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EX-31.2 - EX-31.2 - TomoTherapy Inc | c64131exv31w2.htm |
EX-31.1 - EX-31.1 - TomoTherapy Inc | c64131exv31w1.htm |
EX-32.2 - EX-32.2 - TomoTherapy Inc | c64131exv32w2.htm |
EX-32.1 - EX-32.1 - TomoTherapy Inc | c64131exv32w1.htm |
Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
(Amendment No. 1)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2010
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: 001-33452
TomoTherapy Incorporated
(Exact name of Registrant as specified in its charter)
Wisconsin (State or Other Jurisdiction of Incorporation or Organization) |
39-1914727 (I.R.S. Employer Identification No.) |
|
1240 Deming Way, Madison, Wisconsin (Address of principal executive offices) |
53717 (Zip Code) |
(608) 824-2800
(Registrants telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class | Name of Each Exchange on Which Registered | |
Common Stock | NASDAQ Global Select Market |
Securities registered pursuant to section 12(g) of the Act:
None
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 þ
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 þ
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 þ 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 o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§
229.405 of this chapter) is not contained herein, and will not be contained, to the best of
registrants knowledge, in definitive proxy or information statements incorporated by reference in
Part III of this Form 10-K/A or any amendment to this Form 10-K/A. 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 the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Act). Yes o No þ
The aggregate market value of TomoTherapy common stock held by non-affiliates of TomoTherapy, based
upon the closing price of a share of the registrants common stock on June 30, 2010 as reported by
the NASDAQ Global Select Market on that date, was $155,562,706. The number of shares of TomoTherapy
common stock outstanding as of March 31, 2011 was 56,186,266.
Table of Contents
EXPLANATORY NOTE
TomoTherapy Incorporated (the Company, we, us or our) is filing this Amendment No. 1
on Form 10-K/A (the Form 10-K/A) to amend its Annual Report on Form 10-K for the year ended
December 31, 2010 (the Form 10-K), originally filed with the Securities and Exchange Commission
(the SEC) on March 3, 2011. This Form 10-K/A is being filed to provide the information required
by Items 10 through 14 of Part III of Form 10-K, which information was previously omitted from the
original Form 10-K in reliance on General Instruction G(3) to Form 10-K. Because we do not expect
to file our definitive proxy statement within 120 days after our fiscal year end, we are filing
this Form 10-K/A to include the Part III information in our Form 10-K. The reference on the cover
of our original Form 10-K to the incorporation by reference to portions of our definitive proxy
statement into Part III of our original Form 10-K is hereby deleted. In accordance with Rule
12b-15 under the Securities Exchange Act of 1934, as amended (the Exchange Act), Part III, Items
10 through 14 of the original Form 10-K are hereby amended and restated in their entirety, and Part
IV, Item 15 of the original Form 10-K is hereby amended. This 10-K/A
does not amend or otherwise update any other information in the original Form 10-K. This Form
10-K/A should be read in conjunction with our original Form 10-K. This Form 10-K/A has not been
updated to reflect events that occurred after the date of the original Form 10-K.
Updated certifications of our principal executive officer and principal financial officer are
included as exhibits to this
Form 10-K/A.
Table of Contents
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Executive Officers of the Registrant
The following table sets forth the names, ages and positions held by our executive officers as
of March 31, 2011.
Name | Age | Position | ||||
Frederick A. Robertson
|
55 | Chief Executive Officer, President and Director | ||||
Thomas E. Powell
|
49 | Chief Financial Officer and Treasurer | ||||
Thomas Rockwell Mackie
|
56 | Chairman of the Board of Directors and Co-Founder | ||||
Brenda S. Furlow
|
52 | Vice President, General Counsel and Corporate Secretary | ||||
Eric A. Schloesser
|
38 | Vice President, Operations and Business Development | ||||
Rafael L. Vaello
|
47 | Chief Commercial Officer |
Frederick A. Robertson, M.D. has served as our Chief Executive Officer and a director
since January 2005. Prior to joining TomoTherapy, from 2000 through 2004, Dr. Robertson served as
an Assistant Professor of Anesthesiology at the Medical College of Wisconsin. From 1998 to 2000,
Dr. Robertson served as President and Chief Executive Officer of GE Marquette Medical Systems, and
later as Chief Clinical Officer of GE Medical Systems. Dr. Robertson previously held management
positions with Marquette Medical Systems, including President and Chief Executive Officer,
President-Patient Monitoring Division and Medical Director. Dr. Robertson also serves as a
director of Access Genetics, LLC, a molecular diagnostics company. Dr. Robertson has an M.B.A.
from San Diego State University and an M.D. from the University of Wisconsin Medical School.
Thomas E. Powell joined TomoTherapy as our Chief Financial Officer and Treasurer in June
2009. Prior to joining us, Mr. Powell served in 2008 as Chief Financial Officer of Textura
Corporation, a web-based software company. From 2001 to 2008, Mr. Powell served as the Executive
Vice President, Treasurer and Chief Financial Officer of Midway Games, Inc., a gaming software
development company. Prior to joining Midway Games, Mr. Powell served in a variety of roles with
Dade Behring Holdings (now Siemens Healthcare Diagnostics), including: Vice President, Acquisitions
and Strategic Planning; Vice President, Finance, for the Biology Products Division; and director of
Corporate Financial Planning. Previously, he held financial positions at PepsiCo, Inc., Bain and
Company, Inc., and Tenneco Corporation. Mr. Powell began his career as an auditor with Arthur
Andersen & Co. Mr. Powell earned a Bachelors degree in accounting from Pennsylvania State
University and a CPA license before graduating with an MBA from the University of Chicago.
Thomas Rockwell Mackie, Ph.D. co-founded our company in 1997 and has served as Chairman
of our Board of Directors since December 1999. Dr. Mackie also served as President of TomoTherapy
from 1997 until 1999 and as Treasurer from 1997 until 2000. Since 1987, Dr. Mackie has been a
professor in the departments of Medical Physics and Human Oncology at the University of Wisconsin,
where he established the TomoTherapy research program. He is currently also the Director of
Medical Devices at the Morgridge Institute for Research. Dr. Mackie also co-founded Geometrics
Corporation (now part of Philips Medical), which developed a radiotherapy treatment planning
system. Dr. Mackie currently serves as President of the Medical Physics Foundation and as a member
on the boards of Cellectar Inc., a drug development company, Bioionix Inc., a water treatment
company, SHINE Medical Technologies, a developer of radiation isotope production facilities, and
the University of Wisconsin-Madison Calibration Laboratory. Dr. Mackie has a B.Sc. in Physics from
the University of Saskatchewan and a Ph.D. in Physics from the University of Alberta, Canada.
Brenda S. Furlow, J.D., currently serves as Vice President, General Counsel and Corporate
Secretary, a role she assumed in August 2008, after serving as Associate General Counsel since May
2007. For the nine years before joining TomoTherapy, Ms. Furlow was Vice President, General
Counsel and Corporate Secretary for Promega Corporation, a life science research products company.
From 1993 to 1998, Ms. Furlow served as Assistant General Counsel and acting General Counsel at the
Credit Union National Association, a national trade association for credit unions. Ms. Furlow was
an associate at the law firm of Sonnenschein Nath and Rosenthal from 1988 to 1993. Ms. Furlow
earned a law degree with honors from the University of Chicago Law School. Ms. Furlow is a member
of the state bars in Illinois and Wisconsin.
Eric A. Schloesser is our Vice President of Operations and Business Development, and has
held the role since October 2009. Mr. Schloesser joined the University of Wisconsin TomoTherapy
research group in 1996, becoming one of our first employees when the company was formed in 1997.
Holding a Bachelor of Science degree in Electrical Engineering from the University of Wisconsin,
Mr. Schloesser served as a Software/Electrical Engineer, Hardware Program Manager, System
Engineering Manager and Director of Product Development. Before assuming his current role, Mr.
Schloesser served as Vice
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President of Business Development from March 2008 to October 2009, and
Vice President of Product Development from 2005 to 2008.
Rafael L. Vaello currently serves as our Chief Commercial Officer, a role he assumed in
October 2009 after joining our company as Vice President of Global Sales in December 2008. Mr.
Vaello joined us with more than 15 years of experience in the oncology and imaging industries.
Prior to joining us, Mr. Vaello spent seven years leading the sales and field marketing group for
Philips Healthcares Oncology Imaging division. Mr. Vaello also previously served as Director,
Global Sales Manager, for Marconi Medical Systems Oncology division. Prior to that, he held
various imaging and oncology sales positions for Picker International.
Directors of the Registrant
The following table sets forth the names, ages and positions held by our ten current directors
as of March 31, 2011, followed by a brief biography of each individual, including the business
experience of each individual during the past five years and the specific qualifications that led
to the conclusion that each individual should serve as a director.
Name | Age | Initial Year of Service as Director | ||||||
Lance C. Balk
|
53 | 2010 | ||||||
Sam R. Leno
|
65 | 2006 | ||||||
Thomas Rockwell Mackie
|
56 | 1997 | ||||||
H. Jonathan McCloskey
|
42 | 2009 | ||||||
John J. McDonough
|
74 | 2004 | ||||||
Cary J. Nolan
|
68 | 2001 | ||||||
Carlos A. Perez
|
76 | 2005 | ||||||
Frederick A. Robertson
|
55 | 2005 | ||||||
Roy T. Tanaka
|
63 | 2008 | ||||||
Frances S. Taylor
|
64 | 2006 |
Lance C. Balk has served as General Counsel of Six Flags Entertainment since September 2010.
Prior to that, he served as Senior Vice President and General Counsel of Siemens Healthcare
Diagnostics from November 2007 to January 2010, Vice President and General Counsel of Dade Behring,
which was acquired by Siemens Healthcare Diagnostics, from May 2006 to November 2007, and as a
partner of Kirkland & Ellis LLP from 1989 to May 2006. He also serves as a member of the board of
directors of Belden Inc., a NYSE listed manufacturer of cables and connectivity products. Mr. Balk
brings significant legal and healthcare business experience to the Board, having served as senior
vice president and general counsel for Siemens Healthcare Diagnostics.
Sam R. Leno has served as Chief Operations Officer of Boston Scientific Corporation, a medical
device company that markets and sells medical devices for cardiovascular and other medical
conditions, since March 1, 2010. Prior to that date, he was Chief Financial Officer and Executive
Vice President of Finance and Information Systems at Boston Scientific from June 2007 through
February 2010. From 2001 to May 2007, Mr. Leno served as Executive Vice President, Finance and
Corporate Services and Chief Financial Officer for Zimmer Holdings, Inc., a medical device company
that markets and sells trauma, dental implant and orthopaedic surgical products. Mr. Leno brings
significant financial and accounting experience to our Board. From his background at both Boston
Scientific and Zimmer, Mr. Leno also brings strong executive management and business experience in
the medical device field and in publicly-traded companies.
Thomas Rockwell Mackie, Ph.D. co-founded our company in 1997 and has served as Chairman of our
Board of Directors since December 1999. Dr. Mackie also served as President of TomoTherapy from
1997 until 1999 and as Treasurer from 1997 until 2000. Since 1987, Dr. Mackie has been a professor
in the departments of Medical Physics and Human Oncology at the University of Wisconsin, where he
established the TomoTherapy research program. He is currently also the Director of Medical Devices
at the Morgridge Institute for Research. Dr. Mackie also co-founded Geometrics Corporation (now
merged with ADAC Corp. and now part of Philips Medical), which developed a radiotherapy treatment
planning system. Dr. Mackie currently serves as President of the Medical Physics Foundation and as
a member on the boards of Cellectar Inc., a drug development company, Bioionix Inc., a water
treatment company, SHINE Medical Technologies, a developer of radiation isotope production
facilities, and the University of Wisconsin-Madison Calibration Laboratory. Dr. Mackie has a B.Sc.
in Physics from the University of Saskatchewan and a Ph.D. in Physics from the University of
Alberta, Canada. As a respected medical physicist who continues scientific research activities,
Dr. Mackie has extensive knowledge of our technology and the science supporting it, as well as a
strong understanding of our customers and their needs. He also brings to the Board extensive
business experience as an entrepreneur and advisor to Madison businesses. As a founder of our
company, Dr. Mackie brings to the Board deep knowledge of the Company and a broad understanding of
the business environment.
