UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the
Registrant ☒ Filed by a party other than the
Registrant ☐
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Under §240.14a-12
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VIEWRAY, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is calculated and state how it was determined):
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Proposed maximum aggregate value of transaction:
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
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(1)
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Amount previously paid:
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Form, Schedule or Registration Statement No.:
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Date Filed:
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VIEWRAY, INC.
2 Thermo Fisher Way
Oakwood
Village, OH 44146
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 19, 2017
To the
Stockholders of ViewRay, Inc.:
NOTICE IS HEREBY GIVEN
that the Annual Meeting of Stockholders (the Annual Meeting) of
ViewRay, Inc., a Delaware corporation (referred to herein as the Company, we or our), will be held on June 19, 2017, at 8:30 a.m. local time, at the Companys offices located at 815 E. Middlefield Road,
Mountain View CA 94043 for the following purposes:
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1.
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To elect three directors to hold office until the 2020 annual meeting of stockholders and until their successors are duly elected and qualified;
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2.
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To ratify the selection, by the audit committee of our board of directors, of Deloitte & Touche LLP as the Companys independent registered public accounting firm for the Companys fiscal year ending
December 31, 2017; and
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3.
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To transact such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof.
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The foregoing items of business are more fully described in the Proxy Statement. Only stockholders who owned our common stock at the close of
business on April 26, 2017 (the Record Date) can vote at this meeting or any adjournments that take place.
We have
elected to use the Internet as our primary means of providing our proxy materials to stockholders. Consequently, stockholders will not receive paper copies of our proxy materials unless they specifically request them. We will send a Notice of
Internet Availability of Proxy Materials (the Notice) on or about May 1, 2017 to our stockholders of record as of the close of business on the Record Date. We are also providing access to our proxy materials over the Internet
beginning on or about April 28, 2017. Electronic delivery of our proxy materials will significantly reduce our printing and mailing costs, and the environmental impact of the proxy materials.
The Notice contains instructions for accessing the proxy materials, including the Proxy Statement and our annual report, and provides
information on how stockholders may obtain paper copies free of charge. The Notice also provides the date, time and location of the Annual Meeting; the matters to be acted upon at the meeting and the recommendation from our board of directors with
regard to each matter; and information on how to attend the meeting and vote online.
It is important that your shares be represented and
voted whether or not you plan to attend the Annual Meeting in person. You may vote on the Internet, by telephone or by completing and mailing a proxy card or the form forwarded by your bank, broker or other holder of record. Voting over the
Internet, by telephone or by written proxy will ensure your shares are represented at the Annual Meeting. Please review the instructions on the proxy card or the information forwarded by your bank, broker or other holder of record regarding each of
these voting options.
Our board of directors recommends that you vote
FOR
the election of the director nominees named in Proposal
No. 1 of the Proxy Statement and
FOR
the ratification of the selection, by the audit committee of our board of directors, of Deloitte & Touche LLP as our independent registered public accounting firm as described in Proposal
No. 2 of the Proxy Statement.
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By Order of the Board of Directors
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/s/ Chris A. Raanes
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Chris A. Raanes
President and Chief Executive Officer
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Oakwood Village, Ohio
April 28, 2017
YOUR VOTE IS IMPORTANT.
PLEASE PROMPTLY AUTHORIZE A PROXY TO CAST YOUR VOTES THROUGH THE INTERNET FOLLOWING THE VOTING PROCEDURES DESCRIBED IN THE NOTICE OR, IF YOU HAVE
REQUESTED AND RECEIVED PAPER COPIES OF THE PROXY MATERIALS, BY TELEPHONE OR BY SIGNING, DATING AND RETURNING THE PROXY CARD SENT TO YOU.
TABLE OF CONTENTS
VIEWRAY, INC.
2 Thermo Fisher Way
Oakwood
Village, OH 44146
PROXY STATEMENT
FOR THE 2017 ANNUAL MEETING OF STOCKHOLDERS
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE
STOCKHOLDER MEETING TO BE HELD ON JUNE 19, 2017
The board of directors of ViewRay, Inc. is soliciting your proxy to vote at our 2016 Annual Meeting of Stockholders to be held on
June 19, 2017, at 8:30 a.m. local time, at the Companys offices located at 815 E. Middlefield Road, Mountain View CA 94043, and any adjournment or postponement of that meeting (the Annual Meeting). This Proxy Statement is
dated as of April 28, 2017. As used in this Proxy Statement henceforward, unless otherwise stated or the context clearly indicates otherwise, the terms the Company, the Registrant, ViewRay, we,
us and our refer to ViewRay, Inc., a Delaware corporation or, prior to July 23, 2015, ViewRay Technologies, Inc. (f/k/a ViewRay Incorporated), a Delaware corporation.
In addition to solicitations by mail, our directors, officers and regular employees, without additional remuneration, may solicit proxies by
telephone,
e-mail
and personal interviews. All costs of solicitation of proxies will be borne by us. Brokers, custodians and fiduciaries will be requested to forward proxy soliciting material to the owners of
stock held in their names, and we will reimburse them for their reasonable
out-of-pocket
expenses incurred in connection with the distribution of proxy materials.
We have elected to provide access to our proxy materials on the Internet. Accordingly, we are sending a Notice of Internet Availability of
Proxy Materials to our stockholders of record as of April 26, 2017 (the Record Date), while brokers and other nominees who hold shares on behalf of beneficial owners will be sending their own similar notice. All stockholders will
have the ability to access the proxy materials on the website referred to in the Notice of Internet Availability of Materials, or to request a printed set of the proxy materials. Instructions on how to request a printed copy by mail or
e-mail
may be found in the Notice of Internet Availability of Materials and on the website referred to in the Notice of Internet Availability of Materials, including an option to request paper copies on an ongoing
basis. We are making this Proxy Statement available on the Internet on or about April 28, 2017 and are mailing the Notice of Internet Availability of Materials to all stockholders entitled to vote at the Annual Meeting on or about May 1,
2017. We intend to mail or
e-mail
this Proxy Statement, together with a proxy card, to those stockholders entitled to vote at the Annual Meeting who have properly requested copies of such materials by mail or
e-mail,
within three business days of request.
The only voting securities of ViewRay are shares of
common stock, $0.01 par value per share (the common stock), of which there were 56,455,572 shares outstanding as of the Record Date. We need the holders of a majority in voting power of the shares of common stock issued and outstanding
and entitled to vote, present in person or represented by proxy, to hold the Annual Meeting.
The Companys Annual Report on Form
10-K,
which contains financial statements for fiscal year 2016 (the Annual Report), accompanies this Proxy Statement if you have requested and received a copy of the proxy materials in the mail.
Stockholders that receive the Notice of Internet Availability of Materials can access this Proxy Statement and the Annual Report at the website referred to in the Notice of Internet Availability of Materials. The Annual Report and this Proxy
Statement are also available on the SEC Filings section of our investor relations website at http://investors.viewray.com and at the website of the Securities and Exchange Commission (the SEC) at www.sec.gov. Please note that
the information on our website is not part of this Proxy Statement. You also may obtain a copy of ViewRays Annual Report, without charge, by writing to our Investor Relations department at the above address.
1
THE PROXY PROCESS AND STOCKHOLDER VOTING
QUESTIONS AND ANSWERS ABOUT THIS PROXY MATERIAL AND VOTING
Who can vote at the Annual Meeting?
Only
stockholders of record at the close of business on the Record Date will be entitled to vote at the Annual Meeting. At the close of business on the Record Date, there were 56,455,572 shares of common stock issued and outstanding and entitled to
vote.
Stockholder of Record: Shares Registered in Your Name
If, on the Record Date, your shares were registered directly in your name with the transfer agent for our common stock, American Stock
Transfer & Trust Company, LLC (AST), then you are a stockholder of record. As a stockholder of record, you may vote in person at the Annual Meeting or vote by proxy on the Internet or by telephone or by returning a proxy card if
you request and receive one. Whether or not you plan to attend the Annual Meeting, to ensure your vote is counted we urge you to vote by proxy on the Internet as instructed in the Notice of Internet Availability of Materials, by telephone as
instructed on the website referred to on the Notice of Internet Availability of Materials, or (if you request and receive a proxy card by mail or
e-mail)
by signing, dating and returning the proxy card sent to
you or by following the instructions on such proxy card to vote on the Internet or by telephone.
Beneficial Owner: Shares
Registered in the Name of a Broker, Bank or Other Agent
If, on the Record Date, your shares were held in an account at a brokerage
firm, bank, dealer or other similar organization, then you are the beneficial owner of shares held in street name and these proxy materials are being forwarded to you by that organization. The organization holding your account is
considered the stockholder of record for purposes of voting at the Annual Meeting. As a beneficial owner, you have the right to direct your broker or other agent on how to vote the shares in your account. You are also invited to attend the Annual
Meeting. However, since you are not the stockholder of record, you may not vote your shares in person at the Annual Meeting unless you request and obtain a legal proxy from your broker or other agent who is the record holder of the shares,
authorizing you to vote at the Annual Meeting.
What am I being asked to vote on?
You are being asked to vote on two proposals:
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Proposal No. 1: the election of three Class II directors to hold office until our 2020 Annual Meeting of Stockholders and until their successors are duly elected and qualified; and
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Proposal No. 2: the ratification of the selection, by the audit committee of our board of directors, of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending
December 31, 2017.
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In addition, you are entitled to vote on any other matters that are properly brought before the
Annual Meeting.
How does the board of directors recommend I vote on the Proposals?
The board of directors recommends that you vote:
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FOR each of the Class II director nominees; and
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FOR ratification of Deloitte & Touche LLP as our independent registered public accounting firm.
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How do I vote?
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For Proposal 1, you may either vote For, or choose that your vote be Withheld from, any of the nominees to the board of directors.
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For Proposal 2, you may either vote For or Against the proposal, or Abstain from voting.
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Please note that by casting your vote by proxy you are authorizing the individuals listed on the proxy to vote your shares in accordance with
your instructions and in their discretion with respect to any other matter that properly comes before the Annual Meeting or any adjournments or postponements thereof.
The procedures for voting, depending on whether you are a stockholder of record or a beneficial owner, are as follows:
Stockholder of Record: Shares Registered in Your Name
If you are a stockholder of record, you may vote in any of the following manners:
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To vote in person, come to the Annual Meeting and we will give you a ballot when you arrive.
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To vote over the Internet prior to the Annual Meeting, follow the instructions provided on the Notice of Internet Availability of Materials or on the proxy card that you request and receive by mail or
e-mail.
We provide Internet proxy voting to allow you to vote your shares online, with procedures designed to ensure the authenticity and correctness of your proxy vote instructions. However, please be aware that
you must bear any costs associated with your Internet access, such as usage charges from Internet access providers and telephone companies.
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To vote by telephone, call the toll free number found on the proxy card you request and receive by mail or
e-mail
or the toll free number that you can find on the website referred
to on the Notice of Internet Availability of Materials.
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To vote by mail, complete, sign and date the proxy card you request and receive by mail or
e-mail,
and return it promptly. As long as your signed proxy card is received before the
Annual Meeting, we will vote your shares as you direct.
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Whether or not you plan to attend the Annual Meeting, we urge you
to vote by proxy by mail, Internet or telephone to ensure your vote is counted. The Internet and telephone voting facilities for eligible stockholders of record will close at 11:59 p.m. Eastern Time on June 18, 2017. Even if you have submitted
your vote before the Annual Meeting, you may still attend the Annual Meeting and vote in person. In such case, your previously submitted proxy will be disregarded.
