UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, DC  20549

 

 

FORM 8-K

 

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):  December 4, 2008 (December 1, 2008)

 

 

ACCURAY INCORPORATED

(Exact name of registrant as specified in its charter)

 

Delaware
(State or other jurisdiction of incorporation)

 

 

1310 Chesapeake Terrace
Sunnyvale, California 94089

(Address of principal executive offices, including Zip Code)

 

Registrant’s telephone number, including area code: (408) 716-4600

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

On December 1, 2008, Accuray Incorporated (the “Company”) entered into an employment letter with Derek Bertocci, pursuant to which he agreed to serve as the Company’s Senior Vice President and Chief Financial Officer, effective as of January 1, 2009.

 

Please refer to Item 5.02 below for a description of the material terms of the employment letter agreement between the Company and Mr. Bertocci.

 

The Company will file the employment letter as an exhibit to its quarterly report on Form 10-Q for the quarter ended December 27, 2008.  The description set forth in Item 5.02 is a summary and is therefore qualified in its entirety by the complete text of the employment letter when filed.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

(c)  Appointment of Officers.

 

On December 4, 2008, the Company announced that it had entered into an employment letter with Derek Bertocci, age 54, pursuant to which he agreed to serve as the Company’s Senior Vice President and Chief Financial Officer, effective January 1, 2009.  Since October 2006, Mr. Bertocci served as the Chief Financial Officer of BioForm Medical, Inc., a publicly-traded medical aesthetics company, and added the title of corporate secretary in  July 2007.  From June 2005 to July 2006, he was Chief Financial Officer of Laserscope, a publicly-traded provider of lasers and fiber optic devices for urology and aesthetic surgery.  From March 2004 to May 2005, Mr. Bertocci served as Chief Financial Officer of VISX Incorporated, a publicly-traded provider of systems for laser vision correction surgery.  From 1998 to March 2004, Mr. Bertocci served as Vice President and Controller of VISX.  Mr. Bertocci earned his Certified Public Accountant certification while working for PricewaterhouseCoopers.  Mr. Bertocci holds a B.A. from Stanford University and an M.B.A. from the University of Southern California.

 

There is no other arrangement or understanding pursuant to which Mr. Bertocci was appointed as Senior Vice President and Chief Financial Officer.  Mr. Bertocci has no familial relationship with any director, executive officer, or person nominated or chosen by the Company to become a director or executive officer.

 

The employment letter has a two year term, which commences on January 1, 2009.  Following expiration of the term of the employment letter (the “Expiration Date”), the provisions contained therein, with the exception of provisions relating to a change of control of the Company, shall have no further force or effect, and Mr. Bertocci’s employment will continue to be at will.  Pursuant to the terms of the employment letter, Mr. Bertocci is entitled to receive an initial annual base salary of $300,000 per year and is eligible to participate in our executive bonus plan under which he may earn annual incentive bonuses targeted at 65% of his base salary based upon the attainment of performance criteria established and evaluated by the Compensation Committee of the Board of Directors.  In addition, the Company will recommend to the Compensation Committee of the Board of Directors that Mr. Bertocci be granted an option to purchase two hundred seventy-five thousand (275,000) shares of Company common stock at a per share exercise price equal to the fair market value of a share of the Company’s common stock on the date of grant, as determined in accordance with the Accuray Incorporated 2007 Incentive Award Plan.   If granted, the option will vest with respect to 25% of the shares subject thereto on the first anniversary of Mr. Bertocci’s start date, and with respect to an additional 1/48th of the shares subject thereto on each monthly anniversary thereafter.

 

Under the employment letter, if prior to the Expiration Date, Mr. Bertocci incurs a “separation from service” (within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury Regulation Section 1.409A-1(h)), by reason of termination of his employment by us other than for “cause,” death or disability, or by Mr. Bertocci for “good reason,” as each term is defined in the employment letter, and provided that he executes a general release of claims in a form prescribed by the Company, then no later than thirty days after the “Separation Date,” as such term is defined in the employment letter, the Company will pay Mr. Bertocci a severance payment in an amount equal to six months of his annual base salary then in effect. In addition, we will pay for six months of COBRA continuation coverage for Mr. Bertocci and his spouse and children if he elects such coverage upon such a termination, but in no event for longer than the period of time during which he would be entitled to continuation coverage under Section 4980B of the Code.

 

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Under the employment letter, in the event a “change in control” of our Company (as defined in the employment letter) occurs within the first three years of Mr. Bertocci’s employment, and within the 12 month period following the change in control Mr. Bertocci incurs a separation from service by reason of termination of his employment without “cause” or by Mr. Bertocci for “good reason,” and provided that he executes a general release of claims in a form prescribed by the Company, then no later than thirty days after the Separation Date, the Company will pay Mr. Bertocci a severance payment in an amount equal to the sum of (i) 24 months of his annual base salary as in effect immediately prior to the Separation Date, (ii) 100% of his target annual bonus for the fiscal year in which the separation from service occurs.  In addition, we will pay for 24 months of COBRA continuation coverage for Mr. Bertocci and his spouse and children if he elects such coverage upon such a termination, but in no event for longer than the period of time during which he would be entitled to continuation coverage under Section 4980B of the Code.  In addition, each of Mr. Bertocci’s then outstanding options to purchase shares of the Company’s common stock shall become fully vested and exercisable immediately prior to the Separation Date.  The Company will also provide Mr. Bertocci with outplacement assistance in accordance with its then current policies and practices with respect to outplacement assistance for other similarly situated executives of the Company.  The foregoing benefits and payments may be subject to a delay of up to six months as necessary to avoid the imposition of additional tax under Section 409A of the Code.  In addition, if any payments or benefits payable to Mr. Bertocci under the employment letter or otherwise would be subject to the excise tax under Section 4999 of the Code, such payments and/or benefits will be reduced to the extent necessary so that no amount will be subject to such excise tax, provided that such reduction will only occur if Mr. Bertocci will be in a more favorable after-tax position than if no such reduction was made.

 

The employment letter also provides for certain restrictive covenants by Mr. Bertocci, including a confidentiality covenant that will apply during his employment with our Company and thereafter, a non-solicitation covenant for the duration of his employment and one year thereafter, and a non-competition covenant for the duration of his employment.

 

A copy of the Company’s press release, titled “Accuray Hires Chief Financial Officer” is attached to this current report on Form 8-K as Exhibit 99.1.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Number		Description
99.1		Press Release dated December 4, 2008, titled “Accuray Hires Chief Financial Officer.”

 

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SIGNATURES

 

        Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

	ACCURAY INCORPORATED
Dated: December 4, 2008	By:	/s/ Darren J. Milliken
		Darren J. Milliken
		Interim General Counsel

 

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EXHIBIT INDEX

 

Number		Description
99.1		Press Release dated December 4, 2008, titled “Accuray Hires Chief Financial Officer.”

 

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