threatened. None of Accuray or any of its Subsidiaries has received any written or oral communication from any Governmental Authority of any noncompliance with any Law or any written or oral communication from any Governmental Authority or accrediting organization of any material issues, problems, or concerns regarding the quality or performance of the Products.
(c) Accuray and its Subsidiaries own, free and clear of all Liens, except Liens securing the Obligations, all Permits, including all authorizations under the FD&C Act, other United States federal laws, and all applicable state and foreign laws, necessary (i) for the research
and development and commercialization of the Products, including, without limitation, all Permits necessary in connection with testing, manufacturing, marketing or selling of such Products, as such testing, manufacturing, marketing or selling are currently being conducted, and (ii) to carry on the business of Accuray and each of its Subsidiaries. All such Permits are valid and in full force and effect and Accuray and each Subsidiary is in compliance in all material respects with all terms and conditions of such Permits. None of Accuray or any Subsidiary has received any written notice from any Governmental Authority that any Permit has been or is being revoked, withdrawn, suspended or challenged or that such Governmental Authority is conducting an investigation or review thereof or has issued any order or recommendation stating that the development, testing and/or manufacturing of such Product should cease or that such Product should be withdrawn from the marketplace.
(d) There have been no adverse clinical test results which have or could reasonably be expected to have a materially adverse impact on Accuray or any of its Subsidiaries, and there have been no Product recalls or voluntary Product withdrawals from any market (other than specific and discrete batches or lots not made in conjunction with a larger recall).
(e) Neither Accuray nor any of its Subsidiaries have experienced any significant failures in its manufacturing of any Product such that the amount of such Product successfully manufactured by Accuray or any of its Subsidiaries in accordance with all specifications thereof and the required payments related thereto in any twelve (12) month period have decreased by more than twenty percent (20%) with respect to the quantities of such Product produced in the prior twelve (12) month period.
(f) There has been no material untrue statement of fact and no fraudulent statement made by Accuray or any of its Subsidiaries or any of their respective agents or representatives to the FDA, NRC, or any other Governmental Authority, and there has been no failure to disclose any material fact required to be disclosed to the FDA, NRC or any other Governmental Authority.
(g) To the best knowledge of the Credit Parties, no insurance company, managed care organization or Governmental Authority has (i) terminated coverage or reimbursement for procedures and treatments performed using the CyberKnife and TomoTherapy Products, or (ii) reduced the scope of coverage or the rate of reimbursement it provides for procedures and treatments performed using the CyberKnife and TomoTherapy Products, and, in the case of this clause (ii), such reduction could reasonably be expected to have a materially adverse impact on the revenues of Accuray and its Subsidiaries. None of Accuray or any of its Subsidiaries has been the subject of any “for cause” inspection, investigation or audit by any Governmental Authority in connection with any alleged improper activity.
(h) There is no arrangement relating to Accuray or any of its Subsidiaries providing for any rebates, kickbacks or other forms of compensation or remuneration that are unlawful to be paid to any Person to induce, or in return for obtaining or the referral of business or for the arrangement for recommendation of such referrals. All billings by Accuray and each of its Subsidiaries for its services have been true and correct in all material respects and are in compliance in all material respects with all applicable Law, including the Healthcare Laws.
(i) None of Accuray or any of its Subsidiaries, or, to the knowledge of the Credit Parties, any individual who is an officer, director, employee or manager of Accuray or any of its Subsidiaries has been convicted of, charged with or, to the knowledge of the Credit Parties, investigated for any federal or state health program-related offense or been excluded or suspended from participation in any such program; or, to the knowledge of the Credit Parties, within the past five (5) years, has been convicted of, charged with or, to the knowledge of the Credit Parties, investigated for a violation of any Law related to fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, obstruction of an investigation or controlled substances, or has been subject to any judgment, stipulation, order or decree of, or criminal or civil fine or penalty imposed by, any Governmental Authority related to fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, obstruction of an investigation or controlled substances. None of Accuray or any of its Subsidiaries or, to the knowledge of the Credit Parties, any individual who is an officer, director, employee or manager of Accuray or any of its Subsidiaries has been convicted of any crime or engaged in any conduct including but not limited to any misrepresentation to any Governmental Authority or that has otherwise resulted or would reasonably be expected to result in a debarment or exclusion (i) under 21 U.S.C. Section 335a, or (ii) any similar applicable Law. No debarment proceedings or investigations in respect of the business of Accuray or any of its Subsidiaries are pending or, to the knowledge of the Credit Parties, threatened against Accuray or any of its Subsidiaries or any individual who is an officer, director, employee or manager of Accuray or any of its Subsidiaries.
(j) All studies, tests and preclinical and clinical trials conducted relating to the Products, sponsored by Accuray or any of its Subsidiaries have been conducted, and are currently being conducted, in all material respects in accordance with all applicable Law and IDEs, including procedures and controls pursuant to, where applicable, current good clinical practices and current good laboratory practices and other applicable laws, rules regulations. To the extent required by applicable Law, Accuray and each of its Subsidiaries has obtained all necessary authorizations from Governmental Authorities and IECs, including an IDE for the conduct of any clinical investigations conducted by or on behalf of Accuray or such Subsidiary, as applicable.
(k) To the knowledge of the Credit Parties, none of the clinical investigators in any clinical trial sponsored by Accuray or any of its Subsidiaries has been or is disqualified or otherwise sanctioned by the FDA, the Department of Health and Human Services, or any Governmental Authority and, to the knowledge of the Credit Parties, no such disqualification, or other sanction of any such clinical investigator is pending or threatened. None of Accuray or any of its Subsidiaries has received from the FDA or other applicable Governmental Authority any notices or correspondence requiring or threatening the termination, suspension, material modification or clinical hold of any studies, tests or clinical trials with respect to or in connection with the Products.
ARTICLE 4
AFFIRMATIVE COVENANTS
Each Borrower agrees that, so long as any Credit Exposure exists:
Section 4.1 Financial Statements and Other Reports. Each Borrower will deliver to Agent: (a) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter (beginning with the first full fiscal quarter ending after the Closing Date), a company prepared consolidated balance sheet, cash flow and income statement covering Borrowers’ and its Consolidated Subsidiaries’ consolidated operations during the period, prepared under GAAP, consistently applied, certified by a Responsible Officer and in a form acceptable to Agent; (b) together with the financial reporting package described in (a) above, evidence of payment and satisfaction of all payroll, withholding and similar Taxes due and owing by all Borrowers with respect to the payroll period(s) occurring during such month; (c) as soon as available, but no later than ninety (90) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an opinion on the financial statements from Grant Thornton LLP or another independent certified public accounting firm acceptable to Agent in its reasonable discretion; provided that such opinion shall not contain a “going concern” or like qualification or exception or a qualification arising out of the scope of the audit (other than solely with respect to, or resulting solely from (i) an upcoming maturity date under this Agreement or other Permitted Debt occurring within one year from the time such report is delivered or (ii) any potential inability to satisfy any financial maintenance covenant on a future date or in a future period); (d) within five (5) days of delivery or filing thereof, copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt and copies of all reports and other filings made by Borrower with any stock exchange on which any securities of any Borrower are traded and/or the SEC; (e) a prompt written report of any legal actions pending or threatened in writing against any Borrower or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect; and (f) budgets, sales projections, operating plans and other financial information and information, reports or statements regarding Borrowers, their business and the Collateral as Agent may from time to time reasonably request (unless the disclosure of such information would require the forfeiture by such Credit Party or Subsidiary of attorney client privilege with respect to such document; provided, however, that such Credit Party or Subsidiary shall take all actions reasonably requested by Agent to allow access to such document without otherwise forfeiting such privilege). If Accuray publicly files with the SEC reports on Form 10-K or Form 10-Q for the applicable periods or any other periodic reports containing the information required by clauses (a), (c) and (d) above, Accuray shall be deemed to satisfy such requirements by such filing. Each Borrower will, within thirty (30) days after the last day of each of the first two (2) months of each fiscal quarter, and within forty-five (45) days after the last day of each fiscal quarter, deliver to Agent a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing monthly cash and Cash Equivalents of Borrowers and, with respect to Compliance Certificates delivered in connection with the quarterly financial statements described in clause (a) above only, setting forth calculations showing compliance with any applicable financial covenant set forth in this Agreement. Promptly upon their becoming available, Borrowers shall deliver to Agent copies of all Material Contracts.
Section 4.2 Payment and Performance of Obligations. Each Borrower (a) will pay and discharge on a timely basis as and when due (after giving effect to any applicable grace periods), all of their respective obligations and liabilities, except for such obligations and/or liabilities (i) that may be the subject of a Permitted Contest, and (ii) the nonpayment or nondischarge of which could not reasonably be expected to have a Material Adverse Effect or result in a Lien against the Collateral, except for Permitted Liens, (b) without limiting anything contained in the
foregoing clause (a) and unless subject to a Permitted Contest, will pay all amounts due and owing in respect of income and other material Taxes (including, without limitation, payroll and withholding tax liabilities) on a timely basis as and when due, and in any case prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof, (c) will maintain, and cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for the accrual of all of their respective obligations and liabilities, and (d) will not breach, or permit to exist any default under, the terms of any lease, commitment, contract, instrument or obligation to which it is a party, or by which its properties or assets are bound, except for such breaches or defaults which could not reasonably be expected to have a Material Adverse Effect. For purposes of this Section 4.2, any federal, state, local or foreign tax, assessment, deposit or contribution, and any return with respect thereto, shall not be considered “material” only if and to the extent that the amount of such tax, assessment, deposit or contribution, when added to all other outstanding taxes, assessments, deposits or contributions, is equal to or less than $1,000,000 in the aggregate at any time
Section 4.3 Maintenance of Existence. Unless otherwise permitted under Section 5.6, each Borrower will preserve, renew and keep in full force and effect (a) their respective existence and good standing and (b) their respective rights, privileges and franchises necessary or desirable in the normal conduct of business except, in the case of this clause (b), where a failure to do so could not reasonably be expected to result in a Material Adverse Effect.
Section 4.4 Maintenance of Property; Insurance.
(a) Each Borrower will keep all material tangible property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect. If all or any part of the Collateral useful or necessary in its business becomes damaged or destroyed, each Borrower will promptly and completely repair and/or restore the affected Collateral in a good and workmanlike manner, regardless of whether Agent agrees to disburse insurance proceeds or other sums to pay costs of the work of repair or reconstruction, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) Upon completion of any Permitted Contest, Borrowers shall promptly pay the amount due, if any, and deliver to Agent proof of the completion of the contest and payment of the amount due, if any, following which Agent shall return the security, if any, deposited with Agent pursuant to the definition of Permitted Contest.
(c) Each Borrower will maintain (i) casualty insurance on all real and personal property on an all risks basis (including the perils of flood (if applicable), windstorm and quake), covering the repair and replacement cost of all such property and coverage, business interruption and rent loss coverages with extended period of indemnity (for the period required by Agent from time to time) and indemnity for extra expense, in each case without application of coinsurance and with agreed amount endorsements, (ii) general and professional liability insurance (including products and completed operations liability coverage), and (iii) such other insurance coverage in each case against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons (in the reasonable judgment of Borrower
Representative); provided, however, that, in no event shall such insurance be in amounts or with coverage less than, or with carriers with qualifications inferior to, any of the insurance or carriers in existence as of the Closing Date (or required to be in existence after the Closing Date under a Financing Document). All such insurance shall be provided by insurers having an A.M. Best policyholders rating reasonably acceptable to Agent.
(d) On or prior to the Closing Date, and at all times thereafter, each Borrower will cause Agent to be named as (x) an additional insured in the case of each liability policy and (y) lender loss payee (which shall include, as applicable, identification as mortgagee), in the case of each casualty or property insurance policy (except for workers’ compensation and employer’s liability insurance policies) required to be maintained pursuant to this Section 4.4 pursuant to endorsements or policy form in form and substance reasonably acceptable to Agent. Borrowers shall deliver to Agent and Lenders (i) a certificate from Borrowers’ insurance broker and/or insurance carrier dated such date showing the amount of coverage as of such date, and that such policies will include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and/or additional insureds (as applicable) and all rights of subrogation against all loss payees and/or additional insureds (as applicable), and that if all or any part of such policy is canceled, terminated or expires, the insurer will forthwith give notice thereof to each additional insured, assignee and loss payee (as applicable) and that no cancellation, reduction in amount or material change in coverage thereof shall be effective until at least thirty (30) days after receipt by each additional insured, assignee and loss payee of written notice thereof, (ii) on an annual basis, and upon the reasonable request of any Lender through Agent from time to time full information as to the insurance carried, (iii) within five (5) days of receipt of notice from any insurer (or such longer period as Agent may agree in its reasonable discretion), a copy of any notice of cancellation or nonrenewal in coverage from that existing on the date of this Agreement, (iv) forthwith, notice of any cancellation or nonrenewal of coverage by any Borrower, and (v) at least ten (10) days (or such shorter period as Agent may agree in its reasonable discretion) prior to expiration of any policy of insurance, evidence of renewal of such insurance upon the terms and conditions herein required.
(e) In the event any Borrower fails to provide Agent with evidence of the insurance coverage required by this Agreement within five (5) Business Days of Agent’s written request therefor (unless an Event of Default has occurred and is continuing, in which case no such waiting period shall apply), Agent may purchase insurance at Borrowers’ expense to protect Agent’s interests in the Collateral. This insurance may, but need not, protect such Borrower’s interests. The coverage purchased by Agent may not pay any claim made by such Borrower or any claim that is made against such Borrower in connection with the Collateral. Such Borrower may later cancel any insurance purchased by Agent, but only after providing Agent with evidence that such Borrower has obtained insurance as required by this Agreement. If Agent purchases insurance for the Collateral, Borrowers will be responsible for the costs of that insurance to the fullest extent provided by law, including interest and other charges imposed by Agent in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance may be added to the Obligations. The costs of the insurance may be more than the cost of insurance such Borrower is able to obtain on its own.
Section 4.5 Compliance with Laws and Material Contracts. Each Borrower will comply with the requirements of all applicable Laws and Material Contracts, except to the extent that
failure to so comply could not reasonably be expected to (a) have a Material Adverse Effect, or (b) result in any Lien upon a material portion of the assets of any such Person in favor of any Governmental Authority.
Section 4.6 Inspection of Property, Books and Records. Each Borrower will keep proper books of record substantially in accordance with GAAP in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities; and will permit at the sole cost of the applicable Borrower or any applicable Subsidiary, representatives of Agent and of any Lender to visit and inspect any of their respective properties (subject to the terms of the applicable lease), to examine and make abstracts or copies from any of their respective books and records, to conduct a collateral audit and analysis of their respective operations and the Collateral, to verify the amount and age of the Accounts, the identity and credit of the respective Account Debtors, to review the billing practices of Borrowers and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants as often as may reasonably be desired. Except to the extent a Default or an Event of Default exists at the time any such inspection begins, (a) Agent or any Lender exercising any rights pursuant to this Section 4.6 shall give the applicable Borrower at least two (2) Business Days’ notice of such exercise, (b) such rights may be exercised only during reasonable business hours and (c) Borrowers shall be responsible for the costs and expenses of only two (2) inspections pursuant to this Section 4.6 each calendar year. No notice shall be required during the existence and continuance of any Default. Unless a Default or an Event of Default has occurred and is continuing, Agent shall give Borrowers the opportunity to participate in any discussions with Borrowers’ independent public accountants. Notwithstanding anything to the contrary contained herein, in no event shall any Borrower be required to disclose trade secrets (other than financial trade secrets) or documents that would violate attorney-client privilege, in each case, to the extent such Borrower has been advised by counsel that such information constitutes trade secrets or that such disclosure would violate attorney-client privilege.
Section 4.7 Use of Proceeds. Borrowers shall use the proceeds of Term Loans solely for (a) transaction fees incurred in connection with the Financing Documents, (b) a prepayment of outstanding Revolving Loans and a concurrent reduction of the Revolving Loan Commitments (as defined in the Affiliated Financing Documents), (c) prepayment, redemption or purchase of 2018 Convertible Notes (including any interest or premium thereon) and (d) for the working capital needs of Borrowers. No portion of the proceeds of the Loans will be used for family, personal, agricultural or household use nor as prohibited under Section 5.16.
Section 4.8 Excess Cash. At any time that an Event of Default has occurred and is continuing, at the request of the Agent, Borrowers shall promptly cause each Subsidiary of the Borrowers that is not a Credit Party to transfer all cash and Cash Equivalents of each such Subsidiary (in excess of the amount required to be maintained by each such Subsidiary pursuant to applicable statutory requirements) to a Credit Party, pursuant to documentation reasonably satisfactory to the Agents.
Section 4.9 Notices of Litigation and Defaults. Borrowers will give prompt written notice to Agent (a) of any litigation or governmental proceedings pending or threatened (in writing) against Borrowers or other Credit Party which would reasonably be expected to have a Material Adverse Effect with respect to Borrowers or any other Credit Party or which in any
manner calls into question the validity or enforceability of any Financing Document, (b) upon any Borrower becoming aware of the existence of any Default or Event of Default, (c) if any Credit Party is in breach or default under or with respect to any Material Contract, or if any Credit Party is in breach or default under or with respect to any other contract, agreement, lease or other instrument to which it is a party or by which its property is bound or affected, which breach or default could reasonably be expected to have a Material Adverse Effect, (d) of any strikes or other labor disputes pending or, to any Borrower’s knowledge, threatened against any Credit Party, (e) if, to the knowledge of the Credit Parties, there is any infringement by any other Person with respect to any Intellectual Property rights of any Credit Party that could reasonably be expected to result in a Material Adverse Effect, or if, to the knowledge of the Credit Parties, there is any claim by any other Person that any Credit Party, in the conduct of its business, is infringing the Intellectual Property rights of such other party that could reasonably be expected to result in a Material Adverse Effect, and (f) of all returns, recoveries, disputes and claims that involve more than $2,500,000. Borrowers represent and warrant that Schedule 4.9 sets forth a complete list of all matters existing as of the Closing Date for which notice could be required under this Section.
Section 4.10 Hazardous Materials; Remediation. If any release or disposal of Hazardous Materials that could reasonably be expected to have a Material Adverse Effect shall occur or shall have occurred on any real property owned or leased by a Borrower or any other assets of any Borrower or any other Credit Party, such Borrower will cause, or direct the applicable Credit Party to cause, the prompt containment and removal of such Hazardous Materials and the remediation of such real property or other assets to the extent required pursuant to Environmental Laws and Healthcare Laws. Without limiting the generality of the foregoing, each Borrower shall, and shall cause each other Credit Party to, comply with each Environmental Law and Healthcare Law requiring the performance at any real property by any Borrower or any other Credit Party of activities in response to the release or threatened release of Hazardous Materials that could reasonably be expected to have a Material Adverse Effect.
Section 4.11 Further Assurances.
(a) Each Borrower will, and will cause each Subsidiary (other than any such Subsidiary that is an Excluded Subsidiary) to, at its own cost and expense, promptly and duly take, execute, acknowledge and deliver all such further acts, documents and assurances as may from time to time be necessary or as Agent or the Required Lenders may from time to time reasonably request in order to carry out the intent and purposes of the Financing Documents and the transactions contemplated thereby, including all such actions to (i) establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) in favor of Agent for itself and for the benefit of Lenders on the Collateral (including Collateral acquired after the date hereof), and (ii) unless Agent shall agree otherwise in writing, cause all Subsidiaries of Borrowers (other than Excluded Subsidiaries) to be jointly and severally obligated with the other Borrowers under all covenants and obligations under this Agreement, including the obligation to repay the Obligations. Without limiting the generality of the foregoing, Borrowers shall, at the time of the delivery of any Compliance Certificate disclosing the acquisition by an Credit Party of any registered Intellectual Property or application for the registration of Intellectual Property, deliver to Agent a duly completed and executed supplement to the applicable Credit Party’s Patent Security Agreement or Trademark Security Agreement in the form of the respective Exhibit thereto. Notwithstanding anything herein to the
contrary, unless and until an Event of Default occurs, no Credit Party shall be required, nor is the Agent authorized, to perfect the lien granted in any Intellectual Property in any jurisdiction other than the United States. For purposes of clarity, only after the occurrence of an Event of Default, Borrowers shall execute any documents reasonably requested by Agent to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) in favor of Agent in any Intellectual Property registered in a jurisdiction other than the United States.
(b) Upon receipt of an affidavit of an authorized representative of Agent or a Lender as to the loss, theft, destruction or mutilation of any Note or any other Financing Document which is not of public record, and, in the case of any such mutilation, upon surrender and cancellation of such Note or other applicable Financing Document, Borrowers will issue, in lieu thereof, a replacement Note or other applicable Financing Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Financing Document in the same principal amount thereof and otherwise of like tenor; provided that each such affidavit shall contain customary indemnifications in favor of Borrower.
(c) Borrowers shall obtain such landlord, warehouseman, bailee or mortgagee letters as required under the Affiliated Financing Documents and such requirement under this Section 4.11(c) shall be considered satisfied so long as such agreements have been provided to the Affiliated Financing Agent and the Affiliated Financing Agent continues to serve as the bailee for Agent under the Affiliated Intercreditor Agreement.
(d) Upon the formation or acquisition of a new Domestic Subsidiary (other than a FSHCO), Borrowers shall (i) pledge, have pledged or cause or have caused to be pledged to Agent pursuant to a pledge agreement in form and substance satisfactory to Agent, all of the outstanding shares of equity interests or other equity interests of such new Domestic Subsidiary owned directly or indirectly by any Borrower, along with undated stock or equivalent powers for such certificates, if any, executed in blank; (ii) unless Agent shall agree otherwise in writing, cause the new Domestic Subsidiary (other than an Excluded Subsidiary) to take such other actions (including entering into or joining any Security Documents) as are necessary or advisable in the reasonable opinion of Agent in order to grant Agent, acting on behalf of Lenders, a first priority Lien (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) on all Material Real Property and personal property (in the case of the perfection of the Liens granted, subject to the Excluded Perfection Assets) of such Domestic Subsidiary in existence as of such date and in all after acquired property, which first priority Liens (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) are required to be granted pursuant to this Agreement; (iii) unless Agent shall agree otherwise in writing, cause such new Domestic Subsidiary (other than an Excluded Subsidiary) to become a Borrower hereunder with joint and several liability for all obligations of Borrowers hereunder and under the other Financing Documents pursuant to a joinder agreement or other similar agreement in form and substance reasonably satisfactory to Agent; and (iv) cause the new Domestic Subsidiary (other than an Excluded Subsidiary) to deliver certified copies of such Domestic Subsidiary’s certificate or articles of incorporation, together with good standing certificates, by-laws (or other operating agreement or governing documents), resolutions of the Board of Directors or other governing body, approving and authorizing the execution and delivery of the Security Documents, incumbency certificates and to execute and/or deliver such other documents and legal opinions or
to take such other actions as may be reasonably requested by Agent, in each case, in form and substance reasonably satisfactory to Agent.
(e) Upon the request of Agent, Borrowers shall pledge, have pledged or cause or have caused to be pledged to Agent pursuant to a pledge agreement in form and substance satisfactory to Agent, 65% of the outstanding shares of equity interests or other equity interests of any new Foreign Subsidiary or FSHCO owned directly by any Borrower and, subject to the Excluded Perfection Assets, undated stock or equivalent powers for such certificates, if any, executed in blank.
Section 4.12 Power of Attorney. Each of the authorized representatives of Agent is hereby irrevocably made, constituted and appointed the true and lawful attorney for Borrowers (without requiring any of them to act as such) with full power of substitution to do the following during the continuance of an Event of Default: (a) endorse the name of Borrowers upon any and all checks, drafts, money orders, and other instruments for the payment of money that are payable to Borrowers and constitute collections on Borrowers’ Accounts; (b) so long as Agent has provided not less than three (3) Business Days’ prior written notice to Borrower to perform the same and Borrower has failed to take such action, execute in the name of Borrowers any schedules, assignments, instruments, documents, and statements that Borrowers are obligated to give Agent under this Agreement; (c) take any action Borrowers are required to take under this Agreement; (d) so long as Agent has provided not less than three (3) Business Days’ prior written notice to Borrower to perform the same and Borrower has failed to take such action, do such other and further acts and deeds in the name of Borrowers that Agent may deem necessary or desirable to enforce any Account or other Collateral or perfect Agent’s security interest or Lien in any Collateral; and (e) do such other and further acts and deeds in the name of Borrowers that Agent may deem necessary or desirable to enforce its rights with regard to any Account or other Collateral. This power of attorney shall be irrevocable and coupled with an interest.
Section 4.13 Reserved.
Section 4.14 Schedule Updates. Borrowers shall, together with the Compliance Certificate required to be delivered pursuant to Section 4.1 (at the end of only the second and fourth fiscal quarters of each fiscal year beginning with June 30, 2018 and only if any information in the Schedules has become outdated, inaccurate, incomplete or misleading) deliver to Agent, proposed updates to the Schedules correcting all outdated, inaccurate, incomplete or misleading information; provided, however, (i) with respect to any proposed updates to the Schedules involving Permitted Liens, Permitted Debt or Permitted Investments, Agent will replace the respective Schedule attached hereto with such proposed update only if such updated information is consistent with the definitions of and limitations herein pertaining to Permitted Liens, Permitted Debt or Permitted Investments and (ii) with respect to any proposed updates to such Schedule involving other matters, Agent will replace the applicable portion of such Schedule attached hereto with such proposed update upon Agent’s approval thereof.
Section 4.15 Intellectual Property and Licensing.
(a) Together with each Compliance Certificate required to be delivered pursuant to Section 4.1 (at the end of each fiscal quarter only) to the extent (A) any Borrower
acquires and/or develops any new registered Intellectual Property, or (B) any Borrower enters into or becomes bound by any additional in-bound license or sublicense agreement, any additional exclusive out-bound license or sublicense agreement or other agreement with respect to rights in Intellectual Property (other than over-the-counter software that is commercially available to the public), in each case with respect to clause (B), that is material to the Borrowers and their Subsidiaries taken as a whole, or (C) there occurs any other material change in the current status of Borrower’s registered Intellectual Property listed on Schedule 3.19 or an expiration or termination of the material in-bound licenses or sublicenses or exclusive out-bound licenses or sublicenses listed on Schedule 3.19, deliver to Agent an updated Schedule 3.19 reflecting such updated information. With respect to any updates to Schedule 3.19 involving exclusive out-bound licenses or sublicenses, such licenses shall be consistent with the definitions of and limitations herein pertaining to Permitted Licenses.
(b) If Borrowers obtain any new registered Intellectual Property (other than copyrights, mask works and related applications, which are addressed below), Borrowers shall promptly (and in any event within fifteen (15) days of Agent’s request as provided herein) execute such documents and provide such other information (including, without limitation, copies of applications) and take such other actions, in each case, as Agent shall reasonably request in its good faith business judgment to perfect and maintain a first priority perfected security interest in favor of Agent, for the ratable benefit of Lenders, in such registered Intellectual Property.
(c) Borrowers shall use commercially reasonable efforts to take such steps as Agent reasonably requests in writing to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all material licenses or agreements specifically identified by Agent in writing in connection with such request to be deemed “Collateral” and for Agent to have a security interest in it that might otherwise be restricted or prohibited by Law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Agent to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Agent’s rights and remedies under this Agreement and the other Financing Documents.
(d) Each Borrower shall, as determined by such Borrower in its good faith business judgment, cause all registered Intellectual Property to be duly and properly registered, filed or issued in the appropriate office and jurisdictions for such registrations, filings or issuances, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. To each Borrower’s knowledge, each Borrower shall at all times conduct its business without infringement or claim of infringement of any Intellectual Property rights of others, except as would not reasonably be expected to have a Material Adverse Effect. Each Borrower shall, as determined by such Borrower in its good faith business judgment, (i) protect, defend and maintain the validity and enforceability of its Material Intangible Assets; (ii) promptly advise Agent in writing if, to such Borrower’s knowledge, there is any infringement of its Material Intangible Assets or claim of infringement by such Borrower on the Intellectual Property rights of others, in each case, that would reasonably be expected to have a Material Adverse Effect; and (iii) not allow any of such Borrower’s Material Intangible Assets to be abandoned, invalidated, forfeited or dedicated to the public or to become unenforceable.
ARTICLE 5
NEGATIVE COVENANTS
Each Borrower agrees that, so long as any Credit Exposure exists:
Section 5.1 Debt; Contingent Obligations. No Borrower will directly or indirectly, create, incur, assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, any Debt, except for Permitted Debt. No Borrower will directly or indirectly, create, assume, incur or suffer to exist any Contingent Obligations, except for Permitted Contingent Obligations. No Borrower will permit any Excluded Subsidiary to, directly or indirectly, create, incur, assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, Debt describe in clauses (a) or (b) of the definition thereof in an aggregate principal amount not to exceed $2,500,000 (excluding the principal amount of any Permitted Intercompany Investments made to such Excluded Subsidiaries) at any one time outstanding, it being understood that any Debt existing as of the Closing Date and set forth on Schedule 5.1 (and any Permitted Refinancing Debt in respect thereof) shall be permitted and not count against such $2,500,000 basket.
Section 5.2 Liens. No Borrower will directly or indirectly, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except for Permitted Liens.
Section 5.3 Distributions. No Borrower will, directly or indirectly, declare, order, pay, make or set apart any sum for any Distribution, except for Permitted Distributions.
Section 5.4 Restrictive Agreements. No Borrower will, or will permit any Subsidiary to, directly or indirectly (a) enter into or assume any agreement (other than the Financing Documents, the Affiliated Financing Documents, and any agreements for purchase money debt permitted under clause (c) of the definition of Permitted Debt) prohibiting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or (b) create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind (except as provided by the Financing Documents and the Affiliated Financing Documents) on the ability of any Subsidiary to: (i) pay or make Distributions to any Borrower; (ii) pay any Debt owed to any Borrower; (iii) make loans or advances to any Borrower; or (iv) transfer any of its property or assets to any Borrower, other than (1) the Financing Documents, (2) an encumbrance or restriction consisting of customary non-assignment provisions in leases or licenses entered into in the Ordinary Course of Business, (3) customary provisions in joint venture agreement and other similar agreements that restrict the transfer of ownership interests in such joint ventures or provisions limiting the disposition or distribution of assets or property (other than dividends on a pro rata basis based on ownership percentage) of the applicable joint venture, which limitation is applicable only to the assets that are the subject of such agreements; provided that such agreement was not entered into in contravention of the terms of the Financing Documents, (4) limitations set forth in Subordinated Debt (if acceptable to Agent in its sole discretion) and (5) limitations set forth in the 2018 Convertible Notes and/or 2022 Convertible Notes on the Closing Date and in any other Convertible Notes Debt (if, in the case of other Convertible Notes Debt, such limitations are permitted in the definition of “Permitted Refinancing Debt” or are otherwise acceptable to Agent in its sole discretion).
Section 5.5 Payments and Modifications of Subordinated Debt. No Borrower will directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) make any optional repurchase or optional redemption of the Convertible Notes, (d) amend or otherwise modify the terms of the Convertible Notes term if such change or amendment would materially increase the obligations of Borrowers or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt; provided that amendment of, or side letter in connection with, the 2018 Convertible Notes in a manner that aligns the settlement and conversion provisions with those contained in the 2022 Convertible Notes shall be permitted (any such amendment or side letter, a “2018 Specified Amendment”). Borrowers shall, prior to entering into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in equity interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, or, solely with respect to the 2018 Convertible Notes, such earlier date between the Closing Date and the stated maturity thereof upon notice thereof by Borrowers to Agent, repay, purchase or redeem the 2018 Convertible Notes and repay the 2022 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition” and, in the case of the 2018 Convertible Notes, proceeds of the Term Loans; provided that the maximum amount of Qualified Cash and proceeds of Term Loans used to repay the 2018 Convertible Notes shall not exceed $45,000,000 (with any excess beyond the then-outstanding principal amount thereof being allocated to pay premiums to incentivize the holders thereof to forego any settlement in shares); (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Debt; and (E) pay an amendment fee to the holders of the 2018 Convertible Notes in connection with a 2018 Specified Amendment in an amount not to exceed $275,000.
Section 5.6 Consolidations, Mergers and Sales of Assets; Change in Control. No Borrower will directly or indirectly (a) consolidate or merge or amalgamate with or into any other Person other than consolidations or mergers among Borrowers where a Borrower is the surviving entity (provided that, in the case of any consolidation or merger involving Accuray, Accuray shall be the surviving entity), or (b) consummate any Asset Dispositions other than Permitted Asset Dispositions. No Borrower will suffer or permit to occur any Change in Control.
Section 5.7 Purchase of Assets, Investments. No Borrower will directly or indirectly (a) engage or enter into any agreement to engage in any joint venture or partnership with any other Person or (b) acquire or own or enter into any agreement to acquire or own any Investment in any Person, in each case, other than Permitted Investments.
Section 5.8 Transactions with Affiliates. Except (a) as otherwise disclosed on Schedule 5.8, (b) for transactions that contain terms that are no less favorable to the applicable Borrower, as the case may be, than those which might be obtained from a third party not an Affiliate of any Credit Party, (c) for Permitted Investments, Permitted Asset Dispositions and Permitted Distributions, (d) for sales of equity interests in Borrower Representative to Affiliates of Borrower Representative not otherwise prohibited by the Financing Documents and the granting of registration and other customary rights in connection therewith and (e) for the payment of reasonable and customary director and officer compensation (including bonuses and stock option programs), benefits and indemnification arrangements in the Ordinary Course of Business, in each case approved by the board of directors (or a committee thereof) of such Borrower, no Borrower will directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of any Borrower.
Section 5.9 Modification of Organizational Documents. No Borrower will directly or indirectly, amend or otherwise modify any Organizational Documents of such Person, except for Permitted Modifications.
Section 5.10 Modification of Certain Agreements. No Borrower will (i) amend or otherwise modify any Material Contract, which amendment or modification in any case: (a) is contrary to the terms of this Agreement or any other Financing Document; (b) could reasonably be expected to be materially adverse to the rights, interests or privileges of Agent or Lenders or their ability to enforce the same; (c) results in the imposition or expansion in any material respect of any obligation of or restriction or burden on any Borrower; or (d) reduces in any material respect any rights or benefits of any Borrower (it being understood and agreed that any such determination shall be in the discretion of Agent) or (ii) without the prior written consent of Agent, amend or otherwise modify any Affiliated Financing Document. Each Borrower shall, prior to entering into any amendment or other modification of any of the foregoing documents, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy of amendments or other modifications to such documents, and such Borrower agrees not to take any such action with respect to any such documents without obtaining such approval from Agent.
Section 5.11 Conduct of Business. No Borrower will directly or indirectly, engage in any line of business other than those businesses engaged in on the Closing Date and businesses reasonably related thereto. No Borrower will, other than in the Ordinary Course of Business, change its normal billing payment and reimbursement policies and procedures with respect to its Accounts (including, without limitation, the amount and timing of finance charges, fees and write-offs).
Section 5.12 Reserved.
Section 5.13 Limitation on Sale and Leaseback Transactions. No Borrower will, directly or indirectly, enter into any arrangement with any Person whereby, in a substantially contemporaneous transaction, any Borrower sells or transfers all or substantially all of its right, title and interest in an asset and, in connection therewith, acquires or leases back the right to use such asset.
Section 5.14 Deposit Accounts and Securities Accounts; Payroll and Benefits Accounts. No Borrower will, directly or indirectly, establish any new Deposit Account or Securities Account unless Agent, such Borrower and the bank, financial institution or securities intermediary at which the account is to be opened enter into a Deposit Account Control Agreement or Securities Account Control Agreement prior to or concurrently with the establishment of such Deposit Account or Securities Account. Borrowers represent and warrant that Schedule 5.14 lists all of the Deposit Accounts and Securities Accounts of each Borrower. The provisions of this Section requiring Deposit Account Control Agreements shall not apply to Excluded Accounts; provided, however, that at all times that any Obligations or Affiliated Obligations remain outstanding, Borrower shall maintain one or more separate Deposit Accounts to hold any and all amounts to be used for payroll, payroll taxes and other employee wage and benefit payments (including 401(k) contributions), and shall not commingle any monies allocated for such purposes with funds in any other Deposit Account.
Section 5.15 Compliance with Anti-Terrorism Laws. Agent hereby notifies Borrowers that pursuant to the requirements of Anti-Terrorism Laws, and Agent’s policies and practices, Agent is required to obtain, verify and record certain information and documentation that identifies Borrowers and its principals, which information includes the name and address of each Borrower and its principals and such other information that will allow Agent to identify such party in accordance with Anti-Terrorism Laws. No Borrower will, directly or indirectly, knowingly enter into any Material Contracts with any Blocked Person. Each Borrower shall immediately notify Agent if such Borrower has knowledge that any Borrower, any additional Credit Party or any of their respective Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement is or becomes a Blocked Person or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. No Borrower will, or will permit any Subsidiary to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, except in compliance with applicable Law, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law.
Section 5.16 Transfers to Subsidiaries. No Borrower shall assign or otherwise transfer any Collateral or any proceeds of the Loans to any Excluded Subsidiary except that a Borrower may transfer proceeds of Collateral to an Excluded Subsidiary in connection with Permitted Intercompany Investments.
Section 5.17 Limitations on Morphormics, Inc. No Borrower shall permit Morphormics, Inc. to, directly or indirectly, (a) enter into or permit to exist any transaction or agreement (including any agreement for the incurrence or assumption of Debt), between itself and any other Person, (b) engage in any business or conduct any activity (including the making of any Investment or payment) or transfer any of its assets and the performance of ministerial or administrative activities and payment of taxes and administrative fees necessary for the maintenance of its existence, (c) consolidate or merge with or into any other Person, or (d) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired.
ARTICLE 6
FINANCIAL COVENANTS
Section 6.1 Additional Defined Terms. The following additional definitions are hereby appended to Section 1.1 of this Agreement:
“Defined Period” means, for purposes of calculating the Fixed Charge Coverage Ratio or Net Revenues the twelve (12) month period ending on the last day of each fiscal quarter.
“Fixed Charge Coverage Ratio” means the ratio of Operating Cash Flow (as defined in the Compliance Certificate) to Fixed Charges (as defined in the Compliance Certificate) for each Defined Period.
“Net Revenue” means, for any period, the consolidated net revenues of Borrowers and their Subsidiaries generated solely through the commercial sale of Products by Borrowers and their Subsidiaries during such period, as reported (in accordance with GAAP) in the financial statements delivered pursuant to Section 4.1(a) or (c), as applicable, as of the last day of such Defined Period.
Section 6.2 Fixed Charge Coverage Ratio. Borrowers will not permit the Fixed Charge Coverage Ratio for any Defined Period, as tested quarterly (as of the last day of such fiscal quarter), beginning with the first full fiscal quarter ending after the Closing Date, to be less than (a) in the case of the fiscal quarter ending December 31, 2017, 0.80 to 1.00 and (b) for each fiscal quarter thereafter, 1.00 to 1.00.
Section 6.3 Minimum Net Revenue. Borrower shall not permit its consolidated Net Revenue for any Defined Period, as tested quarterly (as of the last day of such Defined Period), to be less than $360,000,000.
Section 6.4 Evidence of Compliance. Borrowers shall furnish to Agent, together with the financial reporting required of Borrowers in Section 4.1 hereof, a Compliance Certificate as evidence of Borrowers’ compliance with the covenants in this Article and evidence that no Event of Default specified in this Article has occurred. The Compliance Certificate shall include, without limitation, (a) a statement and report, on a form approved by Agent, detailing Borrowers’ calculations, and (b) if requested by Agent, back-up documentation (including, without limitation, invoices, receipts and other evidence of costs incurred during such quarter as Agent shall reasonably require) evidencing the propriety of the calculations.
ARTICLE 7
CONDITIONS
Section 7.1 Conditions to Closing. The obligation of each Lender to make the initial Loans on the Closing Date shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document on the Closing Date;
(b) since June 30, 2017, the absence of any Material Adverse Effect;
(c) an amendment to the Affiliated Financing Documents providing for, among other things, a reduction in the Revolving Loan Commitment thereunder (and as defined therein) to $32,000,000 together with a concurrent prepayment of the Revolving Loan to be less than or equal to such Revolving Loan Commitment; and
(d) evidence of satisfaction of the Liquidity Condition in respect of the 2018 Convertible Notes.
Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Section 7.2 Conditions to Each Loan. The obligation of Lenders to make a Loan or an advance in respect of any Loan (including on the Closing Date) is subject to the satisfaction of the following additional conditions:
(a) the fact that, immediately before and after such advance or issuance, no Default or Event of Default shall have occurred and be continuing;
(b) the fact that the representations and warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) on and as of the date of such borrowing or issuance, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) as of such earlier date;
(c) the fact that no event having a Material Adverse Effect has not occurred since the date of this Agreement; and
(d) in the case of any borrowing of the Term Loan Tranche 2, Agent has received written notice of the intent to borrow at least thirty (30) day prior to the date of such borrowing and a duly executed Notice of Borrowing at least two (2) Business Days prior to such proposed borrowing.
Each giving of a Notice of Borrowing hereunder and each acceptance by any Borrower of the proceeds of any Loan made hereunder shall be deemed to be (y) a representation and warranty by each Borrower on the date of such notice or acceptance as to the facts specified in this Section, and (z) a restatement by each Borrower that each and every one of the representations made by it in any of the Financing Documents is true and correct as of such date (except to the extent that such representations and warranties expressly relate solely to an earlier date).
Section 7.3 Searches. Before the Closing Date, and thereafter (not more than once per year unless an Event of Default exists at the time such search is conducted), Agent shall have the right to perform, all at Borrowers’ expense, the searches described in clauses (a), (b), and (c) below against Borrowers and any other Credit Party, the results of which are to be consistent with Borrowers’ representations and warranties under this Agreement and the satisfactory results of which shall be a condition precedent to all advances of Loan proceeds: (a) UCC searches with the Secretary of State of the jurisdiction in which the applicable Person is organized; (b) judgment, pending litigation, federal tax lien, personal property tax lien, and corporate and partnership tax lien searches, in each jurisdiction searched under clause (a) above; and (c) searches of applicable corporate, limited liability company, partnership and related records to confirm the continued existence, organization and good standing of the applicable Person and the exact legal name under which such Person is organized.
Section 7.4 Post-Closing Requirements. Borrowers shall complete each of the post-closing obligations and/or provide to Agent each of the documents, instruments, agreements and information listed on Schedule 7.4 attached hereto on or before the date set forth for each such item thereon, each of which shall be completed or provided in form and substance reasonably satisfactory to Agent, and may be extended by Agent (acting reasonably) in writing in its sole discretion.
ARTICLE 8
RESERVED
ARTICLE 9
SECURITY AGREEMENT
Section 9.1 Generally. As security for the payment and performance of the Obligations and without limiting any other grant of a Lien and security interest in any Security Document, Borrowers hereby assign, grant and pledge to Agent, for the benefit of itself and Lenders, and, subject only to the Affiliated Intercreditor Agreement, a continuing Lien on and security interest in, upon, and to the Collateral.
Section 9.2 Representations and Warranties and Covenants Relating to Collateral.
(a) Schedule 9.2 sets forth (i) each chief executive office and principal place of business of each Borrower, and (ii) all of the addresses (including all warehouses) at which any Collateral, in each case with an aggregate value in excess of $500,000 is located and/or books and records of Borrowers regarding any material portion of the Collateral are kept, which such Schedule 9.2 indicates in each case which Borrower(s) have Collateral and/or books and records located at such address, and, in the case of any such address not owned by one or more Borrowers(s), indicates the nature of such location (e.g., leased business location operated by Borrower(s), third party warehouse, consignment location, processor location, etc.) and the name and address of the third party owning and/or operating such location. Notwithstanding the foregoing, it is understood that, Borrowers may from time to time (1) sell or otherwise dispose of Collateral pursuant to the terms of this Agreement, (2) maintain de minimis amounts of Inventory with its sales personnel and at medical facilities and (3) send items of Collateral out for repair and, further, that from time to time certain items of Collateral will be in transit and that no such locations need be disclosed on Schedule 9.2.
(b) Without limiting the generality of Section 3.2, except for the filing of financing statements under the UCC and filings with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or consent of any other Person is required for (i) the grant by each Borrower to Agent of the security interests and Liens in the Collateral provided for under this Agreement and the other Security Documents (if any), or (ii) the exercise by Agent of its rights and remedies with respect to the Collateral provided for under this Agreement and the other Security Documents or under any applicable Law, including the UCC and neither any such grant of Liens in favor of Agent or exercise of rights by Agent shall violate or cause a default under any agreement between any Borrower and any other Person relating to any such Collateral.
(c) As of the Closing Date, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments (other than (i) checks and other ordinary course payment instruments, in each case in the Ordinary Course of Business and (ii) Excluded Perfection Assets), documents or investment property (other than equity interests in any Subsidiaries of such Borrower disclosed on Schedule 3.4 or subsequently created hereunder and pledged to Agent) and Borrowers shall give notice to Agent promptly (but in any event not later than the delivery by Borrowers of the next Compliance Certificate required pursuant to Section 4.1 above) upon the acquisition by any Borrower of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments, documents, investment property. No Person other than Agent or (if applicable) any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including Securities Accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, Securities Account or commodities account of Borrowers is maintained).
(d) Borrowers shall not, and shall not permit any Credit Party to, take any of the following actions or make any of the following changes unless Borrowers have given at least ten (10) days’ prior written notice to Agent (or such shorter period to which Agent may in its reasonable discretion agree) of Borrowers’ intention to take any such action (which such written notice shall include an updated version of any Schedule impacted by such change) and have executed any and all documents, instruments and agreements and taken any other actions which Agent may reasonably request after receiving such written notice in order to protect and preserve the Liens, rights and remedies of Agent with respect to the Collateral; provided that, nothing in this clause (d) shall require Borrowers to obtain any landlord’s agreement or mortgagee agreement: (i) change the legal name or organizational identification number of any Borrower as it appears in official filings in the jurisdiction of its organization, (ii) change the jurisdiction of incorporation or formation of any Borrower or Credit Party or allow any Borrower or Credit Party to designate any jurisdiction as an additional jurisdiction of incorporation for such Borrower or Credit Party, or change the type of entity that it is, (iii) change its chief executive office, principal place of business, or the location of its records concerning the Collateral, (iv) move any material portion of
any Collateral (with an aggregate value in excess of $500,000) to, or place any Collateral (with an aggregate value in excess of $500,000) on, any location that is not then listed on the Schedules and/or (v) establish any business location at any location that is not then listed on the Schedules. Notwithstanding the foregoing, it is understood that, Borrowers may from time to time (1) sell or otherwise dispose of Collateral pursuant to the terms of this Agreement, (2) maintain de minimis amounts of Inventory with its sales personnel and at medical facilities and (3) send items of Collateral out for repair and, further, that from time to time certain items of Collateral will be in transit and that no such locations need be disclosed on Schedule 9.2.
(e) Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the Ordinary Course of Business, and in amounts which are not material with respect to the Account and to the extent not prohibited by the Affiliated Financing Documents) without the prior written consent of Agent. Without limiting the generality of this Agreement or any other provisions of any of the Financing Documents relating to the rights of Agent after the occurrence and during the continuance of an Event of Default, Agent shall have the right at any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle or compromise the amount or payment of such Accounts.
(f) Without limiting the generality of Sections 9.2(c) and 9.2(e):
(i) Borrowers shall deliver to Agent all tangible Chattel Paper and all Instruments constituting part of the Collateral (in each case, other than Excluded Perfection Assets) duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent. Borrowers shall provide Agent with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper owned by any Borrower and constituting part of the Collateral (other than Excluded Perfection Assets) by having Agent identified as the assignee on the records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of control set forth in the UCC. Borrowers also shall deliver to Agent all security agreements securing any such Chattel Paper and securing any such Instruments. Borrowers will mark conspicuously all such Chattel Paper and all such Instruments with a legend, in form and substance satisfactory to Agent, indicating that such Chattel Paper and such Instruments are subject to the security interests and Liens in favor of Agent created pursuant to this Agreement and the Security Documents. Borrowers shall comply with all the provisions of Section 5.14 with respect to the Deposit Accounts and Securities Accounts of Borrowers.
(ii) Borrowers shall deliver to Agent all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral (other than Excluded Perfection Assets) in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent. Borrowers shall
take any and all actions as may be necessary or desirable, or that Agent may request, from time to time, to cause Agent to obtain exclusive “control” (as defined in Article 9 of the UCC) of any such letter of credit rights which constitute part of the Collateral in a manner reasonably acceptable to Agent.
(iii) Borrowers shall promptly advise Agent upon any Borrower becoming aware that it has any interests in any commercial tort claim that constitutes part of the Collateral (other than Excluded Perfection Assets), which such notice shall include descriptions of the events and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims, and Borrowers shall, with respect to any such commercial tort claim, execute and deliver to Agent such documents as Agent shall reasonably request to perfect, preserve or protect the Liens, rights and remedies of Agent with respect to any such commercial tort claim.
(iv) Except for Accounts and Inventory in an aggregate amount of $500,000, no Accounts or Inventory shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Agent and (A) the receipt by Agent, if Agent has so requested, of warehouse receipts, consignment agreements or bailee lien waivers (as applicable) satisfactory to Agent or (B) establishment of a Rent and Charges Reserve (as defined in the Affiliated Financing Documents), in either case, prior to the commencement of such possession or control. Borrowers shall, upon the request of Agent, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor of Agent created pursuant to this Agreement and the Security Documents, shall instruct such Person to hold all such Collateral for Agent’s account subject to Agent’s instructions and use commercially reasonable efforts to obtain an acknowledgement from such Person that such Person holds the Collateral for Agent’s benefit.
(v) Reserved.
(vi) Each Borrower hereby authorizes Agent to file without the signature of such Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the Collateral, which financing statements may list Agent as the “secured party” and such Borrower as the “debtor” and which describe and indicate the items of Collateral covered thereby as all or any part of the Collateral under the Financing Documents (including an indication of the items of Collateral covered by any such financing statement as “all assets” of such Borrower now owned or hereafter acquired), in such jurisdictions as Agent from time to time reasonably determines are appropriate, and to file without the signature of such Borrower any continuations of or corrective amendments to any such financing statements, in any such case in order for Agent to perfect, preserve or protect the Liens, rights and remedies of Agent with respect to the Collateral. Each Borrower also ratifies its authorization for Agent to have filed in any jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.
(vii) As of the Closing Date, no Borrower holds, and after the Closing Date Borrowers shall promptly notify Agent in writing upon creation or acquisition by any Borrower of, any Collateral which constitutes a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law. Upon the reasonable request of Agent, Borrowers shall take such steps as may be necessary or desirable, or that Agent may reasonably request, to comply with any such applicable Law.
(viii) Borrowers shall furnish to Agent from time to time any statements and schedules further identifying or describing the Collateral and any other information, reports or evidence concerning the Collateral as Agent may reasonably request from time to time.
(g) Notwithstanding anything in this Agreement to the contrary, other than the filing of a UCC-1 financing statement, no actions shall be required to perfect the security interest granted hereunder in (i) Letter-of-Credit Rights to the extent the aggregate face amount of all such Letter-of-Credit Rights is less than $100,000, (ii) motor vehicles and other assets subject to certificates of title to the extent the aggregate value of all such motor vehicles and other assets is less than $500,000 (other than to the extent (x) a security interest thereon can be perfected by the filing of a financing statement under the UCC and (y) an Event of Default has occurred and Agent has elected to require, by written notice to Borrowers, that Borrowers take all such steps necessary to perfect a lien in favor of Agent, for the benefit of Lenders, in such motor vehicles and other assets subject to certificates of title), (iii) Excluded Accounts, (iv) any assets located outside of the United States if the perfection of the security interest therein would require any Borrower to complete any filings or take any other action with respect thereto in any jurisdiction outside of the United States or any political subdivision thereof (including, for the avoidance of doubt, delivery of foreign equity certificates) unless an Event of Default has occurred and Agent has elected to require, by written notice to Borrowers, that Borrowers take all such steps necessary to perfect a lien in favor of Agent, for the benefit of Lenders, in such assets, (v) any commercial tort claims where the amount of damages claimed by the applicable Borrower is less than $100,000 in the aggregate for all such commercial tort claims, (vi) any electronic chattel paper with an aggregate value in excess of $100,000, and (vii) any asset with respect to which Agent has determined that the cost, burden, difficulty or consequence of perfecting a security interest therein outweighs the benefits afforded thereby (such assets described in clauses (i) through (vii) above, the “Excluded Perfection Assets”).
ARTICLE 10
EVENTS OF DEFAULT
Section 10.1 Events of Default. For purposes of the Financing Documents, the occurrence of any of the following conditions and/or events, whether voluntary or involuntary, by operation of law or otherwise, shall constitute an “Event of Default”:
(a) (i) any Borrower shall fail to pay when due any principal, interest, premium or fee under any Financing Document or any other amount payable under any Financing Document, (ii) any Borrower defaults in the performance of or compliance with any of the following sections of this Agreement: Section 2.11, Section 4.2(b), Section 4.4(c), Section 4.6 and Article 5, or (iii) any Borrower defaults in the performance of or compliance with Section 4.1 and/or Article 6 (subject to the provisions of Section 10.11) of this Agreement and Borrower Representative has received written notice from Agent or Required Lenders of such default;
(b) any Credit Party defaults in the performance of or compliance with any term contained in this Agreement or in any other Financing Document (other than occurrences described in other provisions of this Section 10.1 for which a different grace or cure period is specified or for which no grace or cure period is specified and thereby constitute immediate Events of Default) and such default is not remedied by the Credit Party or waived by Agent within thirty (30) days after the earlier of (i) receipt by Borrower Representative of notice from Agent or Required Lenders of such default, or (ii) actual knowledge of any Borrower or any other Credit Party of such default;
(c) any representation, warranty, certification or statement made by any Credit Party or any other Person in any Financing Document or in any certificate, financial statement or other document delivered pursuant to any Financing Document is incorrect in any respect (or in any material respect if such representation, warranty, certification or statement is not by its terms already qualified as to materiality) when made (or deemed made) (subject, in the case of projections, other forward-looking information and industry information, to the limitations set forth in Section 3.21 hereof);
(d) failure of any Credit Party to pay when due or within any applicable grace period any principal, interest or other amount on Debt (other than the Loans), or the occurrence of any breach, default, condition or event (in each case, other than conversion of, or rights to convert, any Convertible Notes Debt in accordance with its terms so long as such conversion terms are no less favorable than those applicable to the 2018 Convertible Notes and/or the 2022 Convertible Notes as in effect on the date hereof) with respect to any Debt (other than the Loans), if the effect of such failure or occurrence is to cause or to permit the holder or holders of any such Debt to cause, Debt or other liabilities having an aggregate principal amount in excess of $5,000,000 to become or be declared due prior to its stated maturity;
(e) any Borrower or any Material Subsidiary of a Borrower shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;
(f) an involuntary case or other proceeding shall be commenced against any Credit Party or any Material Subsidiary of a Borrower seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or an order for relief shall be entered against any Credit Party or any Subsidiary of a Borrower under applicable federal bankruptcy, insolvency or other similar law in respect of (i) bankruptcy, liquidation, winding-up, dissolution or suspension of general operations, (ii) composition, rescheduling, reorganization, arrangement or readjustment of, or other relief from, or stay of proceedings to enforce, some or all of the debts or obligations, or (iii) possession, foreclosure, seizure or retention, sale or other disposition of, or other proceedings to enforce security over, all or any substantial part of the assets of such Credit Party or Subsidiary;
(g) (i) institution of any steps by any Person to terminate a Pension Plan if as a result of such termination any Credit Party or any member of the Controlled Group could be required to make a contribution to such Pension Plan and could incur a liability or obligation to such Pension Plan, in excess of $1,000,000, (ii) a contribution failure occurs with respect to any Pension Plan sufficient to give rise to a Lien under Section 303(k) of ERISA or Section 430(k) of the Code or an event occurs that could reasonably be expected to give rise to a Lien under Section 4068 of ERISA, or (iii) there shall occur any withdrawal or partial withdrawal from a Multiemployer Plan and the withdrawal liability (without unaccrued interest) to Multiemployer Plans as a result of such withdrawal (including any outstanding withdrawal liability that any Credit Party or any member of the Controlled Group have incurred on the date of such withdrawal) exceeds $1,000,000;
(h) one or more judgments or orders for the payment of money aggregating in excess of $5,000,000 (above (i) any amounts covered by insurance to the extent the relevant independent third-party insurer has not denied coverage therefor, or (ii) the amount of a bond or other security from or on behalf of Borrowers or any of their respective Subsidiaries as security against such judgment) shall be rendered against any or all Credit Parties and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders, or (ii) there shall be any period of thirty (30) consecutive days during which a stay of enforcement of any such judgments or orders, by reason of a pending appeal, bond or otherwise, shall not be in effect;
(i) any Lien created by any of the Security Documents with respect to a material portion of the Collateral, taken as a whole, shall at any time fail to constitute a valid and perfected (other than in respect of Excluded Perfection Assets) Lien on all of the Collateral purported to be encumbered thereby, subject to no prior or equal Lien except Permitted Liens, or any Credit Party shall so assert;
(j) the institution by any Governmental Authority of criminal proceedings against any Credit Party;
(k) any Guarantee of the Obligations shall fail to remain in full force or effect (other than to the extent expressly permitted by this Agreement) or any action shall be taken by any Guarantor to discontinue or to assert the invalidity or unenforceability of its Guarantee, or any Guarantor shall fail to comply with any of the terms of provisions of its Guarantee, or any
Guarantor shall deny that it has any further liability under its Guarantee, or shall give notice to such effect (other than as a result of the discharge of such Guarantor to the extent expressly permitted by this Agreement), including, but not limited to, any notice of termination delivered pursuant to the terms of any Guarantee.
(l) any Borrower makes any payment on account of any Subordinated Debt, other than payments specifically permitted by the terms of the applicable Subordinated Debt Documents;
(m) the equity of Accuray fails to remain registered with the SEC in good standing, and/or such equity fails to remain publicly traded on and registered with a public securities exchange;
(n) there shall occur any event of default under the Indenture, the 2018 Convertible Notes, the 2022 Convertible Notes, any other Convertible Notes Debt or any indenture in respect thereof; or
(o) there shall occur any event of default under the Affiliated Financing Documents.
All cure periods provided for in this Section 10.1 shall run concurrently with any cure period provided for in any applicable Financing Documents under which the default occurred.
Section 10.2 Acceleration and Suspension or Termination of Term Loan Commitment. Upon the occurrence and during the continuance of an Event of Default, Agent may, and shall if requested by Required Lenders, (a) by notice to Borrower Representative suspend or terminate the Term Loan Commitment and the obligations of Agent and Lenders with respect thereto, in whole or in part (and, if in part, each Lender’s Term Loan Commitment shall be reduced in accordance with its Pro Rata Share), and/or (b) by notice to Borrower Representative declare all or any portion of the Obligations to be, and the Obligations shall thereupon become, immediately due and payable, with accrued interest thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower, and Borrowers will pay the same; provided, however, that in the case of any of the Events of Default specified in Section 10.1(e) or 10.1(f) above, without any notice to any Borrower or any other act by Agent or Lenders, the Term Loan Commitment and the obligations of Agent and Lenders with respect thereto shall thereupon immediately and automatically terminate and all of the Obligations shall become immediately and automatically due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower and Borrowers will pay the same.
Section 10.3 UCC Remedies.
(a) Upon the occurrence of and during the continuance of an Event of Default under this Agreement or the other Financing Documents, Agent, in addition to all other rights, options, and remedies granted to Agent under this Agreement or at law or in equity, may exercise, either directly or through one or more assignees or designees, all rights and remedies granted to it under all Financing Documents and under the UCC in effect in the applicable jurisdiction(s) and under any other applicable law; including, without limitation:
(i) the right to take possession of, send notices regarding, and collect directly the Collateral, with or without judicial process;
(ii) the right to (by its own means or with judicial assistance) enter any of Borrowers’ premises and take possession of the Collateral, or render it unusable, or to render it usable or saleable, or dispose of the Collateral on such premises in compliance with subsection (iii) below and to take possession of Borrowers’ original books and records, to obtain access to Borrowers’ data processing equipment, computer hardware and software relating to the Collateral and to use all of the foregoing and the information contained therein in any manner Agent deems appropriate, without any liability for rent, storage, utilities, or other sums, and Borrowers shall not resist or interfere with such action (if Borrowers’ books and records are prepared or maintained by an accounting service, contractor or other third party agent, Borrowers hereby irrevocably authorize such service, contractor or other agent, upon notice by Agent to such Person that an Event of Default has occurred and is continuing, to deliver to Agent or its designees such books and records, and to follow Agent’s instructions with respect to further services to be rendered);
(iii) the right to require Borrowers at Borrowers’ expense to assemble all or any part of the Collateral and make it available to Agent at any place designated by Agent;
(iv) the right to notify postal authorities to change the address for delivery of Borrowers’ mail to an address designated by Agent and to receive, open and dispose of all mail addressed to any Borrower; and/or
(v) the right to enforce Borrowers’ rights against Account Debtors and other obligors, including, without limitation, (i) the right to collect Accounts directly in Agent’s own name (as agent for Lenders) and to charge the collection costs and expenses, including attorneys’ fees, to Borrowers, and (ii) the right, in the name of Agent or any designee of Agent or Borrowers, to verify the validity, amount or any other matter relating to any Accounts by mail, telephone, telegraph or otherwise, including, without limitation, verification of Borrowers’ compliance with applicable Laws. Borrowers shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. Such verification may include contacts between Agent and applicable federal, state and local regulatory authorities having jurisdiction over Borrowers’ affairs, all of which contacts Borrowers hereby irrevocably authorize.
(b) Each Borrower agrees that a notice received by it at least ten (10) days before the time of any intended public sale, or the time after which any private sale or other disposition of the Collateral is to be made, shall be deemed to be reasonable notice of such sale or other disposition. If permitted by applicable law, any perishable Collateral which threatens to speedily decline in value or which is sold on a recognized market may be sold immediately by Agent without prior notice to Borrowers. At any sale or disposition of Collateral, Agent may (to the extent permitted by applicable law) purchase all or any part of the Collateral, free from any right of redemption by Borrowers, which right is hereby waived and released. Each Borrower covenants and agrees not to interfere with or impose any obstacle to Agent’s exercise of its rights and remedies with respect to the Collateral. Agent shall have no obligation to clean-up or
otherwise prepare the Collateral for sale. Agent may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Agent may sell the Collateral without giving any warranties as to the Collateral. Agent may specifically disclaim any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. If Agent sells any of the Collateral upon credit, Borrowers will be credited only with payments actually made by the purchaser, received by Agent and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Agent may resell the Collateral and Borrowers shall be credited with the proceeds of the sale. Borrowers shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Obligations.
(c) Without restricting the generality of the foregoing and for the purposes aforesaid, each Borrower hereby appoints and constitutes Agent its lawful attorney-in-fact with full power of substitution in the Collateral, upon the occurrence and during the continuance of an Event of Default, to (i) use unadvanced funds remaining under this Agreement or which may be reserved, escrowed or set aside for any purposes hereunder at any time, or to advance funds in excess of the face amount of the Notes, (ii) pay, settle or compromise all existing bills and claims, which may be Liens or security interests, or to avoid such bills and claims becoming Liens against the Collateral, (iii) execute all applications and certificates in the name of such Borrower and to prosecute and defend all actions or proceedings in connection with the Collateral, and (iv) do any and every act which such Borrower might do in its own behalf; it being understood and agreed that the power of attorney in this subsection (c) shall be a power coupled with an interest and cannot be revoked.
(d) Subject to the terms and conditions of this Agreement, solely for the purpose of enabling the Agent, on behalf of the Lenders, to exercise rights and remedies hereunder after the occurrence and solely during the continuance of an Event of Default and at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, Agent is hereby granted, for its benefit and the benefit of the Lenders, to the extent licensable without payment to or consent of any third party, an irrevocable (during the continuation of an Event of Default), non-exclusive license (exercisable without payment of royalty or other compensation to any Credit Party or any other Person) to use any of the Intellectual Property of any Credit Party included in the Collateral, including access to all media in which any such licensed Intellectual Property may be recorded or stored and to all computer programs used for the compilation or printout thereof, provided, however, that (i) such license granted hereunder with respect to trademarks shall be subject to all quality control and use requirements or standards of the applicable Credit Party, (ii) the Agent continue to use such Credit Party’s patent, trademark, copyright and proprietary notices in connection with its exercise of such license, (iii) all goodwill associated with the use of the Credit Party’s trademarks will inure to the sole and exclusive benefit of such Credit Party and (iv) the Agent, on behalf of the Lenders, shall have no greater rights than those of the applicable Credit Party under any such license. For the avoidance of doubt, the use of the license granted to the Agent pursuant to this Section 10.3(d) by the Credit Parties may be exercised, at the option of the Agent, only upon the occurrence and solely during the continuance of an Event of Default.
Section 10.4 Reserved.
Section 10.5 Default Rate of Interest. At the election of Agent or Required Lenders, after the occurrence of an Event of Default (but in the case of a breach of the covenants in Article 6, only after the Cure Period expires or if the Cure Right is no longer available) and for so long as it continues, (a) the Loans and other Obligations shall bear interest at rates that are two percent (2.0%) per annum in excess of the rates otherwise payable under this Agreement; provided, however, that in the case of any Event of Default specified in Section 10.1(e) or 10.1(f) above, such default rates shall apply immediately and automatically without the need for any election or action of any kind on the part of Agent or any Lender.
Section 10.6 Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by each Borrower at any time or from time to time, with reasonably prompt subsequent notice to such Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (a) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of such Borrower or any of its Subsidiaries (regardless of whether such balances are then due to such Borrower or its Subsidiaries), and (b) other property at any time held or owing by such Lender to or for the credit or for the account of such Borrower or any of its Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Each Borrower agrees, to the fullest extent permitted by law, that any Lender and any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 10.6.
Section 10.7 Application of Proceeds.
(a) Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, each Borrower irrevocably waives the right to direct the application of any and all payments at any time or times thereafter received by Agent from or on behalf of such Borrower or any Guarantor of all or any part of the Obligations, and, as between Borrowers on the one hand and Agent and Lenders on the other, Agent shall have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as Agent may deem advisable notwithstanding any previous application by Agent.
(b) Following the occurrence and continuance of an Event of Default, but absent the occurrence and continuance of an Acceleration Event, Agent shall apply any and all payments received by Agent in respect of the Obligations, and any and all proceeds of Collateral received by Agent, in such order as Agent may from time to time elect.
(c) Notwithstanding anything to the contrary contained in this Agreement, if an Acceleration Event shall have occurred, and so long as it continues, Agent shall apply any and all payments received by Agent in respect of the Obligations, and any and all proceeds of Collateral received by Agent, in the following order: first, to all fees, costs, indemnities, liabilities, obligations and expenses incurred by or owing to Agent with respect to this Agreement, the other Financing Documents or the Collateral; second, to all fees, costs, indemnities, liabilities,
obligations and expenses incurred by or owing to any Lender with respect to this Agreement, the other Financing Documents or the Collateral; third, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the Bankruptcy Code, would have accrued on such amounts); fourth, to the principal amount of the Obligations outstanding; and fifth to any other indebtedness or obligations of Borrowers owing to Agent or any Lender under the Financing Documents. Any balance remaining shall be delivered to Borrowers or to whomever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. In carrying out the foregoing, (y) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category, and (z) each of the Persons entitled to receive a payment in any particular category shall receive an amount equal to its Pro Rata Share of amounts available to be applied pursuant thereto for such category.
Section 10.8 Waivers.
(a) Except as otherwise provided for in this Agreement and to the fullest extent permitted by applicable law, each Borrower waives: (i) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all Financing Documents, the Notes or any other notes, commercial paper, accounts, contracts, documents, Instruments, Chattel Paper and Guarantees at any time held by Lenders on which any Borrower may in any way be liable, and hereby ratifies and confirms whatever Lenders may do in this regard; (ii) all rights to notice and a hearing prior to Agent’s or any Lender’s taking possession or control of, or to Agent’s or any Lender’s replevy, attachment or levy upon, any Collateral or any bond or security which might be required by any court prior to allowing Agent or any Lender to exercise any of its remedies; and (iii) the benefit of all valuation, appraisal and exemption Laws. Each Borrower acknowledges that it has been advised by counsel of its choices and decisions with respect to this Agreement, the other Financing Documents and the transactions evidenced hereby and thereby.
(b) Each Borrower for itself and all its successors and assigns, (i) agrees that its liability shall not be in any manner affected by any indulgence, extension of time, renewal, waiver, or modification granted or consented to by Lender; (ii) consents to any indulgences and all extensions of time, renewals, waivers, or modifications that may be granted by Agent or any Lender with respect to the payment or other provisions of the Financing Documents, and to any substitution, exchange or release of the Collateral, or any part thereof, with or without substitution, and agrees to the addition or release of any Borrower, endorsers, guarantors, or sureties, or whether primarily or secondarily liable, without notice to any other Borrower and without affecting its liability hereunder; (iii) agrees that its liability shall be unconditional and without regard to the liability of any other Borrower, Agent or any Lender for any tax on the indebtedness (except to the extent otherwise expressly provided in Section 2.8); and (iv) to the fullest extent permitted by law, expressly waives the benefit of any statute or rule of law or equity now provided, or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing.
(c) To the extent that Agent or any Lender may have acquiesced in any noncompliance with any requirements or conditions precedent to the closing of the Loans or to any subsequent disbursement of Loan proceeds, such acquiescence shall not be deemed to constitute a waiver by Agent or any Lender of such requirements with respect to any future
disbursements of Loan proceeds and Agent may at any time after such acquiescence require Borrowers to comply with all such requirements. Any forbearance by Agent or Lender in exercising any right or remedy under any of the Financing Documents, or otherwise afforded by applicable law, including any failure to accelerate the maturity date of the Loans, shall not be a waiver of or preclude the exercise of any right or remedy nor shall it serve as a novation of the Notes or as a reinstatement of the Loans or a waiver of such right of acceleration or the right to insist upon strict compliance of the terms of the Financing Documents. Agent’s or any Lender’s acceptance of payment of any sum secured by any of the Financing Documents after the due date of such payment shall not be a waiver of Agent’s and such Lender’s right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other Liens or charges by Agent as the result of an Event of Default shall not be a waiver of Agent’s right to accelerate the maturity of the Loans, nor shall Agent’s receipt of any condemnation awards, insurance proceeds, or damages under this Agreement operate to cure or waive any Credit Party’s default in payment of sums secured by any of the Financing Documents.
(d) Without limiting the generality of anything contained in this Agreement or the other Financing Documents, each Borrower agrees that if an Event of Default is continuing all Liens and other rights, remedies or privileges provided to Agent or Lenders shall remain in full force and effect until Agent or Lenders have exhausted all remedies against the Collateral and any other properties owned by Borrowers and the Financing Documents and other security instruments or agreements securing the Loans have been foreclosed, sold and/or otherwise realized upon in satisfaction of Borrowers’ obligations under the Financing Documents.
(e) Nothing contained herein or in any other Financing Document shall be construed as requiring Agent or any Lender to resort to any part of the Collateral for the satisfaction of any of Borrowers’ obligations under the Financing Documents in preference or priority to any other Collateral, and Agent may seek satisfaction out of all of the Collateral or any part thereof, in its absolute discretion in respect of Borrowers’ obligations under the Financing Documents. In addition, Agent shall have the right, after the occurrence and during the continuance of an Event of Default, to partially foreclose upon any Collateral in any manner and for any amounts secured by the Financing Documents then due and payable as determined by Agent in its sole discretion, including, without limitation, the following circumstances: (i) in the event any Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and/or interest, Agent may foreclose upon all or any part of the Collateral to recover such delinquent payments, or (ii) in the event Agent elects (in accordance with the terms of this Agreement) to accelerate less than the entire outstanding principal balance of the Loans, Agent may foreclose all or any part of the Collateral to recover so much of the principal balance of the Loans as Lender may accelerate and such other sums secured by one or more of the Financing Documents as Agent may elect. Notwithstanding one or more partial foreclosures, any unforeclosed Collateral shall remain subject to the Financing Documents to secure payment of sums secured by the Financing Documents and not previously recovered.
(f) To the fullest extent permitted by law, each Borrower, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Collateral any equitable right otherwise available to any Credit Party which would require the separate sale of any of the Collateral or require Agent or Lenders to exhaust their remedies against any part of the
Collateral before proceeding against any other part of the Collateral; and further in the event of such foreclosure each Borrower does hereby expressly consent to and authorize, at the option of Agent, the foreclosure and sale either separately or together of each part of the Collateral.
Section 10.9 Injunctive Relief. The parties acknowledge and agree that, in the event of a breach or threatened breach of any Credit Party’s obligations under any Financing Documents, Agent and Lenders may have no adequate remedy in money damages and, accordingly, shall be entitled to an injunction (including, without limitation, a temporary restraining order, preliminary injunction, writ of attachment, or order compelling an audit) against such breach or threatened breach, including, without limitation, maintaining any cash management and collection procedure described herein. However, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event of a breach or threatened breach of any provision of this Agreement. Each Credit Party waives, to the fullest extent permitted by law, the requirement of the posting of any bond in connection with such injunctive relief. By joining in the Financing Documents as a Credit Party, each Credit Party specifically joins in this Section as if this Section were a part of each Financing Document executed by such Credit Party.
Section 10.10 Marshalling; Payments Set Aside. Neither Agent nor any Lender shall be under any obligation to marshal any assets in payment of any or all of the Obligations. To the extent that Borrower makes any payment or Agent enforces its Liens or Agent or any Lender exercises its right of set-off, and such payment or the proceeds of such enforcement or set-off is subsequently invalidated, declared to be fraudulent or preferential, set aside, or required to be repaid by anyone, then to the extent of such recovery, the Obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or set-off had not occurred.
Section 10.11 Cure Right. (a) Notwithstanding anything to the contrary contained in this Agreement, in the event that Borrowers fail to comply with Section 6.2 as of the end of any fiscal quarter, until the expiration of the fifteenth (15th) Business Day subsequent to the date the Compliance Certificate for such fiscal quarter is required to be delivered pursuant to Section 4.1 (the “Cure Period”), Accuray shall have the right to issue equity interests (other than Disqualified Equity Interests) for cash (the amount thereof, the “Cure Amount” and the exercise of such right, the “Cure Right”); provided, (i) no more than four (4) Cure Rights may be exercised after the Closing Date; (ii) no more than two Cure Rights may be exercised during any consecutive four fiscal quarters; (iii) no Cure Amount shall exceed the amount necessary to cause compliance with Section 6.2 for the period then ended; (iv) no Cure Amount shall exceed $5,000,000; and (v) the Cure Right must be exercised under this Agreement and the Affiliated Credit Agreement concurrently; provided further, that (x) Borrower Representative shall give Agent written notice of their intention to exercise the Cure Right prior to the eleventh (11th) Business Day subsequent to the date the Compliance Certificate for such fiscal quarter is required to be delivered (such Business Day, the “Cure Notice Deadline”) and (y) so long as Borrower Representative has given irrevocable written notice to Agent of its commitment to exercise the Cure Right prior to the Cure Notice Deadline, during the remainder of the Cure Period thereafter, neither Agent nor Lenders shall exercise remedies in connection with such failure to comply with Section 6.2 as of the end of such fiscal quarter; provided, further, that Borrowers shall not be permitted to request the second advance of the Term Loan during the Cure Period unless and until the Cure Amount has been received by Accuray.
(b) Upon the receipt by Accuray of the cash proceeds of any equity issuance referred to in Section 10.11(a), EBITDA for the fiscal quarter as to which such Cure Right is exercised (the “Cure Right Fiscal Quarter”) shall be deemed to have been increased by the Cure Amount in determining compliance with Section 6.2 for such Cure Right Fiscal Quarter and for any subsequent period that includes such Cure Right Fiscal Quarter; provided that no increase in EBITDA on account of the exercise of any Cure Right shall be applicable for any other purpose under this Agreement or any other Financing Documents.
(c) If after giving effect to the recalculations set forth in Section 10.11(b) Borrowers shall then be in compliance with Section 6.2, Borrowers shall be deemed to have satisfied the requirements of such covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and any Event of Default with respect to any such covenant that had occurred shall be deemed cured for all purposes of this Agreement and the other Financing Documents.
ARTICLE 11
AGENT
Section 11.1 Appointment and Authorization. Each Lender hereby irrevocably appoints and authorizes Agent to enter into each of the Financing Documents to which it is a party (other than this Agreement) on its behalf and to take such actions as Agent on its behalf and to exercise such powers under the Financing Documents as are delegated to Agent by the terms thereof, together with all such powers as are reasonably incidental thereto. Subject to the terms of Section 11.16 and to the terms of the other Financing Documents, Agent is authorized and empowered to amend, modify, or waive any provisions of this Agreement or the other Financing Documents on behalf of Lenders. The provisions of this Article 11 are solely for the benefit of Agent and Lenders and neither any Borrower nor any other Credit Party shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Credit Party. Agent may perform any of its duties hereunder, or under the Financing Documents, by or through its agents, servicers, trustees, investment managers or employees.
Section 11.2 Agent and Affiliates. Agent shall have the same rights and powers under the Financing Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Credit Party or Affiliate of any Credit Party as if it were not Agent hereunder.
Section 11.3 Action by Agent. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the Financing Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the Financing Documents except as expressly set forth herein or therein.
Section 11.4 Consultation with Experts. Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
Section 11.5 Liability of Agent. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them).
Section 11.6 Indemnification. Each Lender shall, in accordance with its Pro Rata Share, indemnify Agent (to the extent not reimbursed by Borrowers) upon demand against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction) that Agent may suffer or incur in connection with the Financing Documents or any action taken or omitted by Agent hereunder or thereunder. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by Required Lenders until such additional indemnity is furnished.
Section 11.7 Right to Request and Act on Instructions. Agent may at any time request instructions from Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Financing Documents Agent is permitted or desires to take or to grant, and if such instructions are promptly requested, Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Financing Documents until it shall have received such instructions from Required Lenders or all or such other portion of Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement or any of the other Financing Documents in accordance with the instructions of Required Lenders (or all or such other portion of Lenders as shall be prescribed by this Agreement) and, notwithstanding the instructions of Required Lenders (or such other applicable portion of Lenders), Agent shall have no obligation to take any action if it believes, in good faith, that such action would violate applicable Law or exposes Agent to any liability for which it has not received satisfactory indemnification in accordance with the provisions of Section 11.6.
Section 11.8 Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under the Financing Documents.
Section 11.9 Collateral Matters. Lenders irrevocably authorize Agent, at its option and in its discretion, to (a) release any Lien granted to or held by Agent under any Security Document (i) upon termination of the Term Loan Commitment and payment in full of all Obligations; or (ii) constituting property sold or disposed of as part of or in connection with any disposition permitted under any Financing Document (it being understood and agreed that Agent may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the sale or other disposition of property being made in full compliance with the provisions of the Financing Documents); and (b) subordinate any Lien granted to or held by Agent under any Security Document to a Permitted Lien that is allowed to have priority over the Liens granted to or held by Agent pursuant to the definition of “Permitted Liens”. Upon request by Agent at any time, Lenders will confirm Agent’s authority to release and/or subordinate particular types or items of Collateral pursuant to this Section 11.9.
Section 11.10 Agency for Perfection. Agent and each Lender hereby appoint each other Lender as agent for the purpose of perfecting Agent’s security interest in assets which, in accordance with the Uniform Commercial Code in any applicable jurisdiction, can be perfected by possession or control. Should any Lender (other than Agent) obtain possession or control of any such assets, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor, shall deliver such assets to Agent or in accordance with Agent’s instructions or transfer control to Agent in accordance with Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce any Security Document or to realize upon any Collateral for the Loan unless instructed to do so by Agent (or consented to by Agent), it being understood and agreed that such rights and remedies may be exercised only by Agent.
Section 11.11 Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to Agent for the account of Lenders, unless Agent shall have received written notice from a Lender or a Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. Agent will notify each Lender of its receipt of any such notice. Agent shall take such action with respect to such Default or Event of Default as may be requested by Required Lenders (or all or such other portion of Lenders as shall be prescribed by this Agreement) in accordance with the terms hereof. Unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interests of Lenders.
Section 11.12 Assignment by Agent; Resignation of Agent; Successor Agent.
(a) Agent may at any time assign its rights, powers, privileges and duties hereunder to (i) another Lender, or (ii) any Person to whom Agent, in its capacity as a Lender, has assigned (or will assign, in conjunction with such assignment of agency rights hereunder) 50% or more of its Loan, in each case without the consent of Lenders or Borrowers. Following any such assignment, Agent shall give notice to Lenders and Borrowers. An assignment by Agent pursuant to this subsection (a) shall not be deemed a resignation by Agent for purposes of subsection (b) below.
(b) Without limiting the rights of Agent to designate an assignee pursuant to subsection (a) above, Agent may at any time give notice of its resignation to Lenders and Borrowers. Upon receipt of any such notice of resignation, Required Lenders shall have the right to appoint a successor Agent. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within ten (10) Business Days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of Lenders, appoint a successor Agent; provided, however, that if Agent shall notify Borrowers and Lenders that no Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice from Agent that no Person has accepted such appointment and, from and following delivery of such notice, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Financing Documents, and (ii) all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each Lender directly, until such time as Required Lenders appoint a successor Agent as provided for above in this paragraph.
(c) Upon (i) an assignment permitted by subsection (a) above, or (ii) the acceptance of a successor’s appointment as Agent pursuant to subsection (b) above, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder and under the other Financing Documents (if not already discharged therefrom as provided above in this paragraph). The fees payable by Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrowers and such successor. After the retiring Agent’s resignation hereunder and under the other Financing Documents, the provisions of this Article and Section 11.12 shall continue in effect for the benefit of such retiring Agent and its sub-agents in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting or was continuing to act as Agent.
Section 11.13 Payment and Sharing of Payment.
(a) Term Loan Payments. Payments of principal, interest and fees in respect of the Term Loans will be settled on the date of receipt if received by Agent on the last Business Day of a month or on the Business Day immediately following the date of receipt if received on any day other than the last Business Day of a month.
(b) Return of Payments.
(i) If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by Agent from a Borrower and such related payment is not received by Agent, then Agent will be entitled to recover such amount from such Lender on demand without setoff, counterclaim or deduction of any kind, together with interest accruing on a daily basis at the Federal Funds Rate.
(ii) If Agent determines at any time that any amount received by Agent under this Agreement must be returned to any Borrower or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Financing Document, Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to pay to any Borrower or such other Person, without setoff, counterclaim or deduction of any kind.
(c) Defaulted Lenders. The failure of any Defaulted Lender to make any payment required by it hereunder shall not relieve any other Lender of its obligations to make payment, but neither any other Lender nor Agent shall be responsible for the failure of any Defaulted Lender to make any payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Defaulted Lender shall not have any voting or consent rights under or with respect to any Financing Document or constitute a “Lender” (or be included in the calculation of “Required Lenders” hereunder) for any voting or consent rights under or with respect to any Financing Document.
(d) Sharing of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of Section 2.8(d)) in excess of its Pro Rata Share of payments entitled pursuant to the other provisions of this Section 11.13, such Lender shall purchase from the other Lenders such participations in extensions of credit made by such other Lenders (without recourse, representation or warranty) as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided, however, that if all or any portion of the excess payment or other recovery is thereafter required to be returned or otherwise recovered from such purchasing Lender, such portion of such purchase shall be rescinded and each Lender which has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of such return or recovery, without interest. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this clause (d) may, to the fullest extent permitted by law, exercise
all its rights of payment (including pursuant to Section 10.6) with respect to such participation as fully as if such Lender were the direct creditor of Borrowers in the amount of such participation. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this clause (d) applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this clause (d) to share in the benefits of any recovery on such secured claim.
Section 11.14 Right to Perform, Preserve and Protect. If any Credit Party fails to perform any obligation hereunder or under any other Financing Document, Agent itself may, but shall not be obligated to, cause such obligation to be performed at Borrowers’ expense. Agent is further authorized by Borrowers and Lenders to make expenditures from time to time which Agent, in its reasonable business judgment, deems necessary or desirable to (a) preserve or protect the business conducted by Borrowers, the Collateral, or any portion thereof, and/or (b) enhance the likelihood of, or maximize the amount of, repayment of the Loan and other Obligations. Each Borrower hereby agrees to reimburse Agent on demand for any and all costs, liabilities and obligations incurred by Agent pursuant to this Section 11.14. Each Lender hereby agrees to indemnify Agent upon demand for any and all costs, liabilities and obligations incurred by Agent pursuant to this Section 11.14, in accordance with the provisions of Section 11.6.
Section 11.15 Additional Titled Agents. Except for rights and powers, if any, expressly reserved under this Agreement to any bookrunner, arranger or to any titled agent named on the cover page of this Agreement, other than Agent (collectively, the “Additional Titled Agents”), and except for obligations, liabilities, duties and responsibilities, if any, expressly assumed under this Agreement by any Additional Titled Agent, no Additional Titled Agent, in such capacity, has any rights, powers, liabilities, duties or responsibilities hereunder or under any of the other Financing Documents. Without limiting the foregoing, no Additional Titled Agent shall have nor be deemed to have a fiduciary relationship with any Lender. At any time that any Lender serving as an Additional Titled Agent shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loan, such Lender shall be deemed to have concurrently resigned as such Additional Titled Agent.
Section 11.16 Amendments and Waivers.
(a) No provision of this Agreement or any other Financing Document may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by Borrowers, the Required Lenders and any other Lender to the extent required under Section 11.16(b); provided, however, that (i) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto and (ii) if Agent and Borrower Representative shall have jointly identified an obvious error (including, but not limited to, an incorrect cross-reference) or any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or any other Financing Document (including, for the avoidance of doubt, any exhibit, schedule or other attachment to Financing Document), then Agent (acting in its sole discretion) and Borrower Representative or any other relevant Credit Party shall be permitted to amend such provision and such amendment shall be deemed approved by Lenders if Lenders shall have received five (5) Business Days’ prior written notice of such change and Agent shall not have received, within five (5) Business Days of the date of such notice to Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.
(b) In addition to the required signatures under Section 11.16(a), no provision of this Agreement or any other Financing Document may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by the following Persons:
(i) if any amendment, waiver or other modification would increase a Lender’s funding obligations in respect of any Loan, by such Lender; and/or
(ii) if the rights or duties of Agent are affected thereby, by Agent;
provided, however, that, in each of (i) and (ii) above, no such amendment, waiver or other modification shall, unless signed or otherwise approved in writing by all Lenders directly affected thereby, (A) reduce the principal of, rate of interest on or any fees with respect to any Loan or forgive any principal, interest (other than default interest) or fees (other than late charges) with respect to any Loan; (B) postpone the date fixed for, or waive, any payment (other than any mandatory prepayment pursuant to Section 2.1(b)(ii)) of principal of any Loan, or of interest on any Loan (other than default interest) or any fees provided for hereunder (other than late charges) or postpone the date of termination of any commitment of any Lender hereunder; (C) change the definition of the term Required Lenders or the percentage of Lenders which shall be required for Lenders to take any action hereunder; (D) release all or substantially all of the Collateral, authorize any Borrower to sell or otherwise dispose of all or substantially all of the Collateral or release any Guarantor of all or any portion of the Obligations or its Guarantee obligations with respect thereto, except, in each case with respect to this clause (D), as otherwise may be provided in this Agreement or the other Financing Documents (including in connection with any disposition permitted hereunder); (E) amend, waive or otherwise modify this Section 11.16(b) or the definitions of the terms used in this Section 11.16(b) insofar as the definitions affect the substance of this Section 11.16(b); (F) consent to the assignment, delegation or other transfer by any Credit Party of any of its rights and obligations under any Financing Document or release any Borrower of its payment obligations under any Financing Document, except, in each case with respect to this clause (F), pursuant to a merger or consolidation permitted pursuant to this Agreement; or (G) amend any of the provisions of Section 10.7 or amend any of the definitions of Pro Rata Share, Term Loan Commitment, Term Loan Tranche 1 Commitments, Term Loan Tranche 2 Commitments, Term Loan Commitment Amount, Term Loan Tranche 1 Commitment Amount, Term Loan Tranche 2 Commitment Amount, Term Loan Commitment Percentage, Term Loan Tranche 1 Commitment Percentage, Term Loan Tranche 2 Commitment Percentage or that provide for Lenders to receive their Pro Rata Shares of any fees, payments, setoffs or proceeds of Collateral hereunder. It is hereby understood and agreed that all Lenders shall be deemed directly affected by an amendment, waiver or other modification of the type described in the preceding clauses (C), (D), (E), (F) and (G) of the preceding sentence.
Section 11.17 Assignments and Participations.
(a) Assignments.
(i) Any Lender may at any time assign to one or more Eligible Assignees all or any portion of such Lender’s Loan together with all related obligations of such Lender hereunder. Except as Agent may otherwise agree, the amount of any such assignment (determined as of the date of the applicable Assignment Agreement or, if a “Trade Date” is specified in such Assignment Agreement, as of such Trade Date) shall be in a minimum aggregate amount equal to $1,000,000 or, if less, the assignor’s entire interests in the outstanding Loan; provided, however, that, in connection with simultaneous assignments to two or more related Approved Funds, such Approved Funds shall be treated as one assignee for purposes of determining compliance with the minimum assignment size referred to above. Borrowers and Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned to an Eligible Assignee until Agent shall have received and accepted an effective Assignment Agreement executed, delivered and fully completed by the applicable parties thereto and a processing fee of $3,500 to be paid by the assigning Lender; provided, however, that only one processing fee shall be payable in connection with simultaneous assignments to two or more related Approved Funds. Each assignment shall contain a representation of the assignee Lender in the relevant Assignment Agreement that such assignee is not an Excluded Person.
(ii) From and after the date on which the conditions described above have been met, (A) such Eligible Assignee shall be deemed automatically to have become a party hereto and, to the extent of the interests assigned to such Eligible Assignee pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder, and (B) the assigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, shall be released from its rights and obligations hereunder (other than those that survive termination pursuant to Section 12.1). Upon the request of the Eligible Assignee (and, as applicable, the assigning Lender) pursuant to an effective Assignment Agreement, each Borrower shall execute and deliver to Agent for delivery to the Eligible Assignee (and, as applicable, the assigning Lender) Notes in the aggregate principal amount of the Eligible Assignee’s Loan (and, as applicable, Notes in the principal amount of that portion of the principal amount of the Loan retained by the assigning Lender). Upon receipt by the assigning Lender of such Note, the assigning Lender shall return to Borrower Representative any prior Note held by it.
(iii) Agent, acting solely for this purpose as an agent of Borrower, shall maintain at the office of its servicer located in Bethesda, Maryland a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of each Lender, and the commitments of, and principal amount of the Loan owing to, such Lender pursuant to the terms hereof. The entries in such register shall be conclusive, and Borrower, Agent and Lenders may treat each Person whose name is recorded therein pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Such register shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice to Agent.
(iv) Notwithstanding the foregoing provisions of this Section 11.17(a) or any other provision of this Agreement, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(v) Notwithstanding the foregoing provisions of this Section 11.17(a) or any other provision of this Agreement, Agent has the right, but not the obligation, to effectuate assignments of Loans via an electronic settlement system acceptable to Agent as designated in writing from time to time to Lenders by Agent (the “Settlement Service”). At any time when Agent elects, in its sole discretion, to implement such Settlement Service, each such assignment shall be effected by the assigning Lender and proposed assignee pursuant to the procedures then in effect under the Settlement Service, which procedures shall be consistent with the other provisions of this Section 11.17(a). Each assigning Lender and proposed Eligible Assignee shall comply with the requirements of the Settlement Service in connection with effecting any assignment of Loans pursuant to the Settlement Service. With the prior written approval of Agent, Agent’s approval of such Eligible Assignee shall be deemed to have been automatically granted with respect to any transfer effected through the Settlement Service. Assignments and assumptions of the Loan shall be effected by the provisions otherwise set forth herein until Agent notifies Lenders of the Settlement Service as set forth herein.
(b) Participations.
(i) Any Lender may at any time, without the consent of, or notice to, any Borrower or Agent, sell to one or more Persons (other than a Excluded Person, any Borrower or any Borrower’s Affiliates) participating interests in its Loan, commitments or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (i) such Lender’s obligations hereunder shall remain unchanged for all purposes, (ii) Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder, and (iii) all amounts payable by each Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. Each Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided, however, that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 11.5.
(ii) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Financing Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Financing Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(c) Replacement of Lenders. Within thirty (30) days after: (i) receipt by Agent of notice and demand from any Lender for payment of additional costs as provided in Section 2.8(d), which demand shall not have been revoked, (ii) any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.8(a), (iii) any Lender is a Defaulted Lender, and the circumstances causing such status shall not have been cured or waived; or (iv) any failure by any Lender to consent to a requested amendment, waiver or modification to any Financing Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender, or each Lender affected thereby, is required with respect thereto (each relevant Lender in the foregoing clauses (i) through (iv) being an “Affected Lender”) each of Borrower Representative and Agent may, at its option, notify such Affected Lender and, in the case of Borrowers’ election, Agent, of such Person’s intention to obtain, at Borrowers’ expense, a replacement Lender (“Replacement Lender”) for such Lender, which Replacement Lender shall be an Eligible Assignee and, in the event the Replacement Lender is to replace an Affected Lender described in the preceding clause (iv), such Replacement Lender consents to the requested amendment, waiver or modification making the replaced Lender an Affected Lender. In the event Borrowers or Agent, as applicable, obtains a Replacement Lender within ninety (90) days following notice of its intention to do so, the Affected Lender shall sell, at par, and assign all of its Loan and funding commitments hereunder to such Replacement Lender in accordance with the procedures set forth in Section 11.17(a); provided, however, that (A) Borrowers shall have reimbursed such Lender for its increased costs and additional payments for which it is entitled to reimbursement under Section 2.8(a) or Section 2.8(d), as applicable, of this Agreement through the date of such sale and assignment, and (B) Borrowers shall pay to Agent the $3,500 processing fee in respect of such assignment (unless waived by Agent, which it may do in its sole discretion). In the event that a replaced Lender does not execute an Assignment Agreement pursuant to Section 11.17(a) within five (5) Business Days after receipt by such replaced Lender of notice of replacement pursuant to this Section 11.17(c) and presentation to such replaced Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 11.17(c), such replaced Lender shall be deemed to have consented to the terms of such Assignment Agreement, and any such Assignment Agreement executed by Agent, the Replacement Lender and, to the extent required pursuant to Section 11.17(a), Borrowers, shall be effective for purposes of this Section 11.17(c) and Section 11.17(a). Upon any such assignment and payment, such replaced Lender shall no longer constitute a “Lender” for purposes hereof, other than with respect to such rights and obligations that survive termination as set forth in Section 12.1.
(d) Credit Party Assignments. No Credit Party may assign, delegate or otherwise transfer any of its rights or other obligations hereunder or under any other Financing Document without the prior written consent of Agent and each Lender.
Section 11.18 Funding and Settlement Provisions Applicable When Non-Funding Lenders Exist. So long as Agent has not waived the conditions to the funding of Loans set forth in Section 7.2, any Lender may deliver a notice to Agent stating that such Lender shall cease making Loans due to the non-satisfaction of one or more conditions to funding Loans set forth in Section 7.2, and specifying any such non-satisfied conditions. Any Lender delivering any such notice shall become a non-funding Lender (a “Non-Funding Lender”) for purposes of this Agreement commencing on the Business Day following receipt by Agent of such notice, and shall cease to be a Non-Funding Lender on the date on which such Lender has either revoked the effectiveness of such notice or acknowledged in writing to each of Agent the satisfaction of the condition(s) specified in such notice, or Required Lenders waive the conditions to the funding of such Loans giving rise to such notice by Non-Funding Lender. Each Non-Funding Lender shall remain a Lender for purposes of this Agreement to the extent that such Non-Funding Lender has Term Loans outstanding in excess of Zero Dollars ($0); provided, however, that during any period of time that any Non-Funding Lender exists, and notwithstanding any provision to the contrary set forth herein, the following provisions shall apply:
(a) For purposes of determining the Pro Rata Share of each Lender under clause (b) of the definition of such term, each Non-Funding Lender shall be deemed to have a Term Loan Commitment Amount as in effect immediately before such Lender became a Non-Funding Lender.
(b) Except as provided in clause (a) above, the Term Loan Commitment Amount of each Non-Funding Lender shall be deemed to be Zero Dollars ($0).
(c) The Term Loan Commitment at any date of determination during such period shall be deemed to be equal to the sum of (i) the aggregate Term Loan Commitment Amounts of all Lenders, other than the Non-Funding Lenders as of such date plus (ii) the aggregate Term Loans outstanding of all Non-Funding Lenders as of such date.
(d) Agent shall have no right to make or disburse Term Loans for the account of any Non-Funding Lender pursuant to Section 2.1(b)(i) to pay interest, fees, expenses and other charges of any Credit Party.
(e) Reserved.
(f) To the extent that Agent applies proceeds of Collateral or other payments received by Agent to repayment of Term Loans pursuant to Section 10.7, such payments and proceeds shall be applied first in respect of Term Loans made at the time any Non-Funding Lenders exist, and second in respect of all other outstanding Term Loans.
Section 11.19 Buy-Out Upon Refinancing. MCF shall have the right to purchase from the other Lenders all of their respective interests in the Loan at par in connection with any refinancing of the Loan upon one or more new economic terms, but which refinancing is structured as an amendment and restatement of the Loan rather than a payoff of the Loan.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Survival. All agreements, representations and warranties made herein and in every other Financing Document shall survive the execution and delivery of this Agreement and the other Financing Documents and the other Operative Documents. The provisions of Section 2.10 and Articles 11 and 12 shall survive the payment of the Obligations (both with respect to any Lender and all Lenders collectively) and any termination of this Agreement and any judgment with respect to any Obligations, including any final foreclosure judgment with respect to any Security Document, and no unpaid or unperformed, current or future, Obligations will merge into any such judgment.
Section 12.2 No Waivers. No failure or delay by Agent or any Lender in exercising any right, power or privilege under any Financing Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Any reference in any Financing Document to the “continuing” nature of any Event of Default shall not be construed as establishing or otherwise indicating that any Borrower or any other Credit Party has the independent right to cure any such Event of Default, but is rather presented merely for convenience should such Event of Default be waived in accordance with the terms of the applicable Financing Documents.
Section 12.3 Notices.
(a) All notices, requests and other communications to any party hereunder shall be in writing (including prepaid overnight courier, facsimile transmission or similar writing) and shall be given to such party at its address, facsimile number or e-mail address set forth on the signature pages hereof (or, in the case of any such Lender who becomes a Lender after the date hereof, in an assignment agreement or in a notice delivered to Borrower Representative and Agent by the assignee Lender forthwith upon such assignment) or at such other address, facsimile number or e-mail address as such party may hereafter specify for the purpose by notice to Agent and Borrower Representative; provided, however, that notices, requests or other communications shall be permitted by electronic means only in accordance with the provisions of Section 12.3(b) and (c). Each such notice, request or other communication shall be effective (i) if given by facsimile, when such notice is transmitted to the facsimile number specified by this Section and the sender receives a confirmation of transmission from the sending facsimile machine, or (ii) if given by mail, prepaid overnight courier or any other means, when received or when receipt is refused at the applicable address specified by this Section 12.3(a).
(b) Notices and other communications to the parties hereto may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved from time to time by Agent, provided, however, that the foregoing
shall not apply to notices sent directly to any Lender if such Lender has notified Agent that it is incapable of receiving notices by electronic communication. Agent or Borrower Representative may, in their discretion, agree to accept notices and other communications to them hereunder by electronic communications pursuant to procedures approved by it, provided, however, that approval of such procedures may be limited to particular notices or communications.
(c) Unless Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor, provided, however, that if any such notice or other communication is not sent or posted during normal business hours, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day.
Section 12.4 Severability. In case any provision of or obligation under this Agreement or any other Financing Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 12.5 Headings. Headings and captions used in the Financing Documents (including the Exhibits, Schedules and Annexes hereto and thereto) are included for convenience of reference only and shall not be given any substantive effect.
Section 12.6 Confidentiality.
(a) Each Credit Party agrees (i) not to transmit or disclose provisions of any Financing Document to any Person (other than to Borrowers’ advisors and officers on a need-to-know basis or as otherwise may be required by Law) without Agent’s prior written consent, and (ii) to inform all Persons of the confidential nature of the Financing Documents and to direct them not to disclose the same to any other Person and to require each of them to be bound by these provisions.
(b) Agent and each Lender shall hold all non-public information regarding the Credit Parties and their respective businesses identified as such by Borrowers and obtained by Agent or any Lender pursuant to the requirements hereof in accordance with such Person’s customary procedures for handling information of such nature, except that disclosure of such information may be made (i) on a confidential basis, to their respective agents, employees, Subsidiaries, Affiliates, attorneys, auditors, professional consultants, rating agencies, insurance industry associations and portfolio management services (it being understood that such Persons to whom such disclosure is made will be informed of the confidential nature of such information and be instructed to keep such information confidential), (ii) to prospective transferees or purchasers of any interest in the Loans, Agent or a Lender, provided, however, that any such Persons are bound by obligations of confidentiality substantially the same as set forth in this section, (iii) as required by Law, subpoena, judicial order or similar order and in connection with any litigation
(in which case Agent or the applicable Lender agrees to inform the Credit Parties promptly thereof prior to such disclosure, to the extent not prohibited by law, rule or regulation), (iv) as may be required in connection with the examination, audit or similar investigation of such Person, and (v) on a confidential basis, to a Person that is a trustee, investment advisor or investment manager, collateral manager, servicer, noteholder or secured party in a Securitization (as hereinafter defined) in connection with the administration, servicing and reporting on the assets serving as collateral for such Securitization (it being understood that such Persons to whom such disclosure is made will be informed of the confidential nature of such information and be instructed to keep such information confidential). For the purposes of this Section, “Securitization” shall mean (A) the pledge of the Loans as collateral security for loans to a Lender, or (B) a public or private offering by a Lender or any of its Affiliates or their respective successors and assigns, of securities which represent an interest in, or which are collateralized, in whole or in part, by the Loans. Confidential information shall not include information that either: (y) is in the public domain, or becomes part of the public domain after disclosure to such Person through no fault of such Person, or (z) is disclosed to such Person by a Person other than a Credit Party, provided, however, Agent does not have actual knowledge that such Person is prohibited from disclosing such information. After the Closing Date, confidential information shall include only information identified as such at the time provided to Agent. The obligations of Agent and Lenders under this Section 12.6 shall supersede and replace the obligations of Agent and Lenders under any confidentiality agreement in respect of this financing executed and delivered by Agent or any Lender prior to the date hereof.
Section 12.7 Waiver of Consequential and Other Damages. To the fullest extent permitted by applicable law, no party hereto shall assert, and each party hereto hereby waives, any claim against any party hereto (including, with respect to Agent and Lenders, the Indemnitees (as defined below), on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of this Agreement, any other Financing Document or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof; provided, that nothing in this Section 12.7 shall relieve the Borrowers of any obligation they may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Financing Documents or the transactions contemplated hereby or thereby.
Section 12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT, EACH NOTE AND EACH OTHER FINANCING DOCUMENT, AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD APPLY A DIFFERENT LAW.
(b) EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER FINANCING DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PERSON BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PERSON AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
(c) Each Borrower, Agent and each Lender agree that each Loan (including those made on the Closing Date) shall be deemed to be made in, and the transactions contemplated hereunder and in any other Financing Document shall be deemed to have been performed in, the State of New York.
Section 12.9 WAIVER OF JURY TRIAL. (a) EACH BORROWER, AGENT AND LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH BORROWER, AGENT AND EACH LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH BORROWER, AGENT AND EACH LENDER WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
(b) In the event any such action or proceeding is brought or filed in any United States federal court sitting in the State of California or in any state court of the State of California, and the waiver of jury trial set forth in Section 12.9(a) hereof is determined or held to be ineffective or unenforceable, the parties agree that all actions or proceedings shall be resolved by reference to a private judge sitting without a jury, pursuant to California Code of Civil Procedure Section 638, before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the Presiding Judge of the Los Angeles County, California. Such proceeding shall be conducted in Los Angeles County, California, with California rules of evidence and discovery applicable to such proceeding. In the event any actions or proceedings are to be resolved by judicial reference, any party may seek from any court having jurisdiction thereover any prejudgment order, writ or other relief and have such prejudgment order, writ or other relief enforced to the fullest extent permitted by Law notwithstanding that all actions or proceedings are otherwise subject to resolution by judicial reference.
Section 12.10 Publication; Advertisement.
(a) Publication. No Credit Party will directly or indirectly publish, disclose or otherwise use in any public disclosure, advertising material, promotional material, press release or interview, any reference to the name, logo or any trademark of MCF or any of its Affiliates or any reference to this Agreement or the financing evidenced hereby, in any case except (i) as required by Law, subpoena or judicial or similar order, in which case the applicable Credit Party shall give Agent prior written notice of such publication or other disclosure (other than filings made with the SEC as required by Law, which a Credit Party may make without such notice), or (ii) with MCF’s prior written consent.
(b) Advertisement. Each Lender and each Credit Party hereby authorizes MCF to publish the name of such Lender and Credit Party, the existence of the financing arrangements referenced under this Agreement, the primary purpose and/or structure of those arrangements, the amount of credit extended under each facility, the title and role of each party to this Agreement, and the total amount of the financing evidenced hereby in any “tombstone”, comparable advertisement or press release which MCF elects to submit for publication. In addition, each Lender and each Credit Party agrees that MCF may provide lending industry trade organizations with information necessary and customary for inclusion in league table measurements after the Closing Date. With respect to any of the foregoing, MCF shall provide Borrowers with an opportunity to review and confer with MCF regarding the contents of any such tombstone, advertisement or information, as applicable, prior to its submission for publication and, following such review period, MCF may, from time to time, publish such information in any media form desired by MCF, until such time that Borrowers shall have requested MCF cease any such further publication.
Section 12.11 Counterparts; Integration. This Agreement and the other Financing Documents may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signatures by facsimile or by electronic mail delivery of an electronic version of any executed signature page shall bind the parties hereto. This Agreement and the other Financing Documents constitute the entire agreement and understanding among the parties hereto and supersede any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
Section 12.12 No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
Section 12.13 Lender Approvals. Unless expressly provided herein to the contrary, any approval, consent, waiver or satisfaction of Agent or Lenders with respect to any matter that is the subject of this Agreement, the other Financing Documents may be granted or withheld by Agent and Lenders in their sole and absolute discretion and credit judgment.
Section 12.14 Expenses; Indemnity.
(a) Borrowers hereby agree to promptly pay (i) all reasonable and documented out-of-pocket costs and expenses of Agent (including, without limitation, the reasonable and documented out-of-pocket fees, costs and expenses of one counsel to, and independent appraisers and consultants retained by Agent) in connection with the examination, review, due diligence investigation, documentation, negotiation, closing and syndication of the transactions contemplated by the Financing Documents, in connection with the performance by Agent of its rights and remedies under the Financing Documents and in connection with the continued administration of the Financing Documents including (A) any amendments, modifications, consents and waivers to and/or under any and all Financing Documents, and (B) any periodic public record searches conducted by or at the request of Agent (including, without limitation, title investigations, UCC searches, fixture filing searches, judgment, pending litigation and tax lien searches and searches of applicable corporate, limited liability, partnership and related records concerning the continued existence, organization and good standing of certain Persons); (ii) without limitation of the preceding clause (i), all reasonable and documented out-of-pocket costs and expenses of Agent in connection with the creation, perfection and maintenance of Liens pursuant to the Financing Documents; (iii) without limitation of the preceding clause (i), all reasonable and documented out-of-pocket costs and expenses of Agent in connection with (A) protecting, storing, insuring, handling, maintaining or selling any Collateral, (B) any litigation, dispute, suit or proceeding relating to any Financing Document, and (C) any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all of the Financing Documents; (iv) without limitation of the preceding clause (i), all reasonable and documented out-of-pocket costs and expenses of Agent in connection with Agent’s reservation of funds in anticipation of the funding of the initial Loans to be made hereunder; and (v) all costs and expenses incurred by Lenders in connection with any litigation, dispute, suit or proceeding relating to any Financing Document and in connection with any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all Financing Documents, whether or not Agent or Lenders are a party thereto.
(b) Each Borrower hereby agrees to indemnify, pay and hold harmless Agent and Lenders and the officers, directors, employees, trustees, agents, investment advisors and investment managers, collateral managers, servicers, and counsel of Agent and Lenders (collectively called the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnitee) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of a Credit Party, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by Agent or Lenders) asserting any right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection with the transactions contemplated hereby or by the other Operative Documents (including (i)(A) as a direct or indirect result of the presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release from, any property now or previously owned, leased or operated by Borrower, any Subsidiary or any other Person of any Hazardous Materials, (B) arising out of or
relating to the offsite disposal of any materials generated or present on any such property, or (C) arising out of or resulting from the environmental condition of any such property or the applicability of any governmental requirements relating to Hazardous Materials, whether or not occasioned wholly or in part by any condition, accident or event caused by any act or omission of Borrower or any Subsidiary, in each case, to the extent resulting from or in connection with the transactions contemplated hereby or by the other Operative Documents and (ii) proposed and actual extensions of credit under this Agreement) and the use or intended use of the proceeds of the Loans, except that Borrower shall have no obligation hereunder to an Indemnitee with respect to any liability resulting from the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertaking set forth in the immediately preceding sentence may be unenforceable, Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all such indemnified liabilities incurred by the Indemnitees or any of them.
(c) Notwithstanding any contrary provision in this Agreement, the obligations of Borrowers under this Section 12.14 shall survive the payment in full of the Obligations and the termination of this Agreement. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO BORROWERS OR TO ANY OTHER PARTY TO ANY FINANCING DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(d) Each Borrower for itself and all endorsers, guarantors and sureties and their heirs, legal representatives, successors and assigns, hereby further specifically waives any rights that it may have under Section 1542 of the California Civil Code (to the extent applicable), 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,” and further waives any similar rights under applicable Laws.
Section 12.15 Reserved.
Section 12.16 Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition or other proceeding be filed by or against any Credit Party for liquidation or reorganization, should any Credit Party become insolvent or make an assignment for the benefit of any creditor or creditors or should an interim receiver, receiver, receiver and manager or trustee be appointed for all or any significant part of any Credit Party’s assets, and shall continue to be effective or to be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations, whether as a fraudulent preference reviewable transaction or otherwise, all as though
such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Section 12.17 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrowers and Agent and each Lender and their respective successors and permitted assigns.
Section 12.18 USA PATRIOT Act Notification. Agent (for itself and not on behalf of any Lender) and each Lender hereby notifies Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record certain information and documentation that identifies Borrowers, which information includes the name and address of Borrower and such other information that will allow Agent or such Lender, as applicable, to identify Borrowers in accordance with the USA PATRIOT Act.
Section 12.19 Cross Default and Cross Collateralization.
(a) Cross-Default. As stated under Section 10.1 hereof, an Event of Default under any of the Affiliated Financing Documents shall be an Event of Default under this Agreement.
(b) Cross Collateralization. Borrowers acknowledge and agree that the Collateral securing this Loan, also secures the Affiliated Obligations.
[SIGNATURES APPEAR ON FOLLOWING PAGE(S)]
IN WITNESS WHEREOF, intending to be legally bound, each of the parties has caused this Agreement to be executed the day and year first above mentioned.
|
BORROWER REPRESENTATIVE: |
ACCURAY INCORPORATED, a Delaware corporation | |
|
|
| |
|
|
| |
|
|
By: |
/s/ Kevin Waters |
|
|
|
Kevin Waters |
|
|
|
Chief Financial Officer |
|
|
| |
|
|
| |
|
|
Address: | |
|
|
| |
|
|
1310 Chesapeake Terrace | |
|
|
Sunnyvale, California 94089 | |
|
|
Attn: Kevin Waters | |
|
|
Facsimile: (408) 716-4601 | |
|
|
E-Mail: kwaters@accuray.com | |
|
|
| |
|
|
| |
|
OTHER BORROWERS: |
TOMOTHERAPY INCORPORATED, a Wisconsin corporation | |
|
|
| |
|
|
| |
|
|
By: |
/s/ Kevin Waters |
|
|
|
Kevin Waters |
|
|
|
Director |
|
|
Signature Page to Credit and Security Agreement |
|
AGENT: |
MIDCAP FINANCIAL TRUST, as Agent | |||
|
|
| |||
|
|
| |||
|
|
By: |
Apollo Capital Management, L.P. | ||
|
|
Its: |
Investment Manager | ||
|
|
| |||
|
|
|
By: |
Apollo Capital Management GP, LLC | |
|
|
|
Its: |
General Partner | |
|
|
| |||
|
|
|
By: |
/s/ Maurice Amsellem | |
|
|
|
|
Maurice Amsellem | |
|
|
|
|
Authorized Signatory | |
|
|
| |||
|
|
| |||
|
|
Address: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: |
Account Manager for Accuray transaction | ||
|
|
Facsimile: |
301-941-1450 | ||
|
|
E-mail: |
notices@midcapfinancial.com | ||
|
|
| |||
|
|
with a copy to: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: |
General Counsel | ||
|
|
Facsimile: |
301-941-1450 | ||
|
|
E-mail: |
legalnotices@midcapfinancial.com | ||
|
|
| |||
|
|
Payment Account Designation | |||
|
|
| |||
|
|
SunTrust Bank | |||
|
|
ABA #: |
[*****] | ||
|
|
Account Name: |
MidCap Financial Trust | ||
|
|
Account #: |
[*****] | ||
|
|
Attention: |
Accuray | ||
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information. |
|
|
Signature Page to Credit and Security Agreement |
|
LENDER: |
MIDCAP FINANCIAL TRUST, as Lender | |||
|
|
| |||
|
|
| |||
|
|
By: |
Apollo Capital Management, L.P. | ||
|
|
Its: |
Investment Manager | ||
|
|
| |||
|
|
|
By: |
Apollo Capital Management GP, LLC | |
|
|
|
Its: |
General Partner | |
|
|
| |||
|
|
|
By: |
/s/ Maurice Amsellem | |
|
|
|
|
Maurice Amsellem | |
|
|
|
|
Authorized Signatory | |
|
|
| |||
|
|
Address: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: |
Account Manager for Accuray transaction | ||
|
|
Facsimile: |
301-941-1450 | ||
|
|
E-mail: |
notices@midcapfinancial.com | ||
|
|
| |||
|
|
with a copy to: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: |
General Counsel | ||
|
|
Facsimile: |
301-941-1450 | ||
|
|
E-mail: |
legalnotices@midcapfinancial.com | ||
|
|
Signature Page to Credit and Security Agreement |
ANNEX A TO CREDIT AGREEMENT (COMMITMENT ANNEX)
|
Lender |
|
Term Loan |
|
Term Loan |
|
Term Loan |
|
Term Loan |
| ||
|
MidCap Financial Trust |
|
$ |
40,000,000 |
|
100 |
% |
$ |
20,000,000 |
|
100 |
% |
|
TOTALS |
|
$ |
40,000,000 |
|
100 |
% |
$ |
20,000,000 |
|
100 |
% |
EXHIBIT B TO CREDIT AGREEMENT (COMPLIANCE CERTIFICATE)
COMPLIANCE CERTIFICATE
|
|
Date: , 20 |
This Compliance Certificate is given by , a Responsible Officer of ACCURAY INCORPORATED (the “Borrower Representative”), pursuant to that certain Credit and Security Agreement dated as of December 15, 2017 among the Borrower Representative, TomoTherapy Incorporated and any additional Borrower that may hereafter be added thereto (collectively, “Borrowers”), MidCap Financial Trust, individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
The undersigned Responsible Officer hereby certifies to Agent and Lenders that:
(a) [the financial statements delivered with this certificate in accordance with Section 4.1 of the Credit Agreement fairly present in all material respects the results of operations and financial condition of Borrowers and their Consolidated Subsidiaries as of the dates and the accounting period covered by such financial statements;]1
(b) the representations and warranties of each Credit Party contained in the Financing Documents are true, correct and complete in all material respects on and as of the date hereof, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date; provided, however, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(c) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Borrowers and their Consolidated Subsidiaries during the accounting period covered by such financial statements and such review has not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the date hereof, of any condition or event that constitutes a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature and period of existence of such Default or an Event of Default and what action Borrowers have taken, are undertaking and propose to take with respect thereto;
(d) except as noted on Schedule 2 attached hereto, the Credit Agreement contains a complete and accurate list of all business locations of Borrowers and Guarantors and all names
1 Include only with respect to compliance certificates delivered at the end of each fiscal quarter.
under which Borrowers and Guarantors currently conduct business; Schedule 2 specifically notes any changes in the names under which any Borrower or Guarantor conduct business;
(e) except as noted on Schedule 3 attached hereto, the undersigned has no knowledge of (i) any federal or state tax liens having been filed against any Borrower, Guarantor or any Collateral or (ii) any failure of any Borrower or Guarantors to make required payments of withholding or other tax obligations of any Borrower or Guarantors during the accounting period to which the attached statements pertain or any subsequent period;
(f) Schedule 5.14 to the Credit Agreement contains a complete and accurate statement of all Deposit Accounts and Securities Accounts maintained by Borrowers and Guarantors;
(g) except as noted on Schedule 4 attached hereto and Schedule 3.6 to the Credit Agreement, the undersigned has no knowledge of (i) any litigation or governmental proceedings pending or threatened (in writing) against Borrowers or other Credit Party which would reasonably be expected to have a Material Adverse Effect with respect to Borrowers or any other Credit Party or which in any manner calls into question the validity or enforceability of any Financing Document, (ii) any Credit Party being in breach or default under or with respect to any Material Contract, or any Credit Party being in breach or default under or with respect to any other contract, agreement, lease or other instrument to which it is a party or by which its property is bound or affected, which breach or default could reasonably be expected to have a Material Adverse Effect, (iii) any strikes or other labor disputes pending or, to any Borrower’s knowledge, threatened against any Credit Party, (iv) any infringement by any other Person with respect to any Intellectual Property rights of any Credit Party that could reasonably be expected to result in a Material Adverse Effect, or if, to the knowledge of the Credit Parties, there is any claim by any other Person that any Credit Party, in the conduct of its business, is infringing the Intellectual Property rights of such other party that could reasonably be expected to result in a Material Adverse Effect, or (v) any returns, recoveries, disputes and claims that involve more than $2,500,000;
(h) [except as noted on Schedule 5 attached hereto, Schedule 3.19 to the Credit Agreement is true and correct in all material respects;]2
(i) except as noted on Schedule 6 attached hereto, no Borrower or Guarantor has acquired, by purchase or otherwise, any Chattel Paper, Letter-of-Credit Rights, Instruments, or Investment Property (in each case, to the extent not an Excluded Perfection Asset) that has not previously been reported to Agent on any Schedule 6 to any previous Compliance Certificate delivered by Borrower Representative to Agent;
(j) except as noted on Schedule 7 attached hereto, no Borrower or Guarantor is aware of any commercial tort claim (other than an Excluded Perfection Asset) that has not previously been reported to Agent on any Schedule 7 to any previous Compliance Certificate delivered by Borrower Representative to Agent; and
(k) [Borrowers and Guarantors (if any) are in compliance with the covenants contained in Article 6 of the Credit Agreement, as demonstrated by the calculation of such covenants below,
2 Include only with respect to compliance certificates delivered at the end of each fiscal quarter.
except as set forth below; in determining such compliance, the following calculations have been made: [See attached worksheets]. Such calculations and the certifications contained therein are true, correct and complete in all material respects.]3
The foregoing certifications and computations are made as of , 20 (end of month) and as of , 20 .
|
|
Sincerely, | |
|
|
| |
|
|
ACCURAY INCORPORATED | |
|
|
| |
|
|
| |
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
3 Include only with respect to compliance certificates delivered at the end of each fiscal quarter.
EBITDA Worksheet (Attachment to Compliance Certificate)
|
EBITDA for the applicable Defined Period is calculated as follows: |
|
| ||
|
|
|
| ||
|
Net income (or loss) for the Defined Period of Borrowers and their Consolidated Subsidiaries, but excluding: (a) the income (or loss) of any Person (other than Subsidiaries of Borrowers) in which Borrowers or any of their Subsidiaries has an ownership interest unless received by Borrower or their Subsidiary in a cash distribution; and (b) except as expressly provided in the last paragraph of this worksheet, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of Borrowers or is merged into or consolidated with Borrowers |
|
$ | ||
|
|
|
|
|
|
|
Plus: |
|
without duplication, the sum of the following amounts for such Defined Period to the extent deducted from the calculation of net income for such Defined Period: |
|
|
|
|
|
|
|
|
|
(a) |
|
Any provision for income, profits, capital gain and franchise taxes deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(b) |
|
Interest expense, net of interest income, deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(c) |
|
Amortization and depreciation deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(d) |
|
Losses from extraordinary items |
|
$ |
|
|
|
|
|
|
|
(e) |
|
The aggregate net loss on the disposition of property outside the Ordinary Course of Business |
|
$ |
|
|
|
|
|
|
|
(f) |
|
Fees or expenses paid in connection with the execution and delivery of the Operative Documents on the Closing Date, to the extent paid in cash during such period (and not capitalized in accordance with GAAP), in an aggregate amount not to exceed $[*****] during the term of the Credit Agreement |
|
$ |
|
|
|
|
|
|
|
(g) |
|
Other non-cash expenditures, charges or losses for such period (including, without limitation, non-cash adjustments resulting from the application of purchase accounting, non-cash expenses or charges arising from grants of performance-based stock units, stock appreciation rights, stock options or restricted stock, non-cash impairment of good will and other long term intangible assets and unrealized non-cash losses under hedging agreements) |
|
$ |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
(h) |
|
Contingent obligations, purchase price adjustments, milestone payments, earn-out payments and indemnity obligations incurred in connection with any Permitted Acquisition, in each case, in an aggregate amount not to exceed the amount approved in writing by Agent prior to the date on which the financial statements for such period are required to be delivered to Agent and Lenders pursuant to Section 4.1 of the Credit Agreement |
|
$ |
|
|
|
|
|
|
|
(i) |
|
Accruals, fees, payments and expenses (including legal, tax, structuring and other costs and expenses) incurred by Borrowers or their respective Subsidiaries in connection with any Permitted Acquisition or other Investment (including, without limitation, changes, alterations, renovations and improvements to assets or property that were acquired in such Permitted Acquisition or Investment undertaken after consummation of such Permitted Acquisition or Investment) or debt or equity issuance or any refinancing transactions or amendment, waiver or other modification of any debt instrument that are payable to unaffiliated third parties or any disposition not in the Ordinary Course of Business, in each case, incurred for such period solely to the extent attributable to any relevant transaction permitted by the Credit Agreement (regardless of whether or not consummated), in each case, in an aggregate amount not to exceed the amount approved in writing by Agent prior to the date on which the financial statements for such period are required to be delivered to Agent and Lenders pursuant to Section 4.1 of the Credit Agreement |
|
$ |
|
|
|
|
|
|
|
(j) |
|
Losses from foreign exchange translation adjustment |
|
$ |
|
|
|
|
|
|
|
(k) |
|
Unusual, one-time or non-recurring charges and expenses, including non-recurring legal expenses and non-recurring severance, restructuring, integration or similar charges, in each case, incurred during such period in respect of restructurings, plant closings, headcount reductions or other similar actions taken during such period, including relocation costs, business process optimizations, integration costs, signing costs, retention or completion bonuses, employee replacement costs, transition costs, costs related to opening, closure and/or consolidation of facilities, severance charges in respect of employee terminations, and start-up losses related to new business ventures; provided that in no event shall the aggregate amount added to EBITDA under this clause in any Defined Period exceed $[*****] (or such higher amount approved in writing by Agent prior to the date on which financial statements for such period are required to be delivered to Agent and Lenders pursuant to Section 4.1 of the Credit Agreement) |
|
$ |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
Minus: |
|
without duplication, the sum of the following amounts for such Defined Period to the extent included in the calculation of such net income for such Defined Period: |
|
$ |
|
|
|
|
|
|
|
(a) |
|
Any credit for income, profits, capital gain and franchise taxes deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(b) |
|
Any gain from extraordinary items |
|
$ |
|
|
|
|
|
|
|
(c) |
|
Any aggregate net gain from the disposition of property outside the ordinary course of business |
|
$ |
|
|
|
|
|
|
|
(d) |
|
Any gains from foreign exchange translation adjustment |
|
$ |
|
|
|
|
|
|
|
(e) |
|
Any other non-cash gain |
|
$ |
|
|
|
| ||
|
EBITDA for the Defined Period: |
|
$ | ||
The parties hereto agree that EBITDA for the fiscal quarter ending (i) on December 31, 2016 is $[*****] (ii) on March 31, 2017 is $[*****] (iii) on June 30, 2017 is $[*****] and (iv) on September 30, 2017 is $[*****].