H. Jonathan McCloskey is Vice President of Investments of Parkwood Corporation, an investment
company that invests in private and public companies. From December 2003 through February 2010,
Mr. McCloskey was Portfolio Manager of
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Avalon Capital Group, a private investment company that had
been an early investor in the Company. Prior to that time, he was Vice President of Investment
Banking for First Albany Corporation, a New York-based investment banking firm, from August 1996 to
December 2003. Mr. McCloskey brings strong financial and investment background and experience to
the
Board. With his past experience as portfolio manager for one of our early investors, he also
contributes a unique shareholder perspective.
John J. McDonough is Co-founder and Chairman of McDonough Medical Products Corporation, a
manufacturer and distributor of medical imaging components and dental x-ray systems located in
Lincolnshire, Illinois, having held that position since 2001. Mr. McDonough is also director of
four healthcare non-profit organizations, holding the chair position at two of the organizations.
Mr. McDonough contributes extensive executive management, business and financial expertise to the
Board. His extensive expertise and background in the medical products industry is also valuable.
Cary J. Nolan is President and CEO of Riverstone International, a business consulting firm.
From 1989 to 1999, Mr. Nolan was President and Chief Executive Officer of Picker International, a
diagnostic imaging company. He also was director of Premier Farnell plc, a distribution company in
London, United Kingdom, and of Toshiba America Medical Corporation, from 1999 to 2008. Mr. Nolan
contributes to the Board broad expertise in director and executive and operational management roles
in medical device products companies, both in the United States and globally. His experience as a
director of international companies also provides the Board with an important international
perspective.
Carlos A. Perez, M.D. has been Professor Emeritus in the Department of Radiation Oncology at
Mallinckrodt Institute of Radiology, Siteman Cancer Center, Washington University Medical Center
since September 2004. Prior to that time, Dr. Perez was Director and Chair of the Department of
Radiation Oncology at Washington University from July 1976 through September 2004. He served as
President of the American Society of Therapeutic Radiation during the 1982 calendar year. As a
member of a respected medical provider, an internationally-recognized leader in the global
radiation therapy field and a user of our products, Dr. Perez contributes to the Board a unique and
global customer perspective, as well as medical insight into the benefits and challenges of cancer
therapies.
Frederick A. Robertson, M.D. has served as our Chief Executive Officer and a director since
January 2005. Prior to joining TomoTherapy, from 2000 through 2004, Dr. Robertson served as an
Assistant Professor of Anesthesiology at the Medical College of Wisconsin. From 1998 to 2000, Dr.
Robertson served as President and Chief Executive Officer of GE Marquette Medical Systems, and
later as Chief Clinical Officer of GE Medical Systems. Dr. Robertson previously held management
positions with Marquette Medical Systems, including President and Chief Executive Officer,
President-Patient Monitoring Division and Medical Director. He also serves as a director of Access
Genetics, LLC, a molecular diagnostics company. Dr. Robertson has an M.B.A. from San Diego State
University and an M.D. from the University of Wisconsin Medical School. With a medical background
and extensive executive and operational management experience in our company as well as other
medical device companies, Dr. Robertson contributes to the Board a critical customer and leadership
perspective. His broad and deep understanding of our company is also a critical contribution to
the Board.
Roy T. Tanaka served as Worldwide President of Biosense Webster, a Johnson & Johnson company
that manufactures electrophysiology equipment, from March 2004 until his retirement in September
2008. Prior to that date, Mr. Tanaka was President of Biosense Webster from February 1997 through
March 2004. He also serves as director of Volcano Corporation and VytronUS, and was appointed to
serve as a director of Advanced Cardiac Therapeutics, Inc. effective April 11, 2011. Mr. Tanaka
brings to the Board broad experience in executive leadership in the medical device field. His
operational expertise and knowledge of the regulatory environment, both in the United States and
globally, also bring a valuable perspective to the Board.
Frances S. Taylor was Interim Director and General Manager of Builders World, Inc., a
distributor of building materials in Waukesha, Wisconsin, from December 2005 to July 2007. From
1977 until her retirement in 1998, Ms. Taylor was Executive Vice President of Bank of America and
CEO of BA Asia, Ltd., among other leadership positions at Bank of America. She has served as a
director of Oak Financial since May 2005 and director of Oak Bank since February 2005. She is also
a director of three non-profit organizations. Ms. Taylor brings to the Board extensive financial
and banking experience both in the United States and internationally. She also contributes to the
Board through her current directorships in both non-profit and other for-profit enterprises, and
her past experience as an executive in a publicly-traded company.
Committees of the Board of Directors
There are three standing committees of the Board of Directors: the Audit Committee, the
Compensation Committee and the Nominating and Governance Committee.
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Audit Committee
The members of the Companys Audit Committee for the year ended December 31, 2010 were John J.
McDonough, Sam R. Leno and H. Jonathan McCloskey. Effective May 5, 2010, Lance C. Balk joined the
Board and was appointed to the Audit Committee as well. Mr. McDonough chairs the Audit Committee
and has been determined by the Board of Directors to be an audit committee financial expert (as
defined under SEC rules implementing Section 407 of the Sarbanes-Oxley Act of 2002),
as has Sam R. Leno. The Company believes that the composition of the Companys Audit
Committee meets the requirements for independence under the current NASDAQ Global Select Market and
SEC rules and regulations, as Messrs. McDonough, Leno, McCloskey and Balk are independent directors
for such purposes.
Compensation Committee
The members of the Companys Compensation Committee for the year ended December 31, 2010 were
Frances S. Taylor, Cary J. Nolan and Roy T. Tanaka. Ms. Taylor chairs the Compensation Committee.
The Company believes that the composition of the Compensation Committee meets the requirements for
independence under the current NASDAQ Global Select Market and SEC rules and regulations, as Ms.
Taylor and Messrs. Nolan and Tanaka are independent directors for such purposes.
Nominating and Governance Committee
The members of the Companys Nominating and Governance Committee for the year ended December
31, 2010 were Cary J. Nolan, Carlos A. Perez and Frances S. Taylor. Mr. Nolan chairs the
Nominating and Governance Committee. The Company believes that the composition of the Nominating
and Governance Committee meets the requirements under the current NASDAQ Global Select Market
rules, as Ms. Taylor, Mr. Nolan and Dr. Perez are independent for such purposes.
Nomination of Directors
There have been no material changes to the procedures by which shareholders may recommend
nominees to our Board of Directors implemented since the filing of our Proxy Statement for our 2010
Annual Meeting of Shareholders.
Section 16(a) Beneficial Ownership Reporting Compliance
Under U.S. securities laws, directors, certain executive officers and persons holding more
than 10% of the Companys common stock must report their initial ownership of the common stock and
any changes in that ownership to the SEC. The SEC has designated specific due dates for these
reports and the Company must identify in this Form 10-K/A those persons who did not file these
reports when due. Based solely on the Companys review of copies of the reports filed with the SEC
and written representations of the Companys directors and executive officers, all directors timely
filed their reports. However, Ms. Furlow and Messrs. Robertson, Powell, Schloesser and Vaello each
had one late filing in connection with a restricted stock lapse, and Mr. Schloesser had another
late filing due to an error in the filing procedure.
Code of Ethics
We have adopted a Comprehensive Compliance Program that applies to all of our executive
officers and directors. The Comprehensive Compliance Program is posted on our website. The
Internet address for our website is http://www.tomotherapy.com and the Comprehensive Compliance
Program may be found as follows:
1. From our main web page, first click on Investor Relations.
2. Next, click on Corporate Governance in the top navigation bar.
3. Finally, click on Comprehensive Compliance Program under Governance Documents.
Copies of our Comprehensive Compliance Program may also be obtained without charge by sending
a written request to our Corporate Secretary at our executive offices.
Item 11. Executive Compensation
Compensation Discussion and Analysis
The purpose of this section is to provide the Companys shareholders with material information
regarding the Companys compensation program and policies for the executive officers named in the
Summary Compensation Table below. For fiscal year 2010, these individuals are Frederick A.
Robertson, M.D., Chief Executive Officer and President, Thomas E. Powell,
4
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Chief Financial Officer
and Treasurer, Rafael L. Vaello, Chief Commercial Officer, Eric A. Schloesser, Vice President,
Operations and Business Development, and Brenda S. Furlow, Vice President, General Counsel and
Corporate Secretary. These individuals are collectively referred to as our named executive
officers.
The Role of the Compensation Committee
The Compensation Committee oversees the Companys executive compensation program and is
composed entirely of independent directors. The Committee has overall responsibility for
establishing, implementing and monitoring the Companys compensation plans and programs, including
the Companys compensation philosophy. The Committee also reviews and approves annually all
compensation decisions affecting our named executive officers, taking into consideration the
recommendations of Dr. Robertson for all named executive officers other than himself. In carrying
out its duties, the Committee also evaluates whether or not our compensation programs and policies
increase risk to the Company or are reasonably likely to have a material adverse effect on the
Companys business.
Compensation Philosophy
Our business and growth strategies require an executive compensation program that reinforces
the importance of performance and accountability both at the individual and at the corporate
level. Our program is designed to provide executives with rewards that are market competitive
while maintaining alignment with shareholder interests, affordability, corporate values and
important management initiatives. The primary objectives of the Companys compensation program
are:
| to attract, motivate and retain highly experienced executives who are vital to our short- and long-term success, profitability and growth; and | ||
| to create alignment with executives and shareholders by rewarding executives for the achievement of strategic goals that successfully drive our performance, and thereby enhance shareholder value. |
Determining Executive Compensation
The Compensation Committee engaged Aon Hewitt Consulting (Aon Hewitt), a global human
resources consulting firm, to provide advice with respect to the 2010 compensation of named
executive officers and all other officers, including base salaries, incentive pay and equity
compensation.
In 2009, with recommendations from Aon Hewitt, the Compensation Committee adopted a peer group
based on a group of industry companies defined using the GICS code classification for health care
equipment and services, where TomoTherapy revenues fell at approximately the 50th
percentile. This peer group methodology was adopted based on the rationale that it was: a) less
subjective and volatile than choosing a tailored peer group; b) more representative of
TomoTherapys growth profile than the recent-IPO company profile previously used to determine the
peer group, and c) would provide more and better data matches for
individual positions. The resulting 2009 peer group, using the new GICS code methodology,
consisted of 65 companies. In 2010, the same GICS code methodology was used to determine the peer
group, but the original 65 companies decreased to 57 companies due to acquisition and merger
activity. In 2010, TomoTherapy revenues ranged between the 25th and 50th
percentile of the peer group. The 57 companies in the 2010 peer group were:
Abaxis Inc
|
Immucor Inc | |
Accuray Inc
|
Integra Lifescienses Holdings | |
Align Technology Inc
|
Intuitive Surgical Inc | |
American Medical Systems
|
Invacare Corp | |
Analogic Corp
|
Inverness Medical Innovations | |
Angiodynamics Inc
|
Kinetic Concepts Inc | |
Arthrocare Corp
|
Masimo Corp | |
C.R. Bard Inc
|
Medical Action Industries | |
Cantel Medical Corp
|
Meridian Bioscience Inc | |
Cardiac Science Corp
|
Merit Medical Systems Inc | |
Conmed Corp
|
Natus Medical Inc | |
Cooper Companies Inc
|
Neogen Corp | |
Cutera Inc
|
Nuvasive Inc | |
Cyberonics Inc
|
Orthofix International Nv | |
Cynosure Inc
|
Osteotech Inc | |
Del Global Technologies Corp
|
Palomar Med Technologies Inc | |
Dentsply International Inc
|
Quidel Corp | |
Edwards Lifesciences Corp
|
Resmed Inc | |
Ev3 Inc
|
Sirona Dental Systems Inc | |
Exactech Inc
|
Sonosite Inc | |
Gen-Probe Inc
|
Steris Corp | |
Greatbatch Inc
|
Symmetry Medical Inc | |
Haemonetics Corp
|
Thoratec Corp | |
Healthtronics Inc
|
Varian Medical Systems Inc | |
Hill-Rom Holdings Inc
|
Volcano Corp | |
Hologic Inc
|
West Pharmaceutical Services Inc | |
Home Diagnostics Inc
|
Wright Medical Group Inc | |
Icu Medical Inc
|
Zoll Medical Corp | |
Idexx Labs Inc |
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Additionally in 2010, the Compensation Committee utilized survey data from the Radford
Executive survey report as a supplement to proxy data from the peer group. Radfords market data,
comprised of both public and private companies, was size-adjusted based on revenue. Radford data
was considered for executive positions where there was limited or no comparable proxy data
available.
The Companys Compensation Committee reviews the compensation of our named executive officers
on an annual basis and makes salary adjustments, if any, typically effective April 1 of each year.