Beneficial Owner: Shares Registered in the Name of Broker, Bank or Other Agent
If you are a beneficial owner of shares registered in the name of your broker, bank or other agent, you should have received a voting
instruction card and voting instructions with these proxy materials from that organization rather than from us. Simply complete and mail the voting instruction card to ensure that your vote is counted, or follow such instructions to submit your vote
by the Internet or telephone, if the instructions provide for Internet and telephone voting. To vote in person at the Annual Meeting, you must obtain a valid proxy from your broker, bank or other agent. Follow the instructions from your broker, bank
or other agent included with these proxy materials, or contact your broker, bank or other agent to request a proxy form.
Who counts the votes?
American Stock Transfer & Trust Company, LLC (AST) has been engaged as our independent agent to tabulate
stockholder votes, or the Inspector of Election. If you are a stockholder of record, and you choose to vote
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over the Internet prior to the Annual Meeting or by telephone, AST will access and tabulate your vote electronically, and if you have requested and received proxy materials via mail or
e-mail
and choose to sign and mail your proxy card, your executed proxy card is returned directly to AST for tabulation. As noted above, if you hold your shares through a broker, your broker (or its agent for
tabulating votes of shares held in street name) returns one proxy card to AST on behalf of all its clients.
How are votes counted?
Votes will be counted by the Inspector of Election appointed for the Annual Meeting. For Proposal 1, the Inspector of Election will
separately count For and Withheld votes and broker
non-votes
for each nominee. For Proposal 2, the Inspector of Election will separately count For and Against
votes, abstentions and broker
non-votes.
If your shares are held by your broker as your nominee (that is, in street name), you will need to follow the instructions provided by your broker to
instruct your broker how to vote your shares. If you do not give instructions to your broker, your broker can vote your shares with respect to routine items, but not with respect to
non-routine
items. See below for more information regarding:
What are broker
non-votes?
and
Which ballot measures are
considered routine and
non-routine?
What are broker
non-votes?
Broker
non-votes
occur when a beneficial
owner of shares held in street name does not give instructions to the broker or nominee holding the shares as to how to vote on matters deemed
non-routine.
Generally, if shares are held
in street name, the beneficial owner of the shares is entitled to give voting instructions to the broker or nominee holding the shares. If the beneficial owner does not provide voting instructions, the broker or nominee can still vote the shares
with respect to matters that are considered to be routine, but not with respect to
non-routine
matters. In the event that a broker, bank, custodian, nominee or other record holder of
common stock indicates on a proxy that it does not have discretionary authority to vote certain shares on a particular proposal, then those shares will be treated as broker
non-votes
with respect to that
proposal. Accordingly, if you own shares through a nominee, such as a broker or bank, please be sure to instruct your nominee how to vote to ensure that your vote is counted on each of the proposals.
Which ballot measures are considered routine or
non-routine?
The ratification of the selection, by the audit committee of our board of directors, of Deloitte & Touche LLP as our independent
registered public accounting firm for the year ending December 31, 2017 (Proposal 2) is considered routine under applicable rules. A broker or other nominee may generally vote on routine matters, and therefore no broker
non-votes
are expected to exist in connection with Proposal 2. The election of directors (Proposal 1) is considered
non-routine
under applicable rules. A broker or other
nominee cannot vote without instructions on
non-routine
matters, and therefore there may be broker
non-votes
on Proposal 1.
How many votes are needed to approve the proposal?
With respect to Proposal 1, the election of directors, the three nominees receiving the highest number of For votes will be
elected. Only votes For or Withheld will affect the outcome of this proposal. Broker
non-votes
will have no effect on the outcome of this proposal.
With respect to Proposal 2, the affirmative vote of the majority of votes cast (excluding abstentions and broker
non-votes)
is required for approval.
How many votes do I have?
On each matter to be voted upon, you have one vote for each share of common stock you own as of the Record Date.
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What if I return a Proxy Card but do not make specific choices?
If we receive a signed and dated Proxy Card and the Proxy Card does not specify how your shares are to be voted, your shares will be voted
For the election of each of the three nominees for director, and For the ratification of the selection, by the audit committee of our board of directors, of Deloitte & Touche LLP as our independent registered public
accounting firm. If any other matter is properly presented at the Annual Meeting, your proxy (one of the individuals named on your Proxy Card) will vote your shares using his or her best judgment.
Who is paying for this proxy solicitation?
We will pay for the entire cost of soliciting proxies. In addition to those proxy materials received by mail or on the Internet, our directors,
officers and employees may also solicit proxies in person, by telephone or by other means of communication. Directors, officers and employees will not be paid any additional compensation for soliciting proxies. We may also reimburse brokerage firms,
banks and other agents for the cost of forwarding proxy materials to beneficial owners.
What does it mean if I receive more than one Notice of
Internet Availability of Materials or more than one set of printed materials?
If you receive more than one Notice of Internet
Availability of Materials or more than one set of printed materials, your shares are registered in more than one name or are registered in different accounts. In order to vote all the shares you own, you must follow the instructions for voting on
each Notice of Internet Availability of Materials or proxy card you receive via mail or
e-mail
upon your request, which include voting over the Internet, telephone or by signing and returning any of the proxy
cards you request and receive.
Can I change my vote after submitting my proxy vote?
Yes. You can revoke your proxy vote at any time before the final vote at the Annual Meeting. If you are the record holder of your shares, you
may revoke your proxy vote in any one of three ways:
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You may submit a new vote on the Internet or by telephone or submit a properly completed proxy card with a later date.
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You may send a written notice that you are revoking your proxy to ViewRays Chief Financial Officer at 2 Thermo Fisher Way, Oakwood Village, Ohio 44146.
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You may attend the Annual Meeting and vote in person. Simply attending the Annual Meeting will not, by itself, revoke your proxy.
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If your shares are held by your broker, bank or other agent, you should follow the instructions provided by them.
How will voting on any business not described in this Proxy Statement be conducted?
We are not aware of any business to be considered at the Annual Meeting other than the items described in this Proxy Statement. If any other
matter is properly presented at the Annual Meeting, your proxy will vote your shares using his or her best judgment.
When are stockholder proposals
due for next years Annual Meeting?
To be considered for inclusion in next years proxy materials, your proposal must be
submitted in writing by December 28, 2017, to ViewRays Secretary at 2 Thermo Fisher Way, Oakwood Village, Ohio 44146. If you
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wish to submit a proposal that is not to be included in our proxy materials for the next years annual meeting pursuant to the SECs shareholder proposal procedures or to nominate a
director, you must do so between February 19, 2018 and March 21, 2018; provided that if the date of that annual meeting is more than 30 days before or more than 60 days after June 19, 2018, you must give notice not later than the 90th
day prior to the annual meeting date or, if later, the 10th day following the day on which public disclosure of the annual meeting date is first made. You are also advised to review our Bylaws, which contain additional requirements about advance
notice of stockholder proposals and director nominations.
What is the quorum requirement?
A quorum of stockholders is necessary to hold a valid meeting. A quorum will be present if the holders of a majority in voting power of the
shares of common stock issued and outstanding and entitled to vote are present in person or represented by proxy at the Annual Meeting. On the Record Date, there were 56,455,572 shares outstanding and entitled to vote. Accordingly,
28,227,786 shares must be represented by stockholders present at the Annual Meeting or by proxy to have a quorum.
If you are a
stockholder of record, your shares will be counted towards the quorum only if you submit a valid proxy vote or vote at the Annual Meeting. If you are a beneficial owner of shares held in street name, your shares will be counted towards
the quorum if your broker or nominee submits a proxy for your shares at the Annual Meeting, even such proxy results in a broker
non-vote
due to the absence of voting instructions from you. Abstentions and
broker
non-votes
will be counted towards the quorum requirement. If there is no quorum, either the chairperson of the Annual Meeting or a majority in voting power of the stockholders entitled to vote at the
Annual Meeting, present in person or represented by proxy, may adjourn the Annual Meeting to another time or place.
How can I find out the results of
the voting at the Annual Meeting?
Voting results will be announced by the filing of a Current Report on Form
8-K
within four business days after the Annual Meeting. If final voting results are unavailable at that time, we will file an amended Current Report on
Form 8-K
within
four business days of the day the final results are available.
Implications of being an emerging growth company.
We are an emerging growth company as that term is used in the Jumpstart Our Business Startups Act of 2012 and, as such, have
elected to comply with certain reduced public company reporting requirements. These reduced reporting requirements include reduced disclosure about the companys executive compensation arrangements and no
non-binding
advisory votes on executive compensation. We will remain an emerging growth company until the earlier of (1) the last day of the fiscal year (a) following the fifth anniversary of the
completion of our initial public offering, (b) in which we have total annual gross revenue of at least $1.0 billion or (c) in which we are deemed to be a large accelerated filer, which means the market value of our common stock that
is held by
non-affiliates
exceeds $700 million as of the prior June 30
th
, and (2) the date on which we have issued more than
$1.0 billion in
non-convertible
debt during the prior three-year period.
Directions to Annual Meeting
To obtain directions to our Annual Meeting, which is to be held at our office located at 815 E. Middlefield Road, Mountain View CA
94043, please visit http://www.viewray.com/contact.
6
PROPOSAL NO. 1
ELECTION OF DIRECTORS
Our
board of directors is divided into three classes. Each class consists, as nearly as possible, of
one-third
of the total number of directors, and each class has a three-year term. Unless the board of directors
determines that vacancies (including vacancies created by increases in the number of directors) shall be filled by the stockholders, and except as otherwise provided by law, vacancies on the board of directors may be filled only by the affirmative
vote of a majority of the remaining directors. A director elected by the board of directors to fill a vacancy (including a vacancy created by an increase in the number of directors) shall serve for the remainder of the term of the class of directors
in which the vacancy occurred and until such directors successor is elected and qualified.
The board of directors currently
consists of ten seated directors, divided into the three following classes:
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Class II directors: Josh Bilenker, M.D., James F. Dempsey, Ph.D., Mark S. Gold, M.D. and Theodore T. Wang, Ph.D. whose current terms will expire at the Annual Meeting;
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Class III directors: David Bonita, M.D., Caley Castelein, M.D. and Brian K. Roberts, whose current terms will expire at the annual meeting of stockholders to be held in 2018; and
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Class I directors: Chris A. Raanes, Aditya Puri and Henry A. McKinnell, Jr., Ph.D., whose current terms will expire at the annual meeting of stockholders to be held in 2019.
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At each annual meeting of stockholders, the successors to directors whose terms will then expire will be elected to serve from the time of
election and qualification until the third subsequent annual meeting of stockholders.
Drs. Dempsey, Gold and Wang have been nominated for
election at the Annual Meeting to serve as Class II directors. Each director to be elected will hold office from the date of his election by the stockholders until the third subsequent annual meeting of stockholders and until such
directors successor is duly elected and has been qualified, or until such directors earlier death, resignation or removal. Dr. Bilenker will leave our board of directors upon the expiration of his term upon election of Class II
directors at the Annual Meeting. Effective immediately following the Annual Meeting, our board of directors will consist of nine members.
Shares represented by executed proxies will be voted, if authority to do so is not withheld, for the election of the three nominees named
below. In the event that any nominee should be unavailable for election as a result of an unexpected occurrence, such shares will be voted for the election of such substitute nominee as the board of directors may propose. Each person nominated for
election has agreed to serve if elected, and management has no reason to believe that any nominee will be unable to serve. Directors are elected by a plurality of the votes cast at the meeting.
The following table sets forth, for the Class II directors and for our other current directors, information with respect to their
position/office held with the Company and their ages as of March 31, 2017:
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Name
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Age
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Position/Office Held With the Company
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Director Since
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Class II Directors whose terms expire at the 2017 Annual Meeting of
Stockholders and who are standing for election at the Annual Meeting
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James F. Dempsey, Ph.D.
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46
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Chief Scientific Officer and Director
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2008
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Mark S. Gold, M.D.(3)
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67
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Director
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2004
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Theodore T. Wang, Ph.D.