For purposes of calculating EBITDA pursuant to this worksheet, if any Borrower or a Consolidated Subsidiary consummates a Permitted Acquisition (or, in the case of a Consolidated Subsidiary that is not a Borrower, an acquisition that satisfies the definition of Permitted Acquisition as if such Consolidated Subsidiary was subject thereto) during the Defined Period, EBITDA shall be calculated after giving pro forma effect thereto, as if such Permitted Acquisition occurred on the first day of the Defined Period (provided that any pro forma adjustments set forth above shall be applied to the target of any Permitted Acquisition only to the extent reasonably acceptable to Agent based upon data presented to Agent to its reasonable satisfaction).
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Fixed Charge Coverage Ratio Worksheet (Attachment to Compliance Certificate)
|
Fixed Charges for the applicable Defined Period is calculated as follows: |
|
| ||
|
|
|
| ||
|
Cash interest expense, net of cash interest income, included in the determination of net income of Borrowers and their Consolidated Subsidiaries for the Defined Period |
|
$ | ||
|
|
|
|
|
|
|
Plus: |
|
without duplication, the sum of the following amounts for such Defined Period: |
|
$ |
|
|
|
|
|
|
|
(a) |
|
income, profits, capital gain and franchise taxes included in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(b) |
|
Payments of principal for the Defined Period with respect to all Debt (including the portion of scheduled payments under capital leases allocable to principal but excluding (i) repayments of Revolving Loans under the Affiliated Credit Agreement and other Permitted Debt subject to reborrowing to the extent not accompanied by a concurrent and permanent reduction of the Revolving Loan Commitment (as defined in the Affiliated Financing Documents) (or equivalent loan commitment), (ii) repayments of the 2018 Convertible Notes or the 2022 Convertible Notes, (iii) mandatory prepayments required by Section 2.1(a)(ii)(B) of the Credit Agreement and (iv) repayments of any Permitted Intercompany Investments), |
|
$ |
|
|
|
|
|
|
|
(c) |
|
Distributions paid in cash during the Defined Period (other than to the extent paid to a Borrower or Consolidated Subsidiary) |
|
$ |
|
|
|
| ||
|
Fixed Charges for the applicable Defined Period: |
|
$ | ||
|
|
|
| ||
|
Operating Cash Flow for the applicable Defined Period is calculated as follows: |
|
| ||
|
|
|
| ||
|
EBITDA for the Defined Period (calculated pursuant to the EBITDA Worksheet) |
|
$ | ||
|
|
|
|
|
|
|
Minus: |
|
Unfinanced Capital Expenditures for the Defined Period |
|
$ |
|
|
|
| ||
|
Operating Cash Flow for the Defined Period: |
|
$ | ||
|
|
|
| ||
|
Covenant Compliance: |
|
| ||
|
|
|
| ||
|
Fixed Charge Coverage Ratio (Ratio of Operating Cash Flow to Fixed Charges) for the Defined Period |
|
to 1.0 | ||
|
|
|
| ||
|
Minimum Fixed Charge Coverage for the Defined Period |
|
1.0 to 1.0 | ||
|
|
|
| ||
|
In Compliance |
|
Yes/No | ||
EXHIBIT D TO CREDIT AGREEMENT (NOTICE OF BORROWING)
NOTICE OF BORROWING
This Notice of Borrowing is given by , a Responsible Officer of ACCURAY INCORPORATED (the “Borrower Representative”), pursuant to that certain Credit and Security Agreement dated as of December 15, 2017 among the Borrower Representative, TomoTherapy Incorporated and any additional Borrower that may hereafter be added thereto (collectively, “Borrowers”), MidCap Financial Trust, individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
The undersigned Responsible Officer hereby gives notice to Agent of Borrower Representative’s request to borrow $ of Term Loans on , 20 .
The undersigned officer hereby certifies that, both before and after giving effect to the request above (a) each of the conditions precedent set forth in Section 7.2 of the Credit Agreement have been satisfied, (b) all of the representations and warranties contained in the Credit Agreement and the other Financing Documents are true, correct and complete in all material respects (except to the extent any representation or warranty is qualified by materiality, in which case it is true, correct and complete in all respects) as of the date hereof, except to the extent such representation or warranty relates to a specific date, in which case such representation or warranty is true, correct and complete as of such earlier date, and (c) no Default or Event of Default has occurred and is continuing on the date hereof.
IN WITNESS WHEREOF, the undersigned officer has executed and delivered this Notice of Borrowing this day of , 20 .
|
|
Sincerely, | |
|
|
| |
|
|
ACCURAY INCORPORATED | |
|
|
| |
|
|
| |
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
Exhibit E to Credit Agreement (Form of Payment Notification)
PAYMENT NOTIFICATION
This Payment Notification is given by , a Responsible Officer of (the “Borrower Representative”), pursuant to that certain Credit and Security Agreement dated as of December 15, 2017 among the Borrower Representative, and any additional Borrower that may hereafter be added thereto (collectively, “Borrowers”), MidCap Financial Trust, individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
Please be advised that funds in the amount of $ will be wire transferred to Agent on , 201 . Such funds shall constitute [an optional] [a mandatory] prepayment of the Term Loans, with such prepayments to be applied in the manner specified in Section 2.1(a)(iii). [Such mandatory prepayment is being made pursuant to Section of the Credit Agreement.]
Fax to MCF Operations 301-941-1450 no later than noon Eastern time.
Note: Funds must be received in the Payment Account by no later than noon Eastern time for same day application
IN WITNESS WHEREOF, the undersigned officer has executed and delivered this Payment Notification this day of , 201 .
|
|
Sincerely, | |
|
|
| |
|
|
[BORROWER REPRESENTATIVE] | |
|
|
| |
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
Schedule 2.1
Scheduled Principal Payments for Term Loan
Commencing on the Amortization Payment Start Date (defined below), and continuing on the first day of each calendar month thereafter, Borrowers shall pay to Agent as a principal payment under the Term Loan(s) outstanding an amount equal to the Amortization Payment (defined below) as an amortization payment in respect of the Term Loan(s).
The term “Amortization Payment” means the principal payment based upon a thirty-six (36) month straight-line amortization of equal monthly principal payments; provided, however, if the Amortization Payment Start Date is extended as set forth in the next sentence, “Amortization Payment” shall mean a twenty-four (24) month straight-line amortization of equal monthly principal payments.
The term “Amortization Payment Start Date” means the January 1, 2020; provided, however, Borrower Representative may, on any Business Day during the period beginning on December 1, 2019 and ending on December 15, 2019, request in writing that Agent and the Lenders extend the Amortization Payment Start Date (an “Amortization Extension Request”) by twelve (12) months, and if the Amortization Extension Conditions (as defined below) are satisfied to Agent’s and each Lender’s reasonable satisfaction, then the Amortization Payment Start Date shall be extended to January 1, 2021 and the Amortization Payments shall be recalculated as set forth in the definition thereof.
For purposes hereof, the “Amortization Extension Conditions” means the satisfaction of each of the following conditions: (i) the Agent has received evidence satisfactory to it that the aggregate consolidated Net Revenue of Borrowers for the Defined Period ending with the most recent fiscal quarter for which financial statements have been provided (or were required to have been provided) to the Agent pursuant to Section 4.1(a) is equal to or greater than $400,000,000, and (ii) as of the date of the Amortization Extension Request and the Amortization Start Date (without giving effect to any extension thereof), no Event of Default has occurred and is continuing.
Notwithstanding anything to the contrary contained in the foregoing, the outstanding principal amount of the Term Loan(s) shall become immediately due and payable in full on the Termination Date.
Schedule 3.1 — Existence, Organizational ID Numbers, Foreign Qualification, Prior Names
|
Borrower |
|
Prior Names |
|
Type of Entity/ |
|
States Qualified |
|
State Org. ID |
|
Federal Tax |
|
Principal Place of |
|
Accuray Incorporated |
|
None |
|
Corporation / Delaware |
|
Alaska |
|
3358338 |
|
20-8370041 |
|
1310 Chesapeake Terrace Sunnyvale, CA 94089 |
|
|
|
|
|
|
|
Tennessee |
|
|
|
|
|
|
|
TomoTherapy Incorporated |
|
None |
|
Corporation / Wisconsin |
|
Alabama |
|
T027694 |
|
39-1914727 |
|
1310 Chesapeake Terrace Sunnyvale, CA 94089 |
|
|
|
|
|
|
|
Oregon |
|
|
|
|
|
|
Schedule 3.4
Capitalization
|
Entity |
|
Authorized Shares |
|
Percentage |
|
Direct Owner of |
|
TomoTherapy Incorporated |
|
1,000 Shares of Common Stock |
|
100 |
% |
Accuray Incorporated |
Schedule 3.17
Material Contracts
· [*****]
· [*****]
· [*****]
· [*****]
· [*****]
· [*****]
· 3.50% Convertible Senior Notes due February 1, 2018, issued pursuant to the Indenture, dated as of February 13, 2013, between the Parent and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $115 million
· 3.50% Series A Convertible Senior Notes due February 1, 2018 issued pursuant to the Indenture, dated as of April 24, 2014, between the Parent and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $70.3 million
· 3.75% Convertible Senior Notes due July 15, 2022 issued pursuant to the Indenture, dated as of August 7, 2017, between Accuray Incorporated and The Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented by the First Supplemental Indenture, dated as of December 4, 2017, in the original principal amount of $85 million
· [*****]
· [*****]
· [*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
Agreement |
|
Address of Subject |
|
Base Rent | ||||||||||||
|
Office Lease between Adelphia, LLC and TomoTherapy Incorporated dated October 28, 2005, as amended |
|
1209 Deming Way |
|
Rent: $14.00/RSF/yr. No base rent will be charged for July and August 2018 Rent Adjustment: $0.50/RSF/yr. beginning July 1, 2017 and on the same date each year thereafter Additional Rent: $6.36/RSF (subject to adjustment as described in the “Rent Adjustment” heading above) | ||||||||||||
|
|
|
|
|
| ||||||||||||
|
Office Lease between Old Sauk Trails Park Limited Partnership and TomoTherapy Incorporated dated October 22, 2001, as amended |
|
1240 Deming Way, |
|
Rent: $16.00/RSF/yr. No base rent will be charged for July and August 2018 Rent Adjustment: $0.50/RSF/yr. beginning on July 1, 2017 and on the same date each year thereafter Additional Rent: $8.24/RSF/yr. (subject to adjustment as described in the “Rent Adjustment” heading above) | ||||||||||||
|
|
|
|
|
| ||||||||||||
|
Standard Industrial Lease (Multiple Tenant — Tenant Pays its Percentage Share of Operating Expenses, Real Property Taxes and Insurance Costs — NO Base Year) between The Realty Associates Fund III, L.P. and Accuray Incorporated dated June 30 2005, as amended |
|
1306-1310 Orleans Drive |
|
|
|
|
|
|
|
| ||||||
|
|
|
Dates |
|
Per SF/mo. |
|
Monthly |
| |||||||||
|
|
|
1/1/2017 to 12/31/2017 |
|
$ |
1.409 |
|
$ |
70,425.90 |
| |||||||
|
|
|
1/1/2018 to 12/31/2018 |
|
$ |
1.451 |
|
$ |
72,538.68 |
| |||||||
|
|
|
|
|
|
|
|
| |||||||||
|
|
|
|
|
|
|
|
| |||||||||
|
|
|
|
|
|
|
|
|
| ||||||||
|
Industrial Complex Lease (California) between MP Caribbean, Inc. and Accuray Incorporated dated July 9, 2003, as amended |
|
1310-1320 |
|
|
|
|
|
| ||||||||
|
|
|
Dates |
|
Monthly Minimum |
| |||||||||||
|
|
|
6/1/17 – 5/31/18 |
|
$ |
289,284.51 |
| ||||||||||
|
|
|
6/1/18 – 5/31/19 |
|
$ |
297,963.05 |
| ||||||||||
|
|
|
6/1/19 – 5/31/20 |
|
$ |
306,901.94 |
| ||||||||||
|
|
|
|
|
|
6/1/20 – 5/31/21 |
|
$ |
316,109.00 |
| |||||||
|
|
|
|
|
|
6/1/21 – 5/31/22 |
|
$ |
325,592.27 |
| |||||||
|
|
|
|
|
|
6/1/22 – 5/31/23 |
|
$ |
335,360.04 |
| |||||||
|
|
|
|
|
|
6/1/23 – 12/31/23 |
|
$ |
345,420.84 |
| |||||||
|
[*****] |
|
[*****] |
|
|
|
|
|
|
|
|
|
| |||||||||
|
|
|
|
|
|
Dates |
|
Minimum |
|
Monthly |
|
Annual or |
| |||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||
|
|
|
|
|
|
[*****] |
|
|
| |||||||||||||
|
[*****] |
|
[*****] |
|
|
|
|
|
| |||||||||||||
|
|
|
|
|
|
Dates |
|
Monthly Minimum |
| |||||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
| |||||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
| |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||
|
[*****] |
|
[*****] |
|
|
|
|
|
|
|
| |||||||||||
|
|
|
|
|
|
Dates |
|
Monthly |
|
Annual Base |
| |||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||||
|
|
|
|
|
| |||||||||||||||||
|
[*****] |
|
[*****] |
|
Base Rent for Original Term: [*****] [*****] [*****] Base Rent for Extension Term: [*****] [*****] [*****] | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||
|
[*****] |
|
[*****] |
|
|
Office Number |
|
Price per |
|
|
| |||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
|
| |||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
|
| |||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||
|
[*****] |
|
[*****] |
|
|
|
|
|
|
|
| |||||||||||
|
|
|
|
|
|
Dates |
|
Monthly |
|
Rate Per Sq. |
| |||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||||
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
| |||||||||||
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 3.19
Intellectual Property
· License Agreement dated December 12, 2004 between Accuray Incorporated and [*****]
· Amended and Restated Limited Exclusive Sublicense and Cross-License Agreement between TomoTherapy Incorporated and [*****] dated April 20, 2012
· License Agreement between Accuray Incorporated, [*****] and [*****] dated August 23, 2006
· Supply Agreement between [*****] and Accuray Incorporated dated as of January 17, 2013
· Patent and Trademark License Agreement between [*****] and Accuray Incorporated dated as of November 29, 2006
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Trademarks US/OUS: Pending and Registered
|
|
|
MARK |
|
DATE |
|
COUNTRY |
|
STATUS |
|
SERIAL NO. |
|
REG NO. |
|
REG |
|
CLASS(ES): |
|
OWNER |
|
1 |
|
CYBERKNIFE |
|
Nov 1, 1993 |
|
United States of America |
|
Registered |
|
74/452,587 |
|
2159142 |
|
May 19, 1998 |
|
10 |
|
Accuray Incorporated |
|
2 |
|
CYBERKNIFE |
|
Feb 18, 2008 |
|
Argentina |
|
Registered |
|
2804456 |
|
2271973 |
|
Feb 6, 2009 |
|
10 |
|
Accuray Incorporated |
|
3 |
|
CYBERKNIFE |
|
Feb 2, 2012 |
|
Brazil |
|
Registered |
|
840016158 |
|
840016158 |
|
Feb 18, 2015 |
|
10 |
|
Accuray Incorporated |
|
4 |
|
CYBERKNIFE |
|
Jul 12, 2016 |
|
Canada |
|
Registered |
|
1,790,917 |
|
TMA978,736 |
|
Aug 17, 2017 |
|
010 |
|
Accuray Incorporated |
|
5 |
|
CYBERKNIFE |
|
Dec 30, 2008 |
|
Colombia |
|
Registered |
|
08137766 |
|
385786 |
|
Aug 26, 2009 |
|
10 |
|
Accuray Incorporated |
|
6 |
|
CYBERKNIFE |
|
Dec 6, 1999 |
|
European Union Intellectual Property Office |
|
Registered |
|
001412923 |
|
001412923 |
|
Feb 14, 2001 |
|
10, 42, 9 |
|
Accuray Incorporated |
|
7 |
|
CYBERKNIFE |
|
Aug 4, 2010 |
|
India |
|
Registered |
|
2003493 |
|
2003493 |
|
Aug 4, 2010 |
|
10 |
|
Accuray Incorporated |
|
8 |
|
CYBERKNIFE |
|
Sep 17, 2009 |
|
Iraq |
|
Pending |
|
54905 |
|
|
|
|
|
10 |
|
Accuray Incorporated |
|
9 |
|
CYBERKNIFE |
|
May 26, 2009 |
|
Iran |
|
Registered |
|
188030110 |
|
173757 |
|
Nov 27, 2010 |
|
10 |
|
Accuray Incorporated |
|
10 |
|
CYBERKNIFE |
|
Dec 3, 1999 |
|
Japan |
|
Registered |
|
11-11430 |
|
4619273 |
|
Nov 8, 2002 |
|
010 |
|
Accuray Incorporated |
|
11 |
|
CYBERKNIFE |
|
May 19, 2009 |
|
Kuwait |
|
Registered |
|
103328 |
|
90404 |
|
May 19, 2009 |
|
10 |
|
Accuray Incorporated |
|
12 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
United States of America |
|
Registered |
|
A002761 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
13 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
Australia |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
14 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
Switzerland |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
15 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
China |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
16 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
Korea (South) |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
17 |
|
CYBERKNIFE |
|
Jan 25, 2013 |
|
Mexico |
|
Registered |
|
1343200 |
|
1362714 |
|
Apr 24, 2013 |
|
10 |
|
Accuray Incorporated |
|
18 |
|
CYBERKNIFE |
|
Oct 13, 2005 |
|
New Zealand |
|
Registered |
|
737078 |
|
737078 |
|
Apr 13, 2006 |
|
10 |
|
Accuray Incorporated |
|
19 |
|
CYBERKNIFE |
|
Jun 23, 2009 |
|
Paraguay |
|
Registered |
|
21219 |
|
334680 |
|
Jun 30, 2010 |
|
10 |
|
Accuray Incorporated |
|
20 |
|
CYBERKNIFE |
|
Jan 16, 2009 |
|
Russian Federation |
|
Registered |
|
2009700540 |
|
398317 |
|
Jan 15, 2010 |
|
10 |
|
Accuray Incorporated |
|
21 |
|
CYBERKNIFE |
|
Jun 30, 2009 |
|
South Africa |
|
Registered |
|
144956 |
|
1272/87 |
|
Aug 15, 2011 |
|
10 |
|
Accuray Incorporated |
|
22 |
|
CYBERKNIFE |
|
Oct 19, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
94050249 |
|
01223067 |
|
Aug 16, 2006 |
|
10 |
|
Accuray Incorporated |
|
23 |
|
CYBERKNIFE |
|
May 5, 2009 |
|
Ukraine |
|
Registered |
|
M 2009 05019 |
|
128118 |
|
Sep 10, 2010 |
|
10 |
|
Accuray Incorporated |
|
24 |
|
CYBERKNIFE |
|
Jul 13, 2009 |
|
Uruguay |
|
Registered |
|
403554 |
|
403554 |
|
Nov 4, 2011 |
|
10 |
|
Accuray Incorporated |
|
25 |
|
SYNCHRONY |
|
Jan 4, 2002 |
|
United States of America |
|
Registered |
|
76/355,129 |
|
3121089 |
|
Jul 25, 2006 |
|
009 |
|
Accuray Incorporated |
|
26 |
|
ROBOCOUCH |
|
Jun 30, 2004 |
|
United States of America |
|
Registered |
|
78/444,046 |
|
3303434 |
|
Oct 2, 2007 |
|
010 |
|
Accuray Incorporated |
|
27 |
|
ROBOCOUCH |
|
Dec 30, 2004 |
|
China |
|
Registered |
|
4443932 |
|
4443932 |
|
Aug 28, 2007 |
|
010 |
|
Accuray Incorporated |
|
28 |
|
ROBOCOUCH |
|
Dec 29, 2004 |
|
European Union Intellectual Property Office |
|
Registered |
|
4175329 |
|
4175329 |
|
Mar 1, 2006 |
|
010 |
|
Accuray Incorporated |
|
29 |
|
ROBOCOUCH |
|
Dec 28, 2004 |
|
Japan |
|
Registered |
|
2004-119115 |
|
4858059 |
|
Apr 15, 2005 |
|
010 |
|
Accuray Incorporated |
|
30 |
|
AXUM |
|
Oct 14, 2005 |
|
China |
|
Registered |
|
4943872 |
|
4943872 |
|
Sep 28, 2008 |
|
010 |
|
Accuray Incorporated |
|
31 |
|
MULTIPLAN |
|
Apr 11, 2005 |
|
United States of America |
|
Registered |
|
76/635,460 |
|
3181425 |
|
Dec 5, 2006 |
|
009 |
|
Accuray Incorporated |
|
32 |
|
MULTIPLAN |
|
Oct 8, 2005 |
|
China |
|
Registered |
|
4932723 |
|
4932723 |
|
Sep 7, 2008 |
|
009 |
|
Accuray Incorporated |
|
33 |
|
MULTIPLAN |
|
Oct 9, 2005 |
|
European Union Intellectual Property Office |
|
Registered |
|
4643516 |
|
4643516 |
|
Oct 27, 2006 |
|
009 |
|
Accuray Incorporated |
|
34 |
|
MULTIPLAN |
|
Oct 11, 2005 |
|
Japan |
|
Registered |
|
2005-94669 |
|
4916041 |
|
Dec 16, 2005 |
|
009 |
|
Accuray Incorporated |
|
35 |
|
MULTIPLAN |
|
Oct 14, 2005 |
|
Japan |
|
Registered |
|
2005-96300 |
|
5001409 |
|
Nov 2, 2006 |
|
009 |
|
Accuray Incorporated |
|
36 |
|
XSIGHT |
|
Apr 11, 2005 |
|
United States of America |
|
Registered |
|
76/635,461 |
|
3298517 |
|
Sep 25, 2007 |
|
010 |
|
Accuray Incorporated |
|
37 |
|
XSIGHT |
|
Oct 19, 2006 |
|
European Union Intellectual Property Office |
|
Registered |
|
005399241 |
|
005399241 |
|
May 8, 2008 |
|
010 |
|
Accuray Incorporated |
|
38 |
|
XSIGHT |
|
Oct 11, 2006 |
|
International Bureau of WIPO |
|
Registered |
|
923838 |
|
923838 |
|
Oct 11, 2006 |
|
10, 9 |
|
Accuray Incorporated |
|
39 |
|
XSIGHT |
|
Oct 11, 2006 |
|
China |
|
Registered |
|
923838 |
|
923838 |
|
Oct 11, 2006 |
|
10, 9 |
|
Accuray Incorporated |
|
40 |
|
XSIGHT |
|
Oct 11, 2006 |
|
Japan |
|
Total Provisional Refusal |
|
923838 |
|
|
|
|
|
10, 9 |
|
Accuray Incorporated |
|
41 |
|
XSIGHT |
|
Oct 11, 2006 |
|
Korea (South) |
|
Registered |
|
923838 |
|
923838 |
|
Oct 11, 2006 |
|
10, 9 |
|
Accuray Incorporated |
|
42 |
|
XSIGHT |
|
Feb 26, 2009 |
|
Japan |
|
Registered |
|
2009-013714 |
|
5301276 |
|
Feb 12, 2010 |
|
010 |
|
Accuray Incorporated |
|
43 |
|
XSIGHT |
|
Oct 11, 2006 |
|
United States of America |
|
Registered |
|
77/018,732 |
|
3496392 |
|
Sep 2, 2008 |
|
010 |
|
Accuray Incorporated |
|
44 |
|
ACCURAY |
|
Oct 13, 2005 |
|
United States of America |
|
Registered |
|
78/732,900 |
|
3306634 |
|
Oct 9, 2007 |
|
009, 10 |
|
Accuray Incorporated |
|
45 |
|
ACCURAY |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
19292055 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
46 |
|
ACCURAY |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
|
|
|
|
|
|
010 |
|
Accuray Incorporated |
|
47 |
|
ACCURAY |
|
Feb 18, 2008 |
|
Argentina |
|
Registered |
|
2804455 |
|
2414459 |
|
Dec 17, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
48 |
|
ACCURAY |
|
Feb 2, 2012 |
|
Brazil |
|
Registered |
|
840016174 |
|
840016174 |
|
Feb 18, 2015 |
|
009, 10 |
|
Accuray Incorporated |
|
49 |
|
ACCURAY |
|
Jul 15, 2016 |
|
Canada |
|
Pending |
|
1,791,705 |
|
|
|
|
|
009, 10 |
|
Accuray Incorporated |
|
50 |
|
ACCURAY |
|
Dec 30, 2008 |
|
Colombia |
|
Registered |
|
08137763 |
|
385785 |
|
Aug 26, 2009 |
|
009, 10 |
|
Accuray Incorporated |
|
51 |
|
ACCURAY |
|
Oct 15, 2005 |
|
European Union Intellectual Property Office |
|
Registered |
|
004655833 |
|
004655833 |
|
Oct 6, 2006 |
|
009, 10, 41 |
|
Accuray Incorporated |
|
52 |
|
ACCURAY |
|
Jun 1, 2016 |
|
Hong Kong, SAR China |
|
Registered |
|
303794130 |
|
303794130 |
|
Jun 1, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
53 |
|
ACCURAY |
|
Aug 4, 2010 |
|
India |
|
Pending |
|
2003494 |
|
|
|
|
|
009, 10 |
|
Accuray Incorporated |
|
54 |
|
ACCURAY |
|
Sep 16, 2009 |
|
Iraq |
|
Pending |
|
54904 |
|
|
|
|
|
009, 10 |
|
Accuray Incorporated |
|
55 |
|
ACCURAY |
|
May 26, 2009 |
|
Iran |
|
Registered |
|
188030112 |
|
217781 |
|
Sep 9, 2012 |
|
009, 10 |
|
Accuray Incorporated |
|
56 |
|
ACCURAY |
|
Aug 28, 2008 |
|
Korea (South) |
|
Registered |
|
40-2008-42136 |
|
40-797598 |
|
Aug 11, 2009 |
|
009, 10 |
|
Accuray Incorporated |
|
57 |
|
ACCURAY |
|
May 19, 2009 |
|
Kuwait |
|
Registered |
|
103329 |
|
90405 |
|
May 19, 2009 |
|
009, 10 |
|
Accuray Incorporated |
|
58 |
|
ACCURAY |
|
Oct 21, 2005 |
|
International Bureau of WIPO |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
59 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Australia |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
60 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Switzerland |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
61 |
|
ACCURAY |
|
Oct 21, 2005 |
|
China |
|
Pending |
|
896634 |
|
|
|
|
|
10, 09 |
|
Accuray Incorporated |
|
62 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Japan |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
63 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Korea (South) |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
64 |
|
ACCURAY |
|
Oct 17, 2005 |
|
New Zealand |
|
Registered |
|
737214 |
|
737214 |
|
Jul 13, 2006 |
|
009, 10 |
|
Accuray Incorporated |
|
65 |
|
ACCURAY |
|
Jun 23, 2009 |
|
Paraguay |
|
Registered |
|
21220 |
|
335824 |
|
Aug 3, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
66 |
|
ACCURAY |
|
Jan 16, 2009 |
|
Russian Federation |
|
Registered |
|
2009700539 |
|
420624 |
|
Oct 15, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
67 |
|
ACCURAY |
|
Jun 30, 2009 |
|
South Africa |
|
Registered |
|
144957 |
|
1272/86 |
|
Aug 15, 2011 |
|
009, 10 |
|
Accuray Incorporated |
|
68 |
|
ACCURAY |
|
Jun 20, 2016 |
|
Turkey |
|
Registered |
|
201654308 |
|
201654308 |
|
Feb 7, 2017 |
|
009, 10 |
|
Accuray Incorporated |
|
69 |
|
ACCURAY |
|
Oct 19, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094050248 |
|
01213117 |
|
Jun 2, 2006 |
|
009, 10 |
|
Accuray Incorporated |
|
70 |
|
ACCURAY |
|
May 5, 2009 |
|
Ukraine |
|
Registered |
|
M 2009 05020 |
|
128119 |
|
Sep 10, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
71 |
|
ACCURAY |
|
Jul 13, 2009 |
|
Uruguay |
|
Registered |
|
403555 |
|
40355 |
|
Jun 13, 2012 |
|
009, 10 |
|
Accuray Incorporated |
|
72 |
|
ACCURAY & DESIGN |
|
Oct 13, 2005 |
|
United States of America |
|
Registered |
|
78/732,915 |
|
3378543 |
|
Feb 5, 2008 |
|
10, 10 |
|
Accuray Incorporated |
|
73 |
|
ACCURAY & DESIGN |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
19292057 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
74 |
|
ACCURAY & DESIGN |
|
Mar 28, 2017 |
|
China |
|
Pending |
|
23307720 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
75 |
|
ACCURAY & DESIGN |
|
Mar 14, 2016 |
|
China |
|
Registered |
|
19292056 |
|
19292056 |
|
Apr 21, 2017 |
|
010 |
|
Accuray Incorporated |
|
76 |
|
ACCURAY & DESIGN |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
19292055 |
|
|
|
|
|
44 |
|
Accuray Incorporated |
|
77 |
|
ACCURAY & DESIGN |
|
Mar 28, 2017 |
|
China |
|
Pending |
|
23307719 |
|
|
|
|
|
44 |
|
Accuray Incorporated |
|
78 |
|
ACCURAY & DESIGN OF NEW LOGO |
|
Feb 17, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
15116114 |
|
15116114 |
|
Jun 16, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
79 |
|
ACCURAY & DESIGN OF NEW LOGO |
|
Feb 11, 2016 |
|
United States of America |
|
Registered |
|
86/904,926 |
|
5,229,006 |
|
Jun 20, 2017 |
|
009, 10 |
|
Accuray Incorporated |
|
80 |
|
ACCURAY’S DESIGN |
|
Oct 13, 2005 |
|
United States of America |
|
Registered |
|
78/732,925 |
|
3306635 |
|
Oct 9, 2007 |
|
009, 10 |
|
Accuray Incorporated |
|
81 |
|
CYBERKNIFE UNIVERSITY |
|
Oct 11, 2006 |
|
United States of America |
|
Registered |
|
77/018,644 |
|
3465111 |
|
Jul 15, 2008 |
|
41 |
|
Accuray Incorporated |
|
82 |
|
XCHANGE |
|
Sep 26, 2006 |
|
United States of America |
|
Registered |
|
77/007,570 |
|
3631869 |
|
Jun 2, 2009 |
|
10 |
|
Accuray Incorporated |
|
83 |
|
XCHANGE |
|
Sep 29, 2006 |
|
European Union Intellectual Property Office |
|
Registered |
|
005347257 |
|
005347257 |
|
Aug 30, 2007 |
|
10 |
|
Accuray Incorporated |
|
84 |
|
XCHANGE |
|
Sep 26, 2006 |
|
United States of America |
|
Registered |
|
A0005960 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
85 |
|
XCHANGE |
|
Sep 26, 2006 |
|
China |
|
Registered |
|
907679 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
86 |
|
XCHANGE |
|
Sep 26, 2006 |
|
Japan |
|
Registered |
|
907679 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
87 |
|
XCHANGE |
|
Sep 26, 2006 |
|
Korea (South) |
|
Registered |
|
907679 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
88 |
|
CYBERKNIFE VSI |
|
Mar 30, 2009 |
|
United States of America |
|
Registered |
|
77/702,437 |
|
3904968 |
|
Jan 11, 2011 |
|
10 |
|
Accuray Incorporated |
|
89 |
|
QUICKPLAN |
|
Aug 26, 2009 |
|
United States of America |
|
Registered |
|
77/813,495 |
|
3829517 |
|
Aug 3, 2010 |
|
9 |
|
Accuray Incorporated |
|
90 |
|
INTERNATIONAL CYBERKNIFE NETWORK |
|
Jan 17, 2011 |
|
China |
|
Registered |
|
9059734 |
|
9059734 |
|
Feb 7, 2012 |
|
35 |
|
Accuray Incorporated |
|
91 |
|
INTERNATIONAL CYBERKNIFE NETWORK |
|
Jan 12, 2011 |
|
European Union Intellectual Property Office |
|
Registered |
|
009654864 |
|
009654864 |
|
Jun 21, 2011 |
|
35 |
|
Accuray Incorporated |
|
92 |
|
INTERNATIONAL CYBERKNIFE NETWORK |
|
Jan 14, 2011 |
|
Japan |
|
Registered |
|
2011-002039 |
|
5422567 |
|
Jul 1, 2011 |
|
35 |
|
Accuray Incorporated |
|
93 |
|
PLANTOUCH |
|
Sep 12, 2011 |
|
United States of America |
|
Registered |
|
85/420,777 |
|
4,332,520 |
|
May 7, 2013 |
|
|
|
Accuray Incorporated |
|
94 |
|
AERO ACCURAY EXCHANGE IN RADITAION ONCOLOGY |
|
Sep 30, 2011 |
|
United States of America |
|
Registered |
|
85/436,970 |
|
4240551 |
|
Nov 13, 2012 |
|
35, 41, 42 |
|
Accuray Incorporated |
|
95 |
|
AERO ACCURAY EXCHANGE IN RADITAION ONCOLOGY |
|
Dec 22, 2011 |
|
Japan |
|
Registered |
|
2011-092307 |
|
5499149 |
|
Jun 8, 2012 |
|
35, 41, 42 |
|
Accuray Incorporated |
|
96 |
|
AERO ACCURAY EXCHANGE IN RADITAION ONCOLOGY |
|
Dec 12, 2011 |
|
European Union Intellectual Property Office |
|
Registered |
|
10484723 |
|
10484723 |
|
Jul 26, 2012 |
|
35, 41, 42 |
|
Accuray Incorporated |
|
97 |
|
ACCURAY IN JAPANESE CHARACTERS |
|
Apr 4, 2012 |
|
United States of America |
|
Registered |
|
2012/026,212 |
|
5528381 |
|
Oct 12, 2012 |
|
10, 09 |
|
Accuray Incorporated |
|
98 |
|
CYBERKNIFE (JAPANESE CHARACTERS) |
|
Oct 18, 2011 |
|
Japan |
|
Registered |
|
2011-74379 |
|
5638370 |
|
Dec 20, 2013 |
|
10 |
|
Accuray Incorporated |
|
99 |
|
HI ART |
|
Feb 24, 2005 |
|
India |
|
Registered |
|
1340588 |
|
1340588 |
|
Feb 24, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
100 |
|
HI ART |
|
Feb 17, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094006942 |
|
1185028 |
|
Dec 1, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
101 |
|
HI ART |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,428 |
|
TMA740020 |
|
May 13, 2009 |
|
10 |
|
Accuray Incorporated |
|
102 |
|
HI ART |
|
Mar 3, 2005 |
|
United States of America |
|
Registered |
|
865,313 |
|
865313 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
103 |
|
HI ART (2840349) |
|
May 28, 2003 |
|
United States of America |
|
Registered |
|
78/255,227 |
|
2840349 |
|
May 11, 2004 |
|
10 |
|
Accuray Incorporated |
|
104 |
|
HI ART (2840348) |
|
May 28, 2003 |
|
United States of America |
|
Registered |
|
78/255,208 |
|
2840348 |
|
May 11, 2004 |
|
9 |
|
Accuray Incorporated |
|
105 |
|
MISCELLANEOUS DESIGN (TOMOTHERAPY LOGO) |
|
Jul 9, 2003 |
|
Canada |
|
Registered |
|
1,182,644 |
|
TMA 626773 |
|
Nov 26, 2004 |
|
|
|
Accuray Incorporated |
|
106 |
|
MISCELLANEOUS DESIGN (TOMOTHERAPY LOGO) |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,408 |
|
TMA 722932 |
|
Sep 4, 2008 |
|
|
|
Accuray Incorporated |
|
107 |
|
TOMO |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,410 |
|
TMA 722931 |
|
Sep 4, 2008 |
|
10 |
|
Accuray Incorporated |
|
108 |
|
TOMO |
|
Jul 9, 2003 |
|
Canada |
|
Registered |
|
1,182,645 |
|
TMA 626109 |
|
Nov 22, 2004 |
|
10 |
|
Accuray Incorporated |
|
109 |
|
TOMO |
|
Mar 3, 2005 |
|
Switzerland |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
110 |
|
TOMO |
|
Mar 3, 2005 |
|
China |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
111 |
|
TOMO |
|
Jun 26, 2003 |
|
European Union Intellectual Property Office |
|
Registered |
|
003243979 |
|
003243979 |
|
Nov 11, 2004 |
|
10 |
|
Accuray Incorporated |
|
112 |
|
TOMO |
|
Mar 3, 2005 |
|
European Union Intellectual Property Office |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
113 |
|
TOMO |
|
Mar 3, 2005 |
|
International Bureau of WIPO |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
114 |
|
TOMO |
|
Feb 24, 2005 |
|
India |
|
Registered |
|
1340584 |
|
1340584 |
|
Feb 24, 2005 |
|
10 |
|
Accuray Incorporated |
|
115 |
|
TOMO |
|
Mar 3, 2005 |
|
Japan |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
116 |
|
TOMO |
|
Mar 3, 2005 |
|
Korea (South) |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10 |
|
TomoTherapy Incorporated |
|
117 |
|
TOMO |
|
Mar 12, 2015 |
|
Russian Federation |
|
Registered |
|
2015706615 |
|
590726 |
|
Oct 13, 2016 |
|
10 |
|
TomoTherapy Incorporated |
|
118 |
|
TOMO |
|
Mar 3, 2005 |
|
Singapore |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
119 |
|
TOMO |
|
Feb 17, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094006945 |
|
1182820 |
|
Nov 16, 2005 |
|
10 |
|
TomoTherapy Incorporated |
|
120 |
|
TOMO |
|
Jan 14, 2003 |
|
United States of America |
|
Registered |
|
78/203,099 |
|
2788956 |
|
Dec 2, 2003 |
|
10 |
|
TomoTherapy Incorporated |
|
121 |
|
TOMOTHERAPY |
|
Oct 9, 2012 |
|
United States of America |
|
Registered |
|
85/749,470 |
|
4417188 |
|
Oct 15, 2013 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
122 |
|
TOMOTHERAPY |
|
Feb 2, 2012 |
|
Brazil |
|
Registered |
|
840016190 |
|
840016190 |
|
Feb 18, 2015 |
|
10 |
|
TomoTherapy Incorporated |
|
123 |
|
TOMOTHERAPY |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,407 |
|
TMA 708751 |
|
Mar 4, 2008 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
124 |
|
TOMOTHERAPY |
|
Jun 11, 2008 |
|
Canada |
|
Registered |
|
1,399,183 |
|
TMA915,722 |
|
Oct 1, 2015 |
|
44 |
|
TomoTherapy Incorporated |
|
125 |
|
TOMOTHERAPY |
|
Jun 21, 2008 |
|
European Union Intellectual Property Office |
|
Registered |
|
7005903 |
|
7005903 |
|
Jul 10, 2009 |
|
44 |
|
TomoTherapy Incorporated |
|
126 |
|
TOMOTHERAPY |
|
May 26, 2016 |
|
Hong Kong, SAR China |
|
Registered |
|
303788678 |
|
303788678 |
|
May 26, 2016 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
127 |
|
TOMOTHERAPY |
|
Jul 23, 2015 |
|
Hong Kong, SAR China |
|
Registered |
|
303481065 |
|
303481065 |
|
Jul 23, 2015 |
|
010, 044 |
|
TomoTherapy Incorporated |
|
128 |
|
TOMOTHERAPY |
|
Feb 9, 2005 |
|
International Bureau of WIPO |
|
Registered |
|
847352 |
|
847352 |
|
Feb 9, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
129 |
|
TOMOTHERAPY |
|
Feb 24, 2005 |
|
India |
|
Registered |
|
1340585 |
|
1340585 |
|
Feb 24, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
130 |
|
TOMOTHERAPY |
|
Mar 12, 2015 |
|
Russian Federation |
|
Registered |
|
2015706614 |
|
|
|
Jun 26, 2016 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
131 |
|
TOMOTHERAPY |
|
Feb 17, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094006943 |
|
1182818 |
|
Nov 16, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
132 |
|
TOMOTHERAPY AND DESIGN |
|
Jul 9, 2003 |
|
United States of America |
|
Registered |
|
01/182,642 |
|
TMA 653899 |
|
Nov 29, 2005 |
|
|
|
TomoTherapy Incorporated |
|
133 |
|
TOMOTHERAPY (SINGLE LINE) |
|
Jul 9, 2003 |
|
Canada |
|
Registered |
|
1,182,643 |
|
TMA 654059 |
|
Nov 30, 2005 |
|
10 |
|
TomoTherapy Incorporated |
|
134 |
|
TOMOTHERAPY HI ART |
|
Mar 5, 2001 |
|
United States of America |
|
Registered |
|
76/219,829 |
|
2729995 |
|
Jun 24, 2003 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
135 |
|
TOMOTHERAPY (JAPANESE CHARACTERS) |
|
Mar 22, 2012 |
|
Japan |
|
Registered |
|
2012-021787 |
|
5585393 |
|
May 24, 2013 |
|
10 |
|
TomoTherapy Incorporated |
|
136 |
|
TOMOHD |
|
Oct 5, 2010 |
|
United States of America |
|
Registered |
|
85/145,550 |
|
4418909 |
|
Oct 15, 2013 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
137 |
|
TOMOH |
|
Oct 5, 2010 |
|
United States of America |
|
Registered |
|
85/145,560 |
|
4621369 |
|
Oct 14, 2014 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
138 |
|
STATRT |
|
Oct 5, 2010 |
|
United States of America |
|
Registered |
|
85/145,487 |
|
4808683 |
|
Sep 8, 2015 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
139 |
|
STATRT |
|
Jun 12, 2008 |
|
European Union Intellectual Property Office |
|
Registered |
|
007005937 |
|
007005937 |
|
Apr 3, 2009 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
140 |
|
TOMOPORTAL |
|
Feb 19, 2007 |
|
India |
|
Registered |
|
1531829 |
|
1531829 |
|
Feb 19, 2007 |
|
10 |
|
TomoTherapy Incorporated |
|
141 |
|
TOMOPORTAL |
|
Jan 16, 2008 |
|
Taiwan, Republic of China |
|
Registered |
|
01297299 |
|
01297299 |
|
Jan 16, 2008 |
|
9 |
|
TomoTherapy Incorporated |
|
142 |
|
ONRAD |
|
Jun 19, 2015 |
|
China |
|
Registered |
|
17248954 |
|
17248954 |
|
Oct 28, 2016 |
|
010 |
|
TomoTherapy Incorporated |
|
143 |
|
ONRAD |
|
Jun 3, 2015 |
|
European Union Intellectual Property Office |
|
Registered |
|
14195176 |
|
14195176 |
|
Oct 2, 2015 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
144 |
|
ONRAD |
|
Jun 5, 2015 |
|
Japan |
|
Registered |
|
2015-053384 |
|
5802044 |
|
Oct 23, 2015 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
145 |
|
ONRAD |
|
Jun 3, 2015 |
|
Mexico |
|
Registered |
|
1617205 |
|
1582025 |
|
Oct 20, 2015 |
|
009 |
|
TomoTherapy Incorporated |
|
146 |
|
ONRAD |
|
Jun 3, 2015 |
|
Mexico |
|
Registered |
|
1617204 |
|
1582659 |
|
Oct 21, 2015 |
|
010 |
|
TomoTherapy Incorporated |
|
147 |
|
RADIXACT |
|
Sep 4, 2015 |
|
Canada |
|
Allowed |
|
1,744,763 |
|
|
|
|
|
009 |
|
TomoTherapy Incorporated |
|
148 |
|
RADIXACT |
|
Aug 27, 2015 |
|
China |
|
Registered |
|
17765335 |
|
17765335 |
|
Oct 14, 2016 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
149 |
|
RADIXACT |
|
Aug 24, 2015 |
|
European Union Intellectual Property Office |
|
Registered |
|
14500763 |
|
14500763 |
|
Dec 23, 2015 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
150 |
|
RADIXACT |
|
Aug 25, 2015 |
|
Japan |
|
Registered |
|
2015-081559 |
|
5845038 |
|
Apr 22, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
151 |
|
RADIXACT |
|
May 25, 2016 |
|
Russian Federation |
|
Registered |
|
2016718486 |
|
607782 |
|
Mar 6, 2017 |
|
009, 10 |
|
Accuray Incorporated |
|
152 |
|
RADIXACT |
|
Aug 31, 2015 |
|
United States of America |
|
Registered |
|
86/742,946 |
|
5,092,439 |
|
Nov 29, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
153 |
|
PRECISION |
|
Sep 16, 2015 |
|
Canada |
|
Allowed |
|
1,746,346 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
154 |
|
PRECISION |
|
Sep 3, 2015 |
|
Japan |
|
Registered |
|
2015-085171 |
|
|
|
Jul 7, 2016 |
|
009 |
|
Accuray Incorporated |
|
155 |
|
IDMS |
|
Sep 1, 2015 |
|
United States of America |
|
Allowed |
|
86/744,366 |
|
|
|
|
|
9 |
|
Accuray Incorporated |
|
156 |
|
IDMS |
|
Sep 16, 2015 |
|
Canada |
|
Allowed |
|
1,746,347 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
157 |
|
IDMS |
|
Sep 6, 2015 |
|
China |
|
Registered |
|
17825894 |
|
17825894 |
|
Oct 14, 2016 |
|
9 |
|
Accuray Incorporated |
|
158 |
|
IDMS |
|
Sep 2, 2015 |
|
European Union Intellectual Property Office |
|
Registered |
|
14519102 |
|
14519102 |
|
Jan 11, 2016 |
|
009 |
|
Accuray Incorporated |
|
159 |
|
IDMS |
|
Sep 3, 2015 |
|
Japan |
|
Registered |
|
2015-085198 |
|
5829333 |
|
Feb 26, 2016 |
|
009 |
|
Accuray Incorporated |
|
160 |
|
ACCURAY PRECISION |
|
Jan 6, 2016 |
|
Canada |
|
Allowed |
|
1,762,154 |
|
|
|
|
|
9 |
|
Accuray Incorporated |
|
161 |
|
ACCURAY PRECISION |
|
Jan 7, 2016 |
|
China |
|
Registered |
|
18815588 |
|
18815588 |
|
Feb 14, 2017 |
|
9 |
|
Accuray Incorporated |
|
162 |
|
ACCURAY PRECISION |
|
Jan 6, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
14977862 |
|
14977862 |
|
May 5, 2016 |
|
009 |
|
Accuray Incorporated |
|
163 |
|
ACCURAY PRECISION |
|
Jan 8, 2016 |
|
Japan |
|
Registered |
|
2016-002109 |
|
5854578 |
|
May 27, 2016 |
|
009 |
|
Accuray Incorporated |
|
164 |
|
ACCURAY PRECISION |
|
Jan 4, 2016 |
|
United States of America |
|
Registered |
|
86/864,567 |
|
5,210,271 |
|
May 23, 2017 |
|
009 |
|
Accuray Incorporated |
|
165 |
|
PRECISEART |
|
Feb 12, 2016 |
|
Canada |
|
Allowed |
|
1,767,695 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
166 |
|
PRECISEART |
|
Feb 18, 2016 |
|
China |
|
Registered |
|
19112005 |
|
19112005 |
|
Mar 21, 2017 |
|
009 |
|
Accuray Incorporated |
|
167 |
|
PRECISEART |
|
Feb 22, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
15131188 |
|
15131188 |
|
Jun 24, 2016 |
|
009 |
|
Accuray Incorporated |
|
168 |
|
PRECISEART |
|
Feb 15, 2016 |
|
Japan |
|
Registered |
|
2016-015892 |
|
5868546 |
|
Jul 22, 2016 |
|
009 |
|
Accuray Incorporated |
|
169 |
|
PRECISEART |
|
Feb 11, 2016 |
|
United States of America |
|
Allowed |
|
86/904,966 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
170 |
|
PRECISERTX |
|
Feb 12, 2016 |
|
Canada |
|
Allowed |
|
1 767 696 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
171 |
|
PRECISERTX |
|
Feb 18, 2016 |
|
China |
|
Registered |
|
19112004 |
|
19112004 |
|
Mar 21, 2017 |
|
009 |
|
Accuray Incorporated |
|
172 |
|
PRECISERTX |
|
Feb 12, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
15103658 |
|
15103658 |
|
Jun 22, 2016 |
|
009 |
|
Accuray Incorporated |
|
173 |
|
PRECISERTX |
|
Feb 15, 2016 |
|
Japan |
|
Registered |
|
2016-015898 |
|
5868547 |
|
Jul 22, 2016 |
|
009 |
|
Accuray Incorporated |
|
174 |
|
PRECISERTX |
|
Feb 11, 2016 |
|
United States of America |
|
Allowed |
|
86/904,972 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
175 |
|
CTRUE |
|
Feb 9, 2007 |
|
European Union Intellectual Property Office |
|
Registered |
|
5705827 |
|
5705827 |
|
Feb 11, 2008 |
|
009, 10 |
|
Accuray Incorporated |
|
176 |
|
CTRUE |
|
Feb 9, 2007 |
|
Korea (South) |
|
Registered |
|
4020070007623 |
|
400733460000 |
|
Jan 8, 2008 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
177 |
|
CTRUE |
|
Jan 16, 2008 |
|
Taiwan, Republic of China |
|
Registered |
|
01298912 |
|
01298912 |
|
Jan 16, 2008 |
|
10, 09 |
|
Accuray Incorporated |
OUS Issued Patent Matters
|
TITLE |
|
COUNTRY |
|
DATE FILED |
|
APPLICATION |
|
STATUS |
|
GRANT |
|
OWNER |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY - PCT |
|
China |
|
May 9, 2006 |
|
2006800250458 |
|
Issued |
|
Dec 1, 2011 |
|
Accuray Incorporated |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY - PCT |
|
Japan |
|
May 9, 2006 |
|
2008511299 |
|
Issued |
|
Nov 15, 2012 |
|
Accuray Incorporated |
|
SUPER PRECISION REGISTRATION OF X-RAY IMAGES TO CONE BEAM CT FOR IMAGE-GUIDED RADIOSURGERY - PCT |
|
China |
|
Jun 27, 2006 |
|
2006800281600 |
|
Issued |
|
Dec 5, 2012 |
|
Accuray Incorporated |
|
PRECISION REGISTRATION OF X-RAY IMAGES TO CONE-BEAM CT FOR IMAGE-GUIDED RADIATION TREATMENT |
|
Japan |
|
Jun 27, 2006 |
|
2008520277 |
|
Issued |
|
Aug 29, 2014 |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY - KOREA |
|
Korea (South) |
|
Apr 5, 2005 |
|
20067023241 |
|
Issued |
|
Sep 28, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
China |
|
Jun 29, 2006 |
|
2006800286765 |
|
Issued |
|
Jul 18, 2012 |
|
Accuray Incorporated |
|
Imaging geometry |
|
China |
|
Jun 29, 2005 |
|
2010101970488 |
|
Issued |
|
Jun 12, 2012 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
Germany |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
European Patent Office |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
France |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
United Kingdom |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
Japan |
|
Jun 29, 2006 |
|
2008520316 |
|
Issued |
|
Aug 10, 2012 |
|
Accuray Incorporated |
|
Adaptive X-Ray Control |
|
China |
|
Feb 13, 2007 |
|
2007800055515 |
|
Issued |
|
Sep 5, 2012 |
|
Accuray Incorporated |
|
Adaptive X-Ray Control |
|
Japan |
|
Feb 13, 2007 |
|
2008555381 |
|
Issued |
|
Nov 8, 2012 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- GERMANY |
|
Germany |
|
Dec 7, 1993 |
|
DE19936033449 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- EPO |
|
European Patent Office |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- FRANCE |
|
France |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- GREAT BRITAIN |
|
United Kingdom |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- ITALY |
|
Italy |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- KOREA |
|
Korea (South) |
|
Dec 7, 1993 |
|
95702344 |
|
Issued |
|
Feb 26, 2002 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- SWEDEN |
|
Sweden |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- GERMANY |
|
Germany |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- EPO |
|
European Patent Office |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- FRANCE |
|
France |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- UNITED KINGDOM |
|
United Kingdom |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- ITALY |
|
Italy |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- JAPAN |
|
Japan |
|
Mar 14, 2000 |
|
2000604773 |
|
Issued |
|
Dec 4, 2009 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- JAPAN |
|
Japan |
|
Mar 14, 2000 |
|
2009225262 |
|
Issued |
|
Mar 8, 2013 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- KOREA |
|
Korea (South) |
|
Mar 14, 2000 |
|
1020017011675 |
|
Issued |
|
Aug 10, 2007 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- SWEDEN |
|
Sweden |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
Germany |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
European Patent Office |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
France |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
United Kingdom |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
Japan |
|
Sep 14, 2001 |
|
2007212216 |
|
Issued |
|
Apr 20, 2012 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
Sweden |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
Dynamic Tracking of Moving Targets |
|
Japan |
|
Aug 22, 2005 |
|
2007534595 |
|
Issued |
|
Nov 16, 2012 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
China |
|
May 30, 2007 |
|
2007800234568 |
|
Issued |
|
Jul 27, 2011 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
Germany |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Aug 16, 2016 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
European Patent Office |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
France |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
United Kingdom |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
Japan |
|
May 30, 2007 |
|
2009518130 |
|
Issued |
|
Sep 5, 2014 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
Sweden |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
RADIATION TREATMENT PLANNING USING FOUR-DIMENSIONAL IMAGING DATA |
|
Japan |
|
Aug 30, 2007 |
|
2007253810 |
|
Issued |
|
Nov 14, 2013 |
|
Accuray Incorporated |
|
COLLIMATOR CHANGER |
|
Japan |
|
Oct 9, 2007 |
|
2009536231 |
|
Issued |
|
Aug 2, 2013 |
|
Accuray Incorporated |
|
TARGET TRACKING USING DIRECT TARGET REGISTRATION |
|
China |
|
Oct 11, 2007 |
|
2007800406282 |
|
Issued |
|
Feb 18, 2016 |
|
Accuray Incorporated |
|
An apparatus and method for determining an optimized path traversal for radiation treatment delivery system |
|
Japan |
|
Sep 30, 2009 |
|
2010502090 |
|
Issued |
|
Aug 2, 2013 |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
China |
|
Dec 11, 2008 |
|
2008801248685 |
|
Issued |
|
Apr 23, 2014 |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
Japan |
|
Dec 11, 2008 |
|
2010543094 |
|
Issued |
|
Dec 6, 2013 |
|
Accuray Incorporated |
|
SEVEN DEGREES OR MORE OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
China |
|
Aug 12, 2009 |
|
2009801422313 |
|
Issued |
|
Sep 10, 2014 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
China |
|
Jan 25, 2010 |
|
2010800055767 |
|
Issued |
|
Jan 26, 2014 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
China |
|
Jan 25, 2010 |
|
2014100859640 |
|
Issued |
|
Jun 29, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
European Patent Office |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
France |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
United Kingdom |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
Italy |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
Sweden |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
China |
|
Jul 2, 2010 |
|
2010800369694 |
|
Issued |
|
Nov 17, 2014 |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
Japan |
|
Jul 2, 2010 |
|
2012519611 |
|
Issued |
|
Oct 30, 2015 |
|
Accuray Incorporated |
|
Magnetron Powered of Interleaved Multi-energy LInac |
|
China |
|
Jan 28, 2011 |
|
2011800149735 |
|
Issued |
|
Sep 19, 2016 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
Germany |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
European Patent Office |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
France |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
United Kingdom |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
Germany |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
European Patent Office |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
European Patent Office |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
Germany |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
France |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
United Kingdom |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
France |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
United Kingdom |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
China |
|
Oct 28, 2011 |
|
2011800570349 |
|
Issued |
|
Jan 17, 2017 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Germany |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
European Patent Office |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
France |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
United Kingdom |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Italy |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Japan |
|
Oct 28, 2011 |
|
2013536890 |
|
Issued |
|
May 13, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Sweden |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
China |
|
Jan 10, 2012 |
|
2012800109855 |
|
Issued |
|
Apr 11, 2016 |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM WITH RING GANTRY |
|
Japan |
|
Jan 10, 2012 |
|
2013550494 |
|
Issued |
|
Mar 8, 2017 |
|
Accuray Incorporated |
|
Automatic callibration for device with controlled motion range |
|
Japan |
|
Feb 6, 2012 |
|
2013553479 |
|
Issued |
|
Nov 18, 2016 |
|
Accuray Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
Germany |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
European Patent Office |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
France |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
United Kingdom |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
Japan |
|
Mar 11, 2002 |
|
2002572101 |
|
Issued |
|
Mar 6, 2009 |
|
TomoTherapy Incorporated |
|
METHOD FOR MODIFICATION OF RADIOTHERAPY TREATMENT DELIVERY |
|
Japan |
|
Sep 6, 2004 |
|
2003574268 |
|
Issued |
|
Feb 18, 2011 |
|
TomoTherapy Incorporated |
|
TOMOTHERAPY STEREOTACTIC UPPER BODY FIXATION AND POSITIONING DEVICE |
|
Japan |
|
Jan 23, 2006 |
|
2006522801 |
|
Issued |
|
Jul 30, 2010 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING TARGET |
|
Germany |
|
Jul 21, 2006 |
|
080062342 |
|
Issued |
|
May 4, 2011 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING TARGET |
|
France |
|
Jul 21, 2006 |
|
080062342 |
|
Issued |
|
May 4, 2011 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING TARGET |
|
United Kingdom |
|
Jul 21, 2006 |
|
080062342 |
|
Issued |
|
May 4, 2011 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
Germany |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
France |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
United Kingdom |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
Japan |
|
Jan 22, 2008 |
|
2008523014 |
|
Issued |
|
Oct 18, 2013 |
|
TomoTherapy Incorporated |
|
EVALUATION OF QUALITY ASSURANCE CRITERIA IN DELIVERY OF A TREATMENT PLAN |
|
China |
|
Jul 21, 2006 |
|
2006800345975 |
|
Issued |
|
Jul 18, 2012 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
Germany |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
European Patent Office |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
France |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
United Kingdom |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
Italy |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
Sweden |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
Germany |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
France |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
United Kingdom |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
Netherlands |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
Sweden |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DETECTING A BREATHING PHASE OF A PATIENT RECEIVING RADIATION THERAPY |
|
Japan |
|
Jan 22, 2008 |
|
2008522987 |
|
Issued |
|
Aug 10, 2012 |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
China |
|
Feb 19, 2014 |
|
2014800105675 |
|
Issued |
|
Sep 8, 2017 |
|
TomoTherapy Incorporated |
US Issued Patent Matters
|
TITLE |
|
COUNTRY |
|
DATE FILED |
|
STATUS |
|
GRANT |
|
PATENT |
|
OWNER |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY |
|
US |
|
May 13, 2005 |
|
Issued |
|
Apr 17, 2012 |
|
8160205 |
|
Accuray Incorporated |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY |
|
US |
|
Sep 12, 2012 |
|
Issued |
|
Jun 10, 2014 |
|
8745789 |
|
Accuray Incorporated |
|
FOUR-DIMENSIONAL VOLUME OF INTEREST |
|
US |
|
Jun 2, 2005 |
|
Issued |
|
Apr 1, 2008 |
|
7352370 |
|
Accuray Incorporated |
|
INVERSE PLANNING USING OPTIMIZATION CONSTRAINTS DERIVED FROM IMAGE INTENSITY |
|
US |
|
Jun 2, 2005 |
|
Issued |
|
Jul 15, 2008 |
|
7400755 |
|
Accuray Incorporated |
|
INVERSE PLANNING USING OPTIMIZATION CONSTRAINTS DERIVED FROM IMAGE INTENSITY |
|
US |
|
Jun 9, 2008 |
|
Issued |
|
May 4, 2010 |
|
7711169 |
|
Accuray Incorporated |
|
METHOD FOR AUTOMATIC ANATOMY-SPECIFIC TREATMENT PLANNING PROTOCOLS BASED ON HISTORICAL INTEGRATION OF PREVIOUSLY ACCEPTED PLANS |
|
US |
|
Jun 27, 2005 |
|
Issued |
|
Apr 22, 2008 |
|
7362848 |
|
Accuray Incorporated |
|
METHOD FOR AUTOMATIC ANATOMY-SPECIFIC TREATMENT PLANNING PROTOCOLS BASED ON HISTORICAL INTEGRATION OF PREVIOUSLY ACCEPTED PLANS |
|
US |
|
Feb 29, 2008 |
|
Issued |
|
Sep 22, 2009 |
|
7593505 |
|
Accuray Incorporated |
|
PATIENT TRACKING USING A VIRTUAL IMAGE |
|
US |
|
Aug 11, 2005 |
|
Issued |
|
Mar 26, 2013 |
|
8406851 |
|
Accuray Incorporated |
|
MULTI-PHASE REGISTRATION OF 2-D X-RAY IMAGES TO 3-D VOLUME STUDIES |
|
US |
|
Nov 16, 2005 |
|
Issued |
|
Nov 16, 2010 |
|
7835500 |
|
Accuray Incorporated |
|
RIGID BODY TRACKING FOR RADIOSURGERY |
|
US |
|
Nov 16, 2005 |
|
Issued |
|
Mar 23, 2010 |
|
7684647 |
|
Accuray Incorporated |
|
PRECISION REGISTRATION OF X-RAY IMAGES TO CONE-BEAM CT SCAN |
|
US |
|
Jun 29, 2005 |
|
Issued |
|
Nov 9, 2010 |
|
7831073 |
|
Accuray Incorporated |
|
PRECISION REGISTRATION OF X-RAY IMAGES TO CONE-BEAM CT SCAN |
|
US |
|
Oct 7, 2010 |
|
Issued |
|
Nov 6, 2012 |
|
8306297 |
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF SOFT TISSUE TARGETS WITH ULTRA-SOUND IMAGES, WITHOUT USING FIDUCIAL MARKERS |
|
US |
|
Jun 29, 2005 |
|
Issued |
|
May 11, 2010 |
|
7713205 |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY FOR THERAPEUTIC RADIATION SYSTEM |
|
US |
|
Oct 17, 2003 |
|
Issued |
|
Dec 26, 2006 |
|
7154991 |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Dec 28, 2010 |
|
7860550 |
|
Accuray Incorporated |
|
PATIENT POSITIOING ASSEMBLY |
|
US |
|
Jun 3, 2010 |
|
Issued |
|
Jun 4, 2013 |
|
8457279 |
|
Accuray Incorporated |
|
UNIFIED QUALITY ASSURANCE FOR A RADIATION TREATMENT DELIVERY SERVICE |
|
US |
|
Nov 14, 2005 |
|
Issued |
|
Feb 2, 2010 |
|
7656998 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY |
|
US |
|
Jun 29, 2005 |
|
Issued |
|
Nov 27, 2007 |
|
7302033 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY |
|
US |
|
Oct 9, 2007 |
|
Issued |
|
Jan 13, 2009 |
|
7477722 |
|
Accuray Incorporated |
|
AUTOMATIC GENERATION OF AN ENVELOPE OF CONSTRAINT POINTS FOR INVERSE PLANNING |
|
US |
|
Sep 6, 2005 |
|
Issued |
|
Sep 21, 2010 |
|
7801349 |
|
Accuray Incorporated |
|
DRR GENERATION AND ENHANCEMENT USING A DEDICATED GRAPHICS DEVICE |
|
US |
|
Jun 23, 2005 |
|
Issued |
|
Feb 12, 2008 |
|
7330578 |
|
Accuray Incorporated |
|
ADAPTIVE X-RAY CONTROL |
|
US |
|
Oct 13, 2008 |
|
Issued |
|
Jul 9, 2013 |
|
8483358 |
|
Accuray Incorporated |
|
ADAPTIVE X-RAY CONTROL |
|
US |
|
Feb 28, 2012 |
|
Issued |
|
Apr 8, 2014 |
|
8693632 |
|
Accuray Incorporated |
|
WIZARD AND TEMPLATE FOR TREATMENT PALNNING |
|
US |
|
Sep 30, 2005 |
|
Issued |
|
Nov 3, 2009 |
|
7611452 |
|
Accuray Incorporated |
|
WORKSPACE OPTIMIZATION FOR RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
Sep 28, 2005 |
|
Issued |
|
Sep 4, 2007 |
|
7266176 |
|
Accuray Incorporated |
|
TREATMENT TARGET POSITIONING SYSTEM |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Jan 23, 2007 |
|
7166852 |
|
Accuray Incorporated |
|
ROI SELECTION IN IMAGE REGISTRATION |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Jun 12, 2007 |
|
7231076 |
|
Accuray Incorporated |
|
RADIOSURGERY X-RAY SYSTEM WITH COLLISON AVOIDANCE SUBSYSTEM |
|
US |
|
Mar 31, 2004 |
|
Issued |
|
May 16, 2006 |
|
7046765 |
|
Accuray Incorporated |
|
RADIOSURGERY X-RAY SYSTEM WITH COLLISON AVOIDANCE SUBSYSTEM |
|
US |
|
Jan 23, 2006 |
|
Issued |
|
Sep 5, 2006 |
|
7103145 |
|
Accuray Incorporated |
|
RADIOSURGERY X-RAY SYSTEM WITH COLLISON AVOIDANCE SUBSYSTEM |
|
US |
|
Jan 23, 2006 |
|
Issued |
|
Sep 5, 2006 |
|
7103144 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR REGISTERING 2D RADIOGRAPHIC IMAGES WITH IMAGES RECONSTRUCTED FROM 3D SCAN DATA |
|
US |
|
Aug 29, 2003 |
|
Issued |
|
Apr 17, 2007 |
|
7204640 |
|
Accuray Incorporated |
|
DIRECT VOLUME RENDERING OF 4D DEFORMABLE VOLUME IMAGES |
|
US |
|
Mar 31, 2005 |
|
Issued |
|
Mar 17, 2009 |
|
7505037 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT |
|
US |
|
Mar 16, 1999 |
|
Issued |
|
Nov 7, 2000 |
|
6144875 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Sep 15, 2000 |
|
Issued |
|
Aug 17, 2004 |
|
6778850 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY ANND PATIENT MOTIONS DURING TREATMENT |
|
US |
|
Sep 8, 2000 |
|
Issued |
|
Dec 31, 2002 |
|
6501981 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT |
|
US |
|
Oct 18, 2002 |
|
Issued |
|
Jan 15, 2008 |
|
7318805 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Jan 20, 2009 |
|
Issued |
|
Dec 27, 2011 |
|
8086299 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Nov 29, 2011 |
|
Issued |
|
Jan 21, 2014 |
|
8634898 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Dec 18, 2013 |
|
Issued |
|
Feb 21, 2017 |
|
9572997 |
|
Accuray Incorporated |
|
TREATMENT PLANNING SOFTWARE AND CORRESPONDING USER INTERFACE |
|
US |
|
Sep 30, 2005 |
|
Issued |
|
Dec 13, 2011 |
|
8077936 |
|
Accuray Incorporated |
|
INTEGRATED QUALITY ASSURANCE FOR AN IMAGE GUIDED RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
Sep 23, 2005 |
|
Issued |
|
Apr 8, 2008 |
|
7356120 |
|
Accuray Incorporated |
|
INTEGRATED QUALITY ASSURANCE FOR AN IMAGE GUIDED RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
Feb 14, 2008 |
|
Issued |
|
Oct 20, 2009 |
|
7604405 |
|
Accuray Incorporated |
|
TREATMENT DELIVERY OPTIMIZATION |
|
US |
|
Jun 29, 2006 |
|
Issued |
|
Apr 6, 2010 |
|
7693257 |
|
Accuray Incorporated |
|
ANCHORED FIDUCIAL APPARATUS AND METHOD |
|
US |
|
Dec 20, 2001 |
|
Issued |
|
Oct 9, 2007 |
|
7280865 |
|
Accuray Incorporated |
|
METHOD AND APPARATUUS FOR TRACKING AN INTERNAL TARGET REGION WITHOUT AN IMPLANTED FIDUCIAL |
|
US |
|
Nov 12, 2002 |
|
Issued |
|
Aug 21, 2007 |
|
7260426 |
|
Accuray Incorporated |
|
FIDUCIAL-LESS TRACKING WITH NON-RIGID IMAGE REGISTRATION |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Feb 5, 2008 |
|
7327865 |
|
Accuray Incorporated |
|
FIDUCIAL -LESS TRACKING WITH NON-RIGID IMAGE REGISTRATION |
|
US |
|
Dec 5, 2007 |
|
Issued |
|
Mar 17, 2009 |
|
7505617 |
|
Accuray Incorporated |
|
FLEXIBLE TREATMENT PLANNING |
|
US |
|
Sep 29, 2005 |
|
Issued |
|
Nov 20, 2007 |
|
7298819 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR RADIOSURGERY |
|
US |
|
Dec 22, 2003 |
|
Issued |
|
Jan 30, 2007 |
|
7171257 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR RADIOSURGERY |
|
US |
|
Dec 12, 2006 |
|
Issued |
|
Dec 14, 2010 |
|
7853313 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR DETERMINING MEASURE OF SIMILARITY BETWEEN IMAGES |
|
US |
|
Aug 29, 2003 |
|
Issued |
|
Mar 6, 2007 |
|
7187792 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR DETERMINING MEASURE OF SIMILARITY BETWEEN IMAGES |
|
US |
|
Jan 16, 2007 |
|
Issued |
|
Jan 20, 2009 |
|
7480399 |
|
Accuray Incorporated |
|
IMAGE GUIDED RADIOSURGERY METHOD AND APPARATUS USING REGISTRATION OF 2D RADIOGRAPHIC IMAGES WITH DIGITALLY RECONSTRUCTED RADIOGRAPHS OF 3D SCAN DATA |
|
US |
|
Aug 29, 2003 |
|
Issued |
|
Jul 13, 2010 |
|
7756567 |
|
Accuray Incorporated |
|
IMAGE GUIDED RADIOSURGERY METHOD AND APPARATUS USING REGISTRATION OF 2D RADIOGRAPHIC IMAGES WITH DIGITALLY RECONSTRUCTED RADIOGRAPHS OF 3D SCAN DATA |
|
US |
|
Jun 3, 2010 |
|
Issued |
|
Oct 2, 2012 |
|
8280491 |
|
Accuray Incorporated |
|
GENERATION OF RECONSTRUCTED IMAGES |
|
US |
|
Mar 31, 2004 |
|
Issued |
|
Jan 1, 2008 |
|
7315636 |
|
Accuray Incorporated |
|
MOTION FIELD GENERATION FOR NON-RIGID IMAGE REGISTRATION |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Sep 16, 2008 |
|
7426318 |
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF MOVING TARGETS |
|
US |
|
Sep 30, 2004 |
|
Issued |
|
Mar 24, 2015 |
|
8989349 |
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF MOVING TARGETS |
|
US |
|
Mar 10, 2015 |
|
Issued |
|
Oct 25, 2016 |
|
9474914 |
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF MOVING TARGETS |
|
US |
|
Aug 7, 2007 |
|
Issued |
|
Oct 28, 2014 |
|
8874187 |
|
Accuray Incorporated |
|
IMAGE ENHANCEMENT METHOD AND SYSTEM FOR FIDUCIAL-LESS TRACKING OF TREATMENT TARGETS |
|
US |
|
Dec 15, 2008 |
|
Issued |
|
Nov 23, 2010 |
|
7840093 |
|
Accuray Incorporated |
|
NON-LINEAR CORRELATION MODELS FOR INTERNAL TARGET MOVEMENT |
|
US |
|
Sep 29, 2005 |
|
Issued |
|
Sep 27, 2011 |
|
8027715 |
|
Accuray Incorporated |
|
RESPIRATION PHANTOM FOR QUALITY ASSURANCE |
|
US |
|
Dec 1, 2005 |
|
Issued |
|
Jul 22, 2008 |
|
7402819 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
US |
|
Jun 28, 2006 |
|
Issued |
|
Nov 17, 2009 |
|
7620144 |
|
Accuray Incorporated |
|
CORRELATION MODEL SELECTION FOR INTERNAL TARGET MOVEMENT |
|
US |
|
Sep 29, 2005 |
|
Issued |
|
May 15, 2012 |
|
8180432 |
|
Accuray Incorporated |
|
METHOD AND APPARATUS FOR PATIENT LOADING AND UNLOADING |
|
US |
|
Jan 24, 2006 |
|
Issued |
|
Jun 30, 2009 |
|
7552490 |
|
Accuray Incorporated |
|
METHOD AND APPARATUS FOR PATIENT LOADING AND UNLOADING |
|
US |
|
May 28, 2009 |
|
Issued |
|
Mar 26, 2013 |
|
8402581 |
|
Accuray Incorporated |
|
DELINEATION ON THREE-DIMENSIONAL MEDICAL IMAGE |
|
US |
|
Mar 30, 2006 |
|
Issued |
|
Mar 15, 2011 |
|
7907772 |
|
Accuray Incorporated |
|
ENERGY MONITORING, OPTIMAL DOSE RATE X-RAY TARGET |
|
US |
|
Apr 25, 2006 |
|
Issued |
|
Jun 24, 2008 |
|
7391849 |
|
Accuray Incorporated |
|
AUTOMATICALLY DETERMINING A BEAM PARAMETER FOR RADIATION TREATMENT PLANNING |
|
US |
|
Mar 30, 2007 |
|
Issued |
|
Sep 15, 2009 |
|
7590219 |
|
Accuray Incorporated |
|
DETERMINING A TARGET-TO-SURFACE DISTANCE AND USING IT FOR REAL TIME ABSORBED DOSE CALCULATION AND COMPENSATION |
|
US |
|
Aug 25, 2006 |
|
Issued |
|
Mar 17, 2009 |
|
7505559 |
|
Accuray Incorporated |
|
TEMPORAL SMOOTHING OF A DEFORMATION FIELD |
|
US |
|
Dec 13, 2006 |
|
Issued |
|
Nov 24, 2009 |
|
7623679 |
|
Accuray Incorporated |
|
CALIBRATING TRACKING SYSTEMS TO REMOVE POSITION-DEPENDENT BIAS |
|
US |
|
Feb 22, 2007 |
|
Issued |
|
Apr 9, 2013 |
|
8417318 |
|
Accuray Incorporated |
|
FIDUCIAL-LESS TRACKING OF A VOLUME OF INTEREST |
|
US |
|
Nov 3, 2006 |
|
Issued |
|
Sep 9, 2014 |
|
8831706 |
|
Accuray Incorporated |
|
COLLIMATOR CHANGER |
|
US |
|
Nov 3, 2006 |
|
Issued |
|
Sep 2, 2014 |
|
8822934 |
|
Accuray Incorporated |
|
TARGET TRACKING USING DIRECT TARGET REGISTRATION |
|
US |
|
Jan 20, 2011 |
|
Issued |
|
Jan 3, 2012 |
|
8090175 |
|
Accuray Incorporated |
|
INTEGRATED VARIABLE-APERTURE COLLIMATOR AND FIXED-APERTURE COLLIMATOR |
|
US |
|
Jun 29, 2007 |
|
Issued |
|
Jan 10, 2012 |
|
8093572 |
|
Accuray Incorporated |
|
PHANTOM INSERT FOR QUALITY ASSURANCE |
|
US |
|
Mar 29, 2007 |
|
Issued |
|
Sep 29, 2009 |
|
7594753 |
|
Accuray Incorporated |
|
“NON-COLLOCATED IMAGING AND TREATMENT IN IMAGE-GUIDED RADIATION TREATMENT SYSTEMS”. |
|
US |
|
Jun 29, 2007 |
|
Issued |
|
Nov 24, 2009 |
|
7623623 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR DETERMINING AN OPTIMIZED PATH TRAVERSAL FOR RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
Mar 30, 2007 |
|
Issued |
|
Sep 11, 2012 |
|
8262554 |
|
Accuray Incorporated |
|
ROBOTIC ARM FOR A RADIATION TREATMENT SYSTEM |
|
US |
|
Jun 29, 2007 |
|
Issued |
|
Feb 18, 2014 |
|
8655429 |
|
Accuray Incorporated |
|
A NON-INVASIVE METHOD FOR USING 2D ANGIOGRAPHIC IMAGES FOR RADIOSURGICAL TARGET DEFINITION |
|
US |
|
Jun 30, 2007 |
|
Issued |
|
Aug 30, 2016 |
|
9427201 |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
US |
|
Aug 27, 2008 |
|
Issued |
|
Dec 27, 2011 |
|
8086004 |
|
Accuray Incorporated |
|
LOWER-TORSO ASSEMBLY OF A TREATMENT COUCH USEABLE IN AN X-RAY ENVIRONMENT |
|
US |
|
Jun 27, 2007 |
|
Issued |
|
Jun 22, 2010 |
|
7742562 |
|
Accuray Incorporated |
|
HIGH QUALITY VOLUME RENDERING WITH GPU USING FLOATING-POINT FRAME BUFFER OBJECT |
|
US |
|
Jun 25, 2007 |
|
Issued |
|
Feb 15, 2011 |
|
7889902 |
|
Accuray Incorporated |
|
CARDIAC TARGET TRACKING |
|
US |
|
Jan 15, 2009 |
|
Issued |
|
Oct 23, 2012 |
|
8295435 |
|
Accuray Incorporated |
|
CONSTRAINED-CURVE CORRELATION MODEL |
|
US |
|
Jan 10, 2008 |
|
Issued |
|
Nov 22, 2011 |
|
8064642 |
|
Accuray Incorporated |
|
Automatic correlation modeling of an internal target |
|
US |
|
Oct 26, 2007 |
|
Issued |
|
Feb 2, 2016 |
|
9248312 |
|
Accuray Incorporated |
|
TARGET TRACKING USING SURFACE SCANNER AND FOUR-DIMENSIONAL DIAGNOSTIC IMAGING DATA |
|
US |
|
Jan 7, 2008 |
|
Issued |
|
May 18, 2010 |
|
7720196 |
|
Accuray Incorporated |
|
TARGET LOCATION BY TRACKING OF IMAGING DEVICE |
|
US |
|
Oct 11, 2011 |
|
Issued |
|
Mar 22, 2016 |
|
9289268 |
|
Accuray Incorporated |
|
SUBTRACTION OF SEGMENTED ANATOMICAL FEATURE FROM AN ACQUIRED IMAGE |
|
US |
|
Sep 30, 2008 |
|
Issued |
|
Jun 4, 2013 |
|
8457372 |
|
Accuray Incorporated |
|
SEVEN OR MORE DEGREES OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
US |
|
Oct 14, 2008 |
|
Issued |
|
Feb 28, 2012 |
|
8126114 |
|
Accuray Incorporated |
|
SEVEN OR MORE DEGREES OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
US |
|
Feb 27, 2012 |
|
Issued |
|
Jun 24, 2014 |
|
8761337 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
US |
|
Oct 16, 2009 |
|
Issued |
|
Jul 31, 2012 |
|
8232748 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC ACCELERATOR COMPRISING FREQUENCY CONTROLLER FOR INTERLEAVED MULTIPLE-ENERGY OPERATION |
|
US |
|
Jul 17, 2012 |
|
Issued |
|
Feb 26, 2013 |
|
8384314 |
|
Accuray Incorporated |
|
Controlling Timing for X-ray Imaging Based on Target Movement |
|
US |
|
Sep 11, 2009 |
|
Issued |
|
Mar 6, 2012 |
|
8130907 |
|
Accuray Incorporated |
|
Controlling Timing for X-ray Imaging Based on Target Movement |
|
US |
|
Jan 26, 2012 |
|
Issued |
|
Mar 3, 2015 |
|
8971490 |
|
Accuray Incorporated |
|
SEQUENTIAL OPTIMIZATIONS FOR TREATMENT PLANNING |
|
US |
|
Jun 26, 2009 |
|
Issued |
|
May 15, 2012 |
|
8180020 |
|
Accuray Incorporated |
|
SEQUENTIAL OPTIMIZATIONS FOR TREATMENT PLANNING |
|
US |
|
Apr 13, 2012 |
|
Issued |
|
Jun 2, 2015 |
|
9044602 |
|
Accuray Incorporated |
|
Treatment Planning in a Virtual Environment |
|
US |
|
Apr 15, 2010 |
|
Issued |
|
Aug 26, 2014 |
|
8819591 |
|
Accuray Incorporated |
|
A method of interleaving multi x-ray energy operation for the standing wave linear accelerator |
|
US |
|
Mar 5, 2010 |
|
Issued |
|
Oct 9, 2012 |
|
8284898 |
|
Accuray Incorporated |
|
A method of interleaving multi x-ray energy operation for the standing wave linear accelerator |
|
US |
|
Sep 11, 2012 |
|
Issued |
|
May 12, 2015 |
|
9031200 |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
US |
|
Jul 8, 2009 |
|
Issued |
|
Jun 19, 2012 |
|
8203289 |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
US |
|
Jun 18, 2012 |
|
Issued |
|
Jul 22, 2014 |
|
8786217 |
|
Accuray Incorporated |
|
Magnetron Powered of Interleaved Multi-energy LInac |
|
US |
|
Jan 29, 2010 |
|
Issued |
|
Nov 13, 2012 |
|
8311187 |
|
Accuray Incorporated |
|
Magnetron Powered of Interleaved Multi-Energy LInac |
|
US |
|
Nov 12, 2012 |
|
Issued |
|
Aug 23, 2016 |
|
9426876 |
|
Accuray Incorporated |
|
IMAGE ALIGNMENT |
|
US |
|
Sep 17, 2010 |
|
Issued |
|
Nov 20, 2012 |
|
8315356 |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Feb 23, 2011 |
|
Issued |
|
Dec 23, 2014 |
|
8917813 |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Nov 12, 2014 |
|
Issued |
|
Jul 12, 2016 |
|
9387347 |
|
Accuray Incorporated |
|
Rotatable Gantry Radiation Treatment System |
|
US |
|
Jun 28, 2016 |
|
Issued |
|
Jul 11, 2017 |
|
9700740 |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Feb 23, 2011 |
|
Issued |
|
Jan 13, 2015 |
|
8934605 |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Nov 19, 2014 |
|
Issued |
|
May 3, 2016 |
|
9327141 |
|
Accuray Incorporated |
|
Medical imaging and image-guided radiation treatment |
|
US |
|
Jun 11, 2011 |
|
Issued |
|
Oct 15, 2013 |
|
8559596 |
|
Accuray Incorporated |
|
Medical imaging and image-guided radiation treatment |
|
US |
|
Jun 8, 2011 |
|
Issued |
|
Aug 12, 2014 |
|
8804901 |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System with Outwardly Movable Radiation Treatment Head Extending from Ring Gantry |
|
US |
|
Aug 8, 2011 |
|
Issued |
|
Mar 24, 2015 |
|
8989846 |
|
Accuray Incorporated |
|
Systems and methods for real-time tumor tracking during radiation treatment using ultrasound imaging |
|
US |
|
Aug 5, 2011 |
|
Issued |
|
Aug 18, 2015 |
|
9108048 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE USING CURRENT TO MODULATE PULSE-TO-PULSE DOSAGE |
|
US |
|
Dec 22, 2010 |
|
Issued |
|
Oct 20, 2015 |
|
9167681 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE USING CURRENT TO MODULATE PULSE-TO-PULSE DOSAGE |
|
US |
|
May 16, 2012 |
|
Issued |
|
Sep 16, 2014 |
|
8836250 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE USING PULSE WIDTH TO MODULATE PULSE-TO-PULSE DOSAGE |
|
US |
|
Dec 22, 2010 |
|
Issued |
|
Feb 9, 2016 |
|
9258876 |
|
Accuray Incorporated |
|
SYSTEMS AND METHODS FOR CARGO SCANNING AND RADIOTHERAPY USING A TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE |
|
US |
|
May 16, 2012 |
|
Issued |
|
Jan 27, 2015 |
|
8942351 |
|
Accuray Incorporated |
|
METHOD AND APPARATUS FOR SELECTING A TRACKING METHOD TO USE IN IMAGE GUIDED TREATMENT |
|
US |
|
Oct 25, 2011 |
|
Issued |
|
Sep 30, 2014 |
|
8849633 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
US |
|
Oct 25, 2011 |
|
Issued |
|
Sep 2, 2014 |
|
8824630 |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System With Translatable Ring Gantry |
|
US |
|
Apr 15, 2011 |
|
Issued |
|
Jun 27, 2017 |
|
9687200 |
|
Accuray Incorporated |
|
Automatic Calibration for Device with Controlled Motion Range |
|
US |
|
Jul 15, 2011 |
|
Issued |
|
Aug 2, 2016 |
|
9406411 |
|
Accuray Incorporated |
|
APPARATUS FOR GENERATING MULTI-ENERGY X-RAY IMAGES AND METHODS OF USING THE SAME |
|
US |
|
Jun 28, 2012 |
|
Issued |
|
Aug 16, 2016 |
|
9415240 |
|
Accuray Incorporated |
|
IMAGE REGISTRATION FOR IMAGE-GUIDED SURGERY |
|
US |
|
Jul 14, 2011 |
|
Issued |
|
Aug 26, 2014 |
|
8818105 |
|
Accuray Incorporated |
|
Systems and methods for achromatically bending a beam of charged particles by about ninety degree during radiation treatment |
|
US |
|
Jul 15, 2011 |
|
Issued |
|
Mar 26, 2013 |
|
8405044 |
|
Accuray Incorporated |
|
Ring Gantry Radiation Treatment Delivery System With Dynamically Controllable Inward Extension Of Treatment Head |
|
US |
|
Apr 15, 2011 |
|
Issued |
|
Sep 17, 2013 |
|
8536547 |
|
Accuray Incorporated |
|
SYSTEMS AND METHODS FOR GENERATING X-RAYS AND NEUTRONS |
|
US |
|
May 8, 2012 |
|
Issued |
|
Sep 24, 2013 |
|
8541756 |
|
Accuray Incorporated |
|
AMBIENT LIGHT SUPPRESSION USING COLOR SPACE INFORMATION TO DERIVE PIXEL-WISE ATTENUATION FACTORS |
|
US |
|
Dec 17, 2015 |
|
Issued |
|
Sep 26, 2017 |
|
9774838 |
|
Accuray Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
US |
|
Mar 9, 2001 |
|
Issued |
|
May 16, 2006 |
|
7046831 |
|
TomoTherapy Incorporated |
|
FLUENCE ADJUSTMENT FOR IMPROVED DELIVERY TO VOXELS WITHOUT REOPTIMIZATION |
|
US |
|
Mar 9, 2001 |
|
Issued |
|
Dec 9, 2003 |
|
6661870 |
|
TomoTherapy Incorporated |
|
METHOD FOR RECONSTRUCTION OF LIMITED DATA IMAGES USING FUSION-ALIGNED REPROJECTION AND NORMAL-ERROR-ALIGNED REPROJECTION |
|
US |
|
Jun 11, 2002 |
|
Issued |
|
Jul 5, 2005 |
|
6915005 |
|
TomoTherapy Incorporated |
|
METHOD FOR MODIFICATION OF RADIOTHERAPY TREATMENT DELIVERY |
|
US |
|
May 16, 2005 |
|
Issued |
|
Mar 26, 2013 |
|
8406844 |
|
TomoTherapy Incorporated |
|
METHOD AND APPARATUS FOR MODULATING A RADIATION BEAM |
|
US |
|
Feb 24, 2006 |
|
Issued |
|
Jun 7, 2011 |
|
7957507 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING REGION OF INTEREST |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jul 1, 2014 |
|
8767917 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF TREATING A PATIENT WITH RADIATION THERAPY |
|
US |
|
May 10, 2006 |
|
Issued |
|
Jul 31, 2012 |
|
8232535 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY AND COUCH |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Aug 15, 2017 |
|
9731148 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR EVALUATING QUALITY ASSURANCE CRITERIA IN DELIVERY OF A TREATMENT PLAN |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Aug 10, 2010 |
|
7773788 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR EVALUATING QUALITY ASSURANCE CRITERIA IN DELIVERY OF A TREATMENT PLAN |
|
US |
|
Aug 10, 2010 |
|
Issued |
|
May 14, 2013 |
|
8442287 |
|
TomoTherapy Incorporated |
|
METHOD OF AND SYSTEM FOR PREDICTING DOSE DELIVERY |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Dec 29, 2009 |
|
7639853 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP AND SYSTEM FOR IMPLEMENTING SAME |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jul 28, 2009 |
|
7567694 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF GENERATING CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Oct 27, 2009 |
|
7609809 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR EVALUATING DELIVERED DOSE |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jan 5, 2010 |
|
7643661 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR ADAPTING A RADIATION THERAPY TREATMENT PLAN BASED ON A BIOLOGICAL MODEL |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Aug 11, 2009 |
|
7574251 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR PROCESSING DATA RELATING TO A RADIATION THERAPY TREATMENT PLAN |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Dec 29, 2009 |
|
7639854 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DETECTING A BREATHING PHASE OF A PATIENT RECEIVING RADIATION THERAPY |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jul 24, 2012 |
|
8229068 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF EVALUATING DOSE DELIVERED BY A RADIATION THERAPY SYSTEM |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Nov 23, 2010 |
|
7839972 |
|
TomoTherapy Incorporated |
|
METHOD AND APPARATUS FOR CALIBRATING A RADIATION THERAPY TREATMENT SYSTEM |
|
US |
|
Jul 27, 2007 |
|
Issued |
|
Sep 21, 2010 |
|
7801269 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE |
|
US |
|
Sep 4, 2008 |
|
Issued |
|
Feb 28, 2012 |
|
8122542 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE AND METHOD OF OPERATION |
|
US |
|
Sep 4, 2008 |
|
Issued |
|
Aug 31, 2010 |
|
7784127 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE AND METHOD OF OPERATION |
|
US |
|
Aug 31, 2010 |
|
Issued |
|
Apr 24, 2012 |
|
8161585 |
|
TomoTherapy Incorporated |
|
METHOD FOR ADAPTING FRACTIONATION OF A RADIATION THERAPY DOSE |
|
US |
|
Oct 27, 2008 |
|
Issued |
|
Jul 17, 2012 |
|
8222616 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR MOTION ADAPTIVE OPTIMIZATION FOR RADIATION THERAPY DELIVERY |
|
US |
|
Oct 27, 2008 |
|
Issued |
|
Aug 13, 2013 |
|
8509383 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR MOTION ADAPTIVE OPTIMIZATION FOR RADIATION THERAPY DELIVERY |
|
US |
|
Mar 5, 2009 |
|
Issued |
|
Jun 18, 2013 |
|
8467497 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR IMPROVED IMAGE SEGMENTATION |
|
US |
|
Mar 4, 2009 |
|
Issued |
|
Nov 5, 2013 |
|
8577115 |
|
TomoTherapy Incorporated |
|
TARGET PEDESTAL ASSEMBLY AND METHOD OF PRESERVING THE TARGET |
|
US |
|
Feb 11, 2009 |
|
Issued |
|
Nov 16, 2010 |
|
7835502 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF CONTOURING A TARGET AREA |
|
US |
|
Aug 28, 2009 |
|
Issued |
|
Aug 12, 2014 |
|
8803910 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF CALCULATING DOSE UNCERTAINTY |
|
US |
|
Aug 28, 2009 |
|
Issued |
|
Jan 19, 2013 |
|
8363784 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF CALCULATING DOSE UNCERTAINTY |
|
US |
|
Jan 11, 2013 |
|
Issued |
|
Dec 16, 2014 |
|
8913716 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE WITH LOW ATTENTUATION PROPERTIES |
|
US |
|
Sep 29, 2010 |
|
Issued |
|
Jun 23, 2015 |
|
9061141 |
|
TomoTherapy Incorporated |
|
NON-VOXEL-BASED BROAD-BEAM (NVBB) ALGORITHM FOR INTENSITY MODULATED RADIATION THERAPY DOSE CALCULATION AND PLAN OPTIMIZATION |
|
US |
|
Oct 29, 2010 |
|
Issued |
|
Mar 19, 2013 |
|
8401148 |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
US |
|
Feb 19, 2014 |
|
Issued |
|
Sep 13, 2016 |
|
9443633 |
|
TomoTherapy Incorporated |
|
RADIATION TREATMENT PLANNING AND DELIVERY FOR MOVING TARGETS IN THE HEART |
|
US |
|
Mar 16, 2009 |
|
Issued |
|
May 31, 2011 |
|
7953204 |
|
Accuray Incorporated and Cyberheart, Inc. |
OUS Patent “Pending/Allowed” Matters
|
TITLE |
|
COUNTRY |
|
DATE |
|
APPLICATION |
|
STATUS |
|
OWNER |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY - PCT |
|
European Patent Office |
|
May 9, 2006 |
|
067701599 |
|
Pending |
|
Accuray Incorporated |
|
SUPER PRECISION REGISTRATION OF X-RAY IMAGES TO CONE BEAM CT FOR IMAGE-GUIDED RADIOSURGERY - PCT |
|
European Patent Office |
|
Jun 27, 2006 |
|
067741652 |
|
Pending |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY - EPO |
|
European Patent Office |
|
Apr 5, 2005 |
|
057337362 |
|
Allowed |
|
Accuray Incorporated |
|
TREATMENT DELIVERY OPTIMIZATION |
|
European Patent Office |
|
May 31, 2007 |
|
077773653 |
|
Pending |
|
Accuray Incorporated |
|
Dynamic Tracking of Moving Targets |
|
European Patent Office |
|
Aug 22, 2005 |
|
057915225 |
|
Allowed |
|
Accuray Incorporated |
|
TARGET TRACKING USING DIRECT TARGET REGISTRATION |
|
European Patent Office |
|
Oct 11, 2007 |
|
078527231 |
|
Pending |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
European Patent Office |
|
Dec 11, 2008 |
|
088706437 |
|
Published |
|
Accuray Incorporated |
|
SEVEN DEGREES OR MORE OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
European Patent Office |
|
Aug 12, 2009 |
|
098134182 |
|
Pending |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
Germany |
|
Jan 25, 2010 |
|
107013062 |
|
Pending |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
European Patent Office |
|
Jul 2, 2010 |
|
107306813 |
|
Pending |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
European Patent Office |
|
Feb 23, 2011 |
|
171589864 |
|
Published |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
China |
|
Jan 10, 2012 |
|
2016102180173 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
China |
|
Jan 10, 2012 |
|
2016102174030 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
European Patent Office |
|
Jan 10, 2012 |
|
127009041 |
|
Allowed |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
European Patent Office |
|
Jan 10, 2012 |
|
171994544 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM WITH RING GANTRY |
|
Japan |
|
Jan 10, 2012 |
|
2016082013 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
Japan |
|
Jan 10, 2012 |
|
2016082014 |
|
Pending |
|
Accuray Incorporated |
|
IMAGE-BASED APERATURE VERIFICATION SYSTEM FOR MULTI-LEAF COLLIMATOR |
|
China |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
IMAGE-BASED APERATURE VERIFICATION SYSTEM FOR MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
China |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
European Patent Office |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
Japan |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
China |
|
[*****] |
|
|
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
European Patent Office |
|
[*****] |
|
|
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
Japan |
|
[*****] |
|
|
|
Pending |
|
Accuray Incorporated |
|
MANIPULATION OF A RESPIRATORY MODEL VIA ADJUSTMENT OF PARAMETERS ASSOCIATED WITH MODEL IMAGES |
|
World Intellectual Property Organization |
|
Jan 18, 2017 |
|
PCTUS1713980 |
|
Pending |
|
Accuray Incorporated |
|
PRESENTING A SEQUENCE OF IMAGES ASSOCIATED WITH A MOTION MODEL |
|
World Intellectual Property Organization |
|
Jan 18, 2017 |
|
PCTUS1713981 |
|
Pending |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
World Intellectual Property Organization |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
World Intellectual Property Organization |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Jul 21, 2006 |
|
171501059 |
|
Published |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR MOTION ADAPTIVE OPTIMIZATION FOR RADIATION THERAPY DELIVERY |
|
European Patent Office |
|
Oct 27, 2008 |
|
088418371 |
|
Published |
|
TomoTherapy Incorporated |
|
MULTI LEAF COLLIMATOR AND SYSTEM FOR COLLIMATING A THERAPEUTIC RADIATION BEAM |
|
China |
|
Feb 19, 2014 |
|
2017107010830 |
|
Pending |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Feb 19, 2014 |
|
147575765 |
|
Pending |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
Hong Kong, SAR China |
|
May 11, 2016 |
|
161053998 |
|
Pending |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
Japan |
|
Feb 19, 2014 |
|
2015558927 |
|
Published |
|
TomoTherapy Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
World Intellectual Property Organization |
|
[*****] |
|
[*****] |
|
Pending |
|
TomoTherapy Incorporated |
|
RADIATION TREATMENT PLANNING AND DELIVERY FOR MOVING TARGETS IN THE HEART |
|
World Intellectual Property Organization |
|
Mar 16, 2009 |
|
PCTUS2009037298 |
|
Pending |
|
Accuray Incorporated and Cyberheart, Inc. |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
US Patent “Pending/Allowed” Matters
|
TITLE |
|
COUNTRY |
|
DATE FILED |
|
APPLICATION |
|
STATUS |
|
Owner |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY |
|
US |
|
Mar 9, 2012 |
|
13417003 |
|
Pending |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Jan 23, 2017 |
|
15412958 |
|
Pending |
|
Accuray Incorporated |
|
TREATMENT PLANNING SOFTWARE AND CORRESPONDING USER INTERFACE |
|
US |
|
Nov 8, 2011 |
|
13291830 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT PLANNING USING FOUR-DIMENSIONAL IMAGING DATA |
|
US |
|
Sep 28, 2006 |
|
11540327 |
|
Published |
|
Accuray Incorporated |
|
A NON-INVASIVE METHOD FOR USING 2D ANGIOGRAPHIC IMAGES FOR RADIOSURGICAL TARGET DEFINITION |
|
US |
|
Jul 26, 2016 |
|
15219514 |
|
Pending |
|
Accuray Incorporated |
|
Automatic correlation modeling of an internal target |
|
US |
|
Jan 8, 2016 |
|
14991428 |
|
Published |
|
Accuray Incorporated |
|
Automatic correlation modeling of an internal target |
|
US |
|
Jan 8, 2016 |
|
14991759 |
|
Pending |
|
Accuray Incorporated |
|
FIDUCIAL LOCALIZATION |
|
US |
|
Jun 18, 2008 |
|
12214771 |
|
Allowed |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Mar 23, 2016 |
|
15078553 |
|
Pending |
|
Accuray Incorporated |
|
IMAGING METHODS FOR IMAGE-GUIDED RADIATION TREATMENT |
|
US |
|
Jul 29, 2014 |
|
14446136 |
|
Allowed |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System with Outwardly Movable Radiation Treatment Head Extending from Ring Gantry |
|
US |
|
Mar 19, 2015 |
|
14663075 |
|
Pending |
|
Accuray Incorporated |
|
TRACKING DURING RADIATION TREATMENT USING ULTRASOUND IMAGING |
|
US |
|
Jul 13, 2015 |
|
14798179 |
|
Pending |
|
Accuray Incorporated |
|
TUMOR TRACKING DURING RADIATION TREATMENT USING ULTRASOUND IMAGING |
|
US |
|
Jul 15, 2015 |
|
14800473 |
|
Pending |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System With Translatable Ring Gantry |
|
US |
|
Jun 5, 2017 |
|
15614039 |
|
Published |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
APPARATUS FOR GENERATING MULTI-ENERGY X-RAY IMAGES AND METHODS OF USING THE SAME |
|
US |
|
Jul 12, 2016 |
|
15208049 |
|
Pending |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Feb 23, 2011 |
|
13033584 |
|
Pending |
|
Accuray Incorporated |
|
IMAGE-BASED APERTURE VERIFICATION SYSTEM FOR MULTI-LEAF COLLIMATOR |
|
US |
|
Jan 27, 2016 |
|
15008232 |
|
Published |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
US |
|
Jan 27, 2016 |
|
15008239 |
|
Published |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
MANIPULATION OF A RESPIRATORY MODEL VIA ADJUSTMENT OF PARAMETERS ASSOCIATED WITH MODEL IMAGES |
|
US |
|
Jan 25, 2016 |
|
15005971 |
|
Published |
|
Accuray Incorporated |
|
PRESENTING A SEQUENCE OF IMAGES ASSOCIATED WITH A MOTION MODEL |
|
US |
|
Jan 25, 2016 |
|
15005985 |
|
Published |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
TomoTherapy Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 4.9
Litigation, Governmental Proceedings and Other Notice Events
· [*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 5.1
Debt; Contingent Obligations
· Reimbursement obligations in respect of:
· the Standby Letter of Credit issued to Hintex B.V., Netherlands for EUR 11,838 in November 2010; and
· the Standby Letter of Credit issued to Pacific Gas and Electric Company, USA for $133,100 in November 2011.
· [*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 5.2
Liens
· Liens in connection with:
· Certificate of Deposit #8046436708 held by Wells Fargo Bank, N.A., as collateral against the Standby Letter of Credit issued to Hintex B.V., Netherlands for EUR 11,838 in November 2010; and
· Certificate of Deposit #6421121341 held by Wells Fargo Bank, N.A., as collateral against the Standby Letter of Credit issued to Pacific Gas and Electric Company, USA for $133,100 in November 2011.
Schedule 5.7
Permitted Investments
· Investments:
|
Owner |
|
Description |
|
Current Units as |
|
Currency |
|
Security |
|
Securities |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
· Intercompany Loans:
· Loan between Accuray Incorporated, as lender, and Accuray Medical Equipment (Russia) LLC, as debtor. As of September 30, 2017, there was [*****] outstanding with respect to this loan.
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
· Equity in subsidiaries:
|
Owner |
|
Subsidiary |
|
Balance as of 9/30/17 |
|
Accuray Incorporated |
|
Accuray International SARL |
|
[*****] |
|
Accuray Incorporated |
|
Accuray Brasil |
|
[*****] |
|
TomoTherapy Incorporated |
|
TomoTherapy Europe SARL |
|
[*****] |
|
TomoTherapy Incorporated |
|
Accuray Accelerator Technology Company Inc. |
|
[*****] |
· Other Investments:
Accuray Incorporated owns [*****] shares of common stock of [*****]. At November 30, 2017, these shares were valued at approximately $[*****].
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 5.14
Deposit Accounts and Securities Accounts
|
Entity |
|
Bank |
|
Address |
|
Account # |
|
Description |
|
Currency |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Main Operating |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Payroll Account |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Lockbox Account |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Restricted cash |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Restricted cash |
|
USD |
|
TomoTherapy Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Main Operating |
|
USD |
|
TomoTherapy Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Lockbox Account |
|
USD |
|
Accuray Incorporated |
|
Merill Lynch Wealth Management |
|
2049 Century Park E, 11/12 FL; Century City, CA 90067 |
|
[*****] |
|
Short-term investments |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo Securities |
|
45 Fremont St. |
|
[*****] |
|
Short term investments — no securities in the account as of date |
|
USD |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 7.4 — Post-Closing Requirements
Borrowers shall satisfy and complete each of the following obligations, or provide Agent each of the items listed below, as applicable, on or before the date indicated below, all to the satisfaction of Agent in its sole and absolute discretion:
1. Borrowers shall within thirty (30) days of the Closing Date, deliver to Agent, all in form and substance reasonably satisfactory to Agent a Securities Account Control — Consent Agreement with Wells Fargo Securities, LLC, with respect to account no. [*****].
Borrowers’ failure to complete and satisfy any of the above obligations on or before the date indicated above, or Borrowers’ failure to deliver any of the above listed items on or before the date indicated above, shall constitute an immediate an automatic Event of Default.
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 9.1 — Collateral
The Collateral consists of all of Borrowers’ assets, including without limitation, all of Borrowers’ right, title and interest in and to the following, whether now owned or hereafter created, acquired or arising:
(a) all goods, Accounts (including health-care insurance receivables), equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, securities accounts, fixtures, letter of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located;
(b) all of Borrowers’ books and records relating to any of the foregoing; and
(c) any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding anything to the contrary of the foregoing, Collateral shall not include Excluded Property.
Schedule 9.2
Location of Collateral
|
Company |
|
Chief Executive Office |
|
Chief Place of Business |
|
Books and Records |
|
Accuray Incorporated |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
TomoTherapy Incorporated |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
Street Address |
|
City |
|
State or |
|
Zip |
|
Nature of such |
|
Name and |
|
Inventory |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] |
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
|
|
|
|
|
|
|
|
[*****] |
[*****]
|
Location |
|
Sum of |
|
Asset Location |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
[*****] | |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
| |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
[*****] |
|
| |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
| |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
| |
|
Total |
|
$ |
[*****] |
|
|
[*****]
|
CIP Location |
|
Amount (USD) |
|
| |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
[*****] | |
|
[*****] |
|
[*****] |
|
[*****] | |
|
Total |
|
$ |
[*****] |
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
ASTERISKS INDICATE THAT CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.
AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT (this “Amendment”) is made as of this 15th day of December, 2017 (the “Amendment Effective Date”), by and among MIDCAP FUNDING IV TRUST, a Delaware statutory trust (as successor by assignment from MidCap Financial Trust), individually as a Lender, and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender., the lenders (individually, each a “Lender” and collectively, the “Lenders”) party to the Credit Agreement (as defined below), ACCURAY INCORPORATED, a Delaware corporation (“Accuray” or “Borrower Representative”), TOMOTHERAPY INCORPORATED, a Wisconsin corporation, and any additional borrower that may hereafter be added to this Agreement (collectively, “Other Borrowers” and, together with Borrower Representative, each individually as a “Borrower”, and collectively as “Borrowers”).
RECITALS
A. Borrowers, Agent and the Lenders are party to that certain Credit and Security Agreement dated as of June 14, 2017, as previously amended and modified (as amended hereby, and as may be further amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), pursuant to which Lenders agreed to make available to Borrowers a revolving loan facility in the maximum principal amount of $52,000,000 at any time outstanding. Capitalized terms used but not defined in this Amendment shall have the meanings that are set forth in the Credit Agreement, as amended hereby.
B. Agent, Lenders and Borrowers have agreed to provide for a reduction in the Revolving Loan Commitment by $20,000,000 and to make certain amendments to the Credit Agreement all as set forth herein.
C. Pursuant to Section 11.16 of the Credit Agreement, the reduction in the Revolving Loan Commitment requires the written consent of Borrowers and all Lenders.
D. The parties now agree to amend and modify the Credit Agreement all in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and Borrowers hereby agree as follows:
1. Specific Amendment to Credit Agreement.
(i) The Credit Agreement is hereby amended as set forth on Exhibit A to this Amendment (the “Amended Credit Agreement”). Language being inserted into the applicable section of the Credit Agreement is evidenced by double-underlined text
(indicated textually in the same manner as the following example: double-underlined text). Language being deleted from the applicable section of the Credit Agreement is evidenced by strike-through text (indicated textually in the same manner as the following example: stricken text).
(ii) The Annexes to the Credit Agreement shall continue to be the Annexes under the Amended Credit Agreement, with the changes set forth on Exhibit A.
(iii) The Exhibits to the Credit Agreement shall continue to be the Exhibits under the Amended Credit Agreement, with the changes set forth on Exhibit A.
(iv) The Schedules to the Credit Agreement shall continue to be the Schedules to the Amended Credit Agreement, with the changes set forth on Exhibit A.
(v) For purposes of clarity, the amendments to the Compliance Certificate shown on Exhibit A shall be applicable to the calculations submitted for the Defined Period ending December 31, 2017.
2. Reaffirmation of Security Interest. Each Borrower hereby expressly acknowledges and agrees that all Liens granted under the Financing Documents extend to and cover all of the obligations of Borrowers and any other Credit Party to Agent and the Lenders, now existing or hereafter arising including, without limitation, those arising in connection with the Credit Agreement, as amended by this Amendment, upon the terms set forth in the Credit Agreement, all of which Liens are hereby ratified, reaffirmed, confirmed and approved.
3. Enforceability. This Amendment constitutes the legal, valid and binding obligation of Borrowers, and is enforceable against Borrowers in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles. Each of the agreements, documents and instruments executed in connection herewith to which a Borrower is a party constitutes the legal, valid and binding obligation of such Borrower, and is enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.
4. Confirmation of Representations and Warranties. Each Credit Party represents and warrants to Agent and Lenders that, before and after giving effect to this Amendment:
(a) the representations and warranties of each Credit Party contained in the Financing Documents are true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) on and as of the date hereof, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty is true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) as of such earlier date.
(b) The execution and delivery by each Credit Party of this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its
powers, (ii) have been authorized by all necessary action, (iii) are not and will not conflict with or result in any breach or contravention of, or the creation of any Lien under, any Material Contract to which any Credit Party is a party, any Organizational Document of any Credit Party, any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which any Credit Party or the property of any Credit Party is subject, (iv) will not violate any applicable Law (including, without limitation, any corporation law, limited liability company law or partnership law of the states in which the Credit Parties are organized), and (v) will not result in a limitation on any material licenses, permits or other governmental approvals applicable to the business, operations or properties of any Credit Party.
(c) This Amendment and all allonges, assignments, instruments, documents, and agreements executed and delivered in connection herewith, are and will be valid, binding, and enforceable against each Credit Party in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.
(d) No Event of Default or Default has occurred and is continuing as of the date of this Amendment.
(e) Both before and after giving effect to (a) the Loans to be made or extended on the date hereof, (b) the disbursement of the proceeds of such Loans pursuant to the instructions of the Credit Parties, (c) the consummation of the transactions contemplated in the Financing Documents, and (e) the payment and accrual of all transaction costs in connection with the foregoing, the Credit Parties, taken as a whole, are Solvent.
5. Conditions to Effectiveness. The obligation of Agent and Lenders to enter into this Amendment shall be subject to the satisfaction of the following conditions precedent:
(a) that Agent shall have a copy of this Amendment, duly executed by Borrowers, Agent and Required Lenders, in form and substance satisfactory to Agent;
(b) that Agent shall have a copy of the Affiliated Credit Agreement and other Affiliated Financing Documents duly executed by the parties thereto, in form and substance satisfactory to Agent; and
(c) all fees payable to Agent or any Lender in connection with the execution of this Amendment shall have been paid.
6. Costs, Fees and Expenses. In consideration of Agent’s and each Lender’s agreement to enter into this Amendment, Borrowers shall be responsible for the payment of all reasonable costs, fees and expenses of Agent’s counsel incurred in connection with the preparation of this Amendment and any related documents. All such costs, fees and expenses shall be paid with proceeds of Revolving Loans.
7. Defenses and Setoffs. Each Credit Party hereby represents and warrants that as of the date hereof, there are no defenses, setoffs, claims or counterclaims which could be asserted
against the Agent or the Lenders arising from or in connection with the Credit Agreement or any other Financing Document.
8. Affirmation. Except as specifically amended pursuant to the terms hereof, the Credit Agreement and all other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by Borrowers. Each Borrower covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement (as amended hereby) and the Financing Documents notwithstanding any prior course of conduct, waivers, releases or other actions or inactions on Agent’s or any Lender’s part which might otherwise constitute or be construed as a waiver of or agreement to such terms, covenants and conditions.
9. No Waiver or Novation. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent or Lenders, nor constitute a waiver of any provision of the Credit Agreement, the other Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing. Nothing herein is intended or shall be construed as a waiver of any existing Defaults or Events of Default under the Credit Agreement or other Financing Documents or any of Agent’s or Lenders’ rights and remedies in respect of such Defaults or Events of Default. This Amendment (together with any other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of the Credit Agreement.
10. Incorporation of Credit Agreement Provisions. The provisions contained in Section 12.8 (Governing Law; Submission to Jurisdiction) and 12.9 (Waiver of Jury Trial) of the Credit Agreement are incorporated herein by reference to the same extent as if reproduced herein in their entirety.
11. Headings. Section headings in this Amendment are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
12. Counterparts. This Amendment may be executed in counterparts, and such counterparts taken together shall be deemed to constitute one and the same instrument. Signatures by facsimile or by electronic mail delivery of an electronic version of any executed signature page shall bind the parties hereto.
13. Reference to the Effect on the Financing Documents. Upon the effectiveness of this Amendment, each reference in any Financing Document to “this Amendment,” “hereunder,” “hereof,” “herein” or words of similar import shall mean and be a reference to such Financing Document as modified by this Amendment.
(SIGNATURES APPEAR ON FOLLOWING PAGES)
IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Amendment as of the day and year first hereinabove set forth.
|
BORROWER REPRESENTATIVE: |
ACCURAY INCORPORATED, a Delaware corporation | |
|
|
| |
|
|
|
|
|
|
By: |
/s/ Kevin Waters |
|
|
|
Kevin Waters |
|
|
|
Chief Financial Officer |
|
|
| |
|
|
| |
|
OTHER BORROWERS: |
TOMOTHERAPY INCORPORATED, a Wisconsin corporation | |
|
|
| |
|
|
|
|
|
|
By: |
/s/ Kevin Waters |
|
|
|
Kevin Waters |
|
|
|
Director |
|
|
|
SIGNATURE PAGE TO AMENDMENT |
|
AGENT: |
MIDCAP FUNDING IV TRUST, a Delaware statutory trust | ||
|
|
| ||
|
|
|
| |
|
|
By: |
Apollo Capital Management, L.P. | |
|
|
Its: |
Investment Manager | |
|
|
|
|
|
|
|
|
By: |
Apollo Capital Management GP, LLC |
|
|
|
Its: |
General Partner |
|
|
|
|
|
|
|
|
By: |
/s/ Maurice Amsellem |
|
|
|
|
Maurice Amsellem |
|
|
|
|
Authorized Signatory |
|
|
| ||
|
|
| ||
|
LENDER: |
MIDCAP FUNDING IV TRUST, a Delaware statutory trust | ||
|
|
| ||
|
|
|
| |
|
|
By: |
Apollo Capital Management, L.P. | |
|
|
Its: |
Investment Manager | |
|
|
|
|
|
|
|
|
By: |
Apollo Capital Management GP, LLC |
|
|
|
Its: |
General Partner |
|
|
|
|
|
|
|
|
By: |
/s/ Maurice Amsellem |
|
|
|
|
Maurice Amsellem |
|
|
|
|
Authorized Signatory |
|
|
CREDIT AND SECURITY AGREEMENT
dated as of June 14, 2017
by and among
ACCURAY INCORPORATED and TOMOTHERAPY INCORPORATED
each as a Borrower, and collectively as Borrowers,
and
MIDCAP FINANCIALFUNDING IV TRUST,
as Agent and as a Lender,
and
THE ADDITIONAL LENDERS
FROM TIME TO TIME PARTY HERETO
|
|
TABLE OF CONTENTS
|
|
|
Page |
|
|
| |
|
ARTICLE 1 - DEFINITIONS |
1 | |
|
|
| |
|
Section 1.1 |
Certain Defined Terms |
1 |
|
Section 1.2 |
Accounting Terms and Determinations |
|
|
Section 1.3 |
Other Definitional and Interpretive Provisions |
|
|
Section 1.4 |
Time is of the Essence |
|
|
|
|
|
|
ARTICLE 2 - LOANS AND LETTERS OF CREDIT |
| |
|
|
| |
|
Section 2.1 |
Loans |
|
|
Section 2.2 |
Interest, Interest Calculations and Certain Fees |
|
|
Section 2.3 |
Notes |
|
|
Section 2.4 |
Reserved |
|
|
Section 2.5 |
Letters of Credit and Letter of Credit Fees |
|
|
Section 2.6 |
General Provisions Regarding Payment; Loan Account |
|
|
Section 2.7 |
Maximum Interest |
|
|
Section 2.8 |
Taxes; Capital Adequacy |
|
|
Section 2.9 |
Appointment of Borrower Representative |
|
|
Section 2.10 |
Joint and Several Liability; Rights of Contribution; Subordination and Subrogation |
|
|
Section 2.11 |
Collections and Lockbox Account |
|
|
Section 2.12 |
Termination; Restriction on Termination |
|
|
|
|
|
|
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES |
| |
|
|
| |
|
Section 3.1 |
Existence and Power |
|
|
Section 3.2 |
Organization and Governmental Authorization; No Contravention |
|
|
Section 3.3 |
Binding Effect |
|
|
Section 3.4 |
Capitalization |
|
|
Section 3.5 |
Financial Information |
|
|
Section 3.6 |
Litigation |
|
|
Section 3.7 |
Ownership of Property |
|
|
Section 3.8 |
No Default |
|
|
Section 3.9 |
Labor Matters |
|
|
Section 3.10 |
Regulated Entities |
|
|
Section 3.11 |
Margin Regulations |
|
|
Section 3.12 |
Compliance With Laws; Anti-Terrorism Laws |
|
|
Section 3.13 |
Taxes |
|
|
Section 3.14 |
Compliance with ERISA |
|
|
Section 3.15 |
Consummation of Operative Documents; Brokers |
|
|
Section 3.16 |
Related Transactions |
|
|
Section 3.17 |
Material Contracts |
|
|
Section 3.18 |
Compliance with Environmental Requirements; No Hazardous Materials |
|
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
|
Section 3.19 |
Intellectual Property |
|
|
Section 3.20 |
Solvency |
|
|
Section 3.21 |
Full Disclosure |
|
|
Section 3.22 |
Reserved |
|
|
Section 3.23 |
Subsidiaries |
|
|
Section 3.24 |
Reserved |
|
|
Section 3.25 |
Regulatory Matters |
|
|
|
|
|
|
ARTICLE 4 - AFFIRMATIVE COVENANTS |
| |
|
|
| |
|
Section 4.1 |
Financial Statements and Other Reports |
|
|
Section 4.2 |
Payment and Performance of Obligations |
|
|
Section 4.3 |
Maintenance of Existence |
|
|
Section 4.4 |
Maintenance of Property; Insurance |
|
|
Section 4.5 |
Compliance with Laws and Material Contracts |
|
|
Section 4.6 |
Inspection of Property, Books and Records |
|
|
Section 4.7 |
Use of Proceeds |
|
|
Section 4.8 |
|
|
|
Section 4.9 |
Notices of Litigation and Defaults |
|
|
Section 4.10 |
Hazardous Materials; Remediation |
|
|
Section 4.11 |
Further Assurances |
|
|
Section 4.12 |
Power of Attorney |
|
|
Section 4.13 |
Borrowing Base Collateral Administration |
|
|
|
|
|
|
ARTICLE 5 - NEGATIVE COVENANTS |
| |
|
|
| |
|
Section 5.1 |
Debt; Contingent Obligations |
|
|
Section 5.2 |
Liens |
|
|
Section 5.3 |
Distributions |
|
|
Section 5.4 |
Restrictive Agreements |
|
|
Section 5.5 |
Payments and Modifications of Subordinated Debt |
|
|
Section 5.6 |
Consolidations, Mergers and Sales of Assets; Change in Control |
|
|
Section 5.7 |
Purchase of Assets, Investments |
|
|
Section 5.8 |
Transactions with Affiliates |
|
|
Section 5.9 |
Modification of Organizational Documents |
|
|
Section 5.10 |
Modification of Certain Agreements |
|
|
Section 5.11 |
Conduct of Business |
|
|
Section 5.12 |
Reserved |
|
|
Section 5.13 |
Limitation on Sale and Leaseback Transactions |
|
|
Section 5.14 |
Deposit Accounts and Securities Accounts; Payroll and Benefits Accounts |
|
|
Section 5.15 |
Compliance with Anti-Terrorism Laws |
|
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
|
Section 5.16 |
Transfers to Subsidiaries |
|
|
Section 5.17 |
Limitations on Morphormics, Inc. |
|
|
|
|
|
|
ARTICLE 6 - FINANCIAL COVENANTS |
| |
|
|
| |
|
Section 6.1 |
Additional Defined Terms |
|
|
Section 6.2 |
Fixed Charge Coverage Ratio |
|
|
Section 6.3 |
Minimum Net Revenue |
83 |
|
Section 6.4 |
Evidence of Compliance |
|
|
|
|
|
|
ARTICLE 7 - CONDITIONS |
| |
|
|
| |
|
Section 7.1 |
Conditions to Closing |
|
|
Section 7.2 |
Conditions to Each Loan, Support Agreement and Lender Letter of Credit |
|
|
Section 7.3 |
Searches |
|
|
Section 7.4 |
Post-Closing Requirements |
|
|
|
|
|
|
ARTICLE 8 - RESERVED |
| |
|
|
| |
|
ARTICLE 9 - SECURITY AGREEMENT |
| |
|
|
| |
|
Section 9.1 |
Generally |
|
|
Section 9.2 |
Representations and Warranties and Covenants Relating to Collateral |
|
|
|
|
|
|
ARTICLE 10 - EVENTS OF DEFAULT |
| |
|
|
| |
|
Section 10.1 |
Events of Default |
|
|
Section 10.2 |
Acceleration and Suspension or Termination of Revolving Loan Commitment |
|
|
Section 10.3 |
UCC Remedies |
|
|
Section 10.4 |
Cash Collateral |
|
|
Section 10.5 |
Default Rate of Interest |
|
|
Section 10.6 |
Setoff Rights |
|
|
Section 10.7 |
Application of Proceeds |
|
|
Section 10.8 |
Waivers |
|
|
Section 10.9 |
Injunctive Relief |
|
|
Section 10.10 |
Marshalling; Payments Set Aside |
|
|
Section 10.11 |
Cure Right |
|
|
|
|
|
|
ARTICLE 11 - AGENT |
| |
|
|
| |
|
Section 11.1 |
Appointment and Authorization |
|
|
Section 11.2 |
Agent and Affiliates |
|
|
Section 11.3 |
Action by Agent |
|
|
Section 11.4 |
Consultation with Experts |
|
|
Section 11.5 |
Liability of Agent |
|
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
|
Section 11.6 |
Indemnification |
|
|
Section 11.7 |
Right to Request and Act on Instructions |
|
|
Section 11.8 |
Credit Decision |
|
|
Section 11.9 |
Collateral Matters |
|
|
Section 11.10 |
Agency for Perfection |
|
|
Section 11.11 |
Notice of Default |
|
|
Section 11.12 |
Assignment by Agent; Resignation of Agent; Successor Agent |
|
|
Section 11.13 |
Payment and Sharing of Payment |
|
|
Section 11.14 |
Right to Perform, Preserve and Protect |
|
|
Section 11.15 |
Additional Titled Agents |
|
|
Section 11.16 |
Amendments and Waivers |
|
|
Section 11.17 |
Assignments and Participations |
|
|
Section 11.18 |
Funding and Settlement Provisions Applicable When Non-Funding Lenders Exist |
|
|
Section 11.19 |
Buy-Out Upon Refinancing |
|
|
|
|
|
|
ARTICLE 12 - MISCELLANEOUS |
| |
|
|
| |
|
Section 12.1 |
Survival |
|
|
Section 12.2 |
No Waivers |
|
|
Section 12.3 |
Notices |
|
|
Section 12.4 |
Severability |
|
|
Section 12.5 |
Headings |
|
|
Section 12.6 |
Confidentiality |
|
|
Section 12.7 |
Waiver of Consequential and Other Damages |
|
|
Section 12.8 |
GOVERNING LAW; SUBMISSION TO JURISDICTION |
|
|
Section 12.9 |
WAIVER OF JURY TRIAL |
|
|
Section 12.10 |
Publication; Advertisement |
|
|
Section 12.11 |
Counterparts; Integration |
|
|
Section 12.12 |
No Strict Construction |
|
|
Section 12.13 |
Lender Approvals |
|
|
Section 12.14 |
Expenses; Indemnity |
|
|
Section 12.15 |
Reserved |
|
|
Section 12.16 |
Reinstatement |
|
|
Section 12.17 |
Successors and Assigns |
|
|
Section 12.18 |
USA PATRIOT Act Notification |
|
|
Section 12.19 |
Cross Default and Cross Collateralization |
119 |
CREDIT AND SECURITY AGREEMENT
THIS CREDIT AND SECURITY AGREEMENT (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Agreement”) is dated as of June 14, 2017 by and among ACCURAY INCORPORATED, a Delaware corporation (“Accuray” or “Borrower Representative”), TOMOTHERAPY INCORPORATED, a Wisconsin corporation, and any additional borrower that may hereafter be added to this Agreement (collectively, “Other Borrowers” and, together with Borrower Representative, each individually as a “Borrower”, and collectively as “Borrowers”), MIDCAP FINANCIALFUNDING IV TRUST, a Delaware statutory trust (as successor by assignment from MidCap Financial Trust), individually as a Lender, and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender.