Target bonus percentages are reviewed annually in the context of an executives total cash
compensation opportunity, and changes approved for the upcoming fiscal year, if any, are effective
January 1 of that fiscal year. Bonus payouts, based on the prior fiscal years performance and in
accordance with the terms of the Companys annual incentive plan, are generally determined during
the first two months of each new fiscal year. The Company has in recent years considered and
granted equity-based compensation awards in the third quarter of the fiscal year.
Elements of Compensation
The key elements of the Companys executive compensation program include base salary, annual
incentives, long-term incentives and limited perquisites and other benefits. Annual incentive
plans include performance measures that are relevant to the Companys operations and financial
performance. Long-term incentives may include various vehicles as appropriate, including the use
of equity grants. With a few limited exceptions, as a general matter, named executive officers are
not provided perquisites on a basis that is different from other employees.
Base Salaries
The base salary of each executive typically is reviewed annually. The portion of total
compensation that is provided through base salary is based on the roles and responsibilities of
each position and is structured to support the total
compensation philosophy. Base salaries may be adjusted to recognize varying levels of
responsibilities, degree of mastery, prior experience, breadth of knowledge, internal equity and
marketplace considerations. For 2010, the Compensation Committee used the 50th
percentile of the peer group identified by Aon Hewitt as an approximate benchmark for the base
salary of the Companys named executive officers. The Compensation Committee believed the
50th percentile provided the minimum base salary level necessary to competitively
attract and retain qualified talent.
As mentioned above, executive compensation base salary actions are typically effective April 1
of each year. In 2009, named executive officers salaries had been frozen due to market conditions
and budget concerns, with a plan to reinstate merit raise consideration as of April 1, 2010.
Despite the fact that the 2010 market analysis suggested base salary adjustments may be warranted,
due to the continued uncertainty in the market generally and the uncertainty surrounding national
healthcare reform, the Compensation Committee, in consultation with Aon Hewitt, accepted a
recommendation from Dr. Robertson to defer making any compensation changes in base salaries for the
named executives at the normally scheduled time in April 2010. During the second quarter of 2010,
the Compensation Committee re-evaluated both the market generally and the Companys performance
early in the year and determined that it was appropriate to make base salary adjustments to be
effective July 1, 2010. When establishing the base salary adjustments for 2010, the Compensation
Committee considered that, with the exception of executives hired or promoted in 2009, there had
been no adjustment to executive base salary since April 2008. For specific information on the base
salary of each named executive officer, see the 2010 Summary Compensation Table below. For 2011,
the Compensation Committee again plans to make base salary adjustments effective July 1, 2011.
Annual Incentives
The Compensation Committee has established an annual incentive performance plan referred to as
the Variable Pay Plan (the Plan). The Plan was intended to permit eligible employees to receive
a cash payment based on the Companys achievement of performance level targets determined at the
start of each year, and under which payment is adjusted upward or downward depending on the actual
performance level achieved. All benefit-eligible active employees are eligible to participate
except those employees who participate in a sales commission plan. The target annual incentive
amount established for each executive is based on the roles and responsibilities of each position,
peer group comparables and the impact of each executives role within the company.
Projected annual incentive payments are based on objective measures of Company financial
performance. In 2010, funding for the Plan was based on achievement levels against three financial
targets: 1) operating income narrowing the loss from $42M to $35M; 2) maintaining an ending cash
balance of $124M; and 3) increasing revenue from $164M to $192.8M. These financial targets were
adjusted to exclude the effects of certain one-time expenses or investments. Each financial
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measure was equally weighted (33.3%), and targets for each were based on what management and the
Compensation Committee believed were challenging but achievable targets. The Committee established
both minimum and maximum thresholds with the goal of creating a strong incentive that drives
behavior, but also taking into consideration plan affordability, goal achievability, customary
market practices and internal equity. Payout targets were tied to the level of achievement on each
of the performance measures, with the ability to pay above median for high performance. Achieving
a maximum of 115% of target on any measure would have resulted in a 150% payout for that measure.
At the end of the fiscal year, annual incentive awards were calculated using the actual results for
each performance goal. Based on the 2010 Plan terms, the Company achieved a payout of 134.7% of
target.
Approximately 548 global employees were eligible participants in the Plan on the pay date of
March 11, 2011. The payments for the named executive officers were as follows: Dr. Robertson,
$623,123; Mr. Vaello, $183,193; Mr. Schloesser, $168,349; Ms. Furlow, $190,574; and Mr. Powell,
$231,264.
For fiscal year 2011, the Compensation Committee has approved an annual incentive plan for
named executive officers similar in philosophy to the 2010 Plan, with three of the same financial
performance measures operating income, cash flow and revenue growth, plus a fourth measure,
average service cost (ASC). Recognizing the importance of service costs to overall profitability
of the Company, the Compensation Committee elected to add ASC as a separate metric. The
Compensation Committee believes that these four measures represent the most critical financial
metrics indicating progress towards establishing successful long-term profitability and
sustainability. Each of the four metrics will be weighted equally (25%), with minimum threshold,
target and maximum performance and payout goals established for each. The minimum threshold must
be met for a target in order for that portion of the bonus pool to be funded. Achievement of
target for each metric will result in full payout for that metric, or full payout of 25% of the
total bonus. If all four of the targets are achieved, the bonus will pay out at 100%. Based on
the Companys performance in 2010 and the Companys expectations for 2011, the Compensation
Committee believes that achievement of all four targets will be challenging but achievable.
Payout Below | Payout at | Payout at | ||||||||||||||||||
Metric | Weight | Threshold | Threshold | Payout at Target | Maximum | |||||||||||||||
Cash Flow |
25 | % | 0 | % | 50 | % | 100 | % | 150 | % | ||||||||||
Operating Income |
25 | % | 0 | % | 50 | % | 100 | % | 150 | % | ||||||||||
Revenue Growth |
25 | % | 0 | % | 50 | % | 100 | % | 150 | % | ||||||||||
Average Service
Cost (ASC) |
25 | % | 0 | % | 50 | % | 100 | % | 150 | % |
Equity Incentives
The Company believes that positive Company financial performance is achieved in part by
providing named executive officers with incentives that align their financial interests with the
interests of the Companys shareholders. The Compensation Committee believes that the use of
equity awards is a meaningful and strategic approach to achieving both the Companys compensation
philosophy of retaining key talent as well as rewarding executives for actions that increase
shareholder value. These awards are subject to multi-year vesting to add a material component of
long-term performance to the overall incentive compensation awarded to named executive officers.
The Equity Incentive Plan grants the Compensation Committee the authority to make annual, long-term
incentive awards using incentive vehicles it deems appropriate, including, but not limited to,
incentive stock options, non-qualified stock options and shares of restricted stock.
All stock option grants to named executive officers to purchase the Companys common stock are
granted at the fair market value of the Companys common stock at the grant date. The Board of
Directors has also adopted a policy regarding the timing of grants. For those new employees who
are granted stock options or restricted stock, such grants generally will be awarded at the next
regularly scheduled meeting of the Compensation Committee following such employees hire date, and
the grant will have an exercise price equal to the closing market price of the Companys common
stock on the date of the meeting, or the next day the market is open. If any grant to an executive
officer is made at a meeting other than a regularly scheduled Board of Directors or Compensation
Committee meeting, and there is then in effect a blackout period or trading freeze under the
Companys insider trading policy, the grant will be effective the third trading day after the
material, nonpublic information that is the subject of the blackout period or trading freeze is
released.
In 2010, the Compensation Committee retained its consultant, Aon Hewitt, to analyze the market
competitiveness of the total compensation package for its executives, including long-term equity
grants. Aon Hewitt provided the Compensation Committee with commentary on current market practices
and data around the 50th percentile of long-term incentive target awards for the peer
group, retention value and practices by compensation component, and market trends. In determining
a named executive officers equity award, the Compensation Committee considered the Aon Hewitt
data, along with a review of each executives existing long-term incentive values, assessment of
individual role and performance, retention considerations and affordability. Consequently, in
August 2010, the Compensation Committee approved restricted stock awards to certain
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named executive
officers, all of which were granted with a three-year pro rata vesting period based upon continued
employment. Restricted stock awards were selected as the appropriate equity vehicle based on
discussions around current market trends and retention concerns and in order to limit shareholder
dilution. For specific information on the number of shares of restricted stock awarded to each
named executive officer, see the table entitled 2010 Grants of Plan-Based Awards below.
Stock Ownership Guidelines
The Company has adopted stock ownership guidelines for officers. Under these guidelines,
within five years of assuming his or her position, the Chief Executive Officer is expected to own
stock at a current market value equivalent to four times base salary, and all other executive
officers are expected to own stock at a current market value equal to his or her base salary. All
types of stock awards may be used to satisfy the ownership requirements. Upon the request of an
officer, the Nominating and Governance Committee will consider modifying the requirement in view of
an officers personal financial circumstances. As of March 31, 2011, all of the named executive
officers met the guidelines or were within the allowed timeframe for meeting the guidelines.
Perquisites and Other Benefits
The Company offers all officers, including the named executive officers, the opportunity to
apply for and receive, subject to underwriting, supplemental, portable term life insurance up to
two times the sum of base salary plus bonus. The Company also provides supplemental long-term
disability insurance of up to 75% of the sum of base salary plus bonus. The premiums for these
term life and disability policies are paid in full by the Company and are treated as taxable income
to the officers. In addition, given the extensive travel required by Mr. Vaello in his role as
Chief Commercial Officer, Mr. Vaello receives an automobile allowance. Other than these two
supplemental plans and the automobile allowance to Mr. Vaello, there are no additional perquisites
or other benefits offered exclusively to the named executive officers. All named executive
officers are eligible to participate in all Company benefit plans, including the Employee Stock
Purchase Plan and a 401(k) retirement plan, on the same terms as any eligible employee.
Change in Control and Post Termination Compensation
Named executive officers may receive payments under specific circumstances when employment is
terminated for reasons other than cause or in the event the Company undergoes a change of control
and the officer ceases to be employed by the Company. Such payments are consistent with market
practice. In consideration for post-termination compensation benefits, all of the named executive
officers have agreed not to compete, directly or indirectly, with the Company for a period of at
least 18 months following termination. For a more detailed discussion of post-termination
compensation provided by the named executive officers employment agreements, refer to the section
below entitled Employment Agreements Severance and Change of Control Provisions.
Tax Consequences of Incentive Plans
The Companys annual aggregate tax deductions for each named executive officers compensation
are potentially limited by Section 162(m) of the Internal Revenue Code to the extent the aggregate
amount paid to an executive officer exceeds $1.0 million per year, unless it is paid under a
predetermined objective performance plan meeting certain requirements, satisfies one of various
other exceptions provided under Section 162(m) of the Internal Revenue Code, or pertains to the CFO
as set out in Internal Revenue Service Notice 2007-49. The Compensation Committee considers the
tax implications when making its executive compensation decisions, but believes that it is
appropriate to retain the flexibility to make executive compensation decisions that may not meet
the standards imposed by Section 162(m) if, in the Compensation Committees judgment, it is in the
best interest of the Company to do so.
Assessment of Risk
Annually, the Compensation Committee reviews and discusses the potential risks our various
compensation programs and practices may raise, and particularly the company-wide incentive plan and
the sales incentive plans. In making such assessments, the Committee evaluates the base salary,
incentive compensation, sales commission plans and equity incentive structures to determine whether
such plans as established and implemented encourage undue risk-taking, and whether risk mitigation
measures are in place. For example, in considering the design and implementation of the
company-wide incentive plan, the Committee noted that the annual incentive bonus for named
executive officers and other officers is based on company-wide financial targets and is not paid
until after the annual financial reports have been audited, which mitigates the risk of paying on
preliminary financial results. With respect to sales commission plans, the Committee determined
that the plans are designed to achieve a balance of business goals, and that there are a number of
processes and rules in place to avoid incenting inappropriate behaviors. The Compensation
Committee reviewed TomoTherapys current compensation policies and practices and had determined
that such policies and practices are not reasonably likely to have a material adverse effect on the
registrant.
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Compensation Committee Report
The Compensation Committee of the Board of Directors of TomoTherapy has reviewed and discussed
with management the Compensation Discussion and Analysis section above. Based on this review and
discussion, the Compensation Committee recommended to the Board of Directors that the Compensation
Discussion and Analysis be included in the Companys Annual
Report on Form 10-K/A for the fiscal year
ended December 31, 2010.
