UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
(Mark One)
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x |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended June 30, 2012
or
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission file number 001-33301
ACCURAY INCORPORATED
(Exact name of registrant as specified in its charter)
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DELAWARE |
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20-8370041 |
1310 Chesapeake Terrace
Sunnyvale, California 94089
(Address of Principal Executive Offices) (Zip Code)
Registrants’ telephone number, including area code: (408)716-4600
Securities registered pursuant to section 12(b) of the Act:
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Title of Each Class |
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Name of Each Exchange on Which Registered |
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Common Stock, $.001 par value per share |
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The NASDAQ Stock Market LLC |
Securities registered pursuant to section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x
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 such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
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 if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o |
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Accelerated filer x |
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Non-accelerated filer o |
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Smaller reporting company o |
Indicate by check mark whether the registrant is a Shell Company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x
The aggregate market value of the registrant’s common stock held by non-affiliates of the registrant based on the last sale price for such stock on December 31, 2011, the last business day of the registrant’s most recently completed second fiscal quarter was: $176,019,053. Shares of the registrant’s common stock held by each executive officer, director and 5% stockholder have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
As of August 24, 2012, the number of outstanding shares of the registrant’s common stock, $0.001 par value, was 72,006,666.
DOCUMENTS INCORPORATED BY REFERENCE
None
EXPLANATORY NOTE
We are filing this Amendment No. 1 (the “Amendment”) to our Annual Report on Form 10-K for the year ended June 30, 2012, which we filed with the U.S. Securities and Exchange Commission (the “SEC”) on September 10, 2012 (the “Original Filing”) to re-file Exhibit 10.36 to (i) include a section of this exhibit for which we are no longer seeking confidential treatment from the SEC and (ii) include an additional schedule not previously filed with this exhibit. In addition, we are also renumbering in this Amendment the previously filed Exhibit 10.48 as Exhibit 4.4.
Pursuant to Rule 12b-15 of the Rules and Regulations under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), the Company has included with this Amendment currently dated certifications by the Company’s principal executive officer and principal financial officer, as required by Exchange Act Rules 13a-14(a) and (b). Except for Exhibit 10.36 submitted herewith, the renumbering of Exhibit 10.48 as Exhibit 4.4 and the currently dated certifications, this Amendment contains no other modifications and does not reflect events occurring after the filing of the Original Filing. Accordingly, this Amendment should be read in conjunction with the Original Filing and our other filings with the SEC.
PART IV
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) We have filed the following documents as part of this Form 10-K/A Amendment No. 1:
1. Exhibits
The following exhibits are incorporated by reference or filed herewith.
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Incorporated by Reference |
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Exhibit |
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Exhibit Description |
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Filer |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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Furnished |
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2.1 |
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Agreement and Plan of Merger of Accuray Incorporated, a Delaware Corporation, and Accuray Incorporated, a California Corporation, dated as of February 3, 2007. |
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ARAY |
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S-1/A |
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333-138622 |
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2.1 |
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02/07/2007 |
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2.2 |
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Agreement and Plan of Merger, dated March 6, 2011, among Registrant, Jaguar Acquisition, Inc. and TomoTherapy Incorporated. |
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ARAY |
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8-K |
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001-33301 |
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2.1 |
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03/07/2011 |
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3.1 |
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Amended and Restated Certificate of Incorporation of Registrant. |
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ARAY |
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10-Q |
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001-33301 |
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3.1 |
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11/08/2010 |
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3.2 |
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Amended and Restated Bylaws of Registrant. |
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ARAY |
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8-K |
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001-33301 |
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3.1 |
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08/29/2011 |
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4.2 |
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Investors’ Rights Agreement dated October 30, 2006 by and between Registrant and purchasers of Series A Preferred Stock, Series A1 Preferred Stock, Series B Preferred Stock and Series C Preferred Stock and certain holders of common stock. |
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ARAY |
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S-1 |
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333-138622 |
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4.2 |
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11/13/2006 |
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4.3 |
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Form of Common Stock Certificate. |
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ARAY |
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S-1/A |
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333-138622 |
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4.3 |
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02/05/2007 |
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4.4 |
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Indenture by and between Registrant and the Bank of New York Mellon Trust Company, N.A., dated as of August 1, 2011. |
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ARAY |
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10-Q |
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001-33301 |
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10.1 |
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11/08/2011 |
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Incorporated by Reference |
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Exhibit |
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Exhibit Description |
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Filer |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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Furnished |
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10.1 |
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Industrial Complex Lease dated July 14, 2003 by and between Registrant and MP Caribbean, Inc., as amended by the First Amendment to Industrial Complex Lease effective as of December 9, 2004 and the Second Amendment to Industrial Complex Lease effective as of September 25, 2006. |
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ARAY |
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S-1 |
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333-138622 |
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10.1 |
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11/13/2006 |
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10.1(a) |
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Third Amendment to Industrial Complex Lease dated January 16, 2007. |
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ARAY |
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10-K |
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001-33301 |
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10.1(a) |
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09/04/2007 |
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10.2 |
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Fourth Amendment to Industrial Complex Lease, dated September 18, 2007, by and between the Registrant and BRCP Caribbean Portfolio, LLC. |