RECITALS
Borrowers have requested that Lenders make available to Borrowers the financing facilities as described herein. Lenders are willing to extend such credit to Borrowers under the terms and conditions herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Borrowers, Lenders and Agent agree as follows:
I. DEFINITIONS
A. Certain Defined Terms. The following terms have the following meanings:
“2018 Convertible Notes” means, collectively, (a) the 3.50% Convertible Senior Notes due February 1, 2018, issued pursuant to the Indenture, dated as of February 13, 2013, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $115 million (of which $44,700,00013,000,000 is outstanding as of the ClosingFirst Amendment Effective Date), and (b) the 3.50% Series A Convertible Senior Notes due February 1, 2018 issued pursuant to the Indenture, dated as of April 24, 2014, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of approximately $70.3 million (of which $70,300,00026,600,000 is outstanding as of the Closing Date) and (cFirst Amendment Effective Date).
“2018 Specified Amendment” has the meaning set forth in Section 5.5.
“2022 Convertible Notes” means, (a) the 3.75% Convertible Senior Notes due July 15, 2022, issued pursuant to the Indenture, dated as of August 7, 2017, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $85 million (of which $85,000,000 is outstanding as of the First Amendment Effective Date), and (b) any Permitted Refinancing Debt of (a) and/or (b).
“Acceleration Event” means the occurrence of an Event of Default (a) in respect of which Agent has declared all or any portion of the Obligations to be immediately due and payable
pursuant to Section 10.2, (b) pursuant to Section 10.1(a), and in respect of which Agent has suspended or terminated the Revolving Loan Commitment pursuant to Section 10.2, and/or (c) pursuant to either Section 10.1(e) and/or Section 10.1(f).
“Access Agreement Location” has the meaning set forth in Section 4.11(c).
“Account Debtor” means “account debtor”, as defined in Article 9 of the UCC, and any other obligor in respect of an Account.
“Accounts” means, collectively, (a) any right to payment of a monetary obligation, whether or not earned by performance and (b) without duplication, any “account” (as defined in the UCC), any accounts receivable (whether in the form of payments for services rendered or goods sold, rents, license fees or otherwise), any “health-care-insurance receivables” (as defined in the UCC), any “payment intangibles” (as defined in the UCC) and all other rights to payment and/or reimbursement of every kind and description, whether or not earned by performance.
“Additional Tranche” means an additional amount of Revolving Loan Commitment equal to $33,000,000 (it being acknowledged that multiple Additional Tranches are permitted pursuant to Section 2.1(c) in minimum amounts of $1,000,000 each for a total of up to $33,000,000). Acquisition” has the meaning set forth in the definition of “Permitted Acquisition”.
“Acquisition Consideration” has the meaning set forth in the definition of “Permitted Acquisition”.
“Affected Lender” has the meaning set forth in Section 11.17(c).
“Affiliate” means, with respect to any Person, (a) any Person that directly or indirectly controls such Person and (b) any Person which is controlled by or is under common control with such controlling Person.”
“Affiliated Credit Agreement” that certain Credit and Security Agreement (as the same may be amended, restated, supplemented or otherwise modified from time to time), dated as of the First Amendment Effective Date, among MidCap Financial Trust, as Agent and a lender, the other lenders party thereto and Borrowers pursuant to which such Agent and lenders have extended a term credit facility to Borrowers.
“Affiliated Financing Agent” means the “Agent” under and as defined in the Affiliated Credit Agreement.
“Affiliated Financing Documents” means the “Financing Documents” as defined in the Affiliated Credit Agreement.
“Affiliated Intercreditor Agreement” means that certain Intercreditor Agreement dated as of the date hereof between Agent and the Affiliated Financing Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Affiliated Obligations” means all “Obligations”, as such term is defined in the Affiliated Financing Documents.
“Agent” means MCF, in its capacity as administrative agent for itself and for Lenders hereunder, as such capacity is established in, and subject to the provisions of, Article 11, and the successors and assigns of MCF in such capacity.
“Anti-Terrorism Laws” means any Laws relating to terrorism or money laundering, including, without limitation, Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by OFAC.
“Applicable Margin” means with respect to Revolving Loans and all other Obligations four and one-half percent (4.50%).
“Approved Fund” means any (a) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the Ordinary Course of Business, or (b) any Person (other than a natural person) which temporarily warehouses loans for any Lender or any entity described in the preceding clause (a) and that, with respect to each of the preceding clauses (a) and (b), is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender, or (iii) a Person (other than a natural person) or an Affiliate of a Person (other than a natural person) that administers or manages a Lender. Notwithstanding the foregoing, in no event shall any Person that is an Excluded Person constitute an Approved Fund.
“Asset Disposition” means any sale, lease, license, transfer, assignment or other consensual disposition by any Credit Party of any asset.
“Assignment Agreement” means an assignment agreement in form and substance acceptable to Agent.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as the same may be amended, modified or supplemented from time to time, and any successor statute thereto.
“Base LIBOR Rate” means, for each Interest Period, the rate per annum, determined by Agent in accordance with its customary procedures, and utilizing such electronic or other quotation sources as it considers appropriate (rounded upwards, if necessary, to the next 1/100%), to be the rate at which Dollar deposits (for delivery on the first day of such Interest Period or, if such day is not a Business Day on the preceding Business Day) in the amount of $1,000,000 are offered to major banks in the London interbank market on or about 11:00 a.m. (Eastern time) two (2) Business Days prior to the first day of each calendar month, for a term comparable to such Interest Period, which determination shall be conclusive in the absence of manifest error.
“Base Rate” means the per annum rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate,” with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate; provided, however, that Agent may, upon prior written
notice to Borrower, choose a reasonably comparable index or source to use as the basis for the Base Rate.
“Blocked Person” means any Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, including any Person that is, or is owned 50% or more by any Person(s) that are, named on any OFAC Lists.
“Bona Fide Lending Affiliate” shall mean any bona fide debt fund, investment vehicle, regulated banking entity or non-regulated lending entity (in each case, other than a Person that is excluded pursuant to clause (a)(i) of the definition of Excluded Person) that is (a) primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and (b) managed, sponsored or advised by any person that is controlling, controlled by or under common control with a Competitor or Affiliate thereof, as applicable, but only to the extent that no personnel involved with the investment in such Competitor or Affiliate thereof, as applicable, (i) makes (or has the right to make or participate with others in making) investment decisions on behalf of such debt fund, investment vehicle, regulated banking entity or non-regulated lending entity or (ii) has access to any information (other than information that is publicly available) relating to the Credit Parties’ business.
“Borrower” and “Borrowers” mean the entity(ies) described in the first paragraph of this Agreement and each of their successors and permitted assigns.
“Borrower Representative” means Accuray, in its capacity as Borrower Representative pursuant to the provisions of Section 2.9, or any successor Borrower Representative selected by Borrowers and approved by Agent.
“Borrowing Base” means:
(a) the product of (i) eighty-five percent (85%) multiplied by (ii) the aggregate net amount at such time of the Eligible Domestic Accounts; plus
(b) the lesser of (i) $15,000,000 and (ii) the product of (x) eighty-five percent (85%) multiplied by (y) the aggregate net amount at such time of the Eligible Foreign Accounts; plus
(c) the lesser of (i) eighty-five percent (85%) multiplied by the Orderly Liquidation Value of the Eligible Inventory, or (ii) sixty-five percent (65%) multiplied by the value of the Eligible Inventory, valued at the lower of first-in-first-out cost or market cost, and after factoring in all rebates, discounts and other incentives or rewards associated with the purchase of the applicable Inventory; minus
(d) the amount of any reserves and/or adjustments provided for in this Agreement.
“Borrowing Base Certificate” means a certificate, duly executed by a Responsible Officer of Borrower Representative, appropriately completed and substantially in the form of Exhibit C hereto.
“Business Day” means any day except a Saturday, Sunday or other day on which either the New York Stock Exchange is closed, or on which commercial banks in Washington, DC and New York City are authorized by law to close.
“Capital Expenditures” means, for any period, the aggregate of all expenditures during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property or equipment” or similar items reflected in the financial statements of Accuray and its Consolidated Subsidiaries for such period.
“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six (6) months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Moody’s or A-1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; (f) marketable tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within 270 days from the date of acquisition thereof; (g) in the case of any Foreign Subsidiary, cash and cash equivalents that are substantially equivalent in such jurisdiction to those described in clauses (a) through (f) above in respect of each country that is a member of the Organization for Economic Co-operation and Development, and (h) any other security meeting the requirements set forth in Borrower Representative’s Investment Policy as provided to Agent prior to the Closing Date.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. § 9601 et seq., as the same may be amended from time to time.
“CFC” means a “controlled foreign corporation” as defined in Section 957 of the Code.
“Change in Control” means any of the following events: (a) any Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of, or shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of or control over, voting stock of Accuray (or other securities convertible into such voting stock) representing 40% or more of the combined voting power of all voting stock of Accuray or (b) Accuray ceases to own, directly or indirectly, 100% (or such lesser portion as may be owned by Accuray as of the date hereof) of the capital stock of any Borrower (with the exception of any Borrower permitted to be sold, dissolved or merged to the extent otherwise permitted by this Agreement so long as all assets of such Borrower have been excluded from the Borrowing Base); or (c) the occurrence of any “Change of Control”, “Change in Control”, or terms of similar import under any document or instrument
governing or relating to Debt of or equity in such Person having a principal amount in excess of $10,000,000. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934.
“Chattel Paper” means “chattel paper”, as defined in Article 9 of the UCC.
“Chicago Premises” means the location located at 11601 W. Touhy Avenue Suite 893, Unit 2, Chicago, IL 60666 at which Collateral is stored.
“Closing Date” means the date of this Agreement.June 14, 2017.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means all property, now existing or hereafter acquired, mortgaged or pledged to, or purported to be subjected to a Lien in favor of, Agent, for the benefit of Agent and Lenders, pursuant to this Agreement and the Security Documents, including all of the property described in Schedule 9.1 hereto; provided that the Collateral shall not include any Excluded Property.
“Collections Account Post-Closing Period” means the period beginning on the Closing Date and ending on the earlier of the date that is thirty (30) days after the Closing Date (or such later date as Agent may agree in writing).
“Commitment Annex” means Annex A to this Agreement.
“Commitment Expiry Date” means the date that is fourfive (45) years following the ClosingFirst Amendment Effective Date (the “Stated Commitment Expiry Date”); provided, however, that if, as of the Early Maturity Date with respect to any series of notes included as Convertible Notes Debt (collectively, “Convertible Notes”), a Convertible Notes Event with respect to such series of Convertible Notes has not occurred, then the Commitment Expiry Date shall be the Early Maturity Date with respect to such series of Convertible Notes (the occurrence of the event described in this proviso, an “Early Maturity Event”); provided further, however, that if a Convertible Notes Event with respect to all of such series of Convertible Notes has not occurred prior to the Early Maturity Date with respect to such series of Convertible Notes, but as of such Early Maturity Date with respect to such series of Convertible Notes the Liquidity Condition is satisfied with respect to the portion of such series that is not subject to a Convertible Notes Event, then (a) an Early Maturity Event shall not occur and (b) the Commitment Expiry Date shall continue to be the Stated Commitment Expiry Date unless, as of any time (the date on which such time occurs, the “Accelerated Commitment Expiry Date”) on or after the Early Maturity Date with respect to such series of Convertible Notes when a Convertible Notes Event with respect to such series of Convertible Notes has not occurred, (y) the Liquidity Condition with respect to such series of Convertible Notes is not satisfied, in which event the Commitment Expiry Date shall be the Accelerated Commitment Expiry Date or (z) an Early Maturity Event occurs with respect to any other series of Convertible Notes and Borrowers have not caused the Commitment Expiry Date to remain the Stated MaturityCommitment Expiry Date in accordance with the second proviso of this definition.
“Competitor” means any Person that is an operating company directly and primarily engaged in the business of developing, manufacturing and servicing radiation oncology devices.
“Compliance Certificate” means a certificate, duly executed by a Responsible Officer of Borrower Representative, appropriately completed and substantially in the form of Exhibit B hereto.
“Consolidated Subsidiary” means, at any date, any Subsidiary the accounts of which would be consolidated with those of “parent” Borrower (or any other Person, as the context may require hereunder) in its consolidated financial statements if such statements were prepared as of such date.
“Contingent Obligation” means, with respect to any Person, any direct or indirect liability of such Person: (a) with respect to any Debt of another Person (a “Third Party Obligation”) if the purpose or intent of such Person incurring such liability, or the effect thereof, is to provide assurance to the obligee of such Third Party Obligation that such Third Party Obligation will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Third Party Obligation will be protected, in whole or in part, against loss with respect thereto; (b) with respect to any undrawn portion of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for the reimbursement of any drawing; (c) to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement; or (d) for any obligations of another Person pursuant to any Guarantee or pursuant to any agreement to purchase, repurchase or otherwise acquire any obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to preserve the solvency, financial condition or level of income of another Person. The amount of any Contingent Obligation shall be equal to the amount of the obligation so Guaranteed or otherwise supported or, if not a fixed and determinable amount, the maximum amount so Guaranteed or otherwise supported.
“Controlled Group” means all members of any group of corporations and all members of a group of trades or businesses (whether or not incorporated) under common control which, together with any Borrower, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.
“Convertible Notes” has the meaning set forth in the definition of “Commitment Expiry Date”.
“Convertible Notes Debt” has the meaning set forth in the definition of “Permitted Debt”.
“Convertible Notes Event” means, with respect to all or a part of any series of Convertible Notes, any of the following: (a) the redemption, repayment, defeasance or other discharge of all or a part of such series of Convertible Notes (including, in each case, all accrued but unpaid interest, fees and other amounts in respect thereof) in accordance with the terms of the applicable Indenture; (b) the amendment to or other modification of such series of Convertible Notes causing the stated maturity date of such series of Convertible Notes to be extended to a date that is at least 91 days after the Commitment Expiry Date; and/or (c) solely with respect to the 2022 Convertible Notes, the refinancing of all or a part of such series of Convertible Notes with, or the exchange of all or part of such series of Convertible Notes for, Debt having a maturity date that is at least 91 days after the Stated Commitment Expiry Date and otherwise satisfying the definition of Permitted Refinancing Debt; provided that, (x) a Convertible Notes Event with respect to less than all of any
series of Convertible Notes shall only apply to that portion of such series with respect to which such Convertible Notes Event occurred and (y) in the case of clauses (b) and (c) of this definition, such series of Convertible Notes as so amended, or any Permitted Refinancing Debt in respect thereof, does not require (i) any amortization prior to the date that is 91 days after the Stated Commitment Expiry Date or (ii) any mandatory prepayment or redemption at the option of the holders thereof (except for redemptions in respect of asset sales and changes in control on terms not less favorable to Borrower Representative than the terms of such series of Convertible Notes as in effect on the date hereof and other conversion provisions) prior to the date that is 91 days after the Stated Commitment Expiry Date.
“Credit Exposure” means, at any time, any portion of the Revolving Loan Commitment and of any other Obligations that remains outstanding, or any Reimbursement Obligation that remains unpaid or any Letter of Credit or Support Agreement not supported with cash collateral required by this Agreement that remains outstanding; provided, however, that no Credit Exposure shall be deemed to exist solely due to the existence of contingent indemnification liability, absent the assertion of a claim, or the known existence of a claim reasonably likely to be asserted, with respect thereto.
“Credit Party” means any Guarantor under a Guarantee of the Obligations or any part thereof, any Borrower and any other Person (other than Agent, a Lender or a participant of a Lender), whether now existing or hereafter acquired or formed, that becomes obligated as a borrower, guarantor, surety, indemnitor, pledgor, assignor or other obligor under any Financing Document; and “Credit Parties” means all such Persons, collectively.
“Cure Amount” has the meaning set forth in Section 10.11(a).
“Cure Notice Deadline” has the meaning set forth in Section 10.11(a).
“Cure Period” has the meaning set forth in Section 10.11.10.11(a).
“Cure Right” has the meaning set forth in Section 10.11.10.11(a).
“Cure Right Fiscal Quarter” has the meaning set forth in Section 10.11(b).
“Debt” of a Person means at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except (i) trade accounts payable arising in the Ordinary Course of Business and paid within 120 days of when due, (ii) current non-trade payables arising and paid on a timely basis in the Ordinary Course of Business, and (iii) liabilities associated with customary prepayments and deposits, (d) all capital leases of such Person, (e) all non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument, (f) all Disqualified Equity Interests, (g) all obligations secured by a Lien on any asset of such Person, whether or not such obligation is otherwise an obligation of such Person, (h) “earnouts”, purchase price adjustments, profit sharing arrangements, deferred purchase money amounts and similar payment obligations or continuing obligations of any nature of such Person arising out of purchase and sale contracts, in each case only to the extent such obligation has become a liability on the balance sheet of such person in
accordance with GAAP, (i) all Debt of others Guaranteed by such Person, (j) off-balance sheet liabilities and/or Pension Plan or Multiemployer Plan liabilities of such Person, (k) obligations arising under non-compete agreements, and (l) obligations arising under bonus, deferred compensation, incentive compensation or similar arrangements, other than those arising in the Ordinary Course of Business. Without duplication of any of the foregoing, Debt of Borrowers shall include any and all Loans and Letter of Credit Liabilities.
“Default” means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulted Lender” means, so long as such failure shall remain in existence and uncured, any Lender which shall have failed to make any Loan or other credit accommodation, disbursement, settlement or reimbursement required pursuant to the terms of any Financing Document.
“Deficiency Amount” has the meaning set forth in Section 2.10(e).
“Deposit Account” means a “deposit account” (as defined in Article 9 of the UCC), an investment account, or other account in which funds are held or invested for credit to or for the benefit of any Borrower.
“Deposit Account Control Agreement” means an agreement, in form and substance reasonably satisfactory to Agent, among Agent, any Borrower and each financial institution in which such Borrower maintains a Deposit Account, which agreement provides that (a) such financial institution shall comply with instructions originated by Agent directing disposition of the funds in such Deposit Account without further consent by the applicable Borrower, and (b) such financial institution shall agree that it shall have no Lien on, or right of setoff or recoupment against, such Deposit Account or the contents thereof, other than in respect of usual and customary service fees and returned items for which Agent has been given value, in each such case expressly consented to by Agent (acting reasonably), and containing such other terms and conditions as Agent may reasonably require, including as to any such agreement pertaining to any Lockbox Account, providing that such financial institution shall wire, or otherwise transfer, in immediately available funds, on a daily basis to the Payment Account all funds received or deposited into such Lockbox or Lockbox Account.
“Device” means any instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is (a) recognized in the official National Formulary, or the United States Pharmacopeia, or any supplement to them, (b) intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals, (c) intended to affect the structure or any function of the body of man or other animals; and which does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes, or (d) any product otherwise classified as a “device” under the FD&C Act.
“Device Approval Application” means, with respect to any Device, a premarket approval application (PMA) submitted under Section 515 of the FD&C Act (21 U.S.C. § 360e), a de novo
request submitted under Section 513(f) of the FD&C Act (21 U.S.C. § 360c(f)), or premarket notification submitted under Section 510(k) of the FD&C Act (21 U.S.C. § 360(k)), or any corresponding foreign application.
“Disqualified Equity Interest” means, with respect to any Person, any equity interest in such Person that by its terms (or by the terms of any security or other equity interest into which it is convertible or for which it is exchangeable, either mandatorily or at the option of anyone other than such Person), or upon the happening of any date certain, event or other condition (except, in the case of the following clauses (a), (b) and (c), as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale shall be subject to the prior payment in full of all Loans and all other Obligations (other than with respect to contingent indemnification obligations for which no claim has been made), and the termination of the Revolving Loan Commitment): (a) matures or is mandatorily redeemable (other than solely for equity interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such equity interests), whether pursuant to a sinking fund obligation or otherwise; (b) is convertible or exchangeable at the option of the holder thereof for Debt or equity interests (other than solely for equity interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such equity interests); (c) is or may be redeemable (other than solely for equity interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such equity interests) or is or may be required to be repurchased by such Person or any of its Affiliates, in whole or in part, at the option of the holder thereof; (d) requires the payment of any cash dividend or any other scheduled cash payment constituting a return of capital; or (e) is or becomes convertible into or exchangeable for Debt or any other equity interests that would constitute Disqualified Equity Interests; in each case, on or prior to the date that occurs 91 days after the Stated Commitment Expiry Date, provided that if such equity interests are issued pursuant to a plan to, or for the benefit of, future, current or former employees, directors, officers, member of management or consultants of any Borrower or any Subsidiary, such equity interests shall not constitute “Disqualified Equity Interests” solely because they may be permitted to be repurchased by such Borrower or such Subsidiary in order to satisfy applicable statutory or regulatory obligations or as a result of any employee’s, director’s, officer’s, management member’s or consultant’s termination of employment or service (as applicable), death or disability.
“Distribution” means as to any Person (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any equity interest in such Person (except those payable solely in its equity interests to the extent not Disqualified Equity Interests), (b) any payment by such Person on account of (i) the purchase, redemption, retirement, defeasance, surrender, cancellation, termination or acquisition of any equity interests in such Person or any claim respecting the purchase or sale of any equity interest in such Person, or (ii) any option, warrant or other right to acquire any equity interests in such Person, (c) any management fees, salaries or other fees or compensation to any Person holding an equity interest in a Borrower or a Subsidiary of a Borrower (other than (i) payments of salaries to individuals, (ii) directors’ fees, and (iii) advances and reimbursements to employees or directors, all in the Ordinary Course of Business), an Affiliate of a Borrower or an Affiliate of any Subsidiary of a Borrower or (d) repayments of or debt service on loans or other indebtedness held by any Person holding an equity interest in a Borrower or a Subsidiary of a Borrower unless permitted under and made pursuant to a Subordination Agreement applicable to such loans or other indebtedness. The parties hereto
agree, for the avoidance of doubt but without limiting in any way the terms of this Agreement that may restrict such payments, that any payments with respect to the Convertible Notes Debt do not constitute a Distribution.
“Dollars” or “$” means the lawful currency of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.
“Early Maturity Date” means, with respect to any series of 2018 Convertible Notes or 2022 Convertible Notes, the date that is 91 days prior to the stated maturity date for such series of 2018 Convertible Notes or 2022 Convertible Notes set forth in the applicable Indenture.
“EBITDA” has the meaning provided in the Compliance Certificate.
“Eligible Accounts” means, collectively, the Eligible Domestic Accounts and Eligible Foreign Accounts.
“Eligible Domestic Account” means, subject to the criteria below, an account receivable of a Borrower, which (i) was generated in the Ordinary Course of Business, (ii) was generated originally in the name of a Borrower and not acquired via assignment or otherwise, (iii) is not an Eligible Foreign Account, and (iv) Agent, in its good faith credit judgment and discretion, deems to be an Eligible Domestic Account. The net amount of an Eligible Domestic Account at any time shall be (a) the face amount of such Eligible Domestic Account as originally billed minus all cash collections and other proceeds of such Account received from or on behalf of the Account Debtor thereunder as of such date and any and all returns, rebates, discounts (which may, at Agent’s option, be calculated on shortest terms), credits, allowances or excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time, and (b) adjusted by applying percentages (known as “Domestic Account liquidity factors”) by payor and/or payor class based upon the applicable Borrower’s actual recent collection history for each such payor and/or payor class in a manner consistent with Agent’s underwriting practices and procedures. Such Domestic Account liquidity factors may be adjusted by Agent from time to time as warranted by Agent’s underwriting practices and procedures and using Agent’s good faith credit judgment. Without limiting the generality of the foregoing, no Account shall be an Eligible Domestic Account if:
(a) the Account remains unpaid more than one hundred twenty (120) days past the claim or invoice date;
(b) the Account is subject to any defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, or adjustment of any kind (but only to the extent of such defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, or adjustment), or the applicable Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process;
(c) if the Account arises from the sale of goods, any part of any goods the sale of which has given rise to the Account has been returned, rejected, lost, or damaged (but only to the extent that such goods have been so returned, rejected, lost or damaged);
(d) if the Account arises from the sale of goods, the sale was not an absolute, bona fide sale, or the sale was made on consignment or on approval or on a sale-or-return or bill-and-hold or progress billing basis, or the sale was made subject to any other repurchase or return agreement, or the goods have not been shipped to the Account Debtor or its designee or the sale was not made in compliance with applicable Laws;
(e) if the Account arises from the performance of services, the services have not actually been performed or the services were undertaken in violation of any Law or the Account represents a progress billing for which services have not been fully and completely rendered;
(f) the Account is subject to a Lien other than a Permitted Lien, or Agent does not have a first priority, perfected Lien on such Account;
(g) the Account is evidenced by Chattel Paper or an Instrument (other than checks and other ordinary course payment instruments) of any kind, or has been reduced to judgment, unless such Chattel Paper or Instrument has been delivered to Agent;
(h) the Account Debtor is an Affiliate or Subsidiary of a Credit Party, or the Account Debtor holds any Debt of a Credit Party;
(i) more than fifty percent (50%) of the aggregate balance of all Accounts owing from the Account Debtor obligated on the Account are ineligible under subclause (a) of this definition (in which case all Accounts from such Account Debtor shall be ineligible);
(j) [Reserved];
(k) the total unpaid Accounts of the Account Debtor obligated on the Account exceed thirty percent (30%) of the net amount of all Eligible Accounts owing from all Account Debtors (but only the amount of the Accounts of such Account Debtor exceeding such thirty percent (30%) limitation shall be considered ineligible);
(l) any covenant, representation or warranty contained in the Financing Documents with respect to such Account has been breached in any material respect;
(m) the Account is unbilled or has not been invoiced to the Account Debtor in accordance with the procedures and requirements of the applicable Account Debtor;
(n) the Account is an obligation of a Governmental Account Debtor, unless Agent has agreed to the contrary in writing and Agent has received from the Account Debtor the acknowledgement of Agent’s notice of assignment of such obligation pursuant to this Agreement;
(o) the Account is an obligation of an Account Debtor that has suspended business, made a general assignment for the benefit of creditors, is unable to pay its debts as they
become due or as to which a petition has been filed (voluntary or involuntary) under any law relating to bankruptcy, insolvency, reorganization or relief of debtors;
(p) the Account Debtor has its principal place of business or executive office outside the United States;
(q) the Account is payable in a currency other than United States dollars;
(r) the Account Debtor is an individual;
(s) at all times following the Collections Account Post-Closing Period, the Borrower owning such Account has not signed and delivered to Agent notices, in the form requested by Agent, directing the Account Debtors to make payment to the applicable Lockbox Account;
(t) the Account includes late charges or finance charges (but only such portion of such Account shall be ineligible);
(u) the Account arises out of the sale of any Inventory upon which any other Person holds a Lien (other than a Permitted Lien ); or
(v) the Account or Account Debtor fails to meet such other commercially reasonable specifications and requirements which may from time to time be established by Agent in its good faith credit judgment and discretion and based, in each case, on the results of borrowing base audits and customary related due diligence conducted by Agent from time to time after the Closing Date.
“Eligible Assignee” means any Person, other than an Excluded Person, that is (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by Agent; provided, however, that notwithstanding the foregoing, (x) “Eligible Assignee” shall not include any Borrower or any of a Borrower’s Affiliates, and (y) no proposed assignee intending to assume all or any portion of the Revolving Loan Commitment shall be an Eligible Assignee unless such proposed assignee either already holds a portion of such Revolving Loan Commitment, or has been approved as an Eligible Assignee by Agent.
“Eligible Foreign Account” means, subject to the criteria below, an account receivable of a Borrower, which (i) was generated in the Ordinary Course of Business, (ii) was generated originally in the name of a Borrower and not acquired via assignment or otherwise, (iii) is not an Eligible Domestic Account, and (iv) Agent, in its good faith credit judgment and discretion, deems to be an Eligible Foreign Account. Accounts denominated in foreign currencies shall be converted to US Dollars upon delivery by Borrowers of the current Borrowing Base Certificate at the then-current market rate approved by Agent in its reasonable discretion. The net amount of an Eligible Foreign Account at any time shall be (a) the face amount of such Eligible Foreign Account as originally billed minus all cash collections and other proceeds of such Account received from or on behalf of the Account Debtor thereunder as of such date and any and all returns, rebates, discounts (which may, at Agent’s option, be calculated on shortest terms), credits, allowances or excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time, and (b) adjusted by applying
percentages (known as “Foreign Account liquidity factors”) by payor and/or payor class based upon the applicable Borrower’s actual recent collection history for each such payor and/or payor class in a manner consistent with Agent’s underwriting practices and procedures. Such Foreign Account liquidity factors may be adjusted by Agent from time to time as warranted by Agent’s underwriting practices and procedures and using Agent’s good faith credit judgment. Without limiting the generality of the foregoing, no Account shall be an Eligible Foreign Account if:
(a) the Account remains unpaid more than one hundred twenty (120) days past the claim or invoice date;
(b) the Account is subject to any defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, or adjustment of any kind (but only to the extent of such defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, or adjustment), or the applicable Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process;
(c) if the Account arises from the sale of goods, any part of any goods the sale of which has given rise to the Account has been returned, rejected, lost, or damaged (but only to the extent that such goods have been so returned, rejected, lost or damaged);
(d) if the Account arises from the sale of goods, the sale was not an absolute, bona fide sale, or the sale was made on consignment or on approval or on a sale-or-return or bill-and-hold or progress billing basis, or the sale was made subject to any other repurchase or return agreement, or the goods have not been shipped to the Account Debtor or its designee or the sale was not made in compliance with applicable Laws;
(e) if the Account arises from the performance of services, the services have not actually been performed or the services were undertaken in violation of any Law or the Account represents a progress billing for which services have not been fully and completely rendered;
(f) the Account is subject to a Lien other than a Permitted Lien, or Agent does not have a first priority, perfected Lien on such Account;
(g) the Account is evidenced by Chattel Paper or an Instrument (other than checks and other ordinary course payment instruments) of any kind, or has been reduced to judgment, unless such Chattel Paper or Instrument has been delivered to Agent;
(h) the Account Debtor is an Affiliate or Subsidiary of a Credit Party, or the Account Debtor holds any Debt of a Credit Party;
(i) more than fifty percent (50%) of the aggregate balance of all Accounts owing from the Account Debtor obligated on the Account are ineligible under subclause (a) of this definition (in which case all Accounts from such Account Debtor shall be ineligible);
(j) [Reserved];
(k) the total unpaid Accounts of the Account Debtor obligated on the Account exceed thirty percent (30%) of the net amount of all Eligible Accounts owing from all Account Debtors
(but only the amount of the Accounts of such Account Debtor exceeding such thirty percent (30%) limitation shall be considered ineligible);
(l) any covenant, representation or warranty contained in the Financing Documents with respect to such Account has been breached in any material respect;
(m) the Account is unbilled or has not been invoiced to the Account Debtor in accordance with the procedures and requirements of the applicable Account Debtor;
(n) the Account is an obligation of a Governmental Account Debtor, unless Agent has agreed to the contrary in writing and Agent has received from the Account Debtor the acknowledgement of Agent’s notice of assignment of such obligation pursuant to this Agreement;
(o) the Account is an obligation of an Account Debtor that has suspended business, made a general assignment for the benefit of creditors, is unable to pay its debts as they become due or as to which a petition has been filed (voluntary or involuntary) under any law relating to bankruptcy, insolvency, reorganization or relief of debtors;
(p) [Reserved];
(q) [Reserved];
(r) the Account Debtor is an individual;
(s) at all times following the Collections Account Post-Closing Period, the Borrower owning such Account has not signed and delivered to Agent notices, in the form requested by Agent, directing the Account Debtors to make payment to the applicable Lockbox Account;
(t) the Account includes late charges or finance charges (but only such portion of such Account shall be ineligible);
(u) the Account arises out of the sale of any Inventory upon which any other Person holds a Lien (other than a Permitted Lien); or
(v) the Account or Account Debtor fails to meet such other commercially reasonable specifications and requirements which may from time to time be established by Agent in its good faith credit judgment and discretion and based, in each case, on the results of borrowing base audits and customary related due diligence conducted by Agent from time to time after the Closing Date.
“Eligible Inventory” means Inventory owned by a Borrower and acquired and dispensed by such Borrower in the Ordinary Course of Business that Agent, in its good faith credit judgment and discretion, deems to be Eligible Inventory. Without limiting the generality of the foregoing, no Inventory shall be Eligible Inventory if:
(a) such Inventory is not owned by a Borrower free and clear of all Liens and rights of any other Person (other than Agent and other than Permitted Liens) (including the rights of a purchaser that has made progress payments and the rights of a surety that has issued a bond to assure such Borrower’s performance with respect to that Inventory);
(b) such Inventory is placed on consignment or is in transit, in each case, as reasonably determined by Borrower Representative;
(c) such Inventory is covered by a negotiable document of title, unless such document has been delivered to Agent with all necessary endorsements, free and clear of all Liens except those in favor of Agent;
(d) such Inventory is excess, obsolete, unsalable, shopworn, seconds, damaged, unfit for sale, unfit for further processing, is of substandard quality or is not of good and merchantable quality, free from any defects, in each case, as reasonably determined in accordance with GAAP (to the extent applicable);
(e) such Inventory consists of marketing materials, display items or packing or shipping materials, manufacturing supplies (other than Raw Material Inventory);
(f) such Inventory is not subject to a first priority Lien in favor of Agent;
(g) such Inventory consists of goods that can be transported or sold only with licenses that are not readily available or of any substances defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic substance, or similar term, by any Environmental Law or any Governmental Authority applicable to Borrowers or their business, operations or assets;
(h) such Inventory is not covered by casualty insurance acceptable to Agent;
(i) any covenant, representation or warranty contained in the Financing Documents with respect to such Inventory has been breached in any material respect;
(j) such Inventory is located (i) outside of the continental United States or (ii) on premises where the aggregate amount of all Inventory (valued at cost) of Borrowers located thereon is less than $150,000;
(k) without limiting clause (l) below, such Inventory is located on premises containing an excess of $150,000 of Inventory (valued at cost) with respect to which Agent has not received a landlord, warehouseman, bailee or mortgagee letter reasonably acceptable in form and substance to Agent unless Agent has instituted a Rent and Charges Reserve for such premises;
(l) such Inventory is located at an Access Agreement Location with respect to which Agent has not received a landlord, warehouseman, bailee or mortgagee letter reasonably acceptable in form and substance to Agent within the applicable time period set forth in Section 4.11(c);
(m) such Inventory consists of (i) discontinued items, (ii) slow-moving or excess items held in inventory, or (iii) used items held for resale;
(n) other than in the case of Raw Material Inventory, such Inventory does not consist of finished goods;
(o) such Inventory does not meet all standards imposed by any Governmental Authority in all material respects, including with respect to its production, acquisition or importation (as the case may be);
(p) such Inventory is held for rental or lease by or on behalf of Borrowers;
(q) such Inventory is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third parties, which agreement restricts the ability of Agent or any Lender to sell or otherwise dispose of such Inventory; or
(r) such Inventory fails to meet such other commercially reasonable specifications and requirements which may from time to time be established by Agent in its good faith credit judgment and based, in each case, on the results of borrowing base audits and customary related due diligence conducted by Agent from time to time after the Closing Date. Agent and Borrowers agree that Inventory shall be subject to periodic appraisal by Agent and that valuation of Inventory shall be subject to adjustment pursuant to the results of such appraisal. Notwithstanding the foregoing, the valuation of Inventory shall be subject to any legal limitations on sale and transfer of such Inventory.
“Elk Grove Village Premises” means the location located at 1200 Kirk Street, Elk Grove Village, IL 60007 at which Collateral is stored.
“Environmental Laws” means any Laws pertaining to the protection of environment, natural resources, pollution, or health and human safety (in relation to exposure to Hazardous Materials), that apply to any Borrower, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 5101 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), the Residential Lead-Based Paint Hazard Reduction Act (42 U.S.C. § 4851 et seq.), any analogous state or local laws, any amendments thereto, and the regulations promulgated pursuant to said laws, together with all amendments from time to time to any of the foregoing and judicial interpretations thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended, modified or supplemented from time to time, and any successor statute thereto, and any and all rules or regulations promulgated from time to time thereunder.
“ERISA Plan” means any “employee benefit plan”, as such term is defined in Section 3(3) of ERISA (other than a Multiemployer Plan), which any Borrower maintains, sponsors or contributes to, or, in the case of an employee benefit plan which is subject to Section 412 of the Code or Title IV of ERISA, to which any Borrower or any member of the Controlled Group may have any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five (5) years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
“Event of Default” has the meaning set forth in Section 10.1.
“Excluded Account” means (a) any Deposit Account specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Credit Party’s employees and (b) any Deposit Accounts holding deposits at any time in an aggregate amount not in excess of $1,000,000 for any one Deposit Account and $3,000,000 in the aggregate for all such Deposit Accounts.
“Excluded Perfection Assets” has the meaning set forth in Section 9.2(g).
“Excluded Person” means any Person that is (a) designated by Borrower Representative, by written notice delivered to Agent on or prior to the date hereof, as a (i) disqualified institution or (ii) Competitor or (b) clearly identifiable, solely on the basis of such Person’s name, as an Affiliate of any Person referred to in clause (a) above; provided, however, Excluded Person shall (A) exclude any Person that Borrower Representative has designated as no longer being a Excluded Person by written notice delivered to Agent from time to time and (B) include any Person that is added as a Competitor, pursuant to a written replacement list of Competitors that are Excluded Persons, that is delivered by Borrower Representative to Agent not more than once per year. Such replacement list shall become ninety (90) days after the date that such written supplement is delivered to Agent, but which shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Loans and/or Revolving Loan Commitment as permitted herein. In no event shall a Bona Fide Lending Affiliate be an Excluded Person unless such Bona Fide Lending Affiliate is identified under clause (a)(i) above. Notwithstanding any other provision of this Agreement, there shall be no Excluded Persons other than Competitors if an Event of Default has occurred and is continuing.
“Excluded Property” means (a) more than 65% of the voting stock of each Excluded Subsidiary that is a Foreign Subsidiary or FSHCO directly held by any Borrower; (b) any lease, license, contract, permit, letter of credit, instrument, or agreement to which a Borrower is a party or any of its rights or interests thereunder if and to the extent that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Borrower therein or (ii) result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, permit, agreement or other property right (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law); provided, however, that such security interest or lien (x) shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied, (y) to the extent severable, shall attach immediately to each term of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above and (z) shall attach immediately to each such lease, license, contract, property rights or agreement to which the Account Debtor or the Borrower’s counterparty has consented to such attachment; (c) any asset, including any asset that is the subject of any Permitted Debt contemplated by subpart (c) of the definition thereof, the grant of a security interest in which would result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Credit Party therein or (ii) result in a breach or termination pursuant to the terms of, or a default under, any contract relating to such asset (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant
jurisdiction or any other applicable law); provided, however, that such security interest or lien (x) shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied, (y) to the extent severable, shall attach immediately to each term of such asset that does not result in any of the consequences specified in (i) or (ii) above and (z) shall attach immediately to each such asset to which the Account Debtor or the Borrower’s counterparty has consented to such attachment; (d) any real estate asset that (i) is a leasehold interest, or (ii) is not Material Real Property; (e) any assets located outside the United States (other than with respect to the equity interests of any direct Foreign Subsidiary of a Borrower) that require action under the law of any jurisdiction other than the United States to create or perfect a security interest in such assets under such jurisdiction other than the United States, including any Intellectual Property registered in any jurisdiction other than the United States, if the creation of pledges of, or security interests in, any such property or assets would reasonably be expected to result in material adverse income tax consequences to Borrower Representative and its Subsidiaries, as reasonably determined by Agent; (f) any motor vehicle, airplane or any other asset subject to a certificate of title to the extent a Lien therein cannot be perfected by the filing of a UCC financing statement; and (g) any “intent-to-use” trademark or service mark application for which an amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. § 1051(d), respectively, or if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or examined and accepted, respectively by the United States Patent and Trademark Office.
“Excluded Subsidiary” means (a) any Foreign Subsidiary, (b) any FSHCO, (c) any Subsidiary that is not a direct or indirect Wholly-Owned Subsidiary of Accuray, (d) any Subsidiary that is prohibited or restricted by applicable Law as in effect on the Closing Date (or, in the case of any newly acquired Subsidiary, in existence at the time of acquisition) from guaranteeing the Obligations or if guaranteeing the Obligations would require any governmental (including regulatory) consent, approval, license or authorization in order to provide such guarantee that has not been obtained, (e) a Subsidiary with respect to which, in the reasonable judgment of Agent, the burden or cost of providing a Guarantee shall be excessive in view of the benefits to be obtained by Lenders therefrom and (f) subject to Section 5.17, Morphormics Inc.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to Agent, any Lender or required to be withheld or deducted from a payment to Agent or any Lender, (a) Taxes imposed on or measured by such Agent’s or Lender’s (as applicable) net income (however denominated), franchise Taxes and branch profit Taxes, in each case, imposed by the jurisdiction (or any political subdivision thereof) under which Agent or such Lender is organized, has its principal office or conducts business with respect to entering into this Agreement or taking any action hereunder, (b) Other Connection Taxes, (c) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Loans pursuant to a Law in effect on the date on which (i) such Lender becomes a party to this Agreement other than as a result of an assignment requested by a Credit Party under the terms hereof or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.8, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment or to such Lender immediately before it changed its lending office, (d) Taxes attributable to Agent or any Lender’s failure to comply with Section 2.8(c)(i) and (e) any withholding Taxes imposed under FATCA.
“Event of Default” has the meaning set forth in Section 10.1.
“FATCA” means (i) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to the implementation of Section 1471(b)(1) of the Code, and any intergovernmental agreement between the United States Internal Revenue Service, the United States Government and any governmental or taxation authority under any other jurisdiction which agreement’s principal purposes deals with the implementation of such sections of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.
“FDA” means the United States Food and Drug Administration and any successor agency or entity thereof or any analogous agency or entity in any other jurisdiction.
“FD&C Act” means the United States Food, Drug and Cosmetic Act (21 U.S.C. 321 et seq., including, without limitation, the Electronic Product Radiation Control provisions and Medical Device provisions thereof (or any successor thereto), as amended from time to time, and the rules, regulations, guidelines, guidance documents and compliance policy guides issued or promulgated thereunder, or any analogous Requirementsrequirements of Law in any other jurisdiction, including but not limited to the various states of the United States.
“Federal Funds Rate” means, for any day, the rate of interest per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided, however, that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day, and (b) if no such rate is so published on such next preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Agent on such day on such transactions as determined by Agent.
“Fee Letter” means that certain letter agreement between Agent and Borrowers relating to fees payable to Agent, for its own account, in connection with the execution of this Agreement.
“Financial Statements” means (a) the audited consolidated balance sheet of Accuray and its Consolidated Subsidiaries for the fiscal year ended June 30, 2016 and the related consolidated statement of operations, shareholders’ equity and cash flows for the fiscal year then ended and (b) the unaudited consolidated balance sheet of Accuray and its Consolidated Subsidiaries for the nine (9) months ended March 31, 2017 and the related consolidated statement of operations, shareholders’ equity and cash flows for the nine (9) months then ended.
“Financing Documents” means this Agreement, any Notes, the Security Documents, the Fee Letter, the Affiliated Intercreditor Agreement, any subordination or intercreditor agreement pursuant to which any Debt and/or any Liens securing such Debt are subordinated to all or any portion of the Obligations and all other documents, instruments and agreements related to the Obligations and heretofore executed, executed concurrently herewith or executed at any time and
from time to time hereafter, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time.
“First Amendment Effective Date” means December 15, 2017.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fraudulent Conveyance” has the meaning set forth in Section 2.10(b).
“FSHCO” means a Domestic Subsidiary (i) all of the assets (other than immaterial assets) of which consist of equity interests (or equity interests and indebtedness) of one or more CFCs, (ii) that, with respect to any CFC in which it holds an equity interest, owns no less than sixty-six and two-thirds percent (66 2/3%) of the voting (within the meaning of Treasury Regulation Section 1.956 2(c)(2)) stock or equity interests of such CFC and (iii) that does not conduct any business or activity other than ownership of such equity interests; provided, further, that a FSHCO shall be a “FSHCO” only for so long as it meets each of the requirements of the foregoing definition.
“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the United States accounting profession), which are applicable to the circumstances as of the date of determination.
“General Intangible” means any “general intangible” as defined in Article 9 of the UCC, and any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil, gas or other minerals before extraction, but including payment intangibles and software.
“Governmental Account Debtor” means any Account Debtor that is a Governmental Authority.
“Governmental Authority” means any nation or government, any state, local or other political subdivision thereof, and any agency, department or Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation or other Person owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing, whether domestic or foreign.
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise), or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided, however, that the term
Guarantee shall not include endorsements for collection or deposit in the Ordinary Course of Business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” means any Credit Party that has executed or delivered, or shall in the future execute or deliver, any Guarantee of any portion of the Obligations, in each case, other than an Excluded Subsidiary.
“Hazardous Materials” means petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials; and any other material or substance defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,” “toxic pollutant,” “contaminant,” “pollutant” or other words of similar import within the meaning of any Environmental Law.
“Healthcare Law” means the laws, codes, policies and guidelines of all Governmental Authorities relating to the production, preparation, propagation, compounding, conversion, pricing, marketing, promotion, sale, distribution, coverage, or reimbursement of a drug, device, biological or other medical item, supply or service, including, without limitation, the FD&C Act, the federal False Claims Act (31 U.S.C. §§ 3729 et seq.), the federal healthcare program anti-kickback statute (42 U.S.C. § 1320a-7b), the healthcare fraud, false statement and health information privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act (“HIPAA”), the federal healthcare program civil money penalty and exclusion authorities, the applicable requirements of Medicare, Medicaid and other healthcare programs of other Governmental Authorities, including the Veterans Health Administration and United States Department of Defense healthcare and contracting programs, and the analogous Requirementsrequirements of Law of any other jurisdiction.
“HIPAA” has the meaning set forth in the definition of Healthcare Laws.
“IDE” means an application, including an application filed with a Governmental Authority, for authorization to commence human clinical studies, including (a) an Investigational Device Exemption as defined in the FD&C Act or any successor application or procedure filed with the FDA, (b) an abbreviated IDE as specified in FDA regulations in 21 C.F.R. § 812.2(b), (c) any equivalent of a United States IDE in other countries or regulatory jurisdictions, (d) all amendments, variations, extensions and renewals thereof that may be filed with respect to the foregoing and (e) all related documents and correspondence thereto, including documents and correspondence with institutional review boards or IECs.
“IECs” means independent ethics committees.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrowers or any other Credit Party under any Financing Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning set forth in Section 12.14(b).
“Indenture” means (a) that certain Indenture, dated as of February 13, 2013, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee, (b) that certain Indenture, dated as of April 24, 2014, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee and (c, (c) that certain Indenture, dated as of August 7, 2017, between Accuray and The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented by the First Supplemental Indenture dated as of December 4, 2017), and (d) any indenture or similar document setting forth the terms of any Permitted Refinancing Debt described in clause (cb) of the definition of 20182022 Convertible Notes.
“Instrument” means “instrument”, as defined in Article 9 of the UCC.
“Intellectual Property” means, with respect to any Person, all patents and patent applications, including improvements divisions, continuation, renewals, reissues, extensions and continuations in part of the same, trademarks, trade names, trade styles, trade dress, service marks, logos and other business identifiers and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of such Person connected with and symbolized thereby, copyright rights, copyright applications and copyright registrations in each work of authorship and derivative works, whether published or unpublished, technology, know-how and processes, operating manuals, trade secrets, computer hardware and software, rights to unpatented inventions and all applications and licenses therefor, used in or necessary for the conduct of business by such Person and all claims for damages by way of any past, present or future infringement of any of the foregoing.
“Intercompany Loans” has the meaning set forth in Section 2.9.
“Interest Period” means any ninety (90) day period commencing on the first day of each calendar month, reset monthly.
“Inventory” means “inventory” as defined in Article 9 of the UCC.
“Investment” means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the Ordinary Course of Business), capital contributions or acquisitions of debt (including, any bonds, notes, debentures or other debt securities), equity interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (c) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment, less any Returns to any Credit Party or the applicable Subsidiary in respect of such Investment; provided the aggregate amount of such Returns shall not exceed the original amount of such Investment.
“Joinder RequirementsIRS” has the meaning set forth in Section 4.11. 2.8(c)(i).
“Laws” means any and all federal, state, provincial, territorial, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, codes, injunctions, permits, governmental agreements and governmental restrictions, whether now or hereafter in effect, which are applicable to any Credit Party in any particular circumstance. “Laws” includes, without limitation, Environmental Laws.
“LC Issuer” means one or more banks, trust companies or other Persons in each case expressly identified by Agent from time to time, in its sole discretion, as an LC Issuer for purposes of issuing one or more Letters of Credit hereunder. Without limitation of Agent’s discretion to identify any Person as an LC Issuer, no Person shall be designated as an LC Issuer unless such Person maintains reporting systems acceptable to Agent with respect to letter of credit exposure and agrees to provide regular reporting to Agent satisfactory to it with respect to such exposure.
“Lender” means each of (a) MCF, in its capacity as a lender hereunder, (b) each other Person party hereto in its capacity as a lender hereunder, (c) each other Person that becomes a party hereto as Lender pursuant to Section 11.17, and (d) the respective successors of all of the foregoing, and “Lenders” means all of the foregoing.
“Lender Letter of Credit” means a Letter of Credit issued by an LC Issuer that is also, at the time of issuance of such Letter of Credit, a Lender.
“Letter of Credit” means a standby letter of credit issued for the account of any Borrower by an LC Issuer which expires by its terms within one (1) year after the date of issuance and in any event at least five (5) days prior to the Commitment Expiry Date. Notwithstanding the foregoing, a Letter of Credit may provide for automatic extensions of its expiry date for one or more successive one (1) year periods; provided, however, that the LC Issuer that issued such Letter of Credit has the right, upon written notice provided to the account party with respect to such Letter of Credit at least thirty (30) days prior to its expiration, to terminate such Letter of Credit on each such annual expiration date and no renewal term may extend the term of the Letter of Credit to a date that is later than the fifth (5th) day prior to the Commitment Expiry Date. Each Letter of Credit shall be either a Lender Letter of Credit or a Supported Letter of Credit.
“Letter of Credit Liabilities” means, at any time of calculation, the sum of (a) without duplication, the amount then available for drawing under all outstanding Lender Letters of Credit and all Supported Letters of Credit, in each case without regard to whether any conditions to drawing thereunder can then be met, plus (b) without duplication, the aggregate unpaid amount of all reimbursement obligations in respect of previous drawings made under all such Lender Letters of Credit and Supported Letters of Credit.
“LIBOR Rate” means, for each Loan, a per annum rate of interest equal to the greater of (a) 1.00% and (b) the rate determined by Agent (rounded upwards, if necessary, to the next 1/100th%) by dividing (i) the Base LIBOR Rate for the Interest Period, by (ii) the sum of one minus the daily average during such Interest Period of the aggregate maximum reserve requirement (expressed as a decimal) then imposed under Regulation D of the Board of Governors of the Federal Reserve System (or any successor thereto) for “Eurocurrency Liabilities” (as defined therein).
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, in respect of such asset. For the purposes of this Agreement and the other Financing Documents, any Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.
“Liquidity” means, on any date of determination, the sum of (x) the aggregate Qualified Cash and (y) the Revolving Loan Availability, in each case as of the date of determination.
“Liquidity Condition” means that, on any date of determination, Borrowers have aggregate Qualified Cash of not less than the sum of (x) $25,000,0005,000,000 plus (y) the outstanding principal amount of the applicable series of 2018 Convertible Notes or 2022 Convertible Notes with respect to which the Early Maturity Date has occurred.
“Litigation” means any action, suit or proceeding before any court, mediator, arbitrator or Governmental Authority.
“Loan Account” has the meaning set forth in Section 2.6(b).
“Loan(s)” means, the Revolving Loans, or any combination of the foregoing, as the context may require.
“Lockbox” has the meaning set forth in Section 2.11.
“Lockbox Account” means an account or accounts maintained at the Lockbox Bank into which collections of Accounts are paid, which account or accounts shall be, if requested by Agent, opened in the name of Agent (or a nominee of Agent).
“Lockbox Bank” has the meaning set forth in Section 2.11.
“Madison Premises” means the location leased by TomoTherapy and located at 1209-1240 Deming Way, Madison, WI 53717.
“Material Adverse Effect” means a material adverse effect on any of (a) the operations, assets, liabilities or financial condition of the Credit Parties taken as a whole, (b) the ability of the Credit Parties taken as a whole to perform any of their payment or other material obligations under any Financing Document, (c) the legality, validity or enforceability against a Credit Party of this Agreement or any other Financing Document, (d) the rights and remedies of Agent or any Lender under any Financing Document, or (e) the validity, perfection or priority of a Lien in favor of Agent for the benefit of Lenders on Collateral having a fair market value in excess of $1,000,000.
“Material Contracts” has the meaning set forth in Section 3.17.
“Material Real Property” means any real property located in the United States that is owned by any Borrower with a fair market value (as reasonably determined by the Borrower Representative) in excess of $250,000 individually or $500,000 in the aggregate in fee together with all other real property that is owned by Borrowers and located in the United States.
“Material Subsidiary” means any Subsidiary that, at any time, accounts for more than 3% of the EBITDA of Accuray and its Subsidiaries for the most recently ended period for which financial statements have been (or are required to have been) delivered.
“Maximum Lawful Rate” has the meaning set forth in Section 2.7.
“MCF” means MidCap FinancialFunding IV Trust, a Delaware statutory trust, and its successors and assigns.
“Middleton Premises” means the location leased by Accuray and located at 2200 Eagle Drive, Middleton, WI 53562.
“Multiemployer Plan” means a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any Borrower or any other member of the Controlled Group is making or accruing an obligation to make contributions or has within the preceding five plan years (as determined on the applicable date of determination) made, or been obligated to make, contributions.
“NotesNote” has the meaning set forth in Section 2.3.
“Notice of Borrowing” means a notice of a Responsible Officer of Borrower Representative, appropriately completed and substantially in the form of Exhibit D hereto.
“Notice of LC Credit Event” means a notice from a Responsible Officer of Borrower Representative to Agent with respect to any issuance, increase or extension of a Letter of Credit specifying: (a) the date of issuance or increase of a Letter of Credit; (b) the identity of the LC Issuer with respect to such Letter of Credit; (c) the expiry date of such Letter of Credit; (d) the proposed terms of such Letter of Credit, including the face amount; and (e) the transactions that are to be supported or financed with such Letter of Credit or increase thereof.
“NRC” means the United States Nuclear Regulatory Commission, and any successor agency or entity thereof or any analogous agency or entity in any other jurisdiction.
“Obligations” means all obligations, liabilities and indebtedness (monetary (including, without limitation, the payment of interest and other amounts arising after the commencement of any case with respect to any Credit Party under the Bankruptcy Code or any similar statute which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case) or otherwise) of each Credit Party under this Agreement or any other Financing Document, in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due. In addition to, but without duplication of, the foregoing, the Obligations shall include, without limitation, all obligations, liabilities and indebtedness arising from or in connection with (a) all Support Agreements, and (b) all Lender Letters of Credit.
“OFAC” means the United States Department of the Treasury’s Office of Foreign Assets Control.
“OFAC Lists” means, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC and/or any other list of terrorists or other restricted Persons maintained by OFAC.
“Operative Documents” means the Financing Documents, Subordinated Debt Documents, and any documents effecting any purchase or sale or other transaction that is closing contemporaneously with the closing of the financing under this Agreement.
“Ordinary Course of Business” means, in respect of any transaction involving any Credit Party, the ordinary course of business of such Credit Party, as conducted by such Credit Party.
“Orderly Liquidation Value” means the net amount (after all costs of sale), expressed in terms of money, which Agent, in its good faith discretion, estimates can be realized from a sale, as of a specific date, given a reasonable period to find a purchaser(s), with the seller being compelled to sell on an as-is/where-is basis.
“Organizational Documents” means, with respect to any Person other than a natural person, the documents by which such Person was organized (such as a certificate of incorporation, certificate of limited partnership or articles of organization, and including, without limitation, any certificates of designation for preferred stock or other forms of preferred equity) and which relate to the internal governance of such Person (such as by-laws, a partnership agreement or an operating, limited liability company or members agreement), including any and all shareholder agreements or voting agreements relating to the capital stock or other equity interests of such Person.
“Other Connection Taxes” means, with respect to Agent or any Lender, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Agent or such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or enforced any Financing Documents).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Financing Document, except any such taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.8(e) or Section 11.7(c)).
“Participant” has the meaning set forth in Section 11.17(b)(i).
“Participant Register” has the meaning set forth in Section 11.17(b)(ii).
“Payment Account” means the account specified on the signature pages hereof into which all payments by or on behalf of each Borrower to Agent under the Financing Documents shall be made, or such other account as Agent shall from time to time specify by notice to Borrower Representative.
“PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any or all of its functions under ERISA.
“Pension Plan” means any ERISA Plan that is subject to Section 412 of the Code or Title IV of ERISA.
“Permits” means all licenses, certificates, accreditations, product clearances or approvals, provider numbers or provider authorizations, supplier numbers, provider numbers, marketing authorizations, other authorizations, registrations, permits, consents and approvals of Accuray and each of its Subsidiaries required under any Law applicable to the business of Accuray or any of its Subsidiaries or necessary in the manufacturing, importing, exporting, possession, ownership, warehousing, marketing, promoting, sale, labeling, furnishing, distribution or delivery of goods or services under Law applicable to the business of Accuray or any of its Subsidiaries. Without limiting the generality of the foregoing, “Permits” includes all governmental authorizations and Product Authorizations of Accuray and each of its Subsidiaries.
“Permitted Acquisition” means any acquisition by a Borrower (an “Acquisition”), in each case, to the extent that each of the following conditions shall have been satisfied:
(a) Borrower Representative shall have delivered to Agent (i) for any Acquisition or series of related Acquisitions with an aggregate purchase price (including any deferred compensation) greater than or equal to $5,000,000, (A) at least five (5) Business Days (or such shorter period as approved by Agent in its sole discretion) prior to the closing of the proposed Acquisition: (x) a description of the proposed Acquisition and (y) to the extent available, a due diligence package (including, to the extent available, a quality of earnings report); and (B) not less than five (5) Business Days following the consummation of such Acquisition, executed counterparts of the material agreements, documents or instruments pursuant to which such Acquisition is to be consummated and any schedules to such agreements, documents or instruments or (ii) for any Acquisition or series of related Acquisitions with an aggregate purchase price (including any deferred compensation) less than $5,000,000, not less than five (5) Business Days following such Acquisition (or such shorter period as approved by Agent in its sole discretion), executed counterparts of the material agreements, documents or instruments pursuant to which such Acquisition is to be consummated and any schedules to such agreements, documents or instruments;
(b) Borrowers (including any new Subsidiary to the extent required by Section 4.11) shall execute and deliver the agreements, instruments and other documents to the extent required by Section 4.11;
(c) no Event of Default has occurred and is continuing, or would exist after giving effect to the proposed Acquisition;
(d) all transactions in connection with such Acquisition shall be consummated, in all material respects, in accordance with applicable Laws;
(e) the assets acquired in such Acquisition are for use in the same line of business as Borrowers are currently engaged or a line of business reasonably related thereto;
(f) such Acquisition shall not be hostile and, if applicable, shall have been approved by the board of directors (or other similar body) and/or the stockholders or other equity holders of any Person being acquired in such Acquisition;
(g) no Debt or Liens are assumed or created (other than Permitted Liens and Permitted Debt) in connection with such Acquisition;
(h) Agent shall have received a certificate of a Responsible Officer of Borrower Representative demonstrating, on a Pro Forma Basispro forma basis after giving effect to the consummation of such Acquisition, that Borrowers are in compliance with the financial covenant set forth in Article 6Section 6.2;
(i) (i) Except as otherwise agreed by Agent, the total consideration paid or payable (including without limitation, costs and expenses, deferred purchase price, seller notes and other liabilities incurred, assumed or to be reflected on a consolidated balance sheet of the Credit Parties and their Subsidiaries after giving effect to such Acquisition but excluding (i) any equity interests issued as consideration for such Acquisition) ( and (ii) other consideration paid exclusively from cash proceeds from the issuance of equity interests (other than Disqualified Equity Interests) of Accuray within the ninety (90) day period prior to the consummation of such Acquisition; such non-excluded consideration, “Acquisition Consideration”) , shall be in an amount not to exceed (A) (i) $25,000,000 in the aggregate for all such Acquisitions during any fiscal year and (B) $75,000,000 in the aggregate for all such Acquisitions during the term of this Agreement; and
(j) Agent has received, prior to the consummation of such Acquisition, evidence demonstrating that immediately after giving effect to the consummation of such Acquisition, Liquidity is equal to or greater than $50,000,000.
Notwithstanding the foregoing, no Accounts or Inventory acquired by a Credit Party in a Permitted Acquisition shall be included as Eligible Accounts or Eligible Inventory until a field examination (and, if required by Agent, an Inventory appraisal) with respect thereto has been completed to the reasonable satisfaction of Agent, including the establishment of reserves required in Agent’s reasonable discretion; provided that field examinations and appraisals in connection with Permitted Acquisitions shall not count against the limited number of field examinations or appraisals for which expense reimbursement may be sought.
“Permitted Asset Dispositions” means the following Asset Dispositions: (a) dispositions of Inventory in the Ordinary Course of Business and not pursuant to any bulk sale; (b) disposition of cash and Cash Equivalents in the Ordinary Course of Business; (c) dispositions of assets in the Ordinary Course of Business that the applicable Borrower determines in good faith is no longer used or useful in the business of such Borrower; (d) to the extent constituting an Asset Disposition, Permitted Investments, Permitted Liens and any mergers, consolidations, dispositions, dissolutions and liquidations expressly permitted pursuant to Section 5.6; (e) disposals of obsolete, worn out or surplus tangible personal property; (f) the lapse, abandonment or disposition of Intellectual Property that, in Borrower’s reasonable business discretion, (i) is not material to Borrowers’ business and (ii) the cost of maintaining such Intellectual Property would outweigh the benefit to Borrowers of so maintaining it; (g) sales, transfers and disposition of Accounts in connection with
the compromise, settlement or collection thereof in the Ordinary Course of Business, to the extent not in violation of the terms of this Agreement; (h) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between any joint venture parties set forth in joint venture arrangements and similar binding arrangements; (i) leasing or subleasing of assets in the Ordinary Course of Business, to the extent such assets are not part of the Borrowing Base; (j) (i) voluntary cancellations, terminations or surrender by any Borrower of any immaterial lease or license, (ii) the expiration of any option agreement in respect of real or personal property and (iii) the settlement of any litigation claims (to the extent such claims constitutes an asset), in each case, in the Ordinary Course of Business; (k) Asset Dispositions by any Borrower to any other Borrower; (l) sales, transfers and other dispositions of assets that are not permitted by any other subpart of this definition of “Permitted Asset Dispositions”, to the extent such assets are not part of the Borrowing Base; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (l) shall not exceed $5,000,000 during any fiscal year; and (m) (m) sales of equity interests of Restoration Robotics, Inc. owned by Accuray as of the First Amendment Effective Date; and (n)dispositions approved by Agent.
“Permitted Contest” means, with respect to any tax obligation or other obligation allegedly or potentially owing from any Borrower or its Subsidiary to any governmental tax authority or other third party, a contest maintained in good faith by appropriate proceedings promptly instituted and diligently conducted and with respect to which such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made on the books and records and financial statements of the applicable Credit Party(ies); provided, however, that (a) compliance with the obligation that is the subject of such contest is effectively stayed during such challenge; (b) Borrowers’ and its Subsidiaries’ title to, and its right to use, the Collateral is not adversely affected thereby and Agent’s Lien and priority on the Collateral are not adversely affected, altered or impaired thereby; (c) any material portion of the Collateral (including, for the avoidance of doubt, any Collateral included in the Borrowing Base) shall not be in any danger of being sold, forfeited or lost by reason of such contest by Borrowers or its Subsidiaries; (d) if such contest relates to a material obligation, Borrowers have given Agent notice of the commencement of such contest and upon request by Agent, from time to time, notice of the status of such contest by Borrowers and/or confirmation of the continuing satisfaction of this definition; and (e) upon a final determination of such contest, Borrowers and its Subsidiaries shall promptly comply with the requirements thereof.
“Permitted Contingent Obligations” means: (a) Contingent Obligations arising in respect of the Debt under the Financing Documents; (b) Contingent Obligations resulting from endorsements for collection or deposit in the Ordinary Course of Business; (c) Contingent Obligations outstanding on the date of this AgreementFirst Amendment Effective Date and set forth on Schedule 5.1 (but not including any refinancings, extensions, increases or amendments to the Debt underlying such Contingent Obligations other than Permitted Refinancing Debt); (d) Contingent Obligations incurred in the Ordinary Course of Business with respect to surety and appeal bonds, performance bonds and other similar obligations; (e) Contingent Obligations arising under indemnity agreements with title insurers to cause such title insurers to issue to Agent mortgagee title insurance policies; (f) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions of personal property assets permitted under Section 5.6; (g) so long as there exists no Event of Default both
immediately before and immediately after giving effect to any such transaction, Contingent Obligations existing under any swap contract; provided, however, that such obligations are (or were) entered into by a Borrower in the Ordinary Course of Business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person and not for purposes of speculation; (h) Contingent Obligations incurred with respect to Permitted Debt provided that (x) any such Contingent Obligation is subordinated to the Obligations to the same extent as the Debt to which it relates is subordinated to the Obligations and (y) no Borrower may incur Contingent Obligations under this clause (i) in respect of Debt incurred by any Person that is not a Borrower or Guarantor, other than to extent consisting of a Permitted Investment; (i) Contingent Obligations in respect of any customary indemnification obligations, purchase price adjustments, non-compete obligations (other than contingent earn-out obligations) of any Credit Party incurred in connection with the consummation of any Permitted Acquisition or other Permitted Investment; (j) Contingent Obligations in respect of obligations to suppliers, customers, franchisees and licensees incurred in the Ordinary Course of Business; and (k) other Contingent Obligations not permitted by clauses (a) through (j) above, not to exceed $5,000,000 in the aggregate at any time outstanding.
“Permitted Debt” means: (a) Borrowers’ Debt to Agent and each Lender under this Agreement and the other Financing Documents; (b) Debt incurred as a result of endorsing negotiable instruments received in the Ordinary Course of Business; (c) purchase money Debt not to exceed $10,000,000 at any time (whether in the form of a loan or a capitalized lease) used solely to acquire equipment used in the Ordinary Course of Business and secured only by such equipment; (d) Debt existing on the date of this AgreementFirst Amendment Effective Date and described on Schedule 5.1 (but not including any refinancings, extensions, increases or amendments to such Debt other than Permitted Refinancing Debt); (e) Debt in the form of insurance premiums financed through the applicable insurance company; (f) Debt owed to any Person providing worker’s compensation, health, disability or other employee benefits (other than ERISA) pursuant to reimbursement or indemnification obligations to such Person, in each case in the Ordinary Course of Business; (g) Subordinated Debt; (h) (i) Debt in respect of the 2018 Convertible Notes and/or 2022 Convertible Notes and (ii) solely with respect to the 2022 Convertible Notes, any Permitted Refinancing Debt in respect thereof and additional convertible notes issued on the same terms as such Permitted Refinancing Debt, in an aggregate principal amount of Debt permitted by this clause (h) not to exceed $130,000,000 at any time; provided that, notwithstanding the foregoing, until the stated maturity date of the 2018 Convertible Notes in place on the Closing Date,; provided that the aggregate principal amount of Debt permitted by this clausesubclause (hii) shall not exceed $150,000,000100,000,000 at any time (all Debt incurred pursuant to this clause (h), “Convertible Notes Debt”); (i) Debt of Borrowers related to commercial credit cards; so long as such Debt is incurred in the Ordinary Course of Business; (j) Debt in respect of treasury services agreements, netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs and similar arrangements, in each case so long as such Debt is incurred in the Ordinary Course of Business and is unsecured; (k) to the extent constituting Debt, any Permitted Contingent Obligations; (l) unsecured earn-out obligations and other similar contingent purchase price obligations incurred in connection with a Permitted Acquisition to the extent earned and payable and permitted pursuant to the definition of “Permitted Acquisition” and the other terms of this Agreement; (m) to the extent constituting Debt, take-or-pay obligations contained in supply arrangements incurred in the Ordinary Course of Business; (n) Debt that represents extensions, renewals, refinancings or replacements of any Debt
described in clauses (c), (d), (h) (o) and (s) of this definition so long as such Debt constitutes Permitted Refinancing Debt; (o) Debt of any Person that becomes a Borrower after the date hereof in connection with a Permitted Acquisition; provided that (i) such Debt exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of Debt permitted by this clause (o), together with any Permitted Refinancing Debt in respect thereof, shall not exceed $2,000,000 at any time outstanding; (p) to the extent constituting Debt, the transactions permitted pursuant to Section 5.8; (q) to the extent constituting Debt, deferred purchase price, seller notes and other liabilities incurred or assumed in connection with any Permitted Acquisition to the extent the same constitutes Acquisition Consideration and is permitted to be incurred pursuant to clause (i) of the definition of “Permitted Acquisition”; and (r(r) Debt of the Credit Parties incurred under the Affiliated Financing Documents; and (s) other unsecured Debt not to exceed $5,000,000 outstanding at any one time.
“Permitted Distributions” means the following Distributions: (a) Distributions by any Borrower to another Borrower; (b) dividends payable solely in equity interests that are not Disqualified Equity Interests (including stock splits); (c) without duplication of any Distribution described in clause (d) below, repurchases or redemptions of stock or options of former employees, directors or consultants upon the death, termination, disability, resignation or other voluntary or involuntary cessation of such person’s employment, or otherwise in accordance with any stock option or stock appreciation rights plan or any stock ownership or subscription plan or equity incentive or other similar plan or termination agreement, provided, that such repurchase does not exceed $1,000,000 in the aggregate per fiscal year; (d) so long as no Event of Default has occurred and is continuing prior to making such Distribution or would arise after giving effect thereto, Distributions by Accuray in accordance with stock option plans or other benefit plans for management or employees of Accuray or its Subsidiaries in an aggregate amount not to exceed $1,000,000 in the aggregate per fiscal year; (e) the cashless repurchase of equity interests deemed to occur upon the exercise of any option or warrant of Accuray; (f) cash payments in lieu of issuing fractional or “odd lot” equity interests in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests in Accuray (including any Convertible Notes Debt) in an aggregate amount not to exceed $1,000,000 during the term of this Agreement; (g) to the extent constituting Distributions, any payments made in respect of the Convertible Notes Debt made (i) solely with respect to the 2022 Convertible Notes, with the proceeds of any Permitted Refinancing Debt in respect thereof or any offering of equity interests that are not Disqualified Equity Interests and (ii) solely with respect to the 2018 Convertible Notes, with proceeds of Loans or Qualified Cash as described more fully in Section 5.5; (h) Distributions of the type set forth in clause (b) of the definition thereof by Accuray of its common stock made contemporaneously with, or within ten (10) Business Days before, the pricing and closing of any Convertible Notes Debt after the Closing Date; provided that (i) no Default or Event of Default has occurred and is continuing prior to making any such Distribution or would arise after giving effect thereto, and (ii) the aggregate amount of all such Distributions in reliance on this clause (h) does not exceed $15,000,000 during the term of this Agreement, and (iii) the Borrowers have paid to Agent the fee set forth in the Fee Letter; and (i) other Distributions; provided that (i) no Default or Event of Default has occurred and is continuing prior to making such Distribution or would arise after giving effect thereto, (ii) the aggregate amount of all such Distributions in reliance on this clause (i) in any fiscal year does not exceed $2,000,000, and (iii) after giving effect to such Distribution, (A) the Credit Parties have Liquidity in an amount not less
than $50,000,000, and (B) on a pro forma basis after giving effect to the making of such Distribution, as at the end of the most recently ended fiscal quarter for which financial statements have been provided (or were required to have been provided) to Lenders, the Total Leverage Ratio for the Credit Parties for a trailing twelve-month period ending on the last day of such fiscal quarter is equal to or less than 4.00 to 1.00, which covenant shall be calculated as if such Distribution was made on the first day of such period.
“Permitted Intercompany Investments” means Investments (including guarantees of Debt) made by (a) a Borrower to or in another Borrower and (b) a Borrower to or in a Subsidiary that is not a Borrower so long as, in the case of this clause (b), (i) the aggregate amount of all such Investments by Borrowers in reliance on this clause (b) does not exceed $7,500,000 at any time outstanding and (ii) Borrowers have Liquidity of not less than $50,000,000 after giving effect to any such Investment.
“Permitted Investments” means: (a) Investments (i) shown on Schedule 5.7 and existing on the ClosingFirst Amendment Effective Date, (ii) consisting of capital contributions made to Subsidiaries prior to the Closing Date and (iii) any modification, replacement, renewal or extension of any Investments made by a Borrower in an Excluded Subsidiary so long as any such modification, replacement, renewal or extension thereof does not increase the amount of such Investment except as otherwise permitted by Section 5.7; (b) cash and Cash Equivalents; (c) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the Ordinary Course of Business; (d) advances made in connection with purchases of goods or services in the ordinary course of business; (e) Investments constituting installment sales of equipment in the ordinary course of business; (f) Investments received in settlement of bona fide disputes with respect to amounts due to any Credit Party or any of its Subsidiaries from trade creditors or customers effected in the ordinary course of business and consistent with past practice, or owing to any Credit Party or any of its Subsidiaries as a result of a proceeding relating to bankruptcy, insolvency, reorganization or relief of debtors involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Credit Party or its Subsidiaries; (g) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the Ordinary Course of Business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrowers pursuant to employee stock purchase plans or agreements approved by Borrowers’ Board of Directors (or other governing body), but the aggregate principal amount of all such loans outstanding may not exceed $1,000,000 at any time; (h) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the Ordinary Course of Business, provided, however, that this subpart (h) shall not apply to Investments of Borrowers in any Subsidiary; (i) Investments consisting of deposit accounts in which Agent has received a Deposit Account Control Agreement; (j) Permitted Intercompany Investments; (k) from and after the date on which the 2018 Convertible Notes have been refinanced or replaced with Permitted Refinancing Debt, Permitted Acquisitions; (l) Investments in Excluded Subsidiaries in an aggregate amount not to exceed $1,000,000 during the term of this Agreement; (m) Investments the consideration for which is (x) equity interests (other than Disqualified Equity Interests) of Accuray) of Accuray or (y) solely with respect to Investments that are Permitted Acquisitions, cash proceeds of the issuance of equity interests (other than Disqualified Equity Interests) of Accuray (as described more fully in clause (i) of the definition of “Permitted Acquisition”; (n) Capital Expenditures; (o) Investments of any Person existing at the time such
Person becomes a Subsidiary of Accuray and a Borrower (including in connection with a Permitted Acquisition) so long as such Investments were not made in contemplation of such Person becoming a Subsidiary; (p) cashless Investments relating to reorganizations of, and mergers and consolidations among, Foreign Subsidiaries so long as any resulting Foreign Subsidiary is wholly owned by a Borrower; and (q) any other Investments in an aggregate amount not to exceed $5,000,000 at any time outstanding; provided that immediately before and after giving effect to the making of such Investment, (i) no Default or Event of Default shall have occurred and be continuing, (ii) on a pro forma basis after the consummation of such Investment, as at the end of the most recently ended fiscal quarter for which financial statements have been provided (or were required to have been provided) to Lenders, the Total Leverage Ratio for the Credit Parties for a trailing twelve-month period ending on the last day of such fiscal quarter is equal to or less than 4.00 to 1.00, which covenant shall be calculated as if such Investment was made on the first day of such period, (iii) the Credit Parties shall have Liquidity in an amount not less than $50,000,000 after giving effect to such Investment, and (iv) the chief financial officer of the Borrower Representative shall have delivered a certificate to Agent certifying as to the matters contained in clauses (i) through (iii) above, accompanied by reasonable evidence thereof.
“Permitted Liens” means: (a) deposits or pledges of cash to secure obligations under workmen’s compensation, social security or similar laws, or under unemployment insurance (but excluding Liens arising under ERISA or, with respect to any Pension Plan or Multiemployer Plan, the Code) pertaining to a Borrower’s employees, if any; (b) deposits or pledges of cash to secure bids, tenders, contracts (other than contracts for the payment of money or the deferred purchase price of property or services), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the Ordinary Course of Business; (c) carrier’s, warehousemen’s, mechanic’s, workmen’s, materialmen’s or other like Liens on Collateral, other than any Collateral that is part of the Borrowing Base unless such Liens have been subordinated to the prior Lien in favor of Agent arising under the Financing Documents pursuant to a Subordination Agreement, arising in the Ordinary Course of Business with respect to obligations which are not overdue for a period of more than sixty (60) days, or which are being contested pursuant to a Permitted Contest; (d) Liens on Collateral, other than Accounts, for taxes or other governmental charges not at the time delinquent or thereafter payable without penalty or the subject of a Permitted Contest; (e) attachments, appeal bonds, judgments and other similar Liens on Collateral other than Accounts, so long as such Liens do not constitute an Event of Default hereunder; provided, however, that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are the subject of a Permitted Contest; (f) with respect to real estate, easements, rights of way, restrictions, minor defects or irregularities of title and other similar restrictions, including environmental and land use restrictions, none of which, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Security Documents, materially affect the value or marketability of the Collateral, materially impair the use or operation of the Collateral for the use currently being made thereof or materially impair Borrowers’ ability to pay the Obligations in a timely manner or materially impair the use of the Collateral or the ordinary conduct of the business of any Borrower or any Subsidiary and which, in the case of any real estate which is part of the Collateral, are set forth as exceptions to or subordinate matters in the title insurance policy accepted by Agent insuring the lien of the Security Documents; (g) non-exclusive licenses of Intellectual Property rights granted in the Ordinary Course of Business; (h) rights of set-off or bankers’ liens upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the
maintenance of such deposit accounts in the ordinary course of business; (i) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Debt; (j) Liens and deposits in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (k) Liens and encumbrances in favor of Agent under the Financing Documents; (l) Liens on Collateral, other than Collateral which is part of the Borrowing Base, existing on the date hereof First Amendment Effective Date and set forth on Schedule 5.2; (m) Liens (i) arising from operating leases with respect to assets not owned by any Borrower and the precautionary UCC filings in respect thereof and (ii) on equipment or other materials which are not owned by any Borrower and located on the premises of any Borrower (but not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course of Business and consistent with customary practices of Borrowers and the precautionary UCC filings in respect thereof; (n) any Lien on any equipment securing Debt permitted under subpart (c) of the definition of Permitted Debt, provided, however, that such Lien attaches concurrently with or within sixty (60) days after the acquisition thereof; (o) Liens of landlords and mortgagees of landlords arising by statute; (p) the interest of lessors or sublessor under operating leases and licensors or sub-licensors under license agreements to the extent such license, lease, sublease or sublicense is otherwise permitted under this Agreement; and (q) other Liens or encumbrances which do not secure Debt for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $2,000,000.2,000,000; and (r) Liens and encumbrances in favor of the holders of (or an agent representing the holders of) the Affiliated Obligations.
“Permitted Modifications” means (a) such amendments or other modifications to a Borrower’s Organizational Documents as are required under this Agreement or by applicable Law and fully disclosed to Agent within thirty (30) days after such amendments or modifications have become effective, and (b) such amendments or modifications to a Borrower’s Organizational Documents (other than those involving a change in the name of a Borrower or involving a reorganization of a Borrower under the laws of a different jurisdiction) that would not adversely affect the rights and interests of Agent or Lenders and are fully disclosed to Agent within thirty (30) days after such amendments or modifications have become effective.
“Permitted Refinancing Debt” means the extension of maturity, refinancing, renewal, replacement, exchange or modification of the terms of Debt so long as:
(a) after giving effect to such extension, refinancing, replacement, exchange or modification, the principal amount of such Debt is not greater than the amount of Debt outstanding immediately prior to such extension, refinancing, renewal, replacement, exchange or modification (other than by the amount of premiums or penalties paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto); provided, however, that in order to permit an exchange of the Convertible Notes Debt into newly issued convertible notes, the principal amount of the newly issued convertible notes may be greater than the principal amount of the Convertible Notes Debt that are exchanged, to the extent required by arms-length, commercial negotiations in connection with such exchange;
(b) such extension, refinancing, renewal, replacement, exchange or modification does not result in a shortening of the average weighted maturity (measured as of the extension, refinancing
or modification) of the Debt so extended, refinanced, renewed, replaced or modified (and in the case of any permitted refinancing of the Convertible Notes Debt, the scheduled maturity date of the Debt (after giving effect to such extension, refinancing, renewal, replacement or modification) shall be at least 91 days following the Commitment Expiry Date (determined in accordance with clause (a) of the definition thereof));
(c) such extension, refinancing, renewal, replacement, exchange or modification is pursuant to terms that are, taken as a whole, (A) on prevailing market terms at the time of borrowing for the time of financing and the quality of the applicable borrower; provided that, in no event shall additional security or collateral (or any security or collateral if the Debt subject to a permitted refinancing is unsecured) be granted on the basis that it was required by prevailing market terms or (B) other than interest rate (so long as the interest rate thereto shall not increase by more than 2.50% per annum) and conversion premium terms with respect to the refinancing, replacement or exchange of Convertible Notes Debt, not less favorable to the Credit Parties and Lenders than the terms of the Debt (including, without limitation, terms relating to the collateral (if any) and subordination (if any)) being extended, refinanced, renewed, replaced, exchanged or modified (and in the case of any Permitted Refinancingpermitted refinancing of the Convertible Notes Debt, no security or collateral shall be granted and no principal amortization shall be provided for (it being understood that conversion terms consistent with those applicable to the 20182022 Convertible Notes shall not constitute principal amortization); and
(d) the Debt that is extended, refinanced, renewed, replaced or modified is not recourse to any Credit Party or any of its Subsidiaries that is liable on account of the obligations, in each case other than those Persons which were obligated with respect to the Debt that was extended, refinanced, renewed, replaced or modified.
For purposes of clarity, Permitted Refinancing Debt shall not apply to the 2018 Convertible Notes.
“Person” means any natural person, corporation, limited liability company, professional association, limited partnership, general partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority.
“Product” means any current or future service or product researched, designed, developed, manufactured, licensed, marketed, sold, performed, distributed or otherwise commercialized by Accuray or any of its Subsidiaries, and any such product in development or which may be developed; provided, that for purposes of Article III, “Product” shall not include products designed, developed and manufactured by third parties that are not Affiliates of Accuray or any of its Subsidiaries.
“Product Authorizations” means any and all approvals (including pricing and reimbursement approvals), licenses, notifications, registrations or authorizations of any Governmental Authority necessary for the manufacture, development, distribution, use, storage, import, export, transport, promotion, marketing, sale or other commercialization of a Product in any country or jurisdiction, including without limitation registration and listing, IDEs, Device Approval Applications (including any supplements and amendments thereto) or similar
applications, post-approval marketing authorizations (including any prerequisite manufacturing approval or authorization related thereto), labeling approvals, and technical, medical, and scientific licenses.
“Pro Rata Share” means (a) with respect to a Lender’s obligation to make Revolving Loans, such Lender’s right to receive the unused line fee described in Section 2.2(b), such Lender’s obligation to purchase interests and participations in Letters of Credit and related Support Agreement liabilities and obligations, and such Lender’s obligation to share in Letter of Credit Liabilities and to receive the related Letter of Credit fee described in Section 2.5(b), the Revolving Loan Commitment Percentage of such Lender, (b) with respect to a Lender’s right to receive payments of principal and interest with respect to Revolving Loans, such Lender’s Revolving Loan Exposure with respect thereto, and (c) for all other purposes (including, without limitation, the indemnification obligations arising under Section 11.6) with respect to any Lender, the percentage obtained by dividing (i) the Revolving Loan Commitment Amount of such Lender (or, in the event the Revolving Loan Commitment shall have been terminated, such Lender’s then existing Revolving Loan Outstandings), by (ii) the Revolving Loan Commitment (or, in the event the Revolving Loan Commitment shall have been terminated, the then existing Revolving Loan Outstandings) of all Lenders.
“Qualified Cash” means, as of any date of determination, the aggregate amount of unrestricted cash and Cash Equivalents on-hand of the Credit Parties maintained in Deposit Accounts or Securities Accounts in the name of a Credit Party in the United States as of such date, which, in each case, are not Lockbox Accounts and are subject to Deposit Account Control Agreements or a Securities Account Control Agreement.
“Raw Materials Inventory” means all Inventory of the Borrower consisting of raw materials.
“Recovery Amount” has the meaning set forth in Section 2.10(e).
“Reimbursement Obligations” means, at any date, the obligations of each Borrower then outstanding to reimburse (a) Agent for payments made by Agent under a Support Agreement, and/or (b) any LC Issuer, for payments made by such LC Issuer under a Lender Letter of Credit.
“Rent and Charges Reserve” means the aggregate of (a) a reserve equal to all past due rent and other amounts owing by a Borrower to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Collateral included in the Borrowing Base or could assert a Lien on any Collateral included in the Borrowing Base; and (b) a reserve equal to three months’ rent and other charges that could be payable to any such Person, unless it has executed a landlord agreement, warehousemen’s agreement, bailee agreement or similar agreement, as applicable.
“Required Lenders” means at any time Lenders holding (a) more than fifty percent (50%) of the Revolving Loan Commitment, or (b) if the Revolving Loan Commitment has been terminated, more than fifty percent (50%) of the sum of (x) the then aggregate outstanding principal balance of the Loans plus (y) the then aggregate amount of Letter of Credit Liabilities.
“Replacement Lender” has the meaning set forth in Section 11.17(c).
“Responsible Officer” means any of the Chief Executive Officer, Chief Financial Officer, General Counsel or any other officer of the applicable Borrower acceptable to Agent.
“Returns” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from an Asset Saleasset sale or otherwise) and other amounts received or realized in respect of such Investment, in each case on an after-tax basis.
“Revolving Lender” means each Lender having a Revolving Loan Commitment Amount in excess of $0 (or, in the event the Revolving Loan Commitment shall have been terminated at any time, each Lender at such time having Revolving Loan Outstandings in excess of $0).
“Revolving Loan Availability” means, at any time, the Revolving Loan Limit minus the Revolving Loan Outstandings.
“Revolving Loan Commitment” means, as of any date of determination, the aggregate Revolving Loan Commitment Amounts of all Lenders as of such date.
“Revolving Loan Commitment Amount” means, as to any Lender, the dollar amount set forth opposite such Lender’s name on the Commitment Annex under the column “Revolving Loan Commitment Amount” (if such Lender’s name is not so set forth thereon, then the dollar amount on the Commitment Annex for the Revolving Loan Commitment Amount for such Lender shall be deemed to be $0), as such amount may be adjusted from time to time by (a) any amounts assigned (with respect to such Lender’s portion of Revolving Loans outstanding and its commitment to make Revolving Loans) pursuant to the terms of any and all effective assignment agreements to which such Lender is a party, and (b) any Additional Tranche(s) activated by Borrowers. For the avoidance of doubt, the aggregate Revolving Loan Commitment Amount of all Lenders on the Closing Date shall be $52,000,000 and if the Additional Tranche is fully activated pursuant to the terms of the Agreement such amount shall increase to $85,000,000.on and after the First Amendment Effective Date, shall be $32,000,000.
“Revolving Loan Commitment Percentage” means, as to any Lender, (a) on the ClosingFirst Amendment Effective Date, the percentage set forth opposite such Lender’s name on the Commitment Annex under the column “Revolving Loan Commitment Percentage” (if such Lender’s name is not so set forth thereon, then, on the ClosingFirst Amendment Effective Date, such percentage for such Lender shall be deemed to be zero (0), and (b) on any date following the ClosingFirst Amendment Effective Date, the percentage equal to the Revolving Loan Commitment Amount of such Lender on such date divided by the Revolving Loan Commitment on such date.
“Revolving Loan Exposure” means, with respect to any Lender on any date of determination, the percentage equal to the amount of such Lender’s Revolving Loan Outstandings on such date divided by the aggregate Revolving Loan Outstandings of all Lenders on such date.
“Revolving Loan Limit” means, at any time, the lesser of (a) the Revolving Loan Commitment and (b) the Borrowing Base.
“Revolving Loan Outstandings” means, at any time of calculation, (a) the sum of the then existing aggregate outstanding principal amount of Revolving Loans plus the then existing Letter
of Credit Liabilities, and (b) when used with reference to any single Lender, the sum of the then existing outstanding principal amount of Revolving Loans advanced by such Lender plus the then existing Letter of Credit Liabilities for the account of such Lender.
“Revolving Loans” has the meaning set forth in Section 2.1(b).
“SEC” means the United States Securities and Exchange Commission.
“Securities Account” means a “securities account” (as defined in Article 9 of the UCC), an investment account, or other account in which investment property or securities are held or invested for credit to or for the benefit of any Borrower.
“Securities Account Control Agreement” means an agreement, in form and substance satisfactory to Agent, among Agent, any applicable Borrower and each securities intermediary in which such Borrower maintains a Securities Account pursuant to which Agent shall obtain “control” (as defined in Article 9 of the UCC) over such Securities Account.
“Securitization” has the meaning set forth in Section 12.6(b).
“Security Document” means this Agreement and any other agreement, document or instrument executed concurrently herewith or at any time hereafter pursuant to which one or more Credit Parties or any other Person either (a) Guarantees payment or performance of all or any portion of the Obligations, and/or (b) provides, as security for all or any portion of the Obligations, a Lien on any of its assets in favor of Agent for its own benefit and the benefit of Lenders, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time.
“Settlement Service” has the meaning set forth in Section 11.17(a)(v).
“Solvent” means, with respect to any Person, that such Person (a) owns assets the fair saleable value of which are (i) greater than the total amount of its liabilities (including Contingent Obligations), and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted or after giving effect to any contemplated transaction; and (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due.
“Stated Commitment Expiry Date” has the meaning set forth in the definition of “Commitment Expiry Date”.
“Stated Rate” has the meaning set forth in Section 2.7.
“Subordinated Debt” means any Debt of Borrowers incurred pursuant to the terms of the Subordinated Debt Documents, and with prompt notice to Agent, all of which documents must be in form and substance acceptable to Agent in its sole discretion. As of the Closing Date, there is no Subordinated Debt. The parties hereto agree, for the avoidance of doubt, that the Convertible Notes Debt does not constitute Subordinated Debt.
“Subordinated Debt Documents” means any documents evidencing and/or securing Debt governed by a Subordination Agreement, all of which documents must be in form and substance acceptable to Agent in its sole discretion. As of the Closing Date, there are no Subordinated Debt Documents.
“Subordination Agreement” means any agreement between Agent and another creditor of Borrowers, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof, pursuant to which the Debt owing from any Borrower(s) and/or the Liens securing such Debt granted by any Borrower(s) to such creditor are subordinated in any way to the Obligations and the Liens created under the Security Documents, the terms and provisions of such Subordination Agreements to have been agreed to by and be acceptable to Agent in the exercise of its sole discretion.
“Subsidiary” means, with respect to any Person, (a) any corporation of which an aggregate of more than fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, capital stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of more than fifty percent (50%) of such capital stock whether by proxy, agreement, operation of law or otherwise, and (b) any partnership or limited liability company in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%) or of which any such Person is a general partner or may exercise the powers of a general partner. Unless the context otherwise requires, each reference to a Subsidiary shall be a reference to a Subsidiary of a Borrower.
“Sunnyvale Premises” means the location leased by Accuray and located at 1306-1310 Orleans Drive, Sunnyvale, CA 94089.
“Support Agreement” has the meaning set forth in Section 2.5(a).
“Supported Letter of Credit” means a Letter of Credit issued by an LC Issuer in reliance on one or more Support Agreements.
“Taxes” has the meaning set forth in Section 2.8(a).
“Term Loans” has the meaning set forth in the Affiliated Credit Agreement.
“Termination Date” means the earlier to occur of (a) the Commitment Expiry Date, (b) any date on which Agent accelerates the maturity of the Loans pursuant to Section 10.2, or (c) the termination date stated in any notice of termination of this Agreement provided by Borrowers in accordance with Section 2.12.
“Total Debt” means, at any time, all Debt described in clauses (a), (b), (c), (d), and (e) (but in the case of clause (e), only to the extent such letter of credit has been drawn and not reimbursed within 3 Business Days) in the definition thereof of such Person and its Subsidiaries at such time.
“Total Leverage Ratio” means, the ratio of (a) the Total Debt as of the end of such period (including, for the avoidance of doubt, the Convertible Notes Debt), to (b) EBITDA for such period.
“UCC” means the Uniform Commercial Code of the State of New York or of any other state the laws of which are required to be applied in connection with the perfection of security interests in any Collateral.
“Unfinanced Capital Expenditures” means, for any period, the Capital Expenditures for such period; provided Unfinanced Capital Expenditures shall not include any Capital Expenditure (i) for replacements, restorations or substitutions for assets to the extent made with the net cash proceeds of a Permitted Asset Disposition, (ii) for any asset acquired in exchange for an existing asset (but only to the extent of the value of such existing asset), (iii) that constitutes a Permitted Acquisition, (iv) made during such period to the extent made with the identifiable proceeds of an issuance of equity by Borrower Representative, (v) that, pursuant to a written agreement, are reimbursed (or reimbursable and reasonably expected to be received in cash within 120 days of the last day of such period) by a third Person (excluding Borrower Representative or any of its Subsidiaries) or (vi) that is paid with the proceeds of Permitted Debt.
“United States” means the United States of America.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“Wholly-Owned Subsidiary” means, as to any Person, another Person, all of the equity interests of which (except directors’ qualifying shares) are, at the time, directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.
“Work-In-Process” means Inventory that is not a product that is finished and approved by a Borrower in accordance with applicable Laws and such Borrower’s normal business practices for release and delivery to customers.
B. Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder (including, without limitation, determinations made pursuant to the exhibits hereto) shall be made, and all financial statements required to be delivered hereunder shall be prepared on a consolidated basis in accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of each Borrower and its Consolidated Subsidiaries delivered to Agent and each of Lenders on or prior to the Closing Date. If at any time any change in GAAP would affect the computation of any financial ratio or financial requirement set forth in any Financing Document, and either Borrowers or the Required Lenders shall so request, Agent, Lenders and Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Borrower Representative and the Required Lenders); provided, however, that until so amended, (a) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (b) Borrowers shall provide to Agent and Lenders financial statements and other documents required under this Agreement which shall include a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, (i) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Debt or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value”, as defined therein and (ii) to the extent that any change in GAAP after the Closing Date results in leases which are, or would have been, classified as operating leases under GAAP as it exists on the Closing Date being classified as a Capital Lease under as revised GAAP (whether such lease is entered into before or after the date hereof), such change in classification of leases from operating leases to Capital Leases shall be ignored for purposes of this Agreement, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.
C. Other Definitional and Interpretive Provisions. References in this Agreement to “Articles”, “Sections”, “Annexes”, “Exhibits”, or “Schedules” shall be to Articles, Sections, Annexes, Exhibits or Schedules of or to this Agreement unless otherwise specifically provided. Any term defined herein may be used in the singular or plural. “Include”, “includes” and “including” shall be deemed to be followed by “without limitation”. Except as otherwise specified or limited herein, references to any Person include the successors and assigns of such Person. References “from” or “through” any date mean, unless otherwise specified, “from and including” or “through and including”, respectively. Unless otherwise specified herein, the settlement of all payments and fundings hereunder between or among the parties hereto shall be made in lawful money of the United States and in immediately available funds. References to any statute or act shall include all related current regulations and all amendments and any successor statutes, acts and regulations. All amounts used for purposes of financial calculations required to be made herein shall be without duplication. References to any statute or act, without additional reference, shall be deemed to refer to federal statutes and acts of the United States. References to any agreement, instrument or document shall include all schedules, exhibits, annexes and other attachments thereto. As used in this Agreement, the meaning of the term “material” or the phrase “in all material respects” is intended to refer to an act, omission, violation or condition which reflects or could reasonably be expected to result in a Material Adverse Effect. References to capitalized terms that are not defined herein, but are defined in the UCC, shall have the meanings given them in the UCC. All references herein to times of day shall be references to daylight or standard time, as applicable.
D. Time is of the Essence. Time is of the essence in Borrower’s and each other Credit Party’s performance under this Agreement and all other Financing Documents
II. LOANS AND LETTERS OF CREDIT
A. Loans.
1. Reserved.
2. Revolving Loans.
(a) Revolving Loans and Borrowings. On the terms and subject to the conditions set forth herein, each Lender severally agrees to make loans to Borrowers from time to time as set forth herein (each a “Revolving Loan”, and collectively, “Revolving Loans”) equal to such Lender’s Revolving Loan Commitment Percentage of Revolving Loans requested by Borrowers hereunder; provided, however, that after giving effect thereto, the Revolving Loan Outstandings shall not exceed the Revolving Loan Limit. Borrowers shall deliver to Agent a Notice of Borrowing with respect to each proposed borrowing of a Revolving Loan, such Notice of Borrowing to be delivered before 1:00 p.m. (Eastern time) two (2) Business Days prior to the date of such proposed borrowing; provided that for the borrowing of Revolving Loans on the Closing Date, Borrower may deliver the Notice of Borrowing prior to the borrowing on the Closing Date. Each Borrower and each Revolving Lender hereby authorizes Agent to make Revolving Loans on behalf of Revolving Lenders, at any time in its sole discretion, (A) as provided in Section 2.5(c), with respect to obligations arising under Support Agreements and/or Lender Letters of Credit, and (B) to pay principal owing in respect of the Loans and interest, fees, expenses and other charges payable by any Credit Party from time to time arising under this Agreement or any other Financing Document. The Borrowing Base shall be determined by Agent based on the most recent Borrowing Base Certificate delivered to Agent in accordance with this Agreement and such other information as may be available to Agent. Without limiting any other rights and remedies of Agent hereunder or under the other Financing Documents, the Revolving Loans shall be subject to Agent’s continuing right to withhold from the Borrowing Base reserves, and to increase and decrease such reserves from time to time, if and to the extent that in Agent’s good faith credit judgment and discretion, such reserves are necessary.
(b) Mandatory Revolving Loan Repayments and Prepayments.
(i) The Revolving Loan Commitment shall terminate on the Termination Date. On such Termination Date, there shall become due, and Borrowers shall pay, the entire outstanding principal amount of each Revolving Loan, together with accrued and unpaid Obligations pertaining thereto incurred to, but excluding the Termination Date; provided, however, that such payment is made not later than 12:00 Noon (Eastern time) on the Termination Date.
(ii) If at any time the Revolving Loan Outstandings exceed the Revolving Loan Limit, then, on the next succeeding Business Day, Borrowers shall repay the Revolving Loans or cash collateralize Letter of Credit Liabilities in the manner specified in Section 2.5(e) or cause the cancellation of outstanding Letters of Credit, or any combination of the foregoing, in an aggregate amount equal to such excess; provided, that if such excess is the sole and direct result of the establishment of a reserve against the Borrowing Base by Agent, then such excess shall be payable by Borrower within five (5) Business Days from the date in which such excess first arose.
(iii) Principal payable on account of Revolving Loans shall be payable by Borrowers to Agent (I) immediately upon the receipt by any Borrower or Agent of any payments on or proceeds from any of the Accounts, to the extent of such payments or proceeds, as further described in Section 2.11 below, and (II) in full on the Termination Date.
(c) Optional Prepayments. Borrowers may from time to time prepay the Revolving Loans in whole or in part without any corresponding reduction in the Revolving Loan Commitment; provided, however, that any such partial prepayment shall be in an amount equal to $100,000 or a higher integral multiple of $25,000.
(d) LIBOR Rate.
(i) Except as provided in subsection (C) below, Revolving Loans shall accrue interest at the LIBOR Rate plus the Applicable Margin.
(ii) The LIBOR Rate may be adjusted by Agent by notice to Borrower Representative with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining any eurodollar deposits or increased costs, in each case, due to changes in applicable Law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), which additional or increased costs would increase the cost of funding loans bearing interest based upon the LIBOR Rate; provided, however, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in applicable Law”, regardless of the date enacted, adopted or issued. In any such event, the affected Lender shall give Borrowers and Agent notice of such a determination and adjustment and Agent promptly shall transmit the notice to each other Lender and, along with a certificate from such Lender setting forth the basis for adjusting such LIBOR Rate and the method for determining the amount of such adjustment. Upon receipt of such notice, Borrowers may, by notice to such affected Lender, repay the Loans bearing interest based upon the LIBOR Rate with respect to which such adjustment is made.
(iii) In the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to fund or maintain Loans bearing interest based upon the LIBOR Rate or to continue such funding or maintaining, or to determine or charge interest rates at the LIBOR Rate, such
Lender shall give notice of such changed circumstances to Agent and Borrowers and Agent promptly shall transmit the notice to each other Lender and (I) in the case of any outstanding Loans of such Lender bearing interest based upon the LIBOR Rate, the date specified in such Lender’s notice shall be deemed to be the last day of the Interest Period of such Loans, and interest upon such Lender’s Loans thereafter shall accrue interest at Base Rate plus the Applicable Margin, and (II) such Loans shall continue to accrue interest at Base Rate plus the Applicable Margin until such Lender determines that it would no longer be unlawful or impractical to maintain such Loans at the LIBOR Rate.
(iv) Anything to the contrary contained herein notwithstanding, neither Agent nor any Lender is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues based on the LIBOR Rate.
(c) Additional Tranches. After the Closing Date, so long as no Default or Event of Default exists and subject to the terms of this Agreement, with the prior written consent of Agent and all Lenders in their sole discretion, the Revolving Loan Commitment may be increased upon the written request of Borrower Representative (which such request shall state the aggregate amount of the Additional Tranche requested and shall be made at least forty-five (45) days prior to the proposed effective date of such Additional Tranche) to Agent to activate an Additional Tranche; provided, however, that Agent and Lenders shall have no obligation to consent to any requested activation of an Additional Tranche and the written consent of Agent and all Lenders shall be required in order to activate an Additional Tranche. Upon activating an Additional Tranche, each Lender’s Revolving Loan Commitment Amount shall increase by a proportionate amount so as to maintain the same Pro Rata Share of the Revolving Loan Commitment and the Revolving Loans as such Lender held immediately prior to such activation. In the event Agent and all Lenders do not consent to the activation of a requested Additional Tranche within forty-five (45) days after receiving a written request from Borrower Representative, then the Revolving Loan Commitment shall not be increased and, within the next ninety (90) days, Borrowers may terminate this Agreement upon written notice to Agent and, if the Borrowing Base on the date of such request would have supported such increased Revolving Loan Commitment, upon repayment in full of all Obligations, no fee shall be due pursuant to Section 2.2(g) in connection with such termination
(v) Restriction on Termination. Notwithstanding any prepayment of the Revolving Loan Outstandings or any other termination of Lenders’ Credit Exposure under this Agreement, Agent and Lenders shall have no obligation to release any of the Collateral securing the Obligations under this Agreement while any portion of the Affiliated Obligations shall remain outstanding.
B. Interest, Interest Calculations and Certain Fees.
1. Interest. From and following the Closing Date, except as expressly set forth in this Agreement, Loans and the other Obligations shall bear interest at the sum of the LIBOR Rate plus the Applicable Margin. Interest on the Loans shall be paid in arrears on the first (1st) day of each month and on the maturity of such Loans, whether by acceleration or otherwise.
Interest on all other Obligations shall be payable upon demand. For purposes of calculating interest, all funds transferred to the Payment Account for application to any Revolving Loans shall be subject to a five Business Day clearance period and all interest accruing on such funds during such clearance period shall accrue for the benefit of Agent, and not for the benefit of Lenders.
2. Unused Line Fee. From and following the Closing Date, Borrowers shall pay Agent, for the benefit of all Lenders committed to make Revolving Loans, in accordance with their respective Pro Rata Shares, a fee in an amount equal to (i) (A) the Revolving Loan Commitment minus (B) the average daily balance of the sum of the Revolving Loan Outstandings during the preceding month, multiplied by (ii) 0.50% per annum. Such fee is to be paid monthly in arrears on the first day of each month.
3. Fee Letter. In addition to the other fees set forth herein, Borrowers agree to pay Agent the fees set forth in the Fee Letter.
4. Reserved.
5. Reserved.
6. Reserved.
7. Deferred Revolving Loan Origination Fee. If Lenders’ funding obligations in respect of the Revolving Loan Commitment under this Agreement terminate for any reason (whether by voluntary termination by Borrowers, by reason of the occurrence of an Event of Default or otherwise) other than as a result of a refinancing of 100% of the Loans by Agent and all Lenders prior to the Commitment Expiry Date and other than the reduction in the Revolving Loan Commitment on First Amendment Effective Date, Borrowers shall pay to Agent on the date of such termination, for the benefit of all Lenders committed to make Revolving Loans on the Closing Date, a fee as compensation for the costs of such Lenders being prepared to make funds available to Borrowers under this Agreement, equal to an amount determined by multiplying the Revolving Loan Commitment terminated by the following applicable percentage amount: three percent (3%) for the first year following the ClosingFirst Amendment Effective Date, two percent (2%) for the second year following the ClosingFirst Amendment Effective Date, and one percent (1%) thereafter. All fees payable pursuant to this paragraph shall be deemed fully earned and non-refundable as of the Closing Date.
8. Audit Fees. Borrowers shall pay to Agent, for its own account and not for the benefit of any other Lenders, all reasonable fees and expenses in connection with audits and inspections of Borrowers’ books and records, audits, valuations or appraisals of the Collateral, audits of Borrowers’ compliance with applicable Laws and such other matters as Agent shall deem appropriate, which shall be due and payable on the first Business Day of the month following the date of issuance by Agent of a written request for payment thereof to Borrowers.
9. Wire Fees. Borrowers shall pay to Agent, for its own account and not for the account of any other Lenders, on written demand, fees for incoming and outgoing wires made for the account of Borrowers, such fees to be based on Agent’s then current wire fee schedule (available upon written request of Borrowers).
10. Late Charges. If payments of principal (other than a final installment of principal upon the Termination Date), interest due on the Obligations, or any other amounts due hereunder or under the other Financing Documents are not timely made and remain overdue for a period of five (5) days, Borrowers, without notice or demand by Agent, promptly shall pay to Agent, for its own account and not for the benefit of any other Lenders, as additional compensation to Agent in administering the Obligations, an amount equal to five percent (5%) of each delinquent payment.
11. Computation of Interest and Related Fees. All interest and fees under each Financing Document shall be calculated on the basis of a 360-day year for the actual number of days elapsed. The date of funding of a Loan shall be included in the calculation of interest. The date of payment of a Loan shall be excluded from the calculation of interest. If a Loan is repaid on the same day that it is made, one (1) day’s interest shall be charged.
C. Notes. The portion of the Loans made by each Lender shall be evidenced, if so requested by such Lender, by one or more promissory notes executed by Borrowers on a joint and several basis (each, a “Note”) in an original principal amount equal to such Lender’s Revolving Loan Commitment Amount. Upon activation of an Additional Tranche in accordance with Section 2.1(c) hereof, Borrowers shall deliver to each Lender to whom Borrowers previously delivered a Note, a restated Note evidencing such Lender’s Revolving Loan Commitment Amount and each such Lender shall appropriately legend any prior Note to indicate that it has been replaced by such new Note
D. Reserved.
E. Letters of Credit and Letter of Credit Fees.
1. Letter of Credit. On the terms and subject to the conditions set forth herein, the Revolving Loan Commitment may be used by Borrowers, in addition to the making of Revolving Loans hereunder, for the issuance, prior to that date which is one (1) year prior to the Termination Date, by (i) Agent, of letters of credit, Guarantees or other agreements or arrangements (each, a “Support Agreement”) to induce an LC Issuer to issue or increase the amount of, or extend the expiry date of, one or more Letters of Credit and (ii) a Lender, identified by Agent, as an LC Issuer, of one or more Lender Letters of Credit, so long as, in each case:
(a) Agent shall have received a Notice of LC Credit Event at least five (5) Business Days before the relevant date of issuance, increase or extension; and
(b) after giving effect to such issuance, increase or extension, (A) the aggregate Letter of Credit Liabilities do not exceed $0, and (B) the Revolving Loan Outstandings do not exceed the Revolving Loan Limit.
Nothing in this Agreement shall be construed to obligate any Lender to issue, increase the amount of or extend the expiry date of any Letter of Credit, which act or acts, if any, shall be subject to agreements to be entered into from time to time between Borrowers and such Lender. Each Lender that is an LC Issuer hereby agrees to give Agent prompt written notice of each issuance of a Lender Letter of Credit by such Lender and each payment made by such Lender in respect of Lender Letters of Credit issued by such Lender.
Notwithstanding anything to the contrary set forth herein, Borrowers agree and acknowledge that no part of the Revolving Loan Commitment will be available for the issuance of a Letter of Credit until such times as Agent notifies Borrower Representative that a Lender party to this Agreement is an LC Issuer.
2. Letter of Credit Fee. Borrowers shall pay to Agent, for the benefit of the Revolving Lenders in accordance with their respective Pro Rata Shares, a letter of credit fee with respect to the Letter of Credit Liabilities for each Letter of Credit, computed for each day from the date of issuance of such Letter of Credit to the date that is the last day a drawing is available under such Letter of Credit, at a rate per annum equal to the Applicable Margin then applicable to Loans bearing interest based upon the LIBOR Rate. Such fee shall be payable in arrears on the first day of each calendar month prior to the Termination Date and on such date. In addition, Borrowers agree to pay promptly to the LC Issuer any fronting or other fees that it may charge in connection with any Letter of Credit.
3. Reimbursement Obligations of Borrowers. If either (i) Agent shall make a payment to an LC Issuer pursuant to a Support Agreement, or (ii) any Lender shall notify Agent that it has made payment in respect of, a Lender Letter of Credit, (A) the applicable Borrower shall reimburse Agent or such Lender, as applicable, for the amount of such payment by the end of the day on which Agent or such Lender shall make such payment and (B) Borrowers shall be deemed to have immediately requested that Revolving Lenders make a Revolving Loan, in a principal amount equal to the amount of such payment (but solely to the extent such Borrower shall have failed to directly reimburse Agent or, with respect to Lender Letters of Credit, the applicable LC Issuer, for the amount of such payment). Agent shall promptly notify Revolving Lenders of any such deemed request and each Revolving Lender hereby agrees to make available to Agent not later than 12:00 Noon (Eastern time) on the Business Day following such notification from Agent such Revolving Lender’s Pro Rata Share of such Revolving Loan. Each Revolving Lender hereby absolutely and unconditionally agrees to fund such Revolving Lender’s Pro Rata Share of the Loan described in the immediately preceding sentence, unaffected by any circumstance whatsoever, including, without limitation, (x) the occurrence and continuance of a Default or Event of Default, (y) the fact that, whether before or after giving effect to the making of any such Revolving Loan, the Revolving Loan Outstandings exceed or will exceed the Revolving Loan Limit, and/or (z) the non-satisfaction of any conditions set forth in Section 7.2. Agent hereby agrees to apply the gross proceeds of each Revolving Loan deemed made pursuant to this Section 2.5(c) in satisfaction of Borrowers’ reimbursement obligations arising pursuant to this Section 2.5(c). Borrowers shall pay interest, on demand, on all amounts so paid by Agent pursuant to any Support Agreement or to any applicable Lender in honoring a draw request under any Lender Letter of Credit for each day from the date of such payment until Borrowers reimburse Agent or the applicable Lender therefor (whether pursuant to clause (A) or (B) of the first sentence of this subsection (c)) at a rate per annum equal to the sum of two percent (2%) plus the interest rate applicable to Revolving Loans for such day.
4. Reimbursement and Other Payments by Borrowers. The obligations of each Borrower to reimburse Agent and/or the applicable LC Issuer pursuant to Section 2.5(c) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including the following:
(a) any lack of validity or enforceability of, or any amendment or waiver of or any consent to departure from, any Letter of Credit or any related document;
(b) the existence of any claim, set-off, defense or other right which any Borrower may have at any time against the beneficiary of any Letter of Credit, the LC Issuer (including any claim for improper payment), Agent, any Lender or any other Person, whether in connection with any Financing Document or any unrelated transaction; provided, however, that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(c) any statement or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(d) any affiliation between the LC Issuer and Agent; or
(e) to the extent permitted under applicable law, any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
5. Deposit Obligations of Borrowers. In the event any Letters of Credit are outstanding at the time that Borrowers prepay in full or are required to repay the Obligations or the Revolving Loan Commitment is terminated, Borrowers shall (i) deposit with Agent for the benefit of all Revolving Lenders cash in an amount equal to one hundred five percent (105%) of the aggregate outstanding Letter of Credit Liabilities to be available to Agent, for its benefit and the benefit of issuers of Letters of Credit, to reimburse payments of drafts drawn under such Letters of Credit and pay any fees and expenses related thereto, and (ii) prepay the fee payable under Section 2.5(b) with respect to such Letters of Credit for the full remaining terms of such Letters of Credit assuming that the full amount of such Letters of Credit as of the date of such repayment or termination remain outstanding until the end of such remaining terms. Upon termination of any such Letter of Credit and so long as no Event of Default has occurred and is continuing, the unearned portion of such prepaid fee attributable to such Letter of Credit shall be refunded to Borrowers, together with the deposit described in the preceding clause (i) attributable to such Letter of Credit, but only to the extent not previously applied by Agent in the manner described herein.
6. Participations in Support Agreements and Lender Letters of Credit.
(a) Concurrently with the issuance of each Supported Letter of Credit, Agent shall be deemed to have sold and transferred to each Revolving Lender, and each such Revolving Lender shall be deemed irrevocably and immediately to have purchased and received from Agent, without recourse or warranty, an undivided interest and participation in, to the extent of such Lender’s Pro Rata Share, Agent’s Support Agreement liabilities and obligations in respect of such Supported Letter of Credit and Borrowers’ Reimbursement Obligations with respect thereto. Concurrently with the issuance of each Lender Letter of Credit, the LC Issuer in respect thereof shall be deemed to have sold and transferred to each Revolving Lender, and each such Revolving Lender shall be deemed irrevocably and immediately to have purchased and received from such LC Issuer, without
recourse or warranty, an undivided interest and participation in, to the extent of such Lender’s Pro Rata Share, such Lender Letter of Credit and Borrowers’ Reimbursement Obligations with respect thereto. Any purchase obligation arising pursuant to the immediately two preceding sentences shall be absolute and unconditional and shall not be affected by any circumstances whatsoever.
(b) If either (A) Agent makes any payment or disbursement under any Support Agreement and/or (B) an LC Issuer makes any payment or disbursement under any Lender Letter of Credit, and (I) Borrowers have not reimbursed Agent or the applicable LC Issuer, as applicable, in full for such payment or disbursement in accordance with Section 2.5(c), or (II) any reimbursement under any Support Agreement or Lender Letter of Credit received by Agent or any LC Issuer, as applicable, from any Credit Party is or must be returned or rescinded upon or during any bankruptcy or reorganization of any Credit Party or otherwise, each Revolving Lender shall be irrevocably and unconditionally obligated to pay to Agent or the applicable LC Issuer, as applicable, its Pro Rata Share of such payment or disbursement (but no such payment shall diminish the Obligations of Borrowers under Section 2.5(c)). To the extent any such Revolving Lender shall not have made such amount available to Agent or the applicable LC Issuer, as applicable, before 12:00 Noon (Eastern time) on the Business Day on which such Lender receives notice from Agent or the applicable LC Issuer, as applicable, of such payment or disbursement, or return or rescission, as applicable, such Lender agrees to pay interest on such amount to Agent or the applicable LC Issuer, as applicable, forthwith on demand accruing daily at the Federal Funds Rate, for the first three (3) days following such Lender’s receipt of such notice, and thereafter at the Base Rate plus the Applicable Margin in respect of Revolving Loans. Any such Revolving Lender’s failure to make available to Agent or the applicable LC Issuer, as applicable, its Pro Rata Share of any such payment or disbursement, or return or rescission, as applicable, shall not relieve any other Lender of its obligation hereunder to make available such other Revolving Lender’s Pro Rata Share of such payment, but no Revolving Lender shall be responsible for the failure of any other Lender to make available such other Lender’s Pro Rata Share of any such payment or disbursement, or return or rescission.
F. General Provisions Regarding Payment; Loan Account.
1. All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after
12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day.
2. Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.
G. Maximum Interest. In no event shall the interest charged with respect to the Loans or any other Obligations of any Borrower under any Financing Document exceed the maximum amount permitted under the laws of the State of New York or of any other applicable jurisdiction. Notwithstanding anything to the contrary herein or elsewhere, if at any time the rate of interest payable hereunder or under any Note or other Financing Document (the “Stated Rate”) would exceed the highest rate of interest permitted under any applicable law to be charged (the “Maximum Lawful Rate”), then for so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the Stated Rate is less than the Maximum Lawful Rate, each Borrower shall, to the extent permitted by law, continue to pay interest at the Maximum Lawful Rate until such time as the total interest received is equal to the total interest which would have been received had the Stated Rate been (but for the operation of this provision) the interest rate payable. Thereafter, the interest rate payable shall be the Stated Rate unless and until the Stated Rate again would exceed the Maximum Lawful Rate, in which event this provision shall again apply. In no event shall the total interest received by any Lender exceed the amount which it could lawfully have received had the interest been calculated for the full term hereof at the Maximum Lawful Rate. If, notwithstanding the prior sentence, any Lender has received interest hereunder in excess of the Maximum Lawful Rate, such excess amount shall be applied to the reduction of the principal balance of the Loans or to other amounts (other than interest) payable hereunder, and if no such principal or other amounts are then outstanding, such excess or part thereof remaining shall be paid to Borrowers. In computing interest payable with reference to the Maximum Lawful Rate applicable to any Lender, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made.
H. Taxes; Capital Adequacy.
1. Except as required by applicable Law, all payments of principal and interest on the Loans and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp, documentary, payroll, employment,
property or franchise taxes and other taxes, fees, duties, levies, assessments, withholdings or other charges of any nature whatsoever (including interest and penalties thereon) imposed by any taxing authority, (“Taxes”). If any withholding or deduction from any payment to be made by any Borrower hereunder is required in respect of any Taxes pursuant to any applicable Law, then Borrowers will: (i) be entitled to make such withholding or deduction, (ii) pay directly to the relevant authority the full amount required to be so withheld or deducted; (iii) promptly forward to Agent an official receipt or other documentation satisfactory to Agent evidencing such payment to such authority; and (iv) if such Tax is an Indemnified Tax, pay to Agent for the account of Agent and Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by Agent and each Lender will equal the full amount Agent and such Lender would have received had no such withholding or deduction been required (including, without limitation, such withholdings and deductions applicable to additional sums payable under this Section 2.8). If any Indemnified Taxes are directly asserted against Agent or any Lender with respect to any payment received by Agent or such Lender hereunder, Agent or such Lender may pay such Indemnified Taxes and Borrowers will promptly pay such additional amounts (including any penalty, interest or expense) as is necessary in order that the net amount received by such Person after the payment of such Indemnified Taxes (including any Indemnified Taxes on such additional amount) shall equal the amount such Person would have received had such Indemnified Taxes not been asserted so long as such amounts have accrued on or after the day which is two hundred seventy (270) days prior to the date on which Agent or such Lender first made written demand therefor.
2. The Credit Parties shall indemnify Agent and Lenders, within ten (10) days after demand thereof, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.8) payable or paid by Agent or any Lender or required to be withheld or deducted from a payment to Agent or any Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes and Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate in reasonable detail as to the amount of such payment or liability delivered to Borrower Representative by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
3.
(a) Each Lender that (i) is organized under the laws of a jurisdiction other than the United States, and (ii)(A) is a party hereto on the Closing Date or (B) purports to become an assignee of an interest as a Lender under this Agreement after the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) shall, to the extent legally entitled to do so, deliver on or prior to the date on which such Lender becomes a Lender (or such assignee acquires such assigned interest) to Borrower Representative and Agent one or more (as Borrower Representative or Agent may reasonably request) United States Internal Revenue Service (“IRS”) Forms W-8ECI, W-8BEN, W-8BEN-E, W-8IMY (as applicable) and other applicable forms, certificates or documents prescribed by the United States Internal Revenue Service or reasonably requested by Agent certifying as to such Lender’s entitlement to a complete exemption from, or reduced rate of, withholding or deduction of Taxes. Each Lender that is a United States Person and is a party hereto on the Closing Date or purports to become an assignee
of an interest as a Lender under this Agreement after the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) shall deliver on or prior to the date on which such Lender becomes a Lender (or such assignee acquires such assigned interest) to Borrower Representative and Agent an IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax.