Respectfully submitted by the Compensation Committee:
Frances S. Taylor (Chair)
Cary J. Nolan
Roy T. Tanaka
Cary J. Nolan
Roy T. Tanaka
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2010 Summary Compensation Table
The following table sets forth compensation information for the Companys principal executive
officer, the Companys principal financial officer and the three most highly-compensated executive
officers other then the principal executive officer and principal financial officer who were
serving as such at December 31, 2010.
Non-Equity | Stock | Option | All Other | |||||||||||||||||||||||||||||
Salary | Incentive | Bonus | Awards | Awards | Compensation | Total | ||||||||||||||||||||||||||
Name and Principal Position | Year | ($) | Compensation | ($) | ($) (1) | ($) (1) | ($) (2) | ($) | ||||||||||||||||||||||||
Frederick A. Robertson |
2010 | 462,600 | 623,123 | (6) | 1,030,250 | 14,922 | 2,130,895 | |||||||||||||||||||||||||
Chief Executive Officer & |
2009 | 450,000 | 138,024 | (7) | 850,950 | 13,979 | 1,452,953 | |||||||||||||||||||||||||
President |
2008 | 443,750 | 1,118,130 | 13,529 | 1,575,409 | |||||||||||||||||||||||||||
Thomas E. Powell |
2010 | 343,375 | 231,264 | (6) | 447,287 | 60,676 | (8) | 1,082,602 | ||||||||||||||||||||||||
Chief Financial Officer & |
2009 | 176,519 | (3) | 88,260 | (10) | 731,000 | 122,880 | 38,688 | (9) | 1,157,347 | ||||||||||||||||||||||
Treasurer |
||||||||||||||||||||||||||||||||
Rafael L. Vaello |
2010 | 272,000 | 183,193 | (6) | 357,893 | 26,045 | 839,131 | |||||||||||||||||||||||||
Chief Commercial Officer |
2009 | 250,000 | 44,091 | (7) | 465,000 | 17,151 | 776,242 | |||||||||||||||||||||||||
2008 | 20,833 | (3) | 96,900 | 117,733 | ||||||||||||||||||||||||||||
Eric A. Schloesser |
2010 | 249,960 | 168,349 | (6) | 297,980 | 10,687 | 726,976 | |||||||||||||||||||||||||
Vice President, Operations & |
2009 | 240,000 | 41,407 | (7) | 372,000 | 9,863 | 663,270 | |||||||||||||||||||||||||
Business Development |
2008 | 172,183 | (4) | 203,130 | 7,829 | 383,142 | ||||||||||||||||||||||||||
Brenda S. Furlow |
2010 | 282,960 | 190,574 | (6) | 357,893 | 2,109 | 15,650 | 849,186 | ||||||||||||||||||||||||
Vice President, General |
2009 | 241,125 | 46,224 | (7) | 302,250 | 1,563 | 13,114 | 604,276 | ||||||||||||||||||||||||
Counsel & Corporate Secretary |
2008 | 165,500 | (5) | 164,959 | 8,398 | 10,850 | 349,707 |
(1) | Aggregate fair value on date of grant computed in accordance with FASB ASC Topic 718. The assumptions used in these calculations are discussed in Footnote J to the Companys financial statements included in its Annual Report on Form 10-K for the year ended December 31, 2010. | |
(2) | This includes the contributions made on each named executive officers behalf to a 401(k) plan, life and disability insurance premiums and in the case of Mr. Vaello, auto allowance. | |
(3) | Mr. Powell joined the Company on June 22, 2009 and Mr. Vaello joined the Company on December 1, 2008. | |
(4) | Mr. Schloesser took a leave of absence from June to September 2008. | |
(5) | Ms. Furlow assumed the role of Vice President, General Counsel and Corporate Secretary during August 2008. | |
(6) | Bonus for 2010 paid in March 2011 in accordance with incentive plan terms. | |
(7) | Discretionary bonus related to 2009 performance period, paid in March 2010. | |
(8) | Mr. Powell received a relocation living allowance payment of $52,500 in addition to the amounts mentioned in (2) above | |
(9) | Mr. Powell received a relocation living allowance payment of $34,500 in addition to the amounts mentioned in (2) above. | |
(10) | Guaranteed bonus related to 2009 performance period, paid in March 2010. |
Employment Agreements
The following is a summary of certain terms of the Companys employment agreements with each
of the Companys named executive officers.
Compensation and Other Benefits
The employment agreements provide for the payment of a base salary for each of the named
executive officers which, as of December 31, 2010, was for the amounts specified in the table
below. In addition, each executive is eligible to earn a performance bonus as determined annually
in the sole discretion of the Board of Directors or an authorized committee thereof. Each
executive is eligible to participate in the Companys 401(k) retirement plan and welfare benefit plans.
The Company provides
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each executive with: (1) portable term life insurance with a death benefit of
up to twice the sum of the executives base salary and performance bonus; and (2) long-term
disability insurance with an annual benefit of up to 75% of the sum of the executives base salary
and performance bonus.
Named Executive Officers | Base Salary(1) | |||
Frederick A. Robertson |
$ | 475,200 | ||
Thomas E. Powell |
351,750 | |||
Rafael L. Vaello |
294,000 | |||
Eric A. Schloesser |
260,000 | |||
Brenda S. Furlow |
296,000 |
(1) | Base salaries were effective July 1, 2010. |
Severance and Change of Control Provisions
Termination for Cause
Under the employment agreements, the Company may terminate the executives employment at any
time for cause by giving notice to the executive stating the basis for such termination,
effective immediately upon giving such notice or at a designated time. Cause is defined to
include: (1) the executives uncured material breach of the employment agreement; (2) the
executives gross negligence, willful misconduct or any material violation of law in the
performance of the executives duties; (3) the executives willful misconduct if such misconduct is
likely to result in the Companys loss of business, reputation or goodwill; (4) the executives
uncured failure to follow lawful instructions from the officer or body to whom the executive
reports; (5) the executives conviction of, or nolo contendere plea to, a felony; (6) the
executives misappropriation of the Companys funds or property; or (7) the executives attempt to
obtain personal profit from a corporate opportunity. In order to terminate the Chief Executive
Officer for cause, a resolution of three-quarters of the Companys independent directors is
required, specifying the particular conduct of the executive that meets the requirements of removal
for cause. The executive and the executives counsel have an opportunity to be heard by the
Board of Directors before such resolution is considered.
Termination by Executive for Good Reason
The employment agreements define good reason as: (1) a material reduction in the executives
duties; (2) a material adverse change in the executives working conditions without the executives
consent; or (3) the Companys material breach of the employment agreement. The executive may
terminate the executives employment for good reason if the executive gives the Company written
notice within 90 days of the initial occurrence of good reason and the Company fails to cure the
grounds for good reason within 90 days of receipt of such notice. The executive must terminate
employment within one year of the initial occurrence of good reason.
Change of Control
Change of control is defined in the employment agreements as a change in the ownership, a
change in the effective control or a change in the ownership of a substantial portion of the
assets of the Companys organization. A change in the ownership is then defined as the
acquisition by any one person or group of ownership of the Companys stock that constitutes more
than 50% of the total fair market value or total voting power of the Companys stock. A change in
the effective control occurs when either any one person or group acquires ownership of the
Companys stock possessing 30% or more of the total voting power of the Companys stock, or a
majority of the members of the Board of Directors is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the members of the Board
of Directors before the date of the appointment or election. A change in the ownership of a
substantial portion of the assets occurs on the date on which any one person or group acquires
assets from the Company that have a total gross fair market value equal to or more than 40% of the
total gross fair market value of all of the Companys assets immediately before such acquisition.
Termination Upon Death or Disability
The employment agreements provide automatic termination upon the executives death and provide
termination upon the executives disability by the Companys giving notice of termination to the
executive. No severance payments are owed in either situation.
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Termination Upon Resignation or Retirement
Since the named executive officers are at-will employees, they may terminate employment at any
time and for any reason. However, if an executive terminates employment as a result of retirement,
the executive is required to provide the Company with at least 90 days notice. No severance
payments are owed in either situation.
Definition of Separation from Service and Termination of Employment
For purposes of the employment agreements, the terms separation from service, termination
of employment and similar terms mean, with respect to payments of deferred compensation, the
executives separation from service as defined in Section 409A of the Internal Revenue Code of
1986, as amended. For this purpose, a separation from service is deemed to occur on the date
that the Company and the executive reasonably anticipate that the level of bona fide services the
executive would perform after the date would permanently decrease to a level that, based on the
facts and circumstances, would constitute a separation from service. However, a separation from
service is deemed to occur when there is a permanent decrease in the level of the executives
duties to a level that is 20% or less of the average level of bona fide services provided over the
prior 36 months, and a separation from service is not deemed to occur when there is a permanent
decrease in the level of the executives duties to a level that is 50% or more of the average level
of bona fide services provided over the prior 36 months.
COBRA Group Health Insurance
The COBRA healthcare continuation coverage provisions in the employment agreements include
coverage of eligible dependents in addition to the executives spouse and children. Also, payment
of COBRA premiums cease if and when the executive becomes eligible for medical, hospital and health
coverage under a plan of a subsequent employer.
Payment of Accrued Obligations
The employment agreements provide for the payment of accrued obligations within 10 days
following termination of employment. Accrued obligations are defined as any unpaid base salary
and reimbursement of expenses to which the executive is entitled, and any accrued but unused
vacation to which the executive is entitled. The Company is required to pay these accrued
obligations if it terminates the executives employment without cause or the executive terminates
employment for good reason, is terminated by the Company for cause, is terminated due to death
or disability, or resigns or retires.
Timing of Severance Payment
The employment agreements provide that, in cases of termination without cause, termination
for good reason, non-renewal of an employment contract, or termination upon a change of
control, severance payments must be paid within 53 days of the termination of employment.
However, deferred compensation is required to be paid six months and one business day after
separation from service.
Tax Adjustments
In addition, if any payments or benefits payable to any of the named executive officers under
the employment agreements would be subject to any excise tax under Section 4999 of the Internal
Revenue Code of 1986, as amended, such payments or other benefits will be reduced to the extent
necessary so that no amount will be subject to such excise tax. However, such reduction is
required only if the named executive officer will be in a more favorable after-tax position than if
no such reduction was made.
Severance and Change of Control Payments
The employment agreements with each of the Companys named executive officers contain
severance and change of control provisions.
Under Dr. Frederick A. Robertsons employment agreement, if the Company terminates Dr.
Robertsons employment without cause (as defined in his employment agreement), fails to renew his
employment agreement, or if Dr. Robertson terminates his employment for good reason, then he is
entitled to receive a severance payment equal to the sum of: (a) 24 months base salary, equal to
$950,400 as of December 31, 2010; (b) 2.0 times the target annual bonus for the year of
termination, equal to $950,400 as of December 31, 2010, as well as a prorated amount of any target
bonus for the year of termination; (c) up to 18 months of COBRA continuation coverage of health
insurance benefits if he elects such coverage upon termination, equal to $12,376 as of December 31,
2010; (d) up to $10,000 payable to an outplacement consultant; and (e) acceleration of vesting for
all unvested equity awards. As of December 31, 2010, the total amount of these severance payments
would equal $3,757,417.
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In the event Dr. Robertsons employment is terminated without cause, the Company fails to
renew his agreement, or Dr. Robertson terminates the agreement for good reason within three
months before or 24 months following a change of control of the Company, then Dr. Robertson will
instead be entitled to a severance payment equal to the sum of: (a) 36 months base salary, equal
to $1,425,600 as of December 31, 2010; (b) 3.0 times the target bonus for the current year, equal
to $1,425,600 as of December 31, 2010, as well as the pro rata current year bonus; (c) 36 months of
COBRA continuation coverage of health insurance benefits if he elects such coverage upon
termination or health insurance premiums of equal value
to the extent COBRA continuation coverage is unavailable, equal to $24,752 as of December 31,
2010; (d) up to $10,000 payable to an outplacement consultant; and (e) acceleration of vesting of
all unvested equity awards. As of December 31, 2010, the total amount of these severance payments
would equal $4,720,193.