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50
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Director
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2017
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Class II Directors whose terms expire at the 2017 Annual Meeting of
Stockholders
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Josh Bilenker, M.D.(2)
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45
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Director
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2008
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Class III Directors whose terms expire at the 2018 Annual Meeting of
Stockholders
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David Bonita, M.D.(1)(3)
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41
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Director
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2008
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Caley Castelein, M.D.(2)(3)
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46
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Director
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2008
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Brian K. Roberts(1)
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46
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Director
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2015
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Class I Directors whose terms expire at the 2019 Annual Meeting of
Stockholders
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Chris A. Raanes
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President, Chief Executive Officer and Director
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2013
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Aditya Puri(1)(2)
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46
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Director
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2015
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Henry A. McKinnell, Jr., Ph.D.
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74
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Director
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2016
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7
(1)
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Member of the Audit Committee.
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(2)
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Member of the Compensation Committee.
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(3)
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Member of the Nominating and Corporate Governance Committee.
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Set forth below is biographical
information for the nominees and each person whose term of office as a director will continue after the Annual Meeting. The following includes certain information regarding our directors individual experience, qualifications, attributes and
skills that led the board of directors to conclude that they should serve as directors.
Nominees for Election to a Three-Year Term Expiring at the
2020 Annual Meeting of Stockholders
James F. Dempsey, Ph.D.
has served as our Chief Scientific Officer since founding ViewRay
in March 2004. Dr. Dempsey has been a member of the board of directors since January 2008. Dr. Dempsey brings more than 17 years of experience in the field of radiotherapy medical physics to ViewRay. He previously served as a faculty
member in the University of Florida Department of Radiation Oncology, as Assistant Professor from July 2001 to July 2007 and Associate Professor from July 2007 to January 2008. Dr. Dempsey holds a B.S. in Radiochemistry from San Jose State
University and a Ph.D. in Nuclear Chemistry from Washington University in St. Louis. We believe Dr. Dempsey is qualified to serve on our board of directors based on his
in-depth
knowledge of our product,
business and industry, as well as his expertise in nuclear chemistry and physics and medical physics.
Mark S. Gold, M.D.
has
served as a member of our board of directors since our founding in March 2004. Dr. Gold was a Professor, Distinguished Professor and Chairman of Psychiatry at the University of Florida from 1990 until his retirement in 2014. Dr. Gold has
worked for over 40 years in basic science and clinical research, translating neuroscientific research into clinical practice. He has been a consultant and senior advisor to banks and private equity and venture capital firms on medical devices,
pharmaceuticals and health care services throughout his career. He was a Founding Director of the Somerset Valley Bank and Somerset Valley Financial from 1991 to 1999. Dr. Gold has served on the board of directors of Axogen, Inc. (formerly
LecTec Corporation) since September 2011, where he is the chairman of the governance committee and a member of the audit committee. Dr. Gold is also a member of the boards of directors of Magstim Ltd, Wales, UK and RiverMend Health (UK). We
believe Dr. Gold is qualified to serve on our board of directors because of his academic expertise and his extensive research experience across medical specialties and institutions.
Theodore T.
Wang, Ph.D.
has served as a member of our board of directors since January 2017. Dr. Wang currently
serves as the Chief Investment Officer of Puissance Capital Management, of which he was a founder, since January 2015. Prior to that, Dr. Wang was a Partner of Goldman, Sachs & Co. (Goldman), which he joined in 1996 and
with which he served in many leadership positions, mostly recently
as Co-Head of
U.S. Equities Trading and
Global Co-Head of
One Delta Trading and a
member of the Goldman Sachs Risk Committee. Prior to joining Goldman,
Dr. Wang co-founded Xeotron
Corp., a company specializing in DNA biochips in Texas. Dr. Wang holds a Ph.D. in Physics
from the University of Minnesota, an M.B.A. from the University of Texas, Austin, and a B.S. from Fudan University, China. We believe Dr. Wang is qualified to serve on our board of directors because of his prior investment and leadership
experience in the life science industry.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
FOR
THE ELECTION OF EACH CLASS II NOMINEE NAMED ABOVE
Directors Continuing in Office Until the 2018 Annual Meeting of Stockholders
David Bonita, M.D.
has served as a member of our board of directors since January 2008. Dr. Bonita has served as a Private Equity
Partner at OrbiMed Advisors LLC, or OrbiMed, since June 2013. Dr. Bonita joined OrbiMed in June 2004 as a Private Equity Senior Associate, and was promoted to Private Equity Principal in
8
December 2007. Prior to OrbiMed, he was a corporate finance analyst in the healthcare investment banking group of Morgan Stanley & Co. from February 1998 to July 1999, and a corporate
finance analyst in the healthcare investment banking group of UBS AG from August 1997 to February 1998. Dr. Bonita has also served on the board of directors of Loxo Oncology, Inc. since October 2013, as well as on the boards of directors of
several private companies. Dr. Bonita holds an A.B. in Biological Sciences from Harvard College and an M.D. and M.B.A. from Columbia University in the City of New York. We believe Dr. Bonita is qualified to serve on our board of directors
due to his extensive investment experience in the healthcare industry.
Caley Castelein, M.D.
has served as a member of our board
of directors since January 2008. Dr. Castelein has served as a Managing Director of Kearny Venture Partners, L.P. since September 2006. Prior to that, Dr. Castelein served as a Managing Director at Thomas Weisel Partners, which was
acquired by Stifel, Nicolaus & Company, Incorporated in July 2010, from March 2003 to September 2006. Dr. Castelein has served on the boards of directors of several private companies. Dr. Castelein holds an A.B. in Biological
Sciences from Harvard College and an M.D. from the University of California, San Francisco. We believe Dr. Castelein is qualified to serve on our board of directors based on his extensive investment experience in the healthcare industry.
Brian K. Roberts
has served as a member of our board of directors since December 2015. Mr. Roberts also served as the Chief
Financial Officer at Avedro, Inc., a privately held pharmaceutical and medical device company, since January 2015, and currently serves as the Chief Operating and Financial Officer since December 2015. Prior to Avedro, Mr. Roberts was the Chief
Financial Officer at Insulet Corporation, also a medical device company, since March 2009. Mr. Roberts also previously served as the Chief Financial Officer at Jingle Networks from August 2007 to January 2009 and as Chief Financial Officer of
Digitas from June 2001 to July 2007. Mr. Roberts has also held finance positions at Idiom Technologies, Inc., the Monitor Group and has served as an auditor with Ernst & Young LLP. He holds a B.S. in Accounting and Finance from Boston
College. We believe Mr. Roberts is qualified to serve on the Board because of his over 20 years of financial, operational and strategic experience in private and public companies.
Directors Continuing in Office Until the 2019 Annual Meeting of Stockholders
Chris A. Raanes
has served as our President and Chief Executive Officer and as a member of the board of directors since February 2013.
Mr. Raanes brings over 15 years of experience in the private and public medical device field. As our President and Chief Executive Officer, Mr. Raanes has supported our growth and strategic initiatives, including our worldwide commercial
expansion of MRIdian. Previously, Mr. Raanes was Executive Vice President from July 2011 to November 2012 and Chief Operating Officer and Senior Vice President from September 2002 to July 2011 at Accuray Incorporated, a medical device company.
He also served as Vice President and General Manager, Digital Imaging at PerkinElmer Inc., a healthcare company, from December 1999 to March 2002. Mr. Raanes holds a B.S. and an M.S. in Electrical Engineering from the Massachusetts Institute of
Technology. We believe Mr. Raanes is qualified to serve on our board of directors because of his extensive management experience and his expertise in radiation therapy device commercialization and operations.
Aditya Puri
has served as a member of our board of directors since February 2015. Mr. Puri has served as an Investments Director
at Xeraya Capital, which is responsible for life sciences investments for Khazanah Nasional Berhad, since October 2012. Previously, he was a Director in Khazanah Nasionals Life Sciences unit since November 2011, which was responsible for
Khazanahs life sciences investments. Prior to that, Mr. Puri consulted part time in the greater Boston area for various healthcare and cleantech startups affiliated with Harvard University and Massachusetts Institute of Technology, or
MIT, from 2009 to 2011. Mr. Puri also served as Managing Director of global development at Salary.com from July 2007 to April 2008. Mr. Puri was at the Yankee Group, a global technology research and consulting company, from September 2000
to March 2007, finishing his tenure as a Vice-President and member of the leadership team. Between March 1997 and April 2000, he was at Boston Scientific, a Fortune 500 medical device manufacturer. Mr. Puri serves on several boards
9
of directors of private companies in the investment and healthcare fields. Mr. Puri has a B.S. from the University of Southern Maine and received an M.B.A. from the MIT Sloan School of
Management. We believe Mr. Puri is qualified to serve on our board of directors because of his extensive experience in life sciences investment and growth.
Henry A. McKinnell, Jr., Ph.D.
has served as a member of our board of directors since April 2016. Dr. McKinnell currently serves
as Chairman of the Board of Moodys Corporation since April 2012, for which he has been a director since October 1997, and Chairman of the Board of the Accordia Global Health Foundation, for which he has been a director since September 2003.
Dr. McKinnell served as the Chief Executive Officer of Optimer Pharmaceuticals, Inc. from February 2013 until October 2013, as Chairman of the Board from April 2012 until October 2013 and as a director from January 2011 until October 2013.
Dr. McKinnell also served on the Board of Emmaus Life Sciences, Inc. from May 2010 and served as Chairman from May 2011 until leaving the Board in September 2015. He also served as a director of Angiotech Pharmaceuticals, Inc. from May 2008
until 2011. From 1971 until his retirement in 2006, Dr. McKinnell was associated with Pfizer Inc., including serving as Pfizers Chief Executive Officer from January 2001 to July 2006 and Chairman of its Board from May 2001 until December
2006. Dr. McKinnell holds a Bachelors Degree in business from the University of British Columbia, and M.B.A. and Ph.D. degrees from the Stanford University Graduate School of Business. We believe Dr. McKinnell is qualified to serve
on our board of directors because of his extensive experience in life sciences, healthcare, public and private corporations and other business organizations.
10
PROPOSAL NO. 2
RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The audit committee of our board of directors has engaged Deloitte & Touche LLP as our independent registered public accounting firm
for the year ending December 31, 2017, and is seeking ratification of such selection by our stockholders at the Annual Meeting. Deloitte & Touche LLP has audited our financial statements since the year ended December 31, 2010.
Representatives of Deloitte & Touche LLP are expected to be present at the Annual Meeting. They will have an opportunity to make a statement if they so desire and will be available to respond to appropriate questions.
Neither our bylaws nor other governing documents or law require stockholder ratification of the selection of Deloitte & Touche LLP as
our independent registered public accounting firm. However, the audit committee is submitting the selection of Deloitte & Touche LLP to our stockholders for ratification as a matter of good corporate practice. If our stockholders fail to
ratify the selection, the audit committee will reconsider whether or not to retain Deloitte & Touche LLP. Even if the selection is ratified, the audit committee in its discretion may direct the appointment of a different independent
registered public accounting firm at any time during the year if they determine that such a change would be in the best interests of the Company and our stockholders.
Audit and
Non-Audit
Services
The following table provides information regarding the fees incurred to Deloitte & Touche LLP during the years ended December 31,
2016 and 2015. All fees described below were approved by the audit committee.
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Year Ended
December 31,
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2016
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2015
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Audit Fees(1)
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$
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622,368
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$
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380,100
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Audit-Related Fees(2)
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0
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443,200
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Tax Fees(3)
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0
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All Other Fees(4)
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Total Fees
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|
$
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622,368
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|
|
$
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823,300
|
|
|
|
|
|
|
|
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(1)
|
Audit Fees of Deloitte & Touche LLP for 2016 and 2015 were for professional services associated with the annual audit of our consolidated financial statements, the reviews of our quarterly condensed
consolidated financial statements and the issuance of consents and comfort letters in connection with registration statement filings with the SEC.