(b) To the extent permitted by Law, each Lender shall deliver, at the time or times reasonably requested by Borrower Representative or Agent, such additional properly completed and executed documentation as is reasonably requested by Borrower Representative or Agent to permit payments hereunder to be made without withholding or at a reduced rate of withholding. Without limiting the foregoing, each Lender shall timely provide any documentation reasonably requested by Borrower Representative or Agent sufficient for Borrowers and Agent to comply with their obligations under FATCA and to determine whether such Lender has complied with applicable reporting requirements under FATCA.
(c) Each Lender shall (to the extent legally entitled to do so) provide updated forms to Borrower Representative and Agent on or prior to the date any prior form previously provided under this Section 2.8(c) becomes obsolete or expires, after the occurrence of an event requiring a change in the most recent form or certification previously delivered by it pursuant to this Section 2.8(c) or from time to time if requested by Borrowers or Agent.
4. If any Lender shall determine in its commercially reasonable judgment that the adoption or taking effect of, or any change in, any applicable Law regarding capital adequacy, in each instance, after the Closing Date, or any change after the Closing Date in the interpretation, administration or application thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation, administration or application thereof, or the compliance by any Lender or any Person controlling such Lender with any request, guideline or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency adopted or otherwise taking effect after the Closing Date, has or would have the effect of reducing the rate of return on such Lender’s or such controlling Person’s capital as a consequence of such Lender’s obligations hereunder or under any Support Agreement or Lender Letter of Credit to a level below that which such Lender or such controlling Person could have achieved but for such adoption, taking effect, change, interpretation, administration, application or compliance (taking into consideration such Lender’s or such controlling Person’s policies with respect to capital adequacy) then from time to time, upon written demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall promptly pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is two hundred seventy (270) days prior to the date on which such Lender first made demand therefor; provided, however, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in applicable Law”, regardless of the date enacted, adopted or issued.
5. If any Lender requires compensation under Section 2.8(d), or requires any Borrower to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.8(a), then, upon the written request of Borrower Representative, such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder (subject to the terms of this Agreement) to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or materially reduce amounts payable pursuant to any such subsection, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender (as determined in its sole discretion). Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
6. If any Lender determines, in its sole discretion exercised in good faith, that it has received a refund in respect of any Taxes as to which it has been indemnified by any Borrower pursuant to this Section 2.8 (including the payment of additional amounts pursuant to this Section 2.8), then it shall promptly pay an amount equal to such refund to Borrower Representative, net of all reasonable out-of-pocket expenses of such Lender or of Agent with respect thereto, including any Taxes; provided, however, that each Borrower, upon the written request of such Lender or Agent, agrees to repay any amount paid over to Borrower Representative to such Lender or to Agent (plus any related penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Lender or Agent is required, for any reason, to disgorge or otherwise repay such refund. Notwithstanding anything to the contrary in this Section 2.8, in no event will a Lender be required to pay any amount to a Borrower pursuant to this Section 2.8(f) the payment of which would place such Lender in a less favorable net after-Tax position than such Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.8 shall not be construed to require any Lender (or Agent) to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower (or affiliate, successor or assignee thereof) or any other Person.
7. Each Lender shall severally indemnify Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.17(b)(ii) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Agent in connection with any Financing Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Agent to set off and apply any and all amounts at any time
owing to such Lender under any Financing Document or otherwise payable by Agent to such Lender from any other source against any amount due to Agent under this paragraph (g).
8. Each party’s obligations under this Section 2.8 shall survive the resignation or replacement of Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Obligations and the repayment, satisfaction or discharge of all obligations under any Financing Document.
I. Appointment of Borrower Representative. Each Borrower hereby designates Borrower Representative as its representative and agent on its behalf for the purposes of issuing Notices of Borrowing, Notices of LC Credit Events and Borrowing Base Certificates, and giving instructions with respect to the disbursement of the proceeds of the Loans, requesting Letters of Credit, giving and receiving all other notices and consents hereunder or under any of the other Financing Documents and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or Borrowers under the Financing Documents. Borrower Representative hereby accepts such appointment. Notwithstanding anything to the contrary contained in this Agreement, no Borrower other than Borrower Representative shall be entitled to take any of the foregoing actions. The proceeds of each Loan made hereunder shall be advanced to or at the direction of Borrower Representative and if not used by Borrower Representative in its business (for the purposes provided in this Agreement) shall be deemed to be immediately advanced by Borrower Representative to the appropriate other Borrower hereunder as an intercompany loan (collectively, “Intercompany Loans”). All Letters of Credit and Support Agreements issued hereunder shall be issued at Borrower Representative’s request therefor and shall be allocated to the appropriate Borrower’s Intercompany Loan account by Borrower Representative. All collections of each Borrower in respect of Accounts and other proceeds of Collateral of such Borrower received by Agent and applied to the Obligations shall also be deemed to be repayments of the Intercompany Loans owing by such Borrower to Borrower Representative. Borrowers shall maintain accurate books and records with respect to all Intercompany Loans and all repayments thereof. Agent and each Lender may regard any notice or other communication pursuant to any Financing Document from Borrower Representative as a notice or communication from all Borrowers, and may give any notice or communication required or permitted to be given to any Borrower or all Borrowers hereunder to Borrower Representative on behalf of such Borrower or all Borrowers. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.
J. Joint and Several Liability; Rights of Contribution; Subordination and Subrogation.
1. Borrowers are defined collectively to include all Persons named as a Borrower herein; provided, however, that any references herein to “any Borrower”, “each Borrower” or similar references, shall be construed as a reference to each individual Person named as a Borrower herein. Each Person so named shall be jointly and severally liable for all of the obligations of Borrowers under this Agreement. Each Borrower, individually, expressly understands, agrees and acknowledges, that the credit facilities would not be made available on
the terms herein in the absence of the collective credit of all of the Persons named as a Borrower herein, the joint and several liability of all such Persons, and the cross-collateralization of the collateral of all such Persons. Accordingly, each Borrower individually acknowledges that the benefit to each of the Persons named as a Borrower as a whole constitutes reasonably equivalent value, regardless of the amount of the credit facilities actually borrowed by, advanced to, or the amount of collateral provided by, any individual Borrower. In addition, each entity named as a Borrower herein hereby acknowledges and agrees that all of the representations, warranties, covenants, obligations, conditions, agreements and other terms contained in this Agreement shall be applicable to and shall be binding upon and measured and enforceable individually against each Person named as a Borrower herein as well as all such Persons when taken together. By way of illustration, but without limiting the generality of the foregoing, the terms of Section 10.1 of this Agreement are to be applied to each individual Person named as a Borrower herein (as well as to all such Persons taken as a whole), such that the occurrence of any of the events described in Section 10.1 of this Agreement as to any Person named as a Borrower herein shall constitute an Event of Default even if such event has not occurred as to any other Persons named as a Borrower or as to all such Persons taken as a whole.
2. Notwithstanding any provisions of this Agreement to the contrary, it is intended that the joint and several nature of the liability of each Borrower for the Obligations and the Liens granted by Borrowers to secure the Obligations, not constitute a Fraudulent Conveyance (as defined below). Consequently, Agent, Lenders and each Borrower agree that if the liability of a Borrower for the Obligations, or any Liens granted by such Borrower securing the Obligations would, but for the application of this sentence, constitute a Fraudulent Conveyance, the liability of such Borrower and the Liens securing such liability shall be valid and enforceable only to the maximum extent that would not cause such liability or such Lien to constitute a Fraudulent Conveyance, and the liability of such Borrower and this Agreement shall automatically be deemed to have been amended accordingly. For purposes hereof, the term “Fraudulent Conveyance” means a fraudulent conveyance under Section 548 of Chapter 11 of Title II of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the applicable provisions of any fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit, as in effect from time to time.
3. Agent is hereby authorized, without notice or demand (except as otherwise specifically required under this Agreement) and without affecting the liability of any Borrower hereunder, at any time and from time to time, to: (i) renew, extend or otherwise increase the time for payment of the Obligations; (ii) with the written agreement of any Borrower, change the terms relating to the Obligations or otherwise modify, amend or change the terms of any Note or other agreement, document or instrument now or hereafter executed by any Borrower and delivered to Agent for any Lender; (iii) accept partial payments of the Obligations; (iv) take and hold any Collateral for the payment of the Obligations or for the payment of any guaranties of the Obligations and exchange, enforce, waive and release any such Collateral; (v) apply any such Collateral and direct the order or manner of sale thereof as Agent, in its sole discretion, may determine; and (vi) settle, release, compromise, collect or otherwise liquidate the Obligations and any Collateral therefor in any manner, all guarantor and surety defenses being hereby waived by each Borrower. Without limitation of the foregoing, with respect to the Obligations, each Borrower hereby makes and adopts each of the agreements and waivers set forth in each Guarantee, the same being incorporated hereby by reference. Except as specifically provided in this
Agreement or any of the other Financing Documents, Agent shall have the exclusive right to determine the time and manner of application of any payments or credits, whether received from any Borrower or any other source, and such determination shall be binding on all Borrowers. All such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of the Obligations that Agent shall determine, in its sole discretion, without affecting the validity or enforceability of the Obligations of the other Borrower.
4. Each Borrower hereby agrees that, except as hereinafter provided, its obligations hereunder shall be unconditional, irrespective of: (i) the absence of any attempt to collect the Obligations from any obligor or other action to enforce the same; (ii) the waiver or consent by Agent with respect to any provision of any instrument evidencing the Obligations, or any part thereof, or any other agreement heretofore, now or hereafter executed by a Borrower and delivered to Agent; (iii) failure by Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations; (iv) the institution of any proceeding under the Bankruptcy Code, or any similar proceeding, by or against a Borrower or Agent’s election in any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code; (v) any borrowing or grant of a security interest by a Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code; (vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Agent’s claim(s) for repayment of any of the Obligations; or (vii) any other circumstance other than payment in full of the Obligations which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety.
5. Borrowers hereby agree, as between themselves, that to the extent that Agent, on behalf of Lenders, shall have received from any Borrower any Recovery Amount (as defined below), then the paying Borrower shall have a right of contribution against each other Borrower in an amount equal to such other Borrower’s contributive share of such Recovery Amount; provided, however, that in the event any Borrower suffers a Deficiency Amount (as defined below), then the applicable Borrower suffering the Deficiency Amount shall be entitled to seek and receive contribution from and against the other Borrowers in an amount equal to the Deficiency Amount; and provided, further, that in no event shall the aggregate amounts so reimbursed by reason of the contribution of any Borrower equal or exceed an amount that would, if paid, constitute or result in Fraudulent Conveyance. Until all Obligations have been paid and satisfied in full, no payment made by or for the account of a Borrower including, without limitation, (i) a payment made by such Borrower on behalf of the liabilities of any other Borrower, or (ii) a payment made by any other Guarantor under any Guarantee, shall entitle such Borrower, by subrogation or otherwise, to any payment from such other Borrower or from or out of such other Borrower’s property. The right of each Borrower to receive any contribution under this Section 2.10(e) or by subrogation or otherwise from any other Borrower shall be subordinate in right of payment to the Obligations and such Borrower shall not exercise any right or remedy against such other Borrower or any property of such other Borrower by reason of any performance of such Borrower of its joint and several obligations hereunder, until the Obligations have been indefeasibly paid and satisfied in full, and no Borrower shall exercise any right or remedy with respect to this Section 2.10(e) until the Obligations have been indefeasibly paid and satisfied in full. As used in this Section 2.10(e), the term “Recovery Amount” means the amount of proceeds received by or credited to Agent from the exercise of any remedy of Lenders under this Agreement or the other Financing Documents, including, without limitation, the sale of any Collateral. As used in this Section 2.10(e), the term “Deficiency Amount” means any amount that is less than
the entire amount a Borrower is entitled to receive by way of contribution or subrogation from, but that has not been paid by, the other Borrowers in respect of any Recovery Amount attributable to such Borrower entitled to contribution, until the Deficiency Amount has been reduced to $0 through contributions and reimbursements made under the terms of this Section 2.10(e) or otherwise.
K. Collections and Lockbox Account.
1. Borrowers shall maintain a lockbox (the “Lockbox”) with a United States depository institution designated from time to time by Agent (the “Lockbox Bank”), subject to the provisions of this Agreement, and shall execute with the Lockbox Bank a Deposit Account Control Agreement and such other agreements related to such Lockbox as Agent may reasonably require. At all times following the Collections Account Post-Closing Period, Borrowers shall ensure that all collections of Third Party Accounts are paid directly by the applicable Third Party Account Debtor (i) into the Lockbox for deposit into the Lockbox Account and/or (ii) directly into the Lockbox Account. At all times during the Collections Account Post-Closing Period, Borrowers shall ensure that (x) by the close of business on Wednesday of each calendar week, all collections received from any Third Party Account Debtor prior to such Wednesday are transferred into the Payment Account and (y) by the close of business on Friday of each calendar week, all collections received from any Third Party Account Debtor prior to such Friday are transferred into the Payment Account. At all times following the Collections Account Post-Closing Period, all funds deposited into a Lockbox Account shall be transferred into the Payment Account (or, prior to the time of the initial borrowing of the Revolving Loans, such Deposit Account of Borrower, as Agent may direct in its sole discretion) by the close of each Business Day.
2. Notwithstanding anything in any lockbox agreement or Deposit Account Control Agreement to the contrary, Borrowers agree that they shall be liable for any fees and charges in effect from time to time and charged by the Lockbox Bank in connection with the Lockbox and the Lockbox Account, and that Agent shall have no liability therefor. Borrowers hereby indemnify and agree to hold Agent harmless from any and all liabilities, claims, losses and demands whatsoever, including reasonable and documented attorneys’ fees and expenses, arising from or relating to actions of Agent or the Lockbox Bank pursuant to this Section or any lockbox agreement or Deposit Account Control Agreement or similar agreement, except to the extent of such losses arising solely from Agent’s gross negligence or willful misconduct.
3. Agent shall apply, on a daily basis, all funds transferred into the Payment Account pursuant to this Section to reduce the outstanding Revolving Loans in such order of application as Agent shall elect. If as the result of collections of Accounts pursuant to the terms and conditions of this Section, a credit balance exists with respect to the Loan Account, such credit balance shall not accrue interest in favor of Borrowers, but Agent shall transfer such funds into an account designated by Borrower Representative for so long as no Event of Default exists.
4. To the extent that any collections of Accounts or proceeds of Inventory are not sent directly to the Lockbox or Lockbox Account but are received by any Borrower, such collections shall be held in trust for the benefit of Agent pursuant to an express trust created hereby and immediately remitted, in the form received, to the applicable Lockbox or Lockbox Account. At all times following the Collections Account Post-Closing Period, no such funds received by
any Borrower shall be commingled with other funds of Borrowers. If any funds received by any Borrower are commingled with other funds of Borrowers, or are required to be deposited to a Lockbox or Lockbox Account and are not so deposited within two (2) Business Days, then Borrowers shall pay to Agent, for its own account and not for the account of any other Lenders, a compliance fee equal to $500 for each day that any such conditions exist.
5. Borrowers acknowledge and agree that compliance with the terms of this Section is essential, and that Agent and Lenders will suffer immediate and irreparable injury and have no adequate remedy at law, if any Borrower, through acts or omissions, causes or permits Account Debtors to send payments other than to the Lockbox or Lockbox Accounts or if any Borrower fails to promptly deposit collections of Accounts or proceeds of Inventory in the Lockbox Account as herein required. Accordingly, in addition to all other rights and remedies of Agent and Lenders hereunder, Agent shall have the right to seek specific performance of Borrowers’ obligations under this Section, and any other equitable relief as Agent may deem necessary or appropriate, and Borrowers waive any requirement for the posting of a bond in connection with such equitable relief.
6. Borrowers shall not, and Borrowers shall not suffer or permit any Credit Party to, (i) withdraw any amounts from any Lockbox Account, (ii) change the procedures or sweep instructions under the agreements governing any Lockbox Accounts, or (iii) send to or deposit in any Lockbox Account any funds other than payments made with respect to and proceeds of Accounts or other Collateral. Borrowers shall, and shall cause each Credit Party to, cooperate with Agent in the identification and reconciliation on a weekly basis of all amounts received in or required to be deposited into the Lockbox Accounts. If more than five percent (5%) of the collections of Accounts received by Borrowers during any given fifteen (15) day period is not identified or reconciled to the reasonable satisfaction of Agent within ten (10) Business Days of receipt, Agent shall not be obligated to make further advances under this Agreement until such amount is identified or is reconciled to the reasonable satisfaction of Agent, as the case may be. In addition, if any such amount cannot be identified or reconciled to the reasonable satisfaction of Agent, Agent may utilize its own staff or, if it deems necessary, engage an outside auditor, in either case at Borrowers’ expense (which in the case of Agent’s own staff shall be in accordance with Agent’s then prevailing customary charges (plus expenses)), to make such examination and report as may be necessary to identify and reconcile such amount.
7. If any Borrower breaches its obligation to direct payments of Accounts and the proceeds of Inventory to the Lockbox Account, Agent, as the irrevocably made, constituted and appointed true and lawful attorney for Borrowers, may, by the signature or other act of any of Agent’s authorized representatives (without requiring any of them to do so), direct any Account Debtor to pay Accounts and proceeds of Inventory to Borrowers by directing payment to the Lockbox Account.
L. Termination; Restriction on Termination.
1. Termination by Lenders. In addition to the rights set forth in Section 10.2, Agent may, and at the direction of Required Lenders shall, terminate this Agreement without notice during the existence of an Event of Default.
2. Termination by Borrowers. Upon at least five (5) Business Days’ (or such shorter period as Agent, in its sole discretion, shall agree) prior written notice to Agent and Lenders, Borrowers may, at their option, terminate this Agreement; provided, however, that no such termination shall be effective until Borrowers have (i) paid or collateralized to Agent’s reasonable satisfaction all of the Obligations in immediately available funds, all Letters of Credit and Support Agreements have expired, terminated or have been cash collateralized to Agent’s reasonable satisfaction, and (ii) complied with Section 2.2(g) and the terms of the Fee Letter and (iii) terminated the Affiliated Financing Documents. Any notice of termination given by Borrowers shall be irrevocable unless all Lenders otherwise agree in writing and no Lender shall have any obligation to make any Loans or issue or procure any Letters of Credit or Support Agreements on or after the termination date stated in such notice. Borrowers may elect to terminate this Agreement in its entirety only. No section of this Agreement or type of Loan available hereunder may be terminated singly.
3. Effectiveness of Termination. All of the Obligations shall be immediately due and payable upon the Termination Date. All undertakings, agreements, covenants, warranties and representations of Borrowers contained in the Financing Documents shall survive any such termination and Agent shall retain its Liens in the Collateral and Agent and each Lender shall retain all of its rights and remedies under the Financing Documents notwithstanding such termination until all Obligations (other than with respect to contingent indemnification obligations for which no claim has been made) have been discharged or paid, in full, in immediately available funds, including, without limitation, all Obligations under Section 2.2(g) and the terms of the Fee Letter resulting from such termination. Notwithstanding the foregoing or the payment in full of the Obligations, Agent shall not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agent may reasonably expect to incur as a result of dishonored checks or other items of payment received by Agent from Borrower or any Account Debtor and applied to the Obligations, Agent shall, at its option, (i) have received a written agreement reasonably satisfactory to Agent, executed by Borrowers and by any Person whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying Agent and each Lender from any such loss or damage or (ii) have retained cash Collateral or other Collateral for such period of time as Agent, in its reasonable discretion, may deem necessary to protect Agent and each Lender from any such loss or damage.
4. Partial Collateral Release. In respect of Collateral that is disposed of in connection with a Permitted Asset Disposition, the security interest in such Collateral (but not in respect of Collateral not so disposed of) shall be automatically terminated upon such disposition without any further action by any party.
5. Actions by Agent. Without limiting the foregoing clauses (a) — (d), Agent will, at the sole expense of Borrowers, take such actions as may be reasonably requested by Borrowers to evidence any of the foregoing releases set forth in clauses (c) and (d) above (including duly assigning, transferring and delivering to or at the direction of Borrowers (without recourse and without any representation or warranty) such of the Collateral as may then be in the possession of Agent, together with any monies at the time held by Agent hereunder, and executing and delivering to Borrowers a proper instrument or instruments, as reasonably requested, acknowledging the satisfaction and termination of this Agreement (in the case of clause (c) above)
and the release of Liens hereunder and under the other Financing Documents), all of which shall be in form and substance acceptable to Agent.
III. REPRESENTATIONS AND WARRANTIES
To induce Agent and Lenders to enter into this Agreement and to make the Loans and other credit accommodations contemplated hereby, each Borrower hereby represents and warrants to Agent and each Lender that:
A. Existence and Power. Each Credit Party is an entity as specified on Schedule 3.1, is duly organized, validly existing and in good standing under the laws of the jurisdiction specified on Schedule 3.1 and no other jurisdiction, has the same legal name as it appears in such Credit Party’s Organizational Documents and an organizational identification number (if any), in each case as specified on Schedule 3.1, and has all powers and all Permits necessary or desirable in the operation of its business as presently conducted or as proposed to be conducted, except where the failure to have such Permits could not reasonably be expected to have a Material Adverse Effect. Each Credit Party is qualified to do business as a foreign entity in each jurisdiction in which it is required to be so qualified, which jurisdictions as of the ClosingFirst Amendment Effective Date are specified on Schedule 3.1, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect. As of the ClosingFirst Amendment Effective Date, except as set forth on Schedule 3.1, no Credit Party (a) has had, over the five (5) year period preceding the Closing Date, any name other than its current name, or (b) was incorporated or organized under the laws of any jurisdiction other than its current jurisdiction of incorporation or organization.
B. Organization and Governmental Authorization; No Contravention. The execution, delivery and performance by each Credit Party of the Operative Documents to which it is a party are within its powers, have been duly authorized by all necessary action pursuant to its Organizational Documents, require no further action by or in respect of, or filing with, any Governmental Authority, except for the filings necessary to perfect the Liens created by the Financing Documents and any necessary filings with the SEC, and do not violate, conflict with or cause a breach or a default under (a) any Law applicable to any Credit Party or any of the Organizational Documents of any Credit Party, or (b) any agreement or instrument binding upon it, except for such violations, conflicts, breaches or defaults as could not, with respect to this clause (b), reasonably be expected to have a Material Adverse Effect.
C. Binding Effect. Each of the Operative Documents to which any Credit Party is a party constitutes a valid and binding agreement or instrument of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.
D. Capitalization. The authorized equity securities of each of the Credit Parties (other than Accuray) as of the ClosingFirst Amendment Effective Date are as set forth on Schedule 3.4. All issued and outstanding equity securities of each of the Credit Parties (other than Accuray) are duly authorized and validly issued, fully paid, nonassessable, free and clear of all Liens other than those in favor of Agent for the benefit of Agent and Lenders, and such equity securities were
issued in compliance with all applicable Laws. The identity of the holders of the equity securities of each of the Credit Parties (other than Accuray) and the percentage of their fully-diluted ownership of the equity securities of each of the Credit Parties (other than Accuray) as of the ClosingFirst Amendment Effective Date is set forth on Schedule 3.4. No shares of the capital stock or other equity securities of any Credit Party (other than Accuray), other than those described above, are issued and outstanding as of the ClosingFirst Amendment Effective Date. Except as set forth on Schedule 3.4, as of the ClosingFirst Amendment Effective Date there are no preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition from any Credit Party (other than Accuray) of any equity securities of any such entity.
E. Financial Information. The Financial Statements delivered to Agent fairly present, in all material respects, the financial position of Accuray and its Consolidated Subsidiaries as of such date in conformity with GAAP. Since June 30, 2016,2017, no Material Adverse Effect has occurred.
F. Litigation. Except as set forth on Schedule 3.6 as of the ClosingFirst Amendment Effective Date, and except as hereafter disclosed to Agent in writing, there is no Litigation pending against, or to such Borrower’s knowledge threatened, in writing, against or affecting, any Credit Party that, individually or the aggregate, could reasonably be expected to have a Material Adverse Effect or which in any manner draws into question the validity of any of the Operative Documents.
G. Ownership of Property. Each Borrower is the lawful owner of, has good and marketable title to, subject to Permitted Liens, and is in lawful possession of, or has valid leasehold interests in, all properties and other assets (real or personal, tangible, intangible or mixed) purported or reported to be owned or leased (as the case may be) by such Person, except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes.
H. No Default. No Event of Default, or to such Borrower’s knowledge, Default, has occurred and is continuing. No Credit Party is in breach or default under or with respect to any contract, agreement, lease or other instrument to which it is a party or by which its property is bound or affected, which breach or default could reasonably be expected to have a Material Adverse Effect.
I. Labor Matters. As of the Closing Date, there are no strikes or other labor disputes pending or, to any Borrower’s knowledge, threatened in writing against any Credit Party. Hours worked and payments made to the employees of the Credit Parties have not been in material violation of the Fair Labor Standards Act or any other applicable Law dealing with such matters. All material payments due from the Credit Parties, or for which any claim may be made against any of them, on account of wages and employee retirement and health and welfare benefits or insurance have been paid or accrued as a liability on their books, as the case may be. The consummation of the transactions contemplated by the Financing Documents will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which it is a party or by which it is bound.
J. Regulated Entities. No Credit Party is required to be registered as an “investment company” under the Investment Company Act of 1940.
K. Margin Regulations. None of the proceeds from the Loans have been or will be used, directly or indirectly, for the purpose of purchasing or carrying any “margin stock” (as defined in Regulation U of the Federal Reserve Board) or for any other purpose which might cause any of the Loans to be considered a “purpose credit” within the meaning of Regulation T, U or X of the Federal Reserve Board.
L. Compliance With Laws; Anti-Terrorism Laws.
1. Each Credit Party is in compliance with the requirements of all applicable Laws, except for such Laws the noncompliance with which could not reasonably be expected to have a Material Adverse Effect.
2. None of the Credit Parties and, to the knowledge of the Credit Parties, none of their Affiliates (i) is in violation of any Anti-Terrorism Law, (ii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, (iii) is a Blocked Person, (iv) is acting or will act for or on behalf of a Blocked Person, (v) is associated with, or will become associated with, a Blocked Person or (vi) is providing, or will provide, material, financial or technical support or other services to or in support of acts of terrorism of a Blocked Person. No Credit Party nor, to the knowledge of any Credit Party, any of its Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, except in compliance with applicable Law or (B) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law.
M. Taxes. All material federal, state, foreign and local tax returns, reports and statements required to be filed by or on behalf of each Credit Party have been filed with the appropriate Governmental Authorities in all jurisdictions in which such returns, reports and statements are required to be filed and, except to the extent subject to a Permitted Contest, all income and other material Taxes (including real property Taxes) and other charges shown to be due and payable in respect thereof have been timely paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof. Except to the extent subject to a Permitted Contest, all material state and local sales and use Taxes required to be paid by each Credit Party have been paid. All income and other material federal and state Tax returns have been filed by each Credit Party for all periods for which returns were due with respect to employee income tax withholding, social security and unemployment taxes, and, except to the extent subject to a Permitted Contest, the material amounts shown thereon to be due and payable have been paid in full or adequate provisions therefor have been made. For purposes of this Section 3.13, any federal, state, local or foreign tax, assessment, deposit or contribution, and any return with respect thereto, shall not be considered “material” only if and to the extent that the amount of such tax, assessment, deposit or contribution, when added to all other outstanding taxes,
assessments, deposits or contributions, is equal to or less than $1,000,000 in the aggregate at any time.
N. Compliance with ERISA.
1. Each ERISA Plan (and the related trusts and funding agreements) complies in form and in operation with, has been administered in compliance with, and the terms of each ERISA Plan satisfy, the applicable requirements of ERISA and the Code in all material respects. Each ERISA Plan which is intended to be qualified under Section 401(a) of the Code is so qualified, and the United States Internal Revenue Service has issued a favorable determination letter with respect to each such ERISA Plan which may be relied on currently. No Credit Party has incurred liability for any material excise tax under any of Sections 4971 through 5000 of the Code.
2. Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, each Borrower and each Subsidiary is in compliance with the applicable provisions of ERISA and the provision of the Code relating to ERISA Plans and the regulations and published interpretations therein. During the thirty-six (36) month period prior to the Closing Date or the making of any Loan or the issuance of any Letter of Credit, (i) no steps have been taken to terminate any Pension Plan, and (ii) no contribution failure has occurred with respect to any Pension Plan sufficient to give rise to a Lien under Section 303(k) of ERISA or Section 430(k) of the Code and no event has occurred that would give rise to a Lien under Section 4068 of ERISA. No condition exists or event or transaction has occurred with respect to any Pension Plan that could be reasonably expected to result in the incurrence by any Credit Party of any material liability, fine or penalty. No Credit Party has incurred liability to the PBGC (other than for current premiums) with respect to any Pension Plan. Except as could not reasonably be expected to result in material liability to any Credit Party, all contributions (if any) have been made on a timely basis to any Multiemployer Plan that are required to be made by any Credit Party or any other member of the Controlled Group under the terms of the plan or of any collective bargaining agreement or by applicable Law; no Credit Party nor any member of the Controlled Group has withdrawn or partially withdrawn from any Multiemployer Plan, incurred any withdrawal liability with respect to any such plan or received notice of any claim or demand for withdrawal liability or partial withdrawal liability from any such plan, and no condition has occurred which, if continued, could result in a withdrawal or partial withdrawal from any such plan, and no Credit Party nor any member of the Controlled Group has received any notice that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan is being or is likely to be terminated, or that any such plan is being or is likely to become insolvent.
O. Consummation of Operative Documents; Brokers. Except for fees payable to Agent and/or Lenders and as scheduled on Schedule 3.15, no broker, finder or other intermediary has brought about the obtaining, making or closing of the transactions contemplated by the Operative Documents, and no Credit Party has or will have any obligation to any Person in respect of any finder’s or brokerage fees, commissions or other expenses in connection herewith or therewith.
P. Related Transactions. All transactions contemplated by the Operative Documents to be consummated on or prior to the date hereof have been so consummated (including, without limitation, the disbursement and transfer of all funds in connection therewith) in all material respects pursuant to the provisions of the applicable Operative Documents, true and complete copies of which have been delivered to Agent, and in compliance with all applicable Law, except for such Laws the noncompliance with which would not reasonably be expected to have a Material Adverse Effect.
Q. Material Contracts. Except for (a) the Operative Documents, (b) the Convertible Notes Debt, (c) the 2018 Indenture and any other indenture in respect of Convertible Notes Debt, and (d) the other agreements set forth on Schedule 3.17 (collectively with the Operative Documents, the “Material Contracts”), as of the ClosingFirst Amendment Effective Date there are no agreements or instruments to which any Credit Party is a party, and the breach, nonperformance or cancellation of which, or the failure of which to renew, could reasonably be expected to have a Material Adverse Effect. Schedule 3.17 sets forth, with respect to each real estate lease agreement to which any Borrower is a party (as a lessee) as of the ClosingFirst Amendment Effective Date, the address of the subject property and the annual rental (or, where applicable, a general description of the method of computing the annual rental). The consummation of the transactions contemplated by the Financing Documents will not give rise to a right of termination in favor of any party to any Material Contract (other than any Credit Party), except for such Material Contracts the noncompliance with which would not reasonably be expected to have a Material Adverse Effect.
R. Compliance with Environmental Requirements; No Hazardous Materials. Except in each case as set forth on Schedule 3.18:
1. no Credit Party has received notice, notification, demand, request for information, citation, summons, complaint or order, no complaint has been filed and served on any Credit Party, and no penalty has been assessed and no investigation or review is pending, or to such Borrower’s knowledge, threatened by any Governmental Authority or other Person with respect to any (i) alleged violation by any Credit Party of any Environmental Law, (ii) alleged failure by any Credit Party to have any Permits required under Environmental Law in connection with the conduct of its business or to comply with the terms and conditions thereof, (iii) any generation, treatment, storage, recycling, transportation or disposal of any Hazardous Materials, or (iv) release of Hazardous Materials, which, in each case, could reasonably be expected to have a Material Adverse Effect; and
2. no property now owned or leased by any Credit Party and, to the knowledge of each Borrower, no such property previously owned or leased by any Credit Party, to which any Credit Party has, directly or indirectly, transported or arranged for the transportation of any Hazardous Materials, is listed or, to such Borrower’s knowledge, proposed for listing, on the National Priorities List promulgated pursuant to CERCLA, or CERCLIS (as defined in CERCLA) or any similar state list or is the subject of federal, state or local enforcement actions or, to the knowledge of such Borrower, other investigations which may lead to claims against any Credit Party for clean-up costs, remedial work, damage to natural resources or personal injury claims, including, without limitation, claims under CERCLA, except for such listings or claims that could not reasonably be expected to have a Material Adverse Effect.
S. Intellectual Property. Except as would not reasonably be expected to have a Material Adverse Effect, each Credit Party owns, is licensed to use or otherwise has the right to use, all Intellectual Property that is necessary for the conduct of such Credit Party’s business. All Intellectual Property existing as of the ClosingFirst Amendment Effective Date which is issued, registered or pending with any United States or foreign Governmental Authority (including, without limitation, any and all applications for the registration of any Intellectual Property with any such United States or foreign Governmental Authority) owned by each Credit Party, all material in-bound license or sub-license agreements, all exclusive out-bound license or sub-license agreements, and all other rights of any Credit Party to use any Intellectual Property of any Person that is material to the business of the Credit Parties as currently conducted, taken as a whole (but excluding in-bound licenses of over-the-counter software that is commercially available to the public), as of the ClosingFirst Amendment Effective Date and, as updated pursuant to Section 4.11, is set forth on Schedule 3.19 in a form acceptable to Administrative Agent, including the information required to sufficiently identify each item individually. Except as indicated on Schedule 3.19, the applicable Credit Party is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to each such registered Intellectual Property (or application therefor) owned by such Credit Party, free and clear of any Liens and/or licenses in favor of third parties (other than Permitted Liens and non-exclusive licenses of Intellectual Property). All registered Intellectual Property of each Credit Party is duly and properly registered, filed or issued in the appropriate office and jurisdictions for such registrations, filings or issuances, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. No Credit Party is party to, nor bound by, any material license or other material agreement, as the licensee thereto, that prohibits or otherwise restricts such Credit Party from granting a security interest in such license or agreement or other property (after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law). To each Credit Party’s knowledge, (i) such Credit Party’s conduct of its business does not infringe any Intellectual Property rights of others and (ii) no third party has infringed or is infringing any Intellectual Property rights of any Credit Party, in each case, except as would not reasonably be expected to have a Material Adverse Effect.
T. Solvency. After giving effect to the Loan advance and the liabilities and obligations of each Borrower under the Operative Documents, each Borrower and each additional Credit Party is Solvent.
U. Full Disclosure. None of the written information (financial or otherwise) (other than projections, other forward-looking information and industry information) furnished by or on behalf of any Credit Party to Agent or any Lender in connection with the consummation of the transactions contemplated by the Operative Documents, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not materially misleading in light of the circumstances under which such statements were made. Such projections represent each Borrower’s best estimate of such Borrower’s future financial performance and such assumptions are believed by such Borrower to be fair and reasonable in light of the business conditions at the time such projections were made; provided, however, that (i) projections as to future events are not to be viewed as facts, (ii) Borrowers can give no assurance that such projections will be attained and (iii) Agent and Lenders are hereby notified that the differences between projected results and actual results may be material.
V. Reserved.
W. Subsidiaries. Borrowers do not own any stock, partnership interests, limited liability company interests or other equity securities or Subsidiaries except for Permitted Investments.
X. Reserved.
Y. Regulatory Matters.
1. (i) The businesses of Borrowers have been and are being conducted in compliance in all material respects with all applicable Law, including the Healthcare Laws, and all Permits, (ii) each Product (whether manufactured by Accuray or any of its Subsidiaries, any of their respective Affiliates or by a third party manufacturer under contract to Accuray or any of its Subsidiaries) has been, and currently is, being researched, developed, designed, investigated, manufactured, made, assembled, stored, packaged, labeled, marketed and distributed in compliance with all applicable Law, including, without limitation, the Healthcare Laws, all required Permits, cGMP, QSR, the Device Master Record as defined in 21 CFR 820.181 and Document Controls under 21 CFR 820.40 and all Product specifications as established in company documentation, except to the extent any failure to so comply could not reasonably be expected to result in any adverse consequences to the Credit Parties (other than immaterial consequences), (iii) each contract between Accuray and any of its Subsidiaries on the one hand, and any third party manufacturer on the other hand contain (and Accuray and each of its Subsidiaries implement), appropriate quality assurance arrangements in accordance with FDA requirements, (iv) Accuray and its Subsidiaries are in compliance in all material respects with applicable Law governing reporting and recordkeeping of Product modifications, adverse event reporting, reporting of corrections and removals, and recordkeeping for each Product, and all manufacturing and release documents and records are true and accurate in all material respects, and (v) neither Accuray nor any of its Subsidiaries has received or been subject to any written or oral communications from the FDA, the NRC or any other Governmental Authority asserting that Accuray, any such Subsidiary or any such Product was not in compliance in any material respect with any applicable Law or any Permit.
2. Other than routine surveillance audits and inspections, no investigation by any Governmental Authority with respect to Accuray or any of its Subsidiary is pending or, to the knowledge of the Credit Parties, threatened. None of Accuray or any of its Subsidiaries has received any written or oral communication from any Governmental Authority of any noncompliance with any Law or any written or oral communication from any Governmental Authority or accrediting organization of any material issues, problems, or concerns regarding the quality or performance of the Products.
3. Accuray and its Subsidiaries own, free and clear of all Liens, except Liens securing the Obligations, all Permits, including all authorizations under the FD&C Act, other United States federal laws, and all applicable state and foreign laws, necessary (i) for the research and development and commercialization of the Products, including, without limitation, all Permits necessary in connection with testing, manufacturing, marketing or selling of such Products, as such testing, manufacturing, marketing or selling are currently being conducted, and (ii) to carry on the
business of Accuray and each of its Subsidiaries. All such Permits are valid and in full force and effect and Accuray and each Subsidiary is in compliance in all material respects with all terms and conditions of such Permits. None of Accuray or any Subsidiary has received any written notice from any Governmental Authority that any Permit has been or is being revoked, withdrawn, suspended or challenged or that such Governmental Authority is conducting an investigation or review thereof or has issued any order or recommendation stating that the development, testing and/or manufacturing of such Product should cease or that such Product should be withdrawn from the marketplace.
4. There have been no adverse clinical test results which have or could reasonably be expected to have a materially adverse impact on Accuray or any of its Subsidiaries, and there have been no Product recalls or voluntary Product withdrawals from any market (other than specific and discrete batches or lots not made in conjunction with a larger recall).
5. Neither Accuray nor any of its Subsidiaries have experienced any significant failures in its manufacturing of any Product such that the amount of such Product successfully manufactured by Accuray or any of its Subsidiaries in accordance with all specifications thereof and the required payments related thereto in any twelve (12) month period have decreased by more than twenty percent (20%) with respect to the quantities of such Product produced in the prior twelve (12) month period.
6. There has been no material untrue statement of fact and no fraudulent statement made by Accuray or any of its Subsidiaries or any of their respective agents or representatives to the FDA, NRC, or any other Governmental Authority, and there has been no failure to disclose any material fact required to be disclosed to the FDA, NRC or any other Governmental Authority.
7. To the best knowledge of the Credit Parties, no insurance company, managed care organization or Governmental Authority has (i) terminated coverage or reimbursement for procedures and treatments performed using the CyberKnife and TomoTherapy Products, or (ii) reduced the scope of coverage or the rate of reimbursement it provides for procedures and treatments performed using the CyberKnife and TomoTherapy Products, and, in the case of this clause (ii), such reduction could reasonably be expected to have a materially adverse impact on the revenues of Accuray and its Subsidiaries. None of Accuray or any of its Subsidiaries has been the subject of any “for cause” inspection, investigation or audit by any Governmental Authority in connection with any alleged improper activity.
8. There is no arrangement relating to Accuray or any of its Subsidiaries providing for any rebates, kickbacks or other forms of compensation or remuneration that are unlawful to be paid to any Person to induce, or in return for obtaining or the referral of business or for the arrangement for recommendation of such referrals. All billings by Accuray and each of its Subsidiaries for its services have been true and correct in all material respects and are in compliance in all material respects with all applicable Law, including the Healthcare Laws.
9. None of Accuray or any of its Subsidiaries, or, to the knowledge of the Credit Parties, any individual who is an officer, director, employee or manager of Accuray or any of its Subsidiaries has been convicted of, charged with or, to the knowledge of the Credit Parties,
investigated for any federal or state health program-related offense or been excluded or suspended from participation in any such program; or, to the knowledge of the Credit Parties, within the past five (5) years, has been convicted of, charged with or, to the knowledge of the Credit Parties, investigated for a violation of any Law related to fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, obstruction of an investigation or controlled substances, or has been subject to any judgment, stipulation, order or decree of, or criminal or civil fine or penalty imposed by, any Governmental Authority related to fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, obstruction of an investigation or controlled substances. None of Accuray or any of its Subsidiaries or, to the knowledge of the Credit Parties, any individual who is an officer, director, employee or manager of Accuray or any of its Subsidiaries has been convicted of any crime or engaged in any conduct including but not limited to any misrepresentation to any Governmental Authority or that has otherwise resulted or would reasonably be expected to result in a debarment or exclusion (i) under 21 U.S.C. Section 335a, or (ii) any similar applicable Law. No debarment proceedings or investigations in respect of the business of Accuray or any of its Subsidiaries are pending or, to the knowledge of the Credit Parties, threatened against Accuray or any of its Subsidiaries or any individual who is an officer, director, employee or manager of Accuray or any of its Subsidiaries.
10. All studies, tests and preclinical and clinical trials conducted relating to the Products, sponsored by Accuray or any of its Subsidiaries have been conducted, and are currently being conducted, in all material respects in accordance with all applicable Law and IDEs, including procedures and controls pursuant to, where applicable, current good clinical practices and current good laboratory practices and other applicable laws, rules regulations. To the extent required by applicable Law, Accuray and each of its Subsidiaries has obtained all necessary authorizations from Governmental Authorities and IECs, including an IDE for the conduct of any clinical investigations conducted by or on behalf of Accuray or such Subsidiary, as applicable.
11. To the knowledge of the Credit Parties, none of the clinical investigators in any clinical trial sponsored by Accuray or any of its Subsidiaries has been or is disqualified or otherwise sanctioned by the FDA, the Department of Health and Human Services, or any Governmental Authority and, to the knowledge of the Credit Parties, no such disqualification, or other sanction of any such clinical investigator is pending or threatened. None of Accuray or any of its Subsidiaries has received from the FDA or other applicable Governmental Authority any notices or correspondence requiring or threatening the termination, suspension, material modification or clinical hold of any studies, tests or clinical trials with respect to or in connection with the Products.
IV. AFFIRMATIVE COVENANTS
Each Borrower agrees that, so long as any Credit Exposure exists:
A. Financial Statements and Other Reports. Each Borrower will deliver to Agent: (a) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter (beginning with the first full fiscal quarter ending after the Closing Date), a company prepared consolidated balance sheet, cash flow and income statement covering Borrowers’ and its Consolidated Subsidiaries’ consolidated operations during the period, prepared under GAAP, consistently applied, certified by a Responsible Officer and in a form acceptable to Agent; (b)
together with the financial reporting package described in (a) above, evidence of payment and satisfaction of all payroll, withholding and similar Taxes due and owing by all Borrowers with respect to the payroll period(s) occurring during such month; (c) as soon as available, but no later than ninety (90) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an opinion on the financial statements from Grant Thornton LLP or another independent certified public accounting firm acceptable to Agent in its reasonable discretion; provided that such opinion shall not contain a “going concern” or like qualification or exception or a qualification arising out of the scope of the audit (other than solely with respect to, or resulting solely from (i) an upcoming maturity date under this Agreement or other Permitted Debt occurring within one year from the time such report is delivered or (ii) any potential inability to satisfy any financial maintenance covenant on a future date or in a future period); (d) within five (5) days of delivery or filing thereof, copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt and copies of all reports and other filings made by Borrower with any stock exchange on which any securities of any Borrower are traded and/or the SEC; (e) a prompt written report of any legal actions pending or threatened in writing against any Borrower or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect; and (f) budgets, sales projections, operating plans and other financial information and information, reports or statements regarding Borrowers, their business and the Collateral as Agent may from time to time reasonably request (unless the disclosure of such information would require the forfeiture by such Credit Party or Subsidiary of attorney client privilege with respect to such document; provided, however, that such Credit Party or Subsidiary shall take all actions reasonably requested by Agent to allow access to such document without otherwise forfeiting such privilege). If Accuray publicly files with the SEC reports on Form 10-K or Form 10-Q for the applicable periods or any other periodic reports containing the information required by clauses (a), (c) and (d) above, Accuray shall be deemed to satisfy such requirements by such filing. Each Borrower will, within forty-five (45) days after the last day of each fiscal quarter, deliver to Agent with the quarterly financial statements described in clause (a) above, a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with theany applicable financial covenant set forth in this Agreement. Promptly upon their becoming available, Borrowers shall deliver to Agent copies of all Material Contracts. Each Borrower will, within twenty (20) days after the last day of each month, deliver to Agent a duly completed Borrowing Base Certificate signed by a Responsible Officer, with aged listings of accounts receivable and accounts payable (by invoice date). Borrowers shall, every ninety (90) days on a schedule to be designated by Agent, and at such other times as Agent shall request, deliver to Agent a schedule of Eligible Accounts denoting, for the thirty (30) largest Account Debtors during such quarter, such Account Debtor’s credit rating(s), if any, as rated by A.M. Best Company, Standard & Poor’s Corporation, Moody’s Investors Service, Inc., FITCH, Inc. or other applicable rating agent.
B. Payment and Performance of Obligations. Each Borrower (a) will pay and discharge on a timely basis as and when due (after giving effect to any applicable grace periods), all of their respective obligations and liabilities, except for such obligations and/or liabilities (i) that may be the subject of a Permitted Contest, and (ii) the nonpayment or nondischarge of which could not reasonably be expected to have a Material Adverse Effect or result in a Lien against the Collateral, except for Permitted Liens, (b) without limiting anything contained in the foregoing clause (a) and unless subject to a Permitted Contest, will pay all amounts due and owing in respect of income and other material Taxes (including, without limitation, payroll and withholding tax
liabilities) on a timely basis as and when due, and in any case prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof, (c) will maintain, and cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for the accrual of all of their respective obligations and liabilities, and (d) will not breach, or permit to exist any default under, the terms of any lease, commitment, contract, instrument or obligation to which it is a party, or by which its properties or assets are bound, except for such breaches or defaults which could not reasonably be expected to have a Material Adverse Effect. For purposes of this Section 4.2, any federal, state, local or foreign tax, assessment, deposit or contribution, and any return with respect thereto, shall not be considered “material” only if and to the extent that the amount of such tax, assessment, deposit or contribution, when added to all other outstanding taxes, assessments, deposits or contributions, is equal to or less than $1,000,000 in the aggregate at any time
C. Maintenance of Existence. Unless otherwise permitted under Section 5.6, each Borrower will preserve, renew and keep in full force and effect (a) their respective existence and good standing and (b) their respective rights, privileges and franchises necessary or desirable in the normal conduct of business except, in the case of this clause (b), where a failure to do so could not reasonably be expected to result in a Material Adverse Effect.
D. Maintenance of Property; Insurance.
1. Each Borrower will keep all material tangible property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect. If all or any part of the Collateral useful or necessary in its business, or upon which any Borrowing Base is calculated, becomes damaged or destroyed, each Borrower will promptly and completely repair and/or restore the affected Collateral in a good and workmanlike manner, regardless of whether Agent agrees to disburse insurance proceeds or other sums to pay costs of the work of repair or reconstruction, except, solely in the case of Collateral that is not part of the Borrowing Base, to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.
2. Upon completion of any Permitted Contest, Borrowers shall promptly pay the amount due, if any, and deliver to Agent proof of the completion of the contest and payment of the amount due, if any, following which Agent shall return the security, if any, deposited with Agent pursuant to the definition of Permitted Contest.
3. Each Borrower will maintain (i) casualty insurance on all real and personal property on an all risks basis (including the perils of flood (if applicable), windstorm and quake), covering the repair and replacement cost of all such property and coverage, business interruption and rent loss coverages with extended period of indemnity (for the period required by Agent from time to time) and indemnity for extra expense, in each case without application of coinsurance and with agreed amount endorsements, (ii) general and professional liability insurance (including products and completed operations liability coverage), and (iii) such other insurance coverage in each case against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons (in the reasonable judgment of Borrower
Representative); provided, however, that, in no event shall such insurance be in amounts or with coverage less than, or with carriers with qualifications inferior to, any of the insurance or carriers in existence as of the Closing Date (or required to be in existence after the Closing Date under a Financing Document). All such insurance shall be provided by insurers having an A.M. Best policyholders rating reasonably acceptable to Agent.
4. On or prior to the Closing Date, and at all times thereafter, each Borrower will cause Agent to be named as (x) an additional insured in the case of each liability policy and (y) lender loss payee (which shall include, as applicable, identification as mortgagee), in the case of each casualty or property insurance policy (except for workers’ compensation and employer’s liability insurance policies) required to be maintained pursuant to this Section 4.4 pursuant to endorsements or policy form in form and substance reasonably acceptable to Agent. Borrowers shall deliver to Agent and Lenders (i) a certificate from Borrowers’ insurance broker and/or insurance carrier dated such date showing the amount of coverage as of such date, and that such policies will include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and/or additional insureds (as applicable) and all rights of subrogation against all loss payees and/or additional insureds (as applicable), and that if all or any part of such policy is canceled, terminated or expires, the insurer will forthwith give notice thereof to each additional insured, assignee and loss payee (as applicable) and that no cancellation, reduction in amount or material change in coverage thereof shall be effective until at least thirty (30) days after receipt by each additional insured, assignee and loss payee of written notice thereof, (ii) on an annual basis, and upon the reasonable request of any Lender through Agent from time to time full information as to the insurance carried, (iii) within five (5) days of receipt of notice from any insurer (or such longer period as Agent may agree in its reasonable discretion), a copy of any notice of cancellation or nonrenewal in coverage from that existing on the date of this Agreement, (iv) forthwith, notice of any cancellation or nonrenewal of coverage by any Borrower, and (v) at least ten (10) days (or such shorter period as Agent may agree in its reasonable discretion) prior to expiration of any policy of insurance, evidence of renewal of such insurance upon the terms and conditions herein required.
5. In the event any Borrower fails to provide Agent with evidence of the insurance coverage required by this Agreement within five (5) Business Days of Agent’s written request therefor (unless an Event of Default has occurred and is continuing, in which case no such waiting period shall apply), Agent may purchase insurance at Borrowers’ expense to protect Agent’s interests in the Collateral. This insurance may, but need not, protect such Borrower’s interests. The coverage purchased by Agent may not pay any claim made by such Borrower or any claim that is made against such Borrower in connection with the Collateral. Such Borrower may later cancel any insurance purchased by Agent, but only after providing Agent with evidence that such Borrower has obtained insurance as required by this Agreement. If Agent purchases insurance for the Collateral, Borrowers will be responsible for the costs of that insurance to the fullest extent provided by law, including interest and other charges imposed by Agent in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance may be added to the Obligations. The costs of the insurance may be more than the cost of insurance such Borrower is able to obtain on its own.
E. Compliance with Laws and Material Contracts. Each Borrower will comply with the requirements of all applicable Laws and Material Contracts, except to the extent that
failure to so comply could not reasonably be expected to (a) have a Material Adverse Effect, or (b) result in any Lien upon either (i) a material portion of the assets of any such Person in favor of any Governmental Authority, or (ii) any Collateral which is part of the Borrowing Base.
F. Inspection of Property, Books and Records. Each Borrower will keep proper books of record substantially in accordance with GAAP in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities; and will permit at the sole cost of the applicable Borrower or any applicable Subsidiary, representatives of Agent and of any Lender to visit and inspect any of their respective properties (subject to the terms of the applicable lease), to examine and make abstracts or copies from any of their respective books and records, to conduct a collateral audit and analysis of their respective operations and the Collateral, to verify the amount and age of the Accounts, the identity and credit of the respective Account Debtors, to review the billing practices of Borrowers and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants as often as may reasonably be desired. Except to the extent a Default or an Event of Default exists at the time any such inspection begins, (a) Agent or any Lender exercising any rights pursuant to this Section 4.6 shall give the applicable Borrower at least two (2) Business Days’ notice of such exercise, (b) such rights may be exercised only during reasonable business hours and (c) Borrowers shall be responsible for the costs and expenses of only two (2) inspections pursuant to this Section 4.6 each calendar year. No notice shall be required during the existence and continuance of any Default. Unless a Default or an Event of Default has occurred and is continuing, Agent shall give Borrowers the opportunity to participate in any discussions with Borrowers’ independent public accountants. Notwithstanding anything to the contrary contained herein, in no event shall any Borrower be required to disclose trade secrets (other than financial trade secrets) or documents that would violate attorney-client privilege, in each case, to the extent such Borrower has been advised by counsel that such information constitutes trade secrets or that such disclosure would violate attorney-client privilege.
G. Use of Proceeds. Borrowers shall use the proceeds of Revolving Loans solely for (a) transaction fees incurred in connection with the Financing Documents and the refinancing on the Closing Date of Debt, and (b) for working capital needs of Borrowers. No portion of the proceeds of the Loans will be used for family, personal, agricultural or household use nor as prohibited under Section 5.16.
H. ReservedExcess Cash. At any time that an Event of Default has occurred and is continuing, at the request of the Agent, Borrowers shall promptly cause each Subsidiary of the Borrowers that is not a Credit Party to transfer all cash and Cash Equivalents of each such Subsidiary (in excess of the amount required to be maintained by each such Subsidiary pursuant to applicable statutory requirements) to a Credit Party, pursuant to documentation reasonably satisfactory to the Agents.
I. Notices of Litigation and Defaults. Borrowers will give prompt written notice to Agent (a) of any litigation or governmental proceedings pending or threatened (in writing) against Borrowers or other Credit Party which would reasonably be expected to have a Material Adverse Effect with respect to Borrowers or any other Credit Party or which in any manner calls into question the validity or enforceability of any Financing Document, (b) upon any Borrower becoming aware of the existence of any Default or Event of Default, (c) if any Credit
Party is in breach or default under or with respect to any Material Contract, or if any Credit Party is in breach or default under or with respect to any other contract, agreement, lease or other instrument to which it is a party or by which its property is bound or affected, which breach or default could reasonably be expected to have a Material Adverse Effect, (d) of any strikes or other labor disputes pending or, to any Borrower’s knowledge, threatened against any Credit Party, (e) if, to the knowledge of the Credit Parties, there is any infringement by any other Person with respect to any Intellectual Property rights of any Credit Party that could reasonably be expected to result in a Material Adverse Effect, or if, to the knowledge of the Credit Parties, there is any claim by any other Person that any Credit Party, in the conduct of its business, is infringing the Intellectual Property rights of such other Partyparty that could reasonably be expected to result in a Material Adverse Effect, and (f) of all returns, recoveries, disputes and claims that involve more than $2,500,000. Borrowers represent and warrant that Schedule 4.9 sets forth a complete list of all matters existing as of the ClosingFirst Amendment Effective Date for which notice could be required under this Section and all litigation or governmental proceedings pending or threatened (in writing) against Borrowers or other Credit Party as of the Closing Date. .
J. Hazardous Materials; Remediation. If any release or disposal of Hazardous Materials that could reasonably be expected to have a Material Adverse Effect shall occur or shall have occurred on any real property owned or leased by a Borrower or any other assets of any Borrower or any other Credit Party, such Borrower will cause, or direct the applicable Credit Party to cause, the prompt containment and removal of such Hazardous Materials and the remediation of such real property or other assets to the extent required pursuant to Environmental Laws and Healthcare Laws. Without limiting the generality of the foregoing, each Borrower shall, and shall cause each other Credit Party to, comply with each Environmental Law and Healthcare Law requiring the performance at any real property by any Borrower or any other Credit Party of activities in response to the release or threatened release of Hazardous Materials that could reasonably be expected to have a Material Adverse Effect.
K. Further Assurances.
1. Each Borrower will, and will cause each Subsidiary (other than any such Subsidiary that is an Excluded Subsidiary) to, at its own cost and expense, promptly and duly take, execute, acknowledge and deliver all such further acts, documents and assurances as may from time to time be necessary or as Agent or the Required Lenders may from time to time reasonably request in order to carry out the intent and purposes of the Financing Documents and the transactions contemplated thereby, including all such actions to (i) establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) in favor of Agent for itself and for the benefit of Lenders on the Collateral (including Collateral acquired after the date hereof), and (ii) unless Agent shall agree otherwise in writing, cause all Subsidiaries of Borrowers (other than Excluded Subsidiaries) to be jointly and severally obligated with the other Borrowers under all covenants and obligations under this Agreement, including the obligation to repay the Obligations. Without limiting the generality of the foregoing, Borrowers shall, at the time of the delivery of any Compliance Certificate disclosing the acquisition by an Credit Party of any registered Intellectual Property or application for the registration of Intellectual Property, deliver to Agent a duly completed and executed supplement to the applicable Credit Party’s Patent Security Agreement or Trademark Security Agreement in the form of the respective Exhibit thereto. Notwithstanding anything herein to the
contrary, unless and until an Event of Default occurs, no Credit Party shall be required, nor is the Agent authorized, to perfect the lien granted in any Intellectual Property in any jurisdiction other than the United States. For purposes of clarity, only after the occurrence of an Event of Default, Borrowers shall execute any documents reasonably requested by Agent to establish, create, preserve, protect and perfect a first priority lienLien (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) in favor of Agent in any Intellectual Property registered in a jurisdiction other than the United States.
2. Upon receipt of an affidavit of an authorized representative of Agent or a Lender as to the loss, theft, destruction or mutilation of any Note or any other Financing Document which is not of public record, and, in the case of any such mutilation, upon surrender and cancellation of such Note or other applicable Financing Document, Borrowers will issue, in lieu thereof, a replacement Note or other applicable Financing Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Financing Document in the same principal amount thereof and otherwise of like tenor; provided that each such affidavit shall contain customary indemnifications in favor of Borrower.
3. Without limiting in any way the definition of “Eligible Inventory”,
(a) Borrowers shall obtain, within ninety days after the Closing Date, a landlord, warehouseman, bailee or mortgagee letter, as applicable, from the landlord, warehouseman, bailee or mortgagee of the Elk Grove Village Premises, the Middleton Premises, the Madison Premises and the Chicago Premises; provided, that, for purposes of clarity, Eligible Inventory located at any of such premises shall be included in the Borrowing Base during the ninety (90) day period after the Closing Date so long as a Rent and Charges Reserve is in place with respect to each such location at all times during such period; provided, that if Borrowers are unable to obtain such an agreement for any Access Agreement Location described in this clause (i) within the applicable period of time, it shall not result in an Event of Default hereunder, rather, such Collateral shall not constitute Eligible Inventory for purposes of calculating the Borrowing Base;
(b) Borrowers shall obtain from the applicable landlord, warehouseman, bailee or mortgagee a landlord, warehouseman, bailee or mortgagee, as applicable with respect to any location where any portion of the Collateral included in or proposed to be included in the Borrowing Base and not described in clause (i) above, with the exception of the Sunnyvale Premises, to the extent that the aggregate daily average value of all Collateral held at such location exceeds $1,500,000 over any thirty (30) day period (any such location, together with the Elk Grove Village Premises, the Middleton Premises, the Madison Premises and the Chicago Premises, collectively referred to as an “Access Agreement Location”), within ninety (90) days after any such determination; provided, that if Borrowers are unable to obtain such an agreement for any Access Agreement Location described in this clause (ii) within the applicable period of time, it shall not result in an Event of Default hereunder, rather, such Collateral shall not constitute Eligible Inventory for purposes of calculating the Borrowing Base;
(c) Borrowers shall use commercially reasonable efforts to obtain a landlord’s agreement or mortgagee agreement, as applicable, from the lessor of each leased
property or mortgagee of owned property with respect to any location where Inventory is stored in excess of $150,000 that is not an Access Agreement Location, and any business location where the books and records relating to such Collateral and/or software and equipment relating to such records or Collateral, is stored or located (unless such books and records are also located at another business location that is subject to landlord’s or mortgagee agreement in favor of Agent), which agreement or letter, in each case of clauses (i), (ii) or (iii) shall be reasonably satisfactory in form and substance to Agent; provided, that if Borrowers are unable to obtain such an agreement for any location at which Inventory is stored as described in this clause (iii), it shall not result in an Event of Default hereunder, rather, such Collateral shall not constitute Eligible Inventory for purposes of calculating the Borrowing Base unless (A) Borrowers have identified such location to Agent and (B) a Rent and Charges Reserve is in place with respect to such location and provided further that Borrowers do not have to obtain such an agreement for the Sunnyvale Premises so long as a Rent and Charges Reserve is in place with respect to such location at all times; and
(d) Borrowers shall timely and fully pay and perform its obligations under all leases and other agreements with respect to each leased location where any Collateral with an aggregate value in excess of $1,500,000, or any records related thereto, is or may be located unless a failure to perform would not give a third party who is a party to such lease a right to terminate such lease or agreement prior to the expiration thereof.
4. Upon the formation or acquisition of a new Domestic Subsidiary (other than a FSHCO), Borrowers shall (i) pledge, have pledged or cause or have caused to be pledged to Agent pursuant to a pledge agreement in form and substance satisfactory to Agent, all of the outstanding shares of equity interests or other equity interests of such new Domestic Subsidiary owned directly or indirectly by any Borrower, along with undated stock or equivalent powers for such certificates, if any, executed in blank; (ii) unless Agent shall agree otherwise in writing, cause the new Domestic Subsidiary (other than an Excluded Subsidiary) to take such other actions (including entering into or joining any Security Documents) as are necessary or advisable in the reasonable opinion of Agent in order to grant Agent, acting on behalf of Lenders, a first priority Lien (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) on all Material Real Property and personal property (in the case of the perfection of the Liens granted, subject to the Excluded Perfection Assets) of such Domestic Subsidiary in existence as of such date and in all after acquired property, which first priority Liens (subject only to Permitted Liens and the terms of the Affiliated Intercreditor Agreement) are required to be granted pursuant to this Agreement; (iii) unless Agent shall agree otherwise in writing, cause such new Domestic Subsidiary (other than an Excluded Subsidiary) to become a Borrower hereunder with joint and several liability for all obligations of Borrowers hereunder and under the other Financing Documents pursuant to a joinder agreement or other similar agreement in form and substance reasonably satisfactory to Agent; and (iv) cause the new Domestic Subsidiary (other than an Excluded Subsidiary) to deliver certified copies of such Domestic Subsidiary’s certificate or articles of incorporation, together with good standing certificates, by-laws (or other operating agreement or governing documents), resolutions of the Board of Directors or other governing body, approving and authorizing the execution and delivery of the Security Documents, incumbency certificates and to execute and/or deliver such other documents and legal opinions or to take such other actions as may be reasonably requested by Agent, in each case, in form and
substance reasonably satisfactory to Agent (clauses (i) through (iv), collectively, the “Joinder Requirements”).
5. Upon the request of Agent, Borrowers shall pledge, have pledged or cause or have caused to be pledged to Agent pursuant to a pledge agreement in form and substance satisfactory to Agent, 65% of the outstanding shares of equity interests or other equity interests of any new Foreign Subsidiary or FSHCO owned directly by any Borrower and, subject to the Excluded Perfection Assets, undated stock or equivalent powers for such certificates, if any, executed in blank.
L. Power of Attorney. Each of the authorized representatives of Agent is hereby irrevocably made, constituted and appointed the true and lawful attorney for Borrowers (without requiring any of them to act as such) with full power of substitution to do the following during the continuance of an Event of Default: (a) endorse the name of Borrowers upon any and all checks, drafts, money orders, and other instruments for the payment of money that are payable to Borrowers and constitute collections on Borrowers’ Accounts; (b) so long as Agent has provided not less than three (3) Business Days’ prior written notice to Borrower to perform the same and Borrower has failed to take such action, execute in the name of Borrowers any schedules, assignments, instruments, documents, and statements that Borrowers are obligated to give Agent under this Agreement; (c) take any action Borrowers are required to take under this Agreement; (d) so long as Agent has provided not less than three (3) Business Days’ prior written notice to Borrower to perform the same and Borrower has failed to take such action, do such other and further acts and deeds in the name of Borrowers that Agent may deem necessary or desirable to enforce any Account or other Collateral or perfect Agent’s security interest or Lien in any Collateral; and (e) do such other and further acts and deeds in the name of Borrowers that Agent may deem necessary or desirable to enforce its rights with regard to any Account or other Collateral. This power of attorney shall be irrevocable and coupled with an interest.
M. Borrowing Base Collateral Administration.
1. All data and other information relating to Accounts or other intangible Collateral shall at all times be kept by Borrowers, at their respective principal offices and shall not be moved from such locations without (i) providing prior written notice to Agent, and (ii) complying with Section 4.11(c), as applicable.
2. Borrowers shall provide prompt written notice to each Person who either is currently an Account Debtor or becomes an Account Debtor at any time following the date of this Agreement that directs each Account Debtor to make payments into the Lockbox, and hereby authorizes Agent, upon Borrowers’ failure to send such notices within ten (10) days after the date of this Agreement (or ten (10) days after the Person becomes an Account Debtor), to send any and all similar notices to such Person. Agent reserves the right to notify Account Debtors that Agent has been granted a Lien upon all Accounts.
3. Borrowers will conduct a physical count of the Inventory at least once per year and at such other times as Agent may reasonably request during the continuance of an Event of Default, and Borrowers shall provide to Agent a written accounting of such physical count in form and substance reasonably satisfactory to Agent. Each Borrower will use commercially
reasonable efforts to at all times keep its Inventory in good and marketable condition. In addition to the foregoing, from time to time, Agent may require Borrowers to obtain and deliver to Agent appraisal reports in form and substance, and from appraisers, reasonably satisfactory to Agent stating the then current fair market values of all or any portion of the Collateral; provided, however, that, so long as no Event of Default has occurred and is continuing at the time such appraisal begins, Borrowers shall not be required to deliver more than one (1) appraisal report to Agent per fiscal year.
V. NEGATIVE COVENANTS
Each Borrower agrees that, so long as any Credit Exposure exists:
A. Debt; Contingent Obligations. No Borrower will directly or indirectly, create, incur, assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, any Debt, except for Permitted Debt. No Borrower will directly or indirectly, create, assume, incur or suffer to exist any Contingent Obligations, except for Permitted Contingent Obligations. No Borrower will permit any Excluded Subsidiary to, directly or indirectly, create, incur, assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, Debt describe in clauses (a) or (b) of the definition thereof in an aggregate principal amount not to exceed $2,500,000 (excluding the principal amount of any Permitted Intercompany Investments made to such Excluded Subsidiaries) at any one time outstanding, it being understood that any Debt existing as of the ClosingFirst Amendment Effective Date and set forth on Schedule 5.1 (and any Permitted Refinancing Debt in respect thereof) shall be permitted and not count against such $2,500,000 basket.
B. Liens. No Borrower will directly or indirectly, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except for Permitted Liens.
C. Distributions. No Borrower will, directly or indirectly, declare, order, pay, make or set apart any sum for any Distribution, except for Permitted Distributions.
D. Restrictive Agreements. No Borrower will, or will permit any Subsidiary to, directly or indirectly (a) enter into or assume any agreement (other than the Financing Documents, the Affiliated Financing Documents, and any agreements for purchase money debt permitted under clause (c) of the definition of Permitted Debt) prohibiting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or (b) create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind (except as provided by the Financing Documents and the Affiliated Financing Documents) on the ability of any Subsidiary to: (i) pay or make Distributions to any Borrower; (ii) pay any Debt owed to any Borrower; (iii) make loans or advances to any Borrower; or (iv) transfer any of its property or assets to any Borrower, other than (1) the Financing Documents, (2) an encumbrance or restriction consisting of customary non-assignment provisions in leases or licenses entered into in the Ordinary Course of Business, (3) customary provisions in joint venture agreement and other similar agreements that restrict the transfer of ownership interests in such joint ventures or provisions limiting the disposition or distribution of assets or property (other than dividends on a pro rata basis based on ownership percentage) of the applicable joint venture, which limitation is applicable only to the assets that are the subject of such
agreements; provided that such agreement was not entered into in contravention of the terms of the Financing Documents, (4) limitations set forth in Subordinated Debt (if acceptable to Agent in its sole discretion) and (5) limitations set forth in the 2018 Convertible Notes and/or 2022 Convertible Notes on the Closing Date and in any other Convertible Notes Debt (if, in the case of other Convertible Notes Debt, such limitations are permitted in the definition of “Permitted Refinancing Debt” or are otherwise acceptable to Agent in its sole discretion).
E. Payments and Modifications of Subordinated Debt. No Borrower will directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) make any optional repurchase or optional redemption of the Convertible Notes, (d) amend or otherwise modify the terms of the Convertible Notes term if such change or amendment would materially increase the obligations of Borrowers or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt; provided that amendment of, or side letter in connection with, the 2018 Convertible Notes in a manner that aligns the settlement and conversion provisions with those contained in the 2022 Convertible Notes shall be permitted (any such amendment or side letter, a “2018 Specified Amendment”). Borrowers shall, prior to entering into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interestsequity interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018or, solely with respect to the 2018 Convertible Notes, such earlier date between the Closing Date and the stated maturity thereof upon notice thereof by Borrowers to Agent, repay, purchase or redeem the 2018 Convertible Notes and repay the 2022 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and, in the case of the 2018 Convertible Notes, proceeds of the Term Loans; provided that the maximum amount of Qualified Cash and proceeds of Term Loans used to repay the 2018 Convertible Notes shall not exceed $45,000,000 (with any excess beyond the then-outstanding principal amount thereof being allocated to pay premiums to incentivize the holders thereof to forego any settlement in shares); (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Debt.; and (E) pay an amendment fee to the holders of the 2018 Convertible Notes in connection with a 2018 Specified Amendment in an amount not to exceed $275,000.
F. Consolidations, Mergers and Sales of Assets; Change in Control. No Borrower will directly or indirectly (a) consolidate or merge or amalgamate with or into any other Person other than consolidations or mergers among Borrowers where a Borrower is the surviving entity (provided that, in the case of any consolidation or merger involving Accuray, Accuray shall be the surviving entity), or (b) consummate any Asset Dispositions other than Permitted Asset Dispositions. No Borrower will suffer or permit to occur any Change in Control.
G. Purchase of Assets, Investments. No Borrower will directly or indirectly (a) engage or enter into any agreement to engage in any joint venture or partnership with any other Person or (b) acquire or own or enter into any agreement to acquire or own any Investment in any Person, in each case, other than Permitted Investments.
H. Transactions with Affiliates. Except (a) as otherwise disclosed on Schedule 5.8, (b) for transactions that contain terms that are no less favorable to the applicable Borrower, as the case may be, than those which might be obtained from a third party not an Affiliate of any Credit Party, (c) for Permitted Investments, Permitted Asset SalesDispositions and Permitted Distributions, (d) for sales of equity interests in Borrower Representative to Affiliates of Borrower Representative not otherwise prohibited by the Financing Documents and the granting of registration and other customary rights in connection therewith and (e) for the payment of reasonable and customary director and officer compensation (including bonuses and stock option programs), benefits and indemnification arrangements in the Ordinary Course of Business, in each case approved by the board of directors (or a committee thereof) of such Borrower, no Borrower will directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of any Borrower.
I. Modification of Organizational Documents. No Borrower will directly or indirectly, amend or otherwise modify any Organizational Documents of such Person, except for Permitted Modifications.
J. Modification of Certain Agreements. No Borrower will (i) amend or otherwise modify any Material Contract, which amendment or modification in any case: (a) is contrary to the terms of this Agreement or any other Financing Document; (b) could reasonably be expected to be materially adverse to the rights, interests or privileges of Agent or Lenders or their ability to enforce the same; (c) results in the imposition or expansion in any material respect of any obligation of or restriction or burden on any Borrower; or (d) reduces in any material respect any rights or benefits of any Borrower (it being understood and agreed that any such determination shall be in the discretion of Agent) or (ii) without the prior written consent of Agent, amend or otherwise modify any Affiliated Financing Document. Each Borrower shall, prior to entering into any amendment or other modification of any of the foregoing documents, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy of amendments or other modifications to such documents, and such Borrower agrees not to take any such action with respect to any such documents without obtaining such approval from Agent.
K. Conduct of Business. No Borrower will directly or indirectly, engage in any line of business other than those businesses engaged in on the Closing Date and businesses reasonably related thereto. No Borrower will, other than in the Ordinary Course of Business, change its normal billing payment and reimbursement policies and procedures with respect to its Accounts (including, without limitation, the amount and timing of finance charges, fees and write-offs).
L. Reserved.
M. Limitation on Sale and Leaseback Transactions. No Borrower will, directly or indirectly, enter into any arrangement with any Person whereby, in a substantially contemporaneous transaction, any Borrower sells or transfers all or substantially all of its right, title and interest in an asset and, in connection therewith, acquires or leases back the right to use such asset.
N. Deposit Accounts and Securities Accounts; Payroll and Benefits Accounts. No Borrower will, directly or indirectly, establish any new Deposit Account or Securities Account unless Agent, such Borrower and the bank, financial institution or securities intermediary at which the account is to be opened enter into a Deposit Account Control Agreement or Securities Account Control Agreement prior to or concurrently with the establishment of such Deposit Account or Securities Account. Borrowers represent and warrant that Schedule 5.14 lists all of the Deposit Accounts and Securities Accounts of each Borrower. The provisions of this Section requiring Deposit Account Control Agreements shall not apply to Excluded Accounts; provided, however, that at all times that any Obligations or Affiliated Obligations remain outstanding, Borrower shall maintain one or more separate Deposit Accounts to hold any and all amounts to be used for payroll, payroll taxes and other employee wage and benefit payments (including 401(k) contributions), and shall not commingle any monies allocated for such purposes with funds in any other Deposit Account.
O. Compliance with Anti-Terrorism Laws. Agent hereby notifies Borrowers that pursuant to the requirements of Anti-Terrorism Laws, and Agent’s policies and practices, Agent is required to obtain, verify and record certain information and documentation that identifies Borrowers and its principals, which information includes the name and address of each Borrower and its principals and such other information that will allow Agent to identify such party in accordance with Anti-Terrorism Laws. No Borrower will, directly or indirectly, knowingly enter into any Material Contracts with any Blocked Person. Each Borrower shall immediately notify Agent if such Borrower has knowledge that any Borrower, any additional Credit Party or any of their respective Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement is or becomes a Blocked Person or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. No Borrower will, or will permit any Subsidiary to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, except in compliance with applicable Law, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law.
P. Transfers to Subsidiaries. No Borrower shall assign or otherwise transfer any Collateral or any proceeds of the Loans to any Excluded Subsidiary except that a Borrower may transfer proceeds of Collateral to an Excluded Subsidiary in connection with Permitted Intercompany Investments.
Q. Limitations on Morphormics, Inc. No Borrower shall permit Morphormics, Inc. to, directly or indirectly, (a) enter into or permit to exist any transaction or agreement (including any agreement for the incurrence or assumption of Debt), between itself and any other Person, (b) engage in any business or conduct any activity (including the making of any Investment or payment) or transfer any of its assets and the performance of ministerial or administrative activities and payment of taxes and administrative fees necessary for the maintenance of its existence, (c) consolidate or merge with or into any other Person, or (d) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired.
VI. FINANCIAL COVENANTS
A. Additional Defined Terms. The following additional definitions are hereby appended to Section 1.1 of this Agreement:
“Defined Period” means, for purposes of calculating the Fixed Charge Coverage Ratio or Net Revenues the twelve (12) month period ending on the last day of each fiscal quarter.
“Fixed Charge Coverage Ratio” means the ratio of Operating Cash Flow (as defined in the Compliance Certificate) to Fixed Charges (as defined in the Compliance Certificate) for each Defined Period.
“Net Revenue” means, for any period, the consolidated net revenues of Borrowers and their Subsidiaries generated solely through the commercial sale of Products by Borrowers and their Subsidiaries during such period, as reported (in accordance with GAAP) in the financial statements delivered pursuant to Section 4.1(a) or (c), as applicable, as of the last day of such Defined Period.
B. Fixed Charge Coverage Ratio. Borrowers will not permit the Fixed Charge Coverage Ratio for any Defined Period, as tested quarterly (as of the last day of such fiscal quarter), beginning with the first full fiscal quarter ending after the Closing Date, to be less than (a) in the case of the fiscal quarter ending September 30, 2017, 0.70 to 1.00, (b) in the case of the fiscal quarter ending December 31, 2017, 0.80 to 1.00 and (c) for each fiscal quarter thereafter, 1.00 to 1.00.
Section 6.3 Minimum Net Revenue. Borrower shall not permit its consolidated Net Revenue for any Defined Period, as tested quarterly (as of the last day of such Defined Period), to be less than $360,000,000.
Section 6.4 Section 6.3 Evidence of Compliance. Borrowers shall furnish to Agent, together with the financial reporting required of Borrowers in Section 4.1 hereof, a Compliance Certificate as evidence of Borrowers’ compliance with the covenants in this Article and evidence that no Event of Default specified in this Article has occurred. The Compliance Certificate shall include, without limitation, (a) a statement and report, on a form approved by Agent, detailing Borrowers’ calculations, and (b) if requested by Agent, back-up documentation (including, without limitation, invoices, receipts and other evidence of costs incurred during such quarter as Agent shall reasonably require) evidencing the propriety of the calculations.
VII. CONDITIONS
A. Conditions to Closing. The obligation of each Lender to make the initial Loans, of Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
1. the payment of all fees, expenses and other amounts due and payable under each Financing Document on the Closing Date;
2. since June 30, 2016, the absence of any Material Adverse Effect; and
3. the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date.
Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
B. Conditions to Each Loan, Support Agreement and Lender Letter of Credit. The obligation of Lenders to make a Loan (other than Revolving Loans made pursuant to Section 2.5(c)) or an advance in respect of any Loan, of Agent to issue any Support Agreement or of any LC Issuer to issue any Lender Letter of Credit (including on the Closing Date) is subject to the satisfaction of the following additional conditions:
1. in the case of a borrowing of a Revolving Loan, receipt by Agent of a Notice of Borrowing (or telephonic notice if permitted by this Agreement) and updated Borrowing Base Certificate, in the case of any Support Agreement or Lender Letter of Credit, receipt by Agent of a Notice of LC Credit Event in accordance with Section 2.5(a);
2. the fact that, immediately after such borrowing and after application of the proceeds thereof or after such issuance, the Revolving Loan Outstandings will not exceed the Revolving Loan Limit;
3. the fact that, immediately before and after such advance or issuance, no Default or Event of Default shall have occurred and be continuing;
4. the fact that the representations and warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) on and as of the date of such borrowing or issuance, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) as of such earlier date; and
5. the fact that no event having a Material Adverse Effect has not occurred since the date of this Agreement.
Each giving of a Notice of LC Credit Event hereunder, each giving of a Notice of Borrowing hereunder and each acceptance by any Borrower of the proceeds of any Loan made hereunder shall be deemed to be (y) a representation and warranty by each Borrower on the date of such notice or acceptance as to the facts specified in this Section, and (z) a restatement by each Borrower that each and every one of the representations made by it in any of the Financing Documents is true and correct as of such date (except to the extent that such representations and warranties expressly relate solely to an earlier date).
C. Searches. Before the Closing Date, and thereafter (not more than once per year unless an Event of Default exists at the time such search is conducted), Agent shall have the right to perform, all at Borrowers’ expense, the searches described in clauses (a), (b), and (c) below against Borrowers and any other Credit Party, the results of which are to be consistent with Borrowers’ representations and warranties under this Agreement and the satisfactory results of which shall be a condition precedent to all advances of Loan proceeds, all issuances of Lender Letters of Credit and all undertakings in respect of Support Agreements: (a) UCC searches with the Secretary of State of the jurisdiction in which the applicable Person is organized; (b) judgment, pending litigation, federal tax lien, personal property tax lien, and corporate and partnership tax lien searches, in each jurisdiction searched under clause (a) above; and (c) searches of applicable corporate, limited liability company, partnership and related records to confirm the continued existence, organization and good standing of the applicable Person and the exact legal name under which such Person is organized.
D. Post-Closing Requirements. Borrowers shall complete each of the post-closing obligations and/or provide to Agent each of the documents, instruments, agreements and information listed on Schedule 7.4 attached hereto on or before the date set forth for each such item thereon, each of which shall be completed or provided in form and substance reasonably satisfactory to Agent, and may be extended by Agent (acting reasonably) in writing in its sole discretion.
VIII. RESERVED
IX. SECURITY AGREEMENT
A. Generally. As security for the payment and performance of the Obligations and without limiting any other grant of a Lien and security interest in any Security Document, Borrowers hereby assign, grant and pledge to Agent, for the benefit of itself and Lenders, and, subject only to the Affiliated Intercreditor Agreement, a continuing Lien on and security interest in, upon, and to the Collateral.
B. Representations and Warranties and Covenants Relating to Collateral.
1. Schedule 9.2 sets forth (i) each chief executive office and principal place of business of each Borrower, and (ii) all of the addresses (including all warehouses) at which any Inventory or other Collateral, in each case with an aggregate value in excess of $500,000 is located and/or books and records of Borrowers regarding any Accounts, Inventory or any material portion
of the Collateral are kept, which such Schedule 9.2 indicates in each case which Borrower(s) have Collateral and/or books and records located at such address, and, in the case of any such address not owned by one or more Borrowers(s), indicates the nature of such location (e.g., leased business location operated by Borrower(s), third party warehouse, consignment location, processor location, etc.) and the name and address of the third party owning and/or operating such location. Notwithstanding the foregoing, it is understood that, Borrowers may from time to time (1) sell or otherwise dispose of Collateral pursuant to the terms of this Agreement, (2) maintain de minimis amounts of Inventory with its sales personnel and at medical facilities and (3) send items of Collateral out for repair and, further, that from time to time certain items of Collateral will be in transit and that no such locations need be disclosed on Schedule 9.2.
2. Without limiting the generality of Section 3.2, except for the filing of financing statements under the UCC and filings with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or consent of any other Person is required for (i) the grant by each Borrower to Agent of the security interests and Liens in the Collateral provided for under this Agreement and the other Security Documents (if any), or (ii) the exercise by Agent of its rights and remedies with respect to the Collateral provided for under this Agreement and the other Security Documents or under any applicable Law, including the UCC and neither any such grant of Liens in favor of Agent or exercise of rights by Agent shall violate or cause a default under any agreement between any Borrower and any other Person relating to any such Collateral.
3. As of the ClosingFirst Amendment Effective Date, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments (other than (i) checks and other ordinary course payment instruments, in each case in the Ordinary Course of Business and (ii) Excluded Perfection Assets), documents or investment property (other than equity interests in any Subsidiaries of such Borrower disclosed on Schedule 3.4 or subsequently created hereunder and pledged to Agent) and Borrowers shall give notice to Agent promptly (but in any event not later than the delivery by Borrowers of the next Compliance Certificate required pursuant to Section 4.1 above) upon the acquisition by any Borrower of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments, documents, investment property. No Person other than Agent or (if applicable) any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including Securities Accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, Securities Account or commodities account of Borrowers is maintained).
4. Borrowers shall not, and shall not permit any Credit Party to, take any of the following actions or make any of the following changes unless Borrowers have given at least ten (10) days prior written notice to Agent (or such shorter period to which Agent may in its reasonable discretion agree) of Borrowers’ intention to take any such action (which such written notice shall include an updated version of any Schedule impacted by such change) and have executed any and all documents, instruments and agreements and taken any other actions which Agent may reasonably request after receiving such written notice in order to protect and preserve
the Liens, rights and remedies of Agent with respect to the Collateral; provided that, without limiting in any way the conditions set forth in the definition of “Eligible Inventory”, nothing in this clause (d) shall require Borrowers to obtain any landlord’s agreement or mortgagee agreement: (i) change the legal name or organizational identification number of any Borrower as it appears in official filings in the jurisdiction of its organization, (ii) change the jurisdiction of incorporation or formation of any Borrower or Credit Party or allow any Borrower or Credit Party to designate any jurisdiction as an additional jurisdiction of incorporation for such Borrower or Credit Party, or change the type of entity that it is, (iii) change its chief executive office, principal place of business, or the location of its records concerning the Collateral, (iv) move any Eligible Inventory or all or a material portion of any other Collateral (with an aggregate value in excess of $500,000) to, or place any Eligible Inventory or other Collateral (with an aggregate value in excess of $500,000) on, any location that is not then listed on the Schedules and/or (v) establish any business location at any location that is not then listed on the Schedules. Notwithstanding the foregoing, it is understood that, Borrowers may from time to time (1) sell or otherwise dispose of Collateral pursuant to the terms of this Agreement, (2) maintain de minimis amounts of Inventory with its sales personnel and at medical facilities and (3) send items of Collateral out for repair and, further, that from time to time certain items of Collateral will be in transit and that no such locations need be disclosed on Schedule 9.2.
5. Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the Ordinary Course of Business, and in amounts which are not material with respect to the Account and which, after giving effect thereto, do not cause the Borrowing Base to be less than the Revolving Loan Outstandings) without the prior written consent of Agent. Without limiting the generality of this Agreement or any other provisions of any of the Financing Documents relating to the rights of Agent after the occurrence and during the continuance of an Event of Default, Agent shall have the right at any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle or compromise the amount or payment of such Accounts.
6. Without limiting the generality of Sections 9.2(c) and 9.2(e):
(a) Borrowers shall deliver to Agent all tangible Chattel Paper and all Instruments constituting part of the Collateral (in each case, other than Excluded Perfection Assets) duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent. Borrowers shall provide Agent with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper owned by any Borrower and constituting part of the Collateral (other than Excluded Perfection Assets) by having Agent identified as the assignee on the records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of control set forth in the UCC. Borrowers also shall deliver to Agent all security agreements securing any such Chattel Paper and securing any such Instruments. Borrowers will mark conspicuously all such Chattel Paper and all such Instruments with a legend, in form and substance satisfactory to Agent, indicating that such Chattel Paper and such
Instruments are subject to the security interests and Liens in favor of Agent created pursuant to this Agreement and the Security Documents. Borrowers shall comply with all the provisions of Section 5.14 with respect to the Deposit Accounts and Securities Accounts of Borrowers.
(b) Borrowers shall deliver to Agent all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral (other than Excluded Perfection Assets) in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent. Borrowers shall take any and all actions as may be necessary or desirable, or that Agent may request, from time to time, to cause Agent to obtain exclusive “control” (as defined in Article 9 of the UCC) of any such letter of credit rights which constitute part of the Collateral in a manner reasonably acceptable to Agent.
(c) Borrowers shall promptly advise Agent upon any Borrower becoming aware that it has any interests in any commercial tort claim that constitutes part of the Collateral (other than Excluded Perfection Assets), which such notice shall include descriptions of the events and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims, and Borrowers shall, with respect to any such commercial tort claim, execute and deliver to Agent such documents as Agent shall reasonably request to perfect, preserve or protect the Liens, rights and remedies of Agent with respect to any such commercial tort claim.
(d) Except for Accounts and Inventory in an aggregate amount of $500,000, no Accounts or Inventory or other Collateral shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Agent and (ii)(A) the receipt by Agent, if Agent has so requested, of warehouse receipts, consignment agreements or bailee lien waivers (as applicable) satisfactory to Agent or (B) establishment of a Rent and Charges Reserve, in either case, prior to the commencement of such possession or control. Borrowers shall, upon the request of Agent, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor of Agent created pursuant to this Agreement and the Security Documents, shall instruct such Person to hold all such Collateral for Agent’s account subject to Agent’s instructions and use commercially reasonable efforts to obtain an acknowledgement from such Person that such Person holds the Collateral for Agent’s benefit.
(e) Reserved.
(f) Each Borrower hereby authorizes Agent to file without the signature of such Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the Collateral, which financing statements may list Agent as the “secured party” and such Borrower as the “debtor” and which describe and indicate the items of Collateral covered thereby as all or any part of the Collateral under
the Financing Documents (including an indication of the items of Collateral covered by any such financing statement as “all assets” of such Borrower now owned or hereafter acquired), in such jurisdictions as Agent from time to time reasonably determines are appropriate, and to file without the signature of such Borrower any continuations of or corrective amendments to any such financing statements, in any such case in order for Agent to perfect, preserve or protect the Liens, rights and remedies of Agent with respect to the Collateral. Each Borrower also ratifies its authorization for Agent to have filed in any jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.
(g) As of the Closing Date, no Borrower holds, and after the Closing Date Borrowers shall promptly notify Agent in writing upon creation or acquisition by any Borrower of, any Collateral which constitutes a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law. Upon the reasonable request of Agent, Borrowers shall take such steps as may be necessary or desirable, or that Agent may reasonably request, to comply with any such applicable Law.
(h) Borrowers shall furnish to Agent from time to time any statements and schedules further identifying or describing the Collateral and any other information, reports or evidence concerning the Collateral as Agent may reasonably request from time to time.
7. Notwithstanding anything in this Agreement to the contrary, other than the filing of a UCC-1 financing statement, no actions shall be required to perfect the security interest granted hereunder in (i) Letter-of-Credit Rights to the extent the aggregate face amount of all such Letter-of-Credit Rights is less than $100,000, (ii) motor vehicles and other assets subject to certificates of title to the extent the aggregate value of all such motor vehicles and other assets is less than $500,000 (other than to the extent (x) a security interest thereon can be perfected by the filing of a financing statement under the UCC and (y) an Event of Default has occurred and Agent has elected to require, by written notice to Borrowers, that Borrowers take all such steps necessary to perfect a lien in favor of Agent, for the benefit of Lenders, in such motor vehicles and other assets subject to certificates of title), (iii) Excluded Accounts, (iv) any assets located outside of the United States if the perfection of the security interest therein would require any Borrower to complete any filings or take any other action with respect thereto in any jurisdiction outside of the United States or any political subdivision thereof (including, for the avoidance of doubt, delivery of foreign equity certificates) unless an Event of Default has occurred and Agent has elected to require, by written notice to Borrowers, that Borrowers take all such steps necessary to perfect a lien in favor of Agent, for the benefit of Lenders, in such assets, (v) any commercial tort claims where the amount of damages claimed by the applicable Borrower is less than $100,000 in the aggregate for all such commercial tort claims, (vi) any electronic chattel paper with an aggregate value in excess of $100,000, and (vii) any asset with respect to which Agent has determined that the cost, burden, difficulty or consequence of perfecting a security interest therein outweighs the benefits afforded thereby (such assets described in clauses (i) through (vii) above, the “Excluded Perfection Assets”).
X. EVENTS OF DEFAULT
A. Events of Default. For purposes of the Financing Documents, the occurrence of any of the following conditions and/or events, whether voluntary or involuntary, by operation of law or otherwise, shall constitute an “Event of Default”:
1. (i) any Borrower shall fail to pay when due any principal, interest, premium or fee under any Financing Document or any other amount payable under any Financing Document, (ii) any Borrower defaults in the performance of or compliance with any of the following sections of this Agreement: Section 2.11, Section 4.2(b), Section 4.4(c), Section 4.6 and Article 5, or (iii) any Borrower defaults in the performance of or compliance with Section 4.1 and/or Article 6 (subject to the provisions of Section 10.11) of this Agreement and Borrower Representative has received written notice from Agent or Required Lenders of such default;
2. any Credit Party defaults in the performance of or compliance with any term contained in this Agreement or in any other Financing Document (other than occurrences described in other provisions of this Section 10.1 for which a different grace or cure period is specified or for which no grace or cure period is specified and thereby constitute immediate Events of Default) and such default is not remedied by the Credit Party or waived by Agent within thirty (30) days after the earlier of (i) receipt by Borrower Representative of notice from Agent or Required Lenders of such default, or (ii) actual knowledge of any Borrower or any other Credit Party of such default;
3. any representation, warranty, certification or statement made by any Credit Party or any other Person in any Financing Document or in any certificate, financial statement or other document delivered pursuant to any Financing Document is incorrect in any respect (or in any material respect if such representation, warranty, certification or statement is not by its terms already qualified as to materiality) when made (or deemed made) (subject, in the case of projections, other forward-looking information and industry information, to the limitations set forth in Section 3.21 hereof);
4. failure of any Credit Party to pay when due or within any applicable grace period any principal, interest or other amount on Debt (other than the Loans), or the occurrence of any breach, default, condition or event (in each case, other than conversion of, or rights to convert, any Convertible Notes Debt in accordance with its terms so long as such conversion terms are no less favorable than those applicable to the 2018 Convertible Notes and/or the 2022 Convertible Notes as in effect on the date hereof) with respect to any Debt (other than the Loans), if the effect of such failure or occurrence is to cause or to permit the holder or holders of any such Debt to cause, Debt or other liabilities having an aggregate principal amount in excess of $5,000,000 to become or be declared due prior to its stated maturity;
5. any Borrower or any Material Subsidiary of a Borrower shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;
6. an involuntary case or other proceeding shall be commenced against any Credit Party or any Material Subsidiary of a Borrower seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or an order for relief shall be entered against any Credit Party or any Subsidiary of a Borrower under applicable federal bankruptcy, insolvency or other similar law in respect of (i) bankruptcy, liquidation, winding-up, dissolution or suspension of general operations, (ii) composition, rescheduling, reorganization, arrangement or readjustment of, or other relief from, or stay of proceedings to enforce, some or all of the debts or obligations, or (iii) possession, foreclosure, seizure or retention, sale or other disposition of, or other proceedings to enforce security over, all or any substantial part of the assets of such Credit Party or Subsidiary;
7. (i) institution of any steps by any Person to terminate a Pension Plan if as a result of such termination any Credit Party or any member of the Controlled Group could be required to make a contribution to such Pension Plan and could incur a liability or obligation to such Pension Plan, in excess of $1,000,000, (ii) a contribution failure occurs with respect to any Pension Plan sufficient to give rise to a Lien under Section 303(k) of ERISA or Section 430(k) of the Code or an event occurs that could reasonably be expected to give rise to a Lien under Section 4068 of ERISA, or (iii) there shall occur any withdrawal or partial withdrawal from a Multiemployer Plan and the withdrawal liability (without unaccrued interest) to Multiemployer Plans as a result of such withdrawal (including any outstanding withdrawal liability that any Credit Party or any member of the Controlled Group have incurred on the date of such withdrawal) exceeds $1,000,000;
8. one or more judgments or orders for the payment of money aggregating in excess of $5,000,000 (above (i) any amounts covered by insurance to the extent the relevant independent third-party insurer has not denied coverage therefor, or (ii) the amount of a bond or other security from or on behalf of Borrowers or any of their respective Subsidiaries as security against such judgment) shall be rendered against any or all Credit Parties and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders, or (ii) there shall be any period of thirty (30) consecutive days during which a stay of enforcement of any such judgments or orders, by reason of a pending appeal, bond or otherwise, shall not be in effect;
9. any Lien created by any of the Security Documents with respect to Eligible Accounts, Eligible Inventory or a material portion of the Collateral, taken as a whole, shall at any time fail to constitute a valid and perfected (other than in respect of Excluded Perfection Assets) Lien on all of the Collateral purported to be encumbered thereby, subject to no prior or equal Lien except Permitted Liens, or any Credit Party shall so assert;
10. the institution by any Governmental Authority of criminal proceedings against any Credit Party;
11. any Guarantee of the Obligations shall fail to remain in full force or effect (other than to the extent expressly permitted by this Agreement) or any action shall be taken by any Guarantor to discontinue or to assert the invalidity or unenforceability of its Guarantee, or any Guarantor shall fail to comply with any of the terms of provisions of its Guarantee, or any Guarantor shall deny that it has any further liability under its Guarantee, or shall give notice to such effect (other than as a result of the discharge of such Guarantor to the extent expressly permitted by this Agreement), including, but not limited to, any notice of termination delivered pursuant to the terms of any Guarantee.
12. any Borrower makes any payment on account of any Subordinated Debt, other than payments specifically permitted by the terms of the applicable Subordinated Debt Documents;
13. the equity of Accuray fails to remain registered with the SEC in good standing, and/or such equity fails to remain publicly traded on and registered with a public securities exchange; or
14. there shall occur any event of default under the Indenture, the 2018 Convertible Notes, the 2022 Convertible Notes, any other Convertible Notes Debt or any indenture in respect thereof; or
(o) there shall occur any event of default under the Affiliated Financing Documents.
All cure periods provided for in this Section 10.1 shall run concurrently with any cure period provided for in any applicable Financing Documents under which the default occurred.
B. Acceleration and Suspension or Termination of Revolving Loan Commitment. Upon the occurrence and during the continuance of an Event of Default, Agent may, and shall if requested by Required Lenders, (a) by notice to Borrower Representative suspend or terminate the Revolving Loan Commitment and the obligations of Agent and Lenders with respect thereto, in whole or in part (and, if in part, each Lender’s Revolving Loan Commitment shall be reduced in accordance with its Pro Rata Share), and/or (b) by notice to Borrower Representative declare all or any portion of the Obligations to be, and the Obligations shall thereupon become, immediately due and payable, with accrued interest thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower, and Borrowers will pay the same; provided, however, that in the case of any of the Events of Default specified in Section 10.1(e) or 10.1(f) above, without any notice to any Borrower or any other act by Agent or Lenders, the Revolving Loan Commitment and the obligations of Agent and Lenders with respect thereto shall thereupon immediately and automatically terminate and all of the Obligations shall become immediately and automatically due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower and Borrowers will pay the same.
C. UCC Remedies.
1. Upon the occurrence of and during the continuance of an Event of Default under this Agreement or the other Financing Documents, Agent, in addition to all other rights, options, and remedies granted to Agent under this Agreement or at law or in equity, may exercise, either directly or through one or more assignees or designees, all rights and remedies granted to it under all Financing Documents and under the UCC in effect in the applicable jurisdiction(s) and under any other applicable law; including, without limitation:
(a) the right to take possession of, send notices regarding, and collect directly the Collateral, with or without judicial process;
(b) the right to (by its own means or with judicial assistance) enter any of Borrowers’ premises and take possession of the Collateral, or render it unusable, or to render it usable or saleable, or dispose of the Collateral on such premises in compliance with subsection (iii) below and to take possession of Borrowers’ original books and records, to obtain access to Borrowers’ data processing equipment, computer hardware and software relating to the Collateral and to use all of the foregoing and the information contained therein in any manner Agent deems appropriate, without any liability for rent, storage, utilities, or other sums, and Borrowers shall not resist or interfere with such action (if Borrowers’ books and records are prepared or maintained by an accounting service, contractor or other third party agent, Borrowers hereby irrevocably authorize such service, contractor or other agent, upon notice by Agent to such Person that an Event of Default has occurred and is continuing, to deliver to Agent or its designees such books and records, and to follow Agent’s instructions with respect to further services to be rendered);
(c) the right to require Borrowers at Borrowers’ expense to assemble all or any part of the Collateral and make it available to Agent at any place designated by Agent;
(d) the right to notify postal authorities to change the address for delivery of Borrowers’ mail to an address designated by Agent and to receive, open and dispose of all mail addressed to any Borrower; and/or
(e) the right to enforce Borrowers’ rights against Account Debtors and other obligors, including, without limitation, (i) the right to collect Accounts directly in Agent’s own name (as agent for Lenders) and to charge the collection costs and expenses, including attorneys’ fees, to Borrowers, and (ii) the right, in the name of Agent or any designee of Agent or Borrowers, to verify the validity, amount or any other matter relating to any Accounts by mail, telephone, telegraph or otherwise, including, without limitation, verification of Borrowers’ compliance with applicable Laws. Borrowers shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. Such verification may include contacts between Agent and applicable federal, state and local regulatory authorities having jurisdiction over Borrowers’ affairs, all of which contacts Borrowers hereby irrevocably authorize.
2. Each Borrower agrees that a notice received by it at least ten (10) days before the time of any intended public sale, or the time after which any private sale or other disposition of the Collateral is to be made, shall be deemed to be reasonable notice of such sale or other disposition. If permitted by applicable law, any perishable Collateral which threatens to speedily decline in value or which is sold on a recognized market may be sold immediately by Agent without prior notice to Borrowers. At any sale or disposition of Collateral, Agent may (to the extent permitted by applicable law) purchase all or any part of the Collateral, free from any right of redemption by Borrowers, which right is hereby waived and released. Each Borrower covenants and agrees not to interfere with or impose any obstacle to Agent’s exercise of its rights and remedies with respect to the Collateral. Agent shall have no obligation to clean-up or otherwise prepare the Collateral for sale. Agent may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Agent may sell the Collateral without giving any warranties as to the Collateral. Agent may specifically disclaim any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. If Agent sells any of the Collateral upon credit, Borrowers will be credited only with payments actually made by the purchaser, received by Agent and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Agent may resell the Collateral and Borrowers shall be credited with the proceeds of the sale. Borrowers shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Obligations.
3. Without restricting the generality of the foregoing and for the purposes aforesaid, each Borrower hereby appoints and constitutes Agent its lawful attorney-in-fact with full power of substitution in the Collateral, upon the occurrence and during the continuance of an Event of Default, to (i) use unadvanced funds remaining under this Agreement or which may be reserved, escrowed or set aside for any purposes hereunder at any time, or to advance funds in excess of the face amount of the Notes, (ii) pay, settle or compromise all existing bills and claims, which may be Liens or security interests, or to avoid such bills and claims becoming Liens against the Collateral, (iii) execute all applications and certificates in the name of such Borrower and to prosecute and defend all actions or proceedings in connection with the Collateral, and (iv) do any and every act which such Borrower might do in its own behalf; it being understood and agreed that the power of attorney in this subsection (c) shall be a power coupled with an interest and cannot be revoked.
4. Subject to the terms and conditions of this Agreement, solely for the purpose of enabling the Agent, on behalf of the Lenders, to exercise rights and remedies hereunder after the occurrence and solely during the continuance of an Event of Default and at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, Agent is hereby granted, for its benefit and the benefit of the Lenders, to the extent licensable without payment to or consent of any third party, an irrevocable (during the continuation of an Event of Default), non-exclusive license (exercisable without payment of royalty or other compensation to any Credit Party or any other Person) to use any of the Intellectual Property of any Credit Party included in the Collateral, including access to all media in which any such licensed Intellectual Property may be recorded or stored and to all computer programs used for the compilation or printout thereof, provided however that (i) such license granted hereunder with respect to trademarks shall be subject to all quality control and use requirements or standards of the applicable Credit Party, (ii) the Agent continue to
use such Credit Party’s patent, trademark, copyright and proprietary notices in connection with its exercise of such license, (iii) all goodwill associated with the use of the Credit Party’s trademarks will inure to the sole and exclusive benefit of such Credit Party and (iv) the Agent, on behalf of the Lenders, shall have no greater rights than those of the applicable Credit Party under any such license. For the avoidance of doubt, the use of the license granted to the Agent pursuant to this Section 10.3(d) by the Credit Parties may be exercised, at the option of the Agent, only upon the occurrence and solely during the continuance of an Event of Default.
D. Cash Collateral. If (a) any Event of Default specified in Section 10.1(e) or 10.1(f) shall occur, (b) the Obligations shall have otherwise been accelerated pursuant to Section 10.2, or (c) the Revolving Loan Commitment and the obligations of Agent and Lenders with respect thereto shall have been terminated pursuant to Section 10.2, then without any request or the taking of any other action by Agent or Lenders, Borrowers shall immediately comply with the provisions of Section 2.5(e) with respect to the deposit of cash collateral to secure the existing Letter of Credit Liability and future payment of related fees.
E. Default Rate of Interest. At the election of Agent or Required Lenders, after the occurrence of an Event of Default (but in the case of a breach of the covenants in Article 6, only after the Cure Period expires or if the Cure Right is no longer available) and for so long as it continues, (a) the Loans and other Obligations shall bear interest at rates that are two percent (2.0%) per annum in excess of the rates otherwise payable under this Agreement, and (b) the fee described in Section 2.5(b) shall increase by a rate that is two percent (2.0%) in excess of the rate otherwise payable under such Section; provided, however, that in the case of any Event of Default specified in Section 10.1(e) or 10.1(f) above, such default rates shall apply immediately and automatically without the need for any election or action of any kind on the part of Agent or any Lender.
F. Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by each Borrower at any time or from time to time, with reasonably prompt subsequent notice to such Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (a) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of such Borrower or any of its Subsidiaries (regardless of whether such balances are then due to such Borrower or its Subsidiaries), and (b) other property at any time held or owing by such Lender to or for the credit or for the account of such Borrower or any of its Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Each Borrower agrees, to the fullest extent permitted by law, that any Lender and any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 10.6.
G. Application of Proceeds.
1. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, each Borrower irrevocably
waives the right to direct the application of any and all payments at any time or times thereafter received by Agent from or on behalf of such Borrower or any Guarantor of all or any part of the Obligations, and, as between Borrowers on the one hand and Agent and Lenders on the other, Agent shall have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as Agent may deem advisable notwithstanding any previous application by Agent.
2. Following the occurrence and continuance of an Event of Default, but absent the occurrence and continuance of an Acceleration Event, Agent shall apply any and all payments received by Agent in respect of the Obligations, and any and all proceeds of Collateral received by Agent, in such order as Agent may from time to time elect.
3. Notwithstanding anything to the contrary contained in this Agreement, if an Acceleration Event shall have occurred, and so long as it continues, Agent shall apply any and all payments received by Agent in respect of the Obligations, and any and all proceeds of Collateral received by Agent, in the following order: first, to all fees, costs, indemnities, liabilities, obligations and expenses incurred by or owing to Agent with respect to this Agreement, the other Financing Documents or the Collateral; second, to all fees, costs, indemnities, liabilities, obligations and expenses incurred by or owing to any Lender with respect to this Agreement, the other Financing Documents or the Collateral; third, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the Bankruptcy Code, would have accrued on such amounts); fourth, to the principal amount of the Obligations outstanding and to provide cash collateral to secure any and all Letter of Credit Liability and future payment of related fees, as provided for in Section 2.5(e); and fifth to any other indebtedness or obligations of Borrowers owing to Agent or any Lender under the Financing Documents. Any balance remaining shall be delivered to Borrowers or to whomever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. In carrying out the foregoing, (y) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category, and (z) each of the Persons entitled to receive a payment in any particular category shall receive an amount equal to its Pro Rata Share of amounts available to be applied pursuant thereto for such category.
H. Waivers.
1. Except as otherwise provided for in this Agreement and to the fullest extent permitted by applicable law, each Borrower waives: (i) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all Financing Documents, the Notes or any other notes, commercial paper, accounts, contracts, documents, Instruments, Chattel Paper and Guarantees at any time held by Lenders on which any Borrower may in any way be liable, and hereby ratifies and confirms whatever Lenders may do in this regard; (ii) all rights to notice and a hearing prior to Agent’s or any Lender’s taking possession or control of, or to Agent’s or any Lender’s replevy, attachment or levy upon, any Collateral or any bond or security which might be required by any court prior to allowing Agent or any Lender to exercise any of its remedies; and (iii) the benefit of all valuation, appraisal and exemption Laws. Each Borrower acknowledges that it has been advised by counsel of its choices and decisions with
respect to this Agreement, the other Financing Documents and the transactions evidenced hereby and thereby.
2. Each Borrower for itself and all its successors and assigns, (i) agrees that its liability shall not be in any manner affected by any indulgence, extension of time, renewal, waiver, or modification granted or consented to by Lender; (ii) consents to any indulgences and all extensions of time, renewals, waivers, or modifications that may be granted by Agent or any Lender with respect to the payment or other provisions of the Financing Documents, and to any substitution, exchange or release of the Collateral, or any part thereof, with or without substitution, and agrees to the addition or release of any Borrower, endorsers, guarantors, or sureties, or whether primarily or secondarily liable, without notice to any other Borrower and without affecting its liability hereunder; (iii) agrees that its liability shall be unconditional and without regard to the liability of any other Borrower, Agent or any Lender for any tax on the indebtedness (except to the extent otherwise expressly provided in Section 2.8); and (iv) to the fullest extent permitted by law, expressly waives the benefit of any statute or rule of law or equity now provided, or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing.
3. To the extent that Agent or any Lender may have acquiesced in any noncompliance with any requirements or conditions precedent to the closing of the Loans or to any subsequent disbursement of Loan proceeds, such acquiescence shall not be deemed to constitute a waiver by Agent or any Lender of such requirements with respect to any future disbursements of Loan proceeds and Agent may at any time after such acquiescence require Borrowers to comply with all such requirements. Any forbearance by Agent or Lender in exercising any right or remedy under any of the Financing Documents, or otherwise afforded by applicable law, including any failure to accelerate the maturity date of the Loans, shall not be a waiver of or preclude the exercise of any right or remedy nor shall it serve as a novation of the Notes or as a reinstatement of the Loans or a waiver of such right of acceleration or the right to insist upon strict compliance of the terms of the Financing Documents. Agent’s or any Lender’s acceptance of payment of any sum secured by any of the Financing Documents after the due date of such payment shall not be a waiver of Agent’s and such Lender’s right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other Liens or charges by Agent as the result of an Event of Default shall not be a waiver of Agent’s right to accelerate the maturity of the Loans, nor shall Agent’s receipt of any condemnation awards, insurance proceeds, or damages under this Agreement operate to cure or waive any Credit Party’s default in payment of sums secured by any of the Financing Documents.
4. Without limiting the generality of anything contained in this Agreement or the other Financing Documents, each Borrower agrees that if an Event of Default is continuing all Liens and other rights, remedies or privileges provided to Agent or Lenders shall remain in full force and effect until Agent or Lenders have exhausted all remedies against the Collateral and any other properties owned by Borrowers and the Financing Documents and other security instruments or agreements securing the Loans have been foreclosed, sold and/or otherwise realized upon in satisfaction of Borrowers’ obligations under the Financing Documents.
5. Nothing contained herein or in any other Financing Document shall be construed as requiring Agent or any Lender to resort to any part of the Collateral for the satisfaction
of any of Borrowers’ obligations under the Financing Documents in preference or priority to any other Collateral, and Agent may seek satisfaction out of all of the Collateral or any part thereof, in its absolute discretion in respect of Borrowers’ obligations under the Financing Documents. In addition, Agent shall have the right, after the occurrence and during the continuance of an Event of Default, to partially foreclose upon any Collateral in any manner and for any amounts secured by the Financing Documents then due and payable as determined by Agent in its sole discretion, including, without limitation, the following circumstances: (i) in the event any Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and/or interest, Agent may foreclose upon all or any part of the Collateral to recover such delinquent payments, or (ii) in the event Agent elects (in accordance with the terms of this Agreement) to accelerate less than the entire outstanding principal balance of the Loans, Agent may foreclose all or any part of the Collateral to recover so much of the principal balance of the Loans as Lender may accelerate and such other sums secured by one or more of the Financing Documents as Agent may elect. Notwithstanding one or more partial foreclosures, any unforeclosed Collateral shall remain subject to the Financing Documents to secure payment of sums secured by the Financing Documents and not previously recovered.
6. To the fullest extent permitted by law, each Borrower, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Collateral any equitable right otherwise available to any Credit Party which would require the separate sale of any of the Collateral or require Agent or Lenders to exhaust their remedies against any part of the Collateral before proceeding against any other part of the Collateral; and further in the event of such foreclosure each Borrower does hereby expressly consent to and authorize, at the option of Agent, the foreclosure and sale either separately or together of each part of the Collateral.
I. Injunctive Relief. The parties acknowledge and agree that, in the event of a breach or threatened breach of any Credit Party’s obligations under any Financing Documents, Agent and Lenders may have no adequate remedy in money damages and, accordingly, shall be entitled to an injunction (including, without limitation, a temporary restraining order, preliminary injunction, writ of attachment, or order compelling an audit) against such breach or threatened breach, including, without limitation, maintaining any cash management and collection procedure described herein. However, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event of a breach or threatened breach of any provision of this Agreement. Each Credit Party waives, to the fullest extent permitted by law, the requirement of the posting of any bond in connection with such injunctive relief. By joining in the Financing Documents as a Credit Party, each Credit Party specifically joins in this Section as if this Section were a part of each Financing Document executed by such Credit Party.
J. Marshalling; Payments Set Aside. Neither Agent nor any Lender shall be under any obligation to marshal any assets in payment of any or all of the Obligations. To the extent that Borrower makes any payment or Agent enforces its Liens or Agent or any Lender exercises its right of set-off, and such payment or the proceeds of such enforcement or set-off is subsequently invalidated, declared to be fraudulent or preferential, set aside, or required to be repaid by anyone, then to the extent of such recovery, the Obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued
in full force and effect as if such payment had not been made or such enforcement or set-off had not occurred.
K. Cure Right. 1. Notwithstanding anything to the contrary contained in this Agreement, in the event that Borrowers fail to comply with Section 6.2 as of the end of any fiscal quarter, until the expiration of the fifteenth (15th) Business Day subsequent to the date the Compliance Certificate for such fiscal quarter is required to be delivered pursuant to Section 4.1 (the “Cure Period”), Accuray shall have the right to issue equity interests (other than Disqualified Equity Interests) for cash (the amount thereof, the “Cure Amount” and the exercise of such right, the “Cure Right”); provided, (i) no more than four (4) Cure Rights may be exercised after the Closing Date; (ii) no more than two Cure Rights may be exercised during any consecutive four fiscal quarters; (iii) no Cure Amount shall exceed the amount necessary to cause compliance with Section 6.2 for the period then ended; and (iv) no Cure Amount shall exceed $5,000,000; and (v) the Cure Right must be exercised under this Agreement and the Affiliated Credit Agreement concurrently; provided further, that (x) Borrower Representative shall give Agent written notice of their intention to exercise the Cure Right prior to the eleventh (11th) Business Day subsequent to the date the Compliance Certificate for such fiscal quarter is required to be delivered (such Business Day, the “Cure Notice Deadline”) and (y) so long as Borrower Representative has given irrevocable written notice to Agent of its commitment to exercise the Cure Right prior to the Cure Notice Deadline, during the remainder of the Cure Period thereafter, neither Agent nor Lenders shall exercise remedies in connection with such failure to comply with Section 6.2 as of the end of such fiscal quarter; provided, further, that Borrowers shall not be permitted to request any Revolving Loans during the Cure Period unless and until the Cure Amount has been received by Accuray.
2. Upon the receipt by Accuray of the cash proceeds of any equity issuance referred to in Section 10.11(a), EBITDA for the fiscal quarter as to which such Cure Right is exercised (the “Cure Right Fiscal Quarter”) shall be deemed to have been increased by the Cure Amount in determining compliance with Section 6.2 for such Cure Right Fiscal Quarter and for any subsequent period that includes such Cure Right Fiscal Quarter; provided that no increase in EBITDA on account of the exercise of any Cure Right shall be applicable for any other purpose under this Agreement or any other Financing Documents.
3. If after giving effect to the recalculations set forth in Section 10.11(b) Borrowers shall then be in compliance with Section 6.2, Borrowers shall be deemed to have satisfied the requirements of such covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and any Event of Default with respect to any such covenant that had occurred shall be deemed cured for all purposes of this Agreement and the other Financing Documents.
XI. AGENT
A. Appointment and Authorization. Each Lender hereby irrevocably appoints and authorizes Agent to enter into each of the Financing Documents to which it is a party (other than this Agreement) on its behalf and to take such actions as Agent on its behalf and to exercise such powers under the Financing Documents as are delegated to Agent by the terms thereof, together with all such powers as are reasonably incidental thereto. Subject to the terms of Section
11.16 and to the terms of the other Financing Documents, Agent is authorized and empowered to amend, modify, or waive any provisions of this Agreement or the other Financing Documents on behalf of Lenders. The provisions of this Article 11 are solely for the benefit of Agent and Lenders and neither any Borrower nor any other Credit Party shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Credit Party. Agent may perform any of its duties hereunder, or under the Financing Documents, by or through its agents, servicers, trustees, investment managers or employees.
B. Agent and Affiliates. Agent shall have the same rights and powers under the Financing Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Credit Party or Affiliate of any Credit Party as if it were not Agent hereunder.
C. Action by Agent. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the Financing Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the Financing Documents except as expressly set forth herein or therein.
D. Consultation with Experts. Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
E. Liability of Agent. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to
recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them).
F. Indemnification. Each Lender shall, in accordance with its Pro Rata Share, indemnify Agent (to the extent not reimbursed by Borrowers) upon demand against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction) that Agent may suffer or incur in connection with the Financing Documents or any action taken or omitted by Agent hereunder or thereunder. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by Required Lenders until such additional indemnity is furnished.
G. Right to Request and Act on Instructions. Agent may at any time request instructions from Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Financing Documents Agent is permitted or desires to take or to grant, and if such instructions are promptly requested, Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Financing Documents until it shall have received such instructions from Required Lenders or all or such other portion of Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement or any of the other Financing Documents in accordance with the instructions of Required Lenders (or all or such other portion of Lenders as shall be prescribed by this Agreement) and, notwithstanding the instructions of Required Lenders (or such other applicable portion of Lenders), Agent shall have no obligation to take any action if it believes, in good faith, that such action would violate applicable Law or exposes Agent to any liability for which it has not received satisfactory indemnification in accordance with the provisions of Section 11.6.
H. Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under the Financing Documents.
I. Collateral Matters. Lenders irrevocably authorize Agent, at its option and in its discretion, to (a) release any Lien granted to or held by Agent under any Security Document (i) upon termination of the Revolving Loan Commitment and payment in full of all Obligations; or (ii) constituting property sold or disposed of as part of or in connection with any disposition permitted under any Financing Document (it being understood and agreed that Agent may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the sale or other disposition of property being made in full compliance with the provisions of the Financing
Documents); and (b) subordinate any Lien granted to or held by Agent under any Security Document to a Permitted Lien that is allowed to have priority over the Liens granted to or held by Agent pursuant to the definition of “Permitted Liens”. Upon request by Agent at any time, Lenders will confirm Agent’s authority to release and/or subordinate particular types or items of Collateral pursuant to this Section 11.9.
J. Agency for Perfection. Agent and each Lender hereby appoint each other Lender as agent for the purpose of perfecting Agent’s security interest in assets which, in accordance with the Uniform Commercial Code in any applicable jurisdiction, can be perfected by possession or control. Should any Lender (other than Agent) obtain possession or control of any such assets, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor, shall deliver such assets to Agent or in accordance with Agent’s instructions or transfer control to Agent in accordance with Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce any Security Document or to realize upon any Collateral for the Loan unless instructed to do so by Agent (or consented to by Agent), it being understood and agreed that such rights and remedies may be exercised only by Agent.
K. Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to Agent for the account of Lenders, unless Agent shall have received written notice from a Lender or a Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. Agent will notify each Lender of its receipt of any such notice. Agent shall take such action with respect to such Default or Event of Default as may be requested by Required Lenders (or all or such other portion of Lenders as shall be prescribed by this Agreement) in accordance with the terms hereof. Unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interests of Lenders.
L. Assignment by Agent; Resignation of Agent; Successor Agent.
1. Agent may at any time assign its rights, powers, privileges and duties hereunder to (i) another Lender, or (ii) any Person to whom Agent, in its capacity as a Lender, has assigned (or will assign, in conjunction with such assignment of agency rights hereunder) 50% or more of its Loan, in each case without the consent of Lenders or Borrowers. Following any such assignment, Agent shall give notice to Lenders and Borrowers. An assignment by Agent pursuant to this subsection (a) shall not be deemed a resignation by Agent for purposes of subsection (b) below.
2. Without limiting the rights of Agent to designate an assignee pursuant to subsection (a) above, Agent may at any time give notice of its resignation to Lenders and Borrowers. Upon receipt of any such notice of resignation, Required Lenders shall have the right to appoint a successor Agent. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within ten (10) Business Days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of Lenders, appoint a successor Agent; provided, however, that if Agent shall notify Borrowers and Lenders that no Person has accepted such appointment, then such resignation shall nonetheless become effective
in accordance with such notice from Agent that no Person has accepted such appointment and, from and following delivery of such notice, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Financing Documents, and (ii) all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each Lender directly, until such time as Required Lenders appoint a successor Agent as provided for above in this paragraph.
3. Upon (i) an assignment permitted by subsection (a) above, or (ii) the acceptance of a successor’s appointment as Agent pursuant to subsection (b) above, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder and under the other Financing Documents (if not already discharged therefrom as provided above in this paragraph). The fees payable by Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrowers and such successor. After the retiring Agent’s resignation hereunder and under the other Financing Documents, the provisions of this Article and Section 11.12 shall continue in effect for the benefit of such retiring Agent and its sub-agents in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting or was continuing to act as Agent.
M. Payment and Sharing of Payment.
1. Revolving Loan Advances, Payments and Settlements; Interest and Fee Payments.
(a) Agent shall have the right, on behalf of Revolving Lenders to disburse funds to Borrowers for all Revolving Loans requested or deemed requested by Borrowers pursuant to the terms of this Agreement. Agent shall be conclusively entitled to assume, for purposes of the preceding sentence, that each Revolving Lender, other than any Non-Funding Lenders, will fund its Pro Rata Share of all Revolving Loans requested by Borrowers. Each Revolving Lender shall reimburse Agent on demand, in accordance with the provisions of the immediately following paragraph, for all funds disbursed on its behalf by Agent pursuant to the first sentence of this clause (i), or if Agent so requests, each Revolving Lender will remit to Agent its Pro Rata Share of any Revolving Loan before Agent disburses the same to a Borrower. If Agent elects to require that each Revolving Lender make funds available to Agent, prior to a disbursement by Agent to a Borrower, Agent shall advise each Revolving Lender by telephone, facsimile or e-mail of the amount of such Revolving Lender’s Pro Rata Share of the Revolving Loan requested by such Borrower no later than noon (Eastern time) on the date of funding of such Revolving Loan, and each such Revolving Lender shall pay Agent on such date such Revolving Lender’s Pro Rata Share of such requested Revolving Loan, in same day funds, by wire transfer to the Payment Account, or such other account as may be identified by Agent to Revolving Lenders from time to time. If any Lender fails to pay the amount of its Pro Rata Share of any funds advanced by Agent pursuant to the first sentence of this clause (i) within one (1) Business Day after Agent’s demand, Agent shall promptly notify Borrower Representative, and Borrowers shall immediately repay such amount to Agent. Any repayment required by Borrowers pursuant to this Section 11.13 shall be accompanied
by accrued interest thereon from and including the date such amount is made available to a Borrower to but excluding the date of payment at the rate of interest then applicable to Revolving Loans. Nothing in this Section 11.13 or elsewhere in this Agreement or the other Financing Documents shall be deemed to require Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights that Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder.
(b) On a Business Day of each week as selected from time to time by Agent, or more frequently (including daily), if Agent so elects (each such day being a “Settlement Date”), Agent will advise each Revolving Lender by telephone, facsimile or e-mail of the amount of each such Revolving Lender’s percentage interest of the Revolving Loan balance as of the close of business of the Business Day immediately preceding the Settlement Date. In the event that payments are necessary to adjust the amount of such Revolving Lender’s actual percentage interest of the Revolving Loans to such Lender’s required percentage interest of the Revolving Loan balance as of any Settlement Date, the Revolving Lender from which such payment is due shall pay Agent, without setoff or discount, to the Payment Account before 1:00 p.m. (Eastern time) on the Business Day following the Settlement Date the full amount necessary to make such adjustment. Any obligation arising pursuant to the immediately preceding sentence shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. In the event settlement shall not have occurred by the date and time specified in the second preceding sentence, interest shall accrue on the unsettled amount at the rate of interest then applicable to Revolving Loans.