If the Company terminates any of the other named executive officers employment without
cause (as defined in the employment agreements), fails to renew his or her employment agreement,
or if any such other executive terminates his or her employment for good reason, then such
executive is entitled to receive a severance payment equal to the sum of: (a) 12 months base
salary; (b) the average annual bonus paid to such executive for the two previous years provided
that if such executive was not employed for the period required to be eligible for two prior full
year annual bonuses, then such amount will be the amount of the annual bonus, if any, received for
the year prior to the year in which termination of employment occurred; (c) up to 12 months of
COBRA continuation coverage of health insurance benefits if such executive elects such coverage
upon termination; and (d) up to $10,000 payable to an outplacement consultant. Assuming a
termination as of the last day of the previous fiscal year, that amount would be as follows for
each of the named executive officers other than Dr. Robertson:
Total | ||||||||||||||||||||
Salary | Bonus | COBRA | Other | Severance | ||||||||||||||||
Name | ($) (1) | ($) | ($) (2) | ($) (3) | ($) | |||||||||||||||
Thomas E. Powell |
351,750 | 88,260 | 17,150 | 10,000 | 467,160 | |||||||||||||||
Rafael L. Vaello |
294,000 | 22,046 | 17,150 | 10,000 | 343,196 | |||||||||||||||
Eric A. Schloesser |
260,000 | 20,704 | 13,099 | 10,000 | 303,803 | |||||||||||||||
Brenda S. Furlow |
296,000 | 23,112 | 1,460 | 10,000 | 330,572 |
(1) | Equals 12 months of base salary paid in lump sum. | |
(2) | Plan provides 12 months of continuation benefits at the current level. No increase in healthcare premiums is factored into these amounts. This benefit ceases when the executive becomes eligible for other employer-sponsored healthcare. | |
(3) | Other consists of executive outplacement services up to a maximum of $10,000. |
In the event the employment of any named executive officer (other than Dr. Robertson) is
terminated without cause, the employment agreement is not renewed, or such executive terminates
employment for good reason within three months before or 24 months following a change of
control of the Company, then such executive will instead be entitled to a severance payment equal
to the sum of: (a) 24 months base salary; (b) a payment equal to 2.0 times the greater of the
average annual bonus paid to such executive for the two previous years provided that if such
executive was not employed for the period required to be eligible for two prior full year annual
bonuses, then such amount will be the amount of the annual bonus, if any, received for the year
prior to the year in which termination of employment occurred or the target bonus for the current
year; (c) up to 24 months of COBRA continuation coverage of health insurance benefits if such
executive elects such coverage upon termination or health insurance premiums of equal value to the
extent COBRA continuation coverage is unavailable; and (d) up to $10,000 payable to an outplacement
consultant. Assuming a termination as of the last day of the previous fiscal year, that amount
would be as follows for each of the named executive officers other than Dr. Robertson:
Total | ||||||||||||||||||||
Salary | Bonus | COBRA | Other | Severance | ||||||||||||||||
Name | ($) (1) | ($) (2) | ($) (3) | ($) (4) | ($) | |||||||||||||||
Thomas E. Powell |
703,500 | 351,750 | 34,301 | 10,000 | 1,099,551 | |||||||||||||||
Rafael L. Vaello |
588,000 | 294,000 | 34,301 | 10,000 | 926,301 | |||||||||||||||
Eric A. Schloesser |
520,000 | 260,000 | 26,198 | 10,000 | 816,198 | |||||||||||||||
Brenda S. Furlow |
592,000 | 296,000 | 2,920 | 10,000 | 900,920 |
(1) | Equals 24 months of base salary. | |
(2) | Equals two times the greater of average (i) actual annual bonus paid over past two years or (ii) target bonus. | |
(3) | Plan provides 24 months of continuation benefits at the executives current participation level. No increase in healthcare premiums is factored into these amounts. This benefit ceases when the executive becomes eligible for other employer sponsored healthcare. | |
(4) | Other consists of executive outplacement services up to a maximum of $10,000. |
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In addition, if any payments or benefits payable to any of the named executive officers
under the employment agreements would be subject to any excise tax under Section 4999 of the
Internal Revenue Code of 1986, as amended, such payments or other benefits will be reduced to the
extent necessary so that no amount will be subject to such excise tax. However, such reduction is
required only if the named executive officer will be in a more favorable after-tax position than if
no such reduction was made. The Board of Directors amended Ms. Furlows employment agreement
effective March 6, 2011 to permit her to receive an additional payment to compensate for any excise
tax or penalties imposed under Section 4999 of the Internal Revenue Code of 1986, as amended.
Other Employment-Related Agreements
Each of the named executive officers has also entered into a Confidentiality Agreement, an
Assignment of Inventions Agreement and a Noncompetition Agreement. The Confidentiality Agreement
restricts the officer from disclosing confidential information during his or her employment and for
a period of two years thereafter. The Assignment of Inventions Agreement provides that all
inventions and new ideas developed by the officer during employment or for a period of six months
thereafter shall belong to the Company. The Noncompetition Agreement provides that such officers
shall not compete with the Company during employment and thereafter for the longer of 18 months or
any applicable severance period under the employment agreements.
2010 Grants of Plan-Based Awards
The following table sets forth the plan-based awards granted in 2010:
All | ||||||||||||||||||||||||
Other | ||||||||||||||||||||||||
Stock | ||||||||||||||||||||||||
Awards; | Grant | |||||||||||||||||||||||
Number | Date Fair | |||||||||||||||||||||||
of | Value of | |||||||||||||||||||||||
Estimated Future Payouts Under | Shares | Stock and | ||||||||||||||||||||||
Non-Equity Incentive Plan | of Stock | Option | ||||||||||||||||||||||
Grant | Awards (1) | or Units | Awards | |||||||||||||||||||||
Name | Date | Threshold ($) | Target ($) | Maximum ($) | (#) | ($) | ||||||||||||||||||
Frederick A.
Robertson Short-Term Incentives |
237,600 | 475,200 | 712,800 | |||||||||||||||||||||
Long-Term
Incentives |
8/24/2010 | 325,000 | 1,030,250 | |||||||||||||||||||||
Thomas E. Powell Short-Term Incentives |
87,938 | 175,875 | 263,813 | |||||||||||||||||||||
Long-Term
Incentives |
8/24/2010 | 141,100 | 447,287 | |||||||||||||||||||||
Rafael L. Vaello Short-Term Incentives |
73,500 | 147,000 | 220,500 | |||||||||||||||||||||
Long-Term
Incentives |
8/24/2010 | 112,900 | 357,893 | |||||||||||||||||||||
Eric A. Schloesser Short-Term Incentives |
65,000 | 130,000 | 195,000 | |||||||||||||||||||||
Long-Term
Incentives |
8/24/2010 | 94,000 | 297,980 | |||||||||||||||||||||
Brenda S. Furlow Short-Term Incentives |
74,000 | 148,000 | 222,000 | |||||||||||||||||||||
Long-Term
Incentives |
8/24/2010 | 112,900 | 357,893 |
(1) | The non-equity incentive plan award amounts are pursuant to the Companys annual incentive plan as discussed previously. |
14
Table of Contents
For a description of the non-equity incentive plan awards included in the 2010 Grants of
Plan-Based Awards Table, refer to the section above entitled Compensation Discussion and Analysis
Elements of Compensation Annual Incentives. For a description of the stock awards included
in the 2010 Grants of Plan-Based Awards Table, refer to the section above entitled Compensation
Discussion and Analysis Elements of Compensation Equity Incentives.
2010 Outstanding Equity Awards at Fiscal Year End
The following table sets forth information for the named executive officers regarding the
number of shares subject to both exercisable and unexercisable stock options, unvested restricted
stock awards, as well as the exercise prices and expiration dates thereof, as of December 31, 2010:
Option Awards (1) | Stock Awards (2) | |||||||||||||||||||||||||||||
Market | ||||||||||||||||||||||||||||||
Number | Value of | |||||||||||||||||||||||||||||
Number of | of Shares | Shares or | ||||||||||||||||||||||||||||
Number of | Securities | or Units | Units of | |||||||||||||||||||||||||||
Securities | Underlying | of Stock | Stock | |||||||||||||||||||||||||||
Underlying | Unexercised | Option | That have | That | ||||||||||||||||||||||||||
Option | Unexercised | Options | Exercise | Option | Not | Have Not | ||||||||||||||||||||||||
Grant | Options | Unexercisable | Price | Expiration | Vested | Vested | ||||||||||||||||||||||||
Name | Date | Exercisable (#) | (#) | ($) | Date | (#) | ($) | |||||||||||||||||||||||
Frederick A.
Robertson |
1/3/2005 | 846,218 | 2.8199 | 1/3/2015 | ||||||||||||||||||||||||||
11/17/2005 | 204,000 | 3.4559 | 11/17/2011 | |||||||||||||||||||||||||||
12/7/2006 | 136,000 | 6.7500 | 12/7/2012 | |||||||||||||||||||||||||||
8/28/2008 | 61,100 | 220,571 | ||||||||||||||||||||||||||||
9/29/2009 | 122,000 | 440,420 | ||||||||||||||||||||||||||||
8/24/2010 | 325,000 | 1,173,250 | ||||||||||||||||||||||||||||
Thomas E. Powell |
6/22/2009 | 25,000 | 75,000 | 2.6600 | 6/22/2015 | |||||||||||||||||||||||||
6/22/2009 | 75,000 | 270,750 | ||||||||||||||||||||||||||||
9/29/2009 | 66,666 | 240,664 | ||||||||||||||||||||||||||||
8/24/2010 | 141,100 | 509,371 | ||||||||||||||||||||||||||||
Rafael L. Vaello |
12/10/2008 | 15,000 | 54,150 | |||||||||||||||||||||||||||
9/29/2009 | 66,666 | 240,664 | ||||||||||||||||||||||||||||
8/24/2010 | 112,900 | 407,569 | ||||||||||||||||||||||||||||
Eric A. Schloesser |
11/17/2005 | 68,000 | 3.4559 | 11/17/2011 | ||||||||||||||||||||||||||
12/7/2006 | 108,800 | 6.7500 | 12/7/2012 | |||||||||||||||||||||||||||
8/28/2008 | 11,100 | 40,071 | ||||||||||||||||||||||||||||
9/29/2009 | 53,333 | 192,532 | ||||||||||||||||||||||||||||
8/24/2010 | 94,000 | 339,340 | ||||||||||||||||||||||||||||
Brenda S. Furlow |
5/9/2007 | 7,500 | 2,500 | 19.0000 | 5/9/2013 | |||||||||||||||||||||||||
8/28/2008 | 6,667 | 24,068 | ||||||||||||||||||||||||||||
12/10/2008 | 4,433 | 16,003 | ||||||||||||||||||||||||||||
9/29/2009 | 43,333 | 156,432 | ||||||||||||||||||||||||||||
8/24/2010 | 112,900 | 407,569 |
(1) | Options vest 25% each year beginning one year after the date of grant, except for the options granted on December 7, 2006, which vest 50% on December 7, 2008 and 25% each year thereafter. | |
(2) | Restricted stock awards vest one-third each year beginning one year after the date of grant, except for the award granted to Mr. Vaello on December 10, 2008 and the award granted to Mr. Powell on June 22, 2009, which vest 25% per year over four years. |
15
Table of Contents
2010 Option Exercises and Shares Vested
Stock Awards | ||||||||
Number of | ||||||||
Shares | ||||||||
Acquired on | Value Realized | |||||||
Vesting | on Vesting | |||||||
Name | (#) | ($) | ||||||
Frederick A. Robertson |
122,100 | 423,680 | ||||||
Thomas E. Powell |
58,334 | 186,752 | ||||||
Rafael L. Vaello |
40,834 | 144,252 | ||||||
Eric A. Schloesser |
37,767 | 132,141 | ||||||
Brenda S. Furlow |
32,766 | 114,881 |
Director Compensation
The following table sets forth the cash compensation paid to the Companys non-employee
directors in fiscal year 2010.
Board of Directors: |
||||
Annual retainer per director |
$ | 25,000 | ||
Fee per meeting for a full board meeting |
$ | 2,000 | ||
Audit Committee: |
||||
Annual retainer for chairperson |
$ | 15,000 | ||
Annual retainer for other members |
$ | 10,000 | ||
Fee per meeting |
$ | 0 | ||
Compensation Committee: |
||||
Annual retainer for chairperson |
$ | 10,000 | ||
Annual retainer for other members |
$ | 5,000 | ||
Fee per meeting |
$ | 0 | ||
Nominating and Governance Committee: |
||||
Annual retainer for chairperson |
$ | 10,000 | ||
Annual retainer for other members |
$ | 5,000 | ||
Fee per meeting |
$ | 0 |
The above retainers are paid in quarterly installments. The Company also reimburses each
non-employee director for reasonable travel and other expenses in connection with attending
meetings of the Board of Directors.