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ARAY |
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10-Q |
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001-33301 |
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10.3 |
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02/04/2010 |
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10.3 |
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Fifth Amendment to Industrial Complex Lease, dated April 1, 2008, by and between the Registrant and BRCP Caribbean Portfolio, LLC. |
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ARAY |
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10-Q |
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001-33301 |
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10.4 |
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02/04/2010 |
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10.4 |
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Sixth Amendment to Industrial Complex Lease, dated December 18, 2009, by and between the Registrant and I & G Caribbean, Inc. |
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ARAY |
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10-Q |
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001-33301 |
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10.5 |
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02/04/2010 |
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10.5 |
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Standard Industrial Lease effective as of June 30, 2005 by and between Registrant and The Realty Associates Fund III, L.P. |
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ARAY |
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S-1 |
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333-138622 |
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10.2 |
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11/13/2006 |
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10.6* |
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Accuray Incorporated 1993 Stock Option Plan and forms of agreements relating thereto. |
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ARAY |
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S-1 |
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333-138622 |
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10.3 |
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11/13/2006 |
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10.7* |
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Accuray Incorporated 1998 Equity Incentive Plan and forms of agreements relating thereto. |
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ARAY |
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S-1 |
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333-138622 |
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10.4 |
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11/13/2006 |
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10.8* |
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Accuray Incorporated 2007 Incentive Award Plan. |
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ARAY |
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10-K |
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001-3330110.8 |
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10.8 |
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09/19/2011 |
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10.9* |
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Accuray Incorporated 2007 Employee Stock Purchase Plan and forms of agreements relating thereto. |
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ARAY |
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S-1/A |
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333-138622 |
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10.6 |
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01/16/2007 |
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10.10* |
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Form of Indemnification Agreement by and between Registrant and each of its directors and executive officers. |
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ARAY |
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10-Q |
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001-33301 |
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10.7 |
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05/10/2011 |
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10.11* |
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Amended and Restated Employment Terms Letter dated September 29, 2011 by and between Registrant and Euan S. Thomson, Ph.D. |
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ARAY |
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10-Q |
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001-33301 |
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10.4 |
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11/08/2011 |
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Incorporated by Reference |
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Exhibit |
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Exhibit Description |
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Filer |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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Furnished |
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10.12* |
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Amended and Restated Employment Terms Letter dated February 2, 2011 by and between Registrant and Chris A. Raanes. |
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ARAY |
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10-Q |
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001-33301 |
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10.2 |
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05/10/2011 |
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10.13* |
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Amendment to Employment Terms Letter Agreement by and between Registrant and Chris Raanes, effective July 25, 2011. |
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ARAY |
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10-Q |
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001-33301 |
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10.3 |
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11/08/2011 |
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10.14* |
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Employment Terms Letter dated January 7, 2011 by and between Registrant and Eric Pauwels. |
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ARAY |
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10-Q |
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001-33301 |
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10.6 |
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05/10/2011 |
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10.15* |
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Employment Letter Agreement by and between Registrant and Kelly Londy, dated September 13, 2011 |
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ARAY |
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S-1 |
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001-33301 |
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10.5 |
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11/08/2011 |
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10.16* |
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Amended and Restated Employment Terms Letter effective as of February 2, 2011 by and between Registrant and Theresa Dadone. |
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ARAY |
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10-Q |
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001-33301 |
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10.5 |
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05/10/2011 |
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10.17* |
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Amended and Restated Employment Terms Letter dated February 2, 2011 by and between Registrant and Derek Bertocci. |
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ARAY |
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10-Q |
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001-33301 |
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10.2 |
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05/10/2011 |
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10.18* |
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Amended and Restated Employment Letter Agreement dated February 2, 2011 by and between Registrant and Darren J. Milliken. |
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ARAY |
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10-Q |
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001-33301 |
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10.4 |
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05/10/2011 |
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10.19† |
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Nonexclusive End-User Software License Agreement dated September 9, 2005 by and between Registrant and The Regents of the University of California. |
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ARAY |
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S-1 |
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333-138622 |
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10.18 |
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11/13/2006 |
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10.20† |