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(2)
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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 our consolidated financial statements and are not reported under
Audit Fees. In 2015, these fees included work performed in connection with our initial public offering and related SEC filings.
|
(3)
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Tax Fees consist of fees for tax compliance, tax advice and tax planning. No such services were incurred in 2016 or 2015.
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(4)
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All Other Fees include any fees billed that are not audit, audit-related or tax fees. No such services were incurred in 2016 or 2015.
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Audit Committee
Pre-Approval
Policies and Procedures
Before an independent registered public accounting firm is engaged by the Company to render audit or
non-audit
services, our audit committee must review the terms of the proposed engagement and
pre-approve
the engagement. The audit committee may delegate authority to
one or more of the members of the audit committee
11
to provide such
pre-approvals
for audit or
non-audit
services, provided that such person or persons report such
pre-approvals
to the full audit committee at its next scheduled meeting. Audit committee
pre-approval
of
non-audit
services (other than
review and attest services) are not required if such services fall within available exceptions established by the SEC.
The audit
committee
pre-approved
all audit, audit-related, tax and other services provided by Deloitte & Touche LLP for 2016 and 2015 and the estimated costs of those services. Actual amounts billed, to the
extent in excess of the estimated amounts, were periodically reviewed and approved by the audit committee.
THE BOARD OF DIRECTORS
RECOMMENDS A VOTE
FOR
THIS PROPOSAL NO. 2.
12
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS
The material in this report is not soliciting material, is not deemed filed with the SEC, and is not to be incorporated by
reference into any filing of ViewRay under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.
The primary purpose of the audit committee is to oversee our financial reporting processes on behalf of our board of directors. The audit
committees functions are more fully described in its charter, which is available on the Corporate Governance section of our investor relations website at http://investors.viewray.com. Management has the primary responsibility for
our financial statements and reporting processes, including our systems of internal controls. In fulfilling its oversight responsibilities, the audit committee reviewed and discussed with management ViewRays audited financial statements as of
and for the year ended December 31, 2016.
The audit committee has discussed with Deloitte & Touche LLP, the Companys
independent registered public accounting firm, the matters required to be discussed by Statement on Auditing Standards No. 1301,
Communications with Audit Committees,
as adopted by the Public Company Accounting Oversight Board (the
PCAOB). In addition, the audit committee discussed with Deloitte & Touche LLP their independence, and received from Deloitte & Touche LLP the written disclosures and the letter required by Ethics and Independence
Rule 3526 of the PCAOB. Finally, the audit committee discussed with Deloitte & Touche LLP, with and without management present, the scope and results of Deloitte & Touche LLPs audit of such financial statements.
Based on these reviews and discussions, the audit committee has recommended to our board of directors that such audited financial statements
be included in our Annual Report on
Form 10-K
for the year ended December 31, 2016 for filing with the SEC. The audit committee also has engaged Deloitte & Touche LLP as our independent
registered public accounting firm for the fiscal year ending December 31, 2017 and is seeking ratification of such selection by the stockholders.
Audit Committee
Brian K. Roberts, Chairman
David Bonita, M.D.
Aditya Puri
13
CORPORATE GOVERNANCE AND BOARD OF DIRECTORS MATTERS
Code of Business Conduct and Ethics
We have adopted a code of business conduct and ethics that applies to all of our employees, officers and directors, including those officers
responsible for financial reporting. The code of business conduct and ethics is available on the Corporate Governance section of our investor relations website at http://investors.viewray.com. We expect that any amendments to the code,
or any waivers of its requirements, will be disclosed on our website. The reference to our web address does not constitute incorporation by reference of the information contained at or available through our website.
Corporate Governance Guidelines
We believe in sound corporate governance practices and have adopted formal Corporate Governance Guidelines to enhance our effectiveness. Our
board of directors adopted these Corporate Governance Guidelines to ensure that it has the necessary practices in place to review and evaluate our business operations as needed and to make decisions that are independent of our management. The
Corporate Governance Guidelines are also intended to align the interests of directors and management with those of our stockholders. The Corporate Governance Guidelines set forth the practices our board of directors follows with respect to board and
committee composition and selection, board meetings, Chief Executive Officer performance evaluation and management development and succession planning for senior management, including the Chief Executive Officer position. A copy of our Corporate
Governance Guidelines is available on the Corporate Governance section of our investor relations website at http://investors.viewray.com.
Director Independence
As required under NASDAQ rules and regulations, a majority of the members of a listed companys board
of directors must qualify as independent, as affirmatively determined by the board of directors. The board of directors consults with the Companys counsel to ensure that the board of directors determinations are consistent
with all relevant securities and other laws and regulations regarding the definition of independent, including those set forth in pertinent NASDAQ listing standards, as in effect from time to time.
Consistent with these considerations, our board of directors has determined that all of our directors, other than Mr. Raanes and
Dr. Dempsey, qualify as independent directors in accordance with the NASDAQ listing requirements. Mr. Raanes and Dr. Dempsey are not considered independent because both are employees of ViewRay. Robert Weisskoff, Ph.D.is
no longer a member of our board of directors; however, he served on our board of directors during the 2015 fiscal year and until his resignation in March 2016. Our board of directors has also determined that Dr. Weisskoff qualified as an
independent director in accordance with the NASDAQ listing requirements. The NASDAQ independence definition includes a series of objective tests, such as that the director is not, and has not been for at least three years, one of our
employees and that neither the director nor any of his family members has engaged in various types of business dealings with us. In addition, as required by NASDAQ rules, our board of directors has made a subjective determination as to each
independent director that no relationships exist, which, in the opinion of our board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In making these determinations, our
board of directors considered information provided by the directors and us with regard to each directors business and personal activities and relationships as they may relate to us and our management. There are no family relationships among
any of our directors or executive officers.
As required under NASDAQ rules and regulations, our independent directors meet in regularly
scheduled executive sessions at which only independent directors are present. All of the committees of our board of directors are comprised entirely of directors determined by the board of directors to be independent within the meaning of NASDAQ and
SEC rules and regulations applicable to the members of such committees.
14
Leadership Structure of the Board of Directors
Our amended and restated bylaws and corporate governance guidelines provide our board of directors with flexibility to combine or separate the
positions of Chairman of the board and Chief Executive Officer and/or the implementation of a lead director in accordance with its determination that utilizing either structure would be in the best interests of our company.
Our board of directors has concluded that our current leadership structure, in which we do not have a Chairman or lead director, is
appropriate at this time. However, our board of directors will continue to periodically review our leadership structure and may make such changes in the future as it deems appropriate.
Role of Board of Directors in Risk Oversight Process
Risk assessment and oversight are an integral part of our governance and management processes. Our board of directors encourages management to
promote a culture that incorporates risk management into our corporate strategy and
day-to-day
business operations. Management discusses strategic and operational risks
at regular management meetings, and conducts specific strategic planning and review sessions during the year that include a focused discussion and analysis of the risks facing us. Throughout the year, senior management reviews these risks with the
board of directors at regular board meetings as part of management presentations that focus on particular business functions, operations or strategies, and presents the steps taken by management to mitigate or eliminate such risks.
Our board of directors does not have a standing risk management committee, but rather administers this oversight function directly through our
board of directors as a whole, as well as through various standing committees of our board of directors that address risks inherent in their respective areas of oversight. In particular, our board of directors is responsible for monitoring and
assessing strategic risk exposure, our audit committee is responsible for overseeing our major financial risk exposures and the steps our management has taken to monitor and control these exposures. The audit committee also monitors compliance with
legal and regulatory requirements and considers and approves or disapproves any related party transactions. Our nominating and corporate governance committee monitors the effectiveness of our corporate governance guidelines. Our compensation
committee assesses and monitors whether any of our compensation policies and programs has the potential to encourage excessive risk-taking.
Board Committees
Audit Committee
Our audit committee oversees our corporate accounting and financial reporting process. Among other matters, the audit committee:
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appoints our independent registered public accounting firm;
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evaluates the independent registered public accounting firms qualifications, independence and performance;
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determines the engagement of the independent registered public accounting firm;
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reviews and approves the scope of the annual audit and the audit fee;
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discusses with management and the independent registered public accounting firm the results of the annual audit and the review of our quarterly financial statements;
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approves the retention of the independent registered public accounting firm to perform any proposed permissible audit and
non-audit
services;
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monitors the rotation of partners of the independent registered public accounting firm on our engagement team as required by law;
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15
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is responsible for reviewing our financial statements and our managements discussion and analysis of financial condition and results of operations to be included in our annual and quarterly reports to be filed
with the SEC;
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reviews our critical accounting policies and estimates;
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reviews related party transactions; and
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annually reviews the audit committee charter and the audit committees performance.
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The
current members of our audit committee are Messrs. Roberts and Puri and Dr. Bonita. Mr. Roberts serves as the chairman of the committee. All members of our audit committee meet the requirements for financial literacy under the applicable
rules and regulations of the SEC and NASDAQ. Our board of directors has determined that Mr. Roberts is an audit committee financial expert as defined under the applicable rules of the SEC and has the requisite financial sophistication as
defined under the applicable NASDAQ rules and regulations. Under the rules of the SEC and NASDAQ, members of the audit committee must also meet heightened independence standards. Our board of directors has determined that each of the members of the
audit committee meet these heightened independence standards. The audit committee operates under a written charter that satisfies the applicable standards of the SEC and NASDAQ. A copy of the audit committee charter is available to security holders
on the Corporate Governance section of our investor relations website at http://investors.viewray.com.
Compensation Committee
Our compensation committee reviews and recommends policies relating to compensation and benefits of our officers and employees. The
compensation committee reviews and approves corporate goals and objectives relevant to compensation of our Chief Executive Officer and other executive officers, evaluates the performance of these officers in light of those goals and objectives, and
sets the compensation of these officers, other than the Chief Executive Officer, based on such evaluations. The board of directors retains the authority to determine and approve, upon the recommendation of the compensation committee, the
compensation of the Chief Executive Officer, unless such authority has been delegated to the compensation committee. The compensation committee also approves grants of stock options, restricted stock units and other awards under our stock plans. The
compensation committee will review and evaluate, at least annually, the performance of the compensation committee and its members, including compliance of the compensation committee with its charter. The current members of our compensation committee
are Drs. Castelein and Bilenker and Mr. Puri. Dr. Castelein serves as the chairman of the committee. Each of the members of our compensation committee is an independent, outside and
non-employee
director under the applicable rules and regulations of the SEC, NASDAQ and the Internal Revenue Code of 1986, as amended, relating to compensation committee independence. Dr. Bilenker will leave the compensation committee when his term as a
member of our board of directors expires at the Annual Meeting, and we intend to replace Dr. Bilenker on the compensation committee with an independent, outside,
non-employee
director. The compensation
committee operates under a written charter that satisfies the applicable standards of the SEC and NASDAQ. A copy of the compensation committee charter is available to security holders on the Corporate Governance section of our investor
relations website at http://investors.viewray.com.
In 2016, the compensation committee retained Compensia, Inc., a national executive
compensation consulting firm, to conduct market research and analysis on our various executive positions, to assist the committee in developing appropriate incentive plans for our executives on an annual basis and to provide the committee with
advice and ongoing recommendations regarding material executive compensation decisions. In compliance with the disclosure requirements of the SEC regarding the independence of compensation consultants, the consultant addressed each of the six
independence factors established by the SEC with the compensation committee. Its responses affirmed the independence of the consultant on executive compensation matters. Based on this assessment, the compensation committee determined that the
engagement of the consultant does not raise any conflicts of interest or similar concerns. The compensation committee also evaluated the
16
independence of other outside advisors to the compensation committee, including outside legal counsel, considering the same independence factors and concluded their work for the compensation
committee does not raise any conflicts of interest.