Each non-employee director appointed before October 23, 2007 received an initial grant of
options to purchase 54,400 shares of the Companys common stock upon his or her appointment to the
Board of Directors, with 25% vesting immediately and 25% vesting at each of the three anniversaries
of the grant date. Since October 23, 2007, the Companys policy has been to grant to newly
appointed directors, at the next Board of Directors meeting following appointment, an initial
equity grant equaling approximately $120,000 in value (based on the modified form of the
Black-Scholes valuation model used by Hewitt through August 31, 2008 and the Black-Scholes
valuation model calculated internally thereafter), rounded up to the nearest 500 shares. Until
recently, the equity grant was in the form of an option grant vesting over three years, with 25%
vesting immediately upon date of grant, and the balance vesting in equal installments on each
monthly anniversary of the grant date for a term of three years, becoming fully vested on the third
anniversary of the grant date. For directors joining the Board of Directors in 2010 and
thereafter, the equity grant was in the form of restricted stock with restrictions lapsing over
three years, with restrictions on 25% lapsing immediately upon date of grant, and restrictions
lapsing on the remaining 75% ratably over the next twelve quarters.
According to the Companys Equity Grant and Administration Policy, the Board of Directors
generally approves annual grants of restricted stock to each non-employee director in the third
quarter of the calendar year following the initial grant. The number of shares in these annual
grants equal approximately $100,000 in value, rounded up to the nearest 500 shares. Through 2010,
the restrictions on one-third of such shares lapsed on each of the first three anniversaries of the
grant date. The annual grants for non-employee directors elected to the Board of Directors
beginning in 2011 will have a one year vesting period that is consistent with the Companys change
to one year Board terms.
Each non-employee director stock option will terminate upon the earlier to occur of six years
from the date of grant or three months after the director ceases to be a director, advisor,
consultant or employee of the Company. The exercise price of these options will equal the closing
price of the Companys common stock on the date of grant.
16
Table of Contents
The following table sets forth a summary of the total compensation paid to the Companys
non-employee directors in fiscal year 2010.
Fees | ||||||||||||
Earned | ||||||||||||
or Paid | Stock | |||||||||||
in Cash | Awards | Total | ||||||||||
Name | ($) | ($)(1) | ($) | |||||||||
Lance C. Balk (2) |
28,945 | 109,440 | (3) | 138,385 | ||||||||
Sam R. Leno |
45,000 | 99,855 | (4) | 144,855 | ||||||||
H. Jonathan McCloskey |
45,000 | 99,855 | (5) | 144,855 | ||||||||
John J. McDonough |
50,000 | 99,855 | (4) | 149,855 | ||||||||
Carey J. Nolan |
50,000 | 99,855 | (4) | 149,855 | ||||||||
Carlos A. Perez, M.D. |
40,000 | 99,855 | (4) | 139,855 | ||||||||
Roy T. Tanaka |
41,250 | 99,855 | (6) | 141,105 | ||||||||
Frances S. Taylor |
50,000 | 99,855 | (4) | 149,855 |
(1) | Aggregate fair value on date of grant computed in accordance with FASB ASC Topic 718. The assumptions used in these calculations are discussed in Footnote J to the Companys financial statements included in its Annual Report on Form 10-K for the year ended December 31, 2010. | |
(2) | Mr. Balk joined the Board on May 5, 2010. | |
(3) | As of December 31, 2010, Mr. Balk had 24,750 shares of restricted stock outstanding. | |
(4) | As of December 31, 2010, Messrs. Leno, McDonough, Nolan and Perez, and Ms. Taylor each had 52,166 shares of restricted stock outstanding. | |
(5) | As of December 31, 2010, Mr. McCloskey had 29,756 unexercisable options and 31,500 shares of restricted stock outstanding. | |
(6) | As of December 31, 2010, Mr. Tanaka had 9,568 unexercisable options and 46,166 shares of restricted stock outstanding. |
Compensation Committee Interlocks and Insider Participation
No interlocking relationship exists between the Board of Directors or Compensation Committee
and the board of directors or compensation committee of any other company, nor has any interlocking
relationship existed in the past.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters
Security Ownership of Certain Beneficial Owners and Management
As of March 31, 2011, there are no beneficial owners of more than five percent of the
Companys common stock based on information provided in SEC filings. This table shows, as of March
31, 2011, the number of shares beneficially owned by each director, each named executive officer
and all directors and executive officers as a group, as reported by each person. Except as
otherwise indicated, the address of each director and executive officer is 1240 Deming Way,
Madison, Wisconsin, 53717. Beneficial ownership is determined under the rules of the SEC and
generally includes voting or investment power with respect to securities. Except as otherwise
noted below, each person has the sole voting and investment power over the shares shown in this
table.
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Table of Contents
Number of | Percentage | |||||||
Shares | of Shares | |||||||
Beneficially | Beneficially | |||||||
Owned | Owned | |||||||
Directors and executive officers: |
||||||||
Frederick A. Robertson (1) |
2,291,423 | 4.0 | % | |||||
Thomas E. Powell (2) |
363,645 | * | ||||||
Rafael L. Vaello (3) |
230,115 | * | ||||||
Eric A. Schloesser (4) |
393,486 | * | ||||||
Brenda S. Furlow (5) |
214,787 | * | ||||||
T. Rockwell Mackie (6) |
1,822,446 | 3.2 | % | |||||
Lance C. Balk(7) |
52,900 | * | ||||||
Sam R. Leno (8) |
125,900 | * | ||||||
H. Jonathan McCloskey (9) |
94,493 | * | ||||||
John J. McDonough (10) |
160,997 | * | ||||||
Cary J. Nolan (11) |
197,183 | * | ||||||
Carlos A. Perez (12) |
125,900 | * | ||||||
Roy T. Tanaka (13 ) |
100,244 | * | ||||||
Frances S. Taylor (14) |
119,900 | * | ||||||
All directors and executive officers as a group |
6,293,419 | 10.8 | % |
* | Less than one percent | |
(1) | Consists of 597,105 shares of common stock, 508,100 shares of restricted stock and 1,186,218 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(2) | Consists of 55,879 shares of common stock, 282,766 shares of restricted stock and 25,000 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(3) | Consists of 35,549 shares of common stock and 194,566 shares of restricted stock. | |
(4) | Consists of 58,253 shares of common stock, 158,433 shares of restricted stock and 176,800 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(5) | Consists of 37,454 shares of common stock, 167,333 shares of restricted stock and 10,000 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(6) | Consists of 1,687,250 shares of common stock, 57,066 shares of restricted stock and 78,130 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(7) | Consists of 30,400 shares of common stock and 22,500 shares of restricted stock. | |
(8) | Consists of 16,334 shares of common stock, 55,166 shares of restricted stock and 54,400 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(9) | Consists of 31,500 shares of restricted stock and 62,993 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(10) | Consists of 39,931 shares of common stock, 52,166 shares of restricted stock and 68,900 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(11) | Consists of 130,517 shares of common stock, 52,166 shares of restricted stock and 14,500 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(12) | Consists of 19,334 shares of common stock, 52,166 shares of restricted stock and 54,400 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. |
18
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(13) | Consists of 7,334 shares of common stock, 46,166 shares of restricted stock and 46,744 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. | |
(14) | Consists of 23,334 shares of common stock, 52,166 shares of restricted stock and 44,400 shares of common stock issuable upon the exercise of options exercisable within 60 days of the date of this table. |
Changes in Control
On March 6, 2011, the Company, entered into an Agreement and Plan of Merger (the Merger
Agreement) with Accuray Incorporated, a Delaware corporation (Accuray), and Jaguar Acquisition,
Inc., a Wisconsin corporation and wholly owned subsidiary of Accuray (Merger Sub). Pursuant to
the Merger Agreement, and subject to the satisfaction or waiver of certain closing conditions,
Merger Sub will merge with and into the Company, with the Company surviving as a wholly owned
subsidiary of Accuray (the Merger). At the effective time of the Merger (the Effective Time),
each issued and outstanding share of common stock of the Company, par value $0.01 per share
(Company Common Stock) (other than shares held in the treasury of the Company or owned, directly
or indirectly, by Accuray, Merger Sub or any subsidiary of the Company) will be converted into the
right to receive (i) $3.15 in cash, without interest, and (ii) 0.1648 shares of the common stock of
Parent, par value $0.001 per share.
Completion of the Merger is subject to certain closing conditions, including the approval of
the Companys shareholders, receipt of antitrust approval, receipt by the Company of certain
third-party consents and the deposit by the Company of $65,000,000 in cash into a Company account
with the exchange agent. The successful completion of the Merger would result in a change in
control of the Company as of the Effective Time.
Concurrently with the execution of the Merger Agreement, all of the Companys executive
officers and directors entered into a Support Agreement with Accuray, pursuant to which they
agreed, in their capacity as shareholders of the Company, to vote the shares beneficially owned by
them in favor of the Merger, which shares represented approximately 11% of the outstanding shares
of Company Common Stock as of March 31, 2011.
Securities Authorized for Issuance under Equity Compensation Plans
The following table provides information as of December 31, 2010 with respect to the
shares of our common stock that may be issued under our existing equity compensation plans.
Number of Securities | ||||||||||||
Remaining Available for | ||||||||||||
Future Issuance under | ||||||||||||
Number of Securities | Equity Compensation | |||||||||||
to be Issued Upon | Weighted-Average | Plans (Excluding | ||||||||||
Exercise of | Exercise Price of | Securities Reflected in | ||||||||||
Outstanding Options | Outstanding Options | the First Column) | ||||||||||
Equity compensation plans
approved by security holders |
$ | 4,315,088 | $ | 5.04 | $ | 2,157,646 | ||||||
Equity compensation plans not
approved by security holders |
| | | |||||||||
$ | 4,315,088 | $ | 5.04 | $ | 2,157,646 | |||||||
Item 13.
Certain Relationships and Related Transactions, and Director Independence
Review, Approval or Ratification of Related Person Transactions
The Company adopted a written policy providing that all material transactions between the
Company and its officers, directors and other affiliates must be:
| approved by a majority of the disinterested members of the Board of Directors; and | ||
| on terms no less favorable to the Company than those that it believes could be obtained from unaffiliated third parties. |
In general, the Companys policy is to enter into transactions with related parties on terms
that, on the whole, are no more favorable and no less favorable, than those available from
unaffiliated third parties.
19
Table of Contents
Transactions with Related Persons
Since the beginning of fiscal 2010, there have been no transactions or proposed transactions
in which the Company is or was a participant and in which any of the Companys directors, executive
officers or holders of more than 5% of the Companys capital stock, or any immediate family member
of or person sharing the household with any of these individuals, had or will have a direct or
indirect material interest, that are required to be disclosed pursuant to Item 404 of Regulation
S-K.
Director Independence
The Board of Directors has determined that, as of April 15, 2011, Ms. Taylor, Messrs. Balk,
Leno, McCloskey, McDonough, Nolan, Tanaka and Dr. Perez are independent for purposes of the
NASDAQ Global Select Market listing requirements and under the Companys Corporate Governance
Guidelines. Dr. Mackie, the Companys Chairman of the Board of Directors, and Dr. Robertson, the
Companys Chief Executive Officer and President, are employees and therefore not independent. In
addition, each member of the Audit Committee, Compensation Committee and Nominating and Governance
Committee are independent under the applicable standards of the NASDAQ Global Select Market
listing requirements and the Companys Corporate Governance Guidelines. The Board of Directors
considered transactions and relationships, both direct and indirect, between each director and
nominee (and his or her immediate family) and the Company and its subsidiaries, and affirmatively
determined that none of Ms. Taylor, Messrs. Balk, Leno, McCloskey, McDonough, Nolan, Tanaka or Dr.
Perez has any material relationship, either direct or indirect, with the Company other than as a
director and shareholder, and that Drs. Mackie and Robertson have no such relationship other than
as an employee and shareholder of the Company.
Item 14.
Principal Accountant Fees and Services
Principal Accountant Fees and Services
The following is a summary of the fees billed to the Company by PricewaterhouseCoopers LLP for
professional services rendered for the fiscal years ended December 31, 2010 and 2009:
2010 | 2009 | |||||||
Audit fees |
$ | 459,505 | $ | 502,369 | ||||
Audit-related fees |
| | ||||||
Tax fees |
136,516 | 153,221 | ||||||
All other fees |
84,729 | 103,417 | ||||||
Total |
$ | 680,750 | $ | 759,007 | ||||
Audit Fees. Consist of fees billed for professional services rendered for the annual audit of the
Companys consolidated financial statements and review of the interim consolidated financial
statements included in Form 10-Q Quarterly Reports and services normally provided by the principal
accounting firm in connection with statutory and regulatory filings or engagements.