(c) On each Settlement Date, Agent shall advise each Revolving Lender by telephone, facsimile or e-mail of the amount of such Revolving Lender’s percentage interest of principal, interest and fees paid for the benefit of Revolving Lenders with respect to each applicable Revolving Loan, to the extent of such Revolving Lender’s Revolving Loan Exposure with respect thereto, and shall make payment to such Revolving Lender before 1:00 p.m. (Eastern time) on the Business Day following the Settlement Date of such amounts in accordance with wire instructions delivered by such Revolving Lender to Agent, as the same may be modified from time to time by written notice to Agent; provided, however, that, in the case such Revolving Lender is a Defaulted Lender, Agent shall be entitled to set off the funding short-fall against that Defaulted Lender’s respective share of all payments received from any Borrower.
(d) On the Closing Date, Agent, on behalf of Lenders, may elect to advance to Borrowers the full amount of the initial Loans to be made on the Closing Date prior to receiving funds from Lenders, in reliance upon each Lender’s commitment to make its Pro Rata Share of such Loans to Borrowers in a timely manner on such date. If Agent elects to advance the initial Loans to Borrower in such manner, Agent shall be entitled to receive all interest that accrues on the Closing Date on each Lender’s Pro Rata Share of such Loans unless Agent receives such Lender’s Pro Rata Share of such Loans before 3:00 p.m. (Eastern time) on the Closing Date.
(e) It is understood that for purposes of advances to Borrowers made pursuant to this Section 11.13, Agent will be using the funds of Agent, and pending settlement, (A) all funds transferred from the Payment Account to the outstanding Revolving Loans shall be applied first to advances made by Agent to Borrowers pursuant to this Section 11.13, and (B) all interest accruing on such advances shall be payable to Agent.
(f) The provisions of this Section 11.13(a) shall be deemed to be binding upon Agent and Lenders notwithstanding the occurrence of any Default or Event of Default, or any insolvency or bankruptcy proceeding pertaining to any Borrower or any other Credit Party.
2. Return of Payments.
(a) If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by Agent from a Borrower and such related payment is not received by Agent, then Agent will be entitled to recover such amount from such Lender on demand without setoff, counterclaim or deduction of any kind, together with interest accruing on a daily basis at the Federal Funds Rate.
(b) If Agent determines at any time that any amount received by Agent under this Agreement must be returned to any Borrower or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Financing Document, Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to pay to any Borrower or such other Person, without setoff, counterclaim or deduction of any kind.
3. Defaulted Lenders. The failure of any Defaulted Lender to make any payment required by it hereunder shall not relieve any other Lender of its obligations to make payment, but neither any other Lender nor Agent shall be responsible for the failure of any Defaulted Lender to make any payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Defaulted Lender shall not have any voting or consent rights under or with respect to any Financing Document or constitute a “Lender” (or be included in the calculation of “Required Lenders” hereunder) for any voting or consent rights under or with respect to any Financing Document.
4. Sharing of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of Section 2.8(d)) in excess of its Pro Rata Share of payments entitled pursuant to the other provisions of this Section 11.13, such Lender shall purchase from the other Lenders such participations in extensions of credit made by such other Lenders (without recourse, representation or warranty) as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided, however, that if all or any portion of the excess payment or other recovery is thereafter
required to be returned or otherwise recovered from such purchasing Lender, such portion of such purchase shall be rescinded and each Lender which has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of such return or recovery, without interest. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this clause (d) may, to the fullest extent permitted by law, exercise all its rights of payment (including pursuant to Section 10.6) with respect to such participation as fully as if such Lender were the direct creditor of Borrowers in the amount of such participation). If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this clause (d) applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this clause (d) to share in the benefits of any recovery on such secured claim.
N. Right to Perform, Preserve and Protect. If any Credit Party fails to perform any obligation hereunder or under any other Financing Document, Agent itself may, but shall not be obligated to, cause such obligation to be performed at Borrowers’ expense. Agent is further authorized by Borrowers and Lenders to make expenditures from time to time which Agent, in its reasonable business judgment, deems necessary or desirable to (a) preserve or protect the business conducted by Borrowers, the Collateral, or any portion thereof, and/or (b) enhance the likelihood of, or maximize the amount of, repayment of the Loan and other Obligations. Each Borrower hereby agrees to reimburse Agent on demand for any and all costs, liabilities and obligations incurred by Agent pursuant to this Section 11.14. Each Lender hereby agrees to indemnify Agent upon demand for any and all costs, liabilities and obligations incurred by Agent pursuant to this Section 11.14, in accordance with the provisions of Section 11.6.
O. Additional Titled Agents. Except for rights and powers, if any, expressly reserved under this Agreement to any bookrunner, arranger or to any titled agent named on the cover page of this Agreement, other than Agent (collectively, the “Additional Titled Agents”), and except for obligations, liabilities, duties and responsibilities, if any, expressly assumed under this Agreement by any Additional Titled Agent, no Additional Titled Agent, in such capacity, has any rights, powers, liabilities, duties or responsibilities hereunder or under any of the other Financing Documents. Without limiting the foregoing, no Additional Titled Agent shall have nor be deemed to have a fiduciary relationship with any Lender. At any time that any Lender serving as an Additional Titled Agent shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loan, such Lender shall be deemed to have concurrently resigned as such Additional Titled Agent.
P. Amendments and Waivers.
1. No provision of this Agreement or any other Financing Document may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by Borrowers, the Required Lenders and any other Lender to the extent required under Section 11.16(b); provided, however, that (i) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto and (ii) if Agent and Borrower Representative shall have jointly identified an obvious error (including, but not limited to, an incorrect cross-reference) or any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or any other Financing Document (including, for the avoidance of doubt, any exhibit, schedule or other
attachment to Financing Document), then Agent (acting in its sole discretion) and Borrower Representative or any other relevant Credit Party shall be permitted to amend such provision and such amendment shall be deemed approved by Lenders if Lenders shall have received five (5) Business Days’ prior written notice of such change and Agent shall not have received, within five (5) Business Days of the date of such notice to Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.
2. In addition to the required signatures under Section 11.16(a), no provision of this Agreement or any other Financing Document may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by the following Persons:
(a) if any amendment, waiver or other modification would increase a Lender’s funding obligations in respect of any Loan, by such Lender; and/or
(b) if the rights or duties of Agent or LC Issuer are affected thereby, by Agent and LC Issuer, as the case may be;
provided, however, that, in each of (i) and (ii) above, no such amendment, waiver or other modification shall, unless signed or otherwise approved in writing by all Lenders directly affected thereby, (A) reduce the principal of, rate of interest on or any fees with respect to any Loan or Reimbursement Obligation or forgive any principal, interest (other than default interest) or fees (other than late charges) with respect to any Loan or Reimbursement Obligation; (B) postpone the date fixed for, or waive, any payment (other than any mandatory prepayment pursuant to Section 2.1(b)(ii)) of principal of any Loan or of any Reimbursement Obligation, or of interest on any Loan or Reimbursement Obligation (other than default interest) or any fees provided for hereunder (other than late charges) or postpone the date of termination of any commitment of any Lender hereunder; (C) change the definition of the term Required Lenders or the percentage of Lenders which shall be required for Lenders to take any action hereunder; (D) release all or substantially all of the Collateral, authorize any Borrower to sell or otherwise dispose of all or substantially all of the Collateral or release any Guarantor of all or any portion of the Obligations or its Guarantee obligations with respect thereto, except, in each case with respect to this clause (D), as otherwise may be provided in this Agreement or the other Financing Documents (including in connection with any disposition permitted hereunder); (E) amend, waive or otherwise modify this Section 11.16(b) or the definitions of the terms used in this Section 11.16(b) insofar as the definitions affect the substance of this Section 11.16(b); (F) consent to the assignment, delegation or other transfer by any Credit Party of any of its rights and obligations under any Financing Document or release any Borrower of its payment obligations under any Financing Document, except, in each case with respect to this clause (F), pursuant to a merger or consolidation permitted pursuant to this Agreement; or (G) amend any of the provisions of Section 10.7 or amend any of the definitions Pro Rata Share, Revolving Loan Commitment, Revolving Loan Commitment Amount, Revolving Loan Commitment Percentage or that provide for Lenders to receive their Pro Rata Shares of any fees, payments, setoffs or proceeds of Collateral hereunder. It is hereby understood and agreed that all Lenders shall be deemed directly affected by an amendment, waiver or other modification of the type described in the preceding clauses (C), (D), (E), (F) and (G) of the preceding sentence.
Q. Assignments and Participations.
1. Assignments.
(a) Any Lender may at any time assign to one or more Eligible Assignees all or any portion of such Lender’s Loan together with all related obligations of such Lender hereunder. Except as Agent may otherwise agree, the amount of any such assignment (determined as of the date of the applicable Assignment Agreement or, if a “Trade Date” is specified in such Assignment Agreement, as of such Trade Date) shall be in a minimum aggregate amount equal to $1,000,000 or, if less, the assignor’s entire interests in the outstanding Loan; provided, however, that, in connection with simultaneous assignments to two or more related Approved Funds, such Approved Funds shall be treated as one assignee for purposes of determining compliance with the minimum assignment size referred to above. Borrowers and Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned to an Eligible Assignee until Agent shall have received and accepted an effective Assignment Agreement executed, delivered and fully completed by the applicable parties thereto and a processing fee of $3,500 to be paid by the assigning Lender; provided, however, that only one processing fee shall be payable in connection with simultaneous assignments to two or more related Approved Funds. Each assignment shall contain a representation of the assignee Lender in the relevant Assignment Agreement that such assignee is not an Excluded Person.
(b) From and after the date on which the conditions described above have been met, (A) such Eligible Assignee shall be deemed automatically to have become a party hereto and, to the extent of the interests assigned to such Eligible Assignee pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder, and (B) the assigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, shall be released from its rights and obligations hereunder (other than those that survive termination pursuant to Section 12.1). Upon the request of the Eligible Assignee (and, as applicable, the assigning Lender) pursuant to an effective Assignment Agreement, each Borrower shall execute and deliver to Agent for delivery to the Eligible Assignee (and, as applicable, the assigning Lender) Notes in the aggregate principal amount of the Eligible Assignee’s Loan (and, as applicable, Notes in the principal amount of that portion of the principal amount of the Loan retained by the assigning Lender). Upon receipt by the assigning Lender of such Note, the assigning Lender shall return to Borrower Representative any prior Note held by it.
(c) Agent, acting solely for this purpose as an agent of Borrower, shall maintain at the office of its servicer located in Bethesda, Maryland a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of each Lender, and the commitments of, and principal amount of the Loan owing to, such Lender pursuant to the terms hereof. The entries in such register shall be conclusive, and Borrower, Agent and Lenders may treat each Person whose name is recorded therein pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Such register shall be available for
inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice to Agent.
(d) Notwithstanding the foregoing provisions of this Section 11.17(a) or any other provision of this Agreement, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding the foregoing provisions of this Section 11.17(a) or any other provision of this Agreement, Agent has the right, but not the obligation, to effectuate assignments of Loans via an electronic settlement system acceptable to Agent as designated in writing from time to time to Lenders by Agent (the “Settlement Service”). At any time when Agent elects, in its sole discretion, to implement such Settlement Service, each such assignment shall be effected by the assigning Lender and proposed assignee pursuant to the procedures then in effect under the Settlement Service, which procedures shall be consistent with the other provisions of this Section 11.17(a). Each assigning Lender and proposed Eligible Assignee shall comply with the requirements of the Settlement Service in connection with effecting any assignment of Loans pursuant to the Settlement Service. With the prior written approval of Agent, Agent’s approval of such Eligible Assignee shall be deemed to have been automatically granted with respect to any transfer effected through the Settlement Service. Assignments and assumptions of the Loan shall be effected by the provisions otherwise set forth herein until Agent notifies Lenders of the Settlement Service as set forth herein.
2. Participations.
(a) Any Lender may at any time, without the consent of, or notice to, any Borrower or Agent, sell to one or more Persons (other than a Excluded Person, any Borrower or any Borrower’s Affiliates) participating interests in its Loan, commitments or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (i) such Lender’s obligations hereunder shall remain unchanged for all purposes, (ii) Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder, and (iii) all amounts payable by each Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. Each Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided, however, that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 11.5.
(b) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Financing Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Financing Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
3. Replacement of Lenders. Within thirty (30) days after: (i) receipt by Agent of notice and demand from any Lender for payment of additional costs as provided in Section 2.8(d), which demand shall not have been revoked, (ii) any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.8(a), (iii) any Lender is a Defaulted Lender, and the circumstances causing such status shall not have been cured or waived; or (iv) any failure by any Lender to consent to a requested amendment, waiver or modification to any Financing Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender, or each Lender affected thereby, is required with respect thereto (including any request for an Additional Tranche) (each relevant Lender in the foregoing clauses (i) through (iv) being an “Affected Lender”) each of Borrower Representative and Agent may, at its option, notify such Affected Lender and, in the case of Borrowers’ election, Agent, of such Person’s intention to obtain, at Borrowers’ expense, a replacement Lender (“Replacement Lender”) for such Lender, which Replacement Lender shall be an Eligible Assignee and, in the event the Replacement Lender is to replace an Affected Lender described in the preceding clause (iv), such Replacement Lender consents to the requested amendment, waiver or modification making the replaced Lender an Affected Lender. In the event Borrowers or Agent, as applicable, obtains a Replacement Lender within ninety (90) days following notice of its intention to do so, the Affected Lender shall sell, at par, and assign all of its Loan and funding commitments hereunder to such Replacement Lender in accordance with the procedures set forth in Section 11.17(a); provided, however, that (A) Borrowers shall have reimbursed such Lender for its increased costs and additional payments for which it is entitled to reimbursement under Section 2.8(a) or Section 2.8(d), as applicable, of this Agreement through the date of such sale and assignment, and (B) Borrowers shall pay to Agent the $3,500 processing fee in respect of such assignment (unless waived by Agent, which it may do in its sole discretion). In the event that a replaced Lender does not execute an Assignment Agreement pursuant to Section 11.17(a) within five (5) Business Days after receipt by such replaced Lender of notice of replacement pursuant to this Section 11.17(c) and presentation to such replaced Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 11.17(c), such replaced Lender shall be deemed to have consented to the terms of such Assignment Agreement, and any such Assignment Agreement executed by Agent, the Replacement Lender and, to the extent required pursuant to Section 11.17(a), Borrowers, shall be effective for purposes of this Section 11.17(c) and Section 11.17(a). Upon any such assignment and payment, such
replaced Lender shall no longer constitute a “Lender” for purposes hereof, other than with respect to such rights and obligations that survive termination as set forth in Section 12.1.
4. Credit Party Assignments. No Credit Party may assign, delegate or otherwise transfer any of its rights or other obligations hereunder or under any other Financing Document without the prior written consent of Agent and each Lender.
R. Funding and Settlement Provisions Applicable When Non-Funding Lenders Exist.
So long as Agent has not waived the conditions to the funding of Revolving Loans set forth in Section 7.2, any Lender may deliver a notice to Agent stating that such Lender shall cease making Revolving Loans due to the non-satisfaction of one or more conditions to funding Loans set forth in Section 7.2, and specifying any such non-satisfied conditions. Any Lender delivering any such notice shall become a non-funding Lender (a “Non-Funding Lender”) for purposes of this Agreement commencing on the Business Day following receipt by Agent of such notice, and shall cease to be a Non-Funding Lender on the date on which such Lender has either revoked the effectiveness of such notice or acknowledged in writing to each of Agent the satisfaction of the condition(s) specified in such notice, or Required Lenders waive the conditions to the funding of such Loans giving rise to such notice by Non-Funding Lender. Each Non-Funding Lender shall remain a Lender for purposes of this Agreement to the extent that such Non-Funding Lender has Revolving Loans Outstandingoutstanding in excess of $0; provided, however, that during any period of time that any Non-Funding Lender exists, and notwithstanding any provision to the contrary set forth herein, the following provisions shall apply:
1. For purposes of determining the Pro Rata Share of each Revolving Lender under clause (b) of the definition of such term, each Non-Funding Lender shall be deemed to have a Revolving Loan Commitment Amount as in effect immediately before such Lender became a Non-Funding Lender.
2. Except as provided in clause (a) above, the Revolving Loan Commitment Amount of each Non-Funding Lender shall be deemed to be $0.
3. The Revolving Loan Commitment at any date of determination during such period shall be deemed to be equal to the sum of (i) the aggregate Revolving Loan Commitment Amounts of all Lenders, other than the Non-Funding Lenders as of such date plus (ii) the aggregate Revolving Loan Outstandings of all Non-Funding Lenders as of such date.
4. Agent shall have no right to make or disburse Revolving Loans for the account of any Non-Funding Lender pursuant to Section 2.1(b)(i) to pay interest, fees, expenses and other charges of any Credit Party, other than reimbursement obligations that have arisen pursuant to Section 2.5(c) in respect of Letters of Credit issued at the time such Non-Funding Lender was not then a Non-Funding Lender.
5. Agent shall have no right to (i) make or disburse Revolving Loans as provided in Section 2.1(b)(i) for the account of any Revolving Lender that was a Non-Funding Lender at the time of issuance of any Letter of Credit for which funding or reimbursement obligations have arisen pursuant to Section 2.5(c), or (ii) assume that any Revolving Lender that
was a Non-Funding Lender at the time of issuance of such Letter of Credit will fund any portion of the Revolving Loans to be funded pursuant to Section 2.5(c) in respect of such Letter of Credit. In addition, no Revolving Lender that was a Non-Funding Lender at the time of issuance of any Letter of Credit for which funding or reimbursement obligations have arisen pursuant to Section 2.5(c), shall have an obligation to fund any portion of the Revolving Loans to be funded pursuant to Section 2.5(c) in respect to such Letter of Credit, or to make any payment to Agent or the L/C Issuer, as applicable, under Section 2.5(f)(ii) in respect of such Letter of Credit, or be deemed to have purchased any interest or participation in such Letter of Credit from Agent or the L/C Issuer, as applicable, under Section 2.5(f)(i).
6. To the extent that Agent applies proceeds of Collateral or other payments received by Agent to repayment of Revolving Loans pursuant to Section 10.7, such payments and proceeds shall be applied first in respect of Revolving Loans made at the time any Non-Funding Lenders exist, and second in respect of all other outstanding Revolving Loans.
S. Buy-Out Upon Refinancing. MCF shall have the right to purchase from the other Lenders all of their respective interests in the Loan at par in connection with any refinancing of the Loan upon one or more new economic terms, but which refinancing is structured as an amendment and restatement of the Loan rather than a payoff of the Loan.
XII. MISCELLANEOUS
A. Survival. All agreements, representations and warranties made herein and in every other Financing Document shall survive the execution and delivery of this Agreement and the other Financing Documents and the other Operative Documents. The provisions of Section 2.10 and Articles 11 and 12 shall survive the payment of the Obligations (both with respect to any Lender and all Lenders collectively) and any termination of this Agreement and any judgment with respect to any Obligations, including any final foreclosure judgment with respect to any Security Document, and no unpaid or unperformed, current or future, Obligations will merge into any such judgment.
B. No Waivers. No failure or delay by Agent or any Lender in exercising any right, power or privilege under any Financing Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Any reference in any Financing Document to the “continuing” nature of any Event of Default shall not be construed as establishing or otherwise indicating that any Borrower or any other Credit Party has the independent right to cure any such Event of Default, but is rather presented merely for convenience should such Event of Default be waived in accordance with the terms of the applicable Financing Documents.
C. Notices.
1. All notices, requests and other communications to any party hereunder shall be in writing (including prepaid overnight courier, facsimile transmission or similar writing) and shall be given to such party at its address, facsimile number or e-mail address set forth on the
signature pages hereof (or, in the case of any such Lender who becomes a Lender after the date hereof, in an assignment agreement or in a notice delivered to Borrower Representative and Agent by the assignee Lender forthwith upon such assignment) or at such other address, facsimile number or e-mail address as such party may hereafter specify for the purpose by notice to Agent and Borrower Representative; provided, however, that notices, requests or other communications shall be permitted by electronic means only in accordance with the provisions of Section 12.3(b) and (c). Each such notice, request or other communication shall be effective (i) if given by facsimile, when such notice is transmitted to the facsimile number specified by this Section and the sender receives a confirmation of transmission from the sending facsimile machine, or (ii) if given by mail, prepaid overnight courier or any other means, when received or when receipt is refused at the applicable address specified by this Section 12.3(a).
2. Notices and other communications to the parties hereto may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved from time to time by Agent, provided, however, that the foregoing shall not apply to notices sent directly to any Lender if such Lender has notified Agent that it is incapable of receiving notices by electronic communication. Agent or Borrower Representative may, in their discretion, agree to accept notices and other communications to them hereunder by electronic communications pursuant to procedures approved by it, provided, however, that approval of such procedures may be limited to particular notices or communications.
3. Unless Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor, provided, however, that if any such notice or other communication is not sent or posted during normal business hours, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day.
D. Severability. In case any provision of or obligation under this Agreement or any other Financing Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
E. Headings. Headings and captions used in the Financing Documents (including the Exhibits, Schedules and Annexes hereto and thereto) are included for convenience of reference only and shall not be given any substantive effect.
F. Confidentiality.
1. Each Credit Party agrees (i) not to transmit or disclose provisions of any Financing Document to any Person (other than to Borrowers’ advisors and officers on a need-to-know basis or as otherwise may be required by Law) without Agent’s prior written consent, and (ii) to inform all Persons of the confidential nature of the Financing Documents and to direct them
not to disclose the same to any other Person and to require each of them to be bound by these provisions.
2. Agent and each Lender shall hold all non-public information regarding the Credit Parties and their respective businesses identified as such by Borrowers and obtained by Agent or any Lender pursuant to the requirements hereof in accordance with such Person’s customary procedures for handling information of such nature, except that disclosure of such information may be made (i) on a confidential basis, to their respective agents, employees, Subsidiaries, Affiliates, attorneys, auditors, professional consultants, rating agencies, insurance industry associations and portfolio management services (it being understood that such Persons to whom such disclosure is made will be informed of the confidential nature of such information and be instructed to keep such information confidential), (ii) to prospective transferees or purchasers of any interest in the Loans, Agent or a Lender, provided, however, that any such Persons are bound by obligations of confidentiality substantially the same as set forth in this section, (iii) as required by Law, subpoena, judicial order or similar order and in connection with any litigation (in which case Agent or the applicable Lender agrees to inform the Credit Parties promptly thereof prior to such disclosure, to the extent not prohibited by law, rule or regulation), (iv) as may be required in connection with the examination, audit or similar investigation of such Person, and (v) on a confidential basis, to a Person that is a trustee, investment advisor or investment manager, collateral manager, servicer, noteholder or secured party in a Securitization (as hereinafter defined) in connection with the administration, servicing and reporting on the assets serving as collateral for such Securitization (it being understood that such Persons to whom such disclosure is made will be informed of the confidential nature of such information and be instructed to keep such information confidential). For the purposes of this Section, “Securitization” shall mean (A) the pledge of the Loans as collateral security for loans to a Lender, or (B) a public or private offering by a Lender or any of its Affiliates or their respective successors and assigns, of securities which represent an interest in, or which are collateralized, in whole or in part, by the Loans. Confidential information shall not include information that either: (y) is in the public domain, or becomes part of the public domain after disclosure to such Person through no fault of such Person, or (z) is disclosed to such Person by a Person other than a Credit Party, provided, however, Agent does not have actual knowledge that such Person is prohibited from disclosing such information. After the Closing Date, confidential information shall include only information identified as such at the time provided to Agent. The obligations of Agent and Lenders under this Section 12.6 shall supersede and replace the obligations of Agent and Lenders under any confidentiality agreement in respect of this financing executed and delivered by Agent or any Lender prior to the date hereof.
G. Waiver of Consequential and Other Damages. To the fullest extent permitted by applicable law, no party hereto shall assert, and each party hereto hereby waives, any claim against any party hereto (including, with respect to Agent and Lenders, the Indemnitees (as defined below), on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of this Agreement, any other Financing Document or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided, that nothing in this Section 12.7 shall relieve the Borrowers of any obligation they may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Financing Documents or the transactions contemplated hereby or thereby.
H. GOVERNING LAW; SUBMISSION TO JURISDICTION.
1. THIS AGREEMENT, EACH NOTE AND EACH OTHER FINANCING DOCUMENT, AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD APPLY A DIFFERENT LAW.
2. EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER FINANCING DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PERSON BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PERSON AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
3. Each Borrower, Agent and each Lender agree that each Loan (including those made on the Closing Date) shall be deemed to be made in, and the transactions contemplated hereunder and in any other Financing Document shall be deemed to have been performed in, the State of New York.
I. WAIVER OF JURY TRIAL. 1. EACH BORROWER, AGENT AND LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH BORROWER, AGENT AND EACH LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH BORROWER, AGENT AND EACH LENDER WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL
COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
(b) In the event any such action or proceeding is brought or filed in any United States federal court sitting in the State of California or in any state court of the State of California, and the waiver of jury trial set forth in Section 12.9(a) hereof is determined or held to be ineffective or unenforceable, the parties agree that all actions or proceedings shall be resolved by reference to a private judge sitting without a jury, pursuant to California Code of Civil Procedure Section 638, before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the Presiding Judge of the Los Angeles County, California. Such proceeding shall be conducted in Los Angeles County, California, with California rules of evidence and discovery applicable to such proceeding. In the event any actions or proceedings are to be resolved by judicial reference, any party may seek from any court having jurisdiction thereover any prejudgment order, writ or other relief and have such prejudgment order, writ or other relief enforced to the fullest extent permitted by Law notwithstanding that all actions or proceedings are otherwise subject to resolution by judicial reference.
J. Publication; Advertisement.
1. Publication. No Credit Party will directly or indirectly publish, disclose or otherwise use in any public disclosure, advertising material, promotional material, press release or interview, any reference to the name, logo or any trademark of MCF or any of its Affiliates or any reference to this Agreement or the financing evidenced hereby, in any case except (i) as required by Law, subpoena or judicial or similar order, in which case the applicable Credit Party shall give Agent prior written notice of such publication or other disclosure (other than filings made with the SEC as required by Law, which a Credit Party may make without such notice), or (ii) with MCF’s prior written consent.
2. Advertisement. Each Lender and each Credit Party hereby authorizes MCF to publish the name of such Lender and Credit Party, the existence of the financing arrangements referenced under this Agreement, the primary purpose and/or structure of those arrangements, the amount of credit extended under each facility, the title and role of each party to this Agreement, and the total amount of the financing evidenced hereby in any “tombstone”, comparable advertisement or press release which MCF elects to submit for publication. In addition, each Lender and each Credit Party agrees that MCF may provide lending industry trade organizations with information necessary and customary for inclusion in league table measurements after the Closing Date. With respect to any of the foregoing, MCF shall provide Borrowers with an opportunity to review and confer with MCF regarding the contents of any such tombstone, advertisement or information, as applicable, prior to its submission for publication and, following such review period, MCF may, from time to time, publish such information in any media form desired by MCF, until such time that Borrowers shall have requested MCF cease any such further publication.
K. Counterparts; Integration. This Agreement and the other Financing Documents may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signatures by facsimile or by electronic mail delivery of an electronic version of any executed signature page
shall bind the parties hereto. This Agreement and the other Financing Documents constitute the entire agreement and understanding among the parties hereto and supersede any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
L. No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
M. Lender Approvals. Unless expressly provided herein to the contrary, any approval, consent, waiver or satisfaction of Agent or Lenders with respect to any matter that is the subject of this Agreement, the other Financing Documents may be granted or withheld by Agent and Lenders in their sole and absolute discretion and credit judgment.
N. Expenses; Indemnity.
1. Borrowers hereby agree to promptly pay (i) all reasonable and documented out-of-pocket costs and expenses of Agent (including, without limitation, the reasonable and documented out-of-pocket fees, costs and expenses of one counsel to, and independent appraisers and consultants retained by Agent) in connection with the examination, review, due diligence investigation, documentation, negotiation, closing and syndication of the transactions contemplated by the Financing Documents, in connection with the performance by Agent of its rights and remedies under the Financing Documents and in connection with the continued administration of the Financing Documents including (A) any amendments, modifications, consents and waivers to and/or under any and all Financing Documents, and (B) any periodic public record searches conducted by or at the request of Agent (including, without limitation, title investigations, UCC searches, fixture filing searches, judgment, pending litigation and tax lien searches and searches of applicable corporate, limited liability, partnership and related records concerning the continued existence, organization and good standing of certain Persons); (ii) without limitation of the preceding clause (i), all reasonable and documented out-of-pocket costs and expenses of Agent in connection with the creation, perfection and maintenance of Liens pursuant to the Financing Documents; (iii) without limitation of the preceding clause (i), all reasonable and documented out-of-pocket costs and expenses of Agent in connection with (A) protecting, storing, insuring, handling, maintaining or selling any Collateral, (B) any litigation, dispute, suit or proceeding relating to any Financing Document, and (C) any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all of the Financing Documents; (iv) without limitation of the preceding clause (i), all reasonable and documented out-of-pocket costs and expenses of Agent in connection with Agent’s reservation of funds in anticipation of the funding of the initial Loans to be made hereunder; and (v) all costs and expenses incurred by Lenders in connection with any litigation, dispute, suit or proceeding relating to any Financing Document and in connection with any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all Financing Documents, whether or not Agent or Lenders are a party thereto.
2. Each Borrower hereby agrees to indemnify, pay and hold harmless Agent and Lenders and the officers, directors, employees, trustees, agents, investment advisors and
investment managers, collateral managers, servicers, and counsel of Agent and Lenders (collectively called the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnitee) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of a Credit Party, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by Agent or Lenders) asserting any right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection with the transactions contemplated hereby or by the other Operative Documents (including (i)(A) as a direct or indirect result of the presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release from, any property now or previously owned, leased or operated by Borrower, any Subsidiary or any other Person of any Hazardous Materials, (B) arising out of or relating to the offsite disposal of any materials generated or present on any such property, or (C) arising out of or resulting from the environmental condition of any such property or the applicability of any governmental requirements relating to Hazardous Materials, whether or not occasioned wholly or in part by any condition, accident or event caused by any act or omission of Borrower or any Subsidiary, in each case, to the extent resulting from or in connection with the transactions contemplated hereby or by the other Operative Documents and (ii) proposed and actual extensions of credit under this Agreement) and the use or intended use of the proceeds of the Loans and Letters of Credit, except that Borrower shall have no obligation hereunder to an Indemnitee with respect to any liability resulting from the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertaking set forth in the immediately preceding sentence may be unenforceable, Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all such indemnified liabilities incurred by the Indemnitees or any of them.
3. Notwithstanding any contrary provision in this Agreement, the obligations of Borrowers under this Section 12.14 shall survive the payment in full of the Obligations and the termination of this Agreement. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO BORROWERS OR TO ANY OTHER PARTY TO ANY FINANCING DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(d) Each Borrower for itself and all endorsers, guarantors and sureties and their heirs, legal representatives, successors and assigns, hereby further specifically waives any rights that it may have under Section 1542 of the California Civil Code (to the extent applicable), 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,” and further waives any similar rights under applicable Laws.
O. Reserved.
P. Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition or other proceeding be filed by or against any Credit Party for liquidation or reorganization, should any Credit Party become insolvent or make an assignment for the benefit of any creditor or creditors or should an interim receiver, receiver, receiver and manager or trustee be appointed for all or any significant part of any Credit Party’s assets, and shall continue to be effective or to be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations, whether as a fraudulent preference reviewable transaction or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Q. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrowers and Agent and each Lender and their respective successors and permitted assigns.
R. USA PATRIOT Act Notification. Agent (for itself and not on behalf of any Lender) and each Lender hereby notifies Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record certain information and documentation that identifies Borrowers, which information includes the name and address of Borrower and such other information that will allow Agent or such Lender, as applicable, to identify Borrowers in accordance with the USA PATRIOT Act.
Section 12.19 Cross Default and Cross Collateralization.
(a) Cross-Default. As stated under Section 10.1 hereof, an Event of Default under any of the Affiliated Financing Documents shall be an Event of Default under this Agreement.
(b) Cross Collateralization. Borrowers acknowledge and agree that the Collateral securing this Loan, also secures the Affiliated Obligations.
[SIGNATURES APPEAR ON FOLLOWING PAGE(S)]
IN WITNESS WHEREOF, intending to be legally bound, each of the parties has caused this Agreement to be executed the day and year first above mentioned.
|
BORROWER REPRESENTATIVE: |
ACCURAY INCORPORATED, a Delaware corporation | |||
|
|
|
| ||
|
|
By: |
| ||
|
|
|
Kevin Waters | ||
|
|
|
Chief Financial Officer | ||
|
|
| |||
|
|
| |||
|
|
Address: | |||
|
|
| |||
|
|
| |||
|
|
1310 Chesapeake Terrace | |||
|
|
Sunnyvale, California 94089 | |||
|
|
Attn: |
Kevin Waters | ||
|
|
Facsimile: |
(408) 716-4601 | ||
|
|
E-Mail: |
kwaters@accuray.com | ||
|
|
|
| ||
|
|
|
| ||
|
OTHER BORROWERS: |
TOMOTHERAPY INCORPORATED, a Wisconsin corporation | |||
|
|
|
| ||
|
|
By: |
| ||
|
|
|
Kevin Waters | ||
|
|
|
Director | ||
SIGNATURE PAGE TO CREDIT AND SECURITY AGREEMENT
|
AGENT: |
MIDCAP FINANCIAL TRUST, as Agent | |||
|
|
|
| ||
|
|
By: |
Apollo Capital Management, L.P. | ||
|
|
Its: |
Investment Manager | ||
|
|
|
| ||
|
|
|
By: |
|
Apollo Capital Management GP, LLC |
|
|
|
Its: |
|
General Partner |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
Maurice Amsellem |
|
|
|
|
|
Authorized Signatory |
|
|
| |||
|
|
| |||
|
|
Address: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: Account Manager for Accuray transaction | |||
|
|
Facsimile: 301-941-1450 | |||
|
|
E-mail: notices@midcapfinancial.com | |||
|
|
| |||
|
|
with a copy to: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: General Counsel | |||
|
|
Facsimile: 301-941-1450 | |||
|
|
E-mail: legalnotices@midcapfinancial.com | |||
|
|
| |||
|
|
| |||
|
|
Payment Account Designation | |||
|
|
| |||
|
|
Wells Fargo Bank, N.A. (McLean, VA) | |||
|
|
ABA #: [*****] | |||
|
|
Account Name: MidCap Funding | |||
|
|
Account #: [*****] | |||
|
|
Attention: Accuray | |||
SIGNATURE PAGE TO CREDIT AND SECURITY AGREEMENT
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
LENDER: |
MIDCAP FINANCIAL TRUST, as Lender | |||
|
|
|
| ||
|
|
By: |
Apollo Capital Management, L.P. | ||
|
|
Its: |
Investment Manager | ||
|
|
|
|
|
|
|
|
|
By: |
|
Apollo Capital Management GP, LLC |
|
|
|
Its: |
|
General Partner |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
Maurice Amsellem |
|
|
|
|
|
Authorized Signatory |
|
|
| |||
|
|
| |||
|
|
Address: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: Account Manager for Accuray transaction | |||
|
|
Facsimile: 301-941-1450 | |||
|
|
E-mail: notices@midcapfinancial.com | |||
|
|
| |||
|
|
with a copy to: | |||
|
|
| |||
|
|
c/o MidCap Financial Services, LLC, as servicer | |||
|
|
7255 Woodmont Avenue, Suite 200 | |||
|
|
Bethesda, Maryland 20814 | |||
|
|
Attn: General Counsel | |||
|
|
Facsimile: 301-941-1450 | |||
|
|
E-mail: legalnotices@midcapfinancial.com | |||
SIGNATURE PAGE TO CREDIT AND SECURITY AGREEMENT
ANNEXES, EXHIBITS AND SCHEDULES
ANNEXES
|
Annex A |
|
Commitment Annex |
EXHIBITS
|
Exhibit A |
|
Reserved |
|
Exhibit B |
|
Form of Compliance Certificate |
|
Exhibit C |
|
Borrowing Base Certificate |
|
Exhibit D |
|
Form of Notice of Borrowing |
SCHEDULES
|
Schedule 3.1 |
|
Existence, Organizational ID Numbers, Foreign Qualification, Prior Names |
|
Schedule 3.4 |
|
Capitalization |
|
Schedule 3.6 |
|
Litigation |
|
Schedule 3.15 |
|
Brokers |
|
Schedule 3.17 |
|
Material Contracts |
|
Schedule 3.18 |
|
Environmental Compliance |
|
Schedule 3.19 |
|
Intellectual Property |
|
Schedule 4.9 |
|
Litigation, Governmental Proceedings and Other Notice Events |
|
Schedule 5.1 |
|
Debt; Contingent Obligations |
|
Schedule 5.2 |
|
Liens |
|
Schedule 5.7 |
|
Permitted Investments |
|
Schedule 5.8 |
|
Affiliate Transactions |
|
Schedule 5.14 |
|
Deposit Accounts and Securities Accounts |
|
Schedule 7.4 |
|
Post-Closing Requirements |
|
Schedule 9.1 |
|
Collateral |
|
Schedule 9.2 |
|
Location of Collateral |
ANNEX A TO CREDIT AGREEMENT (COMMITMENT ANNEX)
|
Lender |
|
Revolving Loan |
|
Revolving Loan |
| |
|
MidCap |
|
$ |
|
|
100 |
% |
|
TOTALS |
|
$ |
|
|
100 |
% |
EXHIBIT B TO CREDIT AGREEMENT (COMPLIANCE CERTIFICATE)
COMPLIANCE CERTIFICATE
Date: , 20
This Compliance Certificate is given by , a Responsible Officer of ACCURAY INCORPORATED (the “Borrower Representative”), pursuant to that certain Credit and Security Agreement dated as of June 14, 2017 among the Borrower Representative, TomoTherapy Incorporated and any additional Borrower that may hereafter be added thereto (collectively, “Borrowers”), MidCap Funding IV Trust (as successor by assignment from MidCap Financial Trust), individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
The undersigned Responsible Officer hereby certifies to Agent and Lenders that:
(a) the financial statements delivered with this certificate in accordance with Section 4.1 of the Credit Agreement fairly present in all material respects the results of operations and financial condition of Borrowers and their Consolidated Subsidiaries as of the dates and the accounting period covered by such financial statements;
(b) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Borrowers and their Consolidated Subsidiaries during the accounting period covered by such financial statements and such review has not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the date hereof, of any condition or event that constitutes a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature and period of existence of such Default or an Event of Default and what action Borrowers have taken, are undertaking and propose to take with respect thereto;
(c) except as noted on Schedule 2 attached hereto, the Credit Agreement contains a complete and accurate list of all business locations of Borrowers and Guarantors and all names under which Borrowers and Guarantors currently conduct business; Schedule 2 specifically notes any changes in the names under which any Borrower or Guarantor conduct business;
(d) except as noted on Schedule 3 attached hereto, the undersigned has no knowledge of (i) any federal or state tax liens having been filed against any Borrower, Guarantor or any Collateral or (ii) any failure of any Borrower or Guarantors to make required payments of withholding or other tax obligations of any Borrower or Guarantors during the accounting period to which the attached statements pertain or any subsequent period.;
(e) Schedule 5.14 to the Credit Agreement contains a complete and accurate statement of all Deposit Accounts and Securities Accounts maintained by Borrowers and Guarantors;
(f) except as noted on Schedule 4 attached hereto and Schedule 3.6 to the Credit Agreement, the undersigned has no knowledge of any current, pending or threatened: (i) litigation against any Borrower or Guarantor; (ii) inquiries, investigations or proceedings concerning the business affairs, practices or reimbursement entitlements of any Borrower or Guarantor; or (iii) any default by any Borrower or Guarantor(i) any litigation or governmental proceedings pending or threatened (in writing) against Borrowers or other Credit Party which would reasonably be expected to have a Material Adverse Effect with respect to Borrowers or any other Credit Party or which in any manner calls into question the validity or enforceability of any Financing Document, (ii) any Credit Party being in breach or default under or with respect to any Material Contract to which it is a party., or any Credit Party being in breach or default under or with respect to any other contract, agreement, lease or other instrument to which it is a party or by which its property is bound or affected, which breach or default could reasonably be expected to have a Material Adverse Effect, (iii) any strikes or other labor disputes pending or, to any Borrower’s knowledge, threatened against any Credit Party, (iv) any infringement by any other Person with respect to any Intellectual Property rights of any Credit Party that could reasonably be expected to result in a Material Adverse Effect, or if, to the knowledge of the Credit Parties, there is any claim by any other Person that any Credit Party, in the conduct of its business, is infringing the Intellectual Property rights of such other party that could reasonably be expected to result in a Material Adverse Effect, or (v) any returns, recoveries, disputes and claims that involve more than $2,500,000;
(g) except as noted on Schedule 5 attached hereto, Schedule 3.19 to the Credit Agreement is true and correct in all material respects.;
(j) except as noted on Schedule 6 attached hereto, no Borrower or Guarantor has acquired, by purchase or otherwise, any Chattel Paper, Letter-of-Credit Rights, Instruments, or Investment Property (in each case, to the extent not an Excluded Perfection Asset) that has not previously been reported to Agent on any Schedule 6 to any previous Compliance Certificate delivered by Borrower Representative to Agent.;
(k) except as noted on Schedule 7 attached hereto, no Borrower or Guarantor is aware of any commercial tort claim (other than an Excluded Perfection Asset) that has not previously been reported to Agent on any Schedule 7 to any previous Compliance Certificate delivered by Borrower Representative to Agent.; and
(l) Borrowers and Guarantors (if any) are in compliance with the covenants contained in Article 6 of the Credit Agreement, as demonstrated by the calculation of such covenants below, except as set forth below; in determining such compliance, the following calculations have been made: [See attached worksheets]. Such calculations and the certifications contained therein are true, correct and complete in all material respects.
The foregoing certifications and computations are made as of , 20 (end of month) and as of , 20 .
|
|
Sincerely, |
EBITDA Worksheet (Attachment to Compliance Certificate)
|
EBITDA for the applicable Defined Period is calculated as follows: |
|
|
|
|
|
|
|
|
|
Net income (or loss) for the Defined Period of Borrowers and their Consolidated Subsidiaries, but excluding: (a) the income (or loss) of any Person (other than Subsidiaries of Borrowers) in which Borrowers or any of their Subsidiaries has an ownership interest unless received by Borrower or their Subsidiary in a cash distribution; and (b) except as expressly provided in the last paragraph of this worksheet, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of Borrowers or is merged into or consolidated with Borrowers |
|
$ |
|
|
|
|
|
|
|
Plus: without duplication, the sum of the following amounts for such Defined Period to the extent deducted from the calculation of net income for such Defined Period: |
|
|
|
|
|
|
|
|
|
(a) Any provision for income, profits, capital gain and franchise taxes deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(b) Interest expense, net of interest income, deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(c) Amortization and depreciation deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(d) Losses from extraordinary items |
|
$ |
|
|
|
|
|
|
|
(e) The aggregate net loss on the disposition of property (other than Accounts and Inventory) outside the Ordinary Course of Business |
|
$ |
|
|
|
|
|
|
|
(f) Fees or expenses paid in connection with the execution and delivery of the Operative Documents on the Closing Date, to the extent paid in cash during such period (and not capitalized in accordance with GAAP), in an aggregate amount not to exceed $[*****] during the term of the Credit Agreement |
|
$ |
|
|
|
|
|
|
|
(g) Other non-cash expenditures, charges or losses for such period (including, without limitation, non-cash adjustments resulting from the application of purchase accounting, non-cash expenses or charges arising from grants of performance-based stock units, stock appreciation rights, stock options or restricted stock, non-cash impairment of good will and other long term intangible assets and |
|
$ |
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
unrealized non-cash losses under hedging agreements), but excluding any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to Accounts and Inventory |
|
|
|
|
|
|
|
|
|
(h) Contingent obligations, purchase price adjustments, milestone payments, earn-out payments and indemnity obligations incurred in connection with any Permitted Acquisition, in each case, in an aggregate amount not to exceed the amount approved in writing by Agent prior to the date on which the financial statements for such period are required to be delivered to Agent and Lenders pursuant to Section 4.1 of the Credit Agreement |
|
$ |
|
|
|
|
|
|
|
(i) Accruals, fees, payments and expenses (including legal, tax, structuring and other costs and expenses) incurred by Borrowers or their respective Subsidiaries in connection with any Permitted Acquisition or other Investment (including, without limitation, changes, alterations, renovations and improvements to assets or property that were acquired in such Permitted Acquisition or Investment undertaken after consummation of such Permitted Acquisition or Investment) or debt or equity issuance or any refinancing transactions or amendment, waiver or other modification of any debt instrument that are payable to unaffiliated third parties or any disposition not in the Ordinary Course of Business, in each case, incurred for such period solely to the extent attributable to any relevant transaction permitted by the Credit Agreement (regardless of whether or not consummated), in each case, in an aggregate amount not to exceed the amount approved in writing by Agent prior to the date on which the financial statements for such period are required to be delivered to Agent and Lenders pursuant to Section 4.1 of the Credit Agreement |
|
$ |
|
|
|
|
|
|
|
(j) Losses from foreign exchange translation adjustment |
|
$ |
|
|
|
|
|
|
|
(k) Unusual, one-time or non-recurring charges and expenses, including non-recurring legal expenses and non-recurring severance, restructuring, integration or similar charges, in each case, incurred during such period in respect of restructurings, plant closings, headcount reductions or other similar actions taken during such period, including relocation costs, business process optimizations, integration costs, signing costs, retention or completion bonuses, employee replacement costs, transition costs, costs related to opening, closure and/or consolidation of facilities, severance charges in respect of employee terminations, and start-up losses |
|
$ |
|
|
related to new business ventures; provided that in no event shall the aggregate amount added to EBITDA under this clause in any Defined Period exceed $[*****] (or such higher amount approved in writing by Agent prior to the date on which financial statements for such period are required to be delivered to Agent and Lenders pursuant to Section 4.1 of the Credit Agreement) |
|
|
|
|
|
|
|
|
|
Minus: without duplication, the sum of the following amounts for such Defined Period to the extent included in the calculation of such net income for such Defined Period: |
|
$ |
|
|
|
|
|
|
|
(a) Any credit for income, profits, capital gain and franchise taxes deducted in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(b) Any gain from extraordinary items |
|
$ |
|
|
|
|
|
|
|
(c) Any aggregate net gain from the disposition of property (other than Accounts and Inventory) outside the ordinary course of business |
|
$ |
|
|
|
|
|
|
|
(d) Any gains from foreign exchange translation adjustment |
|
$ |
|
|
|
|
|
|
|
(e) Any other non-cash gain |
|
$ |
|
|
|
|
|
|
|
EBITDA for the Defined Period: |
|
$ |
|
The parties hereto agree that EBITDA for the fiscal quarter ending (i) on September 30, 2016 shall be deemed to be $[*****], (ii) on December 31, 2016 shall be deemed to be $[*****]and (iii[[*****] (ii) on March 31, 2017 shall be deemed to be $[*****], (iii) on June 30, 2017 shall be deemed to be $[*****] and (iv) on September 30, 2017 shall be deemed to be $[*****].
For purposes of calculating EBITDA pursuant to this worksheet, if any Borrower or a Consolidated Subsidiary consummates a Permitted Acquisition (or, in the case of a Consolidated Subsidiary that is not a Borrower, an acquisition that satisfies the definition of Permitted Acquisition as if such Consolidated Subsidiary was subject thereto) during the Defined Period, EBITDA shall be calculated after giving pro forma effect thereto, as if such Permitted Acquisition occurred on the first day of the Defined Period (provided that any pro forma adjustments set forth above shall be applied to the target of any Permitted Acquisition only to the extent reasonably acceptable to Agent based upon data presented to Agent to its reasonable satisfaction).
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Fixed Charge Coverage Ratio Worksheet (Attachment to Compliance Certificate)
|
Fixed Charges for the applicable Defined Period is calculated as follows: |
|
|
|
|
|
|
|
|
|
Cash interest expense, net of cash interest income, included in the determination of net income of Borrowers and their Consolidated Subsidiaries for the Defined Period |
|
$ |
|
|
|
|
|
|
|
Plus: without duplication, the sum of the following amounts for such Defined Period: |
|
|
|
|
|
|
|
|
|
(a) income, profits, capital gain and franchise taxes included in the determination of net income for the Defined Period |
|
$ |
|
|
|
|
|
|
|
(b) Payments of principal for the Defined Period with respect to all Debt (including the portion of scheduled payments under capital leases allocable to principal excluding ( |
|
$ |
|
|
|
|
|
|
|
(c) Distributions paid in cash during the Defined Period (other than to the extent paid to a Borrower or Consolidated Subsidiary) |
|
$ |
|
|
|
|
|
|
|
Fixed Charges for the applicable Defined Period: |
|
$ |
|
|
|
|
|
|
|
Operating Cash Flow for the applicable Defined Period is calculated as follows: |
|
|
|
|
|
|
|
|
|
EBITDA for the Defined Period (calculated pursuant to the EBITDA Worksheet) |
|
$ |
|
|
|
|
|
|
|
Minus: Unfinanced Capital Expenditures for the Defined Period |
|
$ |
|
|
|
|
|
|
|
Operating Cash Flow for the Defined Period: |
|
$ |
|
|
Covenant Compliance: |
|
|
|
|
|
|
|
|
|
Fixed Charge Coverage Ratio (Ratio of Operating Cash Flow to Fixed Charges) for the Defined Period |
|
to 1.0 |
|
|
|
|
|
|
|
Minimum Fixed Charge Coverage for the Defined Period |
|
1.0 to 1.0 |
|
|
|
|
|
|
|
In Compliance |
|
Yes/No |
|
The parties hereto agree that Fixed Charges for the four-fiscal quarter period ending (i) on September 30, 2017 shall equal (x) Fixed Charges for the fiscal quarter then ending times (y) 4; (ii) on December 31, 2017 shall equal (x) Fixed Charges for the two-fiscal quarter period then ending times (y) 2; and (iii) March 31, 2018 shall equal (x) Fixed Charges for the three-fiscal quarter period then ending times (y) 4/3.
EXHIBIT D TO CREDIT AGREEMENT (NOTICE OF BORROWING)
NOTICE OF BORROWING
This Notice of Borrowing is given by , a Responsible Officer of ACCURAY INCORPORATED (the “Borrower Representative”), pursuant to that certain Credit and Security Agreement dated as of June 14, 2017 among the Borrower Representative, TomoTherapy Incorporated and any additional Borrower that may hereafter be added thereto (collectively, “Borrowers”), MidCap Funding IV Trust (as successor by assignment from MidCap Financial Trust), individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
The undersigned Responsible Officer hereby gives notice to Agent of Borrower Representative’s request to borrow $ of Revolving Loans on , 20 . Attached is a Borrowing Base Certificate complying in all respects with the Credit Agreement and confirming that, after giving effect to the requested advance, the Revolving Loan Outstandings will not exceed the Revolving Loan Limit.
The undersigned officer hereby certifies that, both before and after giving effect to the request above (a) each of the conditions precedent set forth in Section 7.2 of the Credit Agreement have been satisfied, (b) all of the representations and warranties contained in the Credit Agreement and the other Financing Documents are true, correct and complete in all material respects (except to the extent any representation or warranty is qualified by materiality, in which case it is true, correct and complete in all respects) as of the date hereof, except to the extent such representation or warranty relates to a specific date, in which case such representation or warranty is true, correct and complete as of such earlier date, and (c) no Default or Event of Default has occurred and is continuing on the date hereof.
IN WITNESS WHEREOF, the undersigned officer has executed and delivered this Notice of Borrowing this day of , 20 .
|
|
Sincerely, | |
|
|
| |
|
|
ACCURAY INCORPORATED | |
|
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
Schedule 3.1 — Existence, Organizational ID Numbers, Foreign Qualification, Prior Names
|
Borrower |
|
Prior Names |
|
Type of Entity/ |
|
States Qualified |
|
State Org. ID |
|
Federal Tax |
|
Principal Place of |
|
Accuray Incorporated |
|
None |
|
Corporation / Delaware |
|
|
|
3358338 |
|
20-8370041 |
|
1310 Chesapeake Terrace |
|
|
|
|
|
|
|
Louisiana |
|
|
|
|
|
|
|
|
|
|
|
|
|
Utah |
|
|
|
|
|
|
|
TomoTherapy Incorporated |
|
None |
|
Corporation / Wisconsin |
|
Alabama |
|
T027694 |
|
39-1914727 |
|
1310 Chesapeake Terrace |
|
|
|
|
|
|
|
Louisiana |
|
|
|
|
|
|
|
|
|
|
|
|
|
South Carolina |
|
|
|
|
|
|
Schedule 3.4
Capitalization
|
Entity |
|
|
|
Percentage |
|
Direct Owner of Interests | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Entity |
|
|
|
Percentage |
|
Direct Owner of Interests | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Entity |
|
|
|
Percentage |
|
Direct Owner of Interests | ||
|
|
|
|
|
|
|
|
|
|
|
TomoTherapy Incorporated |
|
|
|
100% |
|
Accuray Incorporated | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Schedule 3.15
Brokers Fees
Fees payable to J. Wood Capital Advisors, LLC in connection with closing the transactions contemplated to occur on the Closing Date.None.
Schedule 3.17
Material Contracts
·· [*****]
·· [*****]
·· [*****]
·· [*****]
· [*****]
·· [*****]
·· [*****]
· Patent License Agreement dated February 22, 1999, as amended, between TomoTherapy Incorporated and Wisconsin Alumni Research Foundation
·· 3.50% Convertible Senior Notes due February 1, 2018, issued pursuant to the Indenture, dated as of February 13, 2013, between the Parent and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $115 million
•· 3.50% Series A Convertible Senior Notes due February 1, 2018 issued pursuant to the Indenture, dated as of April 24, 2014, between the Parent and The Bank of New York Mellon Trust Company, N.A., as trustee in the original principal amount of $70.3 million
· 3.75% Convertible Senior Notes due July 15, 2022 issued pursuant to the Indenture, dated as of August 7, 2017, between Accuray Incorporated and The Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented by the First Supplemental Indenture, dated as of December 4, 2017, in the original principal amount of $85 million
·· [*****]
·· [*****]
· [*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
Agreement |
|
Address of |
|
Base Rent | ||||||||
|
Office Lease between Adelphia, LLC and TomoTherapy Incorporated dated October 28, 2005, as amended |
|
1209 Deming Way
Madison, WI 53717 |
|
Rent: $14.00/RSF/yr. No base rent will be charged for July and August 2018
Rent Adjustment: $0.50/RSF/yr. beginning July 1, 2017 and on the same date each year thereafter
Additional Rent: $6.36/RSF (subject to adjustment as described in the “Rent Adjustment” heading above) | ||||||||
|
|
|
|
|
| ||||||||
|
Office Lease between Old Sauk Trails Park Limited Partnership and TomoTherapy Incorporated dated October 22, 2001, as amended |
|
1240 Deming Way,
Madison WI 53717 |
|
Rent: $16.00/RSF/yr. No base rent will be charged for July and August 2018
Rent Adjustment: $0.50/RSF/yr. beginning on July 1, 2017 and on the same date each year thereafter
Additional Rent: $8.24/RSF/yr. (subject to adjustment as described in the “Rent Adjustment” heading above) | ||||||||
|
|
|
|
|
| ||||||||
|
Standard Industrial Lease (Multiple Tenant — Tenant Pays its Percentage Share of Operating Expenses, Real Property Taxes and Insurance Costs — NO Base Year) between The Realty Associates Fund III, L.P. and Accuray Incorporated dated June 30 2005, as amended |
|
1306-1310 Orleans Drive
Sunnyvale, CA 94089 |
|
| ||||||||
|
|
|
Dates |
|
Per SF/mo. |
|
Monthly |
|
| ||||
|
|
|
1/1/2017 to 12/31/2017 |
|
$ |
1.409 |
|
$ |
70,425.90 |
|
| ||
|
|
|
1/1/2018 to 12/31/2018
|
|
$ |
1.451 |
|
$ |
72,538.68 |
|
| ||
|
Industrial Complex Lease (California) between MP Caribbean, Inc. and Accuray Incorporated dated July 9, 2003, as amended |
|
1310-1320
|
|
|
|
|
|
| |
|
|
|
Dates |
|
Monthly Minimum |
|
| |||
|
|
|
|
|
|
|
|
| ||
|
|
|
6/1/17 – 5/31/18 |
|
$ |
289,284.51 |
|
| ||
|
|
|
6/1/18 – 5/31/19 |
|
$ |
297,963.05 |
|
| ||
|
|
|
6/1/19 – 5/31/20 |
|
$ |
306,901.94 |
|
| ||
|
|
|
6/1/20 – 5/31/21 |
|
$ |
316,109.00 |
|
| ||
|
|
|
6/1/21 – 5/31/22 |
|
$ |
325,592.27 |
|
| ||
|
|
|
6/1/22 – 5/31/23 |
|
$ |
335,360.04 |
|
| ||
|
|
|
6/1/23 – 12/31/23 |
|
$ |
345,420.84 |
|
| ||
|
[*****] |
|
[*****] |
|
| |||||||||||||||||
|
|
|
|
|
Dates |
|
Minimum |
|
Monthly Minimum |
|
Annual or Period |
|
| |||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||
|
|
|
|
|
[*****] |
|
|
|
|
|
|
|
| |||||||||
|
|
|
|
|
| |||||||||||||||||
|
[*****] |
|
[*****] |
|
| |||||||||||||||||
|
|
|
|
|
Dates |
|
Monthly Minimum |
|
| |||||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
| |||||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
| |||||||||||||
|
|
|
|
|
|
|
|
|
| |||||||||||||
|
[*****] |
|
[*****] |
|
|
|
|
|
| |||||||||||||
|
|
|
|
|
Dates |
|
Monthly |
|
Annual Base |
|
| |||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||||
|
|
|
|
|
| |||||||||||||||||
|
[*****] |
|
[*****] |
|
Base Rent for Original Term: [*****] [*****] [*****] Base Rent for Extension Term: [*****] [*****] [*****] | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||
|
[*****] |
|
[*****] |
|
Office Number |
|
Price per |
|
|
|
| |||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
|
|
|
| ||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
|
|
| |||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||
|
[*****] |
|
[*****] |
|
Dates |
|
Monthly |
|
Rate Per Sq. |
|
| |||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||||
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
| |||||||||||
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 3.19
Intellectual Property
· Patent License Agreement dated February 22, 1999, as amended, between TomoTherapy Incorporated and Wisconsin Alumni Research Foundation
· · License Agreement dated December 12, 2004 between Accuray Incorporated and [*****]
· · Amended and Restated Limited Exclusive Sublicense and Cross-License Agreement between TomoTherapy Incorporated and [*****]
· · License Agreement between Accuray Incorporated, [*****] and [*****] dated August 23, 2006
· · Supply Agreement between [*****] and Accuray Incorporated dated as of January 17, 2013
· · Patent and Trademark License Agreement between [*****] and Accuray Incorporated dated as of November 29, 2006
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Trademarks US/OUS: Pending and Registered
|
|
|
MARK |
|
DATE |
|
COUNTRY |
|
STATUS |
|
SERIAL NO. |
|
REG NO. |
|
REG DATE |
|
CLASS(ES): |
|
OWNER |
|
1 |
|
CYBERKNIFE |
|
Nov 1, 1993 |
|
United States of America |
|
Registered |
|
74/452,587 |
|
2159142 |
|
May 19, 1998 |
|
10 |
|
Accuray Incorporated |
|
2 |
|
CYBERKNIFE |
|
Feb 18, 2008 |
|
Argentina |
|
Registered |
|
2804456 |
|
2271973 |
|
Feb 6, 2009 |
|
10 |
|
Accuray Incorporated |
|
3 |
|
CYBERKNIFE |
|
Feb 2, 2012 |
|
Brazil |
|
Registered |
|
840016158 |
|
840016158 |
|
Feb 18, 2015 |
|
10 |
|
Accuray Incorporated |
|
4 |
|
CYBERKNIFE |
|
Jul 12, 2016 |
|
Canada |
|
Registered |
|
1,790,917 |
|
TMA978,736 |
|
Aug 17, 2017 |
|
010 |
|
Accuray Incorporated |
|
5 |
|
CYBERKNIFE |
|
Dec 30, 2008 |
|
Colombia |
|
Registered |
|
08137766 |
|
385786 |
|
Aug 26, 2009 |
|
10 |
|
Accuray Incorporated |
|
6 |
|
CYBERKNIFE |
|
Dec 6, 1999 |
|
European Union Intellectual Property Office |
|
Registered |
|
001412923 |
|
001412923 |
|
Feb 14, 2001 |
|
10, 42, 9 |
|
Accuray Incorporated |
|
7 |
|
CYBERKNIFE |
|
Aug 4, 2010 |
|
India |
|
Registered |
|
2003493 |
|
2003493 |
|
Aug 4, 2010 |
|
10 |
|
Accuray Incorporated |
|
8 |
|
CYBERKNIFE |
|
Sep 17, 2009 |
|
Iraq |
|
Pending |
|
54905 |
|
|
|
|
|
10 |
|
Accuray Incorporated |
|
9 |
|
CYBERKNIFE |
|
May 26, 2009 |
|
Iran |
|
Registered |
|
188030110 |
|
173757 |
|
Nov 27, 2010 |
|
10 |
|
Accuray Incorporated |
|
10 |
|
CYBERKNIFE |
|
Dec 3, 1999 |
|
Japan |
|
Registered |
|
11-11430 |
|
4619273 |
|
Nov 8, 2002 |
|
010 |
|
Accuray Incorporated |
|
11 |
|
CYBERKNIFE |
|
May 19, 2009 |
|
Kuwait |
|
Registered |
|
103328 |
|
90404 |
|
May 19, 2009 |
|
10 |
|
Accuray Incorporated |
|
12 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
United States of America |
|
Registered |
|
A002761 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
13 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
Australia |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
14 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
Switzerland |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
15 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
China |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
16 |
|
CYBERKNIFE |
|
Oct 7, 2005 |
|
Korea (South) |
|
Registered |
|
868376 |
|
868376 |
|
Oct 7, 2005 |
|
10 |
|
Accuray Incorporated |
|
17 |
|
CYBERKNIFE |
|
Jan 25, 2013 |
|
Mexico |
|
Registered |
|
1343200 |
|
1362714 |
|
Apr 24, 2013 |
|
10 |
|
Accuray Incorporated |
|
18 |
|
CYBERKNIFE |
|
Oct 13, 2005 |
|
New Zealand |
|
Registered |
|
737078 |
|
737078 |
|
Apr 13, 2006 |
|
10 |
|
Accuray Incorporated |
|
19 |
|
CYBERKNIFE |
|
Jun 23, 2009 |
|
Paraguay |
|
Registered |
|
21219 |
|
334680 |
|
Jun 30, 2010 |
|
10 |
|
Accuray Incorporated |
|
20 |
|
CYBERKNIFE |
|
Jan 16, 2009 |
|
Russian Federation |
|
Registered |
|
2009700540 |
|
398317 |
|
Jan 15, 2010 |
|
10 |
|
Accuray Incorporated |
|
21 |
|
CYBERKNIFE |
|
Jun 30, 2009 |
|
South Africa |
|
Registered |
|
144956 |
|
1272/87 |
|
Aug 15, 2011 |
|
10 |
|
Accuray Incorporated |
|
22 |
|
CYBERKNIFE |
|
Oct 19, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
94050249 |
|
01223067 |
|
Aug 16, 2006 |
|
10 |
|
Accuray Incorporated |
|
23 |
|
CYBERKNIFE |
|
May 5, 2009 |
|
Ukraine |
|
Registered |
|
M 2009 05019 |
|
128118 |
|
Sep 10, 2010 |
|
10 |
|
Accuray Incorporated |
|
24 |
|
CYBERKNIFE |
|
Jul 13, 2009 |
|
Uruguay |
|
Registered |
|
403554 |
|
403554 |
|
Nov 4, 2011 |
|
10 |
|
Accuray Incorporated |
|
25 |
|
SYNCHRONY |
|
Jan 4, 2002 |
|
United States of America |
|
Registered |
|
76/355,129 |
|
3121089 |
|
Jul 25, 2006 |
|
009 |
|
Accuray Incorporated |
|
26 |
|
ROBOCOUCH |
|
Jun 30, 2004 |
|
United States of America |
|
Registered |
|
78/444,046 |
|
3303434 |
|
Oct 2, 2007 |
|
010 |
|
Accuray Incorporated |
|
27 |
|
ROBOCOUCH |
|
Dec 30, 2004 |
|
China |
|
Registered |
|
4443932 |
|
4443932 |
|
Aug 28, 2007 |
|
010 |
|
Accuray Incorporated |
|
28 |
|
ROBOCOUCH |
|
Dec 29, 2004 |
|
European Union Intellectual Property Office |
|
Registered |
|
4175329 |
|
4175329 |
|
Mar 1, 2006 |
|
010 |
|
Accuray Incorporated |
|
29 |
|
ROBOCOUCH |
|
Dec 28, 2004 |
|
Japan |
|
Registered |
|
2004-119115 |
|
4858059 |
|
Apr 15, 2005 |
|
010 |
|
Accuray Incorporated |
|
30 |
|
AXUM |
|
Oct 14, 2005 |
|
China |
|
Registered |
|
4943872 |
|
4943872 |
|
Sep 28, 2008 |
|
010 |
|
Accuray Incorporated |
|
31 |
|
MULTIPLAN |
|
Apr 11, 2005 |
|
United States of America |
|
Registered |
|
76/635,460 |
|
3181425 |
|
Dec 5, 2006 |
|
009 |
|
Accuray Incorporated |
|
32 |
|
MULTIPLAN |
|
Oct 8, 2005 |
|
China |
|
Registered |
|
4932723 |
|
4932723 |
|
Sep 7, 2008 |
|
009 |
|
Accuray Incorporated |
|
33 |
|
MULTIPLAN |
|
Oct 9, 2005 |
|
European Union Intellectual Property Office |
|
Registered |
|
4643516 |
|
4643516 |
|
Oct 27, 2006 |
|
009 |
|
Accuray Incorporated |
|
34 |
|
MULTIPLAN |
|
Oct 11, 2005 |
|
Japan |
|
Registered |
|
2005-94669 |
|
4916041 |
|
Dec 16, 2005 |
|
009 |
|
Accuray Incorporated |
|
35 |
|
MULTIPLAN |
|
Oct 14, 2005 |
|
Japan |
|
Registered |
|
2005-96300 |
|
5001409 |
|
Nov 2, 2006 |
|
009 |
|
Accuray Incorporated |
|
36 |
|
XSIGHT |
|
Apr 11, 2005 |
|
United States of America |
|
Registered |
|
76/635,461 |
|
3298517 |
|
Sep 25, 2007 |
|
010 |
|
Accuray Incorporated |
|
37 |
|
XSIGHT |
|
Oct 19, 2006 |
|
European Union Intellectual Property Office |
|
Registered |
|
005399241 |
|
005399241 |
|
May 8, 2008 |
|
010 |
|
Accuray Incorporated |
|
38 |
|
XSIGHT |
|
Oct 11, 2006 |
|
International Bureau of WIPO |
|
Registered |
|
923838 |
|
923838 |
|
Oct 11, 2006 |
|
10, 9 |
|
Accuray Incorporated |
|
39 |
|
XSIGHT |
|
Oct 11, 2006 |
|
China |
|
Registered |
|
923838 |
|
923838 |
|
Oct 11, 2006 |
|
10, 9 |
|
Accuray Incorporated |
|
40 |
|
XSIGHT |
|
Oct 11, 2006 |
|
Japan |
|
Total Provisional Refusal |
|
923838 |
|
|
|
|
|
10, 9 |
|
Accuray Incorporated |
|
41 |
|
XSIGHT |
|
Oct 11, 2006 |
|
Korea (South) |
|
Registered |
|
923838 |
|
923838 |
|
Oct 11, 2006 |
|
10, 9 |
|
Accuray Incorporated |
|
42 |
|
XSIGHT |
|
Feb 26, 2009 |
|
Japan |
|
Registered |
|
2009-013714 |
|
5301276 |
|
Feb 12, 2010 |
|
010 |
|
Accuray Incorporated |
|
43 |
|
XSIGHT |
|
Oct 11, 2006 |
|
United States of America |
|
Registered |
|
77/018,732 |
|
3496392 |
|
Sep 2, 2008 |
|
010 |
|
Accuray Incorporated |
|
44 |
|
ACCURAY |
|
Oct 13, 2005 |
|
United States of America |
|
Registered |
|
78/732,900 |
|
3306634 |
|
Oct 9, 2007 |
|
009, 10 |
|
Accuray Incorporated |
|
45 |
|
ACCURAY |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
19292055 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
46 |
|
ACCURAY |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
|
|
|
|
|
|
010 |
|
Accuray Incorporated |
|
47 |
|
ACCURAY |
|
Feb 18, 2008 |
|
Argentina |
|
Registered |
|
2804455 |
|
2414459 |
|
Dec 17, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
48 |
|
ACCURAY |
|
Feb 2, 2012 |
|
Brazil |
|
Registered |
|
840016174 |
|
840016174 |
|
Feb 18, 2015 |
|
009, 10 |
|
Accuray Incorporated |
|
49 |
|
ACCURAY |
|
Jul 15, 2016 |
|
Canada |
|
Pending |
|
1,791,705 |
|
|
|
|
|
009, 10 |
|
Accuray Incorporated |
|
50 |
|
ACCURAY |
|
Dec 30, 2008 |
|
Colombia |
|
Registered |
|
08137763 |
|
385785 |
|
Aug 26, 2009 |
|
009, 10 |
|
Accuray Incorporated |
|
51 |
|
ACCURAY |
|
Oct 15, 2005 |
|
European Union Intellectual Property Office |
|
Registered |
|
004655833 |
|
004655833 |
|
Oct 6, 2006 |
|
009, 10, 41 |
|
Accuray Incorporated |
|
52 |
|
ACCURAY |
|
Jun 1, 2016 |
|
Hong Kong, SAR China |
|
Registered |
|
303794130 |
|
303794130 |
|
Jun 1, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
53 |
|
ACCURAY |
|
Aug 4, 2010 |
|
India |
|
Pending |
|
2003494 |
|
|
|
|
|
009, 10 |
|
Accuray Incorporated |
|
54 |
|
ACCURAY |
|
Sep 16, 2009 |
|
Iraq |
|
Pending |
|
54904 |
|
|
|
|
|
009, 10 |
|
Accuray Incorporated |
|
55 |
|
ACCURAY |
|
May 26, 2009 |
|
Iran |
|
Registered |
|
188030112 |
|
217781 |
|
Sep 9, 2012 |
|
009, 10 |
|
Accuray Incorporated |
|
56 |
|
ACCURAY |
|
Aug 28, 2008 |
|
Korea (South) |
|
Registered |
|
40-2008-42136 |
|
40-797598 |
|
Aug 11, 2009 |
|
009, 10 |
|
Accuray Incorporated |
|
57 |
|
ACCURAY |
|
May 19, 2009 |
|
Kuwait |
|
Registered |
|
103329 |
|
90405 |
|
May 19, 2009 |
|
009, 10 |
|
Accuray Incorporated |
|
58 |
|
ACCURAY |
|
Oct 21, 2005 |
|
International Bureau of WIPO |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
59 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Australia |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
60 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Switzerland |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
61 |
|
ACCURAY |
|
Oct 21, 2005 |
|
China |
|
Pending |
|
896634 |
|
|
|
|
|
10, 09 |
|
Accuray Incorporated |
|
62 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Japan |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
63 |
|
ACCURAY |
|
Oct 21, 2005 |
|
Korea (South) |
|
Registered |
|
896634 |
|
896634 |
|
Oct 21, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
64 |
|
ACCURAY |
|
Oct 17, 2005 |
|
New Zealand |
|
Registered |
|
737214 |
|
737214 |
|
Jul 13, 2006 |
|
009, 10 |
|
Accuray Incorporated |
|
65 |
|
ACCURAY |
|
Jun 23, 2009 |
|
Paraguay |
|
Registered |
|
21220 |
|
335824 |
|
Aug 3, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
66 |
|
ACCURAY |
|
Jan 16, 2009 |
|
Russian Federation |
|
Registered |
|
2009700539 |
|
420624 |
|
Oct 15, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
67 |
|
ACCURAY |
|
Jun 30, 2009 |
|
South Africa |
|
Registered |
|
144957 |
|
1272/86 |
|
Aug 15, 2011 |
|
009, 10 |
|
Accuray Incorporated |
|
68 |
|
ACCURAY |
|
Jun 20, 2016 |
|
Turkey |
|
Registered |
|
201654308 |
|
201654308 |
|
Feb 7, 2017 |
|
009, 10 |
|
Accuray Incorporated |
|
69 |
|
ACCURAY |
|
Oct 19, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094050248 |
|
01213117 |
|
Jun 2, 2006 |
|
009, 10 |
|
Accuray Incorporated |
|
70 |
|
ACCURAY |
|
May 5, 2009 |
|
Ukraine |
|
Registered |
|
M 2009 05020 |
|
128119 |
|
Sep 10, 2010 |
|
009, 10 |
|
Accuray Incorporated |
|
71 |
|
ACCURAY |
|
Jul 13, 2009 |
|
Uruguay |
|
Registered |
|
403555 |
|
40355 |
|
Jun 13, 2012 |
|
009, 10 |
|
Accuray Incorporated |
|
72 |
|
ACCURAY & DESIGN |
|
Oct 13, 2005 |
|
United States of America |
|
Registered |
|
78/732,915 |
|
3378543 |
|
Feb 5, 2008 |
|
10, 10 |
|
Accuray Incorporated |
|
73 |
|
ACCURAY & DESIGN |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
19292057 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
74 |
|
ACCURAY & DESIGN |
|
Mar 28, 2017 |
|
China |
|
Pending |
|
23307720 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
75 |
|
ACCURAY & DESIGN |
|
Mar 14, 2016 |
|
China |
|
Registered |
|
19292056 |
|
19292056 |
|
Apr 21, 2017 |
|
010 |
|
Accuray Incorporated |
|
76 |
|
ACCURAY & DESIGN |
|
Mar 14, 2016 |
|
China |
|
Pending |
|
19292055 |
|
|
|
|
|
44 |
|
Accuray Incorporated |
|
77 |
|
ACCURAY & DESIGN |
|
Mar 28, 2017 |
|
China |
|
Pending |
|
23307719 |
|
|
|
|
|
44 |
|
Accuray Incorporated |
|
78 |
|
ACCURAY & DESIGN OF NEW LOGO |
|
Feb 17, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
15116114 |
|
15116114 |
|
Jun 16, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
79 |
|
ACCURAY & DESIGN OF NEW LOGO |
|
Feb 11, 2016 |
|
United States of America |
|
Registered |
|
86/904,926 |
|
5,229,006 |
|
Jun 20, 2017 |
|
009, 10 |
|
Accuray Incorporated |
|
80 |
|
ACCURAY’S DESIGN |
|
Oct 13, 2005 |
|
United States of America |
|
Registered |
|
78/732,925 |
|
3306635 |
|
Oct 9, 2007 |
|
009, 10 |
|
Accuray Incorporated |
|
81 |
|
CYBERKNIFE UNIVERSITY |
|
Oct 11, 2006 |
|
United States of America |
|
Registered |
|
77/018,644 |
|
3465111 |
|
Jul 15, 2008 |
|
41 |
|
Accuray Incorporated |
|
82 |
|
XCHANGE |
|
Sep 26, 2006 |
|
United States of America |
|
Registered |
|
77/007,570 |
|
3631869 |
|
Jun 2, 2009 |
|
10 |
|
Accuray Incorporated |
|
83 |
|
XCHANGE |
|
Sep 29, 2006 |
|
European Union Intellectual Property Office |
|
Registered |
|
005347257 |
|
005347257 |
|
Aug 30, 2007 |
|
10 |
|
Accuray Incorporated |
|
84 |
|
XCHANGE |
|
Sep 26, 2006 |
|
United States of America |
|
Registered |
|
A0005960 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
85 |
|
XCHANGE |
|
Sep 26, 2006 |
|
China |
|
Registered |
|
907679 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
86 |
|
XCHANGE |
|
Sep 26, 2006 |
|
Japan |
|
Registered |
|
907679 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
87 |
|
XCHANGE |
|
Sep 26, 2006 |
|
Korea (South) |
|
Registered |
|
907679 |
|
907679 |
|
Sep 26, 2006 |
|
10 |
|
Accuray Incorporated |
|
88 |
|
CYBERKNIFE VSI |
|
Mar 30, 2009 |
|
United States of America |
|
Registered |
|
77/702,437 |
|
3904968 |
|
Jan 11, 2011 |
|
10 |
|
Accuray Incorporated |
|
89 |
|
QUICKPLAN |
|
Aug 26, 2009 |
|
United States of America |
|
Registered |
|
77/813,495 |
|
3829517 |
|
Aug 3, 2010 |
|
9 |
|
Accuray Incorporated |
|
90 |
|
INTERNATIONAL CYBERKNIFE NETWORK |
|
Jan 17, 2011 |
|
China |
|
Registered |
|
9059734 |
|
9059734 |
|
Feb 7, 2012 |
|
35 |
|
Accuray Incorporated |
|
91 |
|
INTERNATIONAL CYBERKNIFE NETWORK |
|
Jan 12, 2011 |
|
European Union Intellectual Property Office |
|
Registered |
|
009654864 |
|
009654864 |
|
Jun 21, 2011 |
|
35 |
|
Accuray Incorporated |
|
92 |
|
INTERNATIONAL CYBERKNIFE NETWORK |
|
Jan 14, 2011 |
|
Japan |
|
Registered |
|
2011-002039 |
|
5422567 |
|
Jul 1, 2011 |
|
35 |
|
Accuray Incorporated |
|
93 |
|
PLANTOUCH |
|
Sep 12, 2011 |
|
United States of America |
|
Registered |
|
85/420,777 |
|
4,332,520 |
|
May 7, 2013 |
|
|
|
Accuray Incorporated |
|
94 |
|
AERO ACCURAY EXCHANGE IN RADITAION ONCOLOGY |
|
Sep 30, 2011 |
|
United States of America |
|
Registered |
|
85/436,970 |
|
4240551 |
|
Nov 13, 2012 |
|
35, 41, 42 |
|
Accuray Incorporated |
|
95 |
|
AERO ACCURAY EXCHANGE IN RADITAION ONCOLOGY |
|
Dec 22, 2011 |
|
Japan |
|
Registered |
|
2011-092307 |
|
5499149 |
|
Jun 8, 2012 |
|
35, 41, 42 |
|
Accuray Incorporated |
|
96 |
|
AERO ACCURAY EXCHANGE IN RADITAION ONCOLOGY |
|
Dec 12, 2011 |
|
European Union Intellectual Property Office |
|
Registered |
|
10484723 |
|
10484723 |
|
Jul 26, 2012 |
|
35, 41, 42 |
|
Accuray Incorporated |
|
97 |
|
ACCURAY IN JAPANESE CHARACTERS |
|
Apr 4, 2012 |
|
United States of America |
|
Registered |
|
2012/026,212 |
|
5528381 |
|
Oct 12, 2012 |
|
10, 09 |
|
Accuray Incorporated |
|
98 |
|
CYBERKNIFE (JAPANESE CHARACTERS) |
|
Oct 18, 2011 |
|
Japan |
|
Registered |
|
2011-74379 |
|
5638370 |
|
Dec 20, 2013 |
|
10 |
|
Accuray Incorporated |
|
99 |
|
HI ART |
|
Feb 24, 2005 |
|
India |
|
Registered |
|
1340588 |
|
1340588 |
|
Feb 24, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
100 |
|
HI ART |
|
Feb 17, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094006942 |
|
1185028 |
|
Dec 1, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
101 |
|
HI ART |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,428 |
|
TMA740020 |
|
May 13, 2009 |
|
10 |
|
Accuray Incorporated |
|
102 |
|
HI ART |
|
Mar 3, 2005 |
|
United States of America |
|
Registered |
|
865,313 |
|
865313 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
103 |
|
HI ART (2840349) |
|
May 28, 2003 |
|
United States of America |
|
Registered |
|
78/255,227 |
|
2840349 |
|
May 11, 2004 |
|
10 |
|
Accuray Incorporated |
|
104 |
|
HI ART (2840348) |
|
May 28, 2003 |
|
United States of America |
|
Registered |
|
78/255,208 |
|
2840348 |
|
May 11, 2004 |
|
9 |
|
Accuray Incorporated |
|
105 |
|
MISCELLANEOUS DESIGN (TOMOTHERAPY LOGO) |
|
Jul 9, 2003 |
|
Canada |
|
Registered |
|
1,182,644 |
|
TMA 626773 |
|
Nov 26, 2004 |
|
|
|
Accuray Incorporated |
|
106 |
|
MISCELLANEOUS DESIGN (TOMOTHERAPY LOGO) |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,408 |
|
TMA 722932 |
|
Sep 4, 2008 |
|
|
|
Accuray Incorporated |
|
107 |
|
TOMO |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,410 |
|
TMA 722931 |
|
Sep 4, 2008 |
|
10 |
|
Accuray Incorporated |
|
108 |
|
TOMO |
|
Jul 9, 2003 |
|
Canada |
|
Registered |
|
1,182,645 |
|
TMA 626109 |
|
Nov 22, 2004 |
|
10 |
|
Accuray Incorporated |
|
109 |
|
TOMO |
|
Mar 3, 2005 |
|
Switzerland |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
110 |
|
TOMO |
|
Mar 3, 2005 |
|
China |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
111 |
|
TOMO |
|
Jun 26, 2003 |
|
European Union Intellectual Property Office |
|
Registered |
|
003243979 |
|
003243979 |
|
Nov 11, 2004 |
|
10 |
|
Accuray Incorporated |
|
112 |
|
TOMO |
|
Mar 3, 2005 |
|
European Union Intellectual Property Office |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
113 |
|
TOMO |
|
Mar 3, 2005 |
|
International Bureau of WIPO |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
Accuray Incorporated |
|
114 |
|
TOMO |
|
Feb 24, 2005 |
|
India |
|
Registered |
|
1340584 |
|
1340584 |
|
Feb 24, 2005 |
|
10 |
|
Accuray Incorporated |
|
115 |
|
TOMO |
|
Mar 3, 2005 |
|
Japan |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
116 |
|
TOMO |
|
Mar 3, 2005 |
|
Korea (South) |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10 |
|
TomoTherapy Incorporated |
|
117 |
|
TOMO |
|
Mar 12, 2015 |
|
Russian Federation |
|
Registered |
|
2015706615 |
|
590726 |
|
Oct 13, 2016 |
|
10 |
|
TomoTherapy Incorporated |
|
118 |
|
TOMO |
|
Mar 3, 2005 |
|
Singapore |
|
Registered |
|
857295 |
|
857295 |
|
Mar 3, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
119 |
|
TOMO |
|
Feb 17, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094006945 |
|
1182820 |
|
Nov 16, 2005 |
|
10 |
|
TomoTherapy Incorporated |
|
120 |
|
TOMO |
|
Jan 14, 2003 |
|
United States of America |
|
Registered |
|
78/203,099 |
|
2788956 |
|
Dec 2, 2003 |
|
10 |
|
TomoTherapy Incorporated |
|
121 |
|
TOMOTHERAPY |
|
Oct 9, 2012 |
|
United States of America |
|
Registered |
|
85/749,470 |
|
4417188 |
|
Oct 15, 2013 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
122 |
|
TOMOTHERAPY |
|
Feb 2, 2012 |
|
Brazil |
|
Registered |
|
840016190 |
|
840016190 |
|
Feb 18, 2015 |
|
10 |
|
TomoTherapy Incorporated |
|
123 |
|
TOMOTHERAPY |
|
Feb 16, 2005 |
|
Canada |
|
Registered |
|
1,247,407 |
|
TMA 708751 |
|
Mar 4, 2008 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
124 |
|
TOMOTHERAPY |
|
Jun 11, 2008 |
|
Canada |
|
Registered |
|
1,399,183 |
|
TMA915,722 |
|
Oct 1, 2015 |
|
44 |
|
TomoTherapy Incorporated |
|
125 |
|
TOMOTHERAPY |
|
Jun 21, 2008 |
|
European Union Intellectual Property Office |
|
Registered |
|
7005903 |
|
7005903 |
|
Jul 10, 2009 |
|
44 |
|
TomoTherapy Incorporated |
|
126 |
|
TOMOTHERAPY |
|
May 26, 2016 |
|
Hong Kong, SAR China |
|
Registered |
|
303788678 |
|
303788678 |
|
May 26, 2016 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
127 |
|
TOMOTHERAPY |
|
Jul 23, 2015 |
|
Hong Kong, SAR China |
|
Registered |
|
303481065 |
|
303481065 |
|
Jul 23, 2015 |
|
010, 044 |
|
TomoTherapy Incorporated |
|
128 |
|
TOMOTHERAPY |
|
Feb 9, 2005 |
|
International Bureau of WIPO |
|
Registered |
|
847352 |
|
847352 |
|
Feb 9, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
129 |
|
TOMOTHERAPY |
|
Feb 24, 2005 |
|
India |
|
Registered |
|
1340585 |
|
1340585 |
|
Feb 24, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
130 |
|
TOMOTHERAPY |
|
Mar 12, 2015 |
|
Russian Federation |
|
Registered |
|
2015706614 |
|
|
|
Jun 26, 2016 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
131 |
|
TOMOTHERAPY |
|
Feb 17, 2005 |
|
Taiwan, Republic of China |
|
Registered |
|
094006943 |
|
1182818 |
|
Nov 16, 2005 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
132 |
|
TOMOTHERAPY AND DESIGN |
|
Jul 9, 2003 |
|
United States of America |
|
Registered |
|
01/182,642 |
|
TMA 653899 |
|
Nov 29, 2005 |
|
|
|
TomoTherapy Incorporated |
|
133 |
|
TOMOTHERAPY (SINGLE LINE) |
|
Jul 9, 2003 |
|
Canada |
|
Registered |
|
1,182,643 |
|
TMA 654059 |
|
Nov 30, 2005 |
|
10 |
|
TomoTherapy Incorporated |
|
134 |
|
TOMOTHERAPY HI ART |
|
Mar 5, 2001 |
|
United States of America |
|
Registered |
|
76/219,829 |
|
2729995 |
|
Jun 24, 2003 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
135 |
|
TOMOTHERAPY (JAPANESE CHARACTERS) |
|
Mar 22, 2012 |
|
Japan |
|
Registered |
|
2012-021787 |
|
5585393 |
|
May 24, 2013 |
|
10 |
|
TomoTherapy Incorporated |
|
136 |
|
TOMOHD |
|
Oct 5, 2010 |
|
United States of America |
|
Registered |
|
85/145,550 |
|
4418909 |
|
Oct 15, 2013 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
137 |
|
TOMOH |
|
Oct 5, 2010 |
|
United States of America |
|
Registered |
|
85/145,560 |
|
4621369 |
|
Oct 14, 2014 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
138 |
|
STATRT |
|
Oct 5, 2010 |
|
United States of America |
|
Registered |
|
85/145,487 |
|
4808683 |
|
Sep 8, 2015 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
139 |
|
STATRT |
|
Jun 12, 2008 |
|
European Union Intellectual Property Office |
|
Registered |
|
007005937 |
|
007005937 |
|
Apr 3, 2009 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
140 |
|
TOMOPORTAL |
|
Feb 19, 2007 |
|
India |
|
Registered |
|
1531829 |
|
1531829 |
|
Feb 19, 2007 |
|
10 |
|
TomoTherapy Incorporated |
|
141 |
|
TOMOPORTAL |
|
Jan 16, 2008 |
|
Taiwan, Republic of China |
|
Registered |
|
01297299 |
|
01297299 |
|
Jan 16, 2008 |
|
9 |
|
TomoTherapy Incorporated |
|
142 |
|
ONRAD |
|
Jun 19, 2015 |
|
China |
|
Registered |
|
17248954 |
|
17248954 |
|
Oct 28, 2016 |
|
010 |
|
TomoTherapy Incorporated |
|
143 |
|
ONRAD |
|
Jun 3, 2015 |
|
European Union Intellectual Property Office |
|
Registered |
|
14195176 |
|
14195176 |
|
Oct 2, 2015 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
144 |
|
ONRAD |
|
Jun 5, 2015 |
|
Japan |
|
Registered |
|
2015-053384 |
|
5802044 |
|
Oct 23, 2015 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
145 |
|
ONRAD |
|
Jun 3, 2015 |
|
Mexico |
|
Registered |
|
1617205 |
|
1582025 |
|
Oct 20, 2015 |
|
009 |
|
TomoTherapy Incorporated |
|
146 |
|
ONRAD |
|
Jun 3, 2015 |
|
Mexico |
|
Registered |
|
1617204 |
|
1582659 |
|
Oct 21, 2015 |
|
010 |
|
TomoTherapy Incorporated |
|
147 |
|
RADIXACT |
|
Sep 4, 2015 |
|
Canada |
|
Allowed |
|
1,744,763 |
|
|
|
|
|
009 |
|
TomoTherapy Incorporated |
|
148 |
|
RADIXACT |
|
Aug 27, 2015 |
|
China |
|
Registered |
|
17765335 |
|
17765335 |
|
Oct 14, 2016 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
149 |
|
RADIXACT |
|
Aug 24, 2015 |
|
European Union Intellectual Property Office |
|
Registered |
|
14500763 |
|
14500763 |
|
Dec 23, 2015 |
|
009, 10 |
|
TomoTherapy Incorporated |
|
150 |
|
RADIXACT |
|
Aug 25, 2015 |
|
Japan |
|
Registered |
|
2015-081559 |
|
5845038 |
|
Apr 22, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
151 |
|
RADIXACT |
|
May 25, 2016 |
|
Russian Federation |
|
Registered |
|
2016718486 |
|
607782 |
|
Mar 6, 2017 |
|
009, 10 |
|
Accuray Incorporated |
|
152 |
|
RADIXACT |
|
Aug 31, 2015 |
|
United States of America |
|
Registered |
|
86/742,946 |
|
5,092,439 |
|
Nov 29, 2016 |
|
009, 10 |
|
Accuray Incorporated |
|
153 |
|
PRECISION |
|
Sep 16, 2015 |
|
Canada |
|
Allowed |
|
1,746,346 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
154 |
|
PRECISION |
|
Sep 3, 2015 |
|
Japan |
|
Registered |
|
2015-085171 |
|
|
|
Jul 7, 2016 |
|
009 |
|
Accuray Incorporated |
|
155 |
|
IDMS |
|
Sep 1, 2015 |
|
United States of America |
|
Allowed |
|
86/744,366 |
|
|
|
|
|
9 |
|
Accuray Incorporated |
|
156 |
|
IDMS |
|
Sep 16, 2015 |
|
Canada |
|
Allowed |
|
1,746,347 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
157 |
|
IDMS |
|
Sep 6, 2015 |
|
China |
|
Registered |
|
17825894 |
|
17825894 |
|
Oct 14, 2016 |
|
9 |
|
Accuray Incorporated |
|
158 |
|
IDMS |
|
Sep 2, 2015 |
|
European Union Intellectual Property Office |
|
Registered |
|
14519102 |
|
14519102 |
|
Jan 11, 2016 |
|
009 |
|
Accuray Incorporated |
|
159 |
|
IDMS |
|
Sep 3, 2015 |
|
Japan |
|
Registered |
|
2015-085198 |
|
5829333 |
|
Feb 26, 2016 |
|
009 |
|
Accuray Incorporated |
|
160 |
|
ACCURAY PRECISION |
|
Jan 6, 2016 |
|
Canada |
|
Allowed |
|
1,762,154 |
|
|
|
|
|
9 |
|
Accuray Incorporated |
|
161 |
|
ACCURAY PRECISION |
|
Jan 7, 2016 |
|
China |
|
Registered |
|
18815588 |
|
18815588 |
|
Feb 14, 2017 |
|
9 |
|
Accuray Incorporated |
|
162 |
|
ACCURAY PRECISION |
|
Jan 6, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
14977862 |
|
14977862 |
|
May 5, 2016 |
|
009 |
|
Accuray Incorporated |
|
163 |
|
ACCURAY PRECISION |
|
Jan 8, 2016 |
|
Japan |
|
Registered |
|
2016-002109 |
|
5854578 |
|
May 27, 2016 |
|
009 |
|
Accuray Incorporated |
|
164 |
|
ACCURAY PRECISION |
|
Jan 4, 2016 |
|
United States of America |
|
Registered |
|
86/864,567 |
|
5,210,271 |
|
May 23, 2017 |
|
009 |
|
Accuray Incorporated |
|
165 |
|
PRECISEART |
|
Feb 12, 2016 |
|
Canada |
|
Allowed |
|
1,767,695 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
166 |
|
PRECISEART |
|
Feb 18, 2016 |
|
China |
|
Registered |
|
19112005 |
|
19112005 |
|
Mar 21, 2017 |
|
009 |
|
Accuray Incorporated |
|
167 |
|
PRECISEART |
|
Feb 22, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
15131188 |
|
15131188 |
|
Jun 24, 2016 |
|
009 |
|
Accuray Incorporated |
|
168 |
|
PRECISEART |
|
Feb 15, 2016 |
|
Japan |
|
Registered |
|
2016-015892 |
|
5868546 |
|
Jul 22, 2016 |
|
009 |
|
Accuray Incorporated |
|
169 |
|
PRECISEART |
|
Feb 11, 2016 |
|
United States of America |
|
Allowed |
|
86/904,966 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
170 |
|
PRECISERTX |
|
Feb 12, 2016 |
|
Canada |
|
Allowed |
|
1 767 696 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
171 |
|
PRECISERTX |
|
Feb 18, 2016 |
|
China |
|
Registered |
|
19112004 |
|
19112004 |
|
Mar 21, 2017 |
|
009 |
|
Accuray Incorporated |
|
172 |
|
PRECISERTX |
|
Feb 12, 2016 |
|
European Union Intellectual Property Office |
|
Registered |
|
15103658 |
|
15103658 |
|
Jun 22, 2016 |
|
009 |
|
Accuray Incorporated |
|
173 |
|
PRECISERTX |
|
Feb 15, 2016 |
|
Japan |
|
Registered |
|
2016-015898 |
|
5868547 |
|
Jul 22, 2016 |
|
009 |
|
Accuray Incorporated |
|
174 |
|
PRECISERTX |
|
Feb 11, 2016 |
|
United States of America |
|
Allowed |
|
86/904,972 |
|
|
|
|
|
009 |
|
Accuray Incorporated |
|
175 |
|
CTRUE |
|
Feb 9, 2007 |
|
European Union Intellectual Property Office |
|
Registered |
|
5705827 |
|
5705827 |
|
Feb 11, 2008 |
|
009, 10 |
|
Accuray Incorporated |
|
176 |
|
CTRUE |
|
Feb 9, 2007 |
|
Korea (South) |
|
Registered |
|
4020070007623 |
|
400733460000 |
|
Jan 8, 2008 |
|
10, 09 |
|
TomoTherapy Incorporated |
|
177 |
|
CTRUE |
|
Jan 16, 2008 |
|
Taiwan, Republic of China |
|
Registered |
|
01298912 |
|
01298912 |
|
Jan 16, 2008 |
|
10, 09 |
|
Accuray Incorporated |
OUS Issued Patent Matters
|
TITLE |
|
COUNTRY |
|
DATE FILED |
|
APPLICATION |
|
STATUS |
|
GRANT |
|
OWNER |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY - PCT |
|
China |
|
May 9, 2006 |
|
2006800250458 |
|
Issued |
|
Dec 1, 2011 |
|
Accuray Incorporated |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY - PCT |
|
Japan |
|
May 9, 2006 |
|
2008511299 |
|
Issued |
|
Nov 15, 2012 |
|
Accuray Incorporated |
|
SUPER PRECISION REGISTRATION OF X-RAY IMAGES TO CONE BEAM CT FOR IMAGE-GUIDED RADIOSURGERY - PCT |
|
China |
|
Jun 27, 2006 |
|
2006800281600 |
|
Issued |
|
Dec 5, 2012 |
|
Accuray Incorporated |
|
PRECISION REGISTRATION OF X-RAY IMAGES TO CONE-BEAM CT FOR IMAGE-GUIDED RADIATION TREATMENT |
|
Japan |
|
Jun 27, 2006 |
|
2008520277 |
|
Issued |
|
Aug 29, 2014 |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY - KOREA |
|
Korea (South) |
|
Apr 5, 2005 |
|
20067023241 |
|
Issued |
|
Sep 28, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
China |
|
Jun 29, 2006 |
|
2006800286765 |
|
Issued |
|
Jul 18, 2012 |
|
Accuray Incorporated |
|
Imaging geometry |
|
China |
|
Jun 29, 2005 |
|
2010101970488 |
|
Issued |
|
Jun 12, 2012 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
Germany |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
European Patent Office |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
France |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
United Kingdom |
|
Jun 29, 2006 |
|
067744094 |
|
Issued |
|
Aug 10, 2011 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY - PCT |
|
Japan |
|
Jun 29, 2006 |
|
2008520316 |
|
Issued |
|
Aug 10, 2012 |
|
Accuray Incorporated |
|
Adaptive X-Ray Control |
|
China |
|
Feb 13, 2007 |
|
2007800055515 |
|
Issued |
|
Sep 5, 2012 |
|
Accuray Incorporated |
|
Adaptive X-Ray Control |
|
Japan |
|
Feb 13, 2007 |
|
2008555381 |
|
Issued |
|
Nov 8, 2012 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- GERMANY |
|
Germany |
|
Dec 7, 1993 |
|
DE19936033449 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- EPO |
|
European Patent Office |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- FRANCE |
|
France |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- GREAT BRITAIN |
|
United Kingdom |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- ITALY |
|
Italy |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- KOREA |
|
Korea (South) |
|
Dec 7, 1993 |
|
95702344 |
|
Issued |
|
Feb 26, 2002 |
|
Accuray Incorporated |
|
APPARATUS FOR AND METHOD OF CARRYING OUT STEREOTAXIC RADIOSURGERY AND RADIOTHERAPY- SWEDEN |
|
Sweden |
|
Dec 7, 1993 |
|
949035075 |
|
Issued |
|
Mar 10, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- GERMANY |
|
Germany |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- EPO |
|
European Patent Office |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- FRANCE |
|
France |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- UNITED KINGDOM |
|
United Kingdom |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- ITALY |
|
Italy |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- JAPAN |
|
Japan |
|
Mar 14, 2000 |
|
2000604773 |
|
Issued |
|
Dec 4, 2009 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- JAPAN |
|
Japan |
|
Mar 14, 2000 |
|
2009225262 |
|
Issued |
|
Mar 8, 2013 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- KOREA |
|
Korea (South) |
|
Mar 14, 2000 |
|
1020017011675 |
|
Issued |
|
Aug 10, 2007 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT- SWEDEN |
|
Sweden |
|
Mar 14, 2000 |
|
009179284 |
|
Issued |
|
Jun 16, 2004 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
Germany |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
European Patent Office |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
France |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
United Kingdom |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
Japan |
|
Sep 14, 2001 |
|
2007212216 |
|
Issued |
|
Apr 20, 2012 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD- EPO |
|
Sweden |
|
Sep 14, 2001 |
|
019709450 |
|
Issued |
|
Jul 12, 2017 |
|
Accuray Incorporated |
|
Dynamic Tracking of Moving Targets |
|
Japan |
|
Aug 22, 2005 |
|
2007534595 |
|
Issued |
|
Nov 16, 2012 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
China |
|
May 30, 2007 |
|
2007800234568 |
|
Issued |
|
Jul 27, 2011 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
Germany |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Aug 16, 2016 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
European Patent Office |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
France |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
United Kingdom |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
Japan |
|
May 30, 2007 |
|
2009518130 |
|
Issued |
|
Sep 5, 2014 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
Sweden |
|
May 30, 2007 |
|
077955359 |
|
Issued |
|
Oct 25, 2017 |
|
Accuray Incorporated |
|
RADIATION TREATMENT PLANNING USING FOUR-DIMENSIONAL IMAGING DATA |
|
Japan |
|
Aug 30, 2007 |
|
2007253810 |
|
Issued |
|
Nov 14, 2013 |
|
Accuray Incorporated |
|
COLLIMATOR CHANGER |
|
Japan |
|
Oct 9, 2007 |
|
2009536231 |
|
Issued |
|
Aug 2, 2013 |
|
Accuray Incorporated |
|
TARGET TRACKING USING DIRECT TARGET REGISTRATION |
|
China |
|
Oct 11, 2007 |
|
2007800406282 |
|
Issued |
|
Feb 18, 2016 |
|
Accuray Incorporated |
|
An apparatus and method for determining an optimized path traversal for radiation treatment delivery system |
|
Japan |
|
Sep 30, 2009 |
|
2010502090 |
|
Issued |
|
Aug 2, 2013 |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
China |
|
Dec 11, 2008 |
|
2008801248685 |
|
Issued |
|
Apr 23, 2014 |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
Japan |
|
Dec 11, 2008 |
|
2010543094 |
|
Issued |
|
Dec 6, 2013 |
|
Accuray Incorporated |
|
SEVEN DEGREES OR MORE OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
China |
|
Aug 12, 2009 |
|
2009801422313 |
|
Issued |
|
Sep 10, 2014 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
China |
|
Jan 25, 2010 |
|
2010800055767 |
|
Issued |
|
Jan 26, 2014 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
China |
|
Jan 25, 2010 |
|
2014100859640 |
|
Issued |
|
Jun 29, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
European Patent Office |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
France |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
United Kingdom |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
Italy |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
Sweden |
|
Jan 25, 2010 |
|
107013062 |
|
Issued |
|
Aug 17, 2016 |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
China |
|
Jul 2, 2010 |
|
2010800369694 |
|
Issued |
|
Nov 17, 2014 |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
Japan |
|
Jul 2, 2010 |
|
2012519611 |
|
Issued |
|
Oct 30, 2015 |
|
Accuray Incorporated |
|
Magnetron Powered of Interleaved Multi-energy LInac |
|
China |
|
Jan 28, 2011 |
|
2011800149735 |
|
Issued |
|
Sep 19, 2016 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
Germany |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
European Patent Office |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
France |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Magnetron Powered Linear Accelerator for Interleaved Multi-Energy Operation |
|
United Kingdom |
|
Jan 28, 2011 |
|
117021220 |
|
Issued |
|
May 17, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
Germany |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
European Patent Office |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
European Patent Office |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
Germany |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
France |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
United Kingdom |
|
Feb 23, 2011 |
|
131645608 |
|
Issued |
|
Sep 9, 2015 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
France |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
United Kingdom |
|
Feb 23, 2011 |
|
117072827 |
|
Issued |
|
Mar 22, 2017 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
China |
|
Oct 28, 2011 |
|
2011800570349 |
|
Issued |
|
Jan 17, 2017 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Germany |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
European Patent Office |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
France |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
United Kingdom |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Italy |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Japan |
|
Oct 28, 2011 |
|
2013536890 |
|
Issued |
|
May 13, 2016 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
Sweden |
|
Oct 28, 2011 |
|
117827121 |
|
Issued |
|
Dec 14, 2016 |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
China |
|
Jan 10, 2012 |
|
2012800109855 |
|
Issued |
|
Apr 11, 2016 |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM WITH RING GANTRY |
|
Japan |
|
Jan 10, 2012 |
|
2013550494 |
|
Issued |
|
Mar 8, 2017 |
|
Accuray Incorporated |
|
Automatic callibration for device with controlled motion range |
|
Japan |
|
Feb 6, 2012 |
|
2013553479 |
|
Issued |
|
Nov 18, 2016 |
|
Accuray Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
Germany |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
European Patent Office |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
France |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
United Kingdom |
|
Mar 11, 2002 |
|
027233907 |
|
Issued |
|
Nov 7, 2007 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
Japan |
|
Mar 11, 2002 |
|
2002572101 |
|
Issued |
|
Mar 6, 2009 |
|
TomoTherapy Incorporated |
|
METHOD FOR MODIFICATION OF RADIOTHERAPY TREATMENT DELIVERY |
|
Japan |
|
Sep 6, 2004 |
|
2003574268 |
|
Issued |
|
Feb 18, 2011 |
|
TomoTherapy Incorporated |
|
TOMOTHERAPY STEREOTACTIC UPPER BODY FIXATION AND POSITIONING DEVICE |
|
Japan |
|
Jan 23, 2006 |
|
2006522801 |
|
Issued |
|
Jul 30, 2010 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING TARGET |
|
Germany |
|
Jul 21, 2006 |
|
080062342 |
|
Issued |
|
May 4, 2011 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING TARGET |
|
France |
|
Jul 21, 2006 |
|
080062342 |
|
Issued |
|
May 4, 2011 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING TARGET |
|
United Kingdom |
|
Jul 21, 2006 |
|
080062342 |
|
Issued |
|
May 4, 2011 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
Germany |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
France |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
United Kingdom |
|
Jul 21, 2006 |
|
067882217 |
|
Issued |
|
Jan 25, 2017 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
Japan |
|
Jan 22, 2008 |
|
2008523014 |
|
Issued |
|
Oct 18, 2013 |
|
TomoTherapy Incorporated |
|
EVALUATION OF QUALITY ASSURANCE CRITERIA IN DELIVERY OF A TREATMENT PLAN |
|
China |
|
Jul 21, 2006 |
|
2006800345975 |
|
Issued |
|
Jul 18, 2012 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
Germany |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
European Patent Office |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
France |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
United Kingdom |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
Italy |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP |
|
Sweden |
|
Jul 21, 2006 |
|
067882233 |
|
Issued |
|
Jun 24, 2015 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
Germany |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
France |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
United Kingdom |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
Netherlands |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
GENERATING NEW CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
Sweden |
|
Jul 21, 2006 |
|
068002351 |
|
Issued |
|
Jun 8, 2011 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DETECTING A BREATHING PHASE OF A PATIENT RECEIVING RADIATION THERAPY |
|
Japan |
|
Jan 22, 2008 |
|
2008522987 |
|
Issued |
|
Aug 10, 2012 |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
China |
|
Feb 19, 2014 |
|
2014800105675 |
|
Issued |
|
Sep 8, 2017 |
|
TomoTherapy Incorporated |
Trademarks US/OUS - Pending
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trademarks US/OUS - Registered
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OUS Issued Patent Matters
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US Issued Patent Matters
|
TITLE |
|
COUNTRY |
|
DATE FILED |
|
STATUS |
|
GRANT DATE |
|
PATENT |
|
OWNER |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY |
|
US |
|
May 13, 2005 |
|
Issued |
|
Apr 17, 2012 |
|
8160205 |
|
Accuray Incorporated |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY |
|
US |
|
Sep 12, 2012 |
|
Issued |
|
Jun 10, 2014 |
|
8745789 |
|
Accuray Incorporated |
|
FOUR-DIMENSIONAL VOLUME OF INTEREST |
|
US |
|
Jun 2, 2005 |
|
Issued |
|
Apr 1, 2008 |
|
7352370 |
|
Accuray Incorporated |
|
INVERSE PLANNING USING OPTIMIZATION CONSTRAINTS DERIVED FROM IMAGE INTENSITY |
|
US |
|
Jun 2, 2005 |
|
Issued |
|
Jul 15, 2008 |
|
7400755 |
|
Accuray Incorporated |
|
INVERSE PLANNING USING OPTIMIZATION CONSTRAINTS DERIVED FROM IMAGE INTENSITY |
|
US |
|
Jun 9, 2008 |
|
Issued |
|
May 4, 2010 |
|
7711169 |
|
Accuray Incorporated |
|
METHOD FOR AUTOMATIC ANATOMY-SPECIFIC TREATMENT PLANNING PROTOCOLS BASED ON HISTORICAL INTEGRATION OF PREVIOUSLY ACCEPTED PLANS |
|
US |
|
Jun 27, 2005 |
|
Issued |
|
Apr 22, 2008 |
|
7362848 |
|
Accuray Incorporated |
|
METHOD FOR AUTOMATIC ANATOMY-SPECIFIC TREATMENT PLANNING PROTOCOLS BASED ON HISTORICAL INTEGRATION OF PREVIOUSLY ACCEPTED PLANS |
|
US |
|
Feb 29, 2008 |
|
Issued |
|
Sep 22, 2009 |
|
7593505 |
|
Accuray Incorporated |
|
PATIENT TRACKING USING A VIRTUAL IMAGE |
|
US |
|
Aug 11, 2005 |
|
Issued |
|
Mar 26, 2013 |
|
8406851 |
|
Accuray Incorporated |
|
MULTI-PHASE REGISTRATION OF 2-D X-RAY IMAGES TO 3-D VOLUME STUDIES |
|
US |
|
Nov 16, 2005 |
|
Issued |
|
Nov 16, 2010 |
|
7835500 |
|
Accuray Incorporated |
|
RIGID BODY TRACKING FOR RADIOSURGERY |
|
US |
|
Nov 16, 2005 |
|
Issued |
|
Mar 23, 2010 |
|
7684647 |
|
Accuray Incorporated |
|
PRECISION REGISTRATION OF X-RAY IMAGES TO CONE-BEAM CT SCAN |
|
US |
|
Jun 29, 2005 |
|
Issued |
|
Nov 9, 2010 |
|
7831073 |
|
Accuray Incorporated |
|
PRECISION REGISTRATION OF X-RAY IMAGES TO CONE-BEAM CT SCAN |
|
US |
|
Oct 7, 2010 |
|
Issued |
|
Nov 6, 2012 |
|
8306297 |
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF SOFT TISSUE TARGETS WITH ULTRA-SOUND IMAGES, WITHOUT USING FIDUCIAL MARKERS |
|
US |
|
Jun 29, 2005 |
|
Issued |
|
May 11, 2010 |
|
7713205 |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY FOR THERAPEUTIC RADIATION SYSTEM |
|
US |
|
Oct 17, 2003 |
|
Issued |
|
Dec 26, 2006 |
|
7154991 |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Dec 28, 2010 |
|
7860550 |
|
Accuray Incorporated |
|
|
|
US |
|
Jun 3, 2010 |
|
Issued |
|
Jun 4, 2013 |
|
8457279 |
|
Accuray Incorporated |
|
UNIFIED QUALITY ASSURANCE FOR A RADIATION TREATMENT DELIVERY SERVICE |
|
US |
|
Nov 14, 2005 |
|
Issued |
|
Feb 2, 2010 |
|
7656998 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY |
|
US |
|
Jun 29, 2005 |
|
Issued |
|
Nov 27, 2007 |
|
7302033 |
|
Accuray Incorporated |
|
IMAGING GEOMETRY |
|
US |
|
Oct 9, 2007 |
|
Issued |
|
Jan 13, 2009 |
|
7477722 |
|
Accuray Incorporated |
|
AUTOMATIC GENERATION OF AN ENVELOPE OF CONSTRAINT POINTS FOR INVERSE PLANNING |
|
US |
|
Sep 6, 2005 |
|
Issued |
|
Sep 21, 2010 |
|
7801349 |
|
Accuray Incorporated |
|
DRR GENERATION AND ENHANCEMENT USING A DEDICATED GRAPHICS DEVICE |
|
US |
|
Jun 23, 2005 |
|
Issued |
|
Feb 12, 2008 |
|
7330578 |
|
Accuray Incorporated |
|
ADAPTIVE X-RAY CONTROL |
|
US |
|
Oct 13, 2008 |
|
Issued |
|
Jul 9, 2013 |
|
8483358 |
|
Accuray Incorporated |
|
ADAPTIVE X-RAY CONTROL |
|
US |
|
Feb 28, 2012 |
|
Issued |
|
Apr 8, 2014 |
|
8693632 |
|
Accuray Incorporated |
|
WIZARD AND TEMPLATE FOR TREATMENT PALNNING |
|
US |
|
Sep 30, 2005 |
|
Issued |
|
Nov 3, 2009 |
|
7611452 |
|
Accuray Incorporated |
|
WORKSPACE OPTIMIZATION FOR RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
Sep 28, 2005 |
|
Issued |
|
Sep 4, 2007 |
|
7266176 |
|
Accuray Incorporated |
|
TREATMENT TARGET POSITIONING SYSTEM |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Jan 23, 2007 |
|
7166852 |
|
Accuray Incorporated |
|
ROI SELECTION IN IMAGE REGISTRATION |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Jun 12, 2007 |
|
7231076 |
|
Accuray Incorporated |
|
RADIOSURGERY X-RAY SYSTEM WITH COLLISON AVOIDANCE SUBSYSTEM |
|
US |
|
Mar 31, 2004 |
|
Issued |
|
May 16, 2006 |
|
7046765 |
|
Accuray Incorporated |
|
RADIOSURGERY X-RAY SYSTEM WITH COLLISON AVOIDANCE SUBSYSTEM |
|
US |
|
Jan 23, 2006 |
|
Issued |
|
Sep 5, 2006 |
|
7103145 |
|
Accuray Incorporated |
|
RADIOSURGERY X-RAY SYSTEM WITH COLLISON AVOIDANCE SUBSYSTEM |
|
US |
|
Jan 23, 2006 |
|
Issued |
|
Sep 5, 2006 |
|
7103144 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR REGISTERING 2D RADIOGRAPHIC IMAGES WITH IMAGES RECONSTRUCTED FROM 3D SCAN DATA |
|
US |
|
Aug 29, 2003 |
|
Issued |
|
Apr 17, 2007 |
|
7204640 |
|
Accuray Incorporated |
|
DIRECT VOLUME RENDERING OF 4D DEFORMABLE VOLUME IMAGES |
|
US |
|
Mar 31, 2005 |
|
Issued |
|
Mar 17, 2009 |
|
7505037 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT |
|
US |
|
Mar 16, 1999 |
|
Issued |
|
Nov 7, 2000 |
|
6144875 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Sep 15, 2000 |
|
Issued |
|
Aug 17, 2004 |
|
6778850 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY ANND PATIENT MOTIONS DURING TREATMENT |
|
US |
|
Sep 8, 2000 |
|
Issued |
|
Dec 31, 2002 |
|
6501981 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR COMPENSATING FOR RESPIRATORY AND PATIENT MOTION DURING TREATMENT |
|
US |
|
Oct 18, 2002 |
|
Issued |
|
Jan 15, 2008 |
|
7318805 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Jan 20, 2009 |
|
Issued |
|
Dec 27, 2011 |
|
8086299 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Nov 29, 2011 |
|
Issued |
|
Jan 21, 2014 |
|
8634898 |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Dec 18, 2013 |
|
Issued |
|
Feb 21, 2017 |
|
9572997 |
|
Accuray Incorporated |
|
TREATMENT PLANNING SOFTWARE AND CORRESPONDING USER INTERFACE |
|
US |
|
Sep 30, 2005 |
|
Issued |
|
Dec 13, 2011 |
|
8077936 |
|
Accuray Incorporated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INTEGRATED QUALITY ASSURANCE FOR AN IMAGE GUIDED RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
|
|
Issued |
|
|
|
|
|
Accuray Incorporated |
|
INTEGRATED QUALITY ASSURANCE FOR AN IMAGE GUIDED RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
Feb 14, 2008 |
|
Issued |
|
Oct 20, 2009 |
|
7604405 |
|
Accuray Incorporated |
|
TREATMENT DELIVERY OPTIMIZATION |
|
US |
|
Jun 29, 2006 |
|
Issued |
|
Apr 6, 2010 |
|
7693257 |
|
Accuray Incorporated |
|
ANCHORED FIDUCIAL APPARATUS AND METHOD |
|
US |
|
Dec 20, 2001 |
|
Issued |
|
Oct 9, 2007 |
|
7280865 |
|
Accuray Incorporated |
|
METHOD AND APPARATUUS FOR TRACKING AN INTERNAL TARGET REGION WITHOUT AN IMPLANTED FIDUCIAL |
|
US |
|
Nov 12, 2002 |
|
Issued |
|
Aug 21, 2007 |
|
7260426 |
|
Accuray Incorporated |
|
FIDUCIAL-LESS TRACKING WITH NON-RIGID IMAGE REGISTRATION |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Feb 5, 2008 |
|
7327865 |
|
Accuray Incorporated |
|
FIDUCIAL -LESS TRACKING WITH NON- |
|
US |
|
Dec 5, 2007 |
|
Issued |
|
Mar 17, 2009 |
|
7505617 |
|
Accuray Incorporated |
|
RIGID IMAGE REGISTRATION |
|
|
|
|
|
|
|
|
|
|
|
|
|
FLEXIBLE TREATMENT PLANNING |
|
US |
|
Sep 29, 2005 |
|
Issued |
|
Nov 20, 2007 |
|
7298819 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR RADIOSURGERY |
|
US |
|
Dec 22, 2003 |
|
Issued |
|
Jan 30, 2007 |
|
7171257 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR RADIOSURGERY |
|
US |
|
Dec 12, 2006 |
|
Issued |
|
Dec 14, 2010 |
|
7853313 |
|
Accuray Incorporated |
|
|
|
|
|
|
|
|
|
|
|
|
|
Accuray |
|
APPARATUS AND METHOD FOR DETERMINING MEASURE OF SIMILARITY BETWEEN IMAGES |
|
US |
|
Jan 16, 2007 |
|
Issued |
|
Jan 20, 2009 |
|
7480399 |
|
Accuray Incorporated |
|
IMAGE GUIDED RADIOSURGERY METHOD AND APPARATUS USING REGISTRATION OF 2D RADIOGRAPHIC IMAGES WITH DIGITALLY RECONSTRUCTED RADIOGRAPHS OF 3D SCAN DATA |
|
US |
|
Aug 29, 2003 |
|
Issued |
|
Jul 13, 2010 |
|
7756567 |
|
Accuray Incorporated |
|
IMAGE GUIDED RADIOSURGERY METHOD AND APPARATUS USING REGISTRATION OF 2D RADIOGRAPHIC IMAGES WITH DIGITALLY RECONSTRUCTED |
|
US |
|
Jun 3, 2010 |
|
Issued |
|
Oct 2, 2012 |
|
8280491 |
|
Accuray Incorporated |
|
RADIOGRAPHS OF 3D SCAN DATA |
|
|
|
|
|
|
|
|
|
|
|
|
|
GENERATION OF RECONSTRUCTED IMAGES |
|
US |
|
Mar 31, 2004 |
|
Issued |
|
Jan 1, 2008 |
|
7315636 |
|
Accuray Incorporated |
|
MOTION FIELD GENERATION FOR NON-RIGID IMAGE REGISTRATION |
|
US |
|
Jun 30, 2004 |
|
Issued |
|
Sep 16, 2008 |
|
7426318 |
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF MOVING TARGETS |
|
US |
|
Sep 30, 2004 |
|
Issued |
|
Mar 24, 2015 |
|
8989349 |
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF MOVING TARGETS |
|
US |
|
|
|
Issued |
|
Oct |
|
|
|
Accuray Incorporated |
|
DYNAMIC TRACKING OF MOVING TARGETS |
|
US |
|
Aug 7, 2007 |
|
Issued |
|
Oct 28, 2014 |
|
8874187 |
|
Accuray Incorporated |
|
IMAGE ENHANCEMENT METHOD AND SYSTEM FOR FIDUCIAL-LESS TRACKING OF TREATMENT TARGETS |
|
US |
|
Dec 15, 2008 |
|
Issued |
|
Nov 23, 2010 |
|
7840093 |
|
Accuray Incorporated |
|
NON-LINEAR CORRELATION MODELS FOR INTERNAL TARGET MOVEMENT |
|
US |
|
Sep 29, 2005 |
|
Issued |
|
Sep 27, 2011 |
|
8027715 |
|
Accuray Incorporated |
|
RESPIRATION PHANTOM FOR QUALITY ASSURANCE |
|
US |
|
Dec 1, 2005 |
|
Issued |
|
Jul 22, 2008 |
|
7402819 |
|
Accuray Incorporated |
|
PARALLEL STEROVISION GEOMETRY IN IMAGE-GUIDED RADIOSURGERY |
|
US |
|
Jun 28, 2006 |
|
Issued |
|
Nov 17, 2009 |
|
7620144 |
|
Accuray Incorporated |
|
CORRELATION MODEL SELECTION FOR INTERNAL TARGET MOVEMENT |
|
US |
|
Sep 29, 2005 |
|
Issued |
|
May 15, 2012 |
|
8180432 |
|
Accuray Incorporated |
|
METHOD AND APPARATUS FOR PATIENT LOADING AND UNLOADING |
|
US |
|
Jan 24, 2006 |
|
Issued |
|
Jun 30, 2009 |
|
7552490 |
|
Accuray Incorporated |
|
METHOD AND APPARATUS FOR PATIENT LOADING AND UNLOADING |
|
US |
|
May 28, 2009 |
|
Issued |
|
Mar 26, 2013 |
|
8402581 |
|
Accuray Incorporated |
|
DELINEATION ON THREE-DIMENSIONAL MEDICAL IMAGE |
|
US |
|
Mar 30, 2006 |
|
Issued |
|
Mar 15, 2011 |
|
7907772 |
|
Accuray Incorporated |
|
ENERGY MONITORING, OPTIMAL DOSE RATE X-RAY TARGET |
|
US |
|
Apr 25, 2006 |
|
Issued |
|
Jun 24, 2008 |
|
7391849 |
|
Accuray Incorporated |
|
AUTOMATICALLY DETERMINING A BEAM PARAMETER FOR RADIATION TREATMENT PLANNING |
|
US |
|
Mar 30, 2007 |
|
Issued |
|
Sep 15, 2009 |
|
7590219 |
|
Accuray Incorporated |
|
DETERMINING A TARGET-TO-SURFACE DISTANCE AND USING IT FOR REAL TIME ABSORBED DOSE CALCULATION AND COMPENSATION |
|
US |
|
Aug 25, 2006 |
|
Issued |
|
Mar 17, 2009 |
|
7505559 |
|
Accuray Incorporated |
|
TEMPORAL SMOOTHING OF A DEFORMATION FIELD |
|
US |
|
Dec 13, 2006 |
|
Issued |
|
Nov 24, 2009 |
|
7623679 |
|
Accuray Incorporated |
|
CALIBRATING TRACKING SYSTEMS TO REMOVE POSITION-DEPENDENT BIAS |
|
US |
|
Feb |
|
Issued |
|
Apr 9, 2013 |
|
8417318 |
|
Accuray Incorporated |
|
FIDUCIAL-LESS TRACKING OF A VOLUME OF INTEREST |
|
US |
|
Nov 3, 2006 |
|
Issued |
|
Sep 9, 2014 |
|
8831706 |
|
Accuray Incorporated |
|
COLLIMATOR CHANGER |
|
US |
|
Nov 3, 2006 |
|
Issued |
|
Sep 2, 2014 |
|
8822934 |
|
Accuray Incorporated |
|
TARGET TRACKING USING DIRECT TARGET REGISTRATION |
|
US |
|
Jan 20, 2011 |
|
Issued |
|
Jan 3, 2012 |
|
8090175 |
|
Accuray Incorporated |
|
INTEGRATED VARIABLE-APERTURE COLLIMATOR AND FIXED-APERTURE COLLIMATOR |
|
US |
|
Jun 29, 2007 |
|
Issued |
|
Jan 10, 2012 |
|
8093572 |
|
Accuray Incorporated |
|
PHANTOM INSERT FOR QUALITY ASSURANCE |
|
US |
|
Mar 29, 2007 |
|
Issued |
|
Sep 29, 2009 |
|
7594753 |
|
Accuray Incorporated |
|
“NON-COLLOCATED IMAGING AND TREATMENT IN IMAGE-GUIDED RADIATION TREATMENT SYSTEMS”. |
|
US |
|
Jun 29, 2007 |
|
Issued |
|
Nov 24, 2009 |
|
7623623 |
|
Accuray Incorporated |
|
APPARATUS AND METHOD FOR DETERMINING AN OPTIMIZED PATH TRAVERSAL FOR RADIATION TREATMENT DELIVERY SYSTEM |
|
US |
|
Mar 30, 2007 |
|
Issued |
|
Sep 11, 2012 |
|
8262554 |
|
Accuray Incorporated |
|
ROBOTIC ARM FOR A RADIATION TREATMENT SYSTEM |
|
US |
|
Jun 29, 2007 |
|
Issued |
|
Feb 18, 2014 |
|
8655429 |
|
Accuray Incorporated |
|
A NON-INVASIVE METHOD FOR USING 2D ANGIOGRAPHIC IMAGES FOR RADIOSURGICAL TARGET DEFINITION |
|
US |
|
Jun 30, 2007 |
|
Issued |
|
Aug 30, 2016 |
|
9427201 |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
US |
|
Aug 27, 2008 |
|
Issued |
|
Dec 27, 2011 |
|
8086004 |
|
Accuray Incorporated |
|
LOWER-TORSO ASSEMBLY OF A TREATMENT COUCH USEABLE IN AN X-RAY ENVIRONMENT |
|
US |
|
Jun 27, 2007 |
|
Issued |
|
Jun 22, 2010 |
|
7742562 |
|
Accuray Incorporated |
|
HIGH QUALITY VOLUME RENDERING WITH GPU USING FLOATING-POINT FRAME BUFFER OBJECT |
|
US |
|
Jun 25, 2007 |
|
Issued |
|
Feb 15, 2011 |
|
7889902 |
|
Accuray Incorporated |
|
CARDIAC TARGET TRACKING |
|
US |
|
Jan 15, 2009 |
|
Issued |
|
Oct 23, 2012 |
|
8295435 |
|
Accuray Incorporated |
|
CONSTRAINED-CURVE CORRELATION MODEL |
|
US |
|
Jan 10, 2008 |
|
Issued |
|
Nov 22, 2011 |
|
8064642 |
|
Accuray Incorporated |
|
Automatic correlation modeling of an internal target |
|
US |
|
Oct 26, 2007 |
|
Issued |
|
Feb 2, 2016 |
|
9248312 |
|
Accuray Incorporated |
|
TARGET TRACKING USING SURFACE SCANNER AND FOUR-DIMENSIONAL DIAGNOSTIC IMAGING DATA |
|
US |
|
Jan 7, 2008 |
|
Issued |
|
May 18, 2010 |
|
7720196 |
|
Accuray Incorporated |
|
TARGET LOCATION BY TRACKING OF IMAGING DEVICE |
|
US |
|
Oct 11, 2011 |
|
Issued |
|
Mar 22, 2016 |
|
9289268 |
|
Accuray Incorporated |
|
SUBTRACTION OF SEGMENTED ANATOMICAL FEATURE FROM AN ACQUIRED IMAGE |
|
US |
|
Sep 30, 2008 |
|
Issued |
|
Jun 4, 2013 |
|
8457372 |
|
Accuray Incorporated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SEVEN OR MORE DEGREES OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
US |
|
|
|
Issued |
|
|
|
|
|
Accuray Incorporated |
|
SEVEN OR MORE DEGREES OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
US |
|
Feb 27, 2012 |
|
Issued |
|
Jun 24, 2014 |
|
8761337 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
US |
|
Oct 16, 2009 |
|
Issued |
|
Jul 31, 2012 |
|
8232748 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC ACCELERATOR COMPRISING FREQUENCY CONTROLLER FOR INTERLEAVED MULTIPLE-ENERGY OPERATION |
|
US |
|
Jul 17, 2012 |
|
Issued |
|
Feb 26, 2013 |
|
8384314 |
|
Accuray Incorporated |
|
Controlling Timing for X-ray Imaging Based on Target Movement |
|
US |
|
Sep 11, 2009 |
|
Issued |
|
Mar 6, 2012 |
|
8130907 |
|
Accuray Incorporated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US |
|
|
|
Issued |
|
|
|
|
|
Accuray Incorporated |
|
for X-ray Imaging Based on Target Movement |
|
|
|
|
|
|
|
|
|
|
|
|
|
SEQUENTIAL OPTIMIZATIONS FOR TREATMENT PLANNING |
|
US |
|
|
|
Issued |
|
|
|
|
|
Accuray Incorporated |
|
SEQUENTIAL OPTIMIZATIONS FOR TREATMENT PLANNING |
|
US |
|
Apr 13, 2012 |
|
Issued |
|
Jun 2, 2015 |
|
9044602 |
|
Accuray Incorporated |
|
Treatment Planning in a Virtual Environment |
|
US |
|
Apr 15, 2010 |
|
Issued |
|
Aug 26, 2014 |
|
8819591 |
|
Accuray Incorporated |
|
A method of interleaving multi x-ray energy operation for the standing wave linear accelerator |
|
US |
|
Mar 5, 2010 |
|
Issued |
|
Oct 9, 2012 |
|
8284898 |
|
Accuray Incorporated |
|
A method of interleaving multi x-ray energy operation for the standing wave linear accelerator |
|
US |
|
Sep 11, 2012 |
|
Issued |
|
May 12, 2015 |
|
9031200 |
|
Accuray Incorporated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
US |
|
|
|
Issued |
|
|
|
|
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
US |
|
Jun 18, 2012 |
|
Issued |
|
Jul 22, 2014 |
|
8786217 |
|
Accuray Incorporated |
|
Magnetron Powered of Interleaved Multi-energy LInac |
|
US |
|
Jan 29, 2010 |
|
Issued |
|
Nov 13, 2012 |
|
8311187 |
|
Accuray Incorporated |
|
Magnetron Powered of Interleaved Multi-Energy LInac |
|
US |
|
Nov 12, 2012 |
|
Issued |
|
Aug 23, 2016 |
|
9426876 |
|
Accuray Incorporated |
|
IMAGE ALIGNMENT |
|
US |
|
Sep 17, 2010 |
|
Issued |
|
Nov 20, 2012 |
|
8315356 |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Feb 23, 2011 |
|
Issued |
|
Dec 23, 2014 |
|
8917813 |
|
Accuray Incorporated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
|
|
Issued |
|
|
|
|
|
Accuray Incorporated |
|
Rotatable Gantry Radiation Treatment System |
|
US |
|
Jun 28, 2016 |
|
Issued |
|
Jul 11, 2017 |
|
9700740 |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Feb 23, 2011 |
|
Issued |
|
Jan 13, 2015 |
|
8934605 |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Nov 19, 2014 |
|
Issued |
|
May 3, 2016 |
|
9327141 |
|
Accuray Incorporated |
|
Medical imaging and image-guided radiation treatment |
|
US |
|
Jun 11, 2011 |
|
Issued |
|
Oct 15, 2013 |
|
8559596 |
|
Accuray Incorporated |
|
Medical imaging and image-guided radiation treatment |
|
US |
|
Jun 8, 2011 |
|
Issued |
|
Aug 12, 2014 |
|
8804901 |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System with Outwardly Movable Radiation Treatment Head Extending from Ring Gantry |
|
US |
|
Aug 8, 2011 |
|
Issued |
|
Mar 24, 2015 |
|
8989846 |
|
Accuray Incorporated |
|
Systems and methods for real-time tumor tracking during radiation treatment using ultrasound imaging |
|
US |
|
Aug 5, 2011 |
|
Issued |
|
Aug 18, 2015 |
|
9108048 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE USING CURRENT TO MODULATE PULSE-TO-PULSE DOSAGE |
|
US |
|
Dec 22, 2010 |
|
Issued |
|
Oct 20, 2015 |
|
9167681 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE USING CURRENT TO MODULATE PULSE-TO-PULSE DOSAGE |
|
US |
|
May 16, 2012 |
|
Issued |
|
Sep 16, 2014 |
|
8836250 |
|
Accuray Incorporated |
|
TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE USING PULSE WIDTH TO MODULATE PULSE-TO-PULSE DOSAGE |
|
US |
|
Dec 22, 2010 |
|
Issued |
|
Feb 9, 2016 |
|
9258876 |
|
Accuray Incorporated |
|
SYSTEMS AND METHODS FOR CARGO SCANNING AND RADIOTHERAPY USING A TRAVELING WAVE LINEAR ACCELERATOR BASED X-RAY SOURCE |
|
US |
|
May 16, 2012 |
|
Issued |
|
Jan 27, 2015 |
|
8942351 |
|
Accuray Incorporated |
|
METHOD AND APPARATUS FOR SELECTING A TRACKING METHOD TO USE IN IMAGE GUIDED TREATMENT |
|
US |
|
Oct 25, 2011 |
|
Issued |
|
Sep 30, 2014 |
|
8849633 |
|
Accuray Incorporated |
|
Method and apparatus for treating a target’s partial motion range |
|
US |
|
Oct 25, 2011 |
|
Issued |
|
Sep 2, 2014 |
|
8824630 |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System With Translatable Ring Gantry |
|
US |
|
Apr 15, 2011 |
|
Issued |
|
Jun 27, 2017 |
|
9687200 |
|
Accuray Incorporated |
|
Automatic Calibration for Device with Controlled Motion Range |
|
US |
|
Jul 15, 2011 |
|
Issued |
|
Aug 2, 2016 |
|
9406411 |
|
Accuray Incorporated |
|
APPARATUS FOR GENERATING MULTI-ENERGY X-RAY IMAGES AND METHODS OF USING THE SAME |
|
US |
|
Jun 28, 2012 |
|
Issued |
|
Aug 16, 2016 |
|
9415240 |
|
Accuray Incorporated |
|
IMAGE REGISTRATION FOR IMAGE-GUIDED SURGERY |
|
US |
|
Jul 14, 2011 |
|
Issued |
|
Aug 26, 2014 |
|
8818105 |
|
Accuray Incorporated |
|
Systems and methods for achromatically bending a beam of charged particles by about ninety degree during radiation treatment |
|
US |
|
Jul 15, 2011 |
|
Issued |
|
Mar 26, 2013 |
|
8405044 |
|
Accuray Incorporated |
|
Ring Gantry Radiation Treatment Delivery System With Dynamically Controllable Inward Extension Of Treatment Head |
|
US |
|
Apr 15, 2011 |
|
Issued |
|
Sep 17, 2013 |
|
8536547 |
|
Accuray Incorporated |
|
SYSTEMS AND METHODS FOR GENERATING X-RAYS AND NEUTRONS |
|
US |
|
May 8, 2012 |
|
Issued |
|
Sep 24, 2013 |
|
8541756 |
|
Accuray Incorporated |
|
AMBIENT LIGHT SUPPRESSION USING COLOR SPACE INFORMATION TO DERIVE PIXEL-WISE ATTENUATION FACTORS |
|
US |
|
Dec 17, 2015 |
|
Issued |
|
Sep 26, 2017 |
|
9774838 |
|
Accuray Incorporated |
|
SYSTEM AND METHOD FOR FUSION-ALIGNED REPROJECTION OF INCOMPLETE DATA |
|
US |
|
Mar 9, 2001 |
|
Issued |
|
May 16, 2006 |
|
7046831 |
|
TomoTherapy Incorporated |
|
FLUENCE ADJUSTMENT FOR IMPROVED DELIVERY TO VOXELS WITHOUT REOPTIMIZATION |
|
US |
|
Mar 9, 2001 |
|
Issued |
|
Dec 9, 2003 |
|
6661870 |
|
TomoTherapy Incorporated |
|
METHOD FOR RECONSTRUCTION OF LIMITED DATA IMAGES USING FUSION-ALIGNED REPROJECTION AND NORMAL-ERROR-ALIGNED REPROJECTION |
|
US |
|
Jun 11, 2002 |
|
Issued |
|
Jul 5, 2005 |
|
6915005 |
|
TomoTherapy Incorporated |
|
METHOD FOR MODIFICATION OF RADIOTHERAPY TREATMENT DELIVERY |
|
US |
|
May 16, 2005 |
|
Issued |
|
Mar 26, 2013 |
|
8406844 |
|
TomoTherapy Incorporated |
|
METHOD AND APPARATUS FOR MODULATING A RADIATION BEAM |
|
US |
|
Feb 24, 2006 |
|
Issued |
|
Jun 7, 2011 |
|
7957507 |
|
|
|
SYSTEM AND METHOD OF DELIVERING RADIATION THERAPY TO A MOVING REGION OF INTEREST |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jul 1, 2014 |
|
8767917 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF TREATING A PATIENT WITH RADIATION THERAPY |
|
US |
|
May 10, 2006 |
|
Issued |
|
Jul 31, 2012 |
|
8232535 |
|
TomoTherapy Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY AND COUCH |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Aug 15, 2017 |
|
9731148 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR EVALUATING QUALITY ASSURANCE CRITERIA IN DELIVERY OF A TREATMENT PLAN |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Aug 10, 2010 |
|
7773788 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR EVALUATING QUALITY ASSURANCE CRITERIA IN DELIVERY OF A TREATMENT PLAN |
|
US |
|
Aug 10, 2010 |
|
Issued |
|
May 14, 2013 |
|
8442287 |
|
TomoTherapy Incorporated |
|
METHOD OF AND SYSTEM FOR PREDICTING DOSE DELIVERY |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Dec 29, 2009 |
|
7639853 |
|
TomoTherapy Incorporated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
METHOD OF PLACING CONSTRAINTS ON A DEFORMATION MAP AND SYSTEM FOR IMPLEMENTING SAME |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jul 28, 2009 |
|
7567694 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF GENERATING CONTOUR STRUCTURES USING A DOSE VOLUME HISTOGRAM |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Oct 27, 2009 |
|
7609809 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR EVALUATING DELIVERED DOSE |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jan 5, 2010 |
|
7643661 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR ADAPTING A RADIATION THERAPY TREATMENT PLAN BASED ON A BIOLOGICAL MODEL |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Aug 11, 2009 |
|
7574251 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR PROCESSING DATA RELATING TO A RADIATION THERAPY TREATMENT PLAN |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Dec 29, 2009 |
|
7639854 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF DETECTING A BREATHING PHASE OF A PATIENT RECEIVING RADIATION THERAPY |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Jul 24, 2012 |
|
8229068 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF EVALUATING DOSE DELIVERED BY A RADIATION THERAPY SYSTEM |
|
US |
|
Jul 21, 2006 |
|
Issued |
|
Nov 23, 2010 |
|
7839972 |
|
TomoTherapy Incorporated |
|
METHOD AND APPARATUS FOR CALIBRATING A RADIATION THERAPY TREATMENT SYSTEM |
|
US |
|
Jul 27, 2007 |
|
Issued |
|
Sep 21, 2010 |
|
7801269 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE |
|
US |
|
Sep 4, 2008 |
|
Issued |
|
Feb 28, 2012 |
|
8122542 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE AND METHOD OF OPERATION |
|
US |
|
Sep 4, 2008 |
|
Issued |
|
Aug 31, 2010 |
|
7784127 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE AND METHOD OF OPERATION |
|
US |
|
Aug 31, 2010 |
|
Issued |
|
Apr 24, 2012 |
|
8161585 |
|
TomoTherapy Incorporated |
|
METHOD FOR ADAPTING FRACTIONATION OF A RADIATION THERAPY DOSE |
|
US |
|
Oct 27, 2008 |
|
Issued |
|
Jul 17, 2012 |
|
8222616 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR MOTION ADAPTIVE OPTIMIZATION FOR RADIATION THERAPY DELIVERY |
|
US |
|
Oct 27, 2008 |
|
Issued |
|
Aug 13, 2013 |
|
8509383 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR MOTION ADAPTIVE OPTIMIZATION FOR RADIATION THERAPY DELIVERY |
|
US |
|
Mar 5, 2009 |
|
Issued |
|
Jun 18, 2013 |
|
8467497 |
|
TomoTherapy Incorporated |
|
METHOD AND SYSTEM FOR IMPROVED IMAGE SEGMENTATION |
|
US |
|
Mar 4, 2009 |
|
Issued |
|
Nov 5, 2013 |
|
8577115 |
|
TomoTherapy Incorporated |
|
TARGET PEDESTAL ASSEMBLY AND METHOD OF PRESERVING THE TARGET |
|
US |
|
Feb 11, 2009 |
|
Issued |
|
Nov 16, 2010 |
|
7835502 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF CONTOURING A TARGET AREA |
|
US |
|
Aug 28, 2009 |
|
Issued |
|
Aug 12, 2014 |
|
8803910 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF CALCULATING DOSE UNCERTAINTY |
|
US |
|
Aug 28, 2009 |
|
Issued |
|
Jan 19, 2013 |
|
8363784 |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD OF CALCULATING DOSE UNCERTAINTY |
|
US |
|
Jan 11, 2013 |
|
Issued |
|
Dec 16, 2014 |
|
8913716 |
|
TomoTherapy Incorporated |
|
PATIENT SUPPORT DEVICE WITH LOW ATTENTUATION PROPERTIES |
|
US |
|
Sep 29, 2010 |
|
Issued |
|
Jun 23, 2015 |
|
9061141 |
|
TomoTherapy Incorporated |
|
NON-VOXEL-BASED BROAD-BEAM (NVBB) ALGORITHM FOR INTENSITY MODULATED RADIATION THERAPY DOSE CALCULATION AND PLAN OPTIMIZATION |
|
US |
|
Oct 29, 2010 |
|
Issued |
|
Mar 19, 2013 |
|
8401148 |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
US |
|
Feb 19, 2014 |
|
Issued |
|
Sep 13, 2016 |
|
9443633 |
|
|
|
RADIATION TREATMENT PLANNING AND DELIVERY FOR MOVING TARGETS IN THE HEART |
|
US |
|
Mar 16, 2009 |
|
Issued |
|
May 31, 2011 |
|
7953204 |
|
Accuray Incorporated and Cyberheart, Inc. |
OUS Patent “Pending/Allowed” Matters
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US Patent “Pending/Allowed” Matters
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
OUS Patent “Pending/Allowed” Matters
|
TITLE |
|
COUNTRY |
|
DATE |
|
APPLICATION |
|
STATUS |
|
OWNER |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY - PCT |
|
European Patent Office |
|
May 9, 2006 |
|
067701599 |
|
Pending |
|
Accuray Incorporated |
|
SUPER PRECISION REGISTRATION OF X-RAY IMAGES TO CONE BEAM CT FOR IMAGE-GUIDED RADIOSURGERY - PCT |
|
European Patent Office |
|
Jun 27, 2006 |
|
067741652 |
|
Pending |
|
Accuray Incorporated |
|
PATIENT POSITIONING ASSEMBLY - EPO |
|
European Patent Office |
|
Apr 5, 2005 |
|
057337362 |
|
Allowed |
|
Accuray Incorporated |
|
TREATMENT DELIVERY OPTIMIZATION |
|
European Patent Office |
|
May 31, 2007 |
|
077773653 |
|
Pending |
|
Accuray Incorporated |
|
Dynamic Tracking of Moving Targets |
|
European Patent Office |
|
Aug 22, 2005 |
|
057915225 |
|
Allowed |
|
Accuray Incorporated |
|
TARGET TRACKING USING DIRECT TARGET REGISTRATION |
|
European Patent Office |
|
Oct 11, 2007 |
|
078527231 |
|
Pending |
|
Accuray Incorporated |
|
USE OF A SINGLE X-RAY IMAGE IN A STEREO IMAGING PAIR FOR QUALITY ASSURANCE OF TRACKING |
|
European Patent Office |
|
Dec 11, 2008 |
|
088706437 |
|
Published |
|
Accuray Incorporated |
|
SEVEN DEGREES OR MORE OF FREEDOM ROBOTIC MANIPULATOR HAVING AT LEAST ONE REDUNDANT JOINT |
|
European Patent Office |
|
Aug 12, 2009 |
|
098134182 |
|
Pending |
|
Accuray Incorporated |
|
TRAVELING WAVE LINAC FOR INTERLEAVED MULTIPLE ENERGY OPERATION |
|
Germany |
|
Jan 25, 2010 |
|
107013062 |
|
Pending |
|
Accuray Incorporated |
|
INTERLEAVING MULTI-ENERGY X-RAY ENERGY OPERATION OF A STANDING WAVE LINEAR ACCELERATOR USING ELECTRONIC SWITCHES |
|
European Patent Office |
|
Jul 2, 2010 |
|
107306813 |
|
Pending |
|
Accuray Incorporated |
|
Versatile High Stability Image Guided Radiation Treatment Delivery Systems and Related Treatment Delivery Methods |
|
European Patent Office |
|
Feb 23, 2011 |
|
171589864 |
|
Published |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
China |
|
Jan 10, 2012 |
|
2016102180173 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
China |
|
Jan 10, 2012 |
|
2016102174030 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
European Patent Office |
|
Jan 10, 2012 |
|
127009041 |
|
Allowed |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
European Patent Office |
|
Jan 10, 2012 |
|
171994544 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM WITH RING GANTRY |
|
Japan |
|
Jan 10, 2012 |
|
2016082013 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT DELIVERY SYSTEM |
|
Japan |
|
Jan 10, 2012 |
|
2016082014 |
|
Pending |
|
Accuray Incorporated |
|
IMAGE-BASED APERATURE VERIFICATION SYSTEM FOR MULTI-LEAF COLLIMATOR |
|
China |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
IMAGE-BASED APERATURE VERIFICATION SYSTEM FOR MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
China |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
European Patent Office |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
Japan |
|
Mar 21, 2016 |
|
|
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
China |
|
[*****] |
|
|
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
European Patent Office |
|
[*****] |
|
|
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
Japan |
|
[*****] |
|
|
|
Pending |
|
Accuray Incorporated |
|
MANIPULATION OF A RESPIRATORY MODEL VIA ADJUSTMENT OF PARAMETERS ASSOCIATED WITH MODEL IMAGES |
|
World Intellectual Property Organization |
|
Jan 18, 2017 |
|
PCTUS1713980 |
|
Pending |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
PRESENTING A SEQUENCE OF IMAGES ASSOCIATED WITH A MOTION MODEL |
|
World Intellectual Property Organization |
|
Jan 18, 2017 |
|
PCTUS1713981 |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
World Intellectual Property Organization |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
World Intellectual Property Organization |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
RADIATION THERAPY IMAGING AND DELIVERY UTILIZING COORDINATED MOTION OF GANTRY, COUCH AND MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Jul 21, 2006 |
|
171501059 |
|
Published |
|
TomoTherapy Incorporated |
|
SYSTEM AND METHOD FOR MOTION ADAPTIVE OPTIMIZATION FOR RADIATION THERAPY DELIVERY |
|
European Patent Office |
|
Oct 27, 2008 |
|
088418371 |
|
Published |
|
TomoTherapy Incorporated |
|
MULTI LEAF COLLIMATOR AND SYSTEM FOR COLLIMATING A THERAPEUTIC RADIATION BEAM |
|
China |
|
Feb 19, 2014 |
|
2017107010830 |
|
Pending |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
European Patent Office |
|
Feb 19, 2014 |
|
147575765 |
|
Pending |
|
TomoTherapy Incorporated |
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
Hong Kong, SAR China |
|
May 11, 2016 |
|
161053998 |
|
Pending |
|
TomoTherapy Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
ELECTROMAGNETICALLY ACTUATED MULTI-LEAF COLLIMATOR |
|
Japan |
|
Feb 19, 2014 |
|
2015558927 |
|
Published |
|
TomoTherapy Incorporated |
|
[*****] |
|
World Intellectual Property Organization |
|
[*****] |
|
[*****] |
|
Pending |
|
TomoTherapy Incorporated |
|
RADIATION TREATMENT PLANNING AND DELIVERY FOR MOVING TARGETS IN THE HEART |
|
World Intellectual Property Organization |
|
Mar 16, 2009 |
|
PCTUS2009037298 |
|
Pending |
|
Accuray Incorporated and Cyberheart, Inc. |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
US Patent “Pending/Allowed” Matters
|
TITLE |
|
COUNTRY |
|
DATE FILED |
|
APPLICATION |
|
STATUS |
|
Owner |
|
ROBOTIC ARM FOR PATIENT POSITIONING ASSEMBLY |
|
US |
|
Mar 9, 2012 |
|
13417003 |
|
Pending |
|
Accuray Incorporated |
|
FRAMELESS RADIOSURGERY TREATMENT SYSTEM AND METHOD |
|
US |
|
Jan 23, 2017 |
|
15412958 |
|
Pending |
|
Accuray Incorporated |
|
TREATMENT PLANNING SOFTWARE AND CORRESPONDING USER INTERFACE |
|
US |
|
Nov 8, 2011 |
|
13291830 |
|
Pending |
|
Accuray Incorporated |
|
RADIATION TREATMENT PLANNING USING FOUR-DIMENSIONAL IMAGING DATA |
|
US |
|
Sep 28, 2006 |
|
11540327 |
|
Published |
|
Accuray Incorporated |
|
A NON-INVASIVE METHOD FOR USING 2D ANGIOGRAPHIC IMAGES FOR RADIOSURGICAL TARGET DEFINITION |
|
US |
|
Jul 26, 2016 |
|
15219514 |
|
Pending |
|
Accuray Incorporated |
|
Automatic correlation modeling of an internal target |
|
US |
|
Jan 8, 2016 |
|
14991428 |
|
Published |
|
Accuray Incorporated |
|
Automatic correlation modeling of an internal target |
|
US |
|
Jan 8, 2016 |
|
14991759 |
|
Pending |
|
Accuray Incorporated |
|
FIDUCIAL LOCALIZATION |
|
US |
|
Jun 18, 2008 |
|
12214771 |
|
Allowed |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Mar 23, 2016 |
|
15078553 |
|
Pending |
|
Accuray Incorporated |
|
IMAGING METHODS FOR IMAGE-GUIDED RADIATION TREATMENT |
|
US |
|
Jul 29, 2014 |
|
14446136 |
|
Allowed |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System with Outwardly Movable Radiation Treatment Head Extending from Ring Gantry |
|
US |
|
Mar 19, 2015 |
|
14663075 |
|
Pending |
|
Accuray Incorporated |
|
TRACKING DURING RADIATION TREATMENT USING ULTRASOUND IMAGING |
|
US |
|
Jul 13, 2015 |
|
14798179 |
|
Pending |
|
Accuray Incorporated |
|
TUMOR TRACKING DURING RADIATION TREATMENT USING ULTRASOUND IMAGING |
|
US |
|
Jul 15, 2015 |
|
14800473 |
|
Pending |
|
Accuray Incorporated |
|
Radiation Treatment Delivery System With Translatable Ring Gantry |
|
US |
|
Jun 5, 2017 |
|
15614039 |
|
Published |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
APPARATUS FOR GENERATING MULTI-ENERGY X-RAY IMAGES AND METHODS OF USING THE SAME |
|
US |
|
Jul 12, 2016 |
|
15208049 |
|
Pending |
|
Accuray Incorporated |
|
Gantry Image Guided Radiotherapy System And Related Treatment Delivery Methods |
|
US |
|
Feb 23, 2011 |
|
13033584 |
|
Pending |
|
Accuray Incorporated |
|
IMAGE-BASED APERTURE VERIFICATION SYSTEM FOR MULTI-LEAF COLLIMATOR |
|
US |
|
Jan 27, 2016 |
|
15008232 |
|
Published |
|
Accuray Incorporated |
|
VERIFICATION OF LEAF POSITIONS FOR MULTI-LEAF COLLIMATOR USING MULTIPLE VERIFICATION SYSTEMS |
|
US |
|
Jan 27, 2016 |
|
15008239 |
|
Published |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
MANIPULATION OF A RESPIRATORY MODEL VIA ADJUSTMENT OF PARAMETERS ASSOCIATED WITH MODEL IMAGES |
|
US |
|
Jan 25, 2016 |
|
15005971 |
|
Published |
|
Accuray Incorporated |
|
PRESENTING A SEQUENCE OF IMAGES ASSOCIATED WITH A MOTION MODEL |
|
US |
|
Jan 25, 2016 |
|
15005985 |
|
Published |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
Accuray Incorporated |
|
[*****] |
|
US |
|
[*****] |
|
[*****] |
|
Pending |
|
TomoTherapy Incorporated |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 4.9
Litigation, Governmental Proceedings and Other Notice Events
· [*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 5.1
Debt; Contingent Obligations
· · Reimbursement obligations in respect of:
o · the Standby Letter of Credit issued to Hintex B.V., Netherlands for EUR 11,838 in November 2010; and
o · the Standby Letter of Credit issued to Pacific Gas and Electric Company, USA for $133,100 in November 2011.