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License Agreement effective as of July 9, 1997 by and between Registrant and The Board of Trustees of the Leland Stanford Junior University. |
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ARAY |
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S-1 |
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333-138622 |
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10.19 |
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11/13/2006 |
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10.21† |
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Non-Exclusive System Partner Agreement effective as of September 23, 2005 by and between Registrant and KUKA Robotics Corporation. |
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ARAY |
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S-1/A |
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333-138622 |
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10.21 |
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1/16/2007 |
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10.22† |
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Exclusive Manufacturing Agreement effective as of November 29, 2006 by and between the Registrant and Forte Automation Systems, Inc. |
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ARAY |
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S-1/A |
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333-138622 |
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10.46 |
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01/16/2007 |
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Incorporated by Reference |
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Exhibit |
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Exhibit Description |
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Filer |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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Furnished |
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10.23† |
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Patent and Trademark License Agreement effective as of November 29, 2006 by and between the Registrant and Forte Automation Systems, Inc. |
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ARAY |
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S-1/A |
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333-138622 |
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10.49 |
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01/23/2007 |
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10.24† |
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License and Development Agreement dated April 27, 2007 by and between the Registrant and CyberHeart, Inc. |
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ARAY |
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10-K |
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001-33301 |
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10.51 |
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08/31/2007 |
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10.25† |
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License Agreement dated December 10, 2010 by and between the Registrant and CyberHeart, Inc. |
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ARAY |
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10-Q |
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001-33301 |
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10.3 |
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01/27/2011 |
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10.26† |
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Patent License Agreement dated December 10, 2010 by and between the Registrant and CyberHeart, Inc. |
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ARAY |
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10-Q |
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001-33301 |
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10.4 |
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01/27/2011 |
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10.27* |
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Accuray Incorporated Performance Bonus Plan. |
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ARAY |
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10-Q |
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001-33301 |
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10.1 |
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02/08/2012 |
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10.28 |
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Lease Agreement, dated January 26, 2005, by and between TomoTherapy Incorporated and Old Sauk Trails Park Limited Partnership |
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TOMO |
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S-1 |
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333-140600 |
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10.13 |
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02/12/2007 |
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10.29 |
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Lease Agreement, dated October 28, 2005, between TomoTherapy Incorporated and Adelphia, LLC |
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TOMO |
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S-1 |
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333-140600 |
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10.14 |
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02/12/2007 |
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10.30 |
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TomoTherapy Incorporated 2000 Stock Option Plan, as amended, and forms of option agreements thereunder. |
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ARAY |
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S-8 |
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333-174952 |
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99.1 |
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06/17/2011 |
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10.31 |
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TomoTherapy Incorporated 2002 Stock Option Plan, as amended, and forms of option agreements thereunder. |
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ARAY |
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S-8 |
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333-174952 |
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99.2 |
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06/17/2011 |
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10.32 |
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TomoTherapy Incorporated 2007 Equity Incentive Plan, as amended, and forms of option agreements thereunder. |
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ARAY |
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S-8 |
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333-174952 |
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99.3 |
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06/17/2011 |
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10.33 |
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Stock Purchase Agreement, dated April 25, 2008, between Compact Particle Acceleration Corporation and its investors |
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TOMO |
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8-K |
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001-33452 |
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10.1 |
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04/28/2008 |
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10.34‡ |
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Preferred Stock and Warrant Purchase Agreement, dated April 20, 2012 for Compact Particle Acceleration Corporation and its investors |
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09/10/2012 |
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10.35 |
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Series B Common Stock Purchase Agreement dated April 20, 2012 between the Registrant and Compact Particle Acceleration Corporation |
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09/10/2012 |
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Incorporated by Reference |
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Exhibit |
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Exhibit Description |
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Filer |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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Furnished |
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10.36‡ |
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Second Amended and Restated Shareholder Agreement, dated April 20, 2012, between Compact Particle Acceleration Corporation and its investors |
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10.37‡ |
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Amended and Restated Investors’ Rights Agreement, dated April 20, 2012, between Compact Particle Acceleration Corporation and its investors |
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09/10/2012 |
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10.38‡ |
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Amended and Restated Limited Exclusive Sublicense and Cross-License Agreement for Dielectric Wall Accelerator Technology, dated April 20, 2012, between TomoTherapy Incorporated and Compact Particle Acceleration Corporation |
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09/10/2012 |