Audit-Related Fees. Consist of fees billed for assurance and related services that are reasonably
related to the performance of the audit or review of the Companys consolidated financial
statements and are not reported under Audit Fees. These services include consultations concerning
financial accounting and reporting standards.
Tax Fees. Consist of fees billed for professional services for tax compliance, tax advice and tax
planning. These services include assistance regarding federal, state and international tax
compliance, assistance with tax reporting requirements and audit compliance, tax planning and tax
consulting.
All Other Fees. Consist of fees related to preparation of statutory financial statements for
certain of our subsidiaries and subscription fees for access to an accounting research tool.
Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent
Registered Public Accounting Firm
The Audit Committee must pre-approve all audit and permissible non-audit services to be
provided by the independent registered public accounting firm. These services may include audit
services, audit-related services, tax services and other services. Pre-approval is generally
requested annually and any pre-approval is detailed as to the particular service, which must be
classified in one of the four categories of services. The Audit Committee may also, on a
case-by-case basis, pre-approve particular services that are not contained in the annual
pre-approval request. In connection with this pre-approval policy, the
20
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Audit Committee also
considers whether the categories of pre-approved services are consistent with the rules on
accountant independence of the SEC.
The Audit Committee determined that all services provided by the Companys independent
registered public accounting firm, and the fees that the Company paid for these services, are
compatible with maintaining the independence of the independent registered public accounting firm.
The Audit Committee pre-approved all of these services in fiscal years 2010 and 2009 in accordance
with the pre-approval policy discussed above.
21
Table of Contents
PART IV
Item 15. Exhibits and Financial Statement Schedules
1. Financial Statements
The financial statements of TomoTherapy Incorporated are set forth in Item 8 of the
original Form 10-K.
2. Financial Statement Schedules
All financial statement schedules are omitted because of the absence of conditions under which
they are required or because the required information is given in the original Form 10-K.
3. Exhibits
EXHIBIT INDEX
Exhibit | ||
Number | Description | |
2.1
|
Agreement and Plan of Merger, dated as of March 6, 2011, among Parent, Merger Sub and the Company Incorporated by referenced to Exhibit 2.1 to the Companys current report of Form 8-K filed with the SEC on March 7, 2011, File No. 001-33452. | |
3.1
|
Amended and Restated Articles of Incorporation of the Company Incorporated herein by reference to Exhibit 3.1 to the Companys quarterly report on Form 10-Q filed with the SEC on November 7, 2008, File No. 001-33452. | |
3.2
|
Amended and Restated Bylaws of the Company Incorporated herein by reference to Exhibit 3.2 to the Companys quarterly report on Form 10-Q filed with the SEC on November 7, 2008, File No. 001-33452. | |
4.1
|
Form of the Companys Common Stock Certificate Incorporated herein by reference to Exhibit 4.1 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.1
|
Lease Agreement, dated January 26, 2005, between the Company and Old Sauk Trails Park Limited Partnership Incorporated herein by reference to Exhibit 10.13 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.2
|
Lease Agreement, dated October 28, 2005, between the Company and Adelphia, LLC Incorporated herein by reference to Exhibit 10.14 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.3+
|
Incentive Stock Option Plan, as amended, and forms of option agreements thereunder Incorporated herein by reference to Exhibit 10.16 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.4+
|
2000 Stock Option Plan, as amended, and forms of option agreements thereunder Incorporated herein by reference to Exhibit 10.17 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.5+
|
2002 Stock Option Plan, as amended, and forms of option agreements thereunder Incorporated herein by reference to Exhibit 10.18 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.6
|
Standard Terms and Conditions of Sale Incorporated herein by reference to Exhibit 10.19 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.7
|
International Standard Terms and Conditions of Sale Incorporated herein by reference to Exhibit 10.20 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.8
|
Tomo Lifecycle Care and Partnership Terms and Conditions Incorporated herein by reference to Exhibit 10.21 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.9
|
Development and OEM Supply Agreement, dated January 27, 2003, between the Company and Analogic Corporation Incorporated herein by reference to Exhibit 10.11 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.10+
|
2007 Equity Incentive Plan Incorporated herein by reference to Exhibit 10.19 to Amendment No. 2 to the |
22
Table of Contents
Exhibit | ||
Number | Description | |
Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | ||
10.11+
|
First Amendment to 2007 Equity Incentive Plan, dated May 1, 2009 Incorporated herein by reference to Exhibit 99.1 to the Companys current report on Form 8-K filed with the SEC on May 5, 2009, File No. 001-33452. | |
10.12+
|
Second Amendment to 2007 Equity Incentive Plan, dated December 9, 2010 Incorporated herein by reference to Exhibit 10.12 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
10.13+
|
2007 Employee Stock Purchase Plan, as amended Incorporated herein by reference to Exhibit 10.20 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.14
|
Form of Noncompetition Agreement Incorporated herein by reference to Exhibit 10.27 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.15
|
Form of Assignment of Inventions Agreement Incorporated herein by reference to Exhibit 10.28 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.16
|
Form of Confidentiality Agreement Incorporated herein by reference to Exhibit 10.29 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.17
|
License Agreement 98-0228, dated February 22, 1999, between the Company and Wisconsin Alumni Research Foundation Incorporated herein by reference to Exhibit 10.4 to Amendment No. 3 to the Companys registration statement on Form S-1 filed with the SEC on April 19, 2007, File No. 333-140600. | |
10.18
|
Amendment to License Agreement 98-0228, dated April 16, 2007, between the Company and Wisconsin Alumni Research Foundation Incorporated herein by reference to Exhibit 10.31 to the Companys registration statement on Form S-1 filed with the SEC on September 21, 2007, File No. 333-146219. | |
10.19
|
Amendment to License Agreement 98-0228, dated December 16, 2008, between the Company and Wisconsin Alumni Research Foundation Incorporated herein by reference to Exhibit 10.2 to the Companys current report on Form 8-K filed with the SEC on December 30, 2008, File No. 001-33452. | |
10.20
|
Stock Purchase Agreement, dated April 25, 2008, between Compact Particle Acceleration Corporation and its investors Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.21
|
Shareholder Agreement, dated April 25, 2008, between Compact Particle Acceleration Corporation and its investors Incorporated herein by reference to Exhibit 10.2 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.22
|
Investors Rights Agreement, dated April 25, 2008, between Compact Particle Acceleration Corporation and its investors Incorporated herein by reference to Exhibit 10.3 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.23
|
Limited Exclusive License Agreement, dated February 23, 2007, between the Company and Regents of the University of California Incorporated herein by reference to Exhibit 10.4 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.24
|
Amendment One to Limited Exclusive License Agreement, dated April 8, 2008, between the Company and Lawrence Livermore National Security, LLC Incorporated herein by reference to Exhibit 10.5 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.25
|
Limited Exclusive Sublicense Agreement, dated April 25, 2008, between the Company and Compact Particle Acceleration Corporation Incorporated herein by reference to Exhibit 10.6 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.26
|
Supply Agreement, dated June 25, 2008, between the Company and Hitachi Medical Corporation Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on June 30, 2008, File No. 001-33452. | |
10.27
|
Form of Indemnification Agreement for Directors, Executive Officers, and Controller Incorporated herein by reference to Exhibit 10.3 to the Companys quarterly report on Form 10-Q filed with the SEC on November 7, 2008, File No. 001-33452. | |
10.28+
|
Form of Employment Agreement, dated November 5, 2008, between the Company and Brenda S. Furlow and Rafael L. Vaello Incorporated herein by reference to Exhibit 10.37 to the Companys annual report on Form |
23
Table of Contents
Exhibit | ||
Number | Description | |
10-K filed with the SEC on March 12, 2009, File No. 001-33452. | ||
10.29
|
Long-term Purchase Agreement, dated December 22, 2008, among the Company, e2v, Inc. and e2v Technologies (UK) Limited Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on December 30, 2008, File No. 001-33452. | |
10.30
|
Manufacture and Supply Agreement, dated January 13, 2009 and effective October 8, 2008, between the Company and Siemens AG Healthcare Sector, Components & Vacuum Technology Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on January 16, 2009, File No. 001-33452. | |
10.31
|
Amendment One to Manufacture and Supply Agreement, dated April 13, 2009, between the Company and Siemens AG Healthcare Sector, Components & Vacuum Technology Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on April 13, 2009, File No. 001-33452. | |
10.32+
|
Form of First Amendment to Employment Agreement, dated July 1, 2009, between the Company and Brenda S. Furlow and Eric A. Schloesser Incorporated herein by reference to Exhibit 10.33 to the Companys annual report on Form 10-K filed with the SEC on March 11, 2010, File No. 001-33452. | |
10.33
|
Magnetron Subscription Agreement, dated April 24, 2009 and effective May 1, 2009, between the Company and e2v, Inc. and e2v Technologies (UK) Limited Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on April 29, 2009, File No. 001-33452. | |
10.34+
|
Employment Agreement, dated June 10, 2009 and effective June 22, 2009, between the Company and Thomas E. Powell Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on June 11, 2009, File No. 001-33452. | |
10.35+
|
Form of First Amendment to Employment Agreement, dated July 1, 2009, between the Company and T. Rockwell Mackie and Thomas E. Powell Incorporated herein by reference to Exhibit 10.6 to the Companys quarterly report on Form 10-Q filed with the SEC on August 6, 2009, File No. 001-33452. | |
10.36+
|
First Amendment to Employment Agreement, dated July 1, 2009, between the Company and Rafael L. Vaello Incorporated herein by reference to Exhibit 10.38 to the Companys annual report on Form 10-K filed with the SEC on March 11, 2010, File No. 001-33452. | |
10.37
|
Magnetron Subscription Agreement (revised redaction), dated April 24, 2009 and effective May 1, 2009, between the Company and e2v, Inc. and e2v Technologies (UK) Limited Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on October 28, 2009, File No. 001-33452. | |
10.38
|
Amended and Restated Equity Interest Transfer Agreement, dated November 18, 2009, between the Company and Chengdu Twin-Peak Accelerator Technology Inc., Sichuan Nanguang Vacuum Technology Incorporated Ltd. and Yao Chongguo Incorporated herein by reference to Exhibit 2.1 to the Companys current report on Form 8-K filed with the SEC on November 23, 2009, File No. 001-33452. | |
10.39+
|
Amended and Restated Employment Agreement, dated March 9, 2010, between the Company and Frederick A. Robertson Incorporated herein by reference to Exhibit 10.45 to the Companys annual report on Form 10-K filed with the SEC on March 11, 2010, File No. 001-33452. | |
10.40
|
Termination of Avalon Agreement, dated May 28, 2010, between the company and Avalon Capital Group, Inc., Avalon Technology, LLC and Avalon Portfolio, LLC Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on June 1, 2010, File No. 001-33452. | |
10.41
|
Amendment to Supply Agreement, dated September 10, 2010, between the Company and Hitachi Medical Corporation Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on September 10, 2010, File No. 001-33452. | |
10.42
|
Second Amended and Restated Loan Agreement, dated November 30, 2010, between the Company and M&I Marshall & Ilsley Bank Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on December 2, 2010, File No. 001-33452. | |
10.43
|
Second Amended and Restated Promissory Note, dated November 30, 2010, between the Company and M&I Marshall & Ilsley Bank Incorporated herein by reference to Exhibit 10.2 to the Companys current report on Form 8-K filed with the SEC on December 2, 2010, File No. 001-33452. | |
10.44+
|
Second Amendment to Employment Agreement, dated as of March 6, 2011, by and between the Company and Brenda S. Furlow Incorporated by reference to Exhibit 10.1 to the Companys current report of Form 8-K filed with the SEC on March 7, 2011, File No. 001-33452. |
24
Table of Contents
Exhibit | ||
Number | Description | |
21
|
Subsidiaries of TomoTherapy Incorporated Incorporated herein by reference to Exhibit 21 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
23.1
|
Consent of PricewaterhouseCoopers LLP, independent registered accounting firm Incorporated herein by reference to Exhibit 23.1 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
23.2
|
Consent of Grant Thornton LLP, independent registered public accounting firm Incorporated herein by reference to Exhibit 23.2 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
31.1*
|
Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2*
|
Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
32.1*
|
Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
32.2*
|
Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
* | Filed herewith | |
| Confidential treatment has been requested for portions of this exhibit. These portions have been omitted from the corresponding filing and submitted separately to the SEC. | |
+ | Executive compensation plan or arrangement. |
25
Table of Contents
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.