Nominating and Corporate Governance Committee
The nominating and corporate governance committee is responsible for making recommendations to our board of directors regarding candidates for
directorships and composition and organization of our board of directors. In addition, the nominating and corporate governance committee is responsible for overseeing our corporate governance policies and reporting and making recommendations to our
board of directors concerning governance matters. The current members of our nominating and corporate governance committee are Drs. Castelein, Bonita and Gold. Dr. Castelein serves as the chairman of the committee. Each of the members of our
nominating and corporate governance committee is an independent director under the applicable rules and regulations of the SEC and NASDAQ relating to nominating and corporate governance committee independence. The nominating and corporate governance
committee operates under a written charter. A copy of the nominating and corporate governance committee charter is available to security holders on the Corporate Governance section of our investor relations website at
http://investors.viewray.com. There are no family relationships among any of our directors or executive officers.
In recommending
candidates for election to the board of directors, the independent members of the nominating and corporate governance committee may consider the following criteria, among others: diversity of personal and professional background, perspective and
experience; personal and professional integrity, ethics and values; experience in corporate management, operations or finance, such as serving as an officer or former officer of a publicly held company, and a general understanding of marketing,
finance and other elements relevant to the success of a publicly-traded company in todays business environment; experience relevant to the Companys industry and with relevant social policy concerns; experience as a board member or
executive officer of another publicly held company; relevant academic expertise or other proficiency in an area of the Companys operations; practical and mature business judgment, including ability to make independent analytical inquiries;
promotion of a diversity of business or career experience relevant to the success of the Company. The board of directors evaluates each individual in the context of the board of directors as a whole, with the objective of assembling a group that can
best maximize the success of the business and represent stockholder interests through the exercise of sound judgment using its diversity of experience in these various areas.
The nominating and corporate governance committee will consider director candidates recommended by stockholders. For a stockholder to make any
recommendation or nomination for election to the board of directors at an annual meeting, the stockholder must provide notice to the Company, which notice must be delivered to, or mailed and received at, the Companys principal executive
offices not less than 90 days and not more than 120 days prior to the
one-year
anniversary of the preceding years annual meeting; provided, that if the date of the annual meeting is more than
30 days before or more than 60 days after such anniversary date, the stockholders notice must be delivered, or mailed and received, not later than 90 days prior to the date of the annual meeting or, if later, the 10
th
day following the date on which public disclosure of the date of such annual meeting is made. Further updates and supplements to such notice may be required at the times, and in the forms,
required under our bylaws. As set forth in our bylaws, submissions must include the name and address of the proposed nominee, information regarding the proposed nominee that is required to be disclosed in a proxy statement or other filings in a
contested election pursuant to Section 14(a) under the Exchange Act of 1934, as amended (the Exchange Act), information regarding the proposed nominees indirect and direct interests in shares of the Companys common
stock, and a completed and signed questionnaire, representation and agreement of the proposed nominee. Our bylaws also specify further requirements as to the form and content of a stockholders notice. We recommend that any stockholder wishing
to make a nomination for director review a copy of our bylaws, as amended and restated to date, which is available, without charge, from our Chief Financial Officer, at 2 Thermo Fisher Way, Oakwood Village, Ohio 44146.
17
Dr. Wang was appointed to the board of directors in January 2017 to fill a newly-created
vacancy on the board of directors, and therefore is standing for election as a director by stockholders for the first time. Dr. Wang was recommended to our board of directors and its nominating and corporate governance committee by certain of
our stockholders
.
Meetings of the Board of Directors, Board and Committee Member Attendance and Annual Meeting
Attendance
During 2016, the board of directors met 20 times, the compensation committee met two times, the audit committee met four
times and the nominating and corporate governance committee did not meet. Each board member attended 75% or more of the aggregate of the meetings of the board of directors and of the committees on which he or she served, which occurred while such
director was a member of the board of directors and such committees, except that Dr. Bilenker did not attend six meetings of the board of directors and one meeting of the compensation committee. We encourage all of our directors and nominees
for director to attend our annual meetings of stockholders; however, attendance is not mandatory. Mr. Raanes and Dr. Dempsey attended our 2016 Annual Meeting.
Stockholder Communications with the Board of Directors
Should stockholders wish to communicate with the board of directors or any specified individual directors, such correspondence should be sent
to the attention of our Chief Financial Officer, at 2 Thermo Fisher Way, Oakwood Village, Ohio 44146. The Chief Financial Officer will forward the communication to the members of the board of directors.
Compensation Committee Interlocks and Insider Participation
During 2016, our compensation committee consisted of Drs. Bilenker and Castelein and Mr. Puri. No such member of our compensation
committee has at any time been one of our officers or employees. None of our executive officers currently serves, or in the past fiscal year has served, as a member of the board of directors or compensation committee of any entity that has one or
more executive officers on our board of directors or compensation committee.
18
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Related Party Transactions
ViewRay, Inc. (f/k/a Mirax
Corp.)
Except as described below and except for compensation for employment or services provided in other roles, there has not been,
nor is there currently proposed, any transaction to which ViewRay, Inc. is or was a party in which the amount involved exceeds the lesser of $120,000 and 1% of the average of its total assets at
year-end
for
the last two completed fiscal years, and in which any of our current directors, executive officers, holders of more than 5% of any class of our voting securities or any of their respective affiliates or immediate family members, had, or will have, a
direct or indirect material interest.
Merger and Private Placement Transaction
On July 8, 2015, we completed a
1.185763-for-1
forward
stock split of our common stock in the form of a dividend with the result that 4,343,339 shares of common stock, par value $0.001 per share, outstanding immediately prior to the stock split became 5,150,176 shares of common stock, par value $0.001
per share, outstanding immediately thereafter. On July 15, 2015, we changed our name to ViewRay, Inc. by filing the Certificate of Amendment to our Articles of Incorporation. Additionally, on July 21, 2015, we changed our domicile from the
State of Nevada to the State of Delaware by reincorporation, or the Conversion, and as a result of the Conversion, increased our authorized capital stock from 75,000,000 shares of common stock, par value $0.001 per share, to 300,000,000 shares of
common stock, par value $0.01 per share and 10,000,000 shares of blank check preferred stock, par value $0.01 per share. Upon effectiveness of the Conversion, our corporate matters and affairs ceased to be governed by the Nevada Revised
Statutes and became subject to the General Corporation Law of the State of Delaware. All share and per share numbers in this Report relating to our common stock have been adjusted to give effect to this forward stock split and the Conversion, unless
otherwise stated.
On July 23, 2015, our wholly-owned subsidiary, Vesuvius Acquisition Corp., a corporation formed in the State of
Delaware on July 16, 2015, or the Acquisition Sub, merged with and into ViewRay Technologies, Inc., a corporation incorporated in 2004 in the State of Florida originally under the name of ViewRay Incorporated, subsequently reincorporated in the
State of Delaware in 2007. Pursuant to this transaction, or the Merger, ViewRay Technologies, Inc. was the surviving corporation and became our wholly-owned subsidiary. All of the outstanding capital stock of ViewRay Technologies, Inc. was converted
into shares of our common stock, as described in more detail below.
Immediately prior to the closing of the Merger, under the terms of a
split-off
agreement, or the
Split-Off
Agreement, and a general release agreement, the Company transferred all of its
pre-Merger
operating assets and liabilities to its wholly-owned special-purpose subsidiary, Mirax Enterprise Corp., a Nevada corporation, or the
Split-Off
Subsidiary, formed on July 16, 2015. Thereafter, pursuant to
the
Split-Off
Agreement, the Company transferred all of the outstanding shares of capital stock of the
Split-Off
Subsidiary to the
pre-Merger
majority stockholder of the Company, and the former sole officer and director of the Company, in consideration of and in exchange for (i) the surrender and cancellation of an aggregate of
4,150,171 shares of our common stock and (ii) certain representations, covenants and indemnities, together referred to as the
Split-Off.
On August 17, 2015, we completed the third and final closing of a private placement offering, or the Private Placement, through which we
sold an aggregate of 5,884,504 shares of our common stock at a purchase price of $5.00 per share and raised a total of $26.3 million, net of offering costs.
Certain of our existing institutional investors, including investors affiliated with certain of our directors, purchased an aggregate of
3,400,003 of shares of our common stock in the Private Placement, for an aggregate
19
purchase price of $17,000,015 based on the offering price of $5.00 per share. Such purchases were made on the same terms as the shares that were sold to other investors in the Private Placement
and not pursuant to any
pre-existing
contractual rights or obligations.
|
|
|
|
|
|
|
|
|
Name
|
|
Number of
Shares of
Common
Stock
|
|
|
Aggregate
Purchase
Price ($)
|
|
OrbiMed Private Investments III, LP(1)
|
|
|
856,679
|
|
|
$
|
4,283,395
|
|
OrbiMed Associates III, LP(2)
|
|
|
8,158
|
|
|
|
40,790
|
|
F-Prime
Capital Partners Healthcare Fund II LP(3)
|
|
|
864,838
|
|
|
|
4,324,190
|
|
Aisling Capital II, LP(4)
|
|
|
864,838
|
|
|
|
4,324,190
|
|
Kearny Venture Partners, L.P.(5)
|
|
|
484,322
|
|
|
|
2,421,610
|
|
Kearny Venture Partners Enrepreneurs Fund, L.P.(6)
|
|
|
9,878
|
|
|
|
49,390
|
|
Harbour Tycoon Limited(7)
|
|
|
311,290
|
|
|
|
1,556,450
|
|
(1)
|
OrbiMed Capital GP III LLC, or GP III, is the general partner of OrbiMed Private Investments III, LP, or OPI III. OrbiMed Advisors LLC, or OrbiMed, is the managing member of GP III and the general partner of OrbiMed
Associates III, LP, or OA III. Samuel D. Isaly is the managing member of and owner of a controlling interest in OrbiMed. By virtue of such relationships, GP III, OrbiMed and Mr. Isaly may be deemed to have voting and investment power over the
shares held by OPI III and OA III. David Bonita, M.D., a member of our board of directors, is a Private Equity Partner of OrbiMed.
|
(2)
|
OrbiMed Capital GP III LLC, or GP III, is the general partner of OrbiMed Private Investments III, LP, or OPI III. OrbiMed Advisors LLC, or OrbiMed, is the managing member of GP III and the general partner of OrbiMed
Associates III, LP, or OA III. Samuel D. Isaly is the managing member of and owner of a controlling interest in OrbiMed. By virtue of such relationships, GP III, OrbiMed and Mr. Isaly may be deemed to have voting and investment power over the
shares held by OPI III and OA III. David Bonita, M.D., a member of our board of directors, is a Private Equity Partner of OrbiMed.
|
(3)
|
F/k/a Beacon Bioventures Fund II, Limited Partnership. Robert Weisskoff, Ph.D., who was a member of our board of directors, is a Partner of Fidelity Biosciences, a division of FMR LLC, which is an entity affiliated with
F-Prime
Capital Partners Healthcare Fund II LP.
|
(4)
|
Aisling Capital Partners, LP, or Aisling GP, is the general partner of the selling stockholder. Aisling Capital Partners LLC, or Aisling Partners, is the general partner of Aisling GP. The individual managing members,
or the Aisling Managers, of Aisling Partners are Dennis Purcell, Andrew Schiff, M.D. and Steve Elms. By virtue of these relationships, Aisling GP, Aisling Partners and the Aisling Managers may be deemed to have voting and investment power over the
shares held by the selling stockholder. Joshua Bilenker, M.D., a member of our board of directors, is an Operating Partner of Aisling Capital, LLC, an affiliate of the selling stockholder. Voting and dispositive decisions with respect to shares held
by the selling stockholder are not made by Dr. Bilenker; he disclaims beneficial ownership of the shares held by the selling stockholder, except to the extent of any pecuniary interest therein, if any.
|
(5)
|
Caley Castelein, M.D., a member of our board of directors, is a Managing Director of Kearny Venture Partners, L.P., or KVP, and Kearny Venture Associates, L.L.C., or KVA. KVA is the general partner of each of KVP and
Kearny Venture Partners Entrepreneurs Fund, L.P., or KVPE. Voting and dispositive decisions with respect to shares held by KVP and KVPE are made by Dr. Castelein, Richard Spalding and James Shapiro.
|
(6)
|
Caley Castelein, M.D., a member of our board of directors, is a Managing Director of KVP, and Kearny Venture Associates, L.L.C., or KVA. KVA is the general partner of each of KVP and Kearny Venture Partners
Entrepreneurs Fund, L.P., or KVPE. Voting and dispositive decisions with respect to shares held by KVP and KVPE are made by Dr. Castelein, Richard Spalding and James Shapiro.
|
(7)
|
Aditya Puri, a member of our board of directors, is an Investments Director at Xeraya Capital, an affiliate of Harbour Tycoon Limited.
|
20
2016 Private Placement
On August 19, 2016, we entered into a Securities Purchase Agreement pursuant to which we sold an aggregate of 5,983,251 shares of common
stock which consists of 4,602,506 shares of common stock and warrants to purchase 1,380,745 shares of common stock, or the 2016 Placement Warrants, for aggregate proceeds of $13.2 million, net of offering cost, or the 2016 Private Placement.