· · [*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 5.2
Liens
· · Liens in connection with:
o · Certificate of Deposit #8046436708 held by Wells Fargo Bank, N.A., as collateral against the Standby Letter of Credit issued to Hintex B.V., Netherlands for EUR 11,838 in November 2010; and
o · Certificate of Deposit #6421121341 held by Wells Fargo Bank, N.A., as collateral against the Standby Letter of Credit issued to Pacific Gas and Electric Company, USA for $133,100 in November 2011.
Schedule 5.7
Permitted Investments
· · Investments:
|
Owner |
|
Description |
|
Current Units as |
|
Currency |
|
Security |
|
Securities |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
|
Accuray Incorporated |
|
[*****] |
|
[*****] |
|
USD |
|
[*****] |
|
Merill Lynch Wealth Management |
· · Intercompany Loans:
· Agreement, dated as of September 20, 2007, between TomoTherapy Incorporated, as creditor, and TomoTherapy Europe SARL, as Company, as amended. As of March 31, 2017, there was [*****] outstanding with respect to this loan.
·· Loan between Accuray Incorporated, as lender, and Accuray Medical Equipment (Russia) LLC, as debtor. As of March 31,September 30, 2017, there was [*****] outstanding with respect to this loan.
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
· · Equity in subsidiaries:
|
Owner |
|
Subsidiary |
|
Balance as of |
|
Accuray Incorporated |
|
Accuray International SARL |
|
[*****] |
|
Accuray Incorporated |
|
Accuray Brasil |
|
[*****] |
|
TomoTherapy Incorporated |
|
TomoTherapy Europe SARL |
|
[*****] |
|
TomoTherapy Incorporated |
|
Accuray Accelerator Technology Company Inc. |
|
[*****] |
· · Other Investments:
Accuray Incorporated owns [*****] Series A preferred[*****]shares of common stock inof [*****]. At November 30, 2017, these shares were valued at approximately $[*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 5.14
Deposit Accounts and Securities Accounts
|
Entity |
|
Bank |
|
Address |
|
Account # |
|
Description |
|
Currency |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Main Operating |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Payroll Account |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Lockbox Account |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Restricted cash |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Restricted cash |
|
USD |
|
TomoTherapy Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Main Operating |
|
USD |
|
TomoTherapy Incorporated |
|
Wells Fargo |
|
400 Hamilton Ave. Palo Alto, CA 94301 |
|
[*****] |
|
Lockbox Account |
|
USD |
|
Accuray Incorporated |
|
Merill Lynch Wealth Management |
|
2049 Century Park E, 11/12 FL; Century City, CA 90067 |
|
[*****] |
|
Short-term investments |
|
USD |
|
Accuray Incorporated |
|
Wells Fargo Securities |
|
45 Fremont St. |
|
[*****] |
|
Short term investments – no securities in the account as of date |
|
USD |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 7.4 — Post-Closing Requirements
Borrowers shall satisfy and complete each of the following obligations, or provide Agent each of the items listed below, as applicable, on or before the date indicated below, all to the satisfaction of Agent in its sole and absolute discretion:
1. Borrowers shall, within five (5) Business Days of the Closing Date, deliver to Agent such evidence as Agent may reasonably request that that certain Irrevocable Standby Letter of Credit Number: IS0497291U, issued by Wells Fargo Bank, N.A. on March 10, 2017 has been terminated and that the account or certificate of deposit which cash collateralized such letter of credit has been closed and all funds available in such account or certificate of deposit have been transferred to a deposit account subject to Deposit Account Control Agreement with Agent;
2. Borrowers shall within fourteen (14) days of the Closing Date, deliver to Agent additional insured, lender’s loss payable and notice of cancellation endorsements with respect to the insurance maintained by Borrowers, all in form and substance reasonably satisfactory to Agent;
3. Borrowers shall within thirty (30) days of the Closing Date, deliver to Agent, all in form and substance reasonably satisfactory to Agent:
(a) a Securities Account Control — Consent Agreement with Wells Fargo Securities, LLC, with respect to account no. [*****]; and
(b) a Pledged Collateral Account Control Agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated with respect to account no. [*****]; and
4. Borrowers shall within ninety (90) days of the Closing Date, deliver to Agent, in form and substance reasonably satisfactory to Agent, a Landlord’s Subordination of Lien with KR Chesapeake Commons, LLC with respect to the real property commonly known as 1310-1314 and 1320 Chesapeake Terrace, Sunnyvale, California.; and
5. Borrowers shall within thirty (30) days of the First Amendment Effective Date, deliver to Agent, in form and substance reasonably satisfactory to Agent, an Amended and Restated Securities Account Control — Consent Agreement with Wells Fargo Securities, LLC, with respect to account no. [*****].
Borrowers’ failure to complete and satisfy any of the above obligations on or before the date indicated above, or Borrowers’ failure to deliver any of the above listed items on or before the date indicated above, shall constitute an immediate an automatic Event of Default.
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
Schedule 9.1 — Collateral
The Collateral consists of all of Borrowers’ assets, including without limitation, all of Borrowers’ right, title and interest in and to the following, whether now owned or hereafter created, acquired or arising:
(a) all goods, Accounts (including health-care insurance receivables), equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, securities accounts, fixtures, letter of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located;
(b) all of Borrowers’ books and records relating to any of the foregoing; and
(c) any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding anything to the contrary of the foregoing, Collateral shall not include Excluded Property.
Schedule 9.2
Location of Collateral
|
Company |
|
Chief Executive Office |
|
Chief Place of Business |
|
Books and Records |
|
Accuray Incorporated |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
TomoTherapy Incorporated |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
1310 Chesapeake Terrace |
|
Street Address |
|
City |
|
State or |
|
Zip Code |
|
|
|
Nature of |
|
Name and |
|
Inventory |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
|
|
|
|
|
|
|
|
|
|
[*****] |
[*****]
|
Location |
|
Sum of |
|
Asset Location |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
|
|
Total |
|
[*****] |
|
|
[*****]
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
|
CIP Location |
|
Amount (USD) |
|
|
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
[*****] |
|
Total |
|
[*****] |
|
|
[*****] Asterisks indicate that confidential information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information.
AMENDED AND RESTATED RENEWAL EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Renewal Executive Employment Agreement (“Agreement”) is entered into and effective as of January 1, 2018 (“Effective Date”), by and between Accuray Incorporated, a Delaware corporation (the “Company”), and Joshua H. Levine (“Executive”).
RECITALS
A. The Company is in the business of developing, manufacturing and selling radiation oncology, including radio surgery and radiation therapy, technologies and devices (the “Business”).
B. The Company previously entered into a Renewal Executive Employment Agreement dated January 1, 2017 (the “Prior Agreement”) to employ Executive to serve as President and Chief Executive Officer of the Company.
C. The Company and Executive wish to amend and restate the terms of the Prior Agreement as set forth herein to modify certain terms.
D. As of the Effective Date, Executive has commenced full-time employment with the Company.
NOW, THEREFORE, the parties agree that the Prior Agreement is hereby amended and restated to read in its entirety as follows:
1. Position and Duties.
(a) During the term of this Agreement, Executive will be employed by the Company to serve as President and Chief Executive Officer of the Company, reporting to the Board of Directors of the Company (the “Board”). As President and Chief Executive Officer, Executive will, subject to the supervision and direction of the Board, be responsible for: (i) developing and implementing strategies, goals, operating plans, policies and objectives for the Company; (ii) establishing the organizational structure for the Company and delegating authority to subordinates as necessary; (iii) representing the Company to the financial community, customers, government agencies, stockholders and the public; (iv) directing and managing the day-to-day operations and affairs of the Company; (v) performing the duties and responsibilities customarily expected to be performed by the chief executive officer; and (vi) performing such other duties and functions as are reasonably required and/or as may be reasonably prescribed by the Board from time to time. As used herein, the term “Board” shall also include authorized committees of the Board of Directors of the Company.
(b) The location of Executive’s employment will be the Company’s headquarters offices, but Executive from time to time may be required to travel to other geographic locations in connection with the performance of his/her duties.
(c) The Board agreed to appoint Executive as a director of the Company as of January 1, 2017, provided that as a condition precedent to such appointment Executive tenders Executive’s irrevocable, conditional resignation from the Board as provided for in the Company’s Corporate Governance Guidelines.
2. Standards of Performance. Executive will at all times faithfully, industriously and to the best of his/her ability, experience and talents perform all of the duties required of and from him/her pursuant to the terms of this Agreement. Executive will devote his/her full business energies and abilities and all of his/her business time to the performance of his/her duties hereunder and will not, without the Company’s prior written consent, render to others any service of any kind (whether or not for compensation) that, in the Company’s sole but reasonable judgment, would interfere with the full performance of his/her duties hereunder. Notwithstanding the foregoing, Executive is permitted to spend reasonable amounts of time to manage his/her personal financial and legal affairs and, with the Company’s consent which will not be unreasonably withheld, to serve on one civic, charitable, not-for-profit, industry or corporate board or advisory committee, provided that such activities, individually and collectively, do not materially interfere with the performance of Executive’s duties hereunder. In no event will Executive engage in any activities that could reasonably create a conflict of interest or the appearance of a conflict of interest. Executive shall be subject to the Company’s policies, procedures and approval practices, as generally in effect from time to time.
3. Term.
(a) Term of Agreement. This Agreement will have an initial term of three (3) years commencing on the Effective Date (the “Initial Term”). On the third anniversary of the Effective Date, this Agreement will renew automatically for additional three (3) year terms (each, an “Additional Term” and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the date of automatic renewal; provided, however, that if the Company enters into a definitive agreement to be acquired and the transactions contemplated thereby would result in the occurrence of a Change in Control (as defined below) if consummated, then the Company will no longer be permitted to provide Executive with written notice to not renew this Agreement unless such definitive agreement is terminated without the Change in Control being consummated. If the Change in Control is consummated, the Agreement will continue in effect through the longer of the date that is twelve (12) months following the effective date of the Change in Control or the remainder of the Term then in effect (for purposes of clarification, it will be possible for the Term of the Agreement to automatically extend after the Company enters into the definitive agreement, but before the Change in Control is consummated). If the definitive agreement is terminated without the transactions contemplated thereby having been consummated and at the time of such termination there is at least twelve (12) months remaining in the Term, the Agreement will continue in effect for the remainder of the Term then in effect, but if there is less than twelve (12) months remaining in the Term then in effect, the Agreement will automatically extend for an additional three (3) years from the date the definitive agreement is terminated. If Executive becomes entitled to benefits under Section 5 during the term of this Agreement, the Agreement will not terminate until all of the obligations of the parties hereto with respect to this Agreement have been satisfied.
(b) At-Will Employment. The Company and Executive acknowledge that, notwithstanding the foregoing, Executive’s employment is and will continue to be at-will, as defined under applicable law. As an at-will employee, either the Company or the Executive may terminate the employment relationship at any time, with or without cause; provided, however, that in connection with such termination, the Company will provide Executive with any applicable benefits under Section 5 to which Executive is entitled, all in accordance with the terms and conditions thereof.
4. Compensation and Benefits.
(a) Base Salary. As an annual base salary (“Base Salary”) for all services rendered pursuant to this Agreement, Executive will be paid an initial Base Salary in the gross amount of $710,000 calculated on an annualized basis, less necessary withholdings and authorized deductions, and payable pursuant to the Company’s regular payroll practices at the time. The Base Salary is first subject to review and adjustment within the first three (3) months after the end of the fiscal year that includes the Effective Date, and, thereafter, subject to periodic review and adjustment not less frequently than annually within the
first three (3) months after the end of the next successive fiscal year, in the sole discretion of the Board. Executive’s Base Salary will not be reduced from the level in effect from time to time, except that the Base Salary may be reduced in connection with a salary reduction program of general application to senior executives of the Company where each experiences a substantially similar reduction on a percentage basis.
(b) Performance Bonus. During Executive’s employment under this Agreement, Executive will be eligible for a performance bonus, subject to the terms and conditions of the Company’s Performance Bonus Plan, which is applicable to senior executives of the Company. The target amount of Executive’s annual bonus is one hundred twenty percent (120%) of Executive’s annual Base Salary (as defined in the Company’s Performance Bonus Plan as then in effect). However, payment of the performance bonus will be conditioned on the Company’s achievement of corporate performance objectives approved by the Board and on the Executive’s achievement of individual performance metrics to be established annually and approved by the Board, all as established pursuant to the Company’s Performance Bonus Plan as then in effect, and the bonus may be zero. For the avoidance of doubt, the performance bonus will be payable only if the corporate and/or individual performance objectives approved by the Board are achieved as determined by the Board, subject to the Board’s right to exercise discretion in determining the amount of the bonus to be awarded, if any, as set forth in the Company’s Performance Bonus Plan then in effect. To encourage continued tenure with the Company, Executive must be employed by the Company as of the payment date to be eligible for a performance bonus for the year to which the bonus relates, unless otherwise provided in Section 5. Performance bonuses will be paid out according to the terms of the Company’s Performance Bonus Plan.
(c) Equity Incentive Awards.
(i) Stock Options. The Company may grant to Executive the option to purchase shares of the Company’s common stock (“Options”) pursuant to the Accuray Incorporated 2016 Equity Incentive Plan (the “Incentive Plan”). All Options shall be subject to the terms and conditions of the Incentive Plan and a stock option grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the Options.
(ii) Restricted Stock Units. The Company may grant to Executive restricted stock units (“RSUs”) pursuant to the Incentive Plan. All RSUs are subject to and conditioned on approval of the grant and its terms by the Board. All RSUs shall be subject to the terms and conditions of the Incentive Plan and a RSU grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the RSUs.
(iii) Market Stock Units. The Company may grant to Executive performance-based market stock units (“MSUs”) pursuant to the Incentive Plan. All MSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted MSUs shall vest as provided in the applicable MSU grant notice and grant agreement (“MSU Agreement”). All MSUs shall be subject to the terms and conditions of the Incentive Plan and a MSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the MSUs.
(iv) Performance Stock Units. The Company may grant to Executive performance stock units (“PSUs”) pursuant to the Incentive Plan. All PSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted PSUs shall vest as provided in the applicable PSU grant notice and grant agreement (“PSU Agreement”). All PSUs shall be subject to the terms and conditions of the Incentive Plan and a PSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the PSUs.
(d) Paid Time Off and Benefits. Executive will accrue and be allowed to use paid time off for vacation, illness and holidays pursuant to the Company’s policies that apply to executive officers of the Company. In addition, Executive will be entitled to participate in any plans regarding benefits of employment, including pension, profit sharing, group health, disability insurance and other employee pension and welfare benefit plans now existing or hereafter established to the extent that Executive is eligible under the terms of such plans and if the other executive officers of the Company generally are eligible to participate in such plan. The Company may, in its sole discretion and from time to time, establish additional senior management benefit plans as it deems appropriate. Executive understands that any such plans may be modified or eliminated in the Company’s sole discretion in accordance with applicable law, provided that no such modification or elimination shall result in reducing or eliminating any benefits in which Executive’s right has vested.
(e) Reimbursement of Business Expenses. The Company will promptly reimburse to Executive his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Agreement, and in accordance with the policies and procedures established by the Company; provided that each reimbursement shall be requested within two (2) months after being incurred.
(f) Sarbanes-Oxley Act Loan Prohibition and Company Compensation-Related Polices. To the extent that any Company benefit, program, practice, arrangement or this Agreement would or might otherwise result in Executive’s receipt of an illegal loan (the “Loan”), the Company shall use commercially reasonable efforts to provide Executive with a substitute for the Loan that is lawful and of at least equal value to Executive. If this cannot be done, or if doing so would be significantly more expensive to the Company than making the Loan, the Company need not make the Loan to Executive or provide him/her a substitute for it. Further, Executive acknowledges that any bonus or equity award provided for in this Agreement or otherwise awarded to him/her shall be subject to the Company’s policies regarding recoupment and clawback, as such policies may be amended from time to time, and agrees that he/she will be subject to, and shall comply with, the Company’s stock ownership requirements which are set forth in its Amended and Restated Corporate Governance Guidelines, as such requirements may be amended from time to time, and the Company’s Insider Trading Policy, as amended from time to time.
5. Termination of Employment.
(a) By Company Without Cause. Subject to the last paragraph of this Section 5(a), the Company may terminate Executive’s employment without Cause (as defined below) effective on thirty (30) days’ written notice (such thirty (30)-day period, the “Notice Period”, and such notice, the “Termination Notice”), during which notice period Executive may be relieved of his/her duties and placed on paid terminal leave and shall resign from the Board. In such event and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) continued coverage under the Company’s insurance benefit plans through the termination date and such other benefits to which he/she may be entitled pursuant to the Company’s benefit plans, provided, however, that Executive shall not participate in any severance plan of the Company;
(ii) payment of all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and
(iii) reimbursement of expenses incurred on or before the termination date in accordance with Section 4(e), above, if a request for reimbursement of the expenses was timely submitted to the Company; plus
(iv) payment of the equivalent of the Base Salary without regard to any reduction that would otherwise constitute Good Reason he/she would have earned over the next twelve (12) months following the termination date (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Severance Payment”), payable in a lump sum on the first regularly scheduled payroll date following the date the Release becomes effective and irrevocable (the “Release Effective Date”), but in any event within ten (10) business days of the Release Effective Date and subject to Section 16, below;
(v) payment of a prorated portion of the actual bonus Executive would have otherwise received for the fiscal year during which the termination occurs, as if Executive had remained employed by the Company through the date that would have otherwise been required to earn the bonus, but without the Board or any committee of the Board exercising any negative discretion to reduce the amount of the award, calculated by dividing the number of days from the start of the fiscal year through the termination date by 365 and multiplying the amount of such actual bonus Executive would have otherwise received by this percentage (but not by more than 100%), and paid at the same time as bonuses are paid to other Company executives that are similarly situated to Executive; provided, however, that if the termination date is after the seventh month of the fiscal year, the actual bonus will not be prorated and Executive will receive 100% of such actual bonus Executive would have otherwise received for that fiscal year at the same time as bonuses are paid to other Company executives that are similarly situated to Executive;
(vi) subject to Section 5(g), reimbursement of insurance premiums payable to retain group health coverage as of the termination date for himself/herself and his/her eligible dependents pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) for twelve (12) months or the maximum period of COBRA coverage, whichever is less; provided that Executive must submit a reimbursement request in accordance with Company policy within thirty (30) days of paying such insurance premiums. The Company will reimburse the executive within thirty (30) days of receiving a properly submitted request. In addition, if Executive accepts other employment within such twelve (12) months, the Company’s obligation under this Section 5(a)(vi) will be extinguished as of the date Executive becomes covered under the group health plan of Executive’s new employer; and
(vii) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
The payments and benefits set forth in Sections 5(a)(i)-(iii) shall be referred to as the “Accrued Benefits”, and the payments and benefits set forth in Sections 5(a)(iv)-(vii) shall be referred to as the “Severance Benefits”. Executive shall not receive the Severance Benefits, the “Enhanced Severance Benefits” as provided in Section 5(e), or the Termination Notice Replacement Payment (as defined below) unless Executive executes the separation agreement and general release attached as Exhibit A (the “Release”), and the same becomes irrevocable pursuant to its terms within the 60-day period following his/her termination of employment. Notwithstanding the foregoing paragraphs of this Section 5(a), the Company may terminate Executive’s employment prior to the expiration of the Notice Period, and in the case of such termination, the Company shall pay Executive the equivalent of the Base Salary he/she would have earned over the remainder of the Notice Period (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Termination Notice Replacement Payment”), subject to Executive satisfying the requirements of the previous sentence. Any such Termination Notice Replacement will be paid in a lump sum at the same time as the Severance Payment.
(b) By Company With Cause. The Company may terminate Executive’s employment at any time and without prior notice, written or otherwise, for Cause. As used in this Agreement, “Cause” shall mean any of the following conduct by Executive: (i) material breach of this Agreement, or of a Company policy or of a law, rule or regulation applicable to the Company or its operations; (ii) demonstrated and material neglect of duties, or failure or refusal to perform the material duties of his/her position, or the failure to follow the reasonable and lawful instructions of the Board; (iii) gross misconduct or dishonesty, self-dealing, fraud or similar conduct that the Board reasonably determines has caused, is causing or reasonably is likely to cause harm to the Company; or (iv) conviction of or plea of guilty or nolo contendere to any crime other than a traffic offense that is not punishable by a sentence of incarceration. Termination pursuant to Section 5(b)(ii) shall be effective only if such failure continues after Executive has been given written notice thereof and fifteen (15) business days thereafter in which to present his/her position to the Board or to cure the same, unless the Board reasonably determines that the reason(s) for termination are not capable of being cured. In the event of termination for Cause, Executive will be entitled only to the Accrued Benefits through the termination date, which will be the date on which the notice is given. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs), or severance payment of any kind nor to make any payment in lieu of notice.
(c) Incapacity or Death.
(i) If Executive becomes unable, due to physical or mental illness or injury, to perform the essential duties of his/her position for more than twelve (12) consecutive weeks in any twelve (12) month period during this Agreement with or without reasonable accommodation (“Incapacity”), the Company has the right to terminate Executive’s employment on fifteen (15) days’ written notice. In the event of termination for Incapacity, (i) Executive will be entitled to receive the Accrued Benefits, (ii) any unvested equity awards previously granted to Executive that are scheduled to vest based solely on the achievement of service-based conditions (“Time-based Equity Awards”) shall become immediately vested to the extent that such Time-based Equity Awards would have vested within twelve (12) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any equity awards that are scheduled to vest based on the achievement of performance-based conditions (which may include additional service-based conditions) (“Performance-based Equity Awards”) for which the performance period is scheduled to end within twelve (12) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee of the Board (the “Compensation Committee”) determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved; and
(ii) Executive’s employment pursuant to this Agreement shall be immediately terminated without notice by the Company upon the death of Executive. If Executive dies while actively employed pursuant to this Agreement, (i) the Company will pay to his/her estate or designated beneficiaries within sixty (60) days the Accrued Benefits, (ii) any unvested Time-based Equity Awards shall become immediately vested to the extent that such Time-based Equity Awards would have vested within twelve (12) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any Performance-based Equity Awards for which the performance period is scheduled to end within twelve (12) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved.
(d) Resignation for Good Reason. Executive may terminate this Agreement for Good Reason (as defined below) by giving written notice to the Company of such termination, subject to Executive complying with the notice, cure period and other requirements set forth within the definition of Good Reason below. As used in this Agreement, “Good Reason” shall mean the occurrence of any one of the following without Executive’s written consent: (i) a material reduction in Executive’s base compensation (which includes Base Salary, the Executive’s target bonus and any other base compensation) and/or a material breach of this Agreement by the Company resulting from the failure to provide the benefits required in Section 4, (ii) any action or inaction that constitutes a material breach by the Company of this Agreement; (iii) a material diminution in Executive’s authority, duties or responsibilities such that they are materially inconsistent with his/her position as President and Chief Executive Officer of the Company; and (iv) relocation of the Company’s headquarters to a location that materially increases Executive’s commute, provided that no termination for Good Reason shall be effective until Executive has given the Company written notice (pursuant to Section 11 below) within sixty (60) days after Executive becomes aware of the initial occurrence of any of the foregoing specifying the event or condition constituting the Good Reason and the specific reasonable cure requested by Executive, and the Company has failed to cure the occurrence within thirty (30) days of receiving written notice from Executive, and Executive resigns within six (6) months after Executive becomes aware of the initial occurrence. In the event of a termination for Good Reason, Executive will be entitled to the Accrued Benefits and the Severance Benefits, on the same conditions, form of payment and timing as set forth in Section 5(a).
(e) Effect of Change in Control. If the Company terminates Executive’s employment with the Company without Cause (excluding due to Executive’s death or Incapacity) or if Executive resigns from such employment for Good Reason, and, in each case, such termination occurs during the Change in Control Period (as defined below), Executive will be entitled to the Accrued Benefits, and subject to the same conditions set forth in the final paragraph of Section 5(a), (i) two times the Severance Payment set forth in Section 5(a)(iv), paid in the same form (i.e., a lump sum) and at the same time as the Severance Payments set forth in Section 5(a)(iv), (ii) subject to Section 5(g), the reimbursement of Executive’s insurance premiums for twelve (12) months in the same form and at the same time and under the same conditions as provided in Section 5(a)(vi), (iii) a taxable monthly payment (which may be used for any purpose) equal to actual the COBRA reimbursement payment that Executive receives under Section 5(e)(ii) for any particular month, (iv) two hundred percent (200%) of Executive’s target bonus for the fiscal year during which termination occurs, but no less than two hundred percent (200%) of the target bonus in effect for the fiscal year immediately prior to the Change in Control if the Change in Control occurs within the first three (3) months of the fiscal year, payable at the same time as the payment under clause (i) of this Section 5(e), (v) all outstanding unvested equity awards previously granted to Executive shall become immediately vested (the “Enhanced Severance Benefits”), and (vi) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
For the avoidance of doubt, if Executive’s termination without Cause (excluding due to Executive’s death or Incapacity) or resignation for Good Reason occurs prior to a Change in Control, then any unvested portion of Executive’s outstanding equity awards will remain outstanding until the earlier of (i) the date that is three (3) months following the termination of Executive’s employment or (ii) the date that a Change in Control occurs (provided that in no event will any of Executive’s equity awards remain outstanding beyond the equity award’s maximum term to expiration). In the event that a Change in Control does not occur by the date that is three (3) months following the termination of Executive’s employment, any unvested portion of Executive’s equity awards automatically will be forfeited permanently without
having vested. Further, for any Performance-based Equity Awards, the performance-based vesting component of the equity awards shall not be deemed to be automatically achieved as a result of the application of Section 5(e)(v) but will remain outstanding during the three (3) month period following Executive’s termination or through the date of the Change in Control, as applicable, to determine whether a Change in Control would have occurred within three (3) months of the termination of Executive’s employment and, if so, the extent to which the performance condition is achieved, such determination to be made in accordance with the procedures set forth in the applicable award agreement. If the performance condition is satisfied and that would cause the award to become eligible to vest based on continued service, then clause (v) of this Section 5(e) will cause the service-based vesting component to be deemed satisfied and the vesting of the equity award will be accelerated as to the portion of the award that became eligible to vest. For clarity, if there is no service-based condition that applies with respect to any portion of such equity award upon such satisfaction of the performance condition, such portion of the equity award will immediately vest upon such satisfaction of the performance condition.
For the sake of clarity, if any payments or benefits are payable under this Section 5(e), no payments or benefits shall be made under any other subsection of this Section 5, including Section 5(a) and Section 5(d), and any Enhanced Severance Benefits will be reduced by any Severance Benefits that may have been paid or provided with respect to any termination triggering Severance Benefits that occurs during the three-month period prior to a Change in Control (this provision, the “Non-duplication Provision”).
As used in this Agreement, a “Change in Control” shall mean any of the following events:
(i) the acquisition by any Group or Person (as such terms are defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)), other than (A) a trustee or other fiduciary holding securities of the Company under an employee benefit plan of the Company or (B) an entity in which the Company directly or indirectly beneficially owns fifty percent (50%) or more of the voting securities of such entity (an “Affiliate”), of any securities of the Company, immediately after which such Group or Person has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty percent (50%) or more of (X) the outstanding shares of Common Stock or (Y) the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors;
(ii) the Company (and/or its subsidiaries) is a party to a merger or consolidation with a Person other than an Affiliate, which merger or consolidation results in (a) the holders of voting securities of the Company outstanding immediately before such merger or consolidation failing to continue to represent (either by remaining outstanding or being converted into voting securities of the surviving entity) fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the corporation or entity resulting from or surviving such merger or consolidation or (b) individuals who are directors of the Company just prior to such merger or consolidation not constituting more than fifty percent (50%) of the members of the Board of Directors of the surviving entity or corporation immediately after the consummation of such merger or consolidation; or
(iii) all or substantially all of the assets of the Company and its subsidiaries are, in any transaction or series of transactions, sold or otherwise disposed of (or consummation of any transaction, or series of related transactions, having similar effect), other than to an Affiliate;
provided, however, that in no event shall a “Change in Control” be deemed to have occurred for purposes of this Agreement solely because the Company engages in an internal reorganization, which may include a transfer of assets to, or a merger or consolidation with, one or more Affiliates. Additionally, with respect to the payment of any “nonqualified deferred compensation” within the meaning of section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), that is not exempt from section 409A of the
Code, no event shall constitute a Change in Control unless it also constitutes a change in the ownership of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(v)), a change in effective control of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vi)), or a change in the ownership of a substantial portion of the assets of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vii)).
As used in this Agreement, a “Change in Control Period” shall mean the period beginning three (3) months prior to, and ending twelve (12) months following, a Change in Control.
(f) Voluntary Resignation without Good Reason. Executive may terminate this Agreement without Good Reason effective on sixty (60) day’s written notice, unless the Company in its sole discretion accepts the resignation earlier. In the event that Executive resigns without Good Reason as defined above in Section 5(d), Executive will be entitled only to the Accrued Benefits through the termination date. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs unless he/she remains employed with the Company as of the date bonuses are paid to other senior executives of the Company), or severance payments of any kind.
(g) If the Company determines in its sole discretion that it cannot make the COBRA reimbursements under Section 5(a)(vi) or Section 5(e)(ii) (the “COBRA Reimbursements”) without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue the Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA continuation coverage), which payments will be made regardless of whether the Executive elects COBRA continuation coverage and will commence on the month following the Executive’s termination of employment and will end on the earlier of (x) the date upon which the Executive obtains other employment or (y) the date the Company has paid an amount equal to twelve (12) payments. For the avoidance of doubt, such taxable payments in lieu of COBRA Reimbursements (the “COBRA Substitute Payments”) may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholding.
6. Proprietary Information Obligations.
(a) Proprietary Information and Confidentiality. Both before and during the term of Executive’s employment, Executive will have access to and become acquainted with Company confidential and proprietary information (together “Proprietary Information”), including but not limited to information or plans concerning the Company’s products and technologies; customer relationships; personnel; sales, marketing and financial operations and methods; trade secrets; formulae and secret developments and inventions; processes; and other compilations of information, records, and specifications. Executive will not disclose any of the Proprietary Information directly or indirectly, or use it in any way, either during his/her employment pursuant to this Agreement or at any time thereafter, except as reasonably required or specifically requested in the course of his/her employment with the Company or as authorized in writing by the Company. Notwithstanding the foregoing, Proprietary Information does not include information that is otherwise publicly known or available, provided it has not become public as a result of a breach of this Agreement or any other agreement Executive has to keep information confidential. It is not a breach of this Agreement for Executive to disclose Proprietary Information (i) pursuant to an order of a court or other governmental or legal body or (ii) in connection with Protected Activity (as defined below). Executive understands that nothing in this Agreement shall in any way limit or prohibit Executive from
engaging in any Protected Activity. For purposes of this Agreement, “Protected Activity” means filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding that may be conducted by any federal, state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board (“Government Agencies”). Executive understands that in connection with such Protected Activity, Executive is permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, the Company. Notwithstanding, in making any such disclosures or communications, Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Proprietary Information to any parties other than the Government Agencies. Executive further understands that “Protected Activity” does not include the disclosure of any Company attorney-client privileged communications. In addition, Executive hereby acknowledges that the Company has provided Executive with notice in compliance with the Defend Trade Secrets Act of 2016 regarding immunity from liability for limited disclosures of trade secrets. The full text of the notice is attached in Exhibit B.
(b) Inventions Agreement and Assignment.
(i) Executive hereby agrees to disclose promptly to the Company (or any persons designated by it) all developments, designs, creations, improvements, original works of authorship, formulas, processes, know-how, techniques and/or inventions (collectively, the “Inventions”) (A) which are made or conceived or reduced to practice by Executive, either alone or jointly with others, in performing his/her duties during the period of Executive’s employment by the Company, that relate to or are useful in the business of the Company; or (B) which result from tasks assigned to Executive by the Company, or from Executive’s use of the premises or other resources owned, leased or contracted by the Company.
(ii) Executive agrees that all such Inventions which the Company in its discretion determines to be related to or useful in its business or its research or development, or which result from work performed by Executive for the Company, will be the sole and exclusive property of the Company and its assigns, and the Company and its assigns will have the right to use and/or to apply for patents, copyrights or other statutory or common law protections for such Inventions in any and all countries. Executive further agrees to assist the Company in every reasonable way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights and other statutory or common law protections for such Inventions in any and all countries. To that end, Executive will execute all documents for use in applying for and obtaining such patents, copyrights and other statutory or common law protections therefor and enforcing the same, as the Company may desire, together with any assignments thereof to the Company or to persons or entities designated by the Company. Should the Company be unable to secure Executive’s signature on any document necessary to apply for, prosecute, obtain, or enforce any patent, copyright or other right or protection relating to any Invention, whether due to his/her mental or physical incapacity or any other cause, Executive hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as Executive’s agent and attorney-in-fact, to act for and in his/her behalf and stead, to execute and file any such document, and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights or other rights or protections with the same force and effect as if executed and delivered by Executive. Executive’s obligations under this Section 6(b)(ii) will continue beyond the termination of Executive’s employment with the Company, but the Company will compensate Executive at a reasonable rate after such termination for time actually spent by Executive at the Company’s request in providing such assistance.
(iii) Executive hereby acknowledges that all original works of authorship which are made by Executive (solely or jointly with others) within the scope of Executive’s employment which are protectable by copyright are “works for hire,” as that term is defined in the United States Copyright Act (17 USCA, Section 101).
(iv) Any provision in this Agreement requiring Executive to assign Executive’s rights in any Invention to the Company will not apply to any invention that is exempt under the provisions of California Labor Code section 2870, which provides:
“(a) 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. (b) 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 subdivision (a), the provision is against the public policy of this state and is unenforceable.”
(c) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Board; provided, however, that if Executive is or becomes a permanent resident of the state of California and remains such a permanent resident through the date of termination of Executive’s employment, this Section 6(c) shall not apply following the termination of Executive’s employment with the Company.
(d) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself or on behalf of any other person or entity, solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(e) Company Property and Materials.
(i) All files, records, documents, computer-recorded or electronic information, drawings, specifications, equipment, and similar items relating to Company business, whether prepared by Executive or otherwise coming into his/her possession, will remain the Company’s exclusive property and will not be removed from Company premises under any circumstances whatsoever without the Company’s prior written consent, except when, and only for the period, necessary to carry out Executive’s duties hereunder
(ii) In the event of termination of Executive’s employment for any reason, Executive will promptly deliver to the Company all Company equipment (including, without limitation, any cellular phones, beeper/pagers, computer hardware and software, fax machines and other tools of the trade) and all originals and copies of all documents, including without limitation, all books, customer lists, forms, documents supplied by customers, records, product lists, writings, manuals, reports, financial documents and other documents or property in Executive’s possession or control, which relate to the Company’s business in any way whatsoever, and in particular to customers of the Company, or which may be considered to constitute or contain Proprietary Information as defined above, and Executive will neither retain, reproduce, nor distribute copies thereof (other than copies of Executive’s electronic or hardcopy address and telephone contact data base or directories). Notwithstanding the foregoing, Executive shall be allowed to retain a copy of the Employee Handbook and personnel records relating to Executive’s employment.
(f) Remedies for Breach. Executive acknowledges that any breach by Executive of this Section 6 would cause the Company irreparable injury and damage for which monetary damages are inadequate. Accordingly, in the event of a breach or a threatened breach of this Section 6, the Company will be entitled to seek an injunction restraining such breach. In addition, in the event of a breach of this Section 6, the Company’s obligation to pay any unpaid portion of the Severance Payment or other benefits as set forth in Sections 5(a) and (d) of this Agreement will be extinguished. Nothing contained herein will be construed as prohibiting the Company from pursuing any other remedy available to the Company for such breach or such threatened breach. Executive has carefully read and considered these restrictions and agrees they are fair and reasonable restrictions on Executive and are reasonably required for the protection of the interests of the Company. Executive agrees not to circumvent the spirit of these restrictions by attempting to accomplish indirectly what Executive is otherwise restricted from doing directly. Executive agrees that the restrictions in this Section 6 are reasonable and necessary to protect the Company’s Proprietary Information, and they do not prevent Executive from working in the medical device industry. Executive agrees that the covenants and agreements by Executive contained in this Section 6 shall be in addition to any other agreements and covenants Executive may have agreed to in any other employee proprietary information, confidentiality, non-disclosure or other similar agreement and that this Section 6 shall not be deemed to limit such other covenants and agreements, all of which shall continue to survive the termination of this Agreement in accordance with their respective terms. A breach by Executive of the terms of such other agreements and covenants shall be deemed to be a breach by Executive of this Section 6 and of this Agreement. To the extent any of the provisions in this Section 6 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 6 is held to be unenforceable, the remaining provisions of this Section 6 shall be enforced as written.
7. Interpretation, Governing Law and Exclusive Forum. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of California (excluding any that mandate the use of another jurisdiction’s laws). Any arbitration (unless otherwise mutually agreed), litigation or similar proceeding with respect to such matters only may be brought within Santa Clara County, California, and all parties to this Agreement consent to California’s jurisdiction.
8. Entire Agreement. All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement.
9. Severability. In the event that one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such holding shall not impair the validity, legality or enforceability of the remaining provisions herein.
10. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, Executive and his/her estate, but Executive may not assign or pledge this Agreement or any rights arising under it, except to the extent permitted under the terms of the benefit plans in which he/she participates. No rights or obligations of the Company under this Agreement may be assigned or transferred except that the Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, sale, transfer of stock, consideration or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no succession had taken place. As used in this Agreement, “Company” means the Company as hereinbefore defined and any successor to its business and/or assets (by merger, purchase or otherwise as provided in this Section 10) which executes and delivers the agreement provided for in this Section 10 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. In the event that any successor refuses to assume the obligations hereunder, the Company as hereinbefore defined shall remain fully responsible for all obligations hereunder.
11. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be given by hand delivery, electronic mail, facsimile, telecopy, overnight courier service, or by United States certified or registered mail, return receipt requested. Each such notice, request, demand or other communication shall be effective (i) if delivered by hand or by overnight courier service, when delivered at the address specified in this Section 11; (ii) if given by electronic mail, facsimile or telecopy, when such electronic mail, facsimile or telecopy is transmitted to the electronic mail address or facsimile or telecopy number specified in this Section 11 and confirmation is received if during normal business hours on a business day, and otherwise, on the next business day; and (iii) if given by certified or registered mail, three (3) days after the mailing thereof. Notices shall be addressed to the parties as follows (or at such other address, email address or fax number as either party may from time to time specify in writing by giving notice as provided herein):
|
If to the Company: |
Accuray Incorporated |
|
|
1310 Chesapeake Terrace |
|
|
Sunnyvale, California 94089 |
|
|
Attn: Board of Directors c/o Corporate Secretary |
|
|
Fax No. (408) 789-4205 |
|
|
|
|
If to Executive: |
Joshua H. Levine |
|
|
Address: most recent on file with the Company |
|
|
Email: most recent on file with the Company |
12. Indemnification. As soon as reasonably practicable after the due execution of this Agreement by each of the parties hereto, the Company and Executive will enter into the Company’s standard form of indemnification agreement utilized by the Company for its directors and executive officers.
13. Dispute Resolution. The parties agree that all disputes, claims or controversies between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, including any dispute, claim or controversy arising from or otherwise in connection with this Agreement and/or Executive’s employment with the Company, will be resolved as follows:
(a) Prior to initiating any other proceeding, the complaining party will provide the other party with a written statement of the claim identifying any supporting witnesses or documents and the requested relief. The responding party shall within forty-five (45) days furnish a statement of the relief, if any, that it is willing to provide, and identify supporting witnesses or documents.
(b) If the matter is not resolved by the exchange of statements of claim and statements of response as provided herein, the parties shall submit the dispute to non-binding mediation, the cost of the mediator to be paid by the Company, before a mediator and/or service to be jointly selected by the parties. Each party will bear his/her or its own attorney’s fees and witness fees.
(c) If the parties cannot agree on a mediator and/or if the matter is not otherwise resolved by mediation, any controversy or claim between Executive and the Company and any of its current or former directors, officers and employees, including any arising out of or relating to this Agreement or breach thereof, shall be settled by final and binding arbitration in the county in which Executive last worked, or elsewhere as mutually agreed by the parties, by a single arbitrator pursuant to the Employment Dispute Rules of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), unless the parties to the dispute agree to another arbitration service or independent arbitrator. The parties may conduct discovery to the extent permitted in a court of law; the arbitrator will render an award together with a written opinion indicating the bases for such opinion; and the arbitrator will have full authority to award all remedies that would be available in court. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own attorney’s fees and costs, unless the claim is based on a statute that provides otherwise. The Company will pay the arbitrator’s fees and any administrative charges of the arbitration service, except that if Executive initiates the claim, he/she will pay a portion of the administrative charges equal to the amount he/she would have paid to initiate the claim in a court of general jurisdiction.
(d) EXECUTIVE AND THE COMPANY AGREE THAT THIS ARBITRATION PROCEDURE WILL BE THE EXCLUSIVE MEANS OF REDRESS FOR ANY DISPUTES RELATING TO OR ARISING FROM EXECUTIVE’S EMPLOYMENT WITH THE COMPANY OR TERMINATION THEREFROM, INCLUDING DISPUTES OVER UNPAID WAGES, BREACH OF CONTRACT OR TORT, VIOLATION OF PUBLIC POLICY, RIGHTS PROVIDED BY FEDERAL, STATE OR LOCAL STATUTES, REGULATIONS, ORDINANCES, AND COMMON LAW, LAWS THAT PROHIBIT DISCRIMINATION BASED ON ANY PROTECTED CLASSIFICATION, AND ANY OTHER STATUTES OR LAWS RELATING TO AN EXECUTIVE’S RELATIONSHIP WITH THE COMPANY. THE FOREGOING NOTWITHSTANDING, CLAIMS FOR WORKERS’ COMPENSATION BENEFITS OR UNEMPLOYMENT INSURANCE, OR ANY OTHER CLAIMS WHERE MANDATORY ARBITRATION IS PROHIBITED BY LAW, ARE NOT COVERED BY THIS ARBITRATION PROVISION. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL, AND AGREE THAT THE ARBITRATOR’S AWARD SHALL BE FINAL AND BINDING ON BOTH PARTIES. THIS ARBITRATION PROVISION IS TO BE CONSTRUED AS BROADLY AS IS PERMISSIBLE UNDER APPLICABLE LAW.
14. Representations. Each person executing this Agreement hereby represents and warrants on behalf of himself/herself and of the entity/individual on whose behalf he/she is executing the Agreement that he/she is authorized to represent and bind the entity/individual on whose behalf he/she is executing the Agreement. Executive specifically represents and warrants to the Company that he/she reasonably believes (a) he/she is not under any contractual or other obligations that would prevent, limit or impair Executive’s performance of his/her obligations under this Agreement and (b) that entering into this Agreement will not result in a breach of any other agreement to which he/she is a party. Executive acknowledges that Executive has been given the opportunity to consult with legal counsel and seek such advice and consultation as Executive deems appropriate or necessary.
15. Amendments and Waivers. No provisions of this Agreement may be modified, waived, or discharged except by a written document signed by Executive and a duly authorized Company officer. Thus, for example, promotions, commendations, and/or bonuses shall not, by themselves, modify, amend, or extend this Agreement. A waiver of any conditions or provisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time.
16. Taxes.
(a) Withholdings. The Company may withhold from any compensation and benefits payable under this Agreement all federal, state, city and other taxes or amounts as shall be determined by the Company to be required to be withheld pursuant to applicable laws, or governmental regulations or rulings. Executive shall be solely responsible for the satisfaction of any taxes (including employment taxes imposed on employees and penalty taxes on nonqualified deferred compensation).
(b) Net Proceeds Maximization. Notwithstanding any provision of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates (“Potential Parachute Payments”) would constitute an “excess parachute payment” within the meaning of section 280G of the Code and/or any corresponding and applicable state law provision, the Potential Parachute Payments will be reduced by reducing the amount of the Potential Parachute Payments to the extent necessary so that no portion of the Potential Parachute Payments will be subject to the excise tax imposed by section 4999 of the Code and any corresponding and/or applicable state law provision. Notwithstanding the foregoing, a reduction will be made under the previous sentence only if, by reason of that reduction, Executive’s net after tax benefit exceeds the net after tax benefit he/she would realize if the reduction were not made. For purposes of this paragraph, “net after tax benefit” means the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a “parachute payment” within the meaning of section 280G of the Code and any corresponding and applicable state law provision, plus (ii) all other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute payment” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits are realized by Executive (based upon the rate in effect for that year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by section 4999 of the Code and any corresponding and applicable state law provision. All determinations and calculations made in this paragraph shall be made by an independent accounting firm (the “Accounting Firm”) selected by the Company prior to the Change in Control and the Company will bear all costs and expenses incurred by the Accounting Firm in connection with its determination. The Accounting Firm shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of (x) the Company or any affiliate thereof or (y) Executive. If any payments or benefits are reduced pursuant to this Section 16(b), they shall be reduced in the following order: First all payments and benefits that do not constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code or that are exempt from section 409A of the Code (with the payments or benefits being reduced in reverse order of when they otherwise would be made or provided); second, all payments or benefits that constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code that are not exempt from section 409A of the Code that were granted to
Executive in the 12-month period of time preceding the applicable Change in Control, in the order such benefits were granted to Executive; and third, all remaining payments and benefits shall be reduced pro-rata. Notwithstanding the foregoing, if (i) reducing payments or benefits in the order described above would result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), (ii) Executive so notifies the Company before such reductions and payments are made and benefits provided, and (iii) reducing the payments or benefits in another order would not result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), payments and benefits shall instead be reduced in such other order.
(c) Section 409A Compliance.
(i) With respect to any reimbursement of expenses or any provision of in-kind benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangements providing for the reimbursement of expenses referred to in section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(ii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) upon or following a termination of employment unless such termination is also a “separation from service” and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” For purposes of section 409A of the Code, the date as of which Company and Executive reasonably anticipate that no further services would be performed by Executive for Company shall be construed as the date that Executive first incurs a “separation from service” as defined under section 409A of the Code.
(iii) Notwithstanding anything in this Agreement to the contrary, if a payment obligation arises on account of Executive’s separation from service while Executive is a “specified employee” as described in section 409A of the Code and the Treasury Regulations thereunder and as determined by Company in accordance with its procedures, by which determination Executive is bound, any payment of “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) shall be made on the first business day of the seventh month following the date of Executive’s separation from service, or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death together with interest on them for the period of delay at a rate equal to the average prime interest rate published in the Wall Street Journal on any day chosen by the Company during that period. Thereafter, Executive shall receive any remaining payments as if there had not been an earlier delay.
(iv) Notwithstanding anything to the contrary contained in this Agreement, (i) the Executive shall have no legally-enforceable right to, and the Company shall have no obligation to make, any payment or provide any benefit to Executive if having such a right or obligation would result in the imposition of additional taxes under section 409A of the Code, and (ii) any provision that would cause any payment or benefit to fail to satisfy section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by section 409A and may be accomplished by the Company without the Executive’s consent). If any payment is not made or any benefit is not provided under the terms of this Section 16(c)(iv), it is the Company’s present intention to make a similar payment or provide a similar benefit to the Executive in a manner that will not result in the imposition of additional taxes under section 409A of the Code, to the extent feasible. Each payment made under this Agreement is intended to be a separate payment for the purposes of section 409A of the Code.
(v) The Company does not guarantee any particular tax effect to Executive under this Agreement. Company shall not be liable to Executive for any payment made under this Agreement that is determined to result in an additional tax, penalty or interest under section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under section 409A of the Code. The parties intend this Agreement to be exempt from, or comply with, the requirements of Section 409A of the Code and the final regulations and any guidance promulgated thereunder so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed by Section 409A. Any ambiguities or ambiguous terms shall be interpreted to so be exempt or comply, and this Agreement shall be administered in accordance with such intent.
17. U.S. Citizenship and Immigration Services; Confidentiality and Inventions Agreement. Executive agrees to timely file all documents required by the Department of Homeland Security to verify his/her identity and lawful employment in the United States. In addition, as a condition to Executive’s employment with the Company, Executive is required to complete, sign, return, and abide by the Company’s Employee Confidentiality and Inventions Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute the same instrument.
19. Resignation from Positions. Upon Executive’s cessation of employment with the Company for any reason, Executive agrees that Executive shall be deemed to have resigned as an officer and as a director (if applicable) from the Company and every subsidiary of the Company on which Executive is then serving as an officer or director, and from any other entity or company on which Executive is then serving as a director or officer at the request of the Company, in each case effective as of the date of Executive’s cessation of employment. In the event of Executive’s cessation of employment, Executive agrees to execute a general resignation resigning from all positions then held by Executive on every subsidiary of the Company and other entity or company on which Executive is then serving as a director or officer at the request of the Company. Executive hereby grants the corporate secretary of the Company an irrevocable power of attorney to execute on behalf of Executive all such resignations, documents and instruments and to take all such other actions as reasonably necessary to carry out the intention of this Section 19.
20. Executive’s Commencement of Employment. It is a condition precedent to the effectiveness of this Agreement that Executive commences working full-time for the Company at the Company’s principal executive offices on the Effective Date. If Executive does not commence such full-time employment on the Effective Date, then this Agreement shall be null and void and the Company shall have no obligations hereunder or otherwise to Executive.
21. Executive’s Acknowledgement.
EXECUTIVE ACKNOWLEDGES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND HIM/HER RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS) AND THAT HE/SHE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS), THAT HE/SHE UNDERSTANDS ALL OF SUCH AGREEMENTS, AND THAT HE/SHE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS SUCH AGREEMENTS WITH HIS/HER PRIVATE LEGAL COUNSEL AND HAS AVAILED HIMSELF/HERSELF OF THAT OPPORTUNITY TO THE EXTENT HE/SHE WISHED TO DO SO. EXECUTIVE UNDERSTANDS THAT THE DISPUTE RESOLUTION PROVISIONS OF THIS AGREEMENT GIVE UP THE RIGHT TO A JURY TRIAL ON MATTERS COVERED BY THEM.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
|
|
ACCURAY INCORPORATED, | |||
|
|
a Delaware Corporation | |||
|
|
| |||
|
|
| |||
|
|
By: |
/s/ Kevin Waters | ||
|
|
Name: Kevin Waters | |||
|
|
Title: Senior Vice President, Chief Financial Officer | |||
|
|
| |||
|
|
| |||
|
|
By: |
/s/ Alaleh Nouri | ||
|
|
Name: |
Alaleh Nouri | ||
|
|
Title: |
Senior Vice President, General Counsel | ||
Accepted and Agreed,
|
Joshua H. Levine: |
/s/ Joshua H. Levine |
|
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Agreement”) is hereby entered into by and between , an individual (“Executive”), and Accuray Incorporated, a Delaware corporation, on behalf of itself and all of its subsidiaries (collectively, the “Company”).
Recitals
A. Executive has been employed by the Company pursuant to an employment agreement by and between the Company and Executive effective as of January 1, 2018 (the “Employment Agreement”), and currently is serving as [specify position held at time of termination];
B. Executive’s employment with the Company and any of its parents, direct or indirect subsidiaries, affiliates, divisions, or related entities (collectively referred to herein as the “Company and its Related Entities”) will be ended on the terms and conditions set forth in this Agreement.
Agreement
In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Effective Date. Except as otherwise provided herein, this Agreement shall be effective on the eighth day after it has been executed by both of the parties (the “Effective Date”).
2. End of Employment and Service as a Director. Executive’s employment with the Company and its Related Entities has ended or will end effective as of Pacific Time, on (the “Termination Date”). If Executive is an officer or a member of the Board of Directors of the Company and/or its Related Entities (the “Board”) Executive hereby voluntarily resigns from any such officer positions and the Board, effective .
3. Continuation of Benefits After the Termination Date. Except as expressly provided in this Agreement or in the plan documents governing the Company’s employee benefit plans, after the Termination Date, Executive will no longer be eligible for, receive, accrue, or participate in any other benefits or benefit plans provided by the Company and its Related Entities, including, without limitation, medical, dental and life insurance benefits, and the Company’s 401(k) retirement plan; provided, however, that nothing in this Agreement shall waive Executive’s right to any vested benefits, including vested amounts in the Company’s 401(k) retirement plan, which amounts shall be handled as provided in the plan.
4. Payments Upon Termination. Executive will be entitled to receive payment of the following: (i) all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and (ii) reimbursement, made in accordance with Section 4(e) of the Employment Agreement, of any monies advanced or incurred by Executive in connection with his/her employment for reasonable and necessary Company-related expenses incurred on or before the Termination Date. The provisions of this Agreement shall not waive or terminate any rights to compensation or vested benefits under the Company’s benefits plans or as required by law, or to indemnification Executive may have under the Company’s Certificate of Incorporation, Bylaws or separate indemnification agreement, as applicable.
5. Severance Benefits or Enhanced Severance Benefits. In return for Executive’s promises in this Agreement, the Company will provide Executive with the Severance Benefits or Enhanced Severance Benefits as defined in Sections 5(a) and 5(e) of the Employment Agreement and as applicable based on the nature of the termination, subject to the terms and conditions set forth in the Employment Agreement, including, but not limited to, Section 16 thereof. The Severance Benefits or Enhanced Severance Benefits will be paid as specified in Section 5(a) or Section 5(e) of the Employment Agreement, as applicable and shall be subject to required withholdings and authorized deductions and to Section 21 below.
6. Effect of Revocation or Subsequent Employment.
(a) If Executive properly revokes this Agreement in accordance with Section 13 below, Executive shall not be entitled to receive the payments and benefits under Section 5, above, except that Executive’s rights under COBRA will continue (but not, for purposes of clarity, the right to be reimbursed for COBRA premiums or receive any COBRA Substitute Payments (as defined in the Employment Agreement)).
(b) The Company’s obligation to reimburse premiums for insurance coverage under COBRA or otherwise will be extinguished as of the date Executive’s coverage begins under the group health plan of any new employer. If Executive violates the restrictions in Section 17, below, the Company’s obligation to pay premiums for insurance under COBRA or otherwise will be immediately extinguished, and the other remedies specified in Section 17, below, shall apply.
7. Acknowledgement of Total Compensation and Indebtedness. Executive acknowledges and agrees that the cash payments under Sections 4 and 5 of this Agreement extinguish any and all obligations for monies, or other compensation or benefits that Executive claims or could claim to have earned or claims or could claim is owed to him/her as a result of his/her employment by the Company and its Related Entities through the Termination Date, under the Employment Agreement or otherwise. Notwithstanding the foregoing, the parties acknowledge and agree that the provisions of this Section 7 shall not terminate any rights Executive has under Section 3 of this Agreement or to other payments Executive may have, and to any indemnification Executive may have under the Company’s Bylaws or separate indemnification agreement, as applicable.
8. Status of Related Agreements and Future Employment.
(a) Agreements Between Executive and the Company. [Agreements to be scheduled at time].
(b) Employment Agreement. The parties agree that the Employment Agreement shall be terminated as of the Termination Date. Notwithstanding the termination of the Employment Agreement, the parties hereto acknowledge that certain rights and obligations set forth in the Employment Agreement extend beyond the Termination Date. In the event that any provision of this Agreement conflicts with Section 6 of the Employment Agreement, the terms and provisions of the section(s) providing the greatest protection to the Company and its Related Entities shall control.
9. Release by Executive.
(a) Except for any obligations or covenants of the Company pursuant to this Agreement and as otherwise expressly provided in this Agreement, Executive, for himself/herself and his/her heirs, executors, administrators, assigns, successors and agents (collectively, the “Executive’s Affiliates”) hereby fully and without limitation releases and forever discharges the Company and its Related
Entities, and each of their respective agents, representatives, stockholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the “Company Releasees”), both individually and collectively, from any and all waivable rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which Executive or any of Executive’s Affiliates has or may have or may claim to have against the Company Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the Effective Date (“Claims”), arising out of, based upon, or relating to his/her employment or the termination of his/her employment with the Company and its Related Entities and/or his/her service as an officer of any of the Company Releasees, any agreement or compensation arrangement between Executive and any of the Company Releasees, to the maximum extent permitted by law.
(b) Executive specifically and expressly releases any Claims arising out of or based on: the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the National Labor Relations Act and the Equal Pay Act, as the same may be amended from time to time; the California common law on fraud, misrepresentation, negligence, defamation, infliction of emotional distress or other tort, breach of contract or covenant, violation of public policy or wrongful termination; state or federal wage and hour laws, and other provisions of the California Labor Code, to the extent these may be released herein as a matter of law; or any other state or federal law, rule, or regulation dealing with the employment relationship, except those claims which may not be released herein as a matter of law.
(c) Nothing contained in this Section 9 or any other provision of this Agreement shall release or waive any right that Executive has to indemnification and/or reimbursement of expenses by the Company and its Related Entities with respect to which Executive may be eligible as provided in California Labor Code section 2802, the Company’s and its Related Entities’ Certificates of Incorporation, Bylaws and any applicable directors and officers, errors & omissions, umbrella or general liability insurance policies, any indemnification agreements, including the Employment Agreement; or any other applicable source, nor prevent Executive from cooperating in an investigation of the Company by the Equal Employment Opportunity Commission (“EEOC”).
10. Waiver of Civil Code Section 1542.
(a) Executive understands and agrees that the release provided herein extends to all Claims released above whether known or unknown, suspected or unsuspected, which may be released as a matter of law. Executive expressly waives and relinquishes any and all rights he/she may have under 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.”
(b) Executive expressly waives and releases any rights and benefits which he/she has or may have under any similar law or rule of any other jurisdiction. It is the intention of each party through this Agreement to fully, finally and forever settle and release the Claims as set forth above. In furtherance of such intention, the release herein given shall be and remain in effect as a full and complete release of such matters notwithstanding the discovery of any additional Claims or facts relating thereto.
11. [If Executive is age 40 or over on Termination Date] Release of Federal Age Discrimination Claims by Executive. Executive hereby knowingly and voluntarily waives and releases all rights and claims, known or unknown, arising under the Age Discrimination In Employment Act of 1967, as amended, which he/she might otherwise have had against the Company or any of the Company Releasees regarding any actions which occurred prior to the date that Executive signed this Agreement, except that Executive is not prevented from cooperating in an investigation by the EEOC or from filing an EEOC charge other than for personal relief.
12. Release by Company and its Related Entities. The Company and its Related Entities hereby release and forever discharge Executive, from any and all waivable actions, causes of action, covenants, contracts, claims and demands of whatever character, nature and kind, whether known or unknown, which the Company and its Related Entities ever had, now have, or any of them hereafter can, shall or may have by reason of Executive’s employment and/or his/her service as a director and/or officer of the Company and/or its Related Entities; provided, however, that this general release shall not apply, or be deemed or construed to apply, to (a) any of Executive’s continuing obligations pursuant to this Agreement or the Employment Agreement, (b) criminal conduct or acts or omissions constituting willful misconduct or gross negligence by Executive during his/her employment with the Company, or (c) recoupment of all or a portion of any previously awarded bonus or equity award pursuant to the Company’s Recoupment (Clawback) Policy that was in effect when the bonus was paid or the equity award vested or was exercised by Executive, whichever was later.
13. [If Executive is age 40 or over on Termination Date] Review and Revocation Rights. Executive hereby is advised of the following:
(a) Executive has the right to consult with an attorney before signing this Agreement and is encouraged by the Company to do so;
(b) Executive has twenty-one (21) days from his/her receipt of this Agreement to consider it; and
(c) Executive has seven (7) days after signing this Agreement to revoke this Agreement, and this Agreement will not be effective until that revocation period has expired without revocation. Executive agrees that in order to exercise his/her right to revoke this Agreement within such seven (7) day period, he/she must do so in a signed writing delivered to the Company’s Board before the close of business on the seventh calendar day after he/she signs this Agreement.
14. Confidentiality of Agreement. After the execution of this Agreement by Executive, neither Executive, his/her attorney, nor any person acting by, through, under or in concert with them, shall disclose any of the terms of or amount paid under this Agreement (other than to state that the Company has filed this Agreement and/or agreements related thereto as public documents) or the negotiation thereof to any individual or entity; provided, however, that the foregoing shall not prevent such disclosures by Executive to his/her attorney, tax advisors and/or immediate family members, as may be required by law, or in connection with Protected Activity (as defined in the Employment Agreement).
15. No Filings. Executive represents that he/she has not filed any lawsuits, claims, charges or complaints, which are pending as of the date hereof, against the Company Releasees with any local, state or federal agency or court from the beginning of time to the date of execution of this Agreement, and that Executive is not aware of any facts that would support any Claims or any compliance-related or code of ethics violations of any kind whatsoever against the Company Releasees, including without limitation any claims for any work-related injuries. If Executive hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the Claims released in this Agreement,
or in any manner asserts against the Company Releasees any of the Claims released in this Agreement, then Executive agrees to pay to the Company Releasees against whom such Claim(s) is asserted, in addition to any other damages caused thereby, all attorneys’ fees incurred by the Company Releasees in defending or otherwise responding to the suit or Claim; provided, however, that this provision shall not obligate Executive to pay the Company Releasees’ attorneys’ fees in any action challenging the release of claims under the Older Workers Benefit Protection Act or the ADEA, unless otherwise allowed by law. If any governmental agency or court ever assumes jurisdiction over any such lawsuit, claim, charge or complaint and/or purports to bring any legal proceeding, in whole or in part, on behalf of Executive based upon events occurring prior to the execution of this Agreement, Executive will request such agency or court to withdraw from and/or to dismiss the lawsuit, claim, charge or complaint with prejudice.
16. Confidential and Proprietary Information. Executive acknowledges that certain information, observations and data obtained by him/her during the course of or related to his/her employment with the Company and its Related Entities (including, without limitation, projection programs, business plans, business matrix programs (i.e., measurement of business), strategic financial projections, certain financial information, shareholder information, technology and product design information, marketing plans or proposals, personnel information, customer lists and other customer information) are the sole property of the Company and its Related Entities and constitute Proprietary Information as defined in Section 6 of the Employment Agreement. Executive represents and warrants that he/she has returned all files, customer lists, financial information and other property of the Company and its Related Entities that were in Executive’s possession or control without retaining copies thereof (other than a copy of the Employee Handbook and personnel records relating to Executive’s employment). Executive further represents and warrants that he/she does not have in his/her possession or control any files, customer lists, financial information or other property of the Company and its Related Entities. In addition to his/her promises in Section 6 of the Employment Agreement, Executive agrees that he/she will not disclose to any person or use any such information, observations or data without the written consent of the Board. If Executive is served with a deposition subpoena or other legal process calling for the disclosure of such information, or if he/she is contacted by any third person requesting such information, he/she will notify the Board as soon as is reasonably practicable after receiving notice and will reasonably cooperate with the Company and its Related Entities in minimizing the disclosure thereof; provided, that nothing in this Agreement will (i) affect Executive’s obligations to testify truthfully in response to any subpoena or other legally required discovery proceeding or (ii) in any way limit or prohibit Executive from engaging in Protected Activity.
17. Prohibited Activities.
(a) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Board.
(b) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself/herself or on behalf of any other person or entity, to solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(c) Scope of Restrictions. Executive agrees that the restrictions in Sections 17 (a) and (b), above, are reasonable and necessary to protect the Company’s trade secrets and that they do not foreclose Executive from working in the medical device industry generally. To the extent that any of the provisions in this Section 17 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 17 is held to be unenforceable, that the remaining provisions of it shall be enforced as written.
18. Remedies. Executive acknowledges that any misuse of Proprietary Information belonging to the Company and its Related Entities, or any violation of Section 6 of the Employment Agreement, and any violation of Sections 14, 16 and 17 of this Agreement, will result in irreparable harm to the Company and its Related Entities, and therefore, the Company and its Related Entities shall, in addition to any other remedies, be entitled to immediate injunctive relief. To the extent there is any conflict between Section 6 of the Employment Agreement and this Section 18, the provision providing the greatest protection to the Company and its Related Entities shall control. In addition, in the event of a breach of any provision of this Agreement by Executive, including Sections 14, 16 and 17, Executive shall forfeit, and the Company and its Related Entities may withhold payment of any unpaid portion of, the Severance Benefits or Enhanced Severance Benefits provided under Section 5, above.
19. Cooperation Clause.
(a) To facilitate the orderly conduct of the Company and its Related Entities’ businesses, for the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company and its Related Entities’ reasonable requests for information or assistance related to the time of his/her employment.
(b) For the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company’s and its Related Entities’ and its or their counsel’s reasonable requests for information or assistance related to (i) any investigations (including internal investigations) and audits of the Company’s and its Related Entities’ management’s current and past conduct and business and accounting practices and (ii) the Company’s and its Related Entities’ defense of, or other participation in, any administrative, judicial, or other proceeding arising from any charge, complaint or other action which has been or may be filed relating to the period during which Executive was employed by the Company and its Related Entities. The Company will promptly reimburse Executive for his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Section 19. Except as required by law or authorized in advance by the Board of Directors of the Company, Executive will not communicate, directly or indirectly, with any third party other than Executive’s legal counsel, including any person or representative of any group of people or entity who is suing or has indicated that a legal action against the Company and its Related Entities or any of their directors or officers is being contemplated, concerning the management or governance of the Company and
its Related Entities, the operations of the Company and its Related Entities, the legal positions taken by the Company and its Related Entities, or the financial status of the Company and its Related Entities. If asked about any such individuals or matters, Executive shall say: “I have no comment,” and shall direct the inquirer to the Company. Executive acknowledges that any violation of this Section 19 will result in irreparable harm to the Company and its Related Entities and will give rise to an immediate action by the Company and its Related Entities for injunctive relief.
20. No Future Employment. Executive understands that his/her employment with the Company and its Related Entities will irrevocably end as of the Termination Date and will not be resumed at any time in the future. Executive agrees that he/she will not apply for, seek or accept employment by the Company and its Related Entities at any time, unless invited to do so by the Company and its Related Entities.
21. Tax Issues. The parties agree that the payments and benefits provided under this Agreement, and all other contracts, arrangements or programs that apply to him/her, shall be subject to Section 16 of the Employment Agreement.
22. Non-disparagement. Executive agrees not to criticize, denigrate, or otherwise disparage the Company and its Related Entities, or any of their directors, officers, products, processes, experiments, policies, practices, standards of business conduct, or areas or techniques of research. The Company agrees not to authorize or condone denigrating or disparaging statements about Executive to any third party, including by press release or other formally released announcement. Factually accurate statements in legal or public filings shall not violate this provision. In addition, nothing in this Section 22 shall prohibit Executive or the Company or the Board, or any of their employees or members from complying with any lawful subpoena or court order or taking any other actions affirmatively authorized by law.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflict of laws.
24. Dispute Resolution. The parties hereby agree that all disputes, claims or controversies arising from or otherwise in connection with this Agreement (except for injunctive relief sought by either party) between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, and any director, stockholder or employee of the Company will be resolved in accordance with Section 13 of the Employment Agreement, except for its attorneys’ fee provision.
25. Attorneys’ Fees. Except as otherwise provided herein, in any action, litigation or proceeding between the parties arising out of or in relation to this Agreement, including any purported breach of this Agreement, the prevailing party shall be entitled to an award of its costs and expenses, including reasonable attorneys’ fees.
26. Non-Admission of Liability. The parties understand and agree that neither the payment of any sum of money nor the execution of this Agreement by the parties will constitute or be construed as an admission of any wrongdoing or liability whatsoever by any party.
27. Severability. If any one or more of the provisions contained herein (or parts thereof), or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof will not be in any way impaired or affected, it being intended that all of the rights and privileges shall be enforceable to the fullest extent permitted by law.
28. Entire Agreement. This Agreement represents the sole and entire agreement among the parties and, except as expressly stated herein, supersedes all prior agreements, negotiations and discussions among the parties with respect to the subject matters contained herein.
29. Waiver. No waiver by any party hereto at any time of any breach of, or compliance with, any condition or provision of this Agreement to be performed by any other party hereto may be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at any prior or subsequent time.
30. Amendment. This Agreement may be modified or amended only if such modification or amendment is agreed to in writing and signed by duly authorized representatives of the parties hereto, which writing expressly states the intent of the parties to modify this Agreement.
31. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original as against any party that has signed it, but both of which together will constitute one and the same instrument.
32. Assignment. This Agreement inures to the benefit of and is binding upon the Company and its successors and assigns, but Executive’s rights under this Agreement are not assignable, except to his/her estate.
33. Notice. All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) if personally delivered or delivered by overnight courier; (b) if sent by electronic mail, telecopy or facsimile (except for legal process); or (c) if mailed by overnight or by first class, United States certified or registered mail, postage prepaid, return receipt requested, and properly addressed as follows:
|
If to the Company: |
Accuray Incorporated | |
|
|
|
1310 Chesapeake Terrace |
|
|
|
Sunnyvale, California 94089 |
|
|
|
Attn: Board of Directors |
|
|
|
c/o Corporate Secretary |
|
|
|
Fax No. (408) 789-4205 |
|
|
| |
|
If to Executive: |
|
Address: most recent on file with the Company |
|
|
|
Email: most recent on file with the Company |
Such addresses may be changed, from time to time, by means of a notice given in the manner provided above. Notice will conclusively be deemed to have been given when personally delivered (including, but not limited to, by messenger or courier); or if given by mail, on the third business day after being sent by first class, United States certified or registered mail; or if given by Federal Express or other similar overnight service, on the date of delivery; or if given by electronic mail, telecopy or facsimile machine during normal business hours on a business day, when confirmation of transmission is indicated by the sender’s machine; or if given by electronic mail, telecopy or facsimile machine at any time other than during normal business hours on a business day, the first business day following when confirmation of transmission is indicated by the sender’s machine. Unless otherwise agreed, notices, requests, demands and other communications delivered to legal counsel of any party hereto, whether or not such counsel shall consist of in-house or outside counsel, shall not constitute duly given notice to any party hereto.
34. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and fully understand all of its terms; that they have conferred with their attorneys, or have knowingly and voluntarily chosen not to confer with their attorneys about this Agreement; that they have executed this Agreement without coercion or duress of any kind; and that they understand any rights that they have or may have, and they are signing this Agreement with full knowledge of any such rights.
(b) Both parties have participated in the drafting of this Agreement with the assistance of counsel to the extent they desired. The language in all parts of this Agreement must be in all cases construed simply according to its fair meaning and not strictly for or against any party. Whenever the context requires, all words used in the singular must be construed to have been used in the plural, and vice versa, and each gender must include any other gender. The captions of the Sections of this Agreement are for convenience only and must not affect the construction or interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party hereto is both a covenant and condition, and is a material consideration for the other party’s performance hereunder, and any breach thereof by the party will be a material default hereunder. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement are cumulative and no one of them is exclusive of any other. Time is of the essence in the performance of this Agreement.
(d) Each party acknowledges that no representation, statement or promise made by any other party, or by the agent or attorney of any other party, except for those in this Agreement, has been relied on by him/her or it in entering into this Agreement.
(e) Unless expressly set forth otherwise, all references herein to a “day” are deemed to be a reference to a calendar day. All references to “business day” mean any day of the year other than a Saturday, Sunday or a public or bank holiday in Orange County, California. Unless expressly stated otherwise, cross-references herein refer to provisions within this Agreement and are not references to any other document.
(f) Each party to this Agreement will cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
EACH OF THE PARTIES ACKNOWLEDGES THAT HE/SHE/IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT, AND THAT IT INCLUDES A WAIVER OF THE RIGHT TO A TRIAL BY JURY, AND, WITH RESPECT TO EXECUTIVE, HE/SHE UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
(Signature page follows)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the dates written below.
|
EXECUTIVE: |
| |||
|
|
| |||
|
|
Date: |
| ||
|
|
|
| ||
|
COMPANY: |
Accuray Incorporated | |||
|
|
|
| ||
|
|
By: |
| ||
|
|
Name: |
| ||
|
|
Title: |
| ||
|
|
|
| ||
|
|
Date: |
| ||
Exhibit B
SECTION 7 OF THE DEFEND TRADE SECRETS ACT OF 2016
“ . . . An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. . . . An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual—(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”
AMENDED AND RESTATED RENEWAL EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Renewal Executive Employment Agreement (“Agreement”) is entered into and effective as of January 1, 2018 (“Effective Date”), by and between Accuray Incorporated, a Delaware corporation (the “Company”), and Kevin Waters (“Executive”).
RECITALS
A. The Company is in the business of developing, manufacturing and selling radiation oncology, including radio surgery and radiation therapy, technologies and devices (the “Business”).
B. The Company previously entered into a Renewal Executive Employment Agreement dated January 1, 2017 (the “Prior Agreement”) to employ Executive to serve as Senior Vice President, Chief Financial Officer.
C. The Company and Executive wish to amend and restate the terms of the Prior Agreement as set forth herein to modify certain terms.
D. As of the Effective Date, Executive has commenced full-time employment with the Company.
NOW, THEREFORE, the parties agree that the Prior Agreement is hereby amended and restated to read in its entirety as follows:
1. Position and Duties.
(a) During the term of this Agreement, Executive will be employed by the Company to serve as Senior Vice President, Chief Financial Officer of the Company, reporting to the Chief Executive Officer of the Company. Executive will be responsible for: (i) performing the duties and responsibilities customarily expected to be performed by such position and (ii) performing such other duties and functions as are reasonably required and/or as may be reasonably prescribed by the Company from time to time.
(b) The location of Executive’s employment will be the Company’s headquarters offices, but Executive from time to time may be required to travel to other geographic locations in connection with the performance of his/her duties.
2. Standards of Performance. Executive will at all times faithfully, industriously and to the best of his/her ability, experience and talents perform all of the duties required of and from him/her pursuant to the terms of this Agreement. Executive will devote his/her full business energies and abilities and all of his/her business time to the performance of his/her duties hereunder and will not, without the Company’s prior written consent, render to others any service of any kind (whether or not for compensation) that, in the Company’s sole but reasonable judgment, would interfere with the full performance of his/her duties hereunder. Notwithstanding the foregoing, Executive is permitted to spend reasonable amounts of time to manage his/her personal financial and legal affairs and, with the Company’s consent which will not be unreasonably withheld, to serve on one civic, charitable, not-for-profit, industry or corporate board or advisory committee, provided that such activities, individually and collectively, do not materially interfere with the performance of Executive’s duties hereunder. In no event will Executive engage in any activities that could reasonably create a conflict of interest or the appearance of a conflict of interest. Executive shall be subject to the Company’s policies, procedures and approval practices, as generally in effect from time to time.
3. Term.
(a) Term of Agreement. This Agreement will have an initial term of three (3) years commencing on the Effective Date (the “Initial Term”). On the third anniversary of the Effective Date, this Agreement will renew automatically for additional three (3) year terms (each, an “Additional Term” and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the date of automatic renewal; provided, however, that if the Company enters into a definitive agreement to be acquired and the transactions contemplated thereby would result in the occurrence of a Change in Control (as defined below) if consummated, then the Company will no longer be permitted to provide Executive with written notice to not renew this Agreement unless such definitive agreement is terminated without the Change in Control being consummated. If the Change in Control is consummated, the Agreement will continue in effect through the longer of the date that is twelve (12) months following the effective date of the Change in Control or the remainder of the Term then in effect (for purposes of clarification, it will be possible for the Term of the Agreement to automatically extend after the Company enters into the definitive agreement, but before the Change in Control is consummated). If the definitive agreement is terminated without the transactions contemplated thereby having been consummated and at the time of such termination there is at least twelve (12) months remaining in the Term, the Agreement will continue in effect for the remainder of the Term then in effect, but if there is less than twelve (12) months remaining in the Term then in effect, the Agreement will automatically extend for an additional three (3) years from the date the definitive agreement is terminated. If Executive becomes entitled to benefits under Section 5 during the term of this Agreement, the Agreement will not terminate until all of the obligations of the parties hereto with respect to this Agreement have been satisfied.
(b) At-Will Employment. The Company and Executive acknowledge that, notwithstanding the foregoing, Executive’s employment is and will continue to be at-will, as defined under applicable law. As an at-will employee, either the Company or the Executive may terminate the employment relationship at any time, with or without cause; provided, however, that in connection with such termination, the Company will provide Executive with any applicable benefits under Section 5 to which Executive is entitled, all in accordance with the terms and conditions thereof.
4. Compensation and Benefits.
(a) Base Salary. As an annual base salary (“Base Salary”) for all services rendered pursuant to this Agreement, Executive will be paid an initial Base Salary in the gross amount of $435,000 calculated on an annualized basis, less necessary withholdings and authorized deductions, and payable pursuant to the Company’s regular payroll practices at the time. The Base Salary is first subject to review and adjustment within the first three (3) months after the end of the fiscal year that includes the Effective Date, and, thereafter, subject to periodic review and adjustment not less frequently than annually within the first three (3) months after the end of the next successive fiscal year, in the sole discretion of the Company. Executive’s Base Salary will not be reduced from the level in effect from time to time, except that the Base Salary may be reduced in connection with a salary reduction program of general application to senior executives of the Company where each experiences a substantially similar reduction on a percentage basis.
(b) Performance Bonus. During Executive’s employment under this Agreement, Executive will be eligible for a performance bonus, subject to the terms and conditions of the Company’s Performance Bonus Plan, which is applicable to senior executives of the Company. The target amount of Executive’s annual bonus is sixty percent (60%) of Executive’s annual Base Salary (as defined in the Company’s Performance Bonus Plan as then in effect). However, payment of the performance bonus will
be conditioned on the Company’s achievement of corporate performance objectives approved by the Company and on the Executive’s achievement of individual performance metrics to be established annually and approved by the Company, all as established pursuant to the Company’s Performance Bonus Plan as then in effect, and the bonus may be zero. For the avoidance of doubt, the performance bonus will be payable only if the corporate and/or individual performance objectives approved by the Company are achieved as determined by the Company, subject to the Company’s right to exercise discretion in determining the amount of the bonus to be awarded, if any, as set forth in the Company’s Performance Bonus Plan then in effect. To encourage continued tenure with the Company, Executive must be employed by the Company as of the payment date to be eligible for a performance bonus for the year to which the bonus relates, unless otherwise provided in Section 5. Performance bonuses will be paid out according to the terms of the Company’s Performance Bonus Plan.
(c) Equity Incentive Awards.
(i) Stock Options. The Company may grant to Executive the option to purchase shares of the Company’s common stock (“Options”) pursuant to the Accuray Incorporated 2016 Equity Incentive Plan (the “Incentive Plan”). All Options shall be subject to the terms and conditions of the Incentive Plan and a stock option grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the Options.
(ii) Restricted Stock Units. The Company may grant to Executive restricted stock units (“RSUs”) pursuant to the Incentive Plan. All RSUs are subject to and conditioned on approval of the grant and its terms by the Company’s Board of Directors (the “Board”). All RSUs shall be subject to the terms and conditions of the Incentive Plan and a RSU grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the RSUs.
(iii) Market Stock Units. The Company may grant to Executive performance-based market stock units (“MSUs”) pursuant to the Incentive Plan. All MSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted MSUs shall vest as provided in the applicable MSU grant notice and grant agreement (“MSU Agreement”). All MSUs shall be subject to the terms and conditions of the Incentive Plan and a MSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the MSUs.
(iv) Performance Stock Units. The Company may grant to Executive performance stock units (“PSUs”) pursuant to the Incentive Plan. All PSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted PSUs shall vest as provided in the applicable PSU grant notice and grant agreement (“PSU Agreement”). All PSUs shall be subject to the terms and conditions of the Incentive Plan and a PSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the PSUs.
(d) Paid Time Off and Benefits. Executive will accrue and be allowed to use paid time off for vacation, illness and holidays pursuant to the Company’s policies that apply to executive officers of the Company. In addition, Executive will be entitled to participate in any plans regarding benefits of employment, including pension, profit sharing, group health, disability insurance and other employee pension and welfare benefit plans now existing or hereafter established to the extent that Executive is eligible under the terms of such plans and if the other executive officers of the Company generally are eligible to participate in such plan. The Company may, in its sole discretion and from time to time, establish additional senior management benefit plans as it deems appropriate. Executive understands that any such plans may be modified or eliminated in the Company’s sole discretion in accordance with applicable law, provided that no such modification or elimination shall result in reducing or eliminating any benefits in which Executive’s right has vested.
(e) Reimbursement of Business Expenses. The Company will promptly reimburse to Executive his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Agreement, and in accordance with the policies and procedures established by the Company; provided that each reimbursement shall be requested within two (2) months after being incurred.
(f) Sarbanes-Oxley Act Loan Prohibition and Company Compensation-Related Polices. To the extent that any Company benefit, program, practice, arrangement or this Agreement would or might otherwise result in Executive’s receipt of an illegal loan (the “Loan”), the Company shall use commercially reasonable efforts to provide Executive with a substitute for the Loan that is lawful and of at least equal value to Executive. If this cannot be done, or if doing so would be significantly more expensive to the Company than making the Loan, the Company need not make the Loan to Executive or provide him/her a substitute for it. Further, Executive acknowledges that any bonus or equity award provided for in this Agreement or otherwise awarded to him/her shall be subject to the Company’s policies regarding recoupment and clawback, as such policies may be amended from time to time, and agrees that he/she will be subject to, and shall comply with, the Company’s stock ownership requirements which are set forth in its Amended and Restated Corporate Governance Guidelines, as such requirements may be amended from time to time, and the Company’s Insider Trading Policy, as amended from time to time.
5. Termination of Employment.
(a) By Company Without Cause. Subject to the last paragraph of this Section 5(a), the Company may terminate Executive’s employment without Cause (as defined below) effective on thirty (30) days’ written notice (such thirty (30)-day period, the “Notice Period”, and such notice, the “Termination Notice”), during which notice period Executive may be relieved of his/her duties and placed on paid terminal leave. In such event and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) continued coverage under the Company’s insurance benefit plans through the termination date and such other benefits to which he/she may be entitled pursuant to the Company’s benefit plans, provided, however, that Executive shall not participate in any severance plan of the Company;
(ii) payment of all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and
(iii) reimbursement of expenses incurred on or before the termination date in accordance with Section 4(e), above, if a request for reimbursement of the expenses was timely submitted to the Company; plus
(iv) payment of the equivalent of the Base Salary without regard to any reduction that would otherwise constitute Good Reason he/she would have earned over the next six (6) months following the termination date (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Severance Payment”), payable in a lump sum on the first regularly scheduled payroll date following the date the Release becomes effective and irrevocable (the “Release Effective Date”), but in any event within ten (10) business days of the Release Effective Date and subject to Section 16, below;
(v) payment of a prorated portion of the actual bonus Executive would have otherwise received for the fiscal year during which the termination occurs, as if Executive had remained employed by the Company through the date that would have otherwise been required to earn the bonus, but without the Board or any committee of the Board exercising any negative discretion to reduce the amount
of the award, calculated by dividing the number of days from the start of the fiscal year through the termination date by 365 and multiplying the amount of such actual bonus Executive would have otherwise received by this percentage (but not by more than 100%), and paid at the same time as bonuses are paid to other Company executives that are similarly situated to Executive; provided, however, that if the termination date is after the seventh month of the fiscal year, the actual bonus will not be prorated and Executive will receive 100% of such actual bonus Executive would have otherwise received for that fiscal year at the same time as bonuses are paid to other Company executives that are similarly situated to Executive;
(vi) subject to Section 5(g), reimbursement of insurance premiums payable to retain group health coverage as of the termination date for himself/herself and his/her eligible dependents pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) for six (6) months or the maximum period of COBRA coverage, whichever is less; provided that Executive must submit a reimbursement request in accordance with Company policy within thirty (30) days of paying such insurance premiums. The Company will reimburse the executive within thirty (30) days of receiving a properly submitted request. In addition, if Executive accepts other employment within such six (6) months, the Company’s obligation under this Section 5(a)(vi) will be extinguished as of the date Executive becomes covered under the group health plan of Executive’s new employer; and
(vii) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
The payments and benefits set forth in Sections 5(a)(i)-(iii) shall be referred to as the “Accrued Benefits”, and the payments and benefits set forth in Sections 5(a)(iv)-(vii) shall be referred to as the “Severance Benefits”. Executive shall not receive the Severance Benefits, the “Enhanced Severance Benefits” as provided in Section 5(e), or the Termination Notice Replacement Payment (as defined below) unless Executive executes the separation agreement and general release attached as Exhibit A (the “Release”), and the same becomes irrevocable pursuant to its terms within the 60-day period following his/her termination of employment. Notwithstanding the foregoing paragraphs of this Section 5(a), the Company may terminate Executive’s employment prior to the expiration of the Notice Period, and in the case of such termination, the Company shall pay Executive the equivalent of the Base Salary he/she would have earned over the remainder of the Notice Period (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Termination Notice Replacement Payment”), subject to Executive satisfying the requirements of the previous sentence. Any such Termination Notice Replacement will be paid in a lump sum at the same time as the Severance Payment.
(b) By Company With Cause. The Company may terminate Executive’s employment at any time and without prior notice, written or otherwise, for Cause. As used in this Agreement, “Cause” shall mean any of the following conduct by Executive: (i) material breach of this Agreement, or of a Company policy or of a law, rule or regulation applicable to the Company or its operations; (ii) demonstrated and material neglect of duties, or failure or refusal to perform the material duties of his/her position, or the failure to follow the reasonable and lawful instructions of the Company; (iii) gross misconduct or dishonesty, self-dealing, fraud or similar conduct that the Company reasonably determines has caused, is causing or reasonably is likely to cause harm to the Company; or (iv) conviction of or plea of guilty or nolo contendere to any crime other than a traffic offense that is not punishable by a sentence of incarceration. Termination pursuant to Section 5(b)(ii) shall be effective only if such failure continues after Executive has been given written notice thereof and fifteen (15) business days thereafter in which to present his/her position to the Company or to cure the same, unless the Company reasonably determines that the reason(s) for termination are not capable of being cured. In the event of termination for Cause, Executive
will be entitled only to the Accrued Benefits through the termination date, which will be the date on which the notice is given. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs), or severance payment of any kind nor to make any payment in lieu of notice.
(c) Incapacity or Death.
(i) If Executive becomes unable, due to physical or mental illness or injury, to perform the essential duties of his/her position for more than twelve (12) consecutive weeks in any twelve (12) month period during this Agreement with or without reasonable accommodation (“Incapacity”), the Company has the right to terminate Executive’s employment on fifteen (15) days’ written notice. In the event of termination for Incapacity, (i) Executive will be entitled to receive the Accrued Benefits, (ii) any unvested equity awards previously granted to Executive that are scheduled to vest based solely on the achievement of service-based conditions (“Time-based Equity Awards”) shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any equity awards that are scheduled to vest based on the achievement of performance-based conditions (which may include additional service-based conditions) (“Performance-based Equity Awards”) for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee of the Board (the “Compensation Committee”) determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved; and
(ii) Executive’s employment pursuant to this Agreement shall be immediately terminated without notice by the Company upon the death of Executive. If Executive dies while actively employed pursuant to this Agreement, (i) the Company will pay to his/her estate or designated beneficiaries within sixty (60) days the Accrued Benefits, (ii) any unvested Time-based Equity Awards shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any Performance-based Equity Awards for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved.
(d) Resignation for Good Reason. Executive may terminate this Agreement for Good Reason (as defined below) by giving written notice to the Company of such termination, subject to Executive complying with the notice, cure period and other requirements set forth within the definition of Good Reason below. As used in this Agreement, “Good Reason” shall mean the occurrence of any one of the following without Executive’s written consent: (i) a material reduction in Executive’s base compensation (which includes Base Salary, the Executive’s target bonus and any other base compensation) and/or a material breach of this Agreement by the Company resulting from the failure to provide the benefits required in Section 4, (ii) any action or inaction that constitutes a material breach by the Company of this Agreement; (iii) a material diminution in Executive’s authority, duties or responsibilities such that they are materially inconsistent with his/her position as Senior Vice President, Chief Financial Officer of the
Company; and (iv) relocation of the Company’s headquarters to a location that materially increases Executive’s commute, provided that no termination for Good Reason shall be effective until Executive has given the Company written notice (pursuant to Section 11 below) within sixty (60) days after Executive becomes aware of the initial occurrence of any of the foregoing specifying the event or condition constituting the Good Reason and the specific reasonable cure requested by Executive, and the Company has failed to cure the occurrence within thirty (30) days of receiving written notice from Executive, and Executive resigns within six (6) months after Executive becomes aware of the initial occurrence. In the event of a termination for Good Reason, Executive will be entitled to the Accrued Benefits and the Severance Benefits, on the same conditions, form of payment and timing as set forth in Section 5(a).
(e) Effect of Change in Control. If the Company terminates Executive’s employment with the Company without Cause (excluding due to Executive’s death or Incapacity) or if Executive resigns from such employment for Good Reason, and, in each case, such termination occurs during the Change in Control Period (as defined below), Executive will be entitled to the Accrued Benefits, and subject to the same conditions set forth in the final paragraph of Section 5(a), (i) four times the Severance Payment set forth in Section 5(a)(iv), paid in the same form (i.e., a lump sum) and at the same time as the Severance Payments set forth in Section 5(a)(iv), (ii) subject to Section 5(g), the reimbursement of Executive’s insurance premiums for twelve (12) months in the same form and at the same time and under the same conditions as provided in Section 5(a)(vi), (iii) a taxable monthly payment (which may be used for any purpose) equal to actual the COBRA reimbursement payment that Executive receives under Section 5(e)(ii) for any particular month, (iv) two hundred percent (200%) of Executive’s target bonus for the fiscal year during which termination occurs, but no less than two hundred percent (200%) of the target bonus in effect for the fiscal year immediately prior to the Change in Control if the Change in Control occurs within the first three (3) months of the fiscal year, payable at the same time as the payment under clause (i) of this Section 5(e), (v) all outstanding unvested equity awards previously granted to Executive shall become immediately vested (the “Enhanced Severance Benefits”), and (vi) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
For the avoidance of doubt, if Executive’s termination without Cause (excluding due to Executive’s death or Incapacity) or resignation for Good Reason occurs prior to a Change in Control, then any unvested portion of Executive’s outstanding equity awards will remain outstanding until the earlier of (i) the date that is three (3) months following the termination of Executive’s employment or (ii) the date that a Change in Control occurs (provided that in no event will any of Executive’s equity awards remain outstanding beyond the equity award’s maximum term to expiration). In the event that a Change in Control does not occur by the date that is three (3) months following the termination of Executive’s employment, any unvested portion of Executive’s equity awards automatically will be forfeited permanently without having vested. Further, for any Performance-based Equity Awards, the performance-based vesting component of the equity awards shall not be deemed to be automatically achieved as a result of the application of Section 5(e)(v) but will remain outstanding during the three (3) month period following Executive’s termination or through the date of the Change in Control, as applicable, to determine whether a Change in Control would have occurred within three (3) months of the termination of Executive’s employment and, if so, the extent to which the performance condition is achieved, such determination to be made in accordance with the procedures set forth in the applicable award agreement. If the performance condition is satisfied and that would cause the award to become eligible to vest based on continued service, then clause (v) of this Section 5(e) will cause the service-based vesting component to be deemed satisfied and the vesting of the equity award will be accelerated as to the portion of the award that became eligible to vest. For clarity, if there is no service-based condition that applies with respect to any portion of such equity award upon such satisfaction of the performance condition, such portion of the equity award will immediately vest upon such satisfaction of the performance condition.
For the sake of clarity, if any payments or benefits are payable under this Section 5(e), no payments or benefits shall be made under any other subsection of this Section 5, including Section 5(a) and Section 5(d), and any Enhanced Severance Benefits will be reduced by any Severance Benefits that may have been paid or provided with respect to any termination triggering Severance Benefits that occurs during the three-month period prior to a Change in Control (this provision, the “Non-duplication Provision”).
As used in this Agreement, a “Change in Control” shall mean any of the following events:
(i) the acquisition by any Group or Person (as such terms are defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)), other than (A) a trustee or other fiduciary holding securities of the Company under an employee benefit plan of the Company or (B) an entity in which the Company directly or indirectly beneficially owns fifty percent (50%) or more of the voting securities of such entity (an “Affiliate”), of any securities of the Company, immediately after which such Group or Person has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty percent (50%) or more of (X) the outstanding shares of Common Stock or (Y) the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors;
(ii) the Company (and/or its subsidiaries) is a party to a merger or consolidation with a Person other than an Affiliate, which merger or consolidation results in (a) the holders of voting securities of the Company outstanding immediately before such merger or consolidation failing to continue to represent (either by remaining outstanding or being converted into voting securities of the surviving entity) fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the corporation or entity resulting from or surviving such merger or consolidation or (b) individuals who are directors of the Company just prior to such merger or consolidation not constituting more than fifty percent (50%) of the members of the Board of Directors of the surviving entity or corporation immediately after the consummation of such merger or consolidation; or
(iii) all or substantially all of the assets of the Company and its subsidiaries are, in any transaction or series of transactions, sold or otherwise disposed of (or consummation of any transaction, or series of related transactions, having similar effect), other than to an Affiliate;
provided, however, that in no event shall a “Change in Control” be deemed to have occurred for purposes of this Agreement solely because the Company engages in an internal reorganization, which may include a transfer of assets to, or a merger or consolidation with, one or more Affiliates. Additionally, with respect to the payment of any “nonqualified deferred compensation” within the meaning of section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), that is not exempt from section 409A of the Code, no event shall constitute a Change in Control unless it also constitutes a change in the ownership of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(v)), a change in effective control of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vi)), or a change in the ownership of a substantial portion of the assets of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vii)).
As used in this Agreement, a “Change in Control Period” shall mean the period beginning three (3) months prior to, and ending twelve (12) months following, a Change in Control.
(f) Voluntary Resignation without Good Reason. Executive may terminate this Agreement without Good Reason effective on sixty (60) day’s written notice, unless the Company in its sole discretion accepts the resignation earlier. In the event that Executive resigns without Good Reason as defined above in Section 5(d), Executive will be entitled only to the Accrued Benefits through the termination date. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs unless he/she remains employed with the Company as of the date bonuses are paid to other senior executives of the Company), or severance payments of any kind.