By: | /s/ Frederick A. Robertson | |||
Frederick A. Robertson, M.D. | ||||
Chief Executive Officer and President Dated: April 15, 2011 |
||||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed
below on April 15, 2011 by the following persons on behalf of the registrant and in the capacities
indicated.
Name | Position | |
/s/ Frederick A. Robertson | Chief Executive Officer, President and Director |
|
Frederick A. Robertson, M.D. | (principal executive officer) |
|
/s/ Thomas E. Powell | Chief Financial Officer and Treasurer (principal |
|
Thomas E. Powell | financial and accounting officer) |
|
* | Chairman of the Board, Director |
|
T. Rockwell Mackie, Ph.D. | ||
* | Director |
|
Lance C. Balk | ||
* | Director |
|
Sam R. Leno | ||
* | Director |
|
H. Jonathan McCloskey | ||
* | Director |
|
John J. McDonough | ||
* | Director |
|
Cary J. Nolan | ||
* | Director |
|
Carlos A. Perez | ||
* | Director |
|
Roy T. Tanaka | ||
* | Director |
|
Frances S. Taylor | ||
* /s/ Brenda S. Furlow | Vice President, Corporate Secretary and General Counsel |
|
Brenda S. Furlow, As Attorney-in-Fact |
26
Table of Contents
EXHIBIT INDEX
Exhibit | ||
Number | Description | |
2.1
|
Agreement and Plan of Merger, dated as of March 6, 2011, among Parent, Merger Sub and the Company Incorporated by referenced to Exhibit 2.1 to the Companys current report of Form 8-K filed with the SEC on March 7, 2011, File No. 001-33452. | |
3.1
|
Amended and Restated Articles of Incorporation of the Company Incorporated herein by reference to Exhibit 3.1 to the Companys quarterly report on Form 10-Q filed with the SEC on November 7, 2008, File No. 001-33452. | |
3.2
|
Amended and Restated Bylaws of the Company Incorporated herein by reference to Exhibit 3.2 to the Companys quarterly report on Form 10-Q filed with the SEC on November 7, 2008, File No. 001-33452. | |
4.1
|
Form of the Companys Common Stock Certificate Incorporated herein by reference to Exhibit 4.1 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.1
|
Lease Agreement, dated January 26, 2005, between the Company and Old Sauk Trails Park Limited Partnership Incorporated herein by reference to Exhibit 10.13 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.2
|
Lease Agreement, dated October 28, 2005, between the Company and Adelphia, LLC Incorporated herein by reference to Exhibit 10.14 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.3+
|
Incentive Stock Option Plan, as amended, and forms of option agreements thereunder Incorporated herein by reference to Exhibit 10.16 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.4+
|
2000 Stock Option Plan, as amended, and forms of option agreements thereunder Incorporated herein by reference to Exhibit 10.17 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.5+
|
2002 Stock Option Plan, as amended, and forms of option agreements thereunder Incorporated herein by reference to Exhibit 10.18 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.6
|
Standard Terms and Conditions of Sale Incorporated herein by reference to Exhibit 10.19 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.7
|
International Standard Terms and Conditions of Sale Incorporated herein by reference to Exhibit 10.20 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.8
|
Tomo Lifecycle Care and Partnership Terms and Conditions Incorporated herein by reference to Exhibit 10.21 to the Companys registration statement on Form S-1 filed with the SEC on February 12, 2007, File No. 333-140600. | |
10.9
|
Development and OEM Supply Agreement, dated January 27, 2003, between the Company and Analogic Corporation Incorporated herein by reference to Exhibit 10.11 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.10+
|
2007 Equity Incentive Plan Incorporated herein by reference to Exhibit 10.19 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.11+
|
First Amendment to 2007 Equity Incentive Plan, dated May 1, 2009 Incorporated herein by reference to Exhibit 99.1 to the Companys current report on Form 8-K filed with the SEC on May 5, 2009, File No. 001-33452. | |
10.12+
|
Second Amendment to 2007 Equity Incentive Plan, dated December 9, 2010 Incorporated herein by reference to Exhibit 10.12 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
10.13+
|
2007 Employee Stock Purchase Plan, as amended Incorporated herein by reference to Exhibit 10.20 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.14
|
Form of Noncompetition Agreement Incorporated herein by reference to Exhibit 10.27 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. |
27
Table of Contents
Exhibit | ||
Number | Description | |
10.15
|
Form of Assignment of Inventions Agreement Incorporated herein by reference to Exhibit 10.28 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.16
|
Form of Confidentiality Agreement Incorporated herein by reference to Exhibit 10.29 to Amendment No. 2 to the Companys registration statement on Form S-1 filed with the SEC on April 16, 2007, File No. 333-140600. | |
10.17
|
License Agreement 98-0228, dated February 22, 1999, between the Company and Wisconsin Alumni Research Foundation Incorporated herein by reference to Exhibit 10.4 to Amendment No. 3 to the Companys registration statement on Form S-1 filed with the SEC on April 19, 2007, File No. 333-140600. | |
10.18
|
Amendment to License Agreement 98-0228, dated April 16, 2007, between the Company and Wisconsin Alumni Research Foundation Incorporated herein by reference to Exhibit 10.31 to the Companys registration statement on Form S-1 filed with the SEC on September 21, 2007, File No. 333-146219. | |
10.19
|
Amendment to License Agreement 98-0228, dated December 16, 2008, between the Company and Wisconsin Alumni Research Foundation Incorporated herein by reference to Exhibit 10.2 to the Companys current report on Form 8-K filed with the SEC on December 30, 2008, File No. 001-33452. | |
10.20
|
Stock Purchase Agreement, dated April 25, 2008, between Compact Particle Acceleration Corporation and its investors Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.21
|
Shareholder Agreement, dated April 25, 2008, between Compact Particle Acceleration Corporation and its investors Incorporated herein by reference to Exhibit 10.2 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.22
|
Investors Rights Agreement, dated April 25, 2008, between Compact Particle Acceleration Corporation and its investors Incorporated herein by reference to Exhibit 10.3 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.23
|
Limited Exclusive License Agreement, dated February 23, 2007, between the Company and Regents of the University of California Incorporated herein by reference to Exhibit 10.4 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.24
|
Amendment One to Limited Exclusive License Agreement, dated April 8, 2008, between the Company and Lawrence Livermore National Security, LLC Incorporated herein by reference to Exhibit 10.5 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.25
|
Limited Exclusive Sublicense Agreement, dated April 25, 2008, between the Company and Compact Particle Acceleration Corporation Incorporated herein by reference to Exhibit 10.6 to the Companys current report on Form 8-K filed with the SEC on April 28, 2008, File No. 001-33452. | |
10.26
|
Supply Agreement, dated June 25, 2008, between the Company and Hitachi Medical Corporation Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on June 30, 2008, File No. 001-33452. | |
10.27
|
Form of Indemnification Agreement for Directors, Executive Officers, and Controller Incorporated herein by reference to Exhibit 10.3 to the Companys quarterly report on Form 10-Q filed with the SEC on November 7, 2008, File No. 001-33452. | |
10.28+
|
Form of Employment Agreement, dated November 5, 2008, between the Company and Brenda S. Furlow and Rafael L. Vaello Incorporated herein by reference to Exhibit 10.37 to the Companys annual report on Form 10-K filed with the SEC on March 12, 2009, File No. 001-33452. | |
10.29
|
Long-term Purchase Agreement, dated December 22, 2008, among the Company, e2v, Inc. and e2v Technologies (UK) Limited Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on December 30, 2008, File No. 001-33452. | |
10.30
|
Manufacture and Supply Agreement, dated January 13, 2009 and effective October 8, 2008, between the Company and Siemens AG Healthcare Sector, Components & Vacuum Technology Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on January 16, 2009, File No. 001-33452. | |
10.31
|
Amendment One to Manufacture and Supply Agreement, dated April 13, 2009, between the Company and Siemens AG Healthcare Sector, Components & Vacuum Technology Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on April 13, 2009, File No. 001-33452. | |
10.32+
|
Form of First Amendment to Employment Agreement, dated July 1, 2009, between the Company and Brenda S. |
28
Table of Contents
Exhibit | ||
Number | Description | |
Furlow and Eric A. Schloesser Incorporated herein by reference to Exhibit 10.33 to the Companys annual report on Form 10-K filed with the SEC on March 11, 2010, File No. 001-33452. | ||
10.33
|
Magnetron Subscription Agreement, dated April 24, 2009 and effective May 1, 2009, between the Company and e2v, Inc. and e2v Technologies (UK) Limited Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on April 29, 2009, File No. 001-33452. | |
10.34+
|
Employment Agreement, dated June 10, 2009 and effective June 22, 2009, between the Company and Thomas E. Powell Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on June 11, 2009, File No. 001-33452. | |
10.35+
|
Form of First Amendment to Employment Agreement, dated July 1, 2009, between the Company and T. Rockwell Mackie and Thomas E. Powell Incorporated herein by reference to Exhibit 10.6 to the Companys quarterly report on Form 10-Q filed with the SEC on August 6, 2009, File No. 001-33452. | |
10.36+
|
First Amendment to Employment Agreement, dated July 1, 2009, between the Company and Rafael L. Vaello Incorporated herein by reference to Exhibit 10.38 to the Companys annual report on Form 10-K filed with the SEC on March 11, 2010, File No. 001-33452. | |
10.37
|
Magnetron Subscription Agreement (revised redaction), dated April 24, 2009 and effective May 1, 2009, between the Company and e2v, Inc. and e2v Technologies (UK) Limited Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on October 28, 2009, File No. 001-33452. | |
10.38
|
Amended and Restated Equity Interest Transfer Agreement, dated November 18, 2009, between the Company and Chengdu Twin-Peak Accelerator Technology Inc., Sichuan Nanguang Vacuum Technology Incorporated Ltd. and Yao Chongguo Incorporated herein by reference to Exhibit 2.1 to the Companys current report on Form 8-K filed with the SEC on November 23, 2009, File No. 001-33452. | |
10.39+
|
Amended and Restated Employment Agreement, dated March 9, 2010, between the Company and Frederick A. Robertson Incorporated herein by reference to Exhibit 10.45 to the Companys annual report on Form 10-K filed with the SEC on March 11, 2010, File No. 001-33452. | |
10.40
|
Termination of Avalon Agreement, dated May 28, 2010, between the company and Avalon Capital Group, Inc., Avalon Technology, LLC and Avalon Portfolio, LLC Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on June 1, 2010, File No. 001-33452. | |
10.41
|
Amendment to Supply Agreement, dated September 10, 2010, between the Company and Hitachi Medical Corporation Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on September 10, 2010, File No. 001-33452. | |
10.42
|
Second Amended and Restated Loan Agreement, dated November 30, 2010, between the Company and M&I Marshall & Ilsley Bank Incorporated herein by reference to Exhibit 10.1 to the Companys current report on Form 8-K filed with the SEC on December 2, 2010, File No. 001-33452. | |
10.43
|
Second Amended and Restated Promissory Note, dated November 30, 2010, between the Company and M&I Marshall & Ilsley Bank Incorporated herein by reference to Exhibit 10.2 to the Companys current report on Form 8-K filed with the SEC on December 2, 2010, File No. 001-33452. | |
10.44+
|
Second Amendment to Employment Agreement, dated as of March 6, 2011, by and between the Company and Brenda S. Furlow Incorporated by reference to Exhibit 10.1 to the Companys current report of Form 8-K filed with the SEC on March 7, 2011, File No. 001-33452. | |
21
|
Subsidiaries of TomoTherapy Incorporated Incorporated herein by reference to Exhibit 21 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
23.1
|
Consent of PricewaterhouseCoopers LLP, independent registered accounting firm Incorporated herein by reference to Exhibit 23.1 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
23.2
|
Consent of Grant Thornton LLP, independent registered public accounting firm Incorporated herein by reference to Exhibit 23.2 to the Companys annual report on Form 10-K filed with the SEC on March 3, 2011, File No. 001-33452. | |
31.1*
|
Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2*
|
Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
32.1*
|
Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
32.2*
|
Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
* | Filed herewith | |
| Confidential treatment has been requested for portions of this exhibit. These portions have been omitted from the corresponding filing and submitted separately to the SEC. | |
+ | Executive compensation plan or arrangement. |
29