The purchase price was $2.95 per share of common stock, which is equal to the consolidated closing bid price on the NASDAQ Global Market on the day of pricing, August 18, 2016. The purchase price for each warrant was equal to $0.125 for each
share underlying the 2016 Placement Warrants, consistent with NASDAQ Global Market requirements for an at the market offering. We completed the initial closing of the 2016 Private Placement on August 22, 2016 with the final closing
on September 9, 2016.
Certain of our existing institutional investors, including investors affiliated with certain of our directors,
and members of our board of directors purchased an aggregate of 3,598,324 of shares of our common stock in the 2016 Private Placement and warrants to purchase 1,079,493 shares of common stock, for an aggregate purchase price of $10,749,999. Such
purchases were made on the same terms as the shares that were sold to other investors in the Private Placement and not pursuant to any
pre-existing
contractual rights or obligations.
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Number of
Shares of
Common
Stock
|
|
|
Number of
Shares of
Common
Stock
Underlying
Warrants
|
|
|
Aggregate
Purchase
Price ($)
|
|
Harbour Tycoon Limited(1)
|
|
|
1,472,803
|
|
|
|
441,840
|
|
|
$
|
4,400,000
|
|
Henry A. McKinnell, Jr., Ph.D.(2)
|
|
|
334,728
|
|
|
|
100,418
|
|
|
|
1,000,000
|
|
Kearny Venture Partners Entrepreneurs Fund, L.P.(3)
|
|
|
11,374
|
|
|
|
3,412
|
|
|
|
33,980
|
|
Kearny Venture Partners, L.P.(4)
|
|
|
557,663
|
|
|
|
167,298
|
|
|
|
1,666,019
|
|
Mark S. Gold, M.D.(5)
|
|
|
83,682
|
|
|
|
25,104
|
|
|
|
250,000
|
|
OrbiMed Associates III, LP(6)
|
|
|
10,736
|
|
|
|
3,220
|
|
|
|
32,075
|
|
OrbiMed Private Investments III, LP(7)
|
|
|
1,127,338
|
|
|
|
338,201
|
|
|
|
3,367,925
|
|
(1)
|
Aditya Puri, a member of our board of directors, is an Investments Director at Xeraya Capital, an affiliate of Harbour Tycoon Limited
|
(2)
|
Dr. McKinnell is a member of our board of directors.
|
(3)
|
Caley Castelein, M.D., a member of our board of directors, is a Managing Director of Kearny Venture Partners, L.P., or KVP, and Kearny Venture Associates, L.L.C., or KVA. KVA is the general partner of each of KVP and
Kearny Venture Partners Entrepreneurs Fund, L.P., or KVPE. Voting and dispositive decisions with respect to shares held by KVP and KVPE are made by Dr. Castelein, Richard Spalding and James Shapiro.
|
(4)
|
Caley Castelein, M.D., a member of our board of directors, is a Managing Director of Kearny Venture Partners, L.P., or KVP, and Kearny Venture Associates, L.L.C., or KVA. KVA is the general partner of each of KVP and
Kearny Venture Partners Entrepreneurs Fund, L.P., or KVPE. Voting and dispositive decisions with respect to shares held by KVP and KVPE are made by Dr. Castelein, Richard Spalding and James Shapiro.
|
(5)
|
Dr. Gold is a member of our board of directors.
|
(6)
|
OrbiMed Capital GP III LLC, or GP III, is the general partner of OrbiMed Private Investments III, LP, or OPI III. OrbiMed Advisors LLC, or OrbiMed, is the managing member of GP III and the general partner of OrbiMed
Associates III, LP, or OA III. Samuel D. Isaly is the managing member of and owner of a controlling interest in OrbiMed. By virtue of such relationships, GP III, OrbiMed and Mr. Isaly may be deemed to have voting and investment power over the
shares held by OPI III and OA III. David Bonita, M.D., a member of our board of directors, is a Private Equity Partner of OrbiMed.
|
(7)
|
OrbiMed Capital GP III LLC, or GP III, is the general partner of OrbiMed Private Investments III, LP, or OPI III.
OrbiMed Advisors LLC, or OrbiMed, is the managing member of GP III and the general partner of OrbiMed Associates III, LP, or OA III. Samuel D. Isaly is the managing member of and owner of a
|
21
|
controlling interest in OrbiMed. By virtue of such relationships, GP III, OrbiMed and Mr. Isaly may be deemed to have voting and investment power over the shares held by OPI III and OA III.
David Bonita, M.D., a member of our board of directors, is a Private Equity Partner of OrbiMed.
|
2017 Private
Placement
On January 13, 2017, we entered into a Securities Purchase Agreement pursuant to which we sold an aggregate of
10,323,101 shares of common stock which consists of 8,602,589 shares of common stock and warrants to purchase 1,720,512 shares of common stock, or the 2017 Placement Warrants, for aggregate gross proceeds of approximately $26.1 million, or the
2017 Private Placement. The purchase price was $3.00 per share of common stock, except that the purchase price paid by individuals who were directors and/or officers of the Company was $3.17, which is equal to the consolidated closing bid price on
the NASDAQ Global Market on the day of pricing, January 13, 2017. The purchase price for each warrant was equal to $0.125 for each share underlying the 2016 Placement Warrants, consistent with NASDAQ Global Market requirements for an at
the market offering. We completed the closing of the 2017 Private Placement on January 18, 2017.
Certain of our existing
institutional investors, including investors affiliated with certain of our directors, members of our board of directors and one of our executive officers purchased an aggregate of 7,957,962 of shares of our common stock in the 2017 Private
Placement and warrants to purchase 1,591,588 shares of common stock, for an aggregate purchase price of $24,149,982. Such purchases were made on the same terms as the shares that were sold to other investors in the Private Placement and not pursuant
to any
pre-existing
contractual rights or obligations.
In connection with the 2017 Private
Placement, the Company entered into a Stockholders Agreement with certain of its stockholders pursuant to which, among other things, such stockholders have agreed to vote, or take any other action for the purpose of electing directors to our
board of directors, in a manner necessary to elect and maintain as a director one member designated by Puissance Cross-Border Opportunities I LP, or the Puissance Director. The Puissance Director is currently Theodore T. Wang, Ph.D.
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Number of
Shares of
Common
Stock
|
|
|
Number of
Shares of
Common
Stock
Underlying
Warrants
|
|
|
Aggregate
Purchase
Price ($)
|
|
Ajay Bansal(1)
|
|
|
62,597
|
|
|
|
12,519
|
|
|
|
199,997
|
|
Henry A. McKinnell, Jr., Ph.D.(2)
|
|
|
312,989
|
|
|
|
62,597
|
|
|
|
999,999
|
|
JMSK Ltd.(3)
|
|
|
46,948
|
|
|
|
9,389
|
|
|
|
149,998
|
|
Kearny Venture Partners Entrepreneurs Fund, L.P.(4)
|
|
|
6,608
|
|
|
|
1,321
|
|
|
|
19,989
|
|
Kearny Venture Partners, L.P.(5)
|
|
|
323,970
|
|
|
|
64,794
|
|
|
|
980,009
|
|
Mark S. Gold, M.D.(6)
|
|
|
31,298
|
|
|
|
6,259
|
|
|
|
99,997
|
|
OrbiMed Associates III, LP(7)
|
|
|
3,118
|
|
|
|
623
|
|
|
|
9,431
|
|
OrbiMed Private Investments III, LP(8)
|
|
|
327,459
|
|
|
|
65,491
|
|
|
|
990,563
|
|
Puissance Cross-Border Opportunities I LP(9)
|
|
|
6,842,975
|
|
|
|
1,368,595
|
|
|
|
20,699,999
|
|
(1)
|
Mr. Bansal is our Chief Financial Officer.
|
(2)
|
Dr. McKinnell is a member of our board of directors.
|
(3)
|
Steven Gold, the son of Dr. Gold, is the General Partner of JMSK, Ltd. Dr. Gold is a member of our board of directors.
|
(4)
|
Caley Castelein, M.D., a member of our board of directors, is a Managing Director of Kearny Venture Partners, L.P., or KVP, and Kearny Venture Associates, L.L.C., or KVA. KVA is the general partner of each of KVP and
Kearny Venture Partners Entrepreneurs Fund, L.P., or KVPE. Voting and dispositive decisions with respect to shares held by KVP and KVPE are made by Dr. Castelein, Richard Spalding and James Shapiro.
|
22
(5)
|
Caley Castelein, M.D., a member of our board of directors, is a Managing Director of Kearny Venture Partners, L.P., or KVP, and Kearny Venture Associates, L.L.C., or KVA. KVA is the general partner of each of KVP and
Kearny Venture Partners Entrepreneurs Fund, L.P., or KVPE. Voting and dispositive decisions with respect to shares held by KVP and KVPE are made by Dr. Castelein, Richard Spalding and James Shapiro.
|
(6)
|
Dr. Gold is a member of our board of directors.
|
(7)
|
OrbiMed Capital GP III LLC, or GP III, is the general partner of OrbiMed Private Investments III, LP, or OPI III. OrbiMed Advisors LLC, or OrbiMed, is the managing member of GP III and the general partner of OrbiMed
Associates III, LP, or OA III. Samuel D. Isaly is the managing member of and owner of a controlling interest in OrbiMed. By virtue of such relationships, GP III, OrbiMed and Mr. Isaly may be deemed to have voting and investment power over the
shares held by OPI III and OA III. David Bonita, M.D., a member of our board of directors, is a Private Equity Partner of OrbiMed.
|
(8)
|
OrbiMed Capital GP III LLC, or GP III, is the general partner of OrbiMed Private Investments III, LP, or OPI III. OrbiMed Advisors LLC, or OrbiMed, is the managing member of GP III and the general partner of OrbiMed
Associates III, LP, or OA III. Samuel D. Isaly is the managing member of and owner of a controlling interest in OrbiMed. By virtue of such relationships, GP III, OrbiMed and Mr. Isaly may be deemed to have voting and investment power over the
shares held by OPI III and OA III. David Bonita, M.D., a member of our board of directors, is a Private Equity Partner of OrbiMed.
|
(9)
|
Puissance Capital Management LP, or PCM, is the investment manager of the Puissance Cross-Border Opportunities I LP. Puissance Capital Fund (GP) LLC and Puissance Capital Management (GP) LLC are the general partners of
PCM. Theodore T. Wang, Ph.D., a member of our board of directors, is the managing member of the general partners and may be deemed to have voting and investment power over the shares.
|
Indemnification of Directors and Officers
Our certificate of incorporation and bylaws provide that we are required to indemnify our directors and officers, in each case to the fullest
extent permitted by Delaware law. Our bylaws also provide that we are obligated to advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any
officer, director, employee or other agent for any liability arising out of his, her or its actions in that capacity regardless of whether we would otherwise be permitted to indemnify him, her or it under Delaware law.