(g) If the Company determines in its sole discretion that it cannot make the COBRA reimbursements under Section 5(a)(vi) or Section 5(e)(ii) (the “COBRA Reimbursements”) without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue the Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA continuation coverage), which payments will be made regardless of whether the Executive elects COBRA continuation coverage and will commence on the month following the Executive’s termination of employment and will end on the earlier of (x) the date upon which the Executive obtains other employment or (y) the date the Company has paid an amount equal to (A) 6 payments if Executive is receiving the Severance Benefits pursuant to Section 5(a) or (B) subject to the Non-duplication Provision, 12 payments if Executive is receiving the Enhanced Severance Benefits pursuant to Section 5(e). For the avoidance of doubt, such taxable payments in lieu of COBRA Reimbursements (the “COBRA Substitute Payments”) may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholding.
6. Proprietary Information Obligations.
(a) Proprietary Information and Confidentiality. Both before and during the term of Executive’s employment, Executive will have access to and become acquainted with Company confidential and proprietary information (together “Proprietary Information”), including but not limited to information or plans concerning the Company’s products and technologies; customer relationships; personnel; sales, marketing and financial operations and methods; trade secrets; formulae and secret developments and inventions; processes; and other compilations of information, records, and specifications. Executive will not disclose any of the Proprietary Information directly or indirectly, or use it in any way, either during his/her employment pursuant to this Agreement or at any time thereafter, except as reasonably required or specifically requested in the course of his/her employment with the Company or as authorized in writing by the Company. Notwithstanding the foregoing, Proprietary Information does not include information that is otherwise publicly known or available, provided it has not become public as a result of a breach of this Agreement or any other agreement Executive has to keep information confidential. It is not a breach of this Agreement for Executive to disclose Proprietary Information (i) pursuant to an order of a court or other governmental or legal body or (ii) in connection with Protected Activity (as defined below). Executive understands that nothing in this Agreement shall in any way limit or prohibit Executive from engaging in any Protected Activity. For purposes of this Agreement, “Protected Activity” means filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding that may be conducted by any federal, state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board (“Government Agencies”). Executive understands that in connection with such Protected Activity, Executive is permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, the Company. Notwithstanding, in making any such disclosures or communications, Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Proprietary Information to any parties other than the Government Agencies. Executive further understands that “Protected Activity” does not include the disclosure of any Company attorney-client privileged communications. In addition, Executive hereby acknowledges that the Company has provided Executive with notice in compliance with the Defend Trade Secrets Act of 2016 regarding immunity from liability for limited disclosures of trade secrets. The full text of the notice is attached in Exhibit B.
(b) Inventions Agreement and Assignment.
(i) Executive hereby agrees to disclose promptly to the Company (or any persons designated by it) all developments, designs, creations, improvements, original works of authorship, formulas, processes, know-how, techniques and/or inventions (collectively, the “Inventions”) (A) which are made or conceived or reduced to practice by Executive, either alone or jointly with others, in performing his/her duties during the period of Executive’s employment by the Company, that relate to or are useful in the business of the Company; or (B) which result from tasks assigned to Executive by the Company, or from Executive’s use of the premises or other resources owned, leased or contracted by the Company.
(ii) Executive agrees that all such Inventions which the Company in its discretion determines to be related to or useful in its business or its research or development, or which result from work performed by Executive for the Company, will be the sole and exclusive property of the Company and its assigns, and the Company and its assigns will have the right to use and/or to apply for patents, copyrights or other statutory or common law protections for such Inventions in any and all countries. Executive further agrees to assist the Company in every reasonable way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights and other statutory or common law protections for such Inventions in any and all countries. To that end, Executive will execute all documents for use in applying for and obtaining such patents, copyrights and other statutory or common law protections therefor and enforcing the same, as the Company may desire, together with any assignments thereof to the Company or to persons or entities designated by the Company. Should the Company be unable to secure Executive’s signature on any document necessary to apply for, prosecute, obtain, or enforce any patent, copyright or other right or protection relating to any Invention, whether due to his/her mental or physical incapacity or any other cause, Executive hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as Executive’s agent and attorney-in-fact, to act for and in his/her behalf and stead, to execute and file any such document, and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights or other rights or protections with the same force and effect as if executed and delivered by Executive. Executive’s obligations under this Section 6(b)(ii) will continue beyond the termination of Executive’s employment with the Company, but the Company will compensate Executive at a reasonable rate after such termination for time actually spent by Executive at the Company’s request in providing such assistance.
(iii) Executive hereby acknowledges that all original works of authorship which are made by Executive (solely or jointly with others) within the scope of Executive’s employment which are protectable by copyright are “works for hire,” as that term is defined in the United States Copyright Act (17 USCA, Section 101).
(iv) Any provision in this Agreement requiring Executive to assign Executive’s rights in any Invention to the Company will not apply to any invention that is exempt under the provisions of California Labor Code section 2870, which provides:
“(a) 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. (b) 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 subdivision (a), the provision is against the public policy of this state and is unenforceable.”
(c) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Company; provided, however, that if Executive is or becomes a permanent resident of the state of California and remains such a permanent resident through the date of termination of Executive’s employment, this Section 6(c) shall not apply following the termination of Executive’s employment with the Company.
(d) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself or on behalf of any other person or entity, solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(e) Company Property and Materials.
(i) All files, records, documents, computer-recorded or electronic information, drawings, specifications, equipment, and similar items relating to Company business, whether prepared by Executive or otherwise coming into his/her possession, will remain the Company’s exclusive property and will not be removed from Company premises under any circumstances whatsoever without the Company’s prior written consent, except when, and only for the period, necessary to carry out Executive’s duties hereunder
(ii) In the event of termination of Executive’s employment for any reason, Executive will promptly deliver to the Company all Company equipment (including, without limitation, any cellular phones, beeper/pagers, computer hardware and software, fax machines and other tools of the trade) and all originals and copies of all documents, including without limitation, all books, customer lists, forms, documents supplied by customers, records, product lists, writings, manuals, reports, financial documents and other documents or property in Executive’s possession or control, which relate to the
Company’s business in any way whatsoever, and in particular to customers of the Company, or which may be considered to constitute or contain Proprietary Information as defined above, and Executive will neither retain, reproduce, nor distribute copies thereof (other than copies of Executive’s electronic or hardcopy address and telephone contact data base or directories). Notwithstanding the foregoing, Executive shall be allowed to retain a copy of the Employee Handbook and personnel records relating to Executive’s employment.
(f) Remedies for Breach. Executive acknowledges that any breach by Executive of this Section 6 would cause the Company irreparable injury and damage for which monetary damages are inadequate. Accordingly, in the event of a breach or a threatened breach of this Section 6, the Company will be entitled to seek an injunction restraining such breach. In addition, in the event of a breach of this Section 6, the Company’s obligation to pay any unpaid portion of the Severance Payment or other benefits as set forth in Sections 5(a) and (d) of this Agreement will be extinguished. Nothing contained herein will be construed as prohibiting the Company from pursuing any other remedy available to the Company for such breach or such threatened breach. Executive has carefully read and considered these restrictions and agrees they are fair and reasonable restrictions on Executive and are reasonably required for the protection of the interests of the Company. Executive agrees not to circumvent the spirit of these restrictions by attempting to accomplish indirectly what Executive is otherwise restricted from doing directly. Executive agrees that the restrictions in this Section 6 are reasonable and necessary to protect the Company’s Proprietary Information, and they do not prevent Executive from working in the medical device industry. Executive agrees that the covenants and agreements by Executive contained in this Section 6 shall be in addition to any other agreements and covenants Executive may have agreed to in any other employee proprietary information, confidentiality, non-disclosure or other similar agreement and that this Section 6 shall not be deemed to limit such other covenants and agreements, all of which shall continue to survive the termination of this Agreement in accordance with their respective terms. A breach by Executive of the terms of such other agreements and covenants shall be deemed to be a breach by Executive of this Section 6 and of this Agreement. To the extent any of the provisions in this Section 6 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 6 is held to be unenforceable, the remaining provisions of this Section 6 shall be enforced as written.
7. Interpretation, Governing Law and Exclusive Forum. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of California (excluding any that mandate the use of another jurisdiction’s laws). Any arbitration (unless otherwise mutually agreed), litigation or similar proceeding with respect to such matters only may be brought within Santa Clara County, California, and all parties to this Agreement consent to California’s jurisdiction.
8. Entire Agreement. All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement.
9. Severability. In the event that one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such holding shall not impair the validity, legality or enforceability of the remaining provisions herein.
10. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, Executive and his/her estate, but Executive may not assign or pledge this Agreement or any rights arising under it, except to the extent permitted under the terms of the benefit plans in which he/she participates. No rights or obligations of the Company under this Agreement may be assigned or transferred except that the Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, sale, transfer of stock, consideration or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no succession had taken place. As used in this Agreement, “Company” means the Company as hereinbefore defined and any successor to its business and/or assets (by merger, purchase or otherwise as provided in this Section 10) which executes and delivers the agreement provided for in this Section 10 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. In the event that any successor refuses to assume the obligations hereunder, the Company as hereinbefore defined shall remain fully responsible for all obligations hereunder.
11. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be given by hand delivery, electronic mail, facsimile, telecopy, overnight courier service, or by United States certified or registered mail, return receipt requested. Each such notice, request, demand or other communication shall be effective (i) if delivered by hand or by overnight courier service, when delivered at the address specified in this Section 11; (ii) if given by electronic mail, facsimile or telecopy, when such electronic mail, facsimile or telecopy is transmitted to the electronic mail address or facsimile or telecopy number specified in this Section 11 and confirmation is received if during normal business hours on a business day, and otherwise, on the next business day; and (iii) if given by certified or registered mail, three (3) days after the mailing thereof. Notices shall be addressed to the parties as follows (or at such other address, email address or fax number as either party may from time to time specify in writing by giving notice as provided herein):
|
If to the Company:
If to Executive: |
Accuray Incorporated 1310 Chesapeake Terrace Sunnyvale, California 94089 Attn: General Counsel Fax No. (408) 789-4205
Kevin Waters Address: most recent on file with the Company Email: most recent on file with the Company |
12. Indemnification. As soon as reasonably practicable after the due execution of this Agreement by each of the parties hereto, the Company and Executive will enter into the Company’s standard form of indemnification agreement utilized by the Company for its directors and executive officers.
13. Dispute Resolution. The parties agree that all disputes, claims or controversies between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, including any dispute, claim or controversy arising from or otherwise in connection with this Agreement and/or Executive’s employment with the Company, will be resolved as follows:
(a) Prior to initiating any other proceeding, the complaining party will provide the other party with a written statement of the claim identifying any supporting witnesses or documents and the requested relief. The responding party shall within forty-five (45) days furnish a statement of the relief, if any, that it is willing to provide, and identify supporting witnesses or documents.
(b) If the matter is not resolved by the exchange of statements of claim and statements of response as provided herein, the parties shall submit the dispute to non-binding mediation, the cost of the mediator to be paid by the Company, before a mediator and/or service to be jointly selected by the parties. Each party will bear his/her or its own attorney’s fees and witness fees.
(c) If the parties cannot agree on a mediator and/or if the matter is not otherwise resolved by mediation, any controversy or claim between Executive and the Company and any of its current or former directors, officers and employees, including any arising out of or relating to this Agreement or breach thereof, shall be settled by final and binding arbitration in the county in which Executive last worked, or elsewhere as mutually agreed by the parties, by a single arbitrator pursuant to the Employment Dispute Rules of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), unless the parties to the dispute agree to another arbitration service or independent arbitrator. The parties may conduct discovery to the extent permitted in a court of law; the arbitrator will render an award together with a written opinion indicating the bases for such opinion; and the arbitrator will have full authority to award all remedies that would be available in court. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own attorney’s fees and costs, unless the claim is based on a statute that provides otherwise. The Company will pay the arbitrator’s fees and any administrative charges of the arbitration service, except that if Executive initiates the claim, he/she will pay a portion of the administrative charges equal to the amount he/she would have paid to initiate the claim in a court of general jurisdiction.
(d) EXECUTIVE AND THE COMPANY AGREE THAT THIS ARBITRATION PROCEDURE WILL BE THE EXCLUSIVE MEANS OF REDRESS FOR ANY DISPUTES RELATING TO OR ARISING FROM EXECUTIVE’S EMPLOYMENT WITH THE COMPANY OR TERMINATION THEREFROM, INCLUDING DISPUTES OVER UNPAID WAGES, BREACH OF CONTRACT OR TORT, VIOLATION OF PUBLIC POLICY, RIGHTS PROVIDED BY FEDERAL, STATE OR LOCAL STATUTES, REGULATIONS, ORDINANCES, AND COMMON LAW, LAWS THAT PROHIBIT DISCRIMINATION BASED ON ANY PROTECTED CLASSIFICATION, AND ANY OTHER STATUTES OR LAWS RELATING TO AN EXECUTIVE’S RELATIONSHIP WITH THE COMPANY. THE FOREGOING NOTWITHSTANDING, CLAIMS FOR WORKERS’ COMPENSATION BENEFITS OR UNEMPLOYMENT INSURANCE, OR ANY OTHER CLAIMS WHERE MANDATORY ARBITRATION IS PROHIBITED BY LAW, ARE NOT COVERED BY THIS ARBITRATION PROVISION. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL, AND AGREE THAT THE ARBITRATOR’S AWARD SHALL BE FINAL AND BINDING ON BOTH PARTIES. THIS ARBITRATION PROVISION IS TO BE CONSTRUED AS BROADLY AS IS PERMISSIBLE UNDER APPLICABLE LAW.
14. Representations. Each person executing this Agreement hereby represents and warrants on behalf of himself/herself and of the entity/individual on whose behalf he/she is executing the Agreement that he/she is authorized to represent and bind the entity/individual on whose behalf he/she is executing the Agreement. Executive specifically represents and warrants to the Company that he/she reasonably believes (a) he/she is not under any contractual or other obligations that would prevent, limit or impair Executive’s performance of his/her obligations under this Agreement and (b) that entering into this Agreement will not result in a breach of any other agreement to which he/she is a party. Executive acknowledges that Executive has been given the opportunity to consult with legal counsel and seek such advice and consultation as Executive deems appropriate or necessary.
15. Amendments and Waivers. No provisions of this Agreement may be modified, waived, or discharged except by a written document signed by Executive and a duly authorized Company officer. Thus, for example, promotions, commendations, and/or bonuses shall not, by themselves, modify, amend, or extend this Agreement. A waiver of any conditions or provisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time.
16. Taxes.
(a) Withholdings. The Company may withhold from any compensation and benefits payable under this Agreement all federal, state, city and other taxes or amounts as shall be determined by the Company to be required to be withheld pursuant to applicable laws, or governmental regulations or rulings. Executive shall be solely responsible for the satisfaction of any taxes (including employment taxes imposed on employees and penalty taxes on nonqualified deferred compensation).
(b) Net Proceeds Maximization. Notwithstanding any provision of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates (“Potential Parachute Payments”) would constitute an “excess parachute payment” within the meaning of section 280G of the Code and/or any corresponding and applicable state law provision, the Potential Parachute Payments will be reduced by reducing the amount of the Potential Parachute Payments to the extent necessary so that no portion of the Potential Parachute Payments will be subject to the excise tax imposed by section 4999 of the Code and any corresponding and/or applicable state law provision. Notwithstanding the foregoing, a reduction will be made under the previous sentence only if, by reason of that reduction, Executive’s net after tax benefit exceeds the net after tax benefit he/she would realize if the reduction were not made. For purposes of this paragraph, “net after tax benefit” means the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a “parachute payment” within the meaning of section 280G of the Code and any corresponding and applicable state law provision, plus (ii) all other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute payment” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits are realized by Executive (based upon the rate in effect for that year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by section 4999 of the Code and any corresponding and applicable state law provision. All determinations and calculations made in this paragraph shall be made by an independent accounting firm (the “Accounting Firm”) selected by the Company prior to the Change in Control and the Company will bear all costs and expenses incurred by the Accounting Firm in connection with its determination. The Accounting Firm shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of (x) the Company or any affiliate thereof or (y) Executive. If any payments or benefits are reduced pursuant to this Section 16(b), they shall be reduced in the following order: First all payments and benefits that do not constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code or that are exempt from section 409A of the Code (with the payments or benefits being reduced in reverse order of when they otherwise would be made or provided); second, all payments or benefits that constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code that are not exempt from section 409A of the Code that were granted to Executive in the 12-month period of time preceding the applicable Change in Control, in the order such benefits were granted to Executive; and third, all remaining payments and benefits shall be reduced pro-rata. Notwithstanding the foregoing, if (i) reducing payments or benefits in the order described above would result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), (ii) Executive so notifies the Company before such reductions and payments are made and benefits provided, and (iii) reducing the payments or benefits in another order would not result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), payments and benefits shall instead be reduced in such other order.
(c) Section 409A Compliance.
(i) With respect to any reimbursement of expenses or any provision of in-kind benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangements providing for the reimbursement of expenses referred to in section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(ii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) upon or following a termination of employment unless such termination is also a “separation from service” and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” For purposes of section 409A of the Code, the date as of which Company and Executive reasonably anticipate that no further services would be performed by Executive for Company shall be construed as the date that Executive first incurs a “separation from service” as defined under section 409A of the Code.
(iii) Notwithstanding anything in this Agreement to the contrary, if a payment obligation arises on account of Executive’s separation from service while Executive is a “specified employee” as described in section 409A of the Code and the Treasury Regulations thereunder and as determined by Company in accordance with its procedures, by which determination Executive is bound, any payment of “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) shall be made on the first business day of the seventh month following the date of Executive’s separation from service, or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death together with interest on them for the period of delay at a rate equal to the average prime interest rate published in the Wall Street Journal on any day chosen by the Company during that period. Thereafter, Executive shall receive any remaining payments as if there had not been an earlier delay.
(iv) Notwithstanding anything to the contrary contained in this Agreement, (i) the Executive shall have no legally-enforceable right to, and the Company shall have no obligation to make, any payment or provide any benefit to Executive if having such a right or obligation would result in the imposition of additional taxes under section 409A of the Code, and (ii) any provision that would cause any payment or benefit to fail to satisfy section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by section 409A and may be accomplished by the Company without the Executive’s consent). If any payment is not made or any benefit is not provided under the terms of this Section 16(c)(iv), it is the Company’s present intention to make a similar payment or provide a similar benefit to the Executive in a manner that will not result in the imposition of additional taxes under section 409A of the Code, to the extent feasible. Each payment made under this Agreement is intended to be a separate payment for the purposes of section 409A of the Code.
(v) The Company does not guarantee any particular tax effect to Executive under this Agreement. Company shall not be liable to Executive for any payment made under this Agreement that is determined to result in an additional tax, penalty or interest under section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in
gross income under section 409A of the Code. The parties intend this Agreement to be exempt from, or comply with, the requirements of Section 409A of the Code and the final regulations and any guidance promulgated thereunder so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed by Section 409A. Any ambiguities or ambiguous terms shall be interpreted to so be exempt or comply, and this Agreement shall be administered in accordance with such intent.
17. U.S. Citizenship and Immigration Services; Confidentiality and Inventions Agreement. Executive agrees to timely file all documents required by the Department of Homeland Security to verify his/her identity and lawful employment in the United States. In addition, as a condition to Executive’s employment with the Company, Executive is required to complete, sign, return, and abide by the Company’s Employee Confidentiality and Inventions Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute the same instrument.
19. Resignation from Positions. Upon Executive’s cessation of employment with the Company for any reason, Executive agrees that Executive shall be deemed to have resigned as an officer and as a director (if applicable) from the Company and every subsidiary of the Company on which Executive is then serving as an officer or director, and from any other entity or company on which Executive is then serving as a director or officer at the request of the Company, in each case effective as of the date of Executive’s cessation of employment. In the event of Executive’s cessation of employment, Executive agrees to execute a general resignation resigning from all positions then held by Executive on every subsidiary of the Company and other entity or company on which Executive is then serving as a director or officer at the request of the Company. Executive hereby grants the corporate secretary of the Company an irrevocable power of attorney to execute on behalf of Executive all such resignations, documents and instruments and to take all such other actions as reasonably necessary to carry out the intention of this Section 19.
20. Executive’s Commencement of Employment. It is a condition precedent to the effectiveness of this Agreement that Executive commences working full-time for the Company at the Company’s principal executive offices on the Effective Date. If Executive does not commence such full-time employment on the Effective Date, then this Agreement shall be null and void and the Company shall have no obligations hereunder or otherwise to Executive.
21. Executive’s Acknowledgement.
EXECUTIVE ACKNOWLEDGES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND HIM/HER RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS) AND THAT HE/SHE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS), THAT HE/SHE UNDERSTANDS ALL OF SUCH AGREEMENTS, AND THAT HE/SHE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS SUCH AGREEMENTS WITH HIS/HER PRIVATE LEGAL COUNSEL AND HAS AVAILED HIMSELF/HERSELF OF THAT OPPORTUNITY TO THE EXTENT HE/SHE WISHED TO DO SO. EXECUTIVE UNDERSTANDS THAT THE DISPUTE RESOLUTION PROVISIONS OF THIS AGREEMENT GIVE UP THE RIGHT TO A JURY TRIAL ON MATTERS COVERED BY THEM.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
|
|
ACCURAY INCORPORATED, | |||
|
|
a Delaware Corporation | |||
|
|
| |||
|
|
By: |
/s/ Joshua Levine | ||
|
|
Name: |
Joshua Levine | ||
|
|
Title: |
President & Chief Executive Officer | ||
|
|
| |||
|
|
By: |
/s/Alaleh Nouri | ||
|
|
Name: |
Alaleh Nouri | ||
|
|
Title: |
Senior Vice President, General Counsel | ||
|
|
| |||
|
Accepted and Agreed, |
| |||
|
|
| |||
|
Kevin Waters: |
/s/ Kevin Waters |
| ||
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Agreement”) is hereby entered into by and between , an individual (“Executive”), and Accuray Incorporated, a Delaware corporation, on behalf of itself and all of its subsidiaries (collectively, the “Company”).
Recitals
A. Executive has been employed by the Company pursuant to an employment agreement by and between the Company and Executive effective as of January 1, 2018 (the “Employment Agreement”), and currently is serving as [specify position held at time of termination];
B. Executive’s employment with the Company and any of its parents, direct or indirect subsidiaries, affiliates, divisions, or related entities (collectively referred to herein as the “Company and its Related Entities”) will be ended on the terms and conditions set forth in this Agreement.
Agreement
In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Effective Date. Except as otherwise provided herein, this Agreement shall be effective on the eighth day after it has been executed by both of the parties (the “Effective Date”).
2. End of Employment and Service as a Director. Executive’s employment with the Company and its Related Entities has ended or will end effective as of Pacific Time, on (the “Termination Date”). If Executive is an officer or a member of the Board of Directors of the Company and/or its Related Entities (the “Board”) Executive hereby voluntarily resigns from any such officer positions and the Board, effective .
3. Continuation of Benefits After the Termination Date. Except as expressly provided in this Agreement or in the plan documents governing the Company’s employee benefit plans, after the Termination Date, Executive will no longer be eligible for, receive, accrue, or participate in any other benefits or benefit plans provided by the Company and its Related Entities, including, without limitation, medical, dental and life insurance benefits, and the Company’s 401(k) retirement plan; provided, however, that nothing in this Agreement shall waive Executive’s right to any vested benefits, including vested amounts in the Company’s 401(k) retirement plan, which amounts shall be handled as provided in the plan.
4. Payments Upon Termination. Executive will be entitled to receive payment of the following: (i) all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and (ii) reimbursement, made in accordance with Section 4(e) of the Employment Agreement, of any monies advanced or incurred by Executive in connection with his/her employment for reasonable and necessary Company-related expenses incurred on or before the Termination Date. The provisions of this Agreement shall not waive or terminate any rights to compensation or vested benefits under the Company’s benefits plans or as required by law, or to indemnification Executive may have under the Company’s Certificate of Incorporation, Bylaws or separate indemnification agreement, as applicable.
5. Severance Benefits or Enhanced Severance Benefits. In return for Executive’s promises in this Agreement, the Company will provide Executive with the Severance Benefits or Enhanced Severance Benefits as defined in Sections 5(a) and 5(e) of the Employment Agreement and as applicable based on the nature of the termination, subject to the terms and conditions set forth in the Employment Agreement, including, but not limited to, Section 16 thereof. The Severance Benefits or Enhanced Severance Benefits will be paid as specified in Section 5(a) or Section 5(e) of the Employment Agreement, as applicable and shall be subject to required withholdings and authorized deductions and to Section 21 below.
6. Effect of Revocation or Subsequent Employment.
(a) If Executive properly revokes this Agreement in accordance with Section 13 below, Executive shall not be entitled to receive the payments and benefits under Section 5, above, except that Executive’s rights under COBRA will continue (but not, for purposes of clarity, the right to be reimbursed for COBRA premiums or receive any COBRA Substitute Payments (as defined in the Employment Agreement)).
(b) The Company’s obligation to reimburse premiums for insurance coverage under COBRA or otherwise will be extinguished as of the date Executive’s coverage begins under the group health plan of any new employer. If Executive violates the restrictions in Section 17, below, the Company’s obligation to pay premiums for insurance under COBRA or otherwise will be immediately extinguished, and the other remedies specified in Section 17, below, shall apply.
7. Acknowledgement of Total Compensation and Indebtedness. Executive acknowledges and agrees that the cash payments under Sections 4 and 5 of this Agreement extinguish any and all obligations for monies, or other compensation or benefits that Executive claims or could claim to have earned or claims or could claim is owed to him/her as a result of his/her employment by the Company and its Related Entities through the Termination Date, under the Employment Agreement or otherwise. Notwithstanding the foregoing, the parties acknowledge and agree that the provisions of this Section 7 shall not terminate any rights Executive has under Section 3 of this Agreement or to other payments Executive may have, and to any indemnification Executive may have under the Company’s Bylaws or separate indemnification agreement, as applicable.
8. Status of Related Agreements and Future Employment.
(a) Agreements Between Executive and the Company. [Agreements to be scheduled at time].
(b) Employment Agreement. The parties agree that the Employment Agreement shall be terminated as of the Termination Date. Notwithstanding the termination of the Employment Agreement, the parties hereto acknowledge that certain rights and obligations set forth in the Employment Agreement extend beyond the Termination Date. In the event that any provision of this Agreement conflicts with Section 6 of the Employment Agreement, the terms and provisions of the section(s) providing the greatest protection to the Company and its Related Entities shall control.
9. Release by Executive.
(a) Except for any obligations or covenants of the Company pursuant to this Agreement and as otherwise expressly provided in this Agreement, Executive, for himself/herself and his/her heirs, executors, administrators, assigns, successors and agents (collectively, the “Executive’s Affiliates”) hereby fully and without limitation releases and forever discharges the Company and its Related
Entities, and each of their respective agents, representatives, stockholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the “Company Releasees”), both individually and collectively, from any and all waivable rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which Executive or any of Executive’s Affiliates has or may have or may claim to have against the Company Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the Effective Date (“Claims”), arising out of, based upon, or relating to his/her employment or the termination of his/her employment with the Company and its Related Entities and/or his/her service as an officer of any of the Company Releasees, any agreement or compensation arrangement between Executive and any of the Company Releasees, to the maximum extent permitted by law.
(b) Executive specifically and expressly releases any Claims arising out of or based on: the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the National Labor Relations Act and the Equal Pay Act, as the same may be amended from time to time; the California common law on fraud, misrepresentation, negligence, defamation, infliction of emotional distress or other tort, breach of contract or covenant, violation of public policy or wrongful termination; state or federal wage and hour laws, and other provisions of the California Labor Code, to the extent these may be released herein as a matter of law; or any other state or federal law, rule, or regulation dealing with the employment relationship, except those claims which may not be released herein as a matter of law.
(c) Nothing contained in this Section 9 or any other provision of this Agreement shall release or waive any right that Executive has to indemnification and/or reimbursement of expenses by the Company and its Related Entities with respect to which Executive may be eligible as provided in California Labor Code section 2802, the Company’s and its Related Entities’ Certificates of Incorporation, Bylaws and any applicable directors and officers, errors & omissions, umbrella or general liability insurance policies, any indemnification agreements, including the Employment Agreement; or any other applicable source, nor prevent Executive from cooperating in an investigation of the Company by the Equal Employment Opportunity Commission (“EEOC”).
10. Waiver of Civil Code Section 1542.
(a) Executive understands and agrees that the release provided herein extends to all Claims released above whether known or unknown, suspected or unsuspected, which may be released as a matter of law. Executive expressly waives and relinquishes any and all rights he/she may have under 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.”
(b) Executive expressly waives and releases any rights and benefits which he/she has or may have under any similar law or rule of any other jurisdiction. It is the intention of each party through this Agreement to fully, finally and forever settle and release the Claims as set forth above. In furtherance of such intention, the release herein given shall be and remain in effect as a full and complete release of such matters notwithstanding the discovery of any additional Claims or facts relating thereto.
11. [If Executive is age 40 or over on Termination Date] Release of Federal Age Discrimination Claims by Executive. Executive hereby knowingly and voluntarily waives and releases all rights and claims, known or unknown, arising under the Age Discrimination In Employment Act of 1967, as amended, which he/she might otherwise have had against the Company or any of the Company Releasees regarding any actions which occurred prior to the date that Executive signed this Agreement, except that Executive is not prevented from cooperating in an investigation by the EEOC or from filing an EEOC charge other than for personal relief.
12. Release by Company and its Related Entities. The Company and its Related Entities hereby release and forever discharge Executive, from any and all waivable actions, causes of action, covenants, contracts, claims and demands of whatever character, nature and kind, whether known or unknown, which the Company and its Related Entities ever had, now have, or any of them hereafter can, shall or may have by reason of Executive’s employment and/or his/her service as a director and/or officer of the Company and/or its Related Entities; provided, however, that this general release shall not apply, or be deemed or construed to apply, to (a) any of Executive’s continuing obligations pursuant to this Agreement or the Employment Agreement, (b) criminal conduct or acts or omissions constituting willful misconduct or gross negligence by Executive during his/her employment with the Company, or (c) recoupment of all or a portion of any previously awarded bonus or equity award pursuant to the Company’s Recoupment (Clawback) Policy that was in effect when the bonus was paid or the equity award vested or was exercised by Executive, whichever was later.
13. [If Executive is age 40 or over on Termination Date] Review and Revocation Rights. Executive hereby is advised of the following:
(a) Executive has the right to consult with an attorney before signing this Agreement and is encouraged by the Company to do so;
(b) Executive has twenty-one (21) days from his/her receipt of this Agreement to consider it; and
(c) Executive has seven (7) days after signing this Agreement to revoke this Agreement, and this Agreement will not be effective until that revocation period has expired without revocation. Executive agrees that in order to exercise his/her right to revoke this Agreement within such seven (7) day period, he/she must do so in a signed writing delivered to the Company’s Board before the close of business on the seventh calendar day after he/she signs this Agreement.
14. Confidentiality of Agreement. After the execution of this Agreement by Executive, neither Executive, his/her attorney, nor any person acting by, through, under or in concert with them, shall disclose any of the terms of or amount paid under this Agreement (other than to state that the Company has filed this Agreement and/or agreements related thereto as public documents) or the negotiation thereof to any individual or entity; provided, however, that the foregoing shall not prevent such disclosures by Executive to his/her attorney, tax advisors and/or immediate family members, as may be required by law, or in connection with Protected Activity (as defined in the Employment Agreement).
15. No Filings. Executive represents that he/she has not filed any lawsuits, claims, charges or complaints, which are pending as of the date hereof, against the Company Releasees with any local, state or federal agency or court from the beginning of time to the date of execution of this Agreement, and that Executive is not aware of any facts that would support any Claims or any compliance-related or code of ethics violations of any kind whatsoever against the Company Releasees, including without limitation any claims for any work-related injuries. If Executive hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the Claims released in this Agreement,
or in any manner asserts against the Company Releasees any of the Claims released in this Agreement, then Executive agrees to pay to the Company Releasees against whom such Claim(s) is asserted, in addition to any other damages caused thereby, all attorneys’ fees incurred by the Company Releasees in defending or otherwise responding to the suit or Claim; provided, however, that this provision shall not obligate Executive to pay the Company Releasees’ attorneys’ fees in any action challenging the release of claims under the Older Workers Benefit Protection Act or the ADEA, unless otherwise allowed by law. If any governmental agency or court ever assumes jurisdiction over any such lawsuit, claim, charge or complaint and/or purports to bring any legal proceeding, in whole or in part, on behalf of Executive based upon events occurring prior to the execution of this Agreement, Executive will request such agency or court to withdraw from and/or to dismiss the lawsuit, claim, charge or complaint with prejudice.
16. Confidential and Proprietary Information. Executive acknowledges that certain information, observations and data obtained by him/her during the course of or related to his/her employment with the Company and its Related Entities (including, without limitation, projection programs, business plans, business matrix programs (i.e., measurement of business), strategic financial projections, certain financial information, shareholder information, technology and product design information, marketing plans or proposals, personnel information, customer lists and other customer information) are the sole property of the Company and its Related Entities and constitute Proprietary Information as defined in Section 6 of the Employment Agreement. Executive represents and warrants that he/she has returned all files, customer lists, financial information and other property of the Company and its Related Entities that were in Executive’s possession or control without retaining copies thereof (other than a copy of the Employee Handbook and personnel records relating to Executive’s employment). Executive further represents and warrants that he/she does not have in his/her possession or control any files, customer lists, financial information or other property of the Company and its Related Entities. In addition to his/her promises in Section 6 of the Employment Agreement, Executive agrees that he/she will not disclose to any person or use any such information, observations or data without the written consent of the Board. If Executive is served with a deposition subpoena or other legal process calling for the disclosure of such information, or if he/she is contacted by any third person requesting such information, he/she will notify the Board as soon as is reasonably practicable after receiving notice and will reasonably cooperate with the Company and its Related Entities in minimizing the disclosure thereof; provided, that nothing in this Agreement will (i) affect Executive’s obligations to testify truthfully in response to any subpoena or other legally required discovery proceeding or (ii) in any way limit or prohibit Executive from engaging in Protected Activity.
17. Prohibited Activities.
(a) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Board.
(b) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself/herself or on behalf of any other person or entity, to solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(c) Scope of Restrictions. Executive agrees that the restrictions in Sections 17 (a) and (b), above, are reasonable and necessary to protect the Company’s trade secrets and that they do not foreclose Executive from working in the medical device industry generally. To the extent that any of the provisions in this Section 17 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 17 is held to be unenforceable, that the remaining provisions of it shall be enforced as written.
18. Remedies. Executive acknowledges that any misuse of Proprietary Information belonging to the Company and its Related Entities, or any violation of Section 6 of the Employment Agreement, and any violation of Sections 14, 16 and 17 of this Agreement, will result in irreparable harm to the Company and its Related Entities, and therefore, the Company and its Related Entities shall, in addition to any other remedies, be entitled to immediate injunctive relief. To the extent there is any conflict between Section 6 of the Employment Agreement and this Section 18, the provision providing the greatest protection to the Company and its Related Entities shall control. In addition, in the event of a breach of any provision of this Agreement by Executive, including Sections 14, 16 and 17, Executive shall forfeit, and the Company and its Related Entities may withhold payment of any unpaid portion of, the Severance Benefits or Enhanced Severance Benefits provided under Section 5, above.
19. Cooperation Clause.
(a) To facilitate the orderly conduct of the Company and its Related Entities’ businesses, for the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company and its Related Entities’ reasonable requests for information or assistance related to the time of his/her employment.
(b) For the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company’s and its Related Entities’ and its or their counsel’s reasonable requests for information or assistance related to (i) any investigations (including internal investigations) and audits of the Company’s and its Related Entities’ management’s current and past conduct and business and accounting practices and (ii) the Company’s and its Related Entities’ defense of, or other participation in, any administrative, judicial, or other proceeding arising from any charge, complaint or other action which has been or may be filed relating to the period during which Executive was employed by the Company and its Related Entities. The Company will promptly reimburse Executive for his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Section 19. Except as required by law or authorized in advance by the Board of Directors of the Company, Executive will not communicate, directly or indirectly, with any third party other than Executive’s legal counsel, including any person or representative of any group of people or entity who is suing or has indicated that a legal action against the Company and its Related Entities or any of their directors or officers is being contemplated, concerning the management or governance of the Company and
its Related Entities, the operations of the Company and its Related Entities, the legal positions taken by the Company and its Related Entities, or the financial status of the Company and its Related Entities. If asked about any such individuals or matters, Executive shall say: “I have no comment,” and shall direct the inquirer to the Company. Executive acknowledges that any violation of this Section 19 will result in irreparable harm to the Company and its Related Entities and will give rise to an immediate action by the Company and its Related Entities for injunctive relief.
20. No Future Employment. Executive understands that his/her employment with the Company and its Related Entities will irrevocably end as of the Termination Date and will not be resumed at any time in the future. Executive agrees that he/she will not apply for, seek or accept employment by the Company and its Related Entities at any time, unless invited to do so by the Company and its Related Entities.
21. Tax Issues. The parties agree that the payments and benefits provided under this Agreement, and all other contracts, arrangements or programs that apply to him/her, shall be subject to Section 16 of the Employment Agreement.
22. Non-disparagement. Executive agrees not to criticize, denigrate, or otherwise disparage the Company and its Related Entities, or any of their directors, officers, products, processes, experiments, policies, practices, standards of business conduct, or areas or techniques of research. The Company agrees not to authorize or condone denigrating or disparaging statements about Executive to any third party, including by press release or other formally released announcement. Factually accurate statements in legal or public filings shall not violate this provision. In addition, nothing in this Section 22 shall prohibit Executive or the Company or the Board, or any of their employees or members from complying with any lawful subpoena or court order or taking any other actions affirmatively authorized by law.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflict of laws.
24. Dispute Resolution. The parties hereby agree that all disputes, claims or controversies arising from or otherwise in connection with this Agreement (except for injunctive relief sought by either party) between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, and any director, stockholder or employee of the Company will be resolved in accordance with Section 13 of the Employment Agreement, except for its attorneys’ fee provision.
25. Attorneys’ Fees. Except as otherwise provided herein, in any action, litigation or proceeding between the parties arising out of or in relation to this Agreement, including any purported breach of this Agreement, the prevailing party shall be entitled to an award of its costs and expenses, including reasonable attorneys’ fees.
26. Non-Admission of Liability. The parties understand and agree that neither the payment of any sum of money nor the execution of this Agreement by the parties will constitute or be construed as an admission of any wrongdoing or liability whatsoever by any party.
27. Severability. If any one or more of the provisions contained herein (or parts thereof), or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof will not be in any way impaired or affected, it being intended that all of the rights and privileges shall be enforceable to the fullest extent permitted by law.
28. Entire Agreement. This Agreement represents the sole and entire agreement among the parties and, except as expressly stated herein, supersedes all prior agreements, negotiations and discussions among the parties with respect to the subject matters contained herein.
29. Waiver. No waiver by any party hereto at any time of any breach of, or compliance with, any condition or provision of this Agreement to be performed by any other party hereto may be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at any prior or subsequent time.
30. Amendment. This Agreement may be modified or amended only if such modification or amendment is agreed to in writing and signed by duly authorized representatives of the parties hereto, which writing expressly states the intent of the parties to modify this Agreement.
31. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original as against any party that has signed it, but both of which together will constitute one and the same instrument.
32. Assignment. This Agreement inures to the benefit of and is binding upon the Company and its successors and assigns, but Executive’s rights under this Agreement are not assignable, except to his/her estate.
33. Notice. All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) if personally delivered or delivered by overnight courier; (b) if sent by electronic mail, telecopy or facsimile (except for legal process); or (c) if mailed by overnight or by first class, United States certified or registered mail, postage prepaid, return receipt requested, and properly addressed as follows:
|
If to the Company: |
Accuray Incorporated | |
|
|
|
1310 Chesapeake Terrace |
|
|
|
Sunnyvale, California 94089 |
|
|
|
Attn: Board of Directors |
|
|
|
c/o Corporate Secretary |
|
|
|
Fax No. (408) 789-4205 |
|
|
| |
|
If to Executive: |
|
Address: most recent on file with the Company |
|
|
|
Email: most recent on file with the Company |
Such addresses may be changed, from time to time, by means of a notice given in the manner provided above. Notice will conclusively be deemed to have been given when personally delivered (including, but not limited to, by messenger or courier); or if given by mail, on the third business day after being sent by first class, United States certified or registered mail; or if given by Federal Express or other similar overnight service, on the date of delivery; or if given by electronic mail, telecopy or facsimile machine during normal business hours on a business day, when confirmation of transmission is indicated by the sender’s machine; or if given by electronic mail, telecopy or facsimile machine at any time other than during normal business hours on a business day, the first business day following when confirmation of transmission is indicated by the sender’s machine. Unless otherwise agreed, notices, requests, demands and other communications delivered to legal counsel of any party hereto, whether or not such counsel shall consist of in-house or outside counsel, shall not constitute duly given notice to any party hereto.
34. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and fully understand all of its terms; that they have conferred with their attorneys, or have knowingly and voluntarily chosen not to confer with their attorneys about this Agreement; that they have executed this Agreement without coercion or duress of any kind; and that they understand any rights that they have or may have, and they are signing this Agreement with full knowledge of any such rights.
(b) Both parties have participated in the drafting of this Agreement with the assistance of counsel to the extent they desired. The language in all parts of this Agreement must be in all cases construed simply according to its fair meaning and not strictly for or against any party. Whenever the context requires, all words used in the singular must be construed to have been used in the plural, and vice versa, and each gender must include any other gender. The captions of the Sections of this Agreement are for convenience only and must not affect the construction or interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party hereto is both a covenant and condition, and is a material consideration for the other party’s performance hereunder, and any breach thereof by the party will be a material default hereunder. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement are cumulative and no one of them is exclusive of any other. Time is of the essence in the performance of this Agreement.
(d) Each party acknowledges that no representation, statement or promise made by any other party, or by the agent or attorney of any other party, except for those in this Agreement, has been relied on by him/her or it in entering into this Agreement.
(e) Unless expressly set forth otherwise, all references herein to a “day” are deemed to be a reference to a calendar day. All references to “business day” mean any day of the year other than a Saturday, Sunday or a public or bank holiday in Orange County, California. Unless expressly stated otherwise, cross-references herein refer to provisions within this Agreement and are not references to any other document.
(f) Each party to this Agreement will cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
EACH OF THE PARTIES ACKNOWLEDGES THAT HE/SHE/IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT, AND THAT IT INCLUDES A WAIVER OF THE RIGHT TO A TRIAL BY JURY, AND, WITH RESPECT TO EXECUTIVE, HE/SHE UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
(Signature page follows)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the dates written below.
|
EXECUTIVE: |
| ||
|
|
| ||
|
|
Date: |
| |
|
|
|
| |
|
COMPANY: |
Accuray Incorporated | ||
|
|
| ||
|
|
By: |
| |
|
|
Name: |
| |
|
|
Title: |
| |
|
|
| ||
|
|
Date: |
| |
Exhibit B
SECTION 7 OF THE DEFEND TRADE SECRETS ACT OF 2016
“ . . . An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. . . . An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual—(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement (“Agreement”) is entered into and effective as of January 1, 2018 (“Effective Date”), by and between Accuray International Sàrl, a Swiss limited liability company (the “Company”), and Lionel Hadjadjeba (“Executive”).
RECITALS
A. The Company is a fully owned subsidiary of Accuray Incorporated (the “Parent”). The Company, the Parent and any Affiliate (as defined below) are collectively referred to as the “Accuray Group”. The Accuray Group is in the business of developing, manufacturing and selling radiation oncology, including radio surgery and radiation therapy, technologies and devices (the “Business”).
B. The Company previously entered into an Executive Employment Agreement, dated May 18, 2017 with Executive (the “Prior Agreement”) to employ Executive to serve as Senior Vice President, Chief Commercial Officer.
C. The Company and Executive wish to amend and restate the terms of the Prior Agreement to modify certain terms.
D. As of the Effective Date, Executive has commenced full-time employment with the Company.
NOW, THEREFORE, the parties agree that the Prior Agreement is hereby amended and restated to read in its entirety as follows:
1. Position and Duties.
(a) During the term of this Agreement, Executive will be employed by the Company to serve as Senior Vice President, Chief Commercial Officer of the Company, reporting to the Chief Executive Officer of the Company. Executive will be responsible for: (i) performing the duties and responsibilities customarily expected to be performed by such position and (ii) performing such other duties and functions as are reasonably required and/or as may be reasonably prescribed by the Company from time to time.
(b) The location of Executive’s employment will be the Company’s headquarters offices, but Executive from time to time may be required to travel to other geographic locations in connection with the performance of his/her duties, including but not limited to the Parent’s headquarters offices in the United States.
2. Standards of Performance. Executive will at all times faithfully, industriously and to the best of his/her ability, experience and talents perform all of the duties required of and from him/her pursuant to the terms of this Agreement. Executive will devote his/her full business energies and abilities and all of his/her business time to the performance of his/her duties hereunder and will not, without the Company’s prior written consent, render to others any service of any kind (whether or not for compensation) that, in the Company’s sole but reasonable judgment, would interfere with the full performance of his/her duties hereunder. Notwithstanding the foregoing, Executive is permitted to spend reasonable amounts of time to manage his/her personal financial and legal affairs and, with the Company’s consent which will not be unreasonably withheld, to serve on one civic, charitable, not-for-profit, industry or corporate board or
advisory committee, provided that such activities, individually and collectively, do not materially interfere with the performance of Executive’s duties hereunder. In no event will Executive engage in any activities that could reasonably create a conflict of interest or the appearance of a conflict of interest. Executive shall be subject to the Company’s policies, procedures and approval practices, as generally in effect from time to time. If Executive performs overtime, he/she shall neither be entitled to a financial compensation nor to compensation by free time, the same being expressly included in the compensation and benefits set forth in Section 4 below.
3. Term.
(a) Term of Agreement. Subject to Section 3(b), this Agreement will have an initial term commencing on the Effective Date and ending on December 31, 2020 (the “Initial Term”). Thereafter, but still subject to Section 3(b), this Agreement will renew automatically for additional three (3) year terms (each, an “Additional Term” and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the date of automatic renewal; provided, however, that if the Parent (and/or its subsidiaries, including but not limited to the Company) enters into a definitive agreement to be acquired and the transactions contemplated thereby would result in the occurrence of a Change in Control (as defined below) if consummated, then the Company will no longer be permitted to provide Executive with written notice to not renew this Agreement unless such definitive agreement is terminated without the Change in Control being consummated. If the Change in Control is consummated, the Agreement will continue in effect through the longer of the date that is twelve (12) months following the effective date of the Change in Control or the remainder of the Term then in effect (for purposes of clarification, it will be possible for the Term of the Agreement to automatically extend after the Parent (and/or its subsidiaries, including but not limited to the Company) enters into the definitive agreement, but before the Change in Control is consummated). If the definitive agreement is terminated without the transactions contemplated thereby having been consummated and at the time of such termination there is at least twelve (12) months remaining in the Term, the Agreement will continue in effect for the remainder of the Term then in effect, but if there is less than twelve (12) months remaining in the Term then in effect, the Agreement will automatically extend for an additional three (3) years from the date the definitive agreement is terminated. If Executive becomes entitled to benefits under Section 5 during the term of this Agreement, the Agreement will not terminate until all of the obligations of the parties hereto with respect to this Agreement have been satisfied.
(b) At-Will Employment. The Company and Executive acknowledge that, notwithstanding the foregoing, Executive’s employment is and will continue to be at-will, as defined under applicable law. As an at-will employee, either the Company or the Executive may terminate the employment relationship at any time, with or without cause; provided, however, that in connection with such termination, the Company will provide Executive with any applicable benefits under Section 5 to which Executive is entitled, all in accordance with the terms and conditions thereof.
4. Compensation and Benefits.
(a) Base Salary. As an annual base salary (“Base Salary”) for all services rendered pursuant to this Agreement, Executive will be paid an initial Base Salary in the gross amount of CHF 551,972 calculated on an annualized basis, less necessary withholdings and authorized deductions, and payable pursuant to the Company’s regular payroll practices at the time. The Base Salary is first subject to review and adjustment within the first three (3) months after the end of the fiscal year that includes the Effective Date, and, thereafter, subject to periodic review and adjustment not less frequently than annually within the first three (3) months after the end of the next successive fiscal year, in the sole discretion of the Company. Executive’s Base Salary will not be reduced from the level in effect from time to time, except that the Base Salary may be reduced in connection with a salary reduction program of general application to senior executives of the Accuray Group where each experiences a substantially similar reduction on a percentage basis.
(b) Performance Bonus. During Executive’s employment under this Agreement, Executive will be eligible for a performance bonus, subject to the terms and conditions of the Parent’s Performance Bonus Plan, which is applicable to senior executives of the Accuray Group. The target amount of Executive’s annual bonus is sixty percent (60%) of Executive’s annual Base Salary (as defined in the Performance Bonus Plan as then in effect). However, payment of the performance bonus will be conditioned on the Company’s and/or the Accuray Group’s achievement of corporate performance objectives approved by the Parent and on the Executive’s achievement of individual performance metrics to be established annually and approved by the Parent, all as established pursuant to the Performance Bonus Plan as then in effect, and the bonus may be zero. For the avoidance of doubt, the performance bonus will be payable only if the corporate and/or individual performance objectives approved by the Parent are achieved as determined by the Parent, subject to the Parent’s right to exercise discretion in determining the amount of the bonus to be awarded, if any, as set forth in the Performance Bonus Plan then in effect. To encourage continued tenure with the Company, Executive must be employed by the Company as of the payment date to be eligible for a performance bonus for the year to which the bonus relates, unless otherwise provided in Section 5. Performance bonuses will be paid out according to the terms of the Performance Bonus Plan.
(c) Car Reimbursement. If Executive decides to use his personal vehicle for Company business, the Company will pay Executive a car allowance of CHF 2,000 per month, less necessary withholdings and authorized deductions, and payable pursuant to the Company’s regular payroll practices at the time. Executive shall be responsible for all insurance, repair, operational and maintenance costs of Executive’s personal vehicle.
(d) Equity Incentive Awards.
(i) Stock Options. The Parent may grant to Executive the option to purchase shares of the Parent’s common stock (“Options”) pursuant to the Accuray Incorporated 2016 Equity Incentive Plan (the “Incentive Plan”). All Options shall be subject to the terms and conditions of the Incentive Plan and a stock option grant notice and grant agreement in a form prescribed by the Company and/or the Parent, which Executive must sign as a condition to receiving the Options.
(ii) Restricted Stock Units. The Parent may grant to Executive restricted stock units (“RSUs”) pursuant to the Incentive Plan. All RSUs are subject to and conditioned on approval of the grant and its terms by the Parent’s Board of Directors (the “Board”). All RSUs shall be subject to the terms and conditions of the Incentive Plan and a RSU grant notice and grant agreement in a form prescribed by the Company and/or the Parent, which Executive must sign as a condition to receiving the RSUs.
(iii) Market Stock Units. The Parent may grant to Executive performance-based market stock units (“MSUs”) pursuant to the Incentive Plan. All MSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted MSUs shall vest as provided in the applicable MSU grant notice and grant agreement (“MSU Agreement”). All MSUs shall be subject to the terms and conditions of the Incentive Plan and a MSU Agreement in a form prescribed by the Company and/or the Parent, which Executive must sign as a condition to receiving the MSUs.
(iv) Performance Stock Units. The Company may grant to Executive performance stock units (“PSUs”) pursuant to the Incentive Plan. All PSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted PSUs shall vest as provided in the applicable PSU grant notice and grant agreement (“PSU Agreement”). All PSUs shall be subject to the terms and conditions of the Incentive Plan and a PSU Agreement in a form prescribed by the Company and/or the Parent, which Executive must sign as a condition to receiving the PSUs.
(e) Paid Time Off and Benefits. Executive will accrue and be allowed to use paid time off for vacation, illness and holidays pursuant to the Company’s policies that apply to executive officers of the Company. In addition, Executive will be entitled to participate in any plans regarding benefits of employment, including pension, profit sharing, group health, disability insurance and other employee pension and welfare benefit plans now existing or hereafter established to the extent that Executive is eligible under the terms of such plans and if the other executive officers of the Company generally are eligible to participate in such plan. The Company may, in its sole discretion and from time to time, establish additional senior management benefit plans as it deems appropriate. Executive understands that any such plans may be modified or eliminated in the Company’s sole discretion in accordance with applicable law, provided that no such modification or elimination shall result in reducing or eliminating any benefits in which Executive’s right has vested.
(f) Reimbursement of Business Expenses. The Company will promptly reimburse to Executive his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Agreement, and in accordance with the policies and procedures established by the Company; provided that each reimbursement shall be requested within two (2) months after being incurred.
(g) Sarbanes-Oxley Act Loan Prohibition and Company Compensation-Related Polices. To the extent that any Company benefit, program, practice, arrangement or this Agreement would or might otherwise result in Executive’s receipt of an illegal loan (the “Loan”), for instance pursuant to the United States Sarbanes-Oxley Act, the Company shall use commercially reasonable efforts to provide Executive with a substitute for the Loan that is lawful and of at least equal value to Executive. If this cannot be done, or if doing so would be significantly more expensive to the Company than making the Loan, the Company need not make the Loan to Executive or provide him/her a substitute for it. Further, Executive acknowledges that any bonus or equity award provided for in this Agreement or otherwise awarded to him/her shall be subject to the Accuray Group’s policies regarding recoupment and clawback, as such policies may be amended from time to time, and agrees in particular that he/she will be subject to, and shall comply with, the Parent’s stock ownership requirements which are set forth in the Parent’s Amended and Restated Corporate Governance Guidelines, as such requirements may be amended from time to time, and the Parent’s Insider Trading Policy, as amended from time to time.
5. Termination of Employment.
(a) By Company Without Cause. Subject to the last paragraph of this Section 5(a), the Company may terminate Executive’s employment without Cause (as defined below) effective on one (1) month’s written notice (such one (1) month period, the “Notice Period”, and such notice, the “Termination Notice”), during which notice period Executive may be relieved of his/her duties and placed on paid terminal leave. In such event and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) continued coverage under the Company’s insurance benefit plans through the termination date and such other benefits to which he/she may be entitled pursuant to the Company’s benefit plans, provided, however, that Executive shall not participate in any severance plan of the Company;
(ii) payment of all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and
(iii) reimbursement of expenses incurred on or before the termination date in accordance with Section 4(f), above, if a request for reimbursement of the expenses was timely submitted to the Company; plus
(iv) payment of the equivalent of the Base Salary without regard to any reduction that would otherwise constitute Good Reason he/she would have earned over the next six (6) months following the termination date (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Severance Payment”), payable in a lump sum on the first regularly scheduled payroll date following the date the Release (as defined below) becomes effective and irrevocable (the “Release Effective Date”), but in any event within ten (10) business days of the Release Effective Date and subject to Section 16, below;
(v) payment of a prorated portion of the actual bonus Executive would have otherwise received for the fiscal year during which the termination occurs, as if Executive had remained employed by the Company through the date that would have otherwise been required to earn the bonus, but without the Company, the Board or any committee of the Board exercising any negative discretion to reduce the amount of the award, calculated by dividing the number of days from the start of the fiscal year through the termination date by 365 and multiplying the amount of such actual bonus Executive would have otherwise received by this percentage (but not by more than 100%), and paid at the same time as bonuses are paid to other Accuray Group executives that are similarly situated to Executive; provided, however, that if the termination date is after the seventh month of the fiscal year, the actual bonus will not be prorated and Executive will receive 100% of such actual bonus Executive would have otherwise received for that fiscal year at the same time as bonuses are paid to other Accuray Group executives that are similarly situated to Executive;
(vi) subject to Section 5(g), reimbursement of insurance premiums payable to retain group health coverage as of the termination date for himself/herself and his/her eligible dependents pursuant to the United States Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”, such term to include expressly any similar local regulations applicable to the Executive if not directly or indirectly subject to the COBRA) for six (6) months or the maximum period of COBRA coverage, whichever is less; provided that Executive must submit a reimbursement request in accordance with Company policy within thirty (30) days of paying such insurance premiums. The Company will reimburse the executive within thirty (30) days of receiving a properly submitted request. In addition, if Executive accepts other employment within such six (6) months, the Company’s obligation under this Section 5(a)(vi) will be extinguished as of the date Executive becomes covered under the group health plan of Executive’s new employer; and
(vii) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
The payments and benefits set forth in Sections 5(a)(i)-(iii) shall be referred to as the “Accrued Benefits”, and the payments and benefits set forth in Sections 5(a)(iv)-(vii) shall be referred to as the “Severance Benefits”. Executive shall not receive the Severance Benefits or the “Enhanced Severance Benefits” as provided in Section 5(e), unless Executive executes the separation agreement and general release attached as Exhibit A (the “Release”), and the same becomes irrevocable pursuant to its terms within the 60-day period following his/her termination of employment.
(b) By Company With Cause. The Company may terminate Executive’s employment at any time and without prior notice, written or otherwise, for Cause. As used in this Agreement, “Cause” shall mean any of the following conduct by Executive: (i) material breach of this Agreement, or of a Company policy or of a law, rule or regulation applicable to the Company or its operations; (ii) demonstrated and material neglect of duties, or failure or refusal to perform the material duties of his/her position, or the failure to follow the reasonable and lawful instructions of the Company; (iii) gross misconduct or dishonesty, self-dealing, fraud or similar conduct that the Company reasonably determines has caused, is causing or reasonably is likely to cause harm to the Company; or (iv) conviction of or plea of guilty or nolo contendere to any crime other than a traffic offense that is not punishable by a sentence of incarceration. Termination pursuant to Section 5(b)(ii) shall be effective only if such failure continues after Executive has been given written notice thereof and fifteen (15) business days thereafter in which to present his/her position to the Company or to cure the same, unless the Company reasonably determines that the reason(s) for termination are not capable of being cured. In the event of termination for Cause, Executive will be entitled only to the Accrued Benefits through the termination date, which will be the date on which the notice is given. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs), or severance payment of any kind nor to make any payment in lieu of notice.
(c) Incapacity or Death.
(i) If Executive becomes unable, due to physical or mental illness or injury, to perform the essential duties of his/her position for more than twelve (12) consecutive weeks in any twelve (12) month period during this Agreement with or without reasonable accommodation (“Incapacity”), the Company has the right to terminate Executive’s employment on a one month’s written notice; provided however that no notice of termination can be served by the Company during the proscribed periods of article 336c of the Swiss Code of Obligations (“SCO”). In the event of termination for Incapacity, (i) Executive will be entitled to receive the Accrued Benefits, (ii) any unvested equity awards previously granted to Executive that are scheduled to vest based solely on the achievement of service-based conditions (“Time-based Equity Awards”) shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any equity awards that are scheduled to vest based on the achievement of performance-based conditions (which may include additional service-based conditions) (“Performance-based Equity Awards”) for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee of the Board (the “Compensation Committee”) determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved; and
(ii) Executive’s employment pursuant to this Agreement shall be immediately terminated without notice by the Company upon the death of Executive. If Executive dies while actively employed pursuant to this Agreement, (i) the Company will pay to his/her estate or designated beneficiaries within sixty (60) days the Accrued Benefits as well as any amount due under article 338, para. 2 SCO as the case may be, (ii) any unvested Time-based Equity Awards shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any Performance-based Equity Awards for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved.
(d) Resignation for Good Reason. Executive may terminate this Agreement for Good Reason (as defined below) by giving written notice to the Company of such termination, subject to Executive complying with the notice, cure period and other requirements set forth within the definition of Good Reason below. As used in this Agreement, “Good Reason” shall mean the occurrence of any one of the following without Executive’s written consent: (i) a material reduction in Executive’s base compensation (which includes Base Salary, the Executive’s target bonus and any other base compensation) and/or a material breach of this Agreement by the Company resulting from the failure to provide the benefits required in Section 4, (ii) any action or inaction that constitutes a material breach by the Company of this Agreement; (iii) a material diminution in Executive’s authority, duties or responsibilities such that they are materially inconsistent with his/her position as Senior Vice President, Chief Commercial Officer of the Company; and (iv) relocation of the Company’s headquarters to a location that materially increases Executive’s commute, provided that no termination for Good Reason shall be effective until Executive has given the Company written notice (pursuant to Section 11 below) within sixty (60) days after Executive becomes aware of the initial occurrence of any of the foregoing specifying the event or condition constituting the Good Reason and the specific reasonable cure requested by Executive, and the Company has failed to cure the occurrence within thirty (30) days of receiving written notice from Executive, and Executive resigns within six (6) months after Executive becomes aware of the initial occurrence. In the event of a termination for Good Reason, Executive will be entitled to the Accrued Benefits and the Severance Benefits, on the same conditions, form of payment and timing as set forth in Section 5(a).
(e) Effect of Change in Control. If the Company terminates Executive’s employment with the Company without Cause (excluding due to Executive’s death or Incapacity) or if Executive resigns from such employment for Good Reason, and, in each case, such termination occurs during the Change in Control Period (as defined below), Executive will be entitled to the Accrued Benefits, and subject to the same conditions set forth in the final paragraph of Section 5(a), (i) four times the Severance Payment set forth in Section 5(a)(iv), paid in the same form (i.e., a lump sum) and at the same time as the Severance Payments set forth in Section 5(a)(iv), (ii) subject to Section 5(g), the reimbursement of Executive’s insurance premiums for twelve (12) months in the same form and at the same time and under the same conditions as provided in Section 5(a)(vi), (iii) a taxable monthly payment (which may be used for any purpose) equal to the actual COBRA reimbursement payment that Executive receives under Section 5(e)(ii) for any particular month, (iv) two hundred percent (200%) of Executive’s target bonus for the fiscal year during which termination occurs, but no less than two hundred percent (200%) of the target bonus in effect for the fiscal year immediately prior to the Change in Control if the Change in Control occurs within the first three (3) months of the fiscal year, payable at the same time as the payment under clause (i) of this Section 5(e), (v) all outstanding unvested equity awards previously granted to Executive shall become immediately vested (the “Enhanced Severance Benefits”), and (vi) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
For the avoidance of doubt, if Executive’s termination without Cause (excluding due to Executive’s death or Incapacity) or resignation for Good Reason occurs prior to a Change in Control, then any unvested portion of Executive’s outstanding equity awards will remain outstanding until the earlier of (i) the date that is three (3) months following the termination of Executive’s termination or (ii) the date that a Change in Control occurs (provided that in no event will any of Executive’s equity awards remain outstanding beyond the equity award’s maximum term to expiration). In the event that a Change in Control does not occur by the date that is three (3) months following the termination of Executive’s employment,
any unvested portion of Executive’s equity awards automatically will be forfeited permanently without having vested. Further, for any Performance-based Equity Awards, the performance-based vesting component of the equity awards shall not be deemed to be automatically achieved as a result of the application of Section 5(e)(v) but will remain outstanding during the three (3) month period following Executive’s termination or through the date of the Change in Control, as applicable, to determine whether a Change in Control would have occurred within three (3) months of the termination of Executive’s employment and, if so, the extent to which the performance condition is achieved, such determination to be made in accordance with the procedures set forth in the applicable award agreement. If the performance condition is satisfied and that would cause the award to become eligible to vest based on continued service, then clause (v) of this Section 5(e) will cause the service-based vesting component to be deemed satisfied and the vesting of the equity award will be accelerated as to the portion of the award that became eligible to vest. For clarity, if there is no service-based condition that applies with respect to any portion of such equity award upon such satisfaction of the performance condition, such portion of the equity award will immediately vest upon such satisfaction of the performance condition.
For the sake of clarity, if any payments or benefits are payable under this Section 5(e), no payments or benefits shall be made under any other subsection of this Section 5, including Section 5(a) and Section 5(d), and any Enhanced Severance Benefits will be reduced by any Severance Benefits that may have been paid or provided with respect to any termination triggering Severance Benefits that occurs during the three-month period prior to a Change in Control (this provision, the “Non-duplication Provision”).
As used in this Agreement, a “Change in Control” shall mean any of the following events:
(i) the acquisition by any Group or Person (as such terms are defined in Section 13(d) or 14(d) of the United States Securities Exchange Act of 1934, as amended (the “1934 Act”)), other than (A) a trustee or other fiduciary holding securities of the Parent under an employee benefit plan of the Company and/or of the Parent or (B) an entity in which the Parent directly or indirectly beneficially owns fifty percent (50%) or more of the voting securities of such entity (an “Affiliate”), of any securities of the Parent, immediately after which such Group or Person has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty percent (50%) or more of (X) the outstanding shares of Common Stock or (Y) the combined voting power of the Parent’s then outstanding securities entitled to vote generally in the election of directors;
(ii) the Parent (and/or its subsidiaries, including but not limited to the Company) is a party to a merger or consolidation with a Person other than an Affiliate, which merger or consolidation results in (a) the holders of voting securities of the Parent outstanding immediately before such merger or consolidation failing to continue to represent (either by remaining outstanding or being converted into voting securities of the surviving entity) fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the corporation or entity resulting from or surviving such merger or consolidation or (b) individuals who are directors of the Parent just prior to such merger or consolidation not constituting more than fifty percent (50%) of the members of the Board of Directors of the surviving entity or corporation immediately after the consummation of such merger or consolidation; or
(iii) all or substantially all of the assets of the Parent and its subsidiaries (including but not limited to the Company) are, in any transaction or series of transactions, sold or otherwise disposed of (or consummation of any transaction, or series of related transactions, having similar effect), other than to an Affiliate;
provided, however, that in no event shall a “Change in Control” be deemed to have occurred for purposes of this Agreement solely because the Parent engages in an internal reorganization, which may include a transfer of assets to, or a merger or consolidation with, one or more Affiliates. Additionally, with respect to the payment of any “nonqualified deferred compensation” within the meaning of section 409A of the United States Internal Revenue Code of 1986, as amended (the “Code”), that is not exempt from section 409A of the Code, no event shall constitute a Change in Control unless it also constitutes a change in the ownership of the Parent (as defined in the United States Treasury Regulation section 1.409A-3(i)(5)(v)), a change in effective control of the Parent (as defined in the United States Treasury Regulation section 1.409A-3(i)(5)(vi)), or a change in the ownership of a substantial portion of the assets of the Parent (as defined in the United States Treasury Regulation section 1.409A-3(i)(5)(vii)).
As used in this Agreement, a “Change in Control Period” shall mean the period beginning three (3) months prior to, and ending twelve (12) months following, a Change in Control.
(f) Voluntary Resignation without Good Reason. Executive may terminate this Agreement without Good Reason effective on one (1) month’s written notice, unless the Company in its sole discretion accepts the resignation earlier. In the event that Executive resigns without Good Reason as defined above in Section 5(d), Executive will be entitled only to the Accrued Benefits through the termination date. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs unless he/she remains employed with the Company as of the date bonuses are paid to other senior executives of the Company), or severance payments of any kind.
(g) If the Company determines in its sole discretion that it cannot make the COBRA reimbursements under Section 5(a)(vi) or Section 5(e)(ii) (the “COBRA Reimbursements”) without potentially violating applicable law (including, without limitation, Section 2716 of the United States Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue the Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA continuation coverage), which payments will be made regardless of whether the Executive elects COBRA continuation coverage and will commence on the month following the Executive’s termination of employment and will end on the earlier of (x) the date upon which the Executive obtains other employment or (y) the date the Company has paid an amount equal to (A) 6 payments if Executive is receiving the Severance Benefits pursuant to Section 5(a) or (B) subject to the Non-duplication Provision, 12 payments if Executive is receiving the Enhanced Severance Benefits pursuant to Section 5(e). For the avoidance of doubt, such taxable payments in lieu of COBRA Reimbursements (the “COBRA Substitute Payments”) may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholding.
6. Proprietary Information Obligations.
(a) Proprietary Information and Confidentiality. Both before and during the term of Executive’s employment, Executive will have access to and become acquainted with Company confidential and proprietary information (together “Proprietary Information”), including but not limited to information or plans concerning the Company’s, the Parent’s and/or the Accuray Group’s products and technologies; customer relationships; personnel; sales, marketing and financial operations and methods; trade secrets; formulae and secret developments and inventions; processes; and other compilations of information, records, and specifications. Executive will not disclose any of the Proprietary Information directly or indirectly, or use it in any way, either during his/her employment pursuant to this Agreement or at any time thereafter, except as reasonably required or specifically requested in the course of his/her employment with the Company or as authorized in writing by the Company. Notwithstanding the foregoing, Proprietary
Information does not include information that is otherwise publicly known or available, provided it has not become public as a result of a breach of this Agreement or any other agreement Executive has to keep information confidential. It is not a breach of this Agreement for Executive to disclose Proprietary Information (i) pursuant to an order of a court or other governmental or legal body or (ii) in connection with Protected Activity (as defined below). Executive understands that nothing in this Agreement shall in any way limit or prohibit Executive from engaging in any Protected Activity. For purposes of this Agreement, “Protected Activity” means filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding that may be conducted by any federal, state or local court or government agency or commission, including the United States Securities and Exchange Commission, the United States Equal Employment Opportunity Commission, the United States Occupational Safety and Health Administration, the United States National Labor Relations Board and any Swiss government bodies or agencies (“Government Agencies”). Executive understands that in connection with such Protected Activity, Executive is permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, the Company. Notwithstanding, in making any such disclosures or communications, Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Proprietary Information to any parties other than the Government Agencies. Executive further understands that “Protected Activity” does not include the disclosure of any Company attorney-client privileged communications. In addition, Executive hereby acknowledges that the Company has provided Executive with notice in compliance with the United States Defend Trade Secrets Act of 2016 regarding immunity in the United States from liability for limited disclosures of trade secrets. The full text of the notice is attached in Exhibit B.
(b) Inventions Agreement and Assignment.
(i) Executive hereby agrees to disclose promptly to the Company (or any persons designated by it) all developments, designs, creations, improvements, original works of authorship, formulas, processes, know-how, techniques and/or inventions whether capable of being patented or registered or not (collectively, the “Inventions”) (A) which are made or conceived or reduced to practice by Executive, either alone or jointly with others, in performing his/her duties during the period of Executive’s employment by the Company, that relate to or are useful in the business of the Company; (B) which result from tasks assigned to Executive by the Company, or (C) which are produced by Executive in the course of his/her work for the Company but not in performance of his contractual obligations.
(ii) Executive agrees that all such Inventions which the Company in its discretion determines to be related to or useful in its business or its research or development, or which result from work performed by Executive for the Company, shall vest in, and will be the sole and exclusive property of, the Company and its assigns, and the Company and its assigns will have the right to use and/or to apply for patents, copyrights or other statutory or common law protections for such Inventions in any and all countries. Executive further agrees to assist the Company in every reasonable way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights and other statutory or common law protections for such Inventions in any and all countries. To that end, Executive will execute all documents for use in applying for and obtaining such patents, copyrights and other statutory or common law protections therefor and enforcing the same, as the Company may desire, together with any assignments thereof to the Company or to persons or entities designated by the Company. Should the Company be unable to secure Executive’s signature on any document necessary to apply for, prosecute, obtain, or enforce any patent, copyright or other right or protection relating to any Invention, whether due to his/her mental or physical incapacity or any other cause, Executive hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as Executive’s agent and attorney-in-fact, to act for and in his/her behalf and stead, to execute and file any such document, and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights or other rights
or protections with the same force and effect as if executed and delivered by Executive. Executive’s obligations under this Section 6(b)(ii) will continue beyond the termination of Executive’s employment with the Company, but the Company will compensate Executive at a reasonable rate after such termination for time actually spent by Executive at the Company’s request in providing such assistance.
(iii) Executive hereby acknowledges that all original works of authorship which are made by Executive (solely or jointly with others) within the scope of Executive’s employment which are protectable by copyright are “works for hire,” as that term is defined in the United States Copyright Act (17 USCA, Section 101).
(iv) Unless otherwise is stipulated by mandatory law, and subject to the compensation payable as per Section 6(b)(ii) in fine for the assistance that may be provided after termination of this Agreement, the Executive shall not receive any remuneration under this Section 6(b) while such remuneration is included in the compensation and benefits set forth in Section 4.
(c) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Accuray Group and new customers and business partners obtained by the Accuray Group during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Accuray Group. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Accuray Group. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Accuray Group any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Company; provided, however, that if Executive is or becomes a permanent resident of the state of California and remains such a permanent resident through the date of termination of Executive’s employment, this Section 6(c) shall not apply following the termination of Executive’s employment with the Company.
(d) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Accuray Group devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself or on behalf of any other person or entity, solicit, offer employment to, hire or otherwise retain the services of any employee of the Accuray Group in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Accuray Group at any time within six (6) months prior to the prohibited conduct.
(e) Company Property and Materials.
(i) All files, records, documents, computer-recorded or electronic information, drawings, specifications, equipment, and similar items relating to Company business, whether prepared by Executive or otherwise coming into his/her possession, will remain the Company’s exclusive property and will not be removed from Company premises under any circumstances whatsoever without the Company’s prior written consent, except when, and only for the period, necessary to carry out Executive’s duties hereunder
(ii) In the event of termination of Executive’s employment for any reason, Executive will promptly deliver to the Company all Company equipment (including, without limitation, any cellular phones, beeper/pagers, computer hardware and software, fax machines and other tools of the trade) and all originals and copies of all documents, including without limitation, all books, customer lists, forms, documents supplied by customers, records, product lists, writings, manuals, reports, financial documents and other documents or property in Executive’s possession or control, which relate to the Company’s business in any way whatsoever, and in particular to customers of the Company, or which may be considered to constitute or contain Proprietary Information as defined above, and Executive will neither retain, reproduce, nor distribute copies thereof (other than copies of Executive’s electronic or hardcopy address and telephone contact data base or directories). Notwithstanding the foregoing, Executive shall be allowed to retain a copy of the Employee Handbook and personnel records relating to Executive’s employment.
(f) Remedies for Breach. Executive acknowledges that any breach by Executive of this Section 6 would cause the Company irreparable injury and damage for which monetary damages are inadequate. Accordingly, in the event of a breach or a threatened breach of this Section 6, the Company will be entitled to seek an injunction restraining such breach. In addition, in the event of a breach of this Section 6, the Company’s obligation to pay any unpaid portion of the Severance Payment or other benefits as set forth in Sections 5(a) and (d) of this Agreement will be extinguished. Nothing contained herein will be construed as prohibiting the Company from pursuing any other remedy available to the Company for such breach or such threatened breach. Executive has carefully read and considered these restrictions and agrees they are fair and reasonable restrictions on Executive and are reasonably required for the protection of the interests of the Company. Executive agrees not to circumvent the spirit of these restrictions by attempting to accomplish indirectly what Executive is otherwise restricted from doing directly. Executive agrees that the restrictions in this Section 6 are reasonable and necessary to protect the Company’s Proprietary Information, and they do not prevent Executive from working in the medical device industry. Executive agrees that the covenants and agreements by Executive contained in this Section 6 shall be in addition to any other agreements and covenants Executive may have agreed to in any other employee proprietary information, confidentiality, non-disclosure or other similar agreement and that this Section 6 shall not be deemed to limit such other covenants and agreements, all of which shall continue to survive the termination of this Agreement in accordance with their respective terms. A breach by Executive of the terms of such other agreements and covenants shall be deemed to be a breach by Executive of this Section 6 and of this Agreement. To the extent any of the provisions in this Section 6 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 6 is held to be unenforceable, the remaining provisions of this Section 6 shall be enforced as written.
7. Interpretation and Governing Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the substantive laws of the Switzerland (excluding any that mandate the use of another jurisdiction’s laws).
8. Entire Agreement. All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement. This Agreement expressly supersedes the Prior Agreement.
9. Severability. In the event that one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such holding shall not impair the validity, legality or enforceability of the remaining provisions herein.
10. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, Executive and his/her estate, but Executive may not assign or pledge this Agreement or any rights arising under it, except to the extent permitted under the terms of the benefit plans in which he/she participates. No rights or obligations of the Company under this Agreement may be assigned or transferred except that the Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, sale, transfer of stock, consideration or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no succession had taken place. As used in this Agreement, “Company” means the Company as hereinbefore defined and any successor to its business and/or assets (by merger, purchase or otherwise as provided in this Section 10) which executes and delivers the agreement provided for in this Section 10 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. In the event that any successor refuses to assume the obligations hereunder, the Company as hereinbefore defined shall remain fully responsible for all obligations hereunder.
11. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be given by hand delivery, by electronic mail, facsimile or telecopy, return receipt requested, by express courier service, or by registered mail. Each such notice, request, demand or other communication shall be effective (i) if delivered by hand or by express courier service, when delivered at the address specified in this Section 11; (ii) if given by electronic mail, facsimile or telecopy, when such electronic mail, facsimile or telecopy is transmitted to the electronic mail address or facsimile or telecopy number specified in this Section 11 and confirmation is received if during normal business hours on a business day, and otherwise, on the next business day; and (iii) if given by registered mail, when such registered mail is received but in all and any event seven (7) days after the mailing thereof. Notices shall be addressed to the parties as follows (or at such other address, email address or fax number as either party may from time to time specify in writing by giving notice as provided herein):
|
If to the Company: |
|
Accuray International Sàrl |
|
|
|
c/o Accuray Incorporated |
|
|
|
1310 Chesapeake Terrace |
|
|
|
Sunnyvale, CA 94089 |
|
|
|
Attn: General Counsel |
|
|
|
Fax No. (408) 789-4205 |
|
|
|
|
|
If to Executive: |
|
Lionel Hadjadjeba |
|
|
|
Address: most recent on file with the Company |
|
|
|
Email: most recent on file with the Company |
12. Indemnification. As soon as reasonably practicable after the due execution of this Agreement by each of the parties hereto, the Company and Executive will enter into the Company’s standard form of indemnification agreement utilized by the Company for its directors and executive officers.
13. Dispute Resolution and Place of jurisdiction. To the maximum extent permitted by law, the parties agree that all disputes, claims or controversies between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, including any dispute, claim or controversy arising from or otherwise in connection with this Agreement and/or Executive’s employment with the Company, will be resolved as follows:
(a) Prior to initiating any other proceeding, the complaining party will provide the other party with a written statement of the claim identifying any supporting witnesses or documents and the requested relief. The responding party shall within forty-five (45) days furnish a statement of the relief, if any, that it is willing to provide, and identify supporting witnesses or documents.
(b) If the matter is not resolved by the exchange of statements of claim and statements of response as provided herein, the parties shall submit the dispute to non-binding mediation, the cost of the mediator to be paid by the Company, before a mediator and/or service to be jointly selected by the parties. Each party will bear his/her or its own attorney’s fees and witness fees.
(c) If the parties cannot agree on a mediator and/or if the matter is not otherwise resolved by mediation, any controversy or claim between Executive and the Company and any of its current or former directors, officers and employees, including any arising out of or relating to this Agreement or breach thereof, shall be submitted to the jurisdiction of the court of the defendant’s domicile or the court of the place where Executive usually works, the appeal before the Swiss Supreme Court being reserved.
14. Representations. Each person executing this Agreement hereby represents and warrants on behalf of himself/herself and of the entity/individual on whose behalf he/she is executing the Agreement that he/she is authorized to represent and bind the entity/individual on whose behalf he/she is executing the Agreement. Executive specifically represents and warrants to the Company that he/she reasonably believes (a) he/she is not under any contractual or other obligations that would prevent, limit or impair Executive’s performance of his/her obligations under this Agreement and (b) that entering into this Agreement will not result in a breach of any other agreement to which he/she is a party. Executive acknowledges that Executive has been given the opportunity to consult with legal counsel and seek such advice and consultation as Executive deems appropriate or necessary.
15. Amendments and Waivers. No provisions of this Agreement may be modified, waived, or discharged except by a written document signed by Executive and a duly authorized Company officer. Thus, for example, promotions, commendations, and/or bonuses shall not, by themselves, modify, amend, or extend this Agreement. A waiver of any conditions or provisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time.
16. Taxes.
(a) Withholdings. The Company may withhold from any compensation and benefits payable under this Agreement all federal, state, city and other taxes or amounts as shall be determined by the Company to be required to be withheld pursuant to applicable laws, or governmental regulations or rulings. Executive shall be solely responsible for the satisfaction of any taxes (including employment taxes imposed on employees and penalty taxes on nonqualified deferred compensation).
(b) Net Proceeds Maximization. Notwithstanding any provision of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates (“Potential Parachute Payments”) would constitute an “excess parachute payment” within the meaning of section 280G of the Code and/or any corresponding and applicable state law provision, the Potential Parachute Payments will be reduced by reducing the amount of the Potential Parachute Payments to the extent necessary so that no portion of the Potential Parachute Payments will be subject to the excise tax imposed by section 4999 of the Code and any corresponding and/or applicable state law provision. Notwithstanding the foregoing, a reduction will be made under the previous sentence only if, by reason of that reduction, Executive’s net
after tax benefit exceeds the net after tax benefit he/she would realize if the reduction were not made. For purposes of this paragraph, “net after tax benefit” means the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a “parachute payment” within the meaning of section 280G of the Code and any corresponding and applicable state law provision, plus (ii) all other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute payment” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits are realized by Executive (based upon the rate in effect for that year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by section 4999 of the Code and any corresponding and applicable state law provision. All determinations and calculations made in this paragraph shall be made by an independent accounting firm (the “Accounting Firm”) selected by the Company prior to the Change in Control and the Company will bear all costs and expenses incurred by the Accounting Firm in connection with its determination. The Accounting Firm shall be an internationally recognized public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of (x) the Company or any affiliate thereof or (y) Executive. If any payments or benefits are reduced pursuant to this Section 16(b), they shall be reduced in the following order: First all payments and benefits that do not constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code or that are exempt from section 409A of the Code (with the payments or benefits being reduced in reverse order of when they otherwise would be made or provided); second, all payments or benefits that constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code that are not exempt from section 409A of the Code that were granted to Executive in the 12-month period of time preceding the applicable Change in Control, in the order such benefits were granted to Executive; and third, all remaining payments and benefits shall be reduced pro-rata. Notwithstanding the foregoing, if (i) reducing payments or benefits in the order described above would result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), (ii) Executive so notifies the Company before such reductions and payments are made and benefits provided, and (iii) reducing the payments or benefits in another order would not result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), payments and benefits shall instead be reduced in such other order.
(c) Section 409A Compliance.
(i) With respect to any reimbursement of expenses or any provision of in-kind benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangements providing for the reimbursement of expenses referred to in section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(ii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “deferred compensation” (as defined under the United States Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in the United States Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) upon or following a termination of employment unless such termination is also a “separation from service” and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” For purposes of section 409A of the Code, the date as of which Company and Executive reasonably anticipate that no further services would be performed by Executive for Company shall be construed as the date that Executive first incurs a “separation from service” as defined under section 409A of the Code.
(iii) Notwithstanding anything in this Agreement to the contrary, if a payment obligation arises on account of Executive’s separation from service while Executive is a “specified employee” as described in section 409A of the Code and the United States Treasury Regulations thereunder and as determined by Company in accordance with its procedures, by which determination Executive is bound, any payment of “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in the United States Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) shall be made on the first business day of the seventh month following the date of Executive’s separation from service, or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death together with interest on them for the period of delay at a rate equal to the average prime interest rate published in the Wall Street Journal on any day chosen by the Company during that period. Thereafter, Executive shall receive any remaining payments as if there had not been an earlier delay.
(iv) Notwithstanding anything to the contrary contained in this Agreement, (i) the Executive shall have no legally-enforceable right to, and the Company shall have no obligation to make, any payment or provide any benefit to Executive if having such a right or obligation would result in the imposition of additional taxes under section 409A of the Code, and (ii) any provision that would cause any payment or benefit to fail to satisfy section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by section 409A and may be accomplished by the Company without the Executive’s consent). If any payment is not made or any benefit is not provided under the terms of this Section 16(c)(iv), it is the Company’s present intention to make a similar payment or provide a similar benefit to the Executive in a manner that will not result in the imposition of additional taxes under section 409A of the Code, to the extent feasible. Each payment made under this Agreement is intended to be a separate payment for the purposes of section 409A of the Code.
(v) The Company does not guarantee any particular tax effect to Executive under this Agreement. Company shall not be liable to Executive for any payment made under this Agreement that is determined to result in an additional tax, penalty or interest under section 409A of the Code and/or any corresponding and applicable Swiss federal, cantonal or local law provision, nor for reporting in good faith any payment made under this Agreement as an amount includible in gross income under section 409A of the Code. The parties intend this Agreement to be exempt from, or comply with, the requirements of Section 409A of the Code and the final regulations and any guidance promulgated thereunder so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed by Section 409A. Any ambiguities or ambiguous terms shall be interpreted to so be exempt or comply, and this Agreement shall be administered in accordance with such intent.
(vi) Swiss federal, cantonal and local law provisions are expressly reserved and this Section 16(c)(i) to (v) may only apply to the extent permitted by Swiss federal, cantonal and local law provisions.
17. Immigration Services; Confidentiality and Inventions Agreement. Executive agrees to timely file all documents required by immigration authorities and/or bodies and/or agencies to verify his/her identity and lawful employment in Switzerland. In addition, as a condition to Executive’s employment with the Company, Executive is required to complete, sign, return, and abide by the Company’s Employee Confidentiality and Inventions Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute the same instrument.
19. Resignation from Positions. Upon Executive’s cessation of employment with the Company for any reason, Executive agrees that Executive shall be deemed to have resigned as an officer and as a director (if applicable) from the Company and every Affiliate on which Executive is then serving as an officer or director, and from any other entity or company on which Executive is then serving as a director or officer at the request of the Company, in each case effective as of the date of Executive’s cessation of employment. In the event of Executive’s cessation of employment, Executive agrees to execute a general resignation resigning from all positions then held by Executive on every subsidiary of the Company and other entity or company on which Executive is then serving as a director or officer at the request of the Company. Executive hereby grants the corporate secretary of the Company an irrevocable power of attorney to execute on behalf of Executive all such resignations, documents and instruments and to take all such other actions as reasonably necessary to carry out the intention of this Section 19.
20. Executive’s Commencement of Employment. It is a condition precedent to the effectiveness of this Agreement that Executive commences working full-time for the Company at the Company’s principal executive offices on the Effective Date. If Executive does not commence such full-time employment on the Effective Date, then this Agreement shall be null and void and the Company shall have no obligations hereunder or otherwise to Executive.
21. Executive’s Acknowledgement.
EXECUTIVE ACKNOWLEDGES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND HIM/HER RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS) AND THAT HE/SHE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS), THAT HE/SHE UNDERSTANDS ALL OF SUCH AGREEMENTS, AND THAT HE/SHE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS SUCH AGREEMENTS WITH HIS/HER PRIVATE LEGAL COUNSEL AND HAS AVAILED HIMSELF/HERSELF OF THAT OPPORTUNITY TO THE EXTENT HE/SHE WISHED TO DO SO.
(Signature page follows)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
|
|
|
ACCURAY INTERNATIONAL SÀRL, | ||
|
|
|
a Swiss limited liability company | ||
|
|
|
|
| |
|
|
|
By: |
/s/ Joshua Levine | |
|
|
|
Name: |
Joshua Levine | |
|
|
|
Title: |
Director | |
|
|
| |||
|
Accepted and Agreed, |
| |||
|
|
|
| ||
|
Lionel Hadjadjeba: |
/s/ Lionel Hadjadjeba |
| ||
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Agreement”) is hereby entered into by and between , an individual (“Executive”), and Accuray International Sàrl, a Swiss limited liability company, on behalf of itself and all of its subsidiaries (collectively, the “Company”).
Recitals
A. Executive has been employed by the Company pursuant to an employment agreement by and between the Company and Executive effective as of January 1, 2018 (the “Employment Agreement”), and currently is serving as [specify position held at time of termination];
B. Executive’s employment with the Company and any of its parents, direct or indirect subsidiaries, affiliates, divisions, or related entities (collectively referred to herein as the “Company and its Related Entities”) will be ended on the terms and conditions set forth in this Agreement.
Agreement
In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Effective Date. Except as otherwise provided herein, this Agreement shall be effective on the eighth day after it has been executed by both of the parties (the “Effective Date”).
2. End of Employment and Service as a Director. Executive’s employment with the Company and its Related Entities has ended or will end effective as of CET Time, on (the “Termination Date”). If Executive is an officer or a member of the Board of Directors of the Company and/or its Related Entities (the “Board”) Executive hereby voluntarily resigns from any such officer positions and the Board, effective .
3. Continuation of Benefits After the Termination Date. Except as expressly provided in this Agreement or in the plan documents governing the Company’s employee benefit plans, after the Termination Date, Executive will no longer be eligible for, receive, accrue, or participate in any other benefits or benefit plans provided by the Company and its Related Entities, including, without limitation, medical, dental and life insurance benefits, and the Company’s retirement plan; provided, however, that nothing in this Agreement shall waive Executive’s right to any vested benefits, including vested amounts in the Company’s retirement plan, which amounts shall be handled as provided in the plan.
4. Payments Upon Termination. Executive will be entitled to receive payment of the following: (i) all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and (ii) reimbursement, made in accordance with Section 4(e) of the Employment Agreement, of any monies advanced or incurred by Executive in connection with his/her employment for reasonable and necessary Company-related expenses incurred on or before the Termination Date. The provisions of this Agreement shall not waive or terminate any rights to compensation or vested benefits under the Company’s benefits plans or as required by law, or to indemnification Executive may have under the Company’s Certificate of Incorporation, Bylaws or separate indemnification agreement, as applicable.
5. Severance Benefits or Enhanced Severance Benefits. In return for Executive’s promises in this Agreement, and subject to the proper execution of the Release of Claims in accordance with Section 13 below, the Company will provide Executive with the Severance Benefits or Enhanced Severance Benefits as defined in Sections 5(a) and 5(e) of the Employment Agreement and as applicable based on the nature of the termination, subject to the terms and conditions set forth in the Employment Agreement, including, but not limited to, Section 16 thereof. The Severance Benefits or Enhanced Severance Benefits will be paid as specified in Section 5(a) or Section 5(e) of the Employment Agreement, as applicable and shall be subject to required withholdings and authorized deductions and to Section 21 below. Without prejudice to the foregoing, if the Termination Date is extended for any reason, the Severance Benefits or Enhanced Severance Benefits shall be reduced by the cost to the Company of providing pay and benefits to the Employee as a result of such extension.
6. Effect of Non Execution of the Release of Claim Form or Subsequent Employment.
(a) If Executive does not properly execute the Release of Claims Form (as defined below) in accordance with Section 13 below, Executive shall not be entitled to receive the payments and benefits under Section 5, above, except that Executive’s rights under COBRA will continue (but not, for purposes of clarity, the right to be reimbursed for COBRA premiums or receive any COBRA Substitute Payments (as defined in the Employment Agreement)).
(b) The Company’s obligation to reimburse premiums for insurance coverage under COBRA or otherwise will be extinguished as of the date Executive’s coverage begins under the group health plan of any new employer. If Executive violates the restrictions in Section 17, below, the Company’s obligation to pay premiums for insurance under COBRA or otherwise will be immediately extinguished, and the other remedies specified in Section 17, below, shall apply.
7. Acknowledgement of Total Compensation and Indebtedness. Executive acknowledges and agrees that the cash payments under Sections 4 and 5 of this Agreement extinguish any and all obligations for monies, or other compensation or benefits that Executive claims or could claim to have earned or claims or could claim is owed to him/her as a result of his/her employment by the Company and its Related Entities through the Termination Date, under the Employment Agreement or otherwise. Notwithstanding the foregoing, the parties acknowledge and agree that the provisions of this Section 7 shall not terminate any rights Executive has under Section 3 of this Agreement or to other payments Executive may have, and to any indemnification Executive may have under the Company’s Bylaws or separate indemnification agreement, as applicable.
8. Status of Related Agreements and Future Employment.
(a) Agreements Between Executive and the Company. [Agreements to be scheduled at time].
(b) Employment Agreement. The parties agree that the Employment Agreement shall be terminated as of the Termination Date. Notwithstanding the termination of the Employment Agreement, the parties hereto acknowledge that certain rights and obligations set forth in the Employment Agreement extend beyond the Termination Date. In the event that any provision of this Agreement conflicts with Section 6 of the Employment Agreement, the terms and provisions of the section(s) providing the greatest protection to the Company and its Related Entities shall control.
9. Release by Executive.
(a) Except for any obligations or covenants of the Company pursuant to this Agreement and as otherwise expressly provided in this Agreement, Executive, for himself/herself and his/her heirs, executors, administrators, assigns, successors and agents (collectively, the “Executive’s Affiliates”) hereby fully and without limitation releases and forever discharges the Company and its Related Entities, and each of their respective agents, representatives, stockholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the “Company Releasees”), both individually and collectively, from any and all waivable rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which Executive or any of Executive’s Affiliates has or may have or may claim to have against the Company Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the Effective Date (“Claims”), arising out of, based upon, or relating to his/her employment or the termination of his/her employment with the Company and its Related Entities and/or his/her service as an officer of any of the Company Releasees, any agreement or compensation arrangement between Executive and any of the Company Releasees, to the maximum extent permitted by law.
(b) Executive specifically and expressly releases any Claims arising out of or based on: the California Fair Employment and Housing Act, Title VII of the United States Civil Rights Act of 1964, the United States Americans with Disabilities Act, the United States National Labor Relations Act and the United States Equal Pay Act, as the same may be amended from time to time; the California common law on fraud, misrepresentation, negligence, defamation, infliction of emotional distress or other tort, breach of contract or covenant, violation of public policy or wrongful termination; state or federal wage and hour laws, and other provisions of the California Labor Code, to the extent these may be released herein as a matter of law; or any other state or federal law, rule, or regulation dealing with the employment relationship, including in particular Swiss laws, except those claims which may not be released herein as a matter of law.
(c) Nothing contained in this Section 9 or any other provision of this Agreement shall release or waive any right that Executive has to indemnification and/or reimbursement of expenses by the Company and its Related Entities with respect to which Executive may be eligible as provided in California Labor Code section 2802, the Company’s and its Related Entities’ Certificates of Incorporation, Bylaws and any applicable directors and officers, errors & omissions, umbrella or general liability insurance policies, any indemnification agreements, including the Employment Agreement; or any other applicable source, nor prevent Executive from cooperating in an investigation of the Company by the Equal Employment Opportunity Commission (“EEOC”, such term to include also any other local equivalent body or agency).
10. Waiver.
(a) Executive understands and agrees that the release provided herein extends to all Claims released above whether known or unknown, suspected or unsuspected, which may be released as a matter of law. To the extent that the California Civil Code section 1542 would be applicable to the employment of Executive with the Company, Executive expressly waives and relinquishes any and all rights he/she may have under that 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.”
(b) Executive expressly waives and releases any rights and benefits which he/she has or may have under any similar law or rule of any other jurisdiction. It is the intention of each party through this Agreement to fully, finally and forever settle and release the Claims as set forth above. In furtherance of such intention, the release herein given shall be and remain in effect as a full and complete release of such matters notwithstanding the discovery of any additional Claims or facts relating thereto.
11. [If Executive is age 40 or over on Termination Date] Release of United States Federal Age Discrimination Claims by Executive. Executive hereby knowingly and voluntarily waives and releases all rights and claims, known or unknown, arising under the United States Age Discrimination In Employment Act of 1967, as amended, which he/she might otherwise have had against the Company or any of the Company Releasees regarding any actions which occurred prior to the date that Executive signed this Agreement, except that Executive is not prevented from cooperating in an investigation by the EEOC or from filing an EEOC charge other than for personal relief.
12. Release by Company and its Related Entities. The Company and its Related Entities hereby release and forever discharge Executive, from any and all waivable actions, causes of action, covenants, contracts, claims and demands of whatever character, nature and kind, whether known or unknown, which the Company and its Related Entities ever had, now have, or any of them hereafter can, shall or may have by reason of Executive’s employment and/or his/her service as a director and/or officer of the Company and/or its Related Entities; provided, however, that this general release shall not apply, or be deemed or construed to apply, to (a) any of Executive’s continuing obligations pursuant to this Agreement or the Employment Agreement, (b) criminal conduct or acts or omissions constituting willful misconduct or gross negligence by Executive during his/her employment with the Company, or (c) recoupment of all or a portion of any previously awarded bonus or equity award pursuant to the Company’s Recoupment (Clawback) Policy that was in effect when the bonus was paid or the equity award vested or was exercised by Executive, whichever was later.
13. Review and Release of Claims Form. Executive hereby is advised of the following:
(a) Executive has the right to consult with an attorney before signing this Agreement and is encouraged by the Company to do so;
(b) Executive has up to thirty (30) days after termination of Executive’s employment with the Company to challenge or denunciate this Agreement; and
(c) in order to be provided with the Severance Benefits or Enhanced Severance Benefits, Executive shall execute an unconditional release of Claims in the form set out in Annex 1 (the “Release of Claims Form”), it being further expressly specified that such Release of Claims Form must not be signed by Executive earlier than one month after the Termination Date and shall, immediately after being signed, be sent to the Company, such that it is received by the Company within 60 days after the Termination Date.
14. Confidentiality of Agreement. After the execution of this Agreement by Executive, neither Executive, his/her attorney, nor any person acting by, through, under or in concert with them, shall disclose any of the terms of or amount paid under this Agreement (other than to state that the Company has filed this Agreement and/or agreements related thereto as public documents) or the negotiation thereof to any individual or entity; provided, however, that the foregoing shall not prevent such disclosures by Executive to his/her attorney, tax advisors and/or immediate family members, as may be required by law, or in connection with Protected Activity (as defined in the Employment Agreement).
15. No Filings. Executive represents that he/she has not filed any lawsuits, claims, charges or complaints, which are pending as of the date hereof, against the Company Releasees with any local, state or federal agency or court from the beginning of time to the date of execution of this Agreement, and that Executive is not aware of any facts that would support any Claims or any compliance-related or code of ethics violations of any kind whatsoever against the Company Releasees, including without limitation any claims for any work-related injuries. If Executive hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the Claims released in this Agreement, or in any manner asserts against the Company Releasees any of the Claims released in this Agreement, then Executive agrees to pay to the Company Releasees against whom such Claim(s) is asserted, in addition to any other damages caused thereby, all attorneys’ fees incurred by the Company Releasees in defending or otherwise responding to the suit or Claim; provided, however, that this provision shall not obligate Executive to pay the Company Releasees’ attorneys’ fees in any action challenging the release of claims under the United States Older Workers Benefit Protection Act or the United States Age Discrimination In Employment Act of 1967, as amended, or any similar applicable law, unless otherwise allowed by law. If any governmental agency or court ever assumes jurisdiction over any such lawsuit, claim, charge or complaint and/or purports to bring any legal proceeding, in whole or in part, on behalf of Executive based upon events occurring prior to the execution of this Agreement, Executive will request such agency or court to withdraw from and/or to dismiss the lawsuit, claim, charge or complaint with prejudice.
16. Confidential and Proprietary Information. Executive acknowledges that certain information, observations and data obtained by him/her during the course of or related to his/her employment with the Company and its Related Entities (including, without limitation, projection programs, business plans, business matrix programs (i.e., measurement of business), strategic financial projections, certain financial information, shareholder information, technology and product design information, marketing plans or proposals, personnel information, customer lists and other customer information) are the sole property of the Company and its Related Entities and constitute Proprietary Information as defined in Section 6 of the Employment Agreement. Executive represents and warrants that he/she has returned all files, customer lists, financial information and other property of the Company and its Related Entities that were in Executive’s possession or control without retaining copies thereof (other than a copy of the Employee Handbook and personnel records relating to Executive’s employment). Executive further represents and warrants that he/she does not have in his/her possession or control any files, customer lists, financial information or other property of the Company and its Related Entities. In addition to his/her promises in Section 6 of the Employment Agreement, Executive agrees that he/she will not disclose to any person or use any such information, observations or data without the written consent of the Board. If Executive is served with a deposition subpoena or other legal process calling for the disclosure of such information, or if he/she is contacted by any third person requesting such information, he/she will notify the Board as soon as is reasonably practicable after receiving notice and will reasonably cooperate with the Company and its Related Entities in minimizing the disclosure thereof; provided, that nothing in this Agreement will (i) affect Executive’s obligations to testify truthfully in response to any subpoena or other legally required discovery proceeding or (ii) in any way limit or prohibit Executive from engaging in Protected Activity.
17. Prohibited Activities.
(a) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive
understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Board.
(b) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself/herself or on behalf of any other person or entity, to solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(c) Scope of Restrictions. Executive agrees that the restrictions in Sections 17 (a) and (b), above, are reasonable and necessary to protect the Company’s trade secrets and that they do not foreclose Executive from working in the medical device industry generally. To the extent that any of the provisions in this Section 17 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 17 is held to be unenforceable, that the remaining provisions of it shall be enforced as written.
18. Remedies. Executive acknowledges that any misuse of Proprietary Information belonging to the Company and its Related Entities, or any violation of Section 6 of the Employment Agreement, and any violation of Sections 14, 16 and 17 of this Agreement, will result in irreparable harm to the Company and its Related Entities, and therefore, the Company and its Related Entities shall, in addition to any other remedies, be entitled to immediate injunctive relief. To the extent there is any conflict between Section 6 of the Employment Agreement and this Section 18, the provision providing the greatest protection to the Company and its Related Entities shall control. In addition, in the event of a breach of any provision of this Agreement by Executive, including Sections 14, 16 and 17, Executive shall forfeit, and the Company and its Related Entities may withhold payment of any unpaid portion of, the Severance Benefits or Enhanced Severance Benefits provided under Section 5, above.
19. Cooperation Clause.
(a) To facilitate the orderly conduct of the Company and its Related Entities’ businesses, for the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company and its Related Entities’ reasonable requests for information or assistance related to the time of his/her employment.
(b) For the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company’s and its Related Entities’ and its or their counsel’s reasonable requests for information or assistance related to (i) any investigations (including internal investigations)
and audits of the Company’s and its Related Entities’ management’s current and past conduct and business and accounting practices and (ii) the Company’s and its Related Entities’ defense of, or other participation in, any administrative, judicial, or other proceeding arising from any charge, complaint or other action which has been or may be filed relating to the period during which Executive was employed by the Company and its Related Entities. The Company will promptly reimburse Executive for his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Section 19. Except as required by law or authorized in advance by the Board of Directors of the Company, Executive will not communicate, directly or indirectly, with any third party other than Executive’s legal counsel, including any person or representative of any group of people or entity who is suing or has indicated that a legal action against the Company and its Related Entities or any of their directors or officers is being contemplated, concerning the management or governance of the Company and its Related Entities, the operations of the Company and its Related Entities, the legal positions taken by the Company and its Related Entities, or the financial status of the Company and its Related Entities. If asked about any such individuals or matters, Executive shall say: “I have no comment,” and shall direct the inquirer to the Company. Executive acknowledges that any violation of this Section 19 will result in irreparable harm to the Company and its Related Entities and will give rise to an immediate action by the Company and its Related Entities for injunctive relief.
20. No Future Employment. Executive understands that his/her employment with the Company and its Related Entities will irrevocably end as of the Termination Date and will not be resumed at any time in the future. Executive agrees that he/she will not apply for, seek or accept employment by the Company and its Related Entities at any time, unless invited to do so by the Company and its Related Entities.
21. Tax Issues. The parties agree that the payments and benefits provided under this Agreement, and all other contracts, arrangements or programs that apply to him/her, shall be subject to Section 16 of the Employment Agreement.
22. Non-disparagement. Executive agrees not to criticize, denigrate, or otherwise disparage the Company and its Related Entities, or any of their directors, officers, products, processes, experiments, policies, practices, standards of business conduct, or areas or techniques of research. The Company agrees not to authorize or condone denigrating or disparaging statements about Executive to any third party, including by press release or other formally released announcement. Factually accurate statements in legal or public filings shall not violate this provision. In addition, nothing in this Section 22 shall prohibit Executive or the Company or the Board, or any of their employees or members from complying with any lawful subpoena or court order or taking any other actions affirmatively authorized by law.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Switzerland, without giving effect to principles of conflict of laws.
24. Dispute Resolution. The parties hereby agree that all disputes, claims or controversies arising from or otherwise in connection with this Agreement (except for injunctive relief sought by either party) between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, and any director, stockholder or employee of the Company will be resolved in accordance with Section 13 of the Employment Agreement.
25. Attorneys’ Fees. Except as otherwise provided herein, in any action, litigation or proceeding between the parties arising out of or in relation to this Agreement, including any purported breach of this Agreement, the prevailing party shall, to the fullest extent permitted by law, be entitled to an award of its costs and expenses, including reasonable attorneys’ fees.
26. Non-Admission of Liability. The parties understand and agree that neither the payment of any sum of money nor the execution of this Agreement by the parties will constitute or be construed as an admission of any wrongdoing or liability whatsoever by any party.
27. Severability. If any one or more of the provisions contained herein (or parts thereof), or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof will not be in any way impaired or affected, it being intended that all of the rights and privileges shall be enforceable to the fullest extent permitted by law.
28. Entire Agreement. This Agreement represents the sole and entire agreement among the parties and, except as expressly stated herein, supersedes all prior agreements, negotiations and discussions among the parties with respect to the subject matters contained herein.
29. Waiver. No waiver by any party hereto at any time of any breach of, or compliance with, any condition or provision of this Agreement to be performed by any other party hereto may be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at any prior or subsequent time.
30. Amendment. This Agreement may be modified or amended only if such modification or amendment is agreed to in writing and signed by duly authorized representatives of the parties hereto, which writing expressly states the intent of the parties to modify this Agreement.
31. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original as against any party that has signed it, but both of which together will constitute one and the same instrument.
32. Assignment. This Agreement inures to the benefit of and is binding upon the Company and its successors and assigns, but Executive’s rights under this Agreement are not assignable, except to his/her estate.
33. Notice. All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) if personally delivered or delivered by express courier; (b) if sent by electronic mail, telecopy or facsimile (except for legal process); or (c) if mailed by registered mail, and properly addressed as follows:
|
If to the Company: |
|
Accuray International Sàrl |
|
|
|
c/o Accuray Incorporated |
|
|
|
1310 Chesapeake Terrace |
|
|
|
Sunnyvale, California 94089 |
|
|
|
Attn: Board of Directors |
|
|
|
c/o Corporate Secretary |
|
|
|
Fax No. (408) 789-4205 |
|
|
|
|
|
If to Executive: |
|
Address: most recent on file with the Company |
|
|
|
Email: most recent on file with the Company |
Such addresses may be changed, from time to time, by means of a notice given in the manner provided above. Notice will conclusively be deemed to have been given when personally delivered (including, but not limited to, by messenger or courier); or if given by registered mail, when such registered mail is received but in all and any event seven (7) calendar days after being sent by registered mail; or if given by Federal Express or other express service, on the date of delivery; or if given by electronic mail,
telecopy or facsimile machine during normal business hours on a business day, when confirmation of transmission is indicated by the sender’s machine; or if given by electronic mail, telecopy or facsimile machine at any time other than during normal business hours on a business day, the first business day following when confirmation of transmission is indicated by the sender’s machine. Unless otherwise agreed, notices, requests, demands and other communications delivered to legal counsel of any party hereto, whether or not such counsel shall consist of in-house or outside counsel, shall not constitute duly given notice to any party hereto.
34. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and fully understand all of its terms; that they have conferred with their attorneys, or have knowingly and voluntarily chosen not to confer with their attorneys about this Agreement; that they have executed this Agreement without coercion or duress of any kind; and that they understand any rights that they have or may have, and they are signing this Agreement with full knowledge of any such rights.
(b) Both parties have participated in the drafting of this Agreement with the assistance of counsel to the extent they desired. The language in all parts of this Agreement must be in all cases construed simply according to its fair meaning and not strictly for or against any party. Whenever the context requires, all words used in the singular must be construed to have been used in the plural, and vice versa, and each gender must include any other gender. The captions of the Sections of this Agreement are for convenience only and must not affect the construction or interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party hereto is both a covenant and condition, and is a material consideration for the other party’s performance hereunder, and any breach thereof by the party will be a material default hereunder. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement are cumulative and no one of them is exclusive of any other. Time is of the essence in the performance of this Agreement.
(d) Each party acknowledges that no representation, statement or promise made by any other party, or by the agent or attorney of any other party, except for those in this Agreement, has been relied on by him/her or it in entering into this Agreement.
(e) Unless expressly set forth otherwise, all references herein to a “day” are deemed to be a reference to a calendar day. All references to “business day” mean any day of the year other than a Saturday, Sunday or a public or bank holiday in the canton of Vaud, Switzerland. Unless expressly stated otherwise, cross-references herein refer to provisions within this Agreement and are not references to any other document.
(f) Each party to this Agreement will cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
(g) Executive hereby acknowledges having received the statutory information relating to Swiss accident insurance for departing employees.
(h) The Company shall provide a reference/work certificate to Executive in accordance with article 330a Swiss Code of Obligations.
(i) Although not a party to this Agreement, Employee expressly agrees that any Related Entity may enforce against Executive any provision of this Agreement which is to their benefit.
EACH OF THE PARTIES ACKNOWLEDGES THAT HE/SHE/IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT, AND, WITH RESPECT TO EXECUTIVE, HE/SHE UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
(Signature page follows)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the dates written below.
|
EXECUTIVE: |
| |
|
|
|
|
|
|
Date: |
|
|
|
|
|
|
COMPANY: |
Accuray International Sàrl | |
|
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
|
|
|
|
|
|
Date: |
|
Annex 1
Release of Claims Forms
Reference is made to the Separation Agreement and General Release entered into by and between , an individual (“Executive”), and Accuray International Sàrl, a Swiss limited liability company, on behalf of itself and all of its subsidiaries (collectively, the “Company”), dated [DATE] (“Separation Agreement”)
1. Capitalized terms in this Release of Claims Forms have the meaning set out in the Separation Agreement.
2. Executive hereby affirms and agrees the terms of the Separation Agreement.
3. Executive confirms that the terms of the Separation Agreement satisfy all claims, compensation and benefits to which he/she is entitled including any he/she may have received had his/her employment not terminated and exceed the nature and scope of that to which he/she would otherwise have been entitled to receive from the Company and its Related Entities and constitute adequate consideration for his/her undertakings in the Separation Agreement and this Release of Claims Form.
4. Executive hereby waives and releases the Company and its Related Entities from any liability regarding any claims or rights of action that Executive has or may have against each of them or their officers or employees whether arising out of his employment or its termination or otherwise and whether arising from events occurring before, up to or after the date of this Release of Claims Form, including but not limited to any under any common law, contract, statute, tort or other claim whether under the law of Switzerland/or California or any other law or jurisdiction and whether such claims or liabilities are, or could be, known to the parties of the Separation Agreement or in their contemplation at the date of this Release of Claims Form save for any obligation of the Employer in the Separation Agreement.
5. As at the date of this Release of Claims Form, Executive warrants and represents to the Company that there are no circumstances of which Executive is aware which would have allowed the Company to terminate Executive’s employment with Cause.
|
Print full name: |
|
|
|
|
|
|
|
Signature: |
|
|
|
|
|
|
|
Date: |
|
|
|
|
|
|
|
Place: |
|
|
Exhibit B
SECTION 7 OF THE DEFEND TRADE SECRETS ACT OF 2016
“ . . . An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. . . . An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual—(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”
AMENDED AND RESTATED RENEWAL EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Renewal Executive Employment Agreement (“Agreement”) is entered into and effective as of January 1, 2018 (“Effective Date”), by and between Accuray Incorporated, a Delaware corporation (the “Company”), and Andrew J. Kirkpatrick (“Executive”).
RECITALS
A. The Company is in the business of developing, manufacturing and selling radiation oncology, including radio surgery and radiation therapy, technologies and devices (the “Business”).
B. The Company previously entered into a Renewal Executive Employment Agreement dated January 1, 2017 (the “Prior Agreement”) to employ Executive to serve as Senior Vice President, Global Operations and Corporate Development.
C. The Company and Executive wish to amend and restate the terms of the Prior Agreement as set forth herein to modify certain terms.
D. As of the Effective Date, Executive has commenced full-time employment with the Company.
NOW, THEREFORE, the parties agree that the Prior Agreement is hereby amended and restated to read in its entirety as follows:
1. Position and Duties.
(a) During the term of this Agreement, Executive will be employed by the Company to serve as Senior Vice President, Global Operations and R&D of the Company, reporting to the Chief Executive Officer of the Company. Executive will be responsible for: (i) performing the duties and responsibilities customarily expected to be performed by such position and (ii) performing such other duties and functions as are reasonably required and/or as may be reasonably prescribed by the Company from time to time.
(b) The location of Executive’s employment will be the Company’s offices at Madison, Wisconsin, but (i) Executive from time to time may be required to travel to other geographic locations in connection with the performance of his/her duties and (ii) Executive may work remotely in accordance with mutually agreed upon arrangements with the Company.
2. Standards of Performance. Executive will at all times faithfully, industriously and to the best of his/her ability, experience and talents perform all of the duties required of and from him/her pursuant to the terms of this Agreement. Executive will devote his/her full business energies and abilities and all of his/her business time to the performance of his/her duties hereunder and will not, without the Company’s prior written consent, render to others any service of any kind (whether or not for compensation) that, in the Company’s sole but reasonable judgment, would interfere with the full performance of his/her duties hereunder. Notwithstanding the foregoing, Executive is permitted to spend reasonable amounts of time to manage his/her personal financial and legal affairs and, with the Company’s consent which will not be unreasonably withheld, to serve on one civic, charitable, not-for-profit, industry or corporate board or advisory committee, provided that such activities, individually and collectively, do not materially interfere with the performance of Executive’s duties hereunder. In no event will Executive engage in any activities that could reasonably create a conflict of interest or the appearance of a conflict of interest. Executive shall be subject to the Company’s policies, procedures and approval practices, as generally in effect from time to time.
3. Term.
(a) Term of Agreement. This Agreement will have an initial term of three (3) years commencing on the Effective Date (the “Initial Term”). On the third anniversary of the Effective Date, this Agreement will renew automatically for additional three (3) year terms (each, an “Additional Term” and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the date of automatic renewal; provided, however, that if the Company enters into a definitive agreement to be acquired and the transactions contemplated thereby would result in the occurrence of a Change in Control (as defined below) if consummated, then the Company will no longer be permitted to provide Executive with written notice to not renew this Agreement unless such definitive agreement is terminated without the Change in Control being consummated. If the Change in Control is consummated, the Agreement will continue in effect through the longer of the date that is twelve (12) months following the effective date of the Change in Control or the remainder of the Term then in effect (for purposes of clarification, it will be possible for the Term of the Agreement to automatically extend after the Company enters into the definitive agreement, but before the Change in Control is consummated). If the definitive agreement is terminated without the transactions contemplated thereby having been consummated and at the time of such termination there is at least twelve (12) months remaining in the Term, the Agreement will continue in effect for the remainder of the Term then in effect, but if there is less than twelve (12) months remaining in the Term then in effect, the Agreement will automatically extend for an additional three (3) years from the date the definitive agreement is terminated. If Executive becomes entitled to benefits under Section 5 during the term of this Agreement, the Agreement will not terminate until all of the obligations of the parties hereto with respect to this Agreement have been satisfied.
(b) At-Will Employment. The Company and Executive acknowledge that, notwithstanding the foregoing, Executive’s employment is and will continue to be at-will, as defined under applicable law. As an at-will employee, either the Company or the Executive may terminate the employment relationship at any time, with or without cause; provided, however, that in connection with such termination, the Company will provide Executive with any applicable benefits under Section 5 to which Executive is entitled, all in accordance with the terms and conditions thereof.
4. Compensation and Benefits.
(a) Base Salary. As an annual base salary (“Base Salary”) for all services rendered pursuant to this Agreement, Executive will be paid an initial Base Salary in the gross amount of $395,000 calculated on an annualized basis, less necessary withholdings and authorized deductions, and payable pursuant to the Company’s regular payroll practices at the time. The Base Salary is first subject to review and adjustment within the first three (3) months after the end of the fiscal year that includes the Effective Date, and, thereafter, subject to periodic review and adjustment not less frequently than annually within the first three (3) months after the end of the next successive fiscal year, in the sole discretion of the Company. Executive’s Base Salary will not be reduced from the level in effect from time to time, except that the Base Salary may be reduced in connection with a salary reduction program of general application to senior executives of the Company where each experiences a substantially similar reduction on a percentage basis.
(b) Performance Bonus. During Executive’s employment under this Agreement, Executive will be eligible for a performance bonus, subject to the terms and conditions of the Company’s Performance Bonus Plan, which is applicable to senior executives of the Company. The target amount of Executive’s annual bonus is sixty percent (60%) of Executive’s annual Base Salary (as defined in the
Company’s Performance Bonus Plan as then in effect). However, payment of the performance bonus will be conditioned on the Company’s achievement of corporate performance objectives approved by the Company and on the Executive’s achievement of individual performance metrics to be established annually and approved by the Company, all as established pursuant to the Company’s Performance Bonus Plan as then in effect, and the bonus may be zero. For the avoidance of doubt, the performance bonus will be payable only if the corporate and/or individual performance objectives approved by the Company are achieved as determined by the Company, subject to the Company’s right to exercise discretion in determining the amount of the bonus to be awarded, if any, as set forth in the Company’s Performance Bonus Plan then in effect. To encourage continued tenure with the Company, Executive must be employed by the Company as of the payment date to be eligible for a performance bonus for the year to which the bonus relates, unless otherwise provided in Section 5. Performance bonuses will be paid out according to the terms of the Company’s Performance Bonus Plan.
(c) Equity Incentive Awards.
(i) Stock Options. The Company may grant to Executive the option to purchase shares of the Company’s common stock (“Options”) pursuant to the Accuray Incorporated 2016 Equity Incentive Plan (the “Incentive Plan”). All Options shall be subject to the terms and conditions of the Incentive Plan and a stock option grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the Options.
(ii) Restricted Stock Units. The Company may grant to Executive restricted stock units (“RSUs”) pursuant to the Incentive Plan. All RSUs are subject to and conditioned on approval of the grant and its terms by the Company’s Board of Directors (the “Board”). All RSUs shall be subject to the terms and conditions of the Incentive Plan and a RSU grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the RSUs.
(iii) Market Stock Units. The Company may grant to Executive performance-based market stock units (“MSUs”) pursuant to the Incentive Plan. All MSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted MSUs shall vest as provided in the applicable MSU grant notice and grant agreement (“MSU Agreement”). All MSUs shall be subject to the terms and conditions of the Incentive Plan and a MSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the MSUs.
(iv) Performance Stock Units. The Company may grant to Executive performance stock units (“PSUs”) pursuant to the Incentive Plan. All PSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted PSUs shall vest as provided in the applicable PSU grant notice and grant agreement (“PSU Agreement”). All PSUs shall be subject to the terms and conditions of the Incentive Plan and a PSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the PSUs.
(d) Paid Time Off and Benefits. Executive will accrue and be allowed to use paid time off for vacation, illness and holidays pursuant to the Company’s policies that apply to executive officers of the Company. In addition, Executive will be entitled to participate in any plans regarding benefits of employment, including pension, profit sharing, group health, disability insurance and other employee pension and welfare benefit plans now existing or hereafter established to the extent that Executive is eligible under the terms of such plans and if the other executive officers of the Company generally are eligible to participate in such plan. The Company may, in its sole discretion and from time to time, establish additional senior management benefit plans as it deems appropriate. Executive understands that any such plans may be modified or eliminated in the Company’s sole discretion in accordance with applicable law, provided that no such modification or elimination shall result in reducing or eliminating any benefits in which Executive’s right has vested.
(e) Reimbursement of Business Expenses. The Company will promptly reimburse to Executive his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Agreement, and in accordance with the policies and procedures established by the Company; provided that each reimbursement shall be requested within two (2) months after being incurred.
(f) Sarbanes-Oxley Act Loan Prohibition and Company Compensation-Related Polices. To the extent that any Company benefit, program, practice, arrangement or this Agreement would or might otherwise result in Executive’s receipt of an illegal loan (the “Loan”), the Company shall use commercially reasonable efforts to provide Executive with a substitute for the Loan that is lawful and of at least equal value to Executive. If this cannot be done, or if doing so would be significantly more expensive to the Company than making the Loan, the Company need not make the Loan to Executive or provide him/her a substitute for it. Further, Executive acknowledges that any bonus or equity award provided for in this Agreement or otherwise awarded to him/her shall be subject to the Company’s policies regarding recoupment and clawback, as such policies may be amended from time to time, and agrees that he/she will be subject to, and shall comply with, the Company’s stock ownership requirements which are set forth in its Amended and Restated Corporate Governance Guidelines, as such requirements may be amended from time to time, and the Company’s Insider Trading Policy, as amended from time to time.
5. Termination of Employment.
(a) By Company Without Cause. Subject to the last paragraph of this Section 5(a), the Company may terminate Executive’s employment without Cause (as defined below) effective on thirty (30) days’ written notice (such thirty (30)-day period, the “Notice Period”, and such notice, the “Termination Notice”), during which notice period Executive may be relieved of his/her duties and placed on paid terminal leave. In such event and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) continued coverage under the Company’s insurance benefit plans through the termination date and such other benefits to which he/she may be entitled pursuant to the Company’s benefit plans, provided, however, that Executive shall not participate in any severance plan of the Company;
(ii) payment of all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and
(iii) reimbursement of expenses incurred on or before the termination date in accordance with Section 4(e), above, if a request for reimbursement of the expenses was timely submitted to the Company; plus
(iv) payment of the equivalent of the Base Salary without regard to any reduction that would otherwise constitute Good Reason he/she would have earned over the next six (6) months following the termination date (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Severance Payment”), payable in a lump sum on the first regularly scheduled payroll date following the date the Release becomes effective and irrevocable (the “Release Effective Date”), but in any event within ten (10) business days of the Release Effective Date and subject to Section 16, below;
(v) payment of a prorated portion of the actual bonus Executive would have otherwise received for the fiscal year during which the termination occurs, as if Executive had remained employed by the Company through the date that would have otherwise been required to earn the bonus, but without the Board or any committee of the Board exercising any negative discretion to reduce the amount of the award, calculated by dividing the number of days from the start of the fiscal year through the termination date by 365 and multiplying the amount of such actual bonus Executive would have otherwise received by this percentage (but not by more than 100%), and paid at the same time as bonuses are paid to other Company executives that are similarly situated to Executive; provided, however, that if the termination date is after the seventh month of the fiscal year, the actual bonus will not be prorated and Executive will receive 100% of such actual bonus Executive would have otherwise received for that fiscal year at the same time as bonuses are paid to other Company executives that are similarly situated to Executive;
(vi) subject to Section 5(g), reimbursement of insurance premiums payable to retain group health coverage as of the termination date for himself/herself and his/her eligible dependents pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) for six (6) months or the maximum period of COBRA coverage, whichever is less; provided that Executive must submit a reimbursement request in accordance with Company policy within thirty (30) days of paying such insurance premiums. The Company will reimburse the executive within thirty (30) days of receiving a properly submitted request. In addition, if Executive accepts other employment within such six (6) months, the Company’s obligation under this Section 5(a)(vi) will be extinguished as of the date Executive becomes covered under the group health plan of Executive’s new employer; and
(vii) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
The payments and benefits set forth in Sections 5(a)(i)-(iii) shall be referred to as the “Accrued Benefits”, and the payments and benefits set forth in Sections 5(a)(iv)-(vii) shall be referred to as the “Severance Benefits”. Executive shall not receive the Severance Benefits, the “Enhanced Severance Benefits” as provided in Section 5(e), or the Termination Notice Replacement Payment (as defined below) unless Executive executes the separation agreement and general release attached as Exhibit A (the “Release”), and the same becomes irrevocable pursuant to its terms within the 60-day period following his/her termination of employment. Notwithstanding the foregoing paragraphs of this Section 5(a), the Company may terminate Executive’s employment prior to the expiration of the Notice Period, and in the case of such termination, the Company shall pay Executive the equivalent of the Base Salary he/she would have earned over the remainder of the Notice Period (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Termination Notice Replacement Payment”), subject to Executive satisfying the requirements of the previous sentence. Any such Termination Notice Replacement will be paid in a lump sum at the same time as the Severance Payment.