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10.39 |
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Development and OEM Supply Agreement, dated January 27, 2003, by and between TomoTherapy Incorporated and Analogic Corporation |
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TOMO |
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S-1/A |
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333-140600 |
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10.11 |
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04/16/2007 |
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10.40 |
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License Agreement 98-0228, dated February 22, 1999, between TomoTherapy Incorporated and Wisconsin Alumni Research Foundation |
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TOMO |
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S-1/A |
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333-140600 |
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10.4 |
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04/19/2007 |
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10.41 |
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Amendment to License Agreement 90-0228, dated April 16, 2007, between TomoTherapy Incorporated and Wisconsin Alumni Research Foundation |
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TOMO |
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S-1 |
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333-146219 |
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10.31 |
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09/21/2007 |
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10.42 |
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Amendment to License Agreement 90-0228, dated December 16, 2008, between TomoTherapy Incorporated and Wisconsin Alumni Research Foundation |
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TOMO |
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8-K |
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001-33452 |
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10.2 |
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12/30/2008 |
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10.43 |
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Limited Exclusive License Agreement, dated February 23, 2007, between TomoTherapy Incorporated and Regents of the University of California |
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TOMO |
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8-K |
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001-33452 |
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10.4 |
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04/28/2008 |
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10.44 |
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Amendment One to Limited Exclusive License Agreement, dated April 8, 2008, between TomoTherapy Incorporated and Lawrence Livermore National Security, LLC |
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TOMO |
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8-K |
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001-33452 |
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10.5 |
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04/28/2008 |
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10.45† |
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Long-term Purchase Agreement, dated December 22, 2008, among TomoTherapy Incorporated, e2v, Inc. and e2v Technologies (UK) Limited |
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TOMO |
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8-K |
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001-33452 |
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10.1 |
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12/30/2008 |
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Incorporated by Reference |
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| ||||||||
|
Exhibit |
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Exhibit Description |
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Filer |
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Form |
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File No. |
|
Exhibit |
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Filing Date |
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Furnished |
|
10.46† |
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Magnetron Subscription Agreement, dated April 24, 2009 and effective May 1, 2009, between TomoTherapy Incorporated and e2v, Inc. and e2v Technologies (UK) Limited |
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TOMO |
|
8-K/A |
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001-33452 |
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10.1 |
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10/28/2009 |
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10.47 |
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Amendment to Lease, dated April 12, 2011, between Registrant and OAW Orleans 1310, LLC, as successor to The Realty Associates Fund III, L.P. |
|
ARAY |
|
10-K |
|
001-33301 |
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10.54 |
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09/19/2012 |
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21.1 |
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List of subsidiaries. |
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09/10/2012 |
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23.1 |
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Consent of Grant Thornton LLP, independent registered public accounting firm. |
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09/10/2012 |
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24.1 |
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Power of Attorney (incorporated by reference to the signature page of this annual report on Form 10-K). |
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09/10/2012 |
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31.1 |
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Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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X |
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31.2 |
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Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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X |
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32.1 |
|
Certification of Chief Executive Officer and Chief Financial Officer Pursuant to Section 906 of the Sarbanes- Oxley Act of 2002. |
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|
09/10/2012 |
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99.1* |
|
Form of Performance Stock Unit Grant Notice and Performance Stock Unit Agreement |
|
ARAY |
|
10-Q |
|
001-33301 |
|
99.1 |
|
02/08/2012 |
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|
99.2* |
|
Form of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement |
|
ARAY |
|
8-K |
|
001-33301 |
|
99.2 |
|
11/23/2011 |
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99.3* |
|
Form of Stock Option Grant Notice and Stock Option Agreement |
|
ARAY |
|
8-K |
|
001-33301 |
|
99.3 |
|
11/23/2011 |
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|
101.INS** |
|
XBRL Instance Document |
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|
09/10/2012 |
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|
101.SCH** |
|
XBRL Taxonomy Extension Schema Document |
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|
09/10/2012 |
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|
101.CAL** |
|
XBRL Taxonomy Extension Calculation Linkbase Document |
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|
09/10/2012 |
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|
101.DEF** |
|
XBRL Taxonomy Extension Definition Linkbase Document |
|
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|
09/10/2012 |
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|
101.LAB** |
|
XBRL Taxonomy Extension Label Linkbase Document |
|
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|
09/10/2012 |
|
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|
101.PRE** |
|
XBRL Taxonomy Extension Presentation Linkbase Document |
|
|
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|
|
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|
09/10/2012 |
|
|
* Management contract or compensatory plan or arrangement.
† Portions of the exhibit have been omitted pursuant to a request for confidential treatment, which has been granted. The omitted information has been filed separately with the Securities and Exchange Commission.
‡ 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.
** XBRL (eXtensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus for purposes of sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Securities Exchange Act of 1934, and otherwise is not subject to liability under these sections.
The certification attached as Exhibit 32.1 that accompanies the Annual Report on Form 10-K 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 of 1933 or the Securities Exchange Act of 1934, whether made before or after the date of the Annual Report on Form 10-K, irrespective of any general incorporation language contained in such filing.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on the 21st day of March, 2013.
|
|
ACCURAY INCORPORATED | |
|
|
| |
|
|
| |
|
|
By: |
/s/ Joshua Levine |
|
|
|
Joshua Levine |
|
|
|
President and Chief Executive Officer |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Derek Bertocci |
|
|
|
Derek Bertocci |
|
|
|
Senior Vice President and Chief Financial Officer |