In addition to the indemnification required in our certificate of incorporation and bylaws, we have entered into indemnification agreements
with each of our directors, officers and certain other employees at this time in the form approved by our board of directors and our stockholders. These agreements provide for the indemnification of our directors, officers and certain other
employees for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were our agents.
ViewRay Technologies, Inc. (f/k/a ViewRay Incorporated)
Except as described below and except for compensation for employment or services provided in other roles, since January 1, 2015, ViewRay
Technologies, Inc. (f/k/a ViewRay Incorporated) has not been, nor is there currently proposed, any transaction to which ViewRay Technologies, Inc. is or was a party in which the amount involved exceeds the lesser of $120,000 and 1% of the average of
its total assets at
year-end
for the last two completed fiscal years, and in which any of our current directors, executive officers, holders of more than 5% of any class of our voting securities or any of
their respective affiliates or immediate family members, had, or will have, a direct or indirect material interest.
Series C
Convertible Preferred Stock Financing Extension
In December 2014 and January 2015, ViewRay issued an aggregate of 935,248 shares of
its Series C convertible preferred stock at a price per share of $17.40 for aggregate gross consideration of $16.3 million to 10
23
accredited investors, including the conversion of all outstanding principal and interest under outstanding convertible promissory notes (the 2014 Notes) into shares of ViewRay Series
C convertible preferred stock at a price of $17.40 per share. The aggregate gross consideration received from the sale of Series C convertible preferred stock was $6.1 million, and the aggregate gross consideration received from the conversion
of all outstanding principal and interest of the 2014 Notes was $10.2 million. Shares of ViewRay Series C convertible preferred stock converted into our common stock on a 1:2.975 basis at the effective time of the Merger. The table below sets
forth the number of shares of ViewRay Series C convertible preferred stock issued to our directors, executive officers or holders of more than 5% of ViewRays
pre-Merger
capital stock, or an affiliate or
immediate family member thereof.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Number of
Shares of
Series C
Convertible
Preferred
Stock
|
|
|
Principal
Amount
Under 2014
Notes
|
|
|
Accrued
Interest
Under
2014
Notes
|
|
|
Additional
Cash
|
|
|
Aggregate
Purchase
Price($)(1)
|
|
OrbiMed Private Investments III, LP(2)
|
|
|
163,709
|
|
|
$
|
2,800,001
|
|
|
$
|
48,548
|
|
|
$
|
|
|
|
$
|
2,848,549
|
|
F-Prime
Capital Partners Healthcare Fund II LP(3)
|
|
|
163,709
|
|
|
|
2,800,001
|
|
|
|
48,548
|
|
|
|
|
|
|
|
2,848,549
|
|
Aisling Capital II, LP(4)
|
|
|
163,709
|
|
|
|
2,800,001
|
|
|
|
48,548
|
|
|
|
|
|
|
|
2,848,549
|
|
Kearny Venture Partners, L.P.(5)
|
|
|
93,548
|
|
|
|
1,599,997
|
|
|
|
27,742
|
|
|
|
|
|
|
|
1,627,739
|
|
Mark Gold, M.D. and affiliates(6)
|
|
|
5,747
|
|
|
|
|
|
|
|
|
|
|
|
100,000
|
|
|
|
100,000
|
|
(1)
|
Includes the outstanding principal amount owed and unpaid accrued interest at a rate of 8% per annum with respect to the Series C convertible preferred stock issued pursuant to the conversion of the 2014 Notes.
|
(2)
|
Includes 162,175 shares issued due to conversion of convertible promissory note principal and accrued interest to OrbiMed Private Investments III, LP and 1,544 shares issued due to conversion of convertible promissory
note principal and accrued interest to OrbiMed Associates III, LP. David Bonita, M.D., a member of our board of directors, is a Private Equity Partner at OrbiMed Advisors LLC, which is an entity affiliated with OrbiMed Private Investments III, LP
and OrbiMed Associates III, LP. Each of OrbiMed Advisors LLC and Dr. Bonita disclaims beneficial ownership of such shares, except to the extent of its or his pecuniary interest therein, if any.
|
(3)
|
Includes 163,709 shares issued due to conversion of convertible promissory note principal and accrued interest. Robert Weisskoff, Ph.D., who was a member of our board of directors, is a Partner of Fidelity Biosciences,
a division of FMR LLC, which is an entity affiliated with
F-Prime
Capital Partners Healthcare Fund II LP.
|
(4)
|
Includes 163,709 shares issued due to conversion of convertible promissory note principal and accrued interest. Joshua Bilenker, M.D., a member of our board of directors, is an Operating Partner of Aisling Capital, LLC,
which is an entity affiliated with Aisling Capital II, LP.
|
(5)
|
Includes 45,839 shares issued due to conversion of convertible promissory note principal and accrued interest to Kearny Venture Partners, L.P., 935 shares issued due to conversion of convertible promissory note
principal and accrued interest to Kearny Venture Partners Entrepreneurs Fund, L.P. and 46,774 shares issued due to conversion of convertible promissory note principal and accrued interest to Thomas Weisel Healthcare Venture Partners, L.P.
Caley Castelein, M.D., a member of our board of directors, is a Managing Director of Kearny Venture Partners, L.P., which is an entity affiliated with Kearny Venture Partners Entrepreneurs Fund, L.P..
|
(6)
|
Includes 5,747 shares purchased with cash by JMSK, Ltd. Steven Gold, the son of Mark Gold, M.D., is the General Partner of JMSK, Ltd. Mark Gold, M.D. is a member of our board of directors.
|
24
In February 2015, ViewRay issued an aggregate of 862,068 shares of its Series C convertible preferred stock
at a price of $17.40 per share for aggregate gross consideration of $15.0 million to one accredited investor. Shares of ViewRay Series C convertible preferred stock converted into our common stock on a 1:2.975 basis at the effective time of the
Merger. The table below sets forth the number of shares of ViewRay Series C convertible preferred stock issued to our directors, executive officers or holders of more than 5% of ViewRays
pre-Merger
capital stock, or an affiliate or an immediate family member thereof.
|
|
|
|
|
|
|
|
|
Name
|
|
Number of
Shares of
Series C
Convertible
Preferred
Stock
|
|
|
Aggregate
Purchase
Price($)
|
|
Harbour Tycoon Limited(1)
|
|
|
862,068
|
|
|
$
|
15,000,000
|
|
(1)
|
Aditya Puri, a member of our board of directors, is an Investments Director at Xeraya Capital, an affiliate of Harbour Tycoon Limited.
|
License Agreement with University of Florida Research Foundation, Inc.
In December 2004, we entered into a Standard Exclusive License Agreement with Sublicensing Terms with University of Florida Research
Foundation, Inc., or UFRF, under which we licensed certain patents from UFRF in exchange for royalty payments and an equity issuance, or the UFRF License Agreement. We entered into an amendment of the UFRF License Agreement in December 2007. Since
December 2004, we have paid UFRF $764,584 in royalties and $63,000 in patent and legal fees pursuant to the terms of the UFRF License Agreement. In addition, we have issued 11,312 shares of common stock to UFRF pursuant to the terms of the UFRF
License Agreement, which required us to issue UFRF a certain number of shares of common stock upon execution of the UFRF License Agreement, as well as issue UFRF additional shares of common stock to maintain UFRFs ownership of 5% of our
outstanding equity until certain financing conditions were satisfied. We have satisfied these financing conditions and have no further obligations to issue UFRF shares of our common stock pursuant to the terms of the UFRF License Agreement. Prior to
the consummation of the Private Placement, UFRF was a beneficial owner of approximately 0.10% of our capital stock on an
as-converted
basis. In connection with his former employment at the University of
Florida and his role in the development of the licensed patents under the UFRF License Agreement, as amended, James F. Dempsey, Ph.D., our Chief Scientific Officer and a member of our board of directors, receives a percentage of the royalty payments
we pay to UFRF and is entitled to a percentage of any proceeds from the sale of common stock by UFRF. Specifically, under the University of Floridas intellectual property policy, Dr. Dempsey is entitled to (i) 40% of any royalty
payments we pay to UFRF or proceeds from the sale of common stock by UFRF up to $500 thousand and then (ii) 25% of any royalty payments we pay to UFRF or proceeds from the sale of common stock by UFRF over $500 thousand.
Director and Executive Officer Compensation
Please see Executive Compensation and Director Compensation for information regarding compensation of directors and
executive officers.
Employment Agreements
We have entered into employment agreements with our executive officers. For more information regarding these agreements, see Executive
CompensationNarrative to 2016 Summary Compensation Table and Outstanding Equity Awards at 2016 Year End.
Director and Officer
Indemnification Agreements
We have entered into indemnification agreements with each of our directors and executive officers. These
agreements, among other things, require us to indemnify each director (and in certain cases their related venture
25
capital funds) and executive officer to the fullest extent permitted by Delaware law, including indemnification of expenses such as attorneys fees, judgments, fines and settlement amounts
incurred by the director or executive officer in any action or proceeding, including any action or proceeding by or in right of us, arising out of the persons services as a director or executive officer.
Policies and Procedures for Related Party Transactions
Our board of directors has adopted a written related party transaction policy setting forth the policies and procedures for the review and
approval or ratification of related person transactions. This policy covers, with certain exceptions set forth in Item 404 of
Regulation S-K,
any transaction, arrangement or relationship, or any
series of similar transactions, arrangements or relationships in which we were or are to be a participant, where the amount involved exceeds $120,000 and a related person had, has or will have a direct or indirect material interest, including,
without limitation, purchases of goods or services by or from the related person or entities in which the related person has a material interest, indebtedness, guarantees of indebtedness and employment by us of a related person. As provided by our
audit committee charter, our audit committee will be responsible for reviewing and approving in advance the related party transactions covered by the companys related transaction policies and procedures.
26
DIRECTOR COMPENSATION
In connection with the Merger, in July 2015, we approved a compensation policy for our
non-employee
directors, or the Director Compensation Program, who became our directors as a result of the Merger. Pursuant to the Director Compensation Program, each
non-employee
director receives an annual retainer of
$40,000. Any
non-employee
Chairman will receive an additional annual cash retainer in the amount of $35,000 per year, and a lead independent director, if appointed, will receive an additional annual cash
retainer in the amount of $7,500 per year.
Non-employee
directors receive additional annual retainers of $10,000 for serving on the audit committee (or $20,000 for serving as the chair of the audit committee),
$7,000 for serving on the compensation committee (or $15,000 for serving as the chair of the compensation committee) and $5,000 for serving on the nominating and corporate governance committee (or $10,000 for serving as the chair of the nominating
and corporate governance committee). Under the Director Compensation Program, retainers are to be paid to our
non-employee
directors quarterly in arrears and are
pro-rated
for any partial quarter of service. However, from the Merger in July 2015 through September 2016, our
non-employee
directors were not paid cash retainers.
Instead, in September 2016, each
non-employee
director was granted that number of fully vested restricted stock units having a grant date fair value equal to the amount of fees that was owed to the
non-employee
director based on service from the Merger in July 2015 through such date. The shares of our common stock underlying the restricted stock units will not be issued to the
non-employee
directors until the earlier of the date the
non-employee
director terminates service with us or a change of control of our company (as defined in our 2015
Equity Incentive Award Plan).