(b) By Company With Cause. The Company may terminate Executive’s employment at any time and without prior notice, written or otherwise, for Cause. As used in this Agreement, “Cause” shall mean any of the following conduct by Executive: (i) material breach of this Agreement, or of a Company policy or of a law, rule or regulation applicable to the Company or its operations; (ii) demonstrated and material neglect of duties, or failure or refusal to perform the material duties of his/her position, or the failure to follow the reasonable and lawful instructions of the Company; (iii) gross misconduct or dishonesty, self-dealing, fraud or similar conduct that the Company reasonably determines has caused, is causing or reasonably is likely to cause harm to the Company; or (iv) conviction of or plea of guilty or nolo contendere to any crime other than a traffic offense that is not punishable by a sentence of
incarceration. Termination pursuant to Section 5(b)(ii) shall be effective only if such failure continues after Executive has been given written notice thereof and fifteen (15) business days thereafter in which to present his/her position to the Company or to cure the same, unless the Company reasonably determines that the reason(s) for termination are not capable of being cured. In the event of termination for Cause, Executive will be entitled only to the Accrued Benefits through the termination date, which will be the date on which the notice is given. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs), or severance payment of any kind nor to make any payment in lieu of notice.
(c) Incapacity or Death.
(i) If Executive becomes unable, due to physical or mental illness or injury, to perform the essential duties of his/her position for more than twelve (12) consecutive weeks in any twelve (12) month period during this Agreement with or without reasonable accommodation (“Incapacity”), the Company has the right to terminate Executive’s employment on fifteen (15) days’ written notice. In the event of termination for Incapacity, (i) Executive will be entitled to receive the Accrued Benefits, (ii) any unvested equity awards previously granted to Executive that are scheduled to vest based solely on the achievement of service-based conditions (“Time-based Equity Awards”) shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any equity awards that are scheduled to vest based on the achievement of performance-based conditions (which may include additional service-based conditions) (“Performance-based Equity Awards”) for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee of the Board (the “Compensation Committee”) determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved; and
(ii) Executive’s employment pursuant to this Agreement shall be immediately terminated without notice by the Company upon the death of Executive. If Executive dies while actively employed pursuant to this Agreement, (i) the Company will pay to his/her estate or designated beneficiaries within sixty (60) days the Accrued Benefits, (ii) any unvested Time-based Equity Awards shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any Performance-based Equity Awards for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved.
(d) Resignation for Good Reason. Executive may terminate this Agreement for Good Reason (as defined below) by giving written notice to the Company of such termination, subject to Executive complying with the notice, cure period and other requirements set forth within the definition of Good Reason below. As used in this Agreement, “Good Reason” shall mean the occurrence of any one of the following without Executive’s written consent: (i) a material reduction in Executive’s base compensation (which includes Base Salary, the Executive’s target bonus and any other base compensation)
and/or a material breach of this Agreement by the Company resulting from the failure to provide the benefits required in Section 4, (ii) any action or inaction that constitutes a material breach by the Company of this Agreement; (iii) a material diminution in Executive’s authority, duties or responsibilities such that they are materially inconsistent with his/her position as Senior Vice President, Global Operations and R&D of the Company; and (iv) relocation of the Company’s headquarters to a location that materially increases Executive’s commute, provided that no termination for Good Reason shall be effective until Executive has given the Company written notice (pursuant to Section 11 below) within sixty (60) days after Executive becomes aware of the initial occurrence of any of the foregoing specifying the event or condition constituting the Good Reason and the specific reasonable cure requested by Executive, and the Company has failed to cure the occurrence within thirty (30) days of receiving written notice from Executive, and Executive resigns within six (6) months after Executive becomes aware of the initial occurrence. In the event of a termination for Good Reason, Executive will be entitled to the Accrued Benefits and the Severance Benefits, on the same conditions, form of payment and timing as set forth in Section 5(a).
(e) Effect of Change in Control. If the Company terminates Executive’s employment with the Company without Cause (excluding due to Executive’s death or Incapacity) or if Executive resigns from such employment for Good Reason, and, in each case, such termination occurs during the Change in Control Period (as defined below), Executive will be entitled to the Accrued Benefits, and subject to the same conditions set forth in the final paragraph of Section 5(a), (i) four times the Severance Payment set forth in Section 5(a)(iv), paid in the same form (i.e., a lump sum) and at the same time as the Severance Payments set forth in Section 5(a)(iv), (ii) subject to Section 5(g), the reimbursement of Executive’s insurance premiums for twelve (12) months in the same form and at the same time and under the same conditions as provided in Section 5(a)(vi), (iii) a taxable monthly payment (which may be used for any purpose) equal to actual the COBRA reimbursement payment that Executive receives under Section 5(e)(ii) for any particular month, (iv) two hundred percent (200%) of Executive’s target bonus for the fiscal year during which termination occurs, but no less than two hundred percent (200%) of the target bonus in effect for the fiscal year immediately prior to the Change in Control if the Change in Control occurs within the first three (3) months of the fiscal year, payable at the same time as the payment under clause (i) of this Section 5(e), (v) all outstanding unvested equity awards previously granted to Executive shall become immediately vested (the “Enhanced Severance Benefits”), and (vi) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
For the avoidance of doubt, if Executive’s termination without Cause (excluding due to Executive’s death or Incapacity) or resignation for Good Reason occurs prior to a Change in Control, then any unvested portion of Executive’s outstanding equity awards will remain outstanding until the earlier of (i) the date that is three (3) months following the termination of Executive’s employment or (ii) the date that a Change in Control occurs (provided that in no event will any of Executive’s equity awards remain outstanding beyond the equity award’s maximum term to expiration). In the event that a Change in Control does not occur by the date that is three (3) months following the termination of Executive’s employment, any unvested portion of Executive’s equity awards automatically will be forfeited permanently without having vested. Further, for any Performance-based Equity Awards, the performance-based vesting component of the equity awards shall not be deemed to be automatically achieved as a result of the application of Section 5(e)(v) but will remain outstanding during the three (3) month period following Executive’s termination or through the date of the Change in Control, as applicable, to determine whether a Change in Control would have occurred within three (3) months of the termination of Executive’s employment and, if so, the extent to which the performance condition is achieved, such determination to be made in accordance with the procedures set forth in the applicable award agreement. If the performance condition is satisfied and that would cause the award to become eligible to vest based on continued service, then clause (v) of this Section 5(e) will cause the service-based vesting component to be deemed satisfied
and the vesting of the equity award will be accelerated as to the portion of the award that became eligible to vest. For clarity, if there is no service-based condition that applies with respect to any portion of such equity award upon such satisfaction of the performance condition, such portion of the equity award will immediately vest upon such satisfaction of the performance condition.
For the sake of clarity, if any payments or benefits are payable under this Section 5(e), no payments or benefits shall be made under any other subsection of this Section 5, including Section 5(a) and Section 5(d), and any Enhanced Severance Benefits will be reduced by any Severance Benefits that may have been paid or provided with respect to any termination triggering Severance Benefits that occurs during the three-month period prior to a Change in Control (this provision, the “Non-duplication Provision”).
As used in this Agreement, a “Change in Control” shall mean any of the following events:
(i) the acquisition by any Group or Person (as such terms are defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)), other than (A) a trustee or other fiduciary holding securities of the Company under an employee benefit plan of the Company or (B) an entity in which the Company directly or indirectly beneficially owns fifty percent (50%) or more of the voting securities of such entity (an “Affiliate”), of any securities of the Company, immediately after which such Group or Person has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty percent (50%) or more of (X) the outstanding shares of Common Stock or (Y) the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors;
(ii) the Company (and/or its subsidiaries) is a party to a merger or consolidation with a Person other than an Affiliate, which merger or consolidation results in (a) the holders of voting securities of the Company outstanding immediately before such merger or consolidation failing to continue to represent (either by remaining outstanding or being converted into voting securities of the surviving entity) fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the corporation or entity resulting from or surviving such merger or consolidation or (b) individuals who are directors of the Company just prior to such merger or consolidation not constituting more than fifty percent (50%) of the members of the Board of Directors of the surviving entity or corporation immediately after the consummation of such merger or consolidation; or
(iii) all or substantially all of the assets of the Company and its subsidiaries are, in any transaction or series of transactions, sold or otherwise disposed of (or consummation of any transaction, or series of related transactions, having similar effect), other than to an Affiliate;
provided, however, that in no event shall a “Change in Control” be deemed to have occurred for purposes of this Agreement solely because the Company engages in an internal reorganization, which may include a transfer of assets to, or a merger or consolidation with, one or more Affiliates. Additionally, with respect to the payment of any “nonqualified deferred compensation” within the meaning of section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), that is not exempt from section 409A of the Code, no event shall constitute a Change in Control unless it also constitutes a change in the ownership of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(v)), a change in effective control of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vi)), or a change in the ownership of a substantial portion of the assets of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vii)).
As used in this Agreement, a “Change in Control Period” shall mean the period beginning three (3) months prior to, and ending twelve (12) months following, a Change in Control.
(f) Voluntary Resignation without Good Reason. Executive may terminate this Agreement without Good Reason effective on sixty (60) day’s written notice, unless the Company in its sole discretion accepts the resignation earlier. In the event that Executive resigns without Good Reason as defined above in Section 5(d), Executive will be entitled only to the Accrued Benefits through the termination date. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs unless he/she remains employed with the Company as of the date bonuses are paid to other senior executives of the Company), or severance payments of any kind.
(g) If the Company determines in its sole discretion that it cannot make the COBRA reimbursements under Section 5(a)(vi) or Section 5(e)(ii) (the “COBRA Reimbursements”) without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue the Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA continuation coverage), which payments will be made regardless of whether the Executive elects COBRA continuation coverage and will commence on the month following the Executive’s termination of employment and will end on the earlier of (x) the date upon which the Executive obtains other employment or (y) the date the Company has paid an amount equal to (A) 6 payments if Executive is receiving the Severance Benefits pursuant to Section 5(a) or (B) subject to the Non-duplication Provision, 12 payments if Executive is receiving the Enhanced Severance Benefits pursuant to Section 5(e). For the avoidance of doubt, such taxable payments in lieu of COBRA Reimbursements (the “COBRA Substitute Payments”) may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholding.
6. Proprietary Information Obligations.
(a) Proprietary Information and Confidentiality. Both before and during the term of Executive’s employment, Executive will have access to and become acquainted with Company confidential and proprietary information (together “Proprietary Information”), including but not limited to information or plans concerning the Company’s products and technologies; customer relationships; personnel; sales, marketing and financial operations and methods; trade secrets; formulae and secret developments and inventions; processes; and other compilations of information, records, and specifications. Executive will not disclose any of the Proprietary Information directly or indirectly, or use it in any way, either during his/her employment pursuant to this Agreement or at any time thereafter, except as reasonably required or specifically requested in the course of his/her employment with the Company or as authorized in writing by the Company. Notwithstanding the foregoing, Proprietary Information does not include information that is otherwise publicly known or available, provided it has not become public as a result of a breach of this Agreement or any other agreement Executive has to keep information confidential. It is not a breach of this Agreement for Executive to disclose Proprietary Information (i) pursuant to an order of a court or other governmental or legal body or (ii) in connection with Protected Activity (as defined below). Executive understands that nothing in this Agreement shall in any way limit or prohibit Executive from engaging in any Protected Activity. For purposes of this Agreement, “Protected Activity” means filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding that may be conducted by any federal, state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board (“Government Agencies”). Executive understands that in connection with such Protected Activity, Executive is permitted to disclose documents or other information as permitted by law, and without giving
notice to, or receiving authorization from, the Company. Notwithstanding, in making any such disclosures or communications, Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Proprietary Information to any parties other than the Government Agencies. Executive further understands that “Protected Activity” does not include the disclosure of any Company attorney-client privileged communications. In addition, Executive hereby acknowledges that the Company has provided Executive with notice in compliance with the Defend Trade Secrets Act of 2016 regarding immunity from liability for limited disclosures of trade secrets. The full text of the notice is attached in Exhibit B.
(b) Inventions Agreement and Assignment.
(i) Executive hereby agrees to disclose promptly to the Company (or any persons designated by it) all developments, designs, creations, improvements, original works of authorship, formulas, processes, know-how, techniques and/or inventions (collectively, the “Inventions”) (A) which are made or conceived or reduced to practice by Executive, either alone or jointly with others, in performing his/her duties during the period of Executive’s employment by the Company, that relate to or are useful in the business of the Company; or (B) which result from tasks assigned to Executive by the Company, or from Executive’s use of the premises or other resources owned, leased or contracted by the Company.
(ii) Executive agrees that all such Inventions which the Company in its discretion determines to be related to or useful in its business or its research or development, or which result from work performed by Executive for the Company, will be the sole and exclusive property of the Company and its assigns, and the Company and its assigns will have the right to use and/or to apply for patents, copyrights or other statutory or common law protections for such Inventions in any and all countries. Executive further agrees to assist the Company in every reasonable way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights and other statutory or common law protections for such Inventions in any and all countries. To that end, Executive will execute all documents for use in applying for and obtaining such patents, copyrights and other statutory or common law protections therefor and enforcing the same, as the Company may desire, together with any assignments thereof to the Company or to persons or entities designated by the Company. Should the Company be unable to secure Executive’s signature on any document necessary to apply for, prosecute, obtain, or enforce any patent, copyright or other right or protection relating to any Invention, whether due to his/her mental or physical incapacity or any other cause, Executive hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as Executive’s agent and attorney-in-fact, to act for and in his/her behalf and stead, to execute and file any such document, and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights or other rights or protections with the same force and effect as if executed and delivered by Executive. Executive’s obligations under this Section 6(b)(ii) will continue beyond the termination of Executive’s employment with the Company, but the Company will compensate Executive at a reasonable rate after such termination for time actually spent by Executive at the Company’s request in providing such assistance.
(iii) Executive hereby acknowledges that all original works of authorship which are made by Executive (solely or jointly with others) within the scope of Executive’s employment which are protectable by copyright are “works for hire,” as that term is defined in the United States Copyright Act (17 USCA, Section 101).
(iv) Any provision in this Agreement requiring Executive to assign Executive’s rights in any Invention to the Company will not apply to any invention that is exempt under the provisions of California Labor Code section 2870, which provides:
“(a) 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. (b) 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 subdivision (a), the provision is against the public policy of this state and is unenforceable.”
(c) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Company; provided, however, that if Executive is or becomes a permanent resident of the state of California and remains such a permanent resident through the date of termination of Executive’s employment, this Section 6(c) shall not apply following the termination of Executive’s employment with the Company.
(d) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself or on behalf of any other person or entity, solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(e) Company Property and Materials.
(i) All files, records, documents, computer-recorded or electronic information, drawings, specifications, equipment, and similar items relating to Company business, whether prepared by Executive or otherwise coming into his/her possession, will remain the Company’s exclusive property and will not be removed from Company premises under any circumstances whatsoever without the Company’s prior written consent, except when, and only for the period, necessary to carry out Executive’s duties hereunder
(ii) In the event of termination of Executive’s employment for any reason, Executive will promptly deliver to the Company all Company equipment (including, without limitation, any cellular phones, beeper/pagers, computer hardware and software, fax machines and other tools of the trade) and all originals and copies of all documents, including without limitation, all books, customer lists, forms, documents supplied by customers, records, product lists, writings, manuals, reports, financial documents and other documents or property in Executive’s possession or control, which relate to the Company’s business in any way whatsoever, and in particular to customers of the Company, or which may be considered to constitute or contain Proprietary Information as defined above, and Executive will neither retain, reproduce, nor distribute copies thereof (other than copies of Executive’s electronic or hardcopy address and telephone contact data base or directories). Notwithstanding the foregoing, Executive shall be allowed to retain a copy of the Employee Handbook and personnel records relating to Executive’s employment.
(f) Remedies for Breach. Executive acknowledges that any breach by Executive of this Section 6 would cause the Company irreparable injury and damage for which monetary damages are inadequate. Accordingly, in the event of a breach or a threatened breach of this Section 6, the Company will be entitled to seek an injunction restraining such breach. In addition, in the event of a breach of this Section 6, the Company’s obligation to pay any unpaid portion of the Severance Payment or other benefits as set forth in Sections 5(a) and (d) of this Agreement will be extinguished. Nothing contained herein will be construed as prohibiting the Company from pursuing any other remedy available to the Company for such breach or such threatened breach. Executive has carefully read and considered these restrictions and agrees they are fair and reasonable restrictions on Executive and are reasonably required for the protection of the interests of the Company. Executive agrees not to circumvent the spirit of these restrictions by attempting to accomplish indirectly what Executive is otherwise restricted from doing directly. Executive agrees that the restrictions in this Section 6 are reasonable and necessary to protect the Company’s Proprietary Information, and they do not prevent Executive from working in the medical device industry. Executive agrees that the covenants and agreements by Executive contained in this Section 6 shall be in addition to any other agreements and covenants Executive may have agreed to in any other employee proprietary information, confidentiality, non-disclosure or other similar agreement and that this Section 6 shall not be deemed to limit such other covenants and agreements, all of which shall continue to survive the termination of this Agreement in accordance with their respective terms. A breach by Executive of the terms of such other agreements and covenants shall be deemed to be a breach by Executive of this Section 6 and of this Agreement. To the extent any of the provisions in this Section 6 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 6 is held to be unenforceable, the remaining provisions of this Section 6 shall be enforced as written.
7. Interpretation, Governing Law and Exclusive Forum. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of California (excluding any that mandate the use of another jurisdiction’s laws). Any arbitration (unless otherwise mutually agreed), litigation or similar proceeding with respect to such matters only may be brought within Santa Clara County, California, and all parties to this Agreement consent to California’s jurisdiction.
8. Entire Agreement. All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement.
9. Severability. In the event that one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such holding shall not impair the validity, legality or enforceability of the remaining provisions herein.
10. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, Executive and his/her estate, but Executive may not assign or pledge this Agreement or any rights arising under it, except to the extent permitted under the terms of the benefit plans in which he/she participates. No rights or obligations of the Company under this Agreement may be assigned or transferred except that the Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, sale, transfer of stock, consideration or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no succession had taken place. As used in this Agreement, “Company” means the Company as hereinbefore defined and any successor to its business and/or assets (by merger, purchase or otherwise as provided in this Section 10) which executes and delivers the agreement provided for in this Section 10 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. In the event that any successor refuses to assume the obligations hereunder, the Company as hereinbefore defined shall remain fully responsible for all obligations hereunder.
11. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be given by hand delivery, electronic mail, facsimile, telecopy, overnight courier service, or by United States certified or registered mail, return receipt requested. Each such notice, request, demand or other communication shall be effective (i) if delivered by hand or by overnight courier service, when delivered at the address specified in this Section 11; (ii) if given by electronic mail, facsimile or telecopy, when such electronic mail, facsimile or telecopy is transmitted to the electronic mail address or facsimile or telecopy number specified in this Section 11 and confirmation is received if during normal business hours on a business day, and otherwise, on the next business day; and (iii) if given by certified or registered mail, three (3) days after the mailing thereof. Notices shall be addressed to the parties as follows (or at such other address, email address or fax number as either party may from time to time specify in writing by giving notice as provided herein):
|
If to the Company: |
Accuray Incorporated |
|
|
1310 Chesapeake Terrace |
|
|
Sunnyvale, California 94089 |
|
|
Attn: General Counsel |
|
|
Fax No. (408) 789-4205 |
|
|
|
|
If to Executive: |
Andrew J. Kirkpatrick |
|
|
Address: most recent on file with the Company |
|
|
Email: most recent on file with the Company |
12. Indemnification. As soon as reasonably practicable after the due execution of this Agreement by each of the parties hereto, the Company and Executive will enter into the Company’s standard form of indemnification agreement utilized by the Company for its directors and executive officers.
13. Dispute Resolution. The parties agree that all disputes, claims or controversies between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, including any dispute, claim or controversy arising from or otherwise in connection with this Agreement and/or Executive’s employment with the Company, will be resolved as follows:
(a) Prior to initiating any other proceeding, the complaining party will provide the other party with a written statement of the claim identifying any supporting witnesses or documents and the requested relief. The responding party shall within forty-five (45) days furnish a statement of the relief, if any, that it is willing to provide, and identify supporting witnesses or documents.
(b) If the matter is not resolved by the exchange of statements of claim and statements of response as provided herein, the parties shall submit the dispute to non-binding mediation, the cost of the mediator to be paid by the Company, before a mediator and/or service to be jointly selected by the parties. Each party will bear his/her or its own attorney’s fees and witness fees.
(c) If the parties cannot agree on a mediator and/or if the matter is not otherwise resolved by mediation, any controversy or claim between Executive and the Company and any of its current or former directors, officers and employees, including any arising out of or relating to this Agreement or breach thereof, shall be settled by final and binding arbitration in the county in which Executive last worked, or elsewhere as mutually agreed by the parties, by a single arbitrator pursuant to the Employment Dispute Rules of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), unless the parties to the dispute agree to another arbitration service or independent arbitrator. The parties may conduct discovery to the extent permitted in a court of law; the arbitrator will render an award together with a written opinion indicating the bases for such opinion; and the arbitrator will have full authority to award all remedies that would be available in court. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own attorney’s fees and costs, unless the claim is based on a statute that provides otherwise. The Company will pay the arbitrator’s fees and any administrative charges of the arbitration service, except that if Executive initiates the claim, he/she will pay a portion of the administrative charges equal to the amount he/she would have paid to initiate the claim in a court of general jurisdiction.
(d) EXECUTIVE AND THE COMPANY AGREE THAT THIS ARBITRATION PROCEDURE WILL BE THE EXCLUSIVE MEANS OF REDRESS FOR ANY DISPUTES RELATING TO OR ARISING FROM EXECUTIVE’S EMPLOYMENT WITH THE COMPANY OR TERMINATION THEREFROM, INCLUDING DISPUTES OVER UNPAID WAGES, BREACH OF CONTRACT OR TORT, VIOLATION OF PUBLIC POLICY, RIGHTS PROVIDED BY FEDERAL, STATE OR LOCAL STATUTES, REGULATIONS, ORDINANCES, AND COMMON LAW, LAWS THAT PROHIBIT DISCRIMINATION BASED ON ANY PROTECTED CLASSIFICATION, AND ANY OTHER STATUTES OR LAWS RELATING TO AN EXECUTIVE’S RELATIONSHIP WITH THE COMPANY. THE FOREGOING NOTWITHSTANDING, CLAIMS FOR WORKERS’ COMPENSATION BENEFITS OR UNEMPLOYMENT INSURANCE, OR ANY OTHER CLAIMS WHERE MANDATORY ARBITRATION IS PROHIBITED BY LAW, ARE NOT COVERED BY THIS ARBITRATION PROVISION. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL, AND AGREE THAT THE ARBITRATOR’S AWARD SHALL BE FINAL AND BINDING ON BOTH PARTIES. THIS ARBITRATION PROVISION IS TO BE CONSTRUED AS BROADLY AS IS PERMISSIBLE UNDER APPLICABLE LAW.
14. Representations. Each person executing this Agreement hereby represents and warrants on behalf of himself/herself and of the entity/individual on whose behalf he/she is executing the Agreement that he/she is authorized to represent and bind the entity/individual on whose behalf he/she is executing the Agreement. Executive specifically represents and warrants to the Company that he/she reasonably believes (a) he/she is not under any contractual or other obligations that would prevent, limit or impair Executive’s performance of his/her obligations under this Agreement and (b) that entering into this Agreement will not result in a breach of any other agreement to which he/she is a party. Executive acknowledges that Executive has been given the opportunity to consult with legal counsel and seek such advice and consultation as Executive deems appropriate or necessary.
15. Amendments and Waivers. No provisions of this Agreement may be modified, waived, or discharged except by a written document signed by Executive and a duly authorized Company officer. Thus, for example, promotions, commendations, and/or bonuses shall not, by themselves, modify, amend, or extend this Agreement. A waiver of any conditions or provisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time.
16. Taxes.
(a) Withholdings. The Company may withhold from any compensation and benefits payable under this Agreement all federal, state, city and other taxes or amounts as shall be determined by the Company to be required to be withheld pursuant to applicable laws, or governmental regulations or rulings. Executive shall be solely responsible for the satisfaction of any taxes (including employment taxes imposed on employees and penalty taxes on nonqualified deferred compensation).
(b) Net Proceeds Maximization. Notwithstanding any provision of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates (“Potential Parachute Payments”) would constitute an “excess parachute payment” within the meaning of section 280G of the Code and/or any corresponding and applicable state law provision, the Potential Parachute Payments will be reduced by reducing the amount of the Potential Parachute Payments to the extent necessary so that no portion of the Potential Parachute Payments will be subject to the excise tax imposed by section 4999 of the Code and any corresponding and/or applicable state law provision. Notwithstanding the foregoing, a reduction will be made under the previous sentence only if, by reason of that reduction, Executive’s net after tax benefit exceeds the net after tax benefit he/she would realize if the reduction were not made. For purposes of this paragraph, “net after tax benefit” means the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a “parachute payment” within the meaning of section 280G of the Code and any corresponding and applicable state law provision, plus (ii) all other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute payment” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits are realized by Executive (based upon the rate in effect for that year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by section 4999 of the Code and any corresponding and applicable state law provision. All determinations and calculations made in this paragraph shall be made by an independent accounting firm (the “Accounting Firm”) selected by the Company prior to the Change in Control and the Company will bear all costs and expenses incurred by the Accounting Firm in connection with its determination. The Accounting Firm shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of (x) the Company or any affiliate thereof or (y) Executive. If any payments or benefits are reduced pursuant to this Section 16(b), they shall be reduced in the following order: First all payments and benefits that do not constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code or that are exempt from section 409A of the Code (with the payments or benefits being reduced in reverse order of when they otherwise would be made or provided); second, all payments or benefits that constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code that are not exempt from section 409A of the Code that were granted to Executive in the 12-month period of time preceding the applicable Change in Control, in the order such benefits were granted to Executive; and third, all remaining payments and benefits shall be reduced pro-rata. Notwithstanding the foregoing, if (i) reducing payments or benefits in the order described above would result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), (ii) Executive so notifies the Company before such reductions and payments are made and benefits provided, and (iii) reducing the payments or benefits in another order would not result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), payments and benefits shall instead be reduced in such other order.
(c) Section 409A Compliance.
(i) With respect to any reimbursement of expenses or any provision of in-kind benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangements providing for the reimbursement of expenses referred to in section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(ii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) upon or following a termination of employment unless such termination is also a “separation from service” and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” For purposes of section 409A of the Code, the date as of which Company and Executive reasonably anticipate that no further services would be performed by Executive for Company shall be construed as the date that Executive first incurs a “separation from service” as defined under section 409A of the Code.
(iii) Notwithstanding anything in this Agreement to the contrary, if a payment obligation arises on account of Executive’s separation from service while Executive is a “specified employee” as described in section 409A of the Code and the Treasury Regulations thereunder and as determined by Company in accordance with its procedures, by which determination Executive is bound, any payment of “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) shall be made on the first business day of the seventh month following the date of Executive’s separation from service, or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death together with interest on them for the period of delay at a rate equal to the average prime interest rate published in the Wall Street Journal on any day chosen by the Company during that period. Thereafter, Executive shall receive any remaining payments as if there had not been an earlier delay.
(iv) Notwithstanding anything to the contrary contained in this Agreement, (i) the Executive shall have no legally-enforceable right to, and the Company shall have no obligation to make, any payment or provide any benefit to Executive if having such a right or obligation would result in the imposition of additional taxes under section 409A of the Code, and (ii) any provision that would cause any payment or benefit to fail to satisfy section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by section 409A and may be accomplished by the Company without the Executive’s consent). If any payment is not made or any benefit is not provided under the terms of this Section 16(c)(iv), it is the Company’s present intention to make a similar payment or provide a similar benefit to the Executive in a manner that will not result in the imposition of additional taxes under section 409A of the Code, to the extent feasible. Each payment made under this Agreement is intended to be a separate payment for the purposes of section 409A of the Code.
(v) The Company does not guarantee any particular tax effect to Executive under this Agreement. Company shall not be liable to Executive for any payment made under this Agreement that is determined to result in an additional tax, penalty or interest under section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in
gross income under section 409A of the Code. The parties intend this Agreement to be exempt from, or comply with, the requirements of Section 409A of the Code and the final regulations and any guidance promulgated thereunder so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed by Section 409A. Any ambiguities or ambiguous terms shall be interpreted to so be exempt or comply, and this Agreement shall be administered in accordance with such intent.
17. U.S. Citizenship and Immigration Services; Confidentiality and Inventions Agreement. Executive agrees to timely file all documents required by the Department of Homeland Security to verify his/her identity and lawful employment in the United States. In addition, as a condition to Executive’s employment with the Company, Executive is required to complete, sign, return, and abide by the Company’s Employee Confidentiality and Inventions Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute the same instrument.
19. Resignation from Positions. Upon Executive’s cessation of employment with the Company for any reason, Executive agrees that Executive shall be deemed to have resigned as an officer and as a director (if applicable) from the Company and every subsidiary of the Company on which Executive is then serving as an officer or director, and from any other entity or company on which Executive is then serving as a director or officer at the request of the Company, in each case effective as of the date of Executive’s cessation of employment. In the event of Executive’s cessation of employment, Executive agrees to execute a general resignation resigning from all positions then held by Executive on every subsidiary of the Company and other entity or company on which Executive is then serving as a director or officer at the request of the Company. Executive hereby grants the corporate secretary of the Company an irrevocable power of attorney to execute on behalf of Executive all such resignations, documents and instruments and to take all such other actions as reasonably necessary to carry out the intention of this Section 19.
20. Executive’s Commencement of Employment. It is a condition precedent to the effectiveness of this Agreement that Executive commences working full-time for the Company at the Company’s principal executive offices on the Effective Date. If Executive does not commence such full-time employment on the Effective Date, then this Agreement shall be null and void and the Company shall have no obligations hereunder or otherwise to Executive.
21. Executive’s Acknowledgement.
EXECUTIVE ACKNOWLEDGES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND HIM/HER RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS) AND THAT HE/SHE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS), THAT HE/SHE UNDERSTANDS ALL OF SUCH AGREEMENTS, AND THAT HE/SHE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS SUCH AGREEMENTS WITH HIS/HER PRIVATE LEGAL COUNSEL AND HAS AVAILED HIMSELF/HERSELF OF THAT OPPORTUNITY TO THE EXTENT HE/SHE WISHED TO DO SO. EXECUTIVE UNDERSTANDS THAT THE DISPUTE RESOLUTION PROVISIONS OF THIS AGREEMENT GIVE UP THE RIGHT TO A JURY TRIAL ON MATTERS COVERED BY THEM.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
|
|
ACCURAY INCORPORATED, | ||
|
|
a Delaware Corporation | ||
|
|
|
| |
|
|
By: |
/s/ Joshua Levine | |
|
|
Name: |
Joshua Levine | |
|
|
Title: |
President & Chief Executive Officer | |
|
|
|
| |
|
|
By: |
/s/ Alaleh Nouri | |
|
|
Name: |
Alaleh Nouri | |
|
|
Title: |
Senior Vice President, General Counsel | |
|
|
|
| |
|
Accepted and Agreed, |
|
| |
|
|
|
| |
|
Andrew J. Kirkpatrick: |
/s/ Andrew J. Kirkpatrick |
|
|
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Agreement”) is hereby entered into by and between , an individual (“Executive”), and Accuray Incorporated, a Delaware corporation, on behalf of itself and all of its subsidiaries (collectively, the “Company”).
Recitals
A. Executive has been employed by the Company pursuant to an employment agreement by and between the Company and Executive effective as of January 1. 2018 (the “Employment Agreement”), and currently is serving as [specify position held at time of termination];
B. Executive’s employment with the Company and any of its parents, direct or indirect subsidiaries, affiliates, divisions, or related entities (collectively referred to herein as the “Company and its Related Entities”) will be ended on the terms and conditions set forth in this Agreement.
Agreement
In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Effective Date. Except as otherwise provided herein, this Agreement shall be effective on the eighth day after it has been executed by both of the parties (the “Effective Date”).
2. End of Employment and Service as a Director. Executive’s employment with the Company and its Related Entities has ended or will end effective as of Pacific Time, on (the “Termination Date”). If Executive is an officer or a member of the Board of Directors of the Company and/or its Related Entities (the “Board”) Executive hereby voluntarily resigns from any such officer positions and the Board, effective .
3. Continuation of Benefits After the Termination Date. Except as expressly provided in this Agreement or in the plan documents governing the Company’s employee benefit plans, after the Termination Date, Executive will no longer be eligible for, receive, accrue, or participate in any other benefits or benefit plans provided by the Company and its Related Entities, including, without limitation, medical, dental and life insurance benefits, and the Company’s 401(k) retirement plan; provided, however, that nothing in this Agreement shall waive Executive’s right to any vested benefits, including vested amounts in the Company’s 401(k) retirement plan, which amounts shall be handled as provided in the plan.
4. Payments Upon Termination. Executive will be entitled to receive payment of the following: (i) all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and (ii) reimbursement, made in accordance with Section 4(e) of the Employment Agreement, of any monies advanced or incurred by Executive in connection with his/her employment for reasonable and necessary Company-related expenses incurred on or before the Termination Date. The provisions of this Agreement shall not waive or terminate any rights to compensation or vested benefits under the Company’s benefits plans or as required by law, or to indemnification Executive may have under the Company’s Certificate of Incorporation, Bylaws or separate indemnification agreement, as applicable.
5. Severance Benefits or Enhanced Severance Benefits. In return for Executive’s promises in this Agreement, the Company will provide Executive with the Severance Benefits or Enhanced Severance Benefits as defined in Sections 5(a) and 5(e) of the Employment Agreement and as applicable based on the nature of the termination, subject to the terms and conditions set forth in the Employment Agreement, including, but not limited to, Section 16 thereof. The Severance Benefits or Enhanced Severance Benefits will be paid as specified in Section 5(a) or Section 5(e) of the Employment Agreement, as applicable and shall be subject to required withholdings and authorized deductions and to Section 21 below.
6. Effect of Revocation or Subsequent Employment.
(a) If Executive properly revokes this Agreement in accordance with Section 13 below, Executive shall not be entitled to receive the payments and benefits under Section 5, above, except that Executive’s rights under COBRA will continue (but not, for purposes of clarity, the right to be reimbursed for COBRA premiums or receive any COBRA Substitute Payments (as defined in the Employment Agreement)).
(b) The Company’s obligation to reimburse premiums for insurance coverage under COBRA or otherwise will be extinguished as of the date Executive’s coverage begins under the group health plan of any new employer. If Executive violates the restrictions in Section 17, below, the Company’s obligation to pay premiums for insurance under COBRA or otherwise will be immediately extinguished, and the other remedies specified in Section 17, below, shall apply.
7. Acknowledgement of Total Compensation and Indebtedness. Executive acknowledges and agrees that the cash payments under Sections 4 and 5 of this Agreement extinguish any and all obligations for monies, or other compensation or benefits that Executive claims or could claim to have earned or claims or could claim is owed to him/her as a result of his/her employment by the Company and its Related Entities through the Termination Date, under the Employment Agreement or otherwise. Notwithstanding the foregoing, the parties acknowledge and agree that the provisions of this Section 7 shall not terminate any rights Executive has under Section 3 of this Agreement or to other payments Executive may have, and to any indemnification Executive may have under the Company’s Bylaws or separate indemnification agreement, as applicable.
8. Status of Related Agreements and Future Employment.
(a) Agreements Between Executive and the Company. [Agreements to be scheduled at time].
(b) Employment Agreement. The parties agree that the Employment Agreement shall be terminated as of the Termination Date. Notwithstanding the termination of the Employment Agreement, the parties hereto acknowledge that certain rights and obligations set forth in the Employment Agreement extend beyond the Termination Date. In the event that any provision of this Agreement conflicts with Section 6 of the Employment Agreement, the terms and provisions of the section(s) providing the greatest protection to the Company and its Related Entities shall control.
9. Release by Executive.
(a) Except for any obligations or covenants of the Company pursuant to this Agreement and as otherwise expressly provided in this Agreement, Executive, for himself/herself and his/her heirs, executors, administrators, assigns, successors and agents (collectively, the “Executive’s Affiliates”) hereby fully and without limitation releases and forever discharges the Company and its Related
Entities, and each of their respective agents, representatives, stockholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the “Company Releasees”), both individually and collectively, from any and all waivable rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which Executive or any of Executive’s Affiliates has or may have or may claim to have against the Company Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the Effective Date (“Claims”), arising out of, based upon, or relating to his/her employment or the termination of his/her employment with the Company and its Related Entities and/or his/her service as an officer of any of the Company Releasees, any agreement or compensation arrangement between Executive and any of the Company Releasees, to the maximum extent permitted by law.
(b) Executive specifically and expressly releases any Claims arising out of or based on: the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the National Labor Relations Act and the Equal Pay Act, as the same may be amended from time to time; the California common law on fraud, misrepresentation, negligence, defamation, infliction of emotional distress or other tort, breach of contract or covenant, violation of public policy or wrongful termination; state or federal wage and hour laws, and other provisions of the California Labor Code, to the extent these may be released herein as a matter of law; or any other state or federal law, rule, or regulation dealing with the employment relationship, except those claims which may not be released herein as a matter of law.
(c) Nothing contained in this Section 9 or any other provision of this Agreement shall release or waive any right that Executive has to indemnification and/or reimbursement of expenses by the Company and its Related Entities with respect to which Executive may be eligible as provided in California Labor Code section 2802, the Company’s and its Related Entities’ Certificates of Incorporation, Bylaws and any applicable directors and officers, errors & omissions, umbrella or general liability insurance policies, any indemnification agreements, including the Employment Agreement; or any other applicable source, nor prevent Executive from cooperating in an investigation of the Company by the Equal Employment Opportunity Commission (“EEOC”).
10. Waiver of Civil Code Section 1542.
(a) Executive understands and agrees that the release provided herein extends to all Claims released above whether known or unknown, suspected or unsuspected, which may be released as a matter of law. Executive expressly waives and relinquishes any and all rights he/she may have under 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.”
(b) Executive expressly waives and releases any rights and benefits which he/she has or may have under any similar law or rule of any other jurisdiction. It is the intention of each party through this Agreement to fully, finally and forever settle and release the Claims as set forth above. In furtherance of such intention, the release herein given shall be and remain in effect as a full and complete release of such matters notwithstanding the discovery of any additional Claims or facts relating thereto.
11. [If Executive is age 40 or over on Termination Date] Release of Federal Age Discrimination Claims by Executive. Executive hereby knowingly and voluntarily waives and releases all rights and claims, known or unknown, arising under the Age Discrimination In Employment Act of 1967, as amended, which he/she might otherwise have had against the Company or any of the Company Releasees regarding any actions which occurred prior to the date that Executive signed this Agreement, except that Executive is not prevented from cooperating in an investigation by the EEOC or from filing an EEOC charge other than for personal relief.
12. Release by Company and its Related Entities. The Company and its Related Entities hereby release and forever discharge Executive, from any and all waivable actions, causes of action, covenants, contracts, claims and demands of whatever character, nature and kind, whether known or unknown, which the Company and its Related Entities ever had, now have, or any of them hereafter can, shall or may have by reason of Executive’s employment and/or his/her service as a director and/or officer of the Company and/or its Related Entities; provided, however, that this general release shall not apply, or be deemed or construed to apply, to (a) any of Executive’s continuing obligations pursuant to this Agreement or the Employment Agreement, (b) criminal conduct or acts or omissions constituting willful misconduct or gross negligence by Executive during his/her employment with the Company, or (c) recoupment of all or a portion of any previously awarded bonus or equity award pursuant to the Company’s Recoupment (Clawback) Policy that was in effect when the bonus was paid or the equity award vested or was exercised by Executive, whichever was later.
13. [If Executive is age 40 or over on Termination Date] Review and Revocation Rights. Executive hereby is advised of the following:
(a) Executive has the right to consult with an attorney before signing this Agreement and is encouraged by the Company to do so;
(b) Executive has twenty-one (21) days from his/her receipt of this Agreement to consider it; and
(c) Executive has seven (7) days after signing this Agreement to revoke this Agreement, and this Agreement will not be effective until that revocation period has expired without revocation. Executive agrees that in order to exercise his/her right to revoke this Agreement within such seven (7) day period, he/she must do so in a signed writing delivered to the Company’s Board before the close of business on the seventh calendar day after he/she signs this Agreement.
14. Confidentiality of Agreement. After the execution of this Agreement by Executive, neither Executive, his/her attorney, nor any person acting by, through, under or in concert with them, shall disclose any of the terms of or amount paid under this Agreement (other than to state that the Company has filed this Agreement and/or agreements related thereto as public documents) or the negotiation thereof to any individual or entity; provided, however, that the foregoing shall not prevent such disclosures by Executive to his/her attorney, tax advisors and/or immediate family members, as may be required by law, or in connection with Protected Activity (as defined in the Employment Agreement).
15. No Filings. Executive represents that he/she has not filed any lawsuits, claims, charges or complaints, which are pending as of the date hereof, against the Company Releasees with any local, state or federal agency or court from the beginning of time to the date of execution of this Agreement, and that Executive is not aware of any facts that would support any Claims or any compliance-related or code of ethics violations of any kind whatsoever against the Company Releasees, including without limitation any claims for any work-related injuries. If Executive hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the Claims released in this Agreement,
or in any manner asserts against the Company Releasees any of the Claims released in this Agreement, then Executive agrees to pay to the Company Releasees against whom such Claim(s) is asserted, in addition to any other damages caused thereby, all attorneys’ fees incurred by the Company Releasees in defending or otherwise responding to the suit or Claim; provided, however, that this provision shall not obligate Executive to pay the Company Releasees’ attorneys’ fees in any action challenging the release of claims under the Older Workers Benefit Protection Act or the ADEA, unless otherwise allowed by law. If any governmental agency or court ever assumes jurisdiction over any such lawsuit, claim, charge or complaint and/or purports to bring any legal proceeding, in whole or in part, on behalf of Executive based upon events occurring prior to the execution of this Agreement, Executive will request such agency or court to withdraw from and/or to dismiss the lawsuit, claim, charge or complaint with prejudice.
16. Confidential and Proprietary Information. Executive acknowledges that certain information, observations and data obtained by him/her during the course of or related to his/her employment with the Company and its Related Entities (including, without limitation, projection programs, business plans, business matrix programs (i.e., measurement of business), strategic financial projections, certain financial information, shareholder information, technology and product design information, marketing plans or proposals, personnel information, customer lists and other customer information) are the sole property of the Company and its Related Entities and constitute Proprietary Information as defined in Section 6 of the Employment Agreement. Executive represents and warrants that he/she has returned all files, customer lists, financial information and other property of the Company and its Related Entities that were in Executive’s possession or control without retaining copies thereof (other than a copy of the Employee Handbook and personnel records relating to Executive’s employment). Executive further represents and warrants that he/she does not have in his/her possession or control any files, customer lists, financial information or other property of the Company and its Related Entities. In addition to his/her promises in Section 6 of the Employment Agreement, Executive agrees that he/she will not disclose to any person or use any such information, observations or data without the written consent of the Board. If Executive is served with a deposition subpoena or other legal process calling for the disclosure of such information, or if he/she is contacted by any third person requesting such information, he/she will notify the Board as soon as is reasonably practicable after receiving notice and will reasonably cooperate with the Company and its Related Entities in minimizing the disclosure thereof; provided, that nothing in this Agreement will (i) affect Executive’s obligations to testify truthfully in response to any subpoena or other legally required discovery proceeding or (ii) in any way limit or prohibit Executive from engaging in Protected Activity.
17. Prohibited Activities.
(a) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Board.
(b) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself/herself or on behalf of any other person or entity, to solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(c) Scope of Restrictions. Executive agrees that the restrictions in Sections 17 (a) and (b), above, are reasonable and necessary to protect the Company’s trade secrets and that they do not foreclose Executive from working in the medical device industry generally. To the extent that any of the provisions in this Section 17 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 17 is held to be unenforceable, that the remaining provisions of it shall be enforced as written.
18. Remedies. Executive acknowledges that any misuse of Proprietary Information belonging to the Company and its Related Entities, or any violation of Section 6 of the Employment Agreement, and any violation of Sections 14, 16 and 17 of this Agreement, will result in irreparable harm to the Company and its Related Entities, and therefore, the Company and its Related Entities shall, in addition to any other remedies, be entitled to immediate injunctive relief. To the extent there is any conflict between Section 6 of the Employment Agreement and this Section 18, the provision providing the greatest protection to the Company and its Related Entities shall control. In addition, in the event of a breach of any provision of this Agreement by Executive, including Sections 14, 16 and 17, Executive shall forfeit, and the Company and its Related Entities may withhold payment of any unpaid portion of, the Severance Benefits or Enhanced Severance Benefits provided under Section 5, above.
19. Cooperation Clause.
(a) To facilitate the orderly conduct of the Company and its Related Entities’ businesses, for the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company and its Related Entities’ reasonable requests for information or assistance related to the time of his/her employment.
(b) For the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company’s and its Related Entities’ and its or their counsel’s reasonable requests for information or assistance related to (i) any investigations (including internal investigations) and audits of the Company’s and its Related Entities’ management’s current and past conduct and business and accounting practices and (ii) the Company’s and its Related Entities’ defense of, or other participation in, any administrative, judicial, or other proceeding arising from any charge, complaint or other action which has been or may be filed relating to the period during which Executive was employed by the Company and its Related Entities. The Company will promptly reimburse Executive for his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Section 19. Except as required by law or authorized in advance by the Board of Directors of the Company, Executive will not communicate, directly or indirectly, with any third party other than Executive’s legal counsel, including any person or representative of any group of people or entity who is suing or has indicated that a legal action against the Company and its Related Entities or any of their directors or officers is being contemplated, concerning the management or governance of the Company and
its Related Entities, the operations of the Company and its Related Entities, the legal positions taken by the Company and its Related Entities, or the financial status of the Company and its Related Entities. If asked about any such individuals or matters, Executive shall say: “I have no comment,” and shall direct the inquirer to the Company. Executive acknowledges that any violation of this Section 19 will result in irreparable harm to the Company and its Related Entities and will give rise to an immediate action by the Company and its Related Entities for injunctive relief.
20. No Future Employment. Executive understands that his/her employment with the Company and its Related Entities will irrevocably end as of the Termination Date and will not be resumed at any time in the future. Executive agrees that he/she will not apply for, seek or accept employment by the Company and its Related Entities at any time, unless invited to do so by the Company and its Related Entities.
21. Tax Issues. The parties agree that the payments and benefits provided under this Agreement, and all other contracts, arrangements or programs that apply to him/her, shall be subject to Section 16 of the Employment Agreement.
22. Non-disparagement. Executive agrees not to criticize, denigrate, or otherwise disparage the Company and its Related Entities, or any of their directors, officers, products, processes, experiments, policies, practices, standards of business conduct, or areas or techniques of research. The Company agrees not to authorize or condone denigrating or disparaging statements about Executive to any third party, including by press release or other formally released announcement. Factually accurate statements in legal or public filings shall not violate this provision. In addition, nothing in this Section 22 shall prohibit Executive or the Company or the Board, or any of their employees or members from complying with any lawful subpoena or court order or taking any other actions affirmatively authorized by law.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflict of laws.
24. Dispute Resolution. The parties hereby agree that all disputes, claims or controversies arising from or otherwise in connection with this Agreement (except for injunctive relief sought by either party) between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, and any director, stockholder or employee of the Company will be resolved in accordance with Section 13 of the Employment Agreement, except for its attorneys’ fee provision.
25. Attorneys’ Fees. Except as otherwise provided herein, in any action, litigation or proceeding between the parties arising out of or in relation to this Agreement, including any purported breach of this Agreement, the prevailing party shall be entitled to an award of its costs and expenses, including reasonable attorneys’ fees.
26. Non-Admission of Liability. The parties understand and agree that neither the payment of any sum of money nor the execution of this Agreement by the parties will constitute or be construed as an admission of any wrongdoing or liability whatsoever by any party.
27. Severability. If any one or more of the provisions contained herein (or parts thereof), or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof will not be in any way impaired or affected, it being intended that all of the rights and privileges shall be enforceable to the fullest extent permitted by law.
28. Entire Agreement. This Agreement represents the sole and entire agreement among the parties and, except as expressly stated herein, supersedes all prior agreements, negotiations and discussions among the parties with respect to the subject matters contained herein.
29. Waiver. No waiver by any party hereto at any time of any breach of, or compliance with, any condition or provision of this Agreement to be performed by any other party hereto may be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at any prior or subsequent time.
30. Amendment. This Agreement may be modified or amended only if such modification or amendment is agreed to in writing and signed by duly authorized representatives of the parties hereto, which writing expressly states the intent of the parties to modify this Agreement.
31. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original as against any party that has signed it, but both of which together will constitute one and the same instrument.
32. Assignment. This Agreement inures to the benefit of and is binding upon the Company and its successors and assigns, but Executive’s rights under this Agreement are not assignable, except to his/her estate.
33. Notice. All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) if personally delivered or delivered by overnight courier; (b) if sent by electronic mail, telecopy or facsimile (except for legal process); or (c) if mailed by overnight or by first class, United States certified or registered mail, postage prepaid, return receipt requested, and properly addressed as follows:
|
If to the Company: |
Accuray Incorporated | |
|
|
|
1310 Chesapeake Terrace |
|
|
|
Sunnyvale, California 94089 |
|
|
|
Attn: Board of Directors |
|
|
|
c/o Corporate Secretary |
|
|
|
Fax No. (408) 789-4205 |
|
|
| |
|
If to Executive: |
|
Address: most recent on file with the Company |
|
|
|
Email: most recent on file with the Company |
Such addresses may be changed, from time to time, by means of a notice given in the manner provided above. Notice will conclusively be deemed to have been given when personally delivered (including, but not limited to, by messenger or courier); or if given by mail, on the third business day after being sent by first class, United States certified or registered mail; or if given by Federal Express or other similar overnight service, on the date of delivery; or if given by electronic mail, telecopy or facsimile machine during normal business hours on a business day, when confirmation of transmission is indicated by the sender’s machine; or if given by electronic mail, telecopy or facsimile machine at any time other than during normal business hours on a business day, the first business day following when confirmation of transmission is indicated by the sender’s machine. Unless otherwise agreed, notices, requests, demands and other communications delivered to legal counsel of any party hereto, whether or not such counsel shall consist of in-house or outside counsel, shall not constitute duly given notice to any party hereto.
34. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and fully understand all of its terms; that they have conferred with their attorneys, or have knowingly and voluntarily chosen not to confer with their attorneys about this Agreement; that they have executed this Agreement without coercion or duress of any kind; and that they understand any rights that they have or may have, and they are signing this Agreement with full knowledge of any such rights.
(b) Both parties have participated in the drafting of this Agreement with the assistance of counsel to the extent they desired. The language in all parts of this Agreement must be in all cases construed simply according to its fair meaning and not strictly for or against any party. Whenever the context requires, all words used in the singular must be construed to have been used in the plural, and vice versa, and each gender must include any other gender. The captions of the Sections of this Agreement are for convenience only and must not affect the construction or interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party hereto is both a covenant and condition, and is a material consideration for the other party’s performance hereunder, and any breach thereof by the party will be a material default hereunder. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement are cumulative and no one of them is exclusive of any other. Time is of the essence in the performance of this Agreement.
(d) Each party acknowledges that no representation, statement or promise made by any other party, or by the agent or attorney of any other party, except for those in this Agreement, has been relied on by him/her or it in entering into this Agreement.
(e) Unless expressly set forth otherwise, all references herein to a “day” are deemed to be a reference to a calendar day. All references to “business day” mean any day of the year other than a Saturday, Sunday or a public or bank holiday in Orange County, California. Unless expressly stated otherwise, cross-references herein refer to provisions within this Agreement and are not references to any other document.
(f) Each party to this Agreement will cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
EACH OF THE PARTIES ACKNOWLEDGES THAT HE/SHE/IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT, AND THAT IT INCLUDES A WAIVER OF THE RIGHT TO A TRIAL BY JURY, AND, WITH RESPECT TO EXECUTIVE, HE/SHE UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
(Signature page follows)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the dates written below.
|
EXECUTIVE: |
| |
|
|
|
|
|
|
Date: |
|
|
|
|
|
|
COMPANY: |
Accuray Incorporated | |
|
|
| |
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
|
|
|
|
|
|
Date: |
|
Exhibit B
SECTION 7 OF THE DEFEND TRADE SECRETS ACT OF 2016
“ . . . An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. . . . An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual—(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”
AMENDED AND RESTATED RENEWAL EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Renewal Executive Employment Agreement (“Agreement”) is entered into and effective as of January 1, 2018 (“Effective Date”), by and between Accuray Incorporated, a Delaware corporation (the “Company”), and Alaleh Nouri (“Executive”).
RECITALS
A. The Company is in the business of developing, manufacturing and selling radiation oncology, including radio surgery and radiation therapy, technologies and devices (the “Business”).
B. The Company previously entered into a Renewal Executive Employment Agreement dated January 1, 2017 (the “Prior Agreement”) to employ Executive to serve as Senior Vice President, General Counsel and Corporate Secretary.
C. The Company and Executive wish to amend and restate the terms of the Prior Agreement as set forth herein to modify certain terms.
D. As of the Effective Date, Executive has commenced full-time employment with the Company.
NOW, THEREFORE, the parties agree that the Prior Agreement is hereby amended and restated to read in its entirety as follows:
1. Position and Duties.
(a) During the term of this Agreement, Executive will be employed by the Company to serve as Senior Vice President, General Counsel and Corporate Secretary of the Company, reporting to the Chief Executive Officer of the Company. Executive will be responsible for: (i) performing the duties and responsibilities customarily expected to be performed by such position and (ii) performing such other duties and functions as are reasonably required and/or as may be reasonably prescribed by the Company from time to time.
(b) The location of Executive’s employment will be the Company’s headquarters offices, but Executive from time to time may be required to travel to other geographic locations in connection with the performance of his/her duties.
2. Standards of Performance. Executive will at all times faithfully, industriously and to the best of his/her ability, experience and talents perform all of the duties required of and from him/her pursuant to the terms of this Agreement. Executive will devote his/her full business energies and abilities and all of his/her business time to the performance of his/her duties hereunder and will not, without the Company’s prior written consent, render to others any service of any kind (whether or not for compensation) that, in the Company’s sole but reasonable judgment, would interfere with the full performance of his/her duties hereunder. Notwithstanding the foregoing, Executive is permitted to spend reasonable amounts of time to manage his/her personal financial and legal affairs and, with the Company’s consent which will not be unreasonably withheld, to serve on one civic, charitable, not-for-profit, industry or corporate board or advisory committee, provided that such activities, individually and collectively, do not materially interfere with the performance of Executive’s duties hereunder. In no event will Executive engage in any activities that could reasonably create a conflict of interest or the appearance of a conflict of interest. Executive shall be subject to the Company’s policies, procedures and approval practices, as generally in effect from time to time.
3. Term.
(a) Term of Agreement. This Agreement will have an initial term of three (3) years commencing on the Effective Date (the “Initial Term”). On the third anniversary of the Effective Date, this Agreement will renew automatically for additional three (3) year terms (each, an “Additional Term” and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the date of automatic renewal; provided, however, that if the Company enters into a definitive agreement to be acquired and the transactions contemplated thereby would result in the occurrence of a Change in Control (as defined below) if consummated, then the Company will no longer be permitted to provide Executive with written notice to not renew this Agreement unless such definitive agreement is terminated without the Change in Control being consummated. If the Change in Control is consummated, the Agreement will continue in effect through the longer of the date that is twelve (12) months following the effective date of the Change in Control or the remainder of the Term then in effect (for purposes of clarification, it will be possible for the Term of the Agreement to automatically extend after the Company enters into the definitive agreement, but before the Change in Control is consummated). If the definitive agreement is terminated without the transactions contemplated thereby having been consummated and at the time of such termination there is at least twelve (12) months remaining in the Term, the Agreement will continue in effect for the remainder of the Term then in effect, but if there is less than twelve (12) months remaining in the Term then in effect, the Agreement will automatically extend for an additional three (3) years from the date the definitive agreement is terminated. If Executive becomes entitled to benefits under Section 5 during the term of this Agreement, the Agreement will not terminate until all of the obligations of the parties hereto with respect to this Agreement have been satisfied.
(b) At-Will Employment. The Company and Executive acknowledge that, notwithstanding the foregoing, Executive’s employment is and will continue to be at-will, as defined under applicable law. As an at-will employee, either the Company or the Executive may terminate the employment relationship at any time, with or without cause; provided, however, that in connection with such termination, the Company will provide Executive with any applicable benefits under Section 5 to which Executive is entitled, all in accordance with the terms and conditions thereof.
4. Compensation and Benefits.
(a) Base Salary. As an annual base salary (“Base Salary”) for all services rendered pursuant to this Agreement, Executive will be paid an initial Base Salary in the gross amount of $383,000 calculated on an annualized basis, less necessary withholdings and authorized deductions, and payable pursuant to the Company’s regular payroll practices at the time. The Base Salary is first subject to review and adjustment within the first three (3) months after the end of the fiscal year that includes the Effective Date, and, thereafter, subject to periodic review and adjustment not less frequently than annually within the first three (3) months after the end of the next successive fiscal year, in the sole discretion of the Company. Executive’s Base Salary will not be reduced from the level in effect from time to time, except that the Base Salary may be reduced in connection with a salary reduction program of general application to senior executives of the Company where each experiences a substantially similar reduction on a percentage basis.
(b) Performance Bonus. During Executive’s employment under this Agreement, Executive will be eligible for a performance bonus, subject to the terms and conditions of the Company’s Performance Bonus Plan, which is applicable to senior executives of the Company. The target amount of Executive’s annual bonus is fifty-five percent (55%) of Executive’s annual Base Salary (as defined in the Company’s Performance Bonus Plan as then in effect). However, payment of the performance bonus will
be conditioned on the Company’s achievement of corporate performance objectives approved by the Company and on the Executive’s achievement of individual performance metrics to be established annually and approved by the Company, all as established pursuant to the Company’s Performance Bonus Plan as then in effect, and the bonus may be zero. For the avoidance of doubt, the performance bonus will be payable only if the corporate and/or individual performance objectives approved by the Company are achieved as determined by the Company, subject to the Company’s right to exercise discretion in determining the amount of the bonus to be awarded, if any, as set forth in the Company’s Performance Bonus Plan then in effect. To encourage continued tenure with the Company, Executive must be employed by the Company as of the payment date to be eligible for a performance bonus for the year to which the bonus relates, unless otherwise provided in Section 5. Performance bonuses will be paid out according to the terms of the Company’s Performance Bonus Plan.
(c) Equity Incentive Awards.
(i) Stock Options. The Company may grant to Executive the option to purchase shares of the Company’s common stock (“Options”) pursuant to the Accuray Incorporated 2016 Equity Incentive Plan (the “Incentive Plan”). All Options shall be subject to the terms and conditions of the Incentive Plan and a stock option grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the Options.
(ii) Restricted Stock Units. The Company may grant to Executive restricted stock units (“RSUs”) pursuant to the Incentive Plan. All RSUs are subject to and conditioned on approval of the grant and its terms by the Company’s Board of Directors (the “Board”). All RSUs shall be subject to the terms and conditions of the Incentive Plan and a RSU grant notice and grant agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the RSUs.
(iii) Market Stock Units. The Company may grant to Executive performance-based market stock units (“MSUs”) pursuant to the Incentive Plan. All MSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted MSUs shall vest as provided in the applicable MSU grant notice and grant agreement (“MSU Agreement”). All MSUs shall be subject to the terms and conditions of the Incentive Plan and a MSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the MSUs.
(iv) Performance Stock Units. The Company may grant to Executive performance stock units (“PSUs”) pursuant to the Incentive Plan. All PSUs are subject to and conditioned on approval of the grant and its terms by the Board. All granted PSUs shall vest as provided in the applicable PSU grant notice and grant agreement (“PSU Agreement”). All PSUs shall be subject to the terms and conditions of the Incentive Plan and a PSU Agreement in a form prescribed by the Company, which Executive must sign as a condition to receiving the PSUs.
(d) Paid Time Off and Benefits. Executive will accrue and be allowed to use paid time off for vacation, illness and holidays pursuant to the Company’s policies that apply to executive officers of the Company. In addition, Executive will be entitled to participate in any plans regarding benefits of employment, including pension, profit sharing, group health, disability insurance and other employee pension and welfare benefit plans now existing or hereafter established to the extent that Executive is eligible under the terms of such plans and if the other executive officers of the Company generally are eligible to participate in such plan. The Company may, in its sole discretion and from time to time, establish additional senior management benefit plans as it deems appropriate. Executive understands that any such plans may be modified or eliminated in the Company’s sole discretion in accordance with applicable law, provided that no such modification or elimination shall result in reducing or eliminating any benefits in which Executive’s right has vested.
(e) Reimbursement of Business Expenses. The Company will promptly reimburse to Executive his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Agreement, and in accordance with the policies and procedures established by the Company; provided that each reimbursement shall be requested within two (2) months after being incurred.
(f) Sarbanes-Oxley Act Loan Prohibition and Company Compensation-Related Polices. To the extent that any Company benefit, program, practice, arrangement or this Agreement would or might otherwise result in Executive’s receipt of an illegal loan (the “Loan”), the Company shall use commercially reasonable efforts to provide Executive with a substitute for the Loan that is lawful and of at least equal value to Executive. If this cannot be done, or if doing so would be significantly more expensive to the Company than making the Loan, the Company need not make the Loan to Executive or provide him/her a substitute for it. Further, Executive acknowledges that any bonus or equity award provided for in this Agreement or otherwise awarded to him/her shall be subject to the Company’s policies regarding recoupment and clawback, as such policies may be amended from time to time, and agrees that he/she will be subject to, and shall comply with, the Company’s stock ownership requirements which are set forth in its Amended and Restated Corporate Governance Guidelines, as such requirements may be amended from time to time, and the Company’s Insider Trading Policy, as amended from time to time.
5. Termination of Employment.
(a) By Company Without Cause. Subject to the last paragraph of this Section 5(a), the Company may terminate Executive’s employment without Cause (as defined below) effective on thirty (30) days’ written notice (such thirty (30)-day period, the “Notice Period”, and such notice, the “Termination Notice”), during which notice period Executive may be relieved of his/her duties and placed on paid terminal leave. In such event and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) continued coverage under the Company’s insurance benefit plans through the termination date and such other benefits to which he/she may be entitled pursuant to the Company’s benefit plans, provided, however, that Executive shall not participate in any severance plan of the Company;
(ii) payment of all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and
(iii) reimbursement of expenses incurred on or before the termination date in accordance with Section 4(e), above, if a request for reimbursement of the expenses was timely submitted to the Company; plus
(iv) payment of the equivalent of the Base Salary without regard to any reduction that would otherwise constitute Good Reason he/she would have earned over the next six (6) months following the termination date (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Severance Payment”), payable in a lump sum on the first regularly scheduled payroll date following the date the Release becomes effective and irrevocable (the “Release Effective Date”), but in any event within ten (10) business days of the Release Effective Date and subject to Section 16, below;
(v) payment of a prorated portion of the actual bonus Executive would have otherwise received for the fiscal year during which the termination occurs, as if Executive had remained employed by the Company through the date that would have otherwise been required to earn the bonus, but without the Board or any committee of the Board exercising any negative discretion to reduce the amount
of the award, calculated by dividing the number of days from the start of the fiscal year through the termination date by 365 and multiplying the amount of such actual bonus Executive would have otherwise received by this percentage (but not by more than 100%), and paid at the same time as bonuses are paid to other Company executives that are similarly situated to Executive; provided, however, that if the termination date is after the seventh month of the fiscal year, the actual bonus will not be prorated and Executive will receive 100% of such actual bonus Executive would have otherwise received for that fiscal year at the same time as bonuses are paid to other Company executives that are similarly situated to Executive;
(vi) subject to Section 5(g), reimbursement of insurance premiums payable to retain group health coverage as of the termination date for himself/herself and his/her eligible dependents pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) for six (6) months or the maximum period of COBRA coverage, whichever is less; provided that Executive must submit a reimbursement request in accordance with Company policy within thirty (30) days of paying such insurance premiums. The Company will reimburse the executive within thirty (30) days of receiving a properly submitted request. In addition, if Executive accepts other employment within such six (6) months, the Company’s obligation under this Section 5(a)(vi) will be extinguished as of the date Executive becomes covered under the group health plan of Executive’s new employer; and
(vii) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
The payments and benefits set forth in Sections 5(a)(i)-(iii) shall be referred to as the “Accrued Benefits”, and the payments and benefits set forth in Sections 5(a)(iv)-(vii) shall be referred to as the “Severance Benefits”. Executive shall not receive the Severance Benefits, the “Enhanced Severance Benefits” as provided in Section 5(e), or the Termination Notice Replacement Payment (as defined below) unless Executive executes the separation agreement and general release attached as Exhibit A (the “Release”), and the same becomes irrevocable pursuant to its terms within the 60-day period following his/her termination of employment. Notwithstanding the foregoing paragraphs of this Section 5(a), the Company may terminate Executive’s employment prior to the expiration of the Notice Period, and in the case of such termination, the Company shall pay Executive the equivalent of the Base Salary he/she would have earned over the remainder of the Notice Period (less necessary withholdings and authorized deductions) at his/her then current Base Salary rate (the “Termination Notice Replacement Payment”), subject to Executive satisfying the requirements of the previous sentence. Any such Termination Notice Replacement will be paid in a lump sum at the same time as the Severance Payment.
(b) By Company With Cause. The Company may terminate Executive’s employment at any time and without prior notice, written or otherwise, for Cause. As used in this Agreement, “Cause” shall mean any of the following conduct by Executive: (i) material breach of this Agreement, or of a Company policy or of a law, rule or regulation applicable to the Company or its operations; (ii) demonstrated and material neglect of duties, or failure or refusal to perform the material duties of his/her position, or the failure to follow the reasonable and lawful instructions of the Company; (iii) gross misconduct or dishonesty, self-dealing, fraud or similar conduct that the Company reasonably determines has caused, is causing or reasonably is likely to cause harm to the Company; or (iv) conviction of or plea of guilty or nolo contendere to any crime other than a traffic offense that is not punishable by a sentence of incarceration. Termination pursuant to Section 5(b)(ii) shall be effective only if such failure continues after Executive has been given written notice thereof and fifteen (15) business days thereafter in which to present his/her position to the Company or to cure the same, unless the Company reasonably determines that the reason(s) for termination are not capable of being cured. In the event of termination for Cause, Executive
will be entitled only to the Accrued Benefits through the termination date, which will be the date on which the notice is given. The Company will have no further obligation to pay any compensation of any kind (including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs), or severance payment of any kind nor to make any payment in lieu of notice.
(c) Incapacity or Death.
(i) If Executive becomes unable, due to physical or mental illness or injury, to perform the essential duties of his/her position for more than twelve (12) consecutive weeks in any twelve (12) month period during this Agreement with or without reasonable accommodation (“Incapacity”), the Company has the right to terminate Executive’s employment on fifteen (15) days’ written notice. In the event of termination for Incapacity, (i) Executive will be entitled to receive the Accrued Benefits, (ii) any unvested equity awards previously granted to Executive that are scheduled to vest based solely on the achievement of service-based conditions (“Time-based Equity Awards”) shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any equity awards that are scheduled to vest based on the achievement of performance-based conditions (which may include additional service-based conditions) (“Performance-based Equity Awards”) for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee of the Board (the “Compensation Committee”) determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved; and
(ii) Executive’s employment pursuant to this Agreement shall be immediately terminated without notice by the Company upon the death of Executive. If Executive dies while actively employed pursuant to this Agreement, (i) the Company will pay to his/her estate or designated beneficiaries within sixty (60) days the Accrued Benefits, (ii) any unvested Time-based Equity Awards shall become immediately vested to the extent that such Time-based Equity Awards would have vested within six (6) months after the date of termination had such Time-based Equity Awards had vesting schedules that provided for pro-rata vesting on a monthly basis over the entirety of the vesting schedule, and (iii) with respect to any Performance-based Equity Awards for which the performance period is scheduled to end within six (6) months after the date of termination, each such Performance-based Equity Award will remain outstanding until the date the Compensation Committee determines whether the applicable performance condition is achieved (provided that in no event will such Performance-based Equity Award remain outstanding beyond the Performance-based Equity Award’s maximum term to expiration) and will vest in accordance with its terms to the extent such performance condition is achieved.
(d) Resignation for Good Reason. Executive may terminate this Agreement for Good Reason (as defined below) by giving written notice to the Company of such termination, subject to Executive complying with the notice, cure period and other requirements set forth within the definition of Good Reason below. As used in this Agreement, “Good Reason” shall mean the occurrence of any one of the following without Executive’s written consent: (i) a material reduction in Executive’s base compensation (which includes Base Salary, the Executive’s target bonus and any other base compensation) and/or a material breach of this Agreement by the Company resulting from the failure to provide the benefits required in Section 4, (ii) any action or inaction that constitutes a material breach by the Company of this Agreement; (iii) a material diminution in Executive’s authority, duties or responsibilities such that they are materially inconsistent with his/her position as Senior Vice President, General Counsel and Corporate
Secretary of the Company; and (iv) relocation of the Company’s headquarters to a location that materially increases Executive’s commute, provided that no termination for Good Reason shall be effective until Executive has given the Company written notice (pursuant to Section 11 below) within sixty (60) days after Executive becomes aware of the initial occurrence of any of the foregoing specifying the event or condition constituting the Good Reason and the specific reasonable cure requested by Executive, and the Company has failed to cure the occurrence within thirty (30) days of receiving written notice from Executive, and Executive resigns within six (6) months after Executive becomes aware of the initial occurrence. In the event of a termination for Good Reason, Executive will be entitled to the Accrued Benefits and the Severance Benefits, on the same conditions, form of payment and timing as set forth in Section 5(a).
(e) Effect of Change in Control. If the Company terminates Executive’s employment with the Company without Cause (excluding due to Executive’s death or Incapacity) or if Executive resigns from such employment for Good Reason, and, in each case, such termination occurs during the Change in Control Period (as defined below), Executive will be entitled to the Accrued Benefits, and subject to the same conditions set forth in the final paragraph of Section 5(a), (i) four times the Severance Payment set forth in Section 5(a)(iv), paid in the same form (i.e., a lump sum) and at the same time as the Severance Payments set forth in Section 5(a)(iv), (ii) subject to Section 5(g), the reimbursement of Executive’s insurance premiums for twelve (12) months in the same form and at the same time and under the same conditions as provided in Section 5(a)(vi), (iii) a taxable monthly payment (which may be used for any purpose) equal to actual the COBRA reimbursement payment that Executive receives under Section 5(e)(ii) for any particular month, (iv) two hundred percent (200%) of Executive’s target bonus for the fiscal year during which termination occurs, but no less than two hundred percent (200%) of the target bonus in effect for the fiscal year immediately prior to the Change in Control if the Change in Control occurs within the first three (3) months of the fiscal year, payable at the same time as the payment under clause (i) of this Section 5(e), (v) all outstanding unvested equity awards previously granted to Executive shall become immediately vested (the “Enhanced Severance Benefits”), and (vi) payment for executive outplacement assistance services with the Company’s then current outplacement services vendor and in accordance with the Company’s then current policies and practices with respect to outplacement assistance for other executives of the Company for up to twelve (12) months after the termination date.
For the avoidance of doubt, if Executive’s termination without Cause (excluding due to Executive’s death or Incapacity) or resignation for Good Reason occurs prior to a Change in Control, then any unvested portion of Executive’s outstanding equity awards will remain outstanding until the earlier of (i) the date that is three (3) months following the termination of Executive’s employment or (ii) the date that a Change in Control occurs (provided that in no event will any of Executive’s equity awards remain outstanding beyond the equity award’s maximum term to expiration). In the event that a Change in Control does not occur by the date that is three (3) months following the termination of Executive’s employment, any unvested portion of Executive’s equity awards automatically will be forfeited permanently without having vested. Further, for any Performance-based Equity Awards, the performance-based vesting component of the equity awards shall not be deemed to be automatically achieved as a result of the application of Section 5(e)(v) but will remain outstanding during the three (3) month period following Executive’s termination or through the date of the Change in Control, as applicable, to determine whether a Change in Control would have occurred within three (3) months of the termination of Executive’s employment and, if so, the extent to which the performance condition is achieved, such determination to be made in accordance with the procedures set forth in the applicable award agreement. If the performance condition is satisfied and that would cause the award to become eligible to vest based on continued service, then clause (v) of this Section 5(e) will cause the service-based vesting component to be deemed satisfied and the vesting of the equity award will be accelerated as to the portion of the award that became eligible to vest. For clarity, if there is no service-based condition that applies with respect to any portion of such equity award upon such satisfaction of the performance condition, such portion of the equity award will immediately vest upon such satisfaction of the performance condition.
For the sake of clarity, if any payments or benefits are payable under this Section 5(e), no payments or benefits shall be made under any other subsection of this Section 5, including Section 5(a) and Section 5(d), and any Enhanced Severance Benefits will be reduced by any Severance Benefits that may have been paid or provided with respect to any termination triggering Severance Benefits that occurs during the three-month period prior to a Change in Control (this provision, the “Non-duplication Provision”).
As used in this Agreement, a “Change in Control” shall mean any of the following events:
(i) the acquisition by any Group or Person (as such terms are defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)), other than (A) a trustee or other fiduciary holding securities of the Company under an employee benefit plan of the Company or (B) an entity in which the Company directly or indirectly beneficially owns fifty percent (50%) or more of the voting securities of such entity (an “Affiliate”), of any securities of the Company, immediately after which such Group or Person has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty percent (50%) or more of (X) the outstanding shares of Common Stock or (Y) the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors;
(ii) the Company (and/or its subsidiaries) is a party to a merger or consolidation with a Person other than an Affiliate, which merger or consolidation results in (a) the holders of voting securities of the Company outstanding immediately before such merger or consolidation failing to continue to represent (either by remaining outstanding or being converted into voting securities of the surviving entity) fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the corporation or entity resulting from or surviving such merger or consolidation or (b) individuals who are directors of the Company just prior to such merger or consolidation not constituting more than fifty percent (50%) of the members of the Board of Directors of the surviving entity or corporation immediately after the consummation of such merger or consolidation; or
(iii) all or substantially all of the assets of the Company and its subsidiaries are, in any transaction or series of transactions, sold or otherwise disposed of (or consummation of any transaction, or series of related transactions, having similar effect), other than to an Affiliate;
provided, however, that in no event shall a “Change in Control” be deemed to have occurred for purposes of this Agreement solely because the Company engages in an internal reorganization, which may include a transfer of assets to, or a merger or consolidation with, one or more Affiliates. Additionally, with respect to the payment of any “nonqualified deferred compensation” within the meaning of section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), that is not exempt from section 409A of the Code, no event shall constitute a Change in Control unless it also constitutes a change in the ownership of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(v)), a change in effective control of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vi)), or a change in the ownership of a substantial portion of the assets of the Company (as defined in Treasury Regulation section 1.409A-3(i)(5)(vii)).
As used in this Agreement, a “Change in Control Period” shall mean the period beginning three (3) months prior to, and ending twelve (12) months following, a Change in Control.
(f) Voluntary Resignation without Good Reason. Executive may terminate this Agreement without Good Reason effective on sixty (60) day’s written notice, unless the Company in its sole discretion accepts the resignation earlier. In the event that Executive resigns without Good Reason as defined above in Section 5(d), Executive will be entitled only to the Accrued Benefits through the termination date. The Company will have no further obligation to pay any compensation of any kind
(including without limitation any bonus or portion of a bonus that otherwise may have become due and payable to Executive with respect to the year in which such termination date occurs unless he/she remains employed with the Company as of the date bonuses are paid to other senior executives of the Company), or severance payments of any kind.
(g) If the Company determines in its sole discretion that it cannot make the COBRA reimbursements under Section 5(a)(vi) or Section 5(e)(ii) (the “COBRA Reimbursements”) without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue the Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA continuation coverage), which payments will be made regardless of whether the Executive elects COBRA continuation coverage and will commence on the month following the Executive’s termination of employment and will end on the earlier of (x) the date upon which the Executive obtains other employment or (y) the date the Company has paid an amount equal to (A) 6 payments if Executive is receiving the Severance Benefits pursuant to Section 5(a) or (B) subject to the Non-duplication Provision, 12 payments if Executive is receiving the Enhanced Severance Benefits pursuant to Section 5(e). For the avoidance of doubt, such taxable payments in lieu of COBRA Reimbursements (the “COBRA Substitute Payments”) may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholding.
6. Proprietary Information Obligations.
(a) Proprietary Information and Confidentiality. Both before and during the term of Executive’s employment, Executive will have access to and become acquainted with Company confidential and proprietary information (together “Proprietary Information”), including but not limited to information or plans concerning the Company’s products and technologies; customer relationships; personnel; sales, marketing and financial operations and methods; trade secrets; formulae and secret developments and inventions; processes; and other compilations of information, records, and specifications. Executive will not disclose any of the Proprietary Information directly or indirectly, or use it in any way, either during his/her employment pursuant to this Agreement or at any time thereafter, except as reasonably required or specifically requested in the course of his/her employment with the Company or as authorized in writing by the Company. Notwithstanding the foregoing, Proprietary Information does not include information that is otherwise publicly known or available, provided it has not become public as a result of a breach of this Agreement or any other agreement Executive has to keep information confidential. It is not a breach of this Agreement for Executive to disclose Proprietary Information (i) pursuant to an order of a court or other governmental or legal body or (ii) in connection with Protected Activity (as defined below). Executive understands that nothing in this Agreement shall in any way limit or prohibit Executive from engaging in any Protected Activity. For purposes of this Agreement, “Protected Activity” means filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding that may be conducted by any federal, state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board (“Government Agencies”). Executive understands that in connection with such Protected Activity, Executive is permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, the Company. Notwithstanding, in making any such disclosures or communications, Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Proprietary Information to any parties other than the Government Agencies. Executive further understands that “Protected Activity” does not include the disclosure of any Company attorney-client privileged communications. In addition, Executive hereby acknowledges that the Company has provided Executive with notice in compliance with the Defend Trade Secrets Act of 2016 regarding immunity from liability for limited disclosures of trade secrets. The full text of the notice is attached in Exhibit B.
(b) Inventions Agreement and Assignment.
(i) Executive hereby agrees to disclose promptly to the Company (or any persons designated by it) all developments, designs, creations, improvements, original works of authorship, formulas, processes, know-how, techniques and/or inventions (collectively, the “Inventions”) (A) which are made or conceived or reduced to practice by Executive, either alone or jointly with others, in performing his/her duties during the period of Executive’s employment by the Company, that relate to or are useful in the business of the Company; or (B) which result from tasks assigned to Executive by the Company, or from Executive’s use of the premises or other resources owned, leased or contracted by the Company.
(ii) Executive agrees that all such Inventions which the Company in its discretion determines to be related to or useful in its business or its research or development, or which result from work performed by Executive for the Company, will be the sole and exclusive property of the Company and its assigns, and the Company and its assigns will have the right to use and/or to apply for patents, copyrights or other statutory or common law protections for such Inventions in any and all countries. Executive further agrees to assist the Company in every reasonable way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights and other statutory or common law protections for such Inventions in any and all countries. To that end, Executive will execute all documents for use in applying for and obtaining such patents, copyrights and other statutory or common law protections therefor and enforcing the same, as the Company may desire, together with any assignments thereof to the Company or to persons or entities designated by the Company. Should the Company be unable to secure Executive’s signature on any document necessary to apply for, prosecute, obtain, or enforce any patent, copyright or other right or protection relating to any Invention, whether due to his/her mental or physical incapacity or any other cause, Executive hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as Executive’s agent and attorney-in-fact, to act for and in his/her behalf and stead, to execute and file any such document, and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights or other rights or protections with the same force and effect as if executed and delivered by Executive. Executive’s obligations under this Section 6(b)(ii) will continue beyond the termination of Executive’s employment with the Company, but the Company will compensate Executive at a reasonable rate after such termination for time actually spent by Executive at the Company’s request in providing such assistance.
(iii) Executive hereby acknowledges that all original works of authorship which are made by Executive (solely or jointly with others) within the scope of Executive’s employment which are protectable by copyright are “works for hire,” as that term is defined in the United States Copyright Act (17 USCA, Section 101).
(iv) Any provision in this Agreement requiring Executive to assign Executive’s rights in any Invention to the Company will not apply to any invention that is exempt under the provisions of California Labor Code section 2870, which provides:
“(a) 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. (b) 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 subdivision (a), the provision is against the public policy of this state and is unenforceable.”
(c) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Company; provided, however, that if Executive is or becomes a permanent resident of the state of California and remains such a permanent resident through the date of termination of Executive’s employment, this Section 6(c) shall not apply following the termination of Executive’s employment with the Company.
(d) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself or on behalf of any other person or entity, solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(e) Company Property and Materials.
(i) All files, records, documents, computer-recorded or electronic information, drawings, specifications, equipment, and similar items relating to Company business, whether prepared by Executive or otherwise coming into his/her possession, will remain the Company’s exclusive property and will not be removed from Company premises under any circumstances whatsoever without the Company’s prior written consent, except when, and only for the period, necessary to carry out Executive’s duties hereunder
(ii) In the event of termination of Executive’s employment for any reason, Executive will promptly deliver to the Company all Company equipment (including, without limitation, any cellular phones, beeper/pagers, computer hardware and software, fax machines and other tools of the trade) and all originals and copies of all documents, including without limitation, all books, customer lists, forms, documents supplied by customers, records, product lists, writings, manuals, reports, financial documents and other documents or property in Executive’s possession or control, which relate to the
Company’s business in any way whatsoever, and in particular to customers of the Company, or which may be considered to constitute or contain Proprietary Information as defined above, and Executive will neither retain, reproduce, nor distribute copies thereof (other than copies of Executive’s electronic or hardcopy address and telephone contact data base or directories). Notwithstanding the foregoing, Executive shall be allowed to retain a copy of the Employee Handbook and personnel records relating to Executive’s employment.
(f) Remedies for Breach. Executive acknowledges that any breach by Executive of this Section 6 would cause the Company irreparable injury and damage for which monetary damages are inadequate. Accordingly, in the event of a breach or a threatened breach of this Section 6, the Company will be entitled to seek an injunction restraining such breach. In addition, in the event of a breach of this Section 6, the Company’s obligation to pay any unpaid portion of the Severance Payment or other benefits as set forth in Sections 5(a) and (d) of this Agreement will be extinguished. Nothing contained herein will be construed as prohibiting the Company from pursuing any other remedy available to the Company for such breach or such threatened breach. Executive has carefully read and considered these restrictions and agrees they are fair and reasonable restrictions on Executive and are reasonably required for the protection of the interests of the Company. Executive agrees not to circumvent the spirit of these restrictions by attempting to accomplish indirectly what Executive is otherwise restricted from doing directly. Executive agrees that the restrictions in this Section 6 are reasonable and necessary to protect the Company’s Proprietary Information, and they do not prevent Executive from working in the medical device industry. Executive agrees that the covenants and agreements by Executive contained in this Section 6 shall be in addition to any other agreements and covenants Executive may have agreed to in any other employee proprietary information, confidentiality, non-disclosure or other similar agreement and that this Section 6 shall not be deemed to limit such other covenants and agreements, all of which shall continue to survive the termination of this Agreement in accordance with their respective terms. A breach by Executive of the terms of such other agreements and covenants shall be deemed to be a breach by Executive of this Section 6 and of this Agreement. To the extent any of the provisions in this Section 6 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 6 is held to be unenforceable, the remaining provisions of this Section 6 shall be enforced as written.
7. Interpretation, Governing Law and Exclusive Forum. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of California (excluding any that mandate the use of another jurisdiction’s laws). Any arbitration (unless otherwise mutually agreed), litigation or similar proceeding with respect to such matters only may be brought within Santa Clara County, California, and all parties to this Agreement consent to California’s jurisdiction.
8. Entire Agreement. All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement.
9. Severability. In the event that one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such holding shall not impair the validity, legality or enforceability of the remaining provisions herein.
10. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, Executive and his/her estate, but Executive may not assign or pledge this Agreement or any rights arising under it, except to the extent permitted under the terms of the benefit plans in which he/she participates. No rights or obligations of the Company under this Agreement may be assigned or transferred except that the Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, sale, transfer of stock, consideration or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no succession had taken place. As used in this Agreement, “Company” means the Company as hereinbefore defined and any successor to its business and/or assets (by merger, purchase or otherwise as provided in this Section 10) which executes and delivers the agreement provided for in this Section 10 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. In the event that any successor refuses to assume the obligations hereunder, the Company as hereinbefore defined shall remain fully responsible for all obligations hereunder.
11. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be given by hand delivery, electronic mail, facsimile, telecopy, overnight courier service, or by United States certified or registered mail, return receipt requested. Each such notice, request, demand or other communication shall be effective (i) if delivered by hand or by overnight courier service, when delivered at the address specified in this Section 11; (ii) if given by electronic mail, facsimile or telecopy, when such electronic mail, facsimile or telecopy is transmitted to the electronic mail address or facsimile or telecopy number specified in this Section 11 and confirmation is received if during normal business hours on a business day, and otherwise, on the next business day; and (iii) if given by certified or registered mail, three (3) days after the mailing thereof. Notices shall be addressed to the parties as follows (or at such other address, email address or fax number as either party may from time to time specify in writing by giving notice as provided herein):
|
If to the Company: |
|
Accuray Incorporated |
|
|
|
1310 Chesapeake Terrace |
|
|
|
Sunnyvale, California 94089 |
|
|
|
Attn: General Counsel |
|
|
|
Fax No. (408) 789-4205 |
|
|
|
|
|
If to Executive: |
|
Alaleh Nouri |
|
|
|
Address: most recent on file with the Company |
|
|
|
Email: most recent on file with the Company |
12. Indemnification. As soon as reasonably practicable after the due execution of this Agreement by each of the parties hereto, the Company and Executive will enter into the Company’s standard form of indemnification agreement utilized by the Company for its directors and executive officers.
13. Dispute Resolution. The parties agree that all disputes, claims or controversies between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, including any dispute, claim or controversy arising from or otherwise in connection with this Agreement and/or Executive’s employment with the Company, will be resolved as follows:
(a) Prior to initiating any other proceeding, the complaining party will provide the other party with a written statement of the claim identifying any supporting witnesses or documents and the requested relief. The responding party shall within forty-five (45) days furnish a statement of the relief, if any, that it is willing to provide, and identify supporting witnesses or documents.
(b) If the matter is not resolved by the exchange of statements of claim and statements of response as provided herein, the parties shall submit the dispute to non-binding mediation, the cost of the mediator to be paid by the Company, before a mediator and/or service to be jointly selected by the parties. Each party will bear his/her or its own attorney’s fees and witness fees.
(c) If the parties cannot agree on a mediator and/or if the matter is not otherwise resolved by mediation, any controversy or claim between Executive and the Company and any of its current or former directors, officers and employees, including any arising out of or relating to this Agreement or breach thereof, shall be settled by final and binding arbitration in the county in which Executive last worked, or elsewhere as mutually agreed by the parties, by a single arbitrator pursuant to the Employment Dispute Rules of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), unless the parties to the dispute agree to another arbitration service or independent arbitrator. The parties may conduct discovery to the extent permitted in a court of law; the arbitrator will render an award together with a written opinion indicating the bases for such opinion; and the arbitrator will have full authority to award all remedies that would be available in court. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own attorney’s fees and costs, unless the claim is based on a statute that provides otherwise. The Company will pay the arbitrator’s fees and any administrative charges of the arbitration service, except that if Executive initiates the claim, he/she will pay a portion of the administrative charges equal to the amount he/she would have paid to initiate the claim in a court of general jurisdiction.
(d) EXECUTIVE AND THE COMPANY AGREE THAT THIS ARBITRATION PROCEDURE WILL BE THE EXCLUSIVE MEANS OF REDRESS FOR ANY DISPUTES RELATING TO OR ARISING FROM EXECUTIVE’S EMPLOYMENT WITH THE COMPANY OR TERMINATION THEREFROM, INCLUDING DISPUTES OVER UNPAID WAGES, BREACH OF CONTRACT OR TORT, VIOLATION OF PUBLIC POLICY, RIGHTS PROVIDED BY FEDERAL, STATE OR LOCAL STATUTES, REGULATIONS, ORDINANCES, AND COMMON LAW, LAWS THAT PROHIBIT DISCRIMINATION BASED ON ANY PROTECTED CLASSIFICATION, AND ANY OTHER STATUTES OR LAWS RELATING TO AN EXECUTIVE’S RELATIONSHIP WITH THE COMPANY. THE FOREGOING NOTWITHSTANDING, CLAIMS FOR WORKERS’ COMPENSATION BENEFITS OR UNEMPLOYMENT INSURANCE, OR ANY OTHER CLAIMS WHERE MANDATORY ARBITRATION IS PROHIBITED BY LAW, ARE NOT COVERED BY THIS ARBITRATION PROVISION. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL, AND AGREE THAT THE ARBITRATOR’S AWARD SHALL BE FINAL AND BINDING ON BOTH PARTIES. THIS ARBITRATION PROVISION IS TO BE CONSTRUED AS BROADLY AS IS PERMISSIBLE UNDER APPLICABLE LAW.
14. Representations. Each person executing this Agreement hereby represents and warrants on behalf of himself/herself and of the entity/individual on whose behalf he/she is executing the Agreement that he/she is authorized to represent and bind the entity/individual on whose behalf he/she is executing the Agreement. Executive specifically represents and warrants to the Company that he/she reasonably believes (a) he/she is not under any contractual or other obligations that would prevent, limit or impair Executive’s performance of his/her obligations under this Agreement and (b) that entering into this Agreement will not result in a breach of any other agreement to which he/she is a party. Executive acknowledges that Executive has been given the opportunity to consult with legal counsel and seek such advice and consultation as Executive deems appropriate or necessary.
15. Amendments and Waivers. No provisions of this Agreement may be modified, waived, or discharged except by a written document signed by Executive and a duly authorized Company officer. Thus, for example, promotions, commendations, and/or bonuses shall not, by themselves, modify, amend, or extend this Agreement. A waiver of any conditions or provisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time.
16. Taxes.
(a) Withholdings. The Company may withhold from any compensation and benefits payable under this Agreement all federal, state, city and other taxes or amounts as shall be determined by the Company to be required to be withheld pursuant to applicable laws, or governmental regulations or rulings. Executive shall be solely responsible for the satisfaction of any taxes (including employment taxes imposed on employees and penalty taxes on nonqualified deferred compensation).
(b) Net Proceeds Maximization. Notwithstanding any provision of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates (“Potential Parachute Payments”) would constitute an “excess parachute payment” within the meaning of section 280G of the Code and/or any corresponding and applicable state law provision, the Potential Parachute Payments will be reduced by reducing the amount of the Potential Parachute Payments to the extent necessary so that no portion of the Potential Parachute Payments will be subject to the excise tax imposed by section 4999 of the Code and any corresponding and/or applicable state law provision. Notwithstanding the foregoing, a reduction will be made under the previous sentence only if, by reason of that reduction, Executive’s net after tax benefit exceeds the net after tax benefit he/she would realize if the reduction were not made. For purposes of this paragraph, “net after tax benefit” means the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a “parachute payment” within the meaning of section 280G of the Code and any corresponding and applicable state law provision, plus (ii) all other payments or benefits that Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute payment” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits are realized by Executive (based upon the rate in effect for that year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by section 4999 of the Code and any corresponding and applicable state law provision. All determinations and calculations made in this paragraph shall be made by an independent accounting firm (the “Accounting Firm”) selected by the Company prior to the Change in Control and the Company will bear all costs and expenses incurred by the Accounting Firm in connection with its determination. The Accounting Firm shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of (x) the Company or any affiliate thereof or (y) Executive. If any payments or benefits are reduced pursuant to this Section 16(b), they shall be reduced in the following order: First all payments and benefits that do not constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code or that are exempt from section 409A of the Code (with the payments or benefits being reduced in reverse order of when they otherwise would be made or provided); second, all payments or benefits that constitute “nonqualified deferred compensation” within the meaning of section 409A of the Code that are not exempt from section 409A of the Code that were granted to Executive in the 12-month period of time preceding the applicable Change in Control, in the order such benefits were granted to Executive; and third, all remaining payments and benefits shall be reduced pro-rata. Notwithstanding the foregoing, if (i) reducing payments or benefits in the order described above would result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), (ii) Executive so notifies the Company before such reductions and payments are made and benefits provided, and (iii) reducing the payments or benefits in another order would not result in the imposition on Executive of an additional tax under section 409A of the Code (or similar state or local law), payments and benefits shall instead be reduced in such other order.
(c) Section 409A Compliance.
(i) With respect to any reimbursement of expenses or any provision of in-kind benefits to Executive specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangements providing for the reimbursement of expenses referred to in section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year following the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(ii) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) upon or following a termination of employment unless such termination is also a “separation from service” and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” For purposes of section 409A of the Code, the date as of which Company and Executive reasonably anticipate that no further services would be performed by Executive for Company shall be construed as the date that Executive first incurs a “separation from service” as defined under section 409A of the Code.
(iii) Notwithstanding anything in this Agreement to the contrary, if a payment obligation arises on account of Executive’s separation from service while Executive is a “specified employee” as described in section 409A of the Code and the Treasury Regulations thereunder and as determined by Company in accordance with its procedures, by which determination Executive is bound, any payment of “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through (b)(12)) shall be made on the first business day of the seventh month following the date of Executive’s separation from service, or, if earlier, within fifteen (15) days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death together with interest on them for the period of delay at a rate equal to the average prime interest rate published in the Wall Street Journal on any day chosen by the Company during that period. Thereafter, Executive shall receive any remaining payments as if there had not been an earlier delay.
(iv) Notwithstanding anything to the contrary contained in this Agreement, (i) the Executive shall have no legally-enforceable right to, and the Company shall have no obligation to make, any payment or provide any benefit to Executive if having such a right or obligation would result in the imposition of additional taxes under section 409A of the Code, and (ii) any provision that would cause any payment or benefit to fail to satisfy section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by section 409A and may be accomplished by the Company without the Executive’s consent). If any payment is not made or any benefit is not provided under the terms of this Section 16(c)(iv), it is the Company’s present intention to make a similar payment or provide a similar benefit to the Executive in a manner that will not result in the imposition of additional taxes under section 409A of the Code, to the extent feasible. Each payment made under this Agreement is intended to be a separate payment for the purposes of section 409A of the Code.
(v) The Company does not guarantee any particular tax effect to Executive under this Agreement. Company shall not be liable to Executive for any payment made under this Agreement that is determined to result in an additional tax, penalty or interest under section 409A of the Code, nor for reporting in good faith any payment made under this Agreement as an amount includible in
gross income under section 409A of the Code. The parties intend this Agreement to be exempt from, or comply with, the requirements of Section 409A of the Code and the final regulations and any guidance promulgated thereunder so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed by Section 409A. Any ambiguities or ambiguous terms shall be interpreted to so be exempt or comply, and this Agreement shall be administered in accordance with such intent.
17. U.S. Citizenship and Immigration Services; Confidentiality and Inventions Agreement. Executive agrees to timely file all documents required by the Department of Homeland Security to verify his/her identity and lawful employment in the United States. In addition, as a condition to Executive’s employment with the Company, Executive is required to complete, sign, return, and abide by the Company’s Employee Confidentiality and Inventions Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute the same instrument.
19. Resignation from Positions. Upon Executive’s cessation of employment with the Company for any reason, Executive agrees that Executive shall be deemed to have resigned as an officer and as a director (if applicable) from the Company and every subsidiary of the Company on which Executive is then serving as an officer or director, and from any other entity or company on which Executive is then serving as a director or officer at the request of the Company, in each case effective as of the date of Executive’s cessation of employment. In the event of Executive’s cessation of employment, Executive agrees to execute a general resignation resigning from all positions then held by Executive on every subsidiary of the Company and other entity or company on which Executive is then serving as a director or officer at the request of the Company. Executive hereby grants the corporate secretary of the Company an irrevocable power of attorney to execute on behalf of Executive all such resignations, documents and instruments and to take all such other actions as reasonably necessary to carry out the intention of this Section 19.
20. Executive’s Commencement of Employment. It is a condition precedent to the effectiveness of this Agreement that Executive commences working full-time for the Company at the Company’s principal executive offices on the Effective Date. If Executive does not commence such full-time employment on the Effective Date, then this Agreement shall be null and void and the Company shall have no obligations hereunder or otherwise to Executive.
21. Executive’s Acknowledgement.
EXECUTIVE ACKNOWLEDGES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND HIM/HER RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS) AND THAT HE/SHE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT (INCLUDING THE AGREEMENTS SET FORTH AS EXHIBITS), THAT HE/SHE UNDERSTANDS ALL OF SUCH AGREEMENTS, AND THAT HE/SHE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS SUCH AGREEMENTS WITH HIS/HER PRIVATE LEGAL COUNSEL AND HAS AVAILED HIMSELF/HERSELF OF THAT OPPORTUNITY TO THE EXTENT HE/SHE WISHED TO DO SO. EXECUTIVE UNDERSTANDS THAT THE DISPUTE RESOLUTION PROVISIONS OF THIS AGREEMENT GIVE UP THE RIGHT TO A JURY TRIAL ON MATTERS COVERED BY THEM.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
|
|
|
|
ACCURAY INCORPORATED, | |
|
|
|
|
a Delaware Corporation | |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Joshua Levine |
|
|
|
|
Name: |
Joshua Levine |
|
|
|
|
Title: |
President & Chief Executive Officer |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Kevin Waters |
|
|
|
|
Name: |
Kevin Waters |
|
|
|
|
Title: |
Senior Vice President, Chief Financial Officer |
|
|
|
|
|
|
|
Accepted and Agreed, |
|
|
| |
|
|
|
|
|
|
|
Alaleh Nouri: |
/s/ Alaleh Nouri |
|
| |
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Agreement”) is hereby entered into by and between , an individual (“Executive”), and Accuray Incorporated, a Delaware corporation, on behalf of itself and all of its subsidiaries (collectively, the “Company”).
Recitals
A. Executive has been employed by the Company pursuant to an employment agreement by and between the Company and Executive effective as of January 1, 2018 (the “Employment Agreement”), and currently is serving as [specify position held at time of termination];
B. Executive’s employment with the Company and any of its parents, direct or indirect subsidiaries, affiliates, divisions, or related entities (collectively referred to herein as the “Company and its Related Entities”) will be ended on the terms and conditions set forth in this Agreement.
Agreement
In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Effective Date. Except as otherwise provided herein, this Agreement shall be effective on the eighth day after it has been executed by both of the parties (the “Effective Date”).
2. End of Employment and Service as a Director. Executive’s employment with the Company and its Related Entities has ended or will end effective as of Pacific Time, on (the “Termination Date”). If Executive is an officer or a member of the Board of Directors of the Company and/or its Related Entities (the “Board”) Executive hereby voluntarily resigns from any such officer positions and the Board, effective .
3. Continuation of Benefits After the Termination Date. Except as expressly provided in this Agreement or in the plan documents governing the Company’s employee benefit plans, after the Termination Date, Executive will no longer be eligible for, receive, accrue, or participate in any other benefits or benefit plans provided by the Company and its Related Entities, including, without limitation, medical, dental and life insurance benefits, and the Company’s 401(k) retirement plan; provided, however, that nothing in this Agreement shall waive Executive’s right to any vested benefits, including vested amounts in the Company’s 401(k) retirement plan, which amounts shall be handled as provided in the plan.
4. Payments Upon Termination. Executive will be entitled to receive payment of the following: (i) all earned but unpaid compensation (including accrued unpaid vacation) through the effective date of termination, payable on or before the termination date; and (ii) reimbursement, made in accordance with Section 4(e) of the Employment Agreement, of any monies advanced or incurred by Executive in connection with his/her employment for reasonable and necessary Company-related expenses incurred on or before the Termination Date. The provisions of this Agreement shall not waive or terminate any rights to compensation or vested benefits under the Company’s benefits plans or as required by law, or to indemnification Executive may have under the Company’s Certificate of Incorporation, Bylaws or separate indemnification agreement, as applicable.
5. Severance Benefits or Enhanced Severance Benefits. In return for Executive’s promises in this Agreement, the Company will provide Executive with the Severance Benefits or Enhanced Severance Benefits as defined in Sections 5(a) and 5(e) of the Employment Agreement and as applicable based on the nature of the termination, subject to the terms and conditions set forth in the Employment Agreement, including, but not limited to, Section 16 thereof. The Severance Benefits or Enhanced Severance Benefits will be paid as specified in Section 5(a) or Section 5(e) of the Employment Agreement, as applicable and shall be subject to required withholdings and authorized deductions and to Section 21 below.
6. Effect of Revocation or Subsequent Employment.
(a) If Executive properly revokes this Agreement in accordance with Section 13 below, Executive shall not be entitled to receive the payments and benefits under Section 5, above, except that Executive’s rights under COBRA will continue (but not, for purposes of clarity, the right to be reimbursed for COBRA premiums or receive any COBRA Substitute Payments (as defined in the Employment Agreement)).
(b) The Company’s obligation to reimburse premiums for insurance coverage under COBRA or otherwise will be extinguished as of the date Executive’s coverage begins under the group health plan of any new employer. If Executive violates the restrictions in Section 17, below, the Company’s obligation to pay premiums for insurance under COBRA or otherwise will be immediately extinguished, and the other remedies specified in Section 17, below, shall apply.
7. Acknowledgement of Total Compensation and Indebtedness. Executive acknowledges and agrees that the cash payments under Sections 4 and 5 of this Agreement extinguish any and all obligations for monies, or other compensation or benefits that Executive claims or could claim to have earned or claims or could claim is owed to him/her as a result of his/her employment by the Company and its Related Entities through the Termination Date, under the Employment Agreement or otherwise. Notwithstanding the foregoing, the parties acknowledge and agree that the provisions of this Section 7 shall not terminate any rights Executive has under Section 3 of this Agreement or to other payments Executive may have, and to any indemnification Executive may have under the Company’s Bylaws or separate indemnification agreement, as applicable.
8. Status of Related Agreements and Future Employment.
(a) Agreements Between Executive and the Company. [Agreements to be scheduled at time].
(b) Employment Agreement. The parties agree that the Employment Agreement shall be terminated as of the Termination Date. Notwithstanding the termination of the Employment Agreement, the parties hereto acknowledge that certain rights and obligations set forth in the Employment Agreement extend beyond the Termination Date. In the event that any provision of this Agreement conflicts with Section 6 of the Employment Agreement, the terms and provisions of the section(s) providing the greatest protection to the Company and its Related Entities shall control.
9. Release by Executive.
(a) Except for any obligations or covenants of the Company pursuant to this Agreement and as otherwise expressly provided in this Agreement, Executive, for himself/herself and his/her heirs, executors, administrators, assigns, successors and agents (collectively, the “Executive’s Affiliates”) hereby fully and without limitation releases and forever discharges the Company and its Related
Entities, and each of their respective agents, representatives, stockholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the “Company Releasees”), both individually and collectively, from any and all waivable rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which Executive or any of Executive’s Affiliates has or may have or may claim to have against the Company Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the Effective Date (“Claims”), arising out of, based upon, or relating to his/her employment or the termination of his/her employment with the Company and its Related Entities and/or his/her service as an officer of any of the Company Releasees, any agreement or compensation arrangement between Executive and any of the Company Releasees, to the maximum extent permitted by law.
(b) Executive specifically and expressly releases any Claims arising out of or based on: the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the National Labor Relations Act and the Equal Pay Act, as the same may be amended from time to time; the California common law on fraud, misrepresentation, negligence, defamation, infliction of emotional distress or other tort, breach of contract or covenant, violation of public policy or wrongful termination; state or federal wage and hour laws, and other provisions of the California Labor Code, to the extent these may be released herein as a matter of law; or any other state or federal law, rule, or regulation dealing with the employment relationship, except those claims which may not be released herein as a matter of law.
(c) Nothing contained in this Section 9 or any other provision of this Agreement shall release or waive any right that Executive has to indemnification and/or reimbursement of expenses by the Company and its Related Entities with respect to which Executive may be eligible as provided in California Labor Code section 2802, the Company’s and its Related Entities’ Certificates of Incorporation, Bylaws and any applicable directors and officers, errors & omissions, umbrella or general liability insurance policies, any indemnification agreements, including the Employment Agreement; or any other applicable source, nor prevent Executive from cooperating in an investigation of the Company by the Equal Employment Opportunity Commission (“EEOC”).
10. Waiver of Civil Code Section 1542.
(a) Executive understands and agrees that the release provided herein extends to all Claims released above whether known or unknown, suspected or unsuspected, which may be released as a matter of law. Executive expressly waives and relinquishes any and all rights he/she may have under 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.”
(b) Executive expressly waives and releases any rights and benefits which he/she has or may have under any similar law or rule of any other jurisdiction. It is the intention of each party through this Agreement to fully, finally and forever settle and release the Claims as set forth above. In furtherance of such intention, the release herein given shall be and remain in effect as a full and complete release of such matters notwithstanding the discovery of any additional Claims or facts relating thereto.
11. [If Executive is age 40 or over on Termination Date] Release of Federal Age Discrimination Claims by Executive. Executive hereby knowingly and voluntarily waives and releases all rights and claims, known or unknown, arising under the Age Discrimination In Employment Act of 1967, as amended, which he/she might otherwise have had against the Company or any of the Company Releasees regarding any actions which occurred prior to the date that Executive signed this Agreement, except that Executive is not prevented from cooperating in an investigation by the EEOC or from filing an EEOC charge other than for personal relief.
12. Release by Company and its Related Entities. The Company and its Related Entities hereby release and forever discharge Executive, from any and all waivable actions, causes of action, covenants, contracts, claims and demands of whatever character, nature and kind, whether known or unknown, which the Company and its Related Entities ever had, now have, or any of them hereafter can, shall or may have by reason of Executive’s employment and/or his/her service as a director and/or officer of the Company and/or its Related Entities; provided, however, that this general release shall not apply, or be deemed or construed to apply, to (a) any of Executive’s continuing obligations pursuant to this Agreement or the Employment Agreement, (b) criminal conduct or acts or omissions constituting willful misconduct or gross negligence by Executive during his/her employment with the Company, or (c) recoupment of all or a portion of any previously awarded bonus or equity award pursuant to the Company’s Recoupment (Clawback) Policy that was in effect when the bonus was paid or the equity award vested or was exercised by Executive, whichever was later.
13. [If Executive is age 40 or over on Termination Date] Review and Revocation Rights. Executive hereby is advised of the following:
(a) Executive has the right to consult with an attorney before signing this Agreement and is encouraged by the Company to do so;
(b) Executive has twenty-one (21) days from his/her receipt of this Agreement to consider it; and
(c) Executive has seven (7) days after signing this Agreement to revoke this Agreement, and this Agreement will not be effective until that revocation period has expired without revocation. Executive agrees that in order to exercise his/her right to revoke this Agreement within such seven (7) day period, he/she must do so in a signed writing delivered to the Company’s Board before the close of business on the seventh calendar day after he/she signs this Agreement.
14. Confidentiality of Agreement. After the execution of this Agreement by Executive, neither Executive, his/her attorney, nor any person acting by, through, under or in concert with them, shall disclose any of the terms of or amount paid under this Agreement (other than to state that the Company has filed this Agreement and/or agreements related thereto as public documents) or the negotiation thereof to any individual or entity; provided, however, that the foregoing shall not prevent such disclosures by Executive to his/her attorney, tax advisors and/or immediate family members, as may be required by law, or in connection with Protected Activity (as defined in the Employment Agreement).
15. No Filings. Executive represents that he/she has not filed any lawsuits, claims, charges or complaints, which are pending as of the date hereof, against the Company Releasees with any local, state or federal agency or court from the beginning of time to the date of execution of this Agreement, and that Executive is not aware of any facts that would support any Claims or any compliance-related or code of ethics violations of any kind whatsoever against the Company Releasees, including without limitation any claims for any work-related injuries. If Executive hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the Claims released in this Agreement,
or in any manner asserts against the Company Releasees any of the Claims released in this Agreement, then Executive agrees to pay to the Company Releasees against whom such Claim(s) is asserted, in addition to any other damages caused thereby, all attorneys’ fees incurred by the Company Releasees in defending or otherwise responding to the suit or Claim; provided, however, that this provision shall not obligate Executive to pay the Company Releasees’ attorneys’ fees in any action challenging the release of claims under the Older Workers Benefit Protection Act or the ADEA, unless otherwise allowed by law. If any governmental agency or court ever assumes jurisdiction over any such lawsuit, claim, charge or complaint and/or purports to bring any legal proceeding, in whole or in part, on behalf of Executive based upon events occurring prior to the execution of this Agreement, Executive will request such agency or court to withdraw from and/or to dismiss the lawsuit, claim, charge or complaint with prejudice.
16. Confidential and Proprietary Information. Executive acknowledges that certain information, observations and data obtained by him/her during the course of or related to his/her employment with the Company and its Related Entities (including, without limitation, projection programs, business plans, business matrix programs (i.e., measurement of business), strategic financial projections, certain financial information, shareholder information, technology and product design information, marketing plans or proposals, personnel information, customer lists and other customer information) are the sole property of the Company and its Related Entities and constitute Proprietary Information as defined in Section 6 of the Employment Agreement. Executive represents and warrants that he/she has returned all files, customer lists, financial information and other property of the Company and its Related Entities that were in Executive’s possession or control without retaining copies thereof (other than a copy of the Employee Handbook and personnel records relating to Executive’s employment). Executive further represents and warrants that he/she does not have in his/her possession or control any files, customer lists, financial information or other property of the Company and its Related Entities. In addition to his/her promises in Section 6 of the Employment Agreement, Executive agrees that he/she will not disclose to any person or use any such information, observations or data without the written consent of the Board. If Executive is served with a deposition subpoena or other legal process calling for the disclosure of such information, or if he/she is contacted by any third person requesting such information, he/she will notify the Board as soon as is reasonably practicable after receiving notice and will reasonably cooperate with the Company and its Related Entities in minimizing the disclosure thereof; provided, that nothing in this Agreement will (i) affect Executive’s obligations to testify truthfully in response to any subpoena or other legally required discovery proceeding or (ii) in any way limit or prohibit Executive from engaging in Protected Activity.
17. Prohibited Activities.
(a) Non-Solicitation of Customers and Other Business Partners. Executive recognizes that by virtue of his/her employment with the Company, he/she will be introduced to and involved in the solicitation and servicing of existing customers and other business partners of the Company and new customers and business partners obtained by the Company during his/her employment. Executive understands and agrees that all efforts expended in soliciting and servicing such customers and business partners shall be for the benefit of the Company. Executive further agrees that during his/her employment with the Company he/she will not engage in any conduct which could in any way jeopardize or disturb any of the customer and business partner relationships of the Company. In addition, to the extent permitted under applicable law, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information to, directly or indirectly, solicit, direct, interfere with, or entice away from the Company any existing customer, licensee, licensor, vendor, contractor or distributor of the Company or for the customer or other business partner to expand its business with a competitor, without the prior written consent of the Board.
(b) Non-Solicitation of Employees. Executive recognizes the substantial expenditure of time and effort which the Company devotes to the recruitment, hiring, orientation, training and retention of its employees. Accordingly, Executive agrees that, for a period beginning on the Effective Date and ending twelve (12) months after termination of Executive’s employment with the Company, regardless of the reason for such termination, Executive shall not use any Proprietary Information, directly or indirectly, for himself/herself or on behalf of any other person or entity, to solicit, offer employment to, hire or otherwise retain the services of any employee of the Company in a position classified as exempt from overtime pay requirements. For purposes of the foregoing, “employee of the Company” shall include any person who was an employee of the Company at any time within six (6) months prior to the prohibited conduct.
(c) Scope of Restrictions. Executive agrees that the restrictions in Sections 17 (a) and (b), above, are reasonable and necessary to protect the Company’s trade secrets and that they do not foreclose Executive from working in the medical device industry generally. To the extent that any of the provisions in this Section 17 are held to be overly broad or otherwise unenforceable at the time enforcement is sought, Executive agrees that the provision shall be reformed and enforced to the greatest extent permissible by law. Executive further agrees that if any portion of this Section 17 is held to be unenforceable, that the remaining provisions of it shall be enforced as written.
18. Remedies. Executive acknowledges that any misuse of Proprietary Information belonging to the Company and its Related Entities, or any violation of Section 6 of the Employment Agreement, and any violation of Sections 14, 16 and 17 of this Agreement, will result in irreparable harm to the Company and its Related Entities, and therefore, the Company and its Related Entities shall, in addition to any other remedies, be entitled to immediate injunctive relief. To the extent there is any conflict between Section 6 of the Employment Agreement and this Section 18, the provision providing the greatest protection to the Company and its Related Entities shall control. In addition, in the event of a breach of any provision of this Agreement by Executive, including Sections 14, 16 and 17, Executive shall forfeit, and the Company and its Related Entities may withhold payment of any unpaid portion of, the Severance Benefits or Enhanced Severance Benefits provided under Section 5, above.
19. Cooperation Clause.
(a) To facilitate the orderly conduct of the Company and its Related Entities’ businesses, for the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company and its Related Entities’ reasonable requests for information or assistance related to the time of his/her employment.
(b) For the twelve (12)-month period following the Effective Date, Executive agrees to cooperate, at no charge, with the Company’s and its Related Entities’ and its or their counsel’s reasonable requests for information or assistance related to (i) any investigations (including internal investigations) and audits of the Company’s and its Related Entities’ management’s current and past conduct and business and accounting practices and (ii) the Company’s and its Related Entities’ defense of, or other participation in, any administrative, judicial, or other proceeding arising from any charge, complaint or other action which has been or may be filed relating to the period during which Executive was employed by the Company and its Related Entities. The Company will promptly reimburse Executive for his/her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of his/her duties under this Section 19. Except as required by law or authorized in advance by the Board of Directors of the Company, Executive will not communicate, directly or indirectly, with any third party other than Executive’s legal counsel, including any person or representative of any group of people or entity who is suing or has indicated that a legal action against the Company and its Related Entities or any of their directors or officers is being contemplated, concerning the management or governance of the Company and
its Related Entities, the operations of the Company and its Related Entities, the legal positions taken by the Company and its Related Entities, or the financial status of the Company and its Related Entities. If asked about any such individuals or matters, Executive shall say: “I have no comment,” and shall direct the inquirer to the Company. Executive acknowledges that any violation of this Section 19 will result in irreparable harm to the Company and its Related Entities and will give rise to an immediate action by the Company and its Related Entities for injunctive relief.
20. No Future Employment. Executive understands that his/her employment with the Company and its Related Entities will irrevocably end as of the Termination Date and will not be resumed at any time in the future. Executive agrees that he/she will not apply for, seek or accept employment by the Company and its Related Entities at any time, unless invited to do so by the Company and its Related Entities.
21. Tax Issues. The parties agree that the payments and benefits provided under this Agreement, and all other contracts, arrangements or programs that apply to him/her, shall be subject to Section 16 of the Employment Agreement.
22. Non-disparagement. Executive agrees not to criticize, denigrate, or otherwise disparage the Company and its Related Entities, or any of their directors, officers, products, processes, experiments, policies, practices, standards of business conduct, or areas or techniques of research. The Company agrees not to authorize or condone denigrating or disparaging statements about Executive to any third party, including by press release or other formally released announcement. Factually accurate statements in legal or public filings shall not violate this provision. In addition, nothing in this Section 22 shall prohibit Executive or the Company or the Board, or any of their employees or members from complying with any lawful subpoena or court order or taking any other actions affirmatively authorized by law.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflict of laws.
24. Dispute Resolution. The parties hereby agree that all disputes, claims or controversies arising from or otherwise in connection with this Agreement (except for injunctive relief sought by either party) between them and between Executive and any of the Company’s affiliated entities and the successor of all such entities, and any director, stockholder or employee of the Company will be resolved in accordance with Section 13 of the Employment Agreement, except for its attorneys’ fee provision.
25. Attorneys’ Fees. Except as otherwise provided herein, in any action, litigation or proceeding between the parties arising out of or in relation to this Agreement, including any purported breach of this Agreement, the prevailing party shall be entitled to an award of its costs and expenses, including reasonable attorneys’ fees.
26. Non-Admission of Liability. The parties understand and agree that neither the payment of any sum of money nor the execution of this Agreement by the parties will constitute or be construed as an admission of any wrongdoing or liability whatsoever by any party.
27. Severability. If any one or more of the provisions contained herein (or parts thereof), or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity and enforceability of any such provision in every other respect and of the remaining provisions hereof will not be in any way impaired or affected, it being intended that all of the rights and privileges shall be enforceable to the fullest extent permitted by law.
28. Entire Agreement. This Agreement represents the sole and entire agreement among the parties and, except as expressly stated herein, supersedes all prior agreements, negotiations and discussions among the parties with respect to the subject matters contained herein.
29. Waiver. No waiver by any party hereto at any time of any breach of, or compliance with, any condition or provision of this Agreement to be performed by any other party hereto may be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at any prior or subsequent time.
30. Amendment. This Agreement may be modified or amended only if such modification or amendment is agreed to in writing and signed by duly authorized representatives of the parties hereto, which writing expressly states the intent of the parties to modify this Agreement.
31. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original as against any party that has signed it, but both of which together will constitute one and the same instrument.
32. Assignment. This Agreement inures to the benefit of and is binding upon the Company and its successors and assigns, but Executive’s rights under this Agreement are not assignable, except to his/her estate.
33. Notice. All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) if personally delivered or delivered by overnight courier; (b) if sent by electronic mail, telecopy or facsimile (except for legal process); or (c) if mailed by overnight or by first class, United States certified or registered mail, postage prepaid, return receipt requested, and properly addressed as follows:
|
If to the Company: |
Accuray Incorporated | |
|
|
|
1310 Chesapeake Terrace |
|
|
|
Sunnyvale, California 94089 |
|
|
|
Attn: Board of Directors |
|
|
|
c/o Corporate Secretary |
|
|
|
Fax No. (408) 789-4205 |
|
|
| |
|
If to Executive: |
|
Address: most recent on file with the Company |
|
|
|
Email: most recent on file with the Company |
Such addresses may be changed, from time to time, by means of a notice given in the manner provided above. Notice will conclusively be deemed to have been given when personally delivered (including, but not limited to, by messenger or courier); or if given by mail, on the third business day after being sent by first class, United States certified or registered mail; or if given by Federal Express or other similar overnight service, on the date of delivery; or if given by electronic mail, telecopy or facsimile machine during normal business hours on a business day, when confirmation of transmission is indicated by the sender’s machine; or if given by electronic mail, telecopy or facsimile machine at any time other than during normal business hours on a business day, the first business day following when confirmation of transmission is indicated by the sender’s machine. Unless otherwise agreed, notices, requests, demands and other communications delivered to legal counsel of any party hereto, whether or not such counsel shall consist of in-house or outside counsel, shall not constitute duly given notice to any party hereto.
34. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and fully understand all of its terms; that they have conferred with their attorneys, or have knowingly and voluntarily chosen not to confer with their attorneys about this Agreement; that they have executed this Agreement without coercion or duress of any kind; and that they understand any rights that they have or may have, and they are signing this Agreement with full knowledge of any such rights.
(b) Both parties have participated in the drafting of this Agreement with the assistance of counsel to the extent they desired. The language in all parts of this Agreement must be in all cases construed simply according to its fair meaning and not strictly for or against any party. Whenever the context requires, all words used in the singular must be construed to have been used in the plural, and vice versa, and each gender must include any other gender. The captions of the Sections of this Agreement are for convenience only and must not affect the construction or interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party hereto is both a covenant and condition, and is a material consideration for the other party’s performance hereunder, and any breach thereof by the party will be a material default hereunder. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement are cumulative and no one of them is exclusive of any other. Time is of the essence in the performance of this Agreement.
(d) Each party acknowledges that no representation, statement or promise made by any other party, or by the agent or attorney of any other party, except for those in this Agreement, has been relied on by him/her or it in entering into this Agreement.
(e) Unless expressly set forth otherwise, all references herein to a “day” are deemed to be a reference to a calendar day. All references to “business day” mean any day of the year other than a Saturday, Sunday or a public or bank holiday in Orange County, California. Unless expressly stated otherwise, cross-references herein refer to provisions within this Agreement and are not references to any other document.
(f) Each party to this Agreement will cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
EACH OF THE PARTIES ACKNOWLEDGES THAT HE/SHE/IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT, AND THAT IT INCLUDES A WAIVER OF THE RIGHT TO A TRIAL BY JURY, AND, WITH RESPECT TO EXECUTIVE, HE/SHE UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
(Signature page follows)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the dates written below.
|
EXECUTIVE: |
| |
|
|
|
|
|
|
Date: |
|
|
|
|
|
|
COMPANY: |
Accuray Incorporated | |
|
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
|
|
|
|
|
|
Date: |
|
Exhibit B
SECTION 7 OF THE DEFEND TRADE SECRETS ACT OF 2016
“ . . . An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. . . . An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual—(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”
Certification
I, Joshua H. Levine, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Accuray Incorporated, a Delaware corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects, the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: February 2, 2018 |
|
|
|
|
|
|
|
|
|
/s/ Joshua H. Levine |
|
|
|
Joshua H. Levine |
|
|
|
President and Chief Executive Officer |
|
|
|
(Principal Executive Officer) |
Certification
I, Kevin M. Waters, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Accuray Incorporated, a Delaware corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects, the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: February 2, 2018 |
|
|
|
|
|
|
|
|
|
/s/ Kevin M. Waters |
|
|
|
Kevin M. Waters |
|
|
|
Senior Vice President, Chief Financial Officer |
|
|
|
(Principal Financial Officer) |
Certification of Chief Executive Officer and Chief Financial Officer
Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officers of Accuray Incorporated, a Delaware corporation (the “Company”) hereby certify, to such officers’ knowledge, that:
(i) the accompanying Quarterly Report on Form 10-Q of the Company for the six months ended December 31, 2017 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
Date: February 2, 2018 |
|
|
|
/s/ Joshua H. Levine |
|
|
Joshua H. Levine |
|
|
President and Chief Executive Officer |
|
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
|
/s/ Kevin M. Waters |
|
|
Kevin M. Waters |
|
|
Senior Vice President, Chief Financial Officer |
|
|
(Principal Financial Officer) |