Under the Director Compensation Program, upon the directors initial appointment or election to our
board of directors, each
non-employee
director will receive an option to purchase that number of shares of our common stock such that the award has an aggregate grant date fair value equal to $176,400. In
addition, each
non-employee
director who has been serving as a director and will continue to serve as a director immediately following each annual stockholder meeting, will be automatically granted, on the
date of such annual stockholder meeting, an option to purchase that number of shares of our common stock such that the award has an aggregate grant date fair value equal to $70,200. The initial option will vest as to 1/36
th
of the shares on each monthly anniversary of the applicable grant date, subject to continued service through each applicable vesting date, and the annual option will vest as to 1/12
th
of the shares on each month anniversary of the applicable grant date, subject to continued service through such vesting date. In addition, pursuant to the terms of the Director Compensation Program,
all equity awards outstanding and held by a
non-employee
director will vest in full immediately prior to the occurrence of a change in control (as defined in the applicable equity plan such awards were granted
under).
In connection with his initial appointment to our board of directors, in April 2016, we granted Dr. McKinnell an option to
purchase 19,556 shares of our common stock at an exercise price equal to $4.45. The option vests as to 1/36
th
of the shares on each monthly anniversary of April 11, 2016, subject to
Dr. McKinnells continued service through each applicable vesting date. The annual option grant to each
non-employee
director serving on our board of directors at our 2016 annual stockholder meeting
was not granted under the Director Compensation Program because the board of directors opted to defer such grants.
27
2016 Director Compensation Table
The following table sets forth information for the year ended December 31, 2016 regarding the compensation awarded to, earned by or paid
to our
non-employee
directors.
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Director
|
|
Fees Earned
or Paid in Cash
($)(1)
|
|
|
Option
Awards(2)
($)
|
|
|
Total ($)
|
|
Joshua Bilenker, M.D.
|
|
|
82,141
|
|
|
|
|
|
|
|
82,141
|
|
David Bonita, M.D.
|
|
|
83,671
|
|
|
|
|
|
|
|
83,671
|
|
Caley Castelein, M.D.
|
|
|
93,668
|
|
|
|
|
|
|
|
93,668
|
|
Mark S. Gold, M.D.
|
|
|
64,846
|
|
|
|
|
|
|
|
64,846
|
|
Aditya Puri
|
|
|
82,141
|
|
|
|
|
|
|
|
82,141
|
|
Brian K. Roberts
|
|
|
61,314
|
|
|
|
|
|
|
|
61,314
|
|
Henry A. McKinnell, Jr., Ph.D.(3)
|
|
|
29,998
|
|
|
|
50,602
|
|
|
|
80,600
|
|
Robert Weisskoff, Ph.D.(4)
|
|
|
22,932
|
|
|
|
|
|
|
|
22,932
|
|
(1)
|
Includes the following fees earned in 2016 that were satisfied through the grant of fully vested restricted stock units for which the underlying common stock will be issued upon the earlier of a change in control or the
directors termination of service.
|
|
|
|
|
|
Name of Director
|
|
2016 Fees Satisfied in Deferred
Restricted Stock Units
|
|
Joshua Bilenker, M.D.
|
|
$
|
67,891
|
|
David Bonita, M.D.
|
|
$
|
69,291
|
|
Caley Castelein, M.D.
|
|
$
|
77,418
|
|
Mark S. Gold, M.D.
|
|
$
|
53,596
|
|
Aditya Puri
|
|
$
|
67,891
|
|
Brian K. Roberts
|
|
$
|
46,314
|
|
Henry A. McKinnell, Jr., Ph.D.
|
|
$
|
19,998
|
|
(2)
|
Amounts shown represent the grant date fair value of stock options granted, as calculated in accordance with ASC Topic 718 excluding the impact of estimated forfeitures related to service-based vesting provisions. See
footnote 14 of the financial statements included in our Annual Report on Form
10-K
filed March 17, 2017 for the assumptions used in calculating this amount. As of December 31, 2016, each of our
non-employee
directors held the following outstanding options to purchase shares of our common stock:
|
|
|
|
|
|
|
|
|
|
Name of Director
|
|
Deferred Restricted
Stock Units
|
|
|
Shares Subject to
Outstanding Options
|
|
Joshua Bilenker, M.D.
|
|
|
18,964
|
|
|
|
19,556
|
|
David Bonita, M.D.
|
|
|
19,531
|
|
|
|
19,556
|
|
Caley Castelein, M.D.
|
|
|
21,625
|
|
|
|
19,556
|
|
Mark S. Gold, M.D.
|
|
|
14,971
|
|
|
|
39,616
|
|
Aditya Puri
|
|
|
18,964
|
|
|
|
19,556
|
|
Brian K. Roberts
|
|
|
12,937
|
|
|
|
19,556
|
|
Henry A. McKinnell, Jr., Ph.D.
|
|
|
5,586
|
|
|
|
19,556
|
|
Dr. Weisskoff did not hold any outstanding equity awards as of December 31, 2016 because he resigned
his service with us earlier in the year.
(3)
|
Dr. McKinnell was appointed to our board of directors in April 2016.
|
(4)
|
Dr. Weisskoff initially resigned from the board of directors effective July 23, 2015, rejoined the Board effective September 4, 2015 and resigned from the Board effective March 30, 2016.
|
28
EXECUTIVE OFFICERS
The following is biographical information for our executive officers, including their ages as of April 1, 2017.
|
|
|
|
|
Name
|
|
Age
|
|
Position(s)
|
Chris A. Raanes
|
|
52
|
|
President and Chief Executive Officer
|
James F. Dempsey, Ph.D.
|
|
46
|
|
Chief Scientific Officer
|
Ajay Bansal
|
|
55
|
|
Chief Financial Officer
|
Douglas H. Keare
|
|
52
|
|
Chief Operating Officer
|
Chris A. Raanes
has served as our President and Chief Executive Officer and as a member of our board of
directors since February 2013. Please see Mr. Raanes biography set forth above in the section entitled Proposal 1Election of Directors.
James F. Dempsey, Ph.D.
has served as our Chief Scientific Officer since founding ViewRay in March 2004. Dr. Dempsey has been a
member of the board of directors since January 2008. Please see Dr. Dempseys biography set forth above in the section entitled Proposal 1Election of Directors.
Ajay Bansal
has served as our Chief Financial Officer since June 2016. Mr. Bansal previously served as the Chief Financial Officer
of Onconova Therapeutics, Inc. (Onconova) from March 2013 to February 2016. He also served as a member of the Board of Directors of Onconova from March 2013 until immediately prior to the listing of Onconovas common stock on the
NASDAQ Global Market in July 2013. From May 2010 to March 2013, Mr. Bansal served as Chief Financial Officer of Complete Genomics Incorporated, a life sciences company. From June 2009 to January 2010, Mr. Bansal served as Chief Financial
Officer of Lexicon Pharmaceuticals, Inc., a biopharmaceutical company. From March 2006 to October 2008, Mr. Bansal served as Chief Financial Officer of Tercica, Inc., a biopharmaceutical company. From February 2003 to January 2006,
Mr. Bansal served as Chief Financial Officer of Nektar Therapeutics, also a biopharmaceutical company. Prior to joining Nektar Therapeutics, Mr. Bansal spent more than 15 years as a management consultant at Arthur D. Little, Inc.,
McKinsey & Company, Inc. and ZS Associates, Inc., in management roles at Novartis Corporation, a pharmaceuticals company, at Mehta Partners, a financial advisory firm, and at Capital One, a bank holding company. Mr. Bansal received a
B.S. in Mechanical Engineering from the Indian Institute of Technology (Delhi) and an M.S. in Operations Research and an M.B.A. from Northwestern University.
Douglas H. Keare
has served as our Chief Operating Officer since April 2015. Mr. Keare has over 20 years of technology and medical
device executive experience. Before joining ViewRay, Mr. Keare was doing consulting work with and/or advising a number of startup companies from January 2014 to April 2015. He founded and served as CEO of RallyOn, Inc., a software company
focused on corporate health and wellness, from October 2008 to December 2013. Prior to that, Mr. Keare served as Vice President of Customer and Technical Support at Accuray Inc. from December 2002 to January 2007. Mr. Keare also served as
the President and Chief Operating Officer for Pricing Dynamics from July 2000 to July 2002. He held several positions at ADAC Laboratories in Customer Support, Operations and Quality from October 1992 to March 1999. As Vice President of Quality, he
led ADACs successful effort to win the Malcolm Baldridge National Quality Award in 1996. Mr. Keare received a B.A. in Economics from Dartmouth College and an M.B.A. from Stanford Universitys Graduate School of Business.
29
EXECUTIVE COMPENSATION
The following is a discussion and analysis of compensation arrangements of our named executive officers, or NEOs. As an emerging growth
company as defined in the JOBS Act, we are not required to include a Compensation Discussion and Analysis section and have elected to comply with the scaled disclosure requirements applicable to emerging growth companies.
We seek to ensure that the total compensation paid to our executive officers is reasonable and competitive. Compensation of our executives is
structured around the achievement of individual performance and near-term corporate targets as well as long-term business objectives.
Our
NEOs for 2016 were as follows:
|
|
|
Chris A. Raanes, President and Chief Executive Officer;
|
|
|
|
James F. Dempsey, Ph.D., Chief Scientific Officer;
|
|
|
|
Ajay Bansal, Chief Financial Officer; and
|
|
|
|
D. David Chandler, former Chief Financial Officer.
|
Mr. Chandler resigned his employment
with us in June 2016 and Mr. Bansal commenced service as our Chief Financial Officer in June 2016.
2016 Summary Compensation Table
The following table sets forth total compensation paid to our named executive officers for the years ended December 31, 2016 and
December 31, 2015. For the portion of fiscal year 2015 prior to the Merger in July 23, 2015, the amounts for each NEO (except Mr. Bansal) include compensation received from ViewRay.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name and Principal Position
|
|
Year
|
|
|
Salary ($)
|
|
|
Bonus ($)
(1)(2)
|
|
|
Option
Awards
($)(2)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)(3)
|
|
|
All Other
Compensation($)
|
|
|
Total ($)
|
|
Chris A. Raanes,
|
|
|
2016
|
|
|
|
415,000
|
|
|
|
|
|
|
|
|
|
|
|
207,500
|
|
|
|
|
|
|
|
622,500
|
|
President & Chief
Executive Officer
|
|
|
2015
|
|
|
|
415,000
|
|
|
|
|
|
|
|
1,317,200
|
|
|
|
114,125
|
|
|
|
|
|
|
|
1,846,325
|
|
|
|
|
|
|
|
|
|
James F. Dempsey, Ph.D.,
|
|
|
2016
|
|
|
|
260,000
|
|
|
|
|
|
|
|
|
|
|
|
91,000
|
|
|
|
|
|
|
|
351,000
|
|
Chief Scientific Officer
|
|
|
2015
|
|
|
|
260,000
|
|
|
|
|
|
|
|
790,821
|
|
|
|
50,050
|
|
|
|
|
|
|
|
1,100,871
|
|
|
|
|
|
|
|
|
|
Ajay Bansal,
|
|
|
2016
|
|
|
|
186,445
|
|
|
|
25,000
|
|
|
|
1,570,235
|
|
|
|
83,811
|
|
|
|
|
|
|
|
1,865,491
|
|
Chief Financial Officer(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D. David Chandler,
|
|
|
2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
166,921
|
(5)
|
|
|
166,921
|
|
Former Chief Financial Officer(5)
|
|
|
2015
|
|
|
|
206,000
|
|
|
|
|
|
|
|
268,369
|
|
|
|
39,655
|
|
|
|
|
|
|
|
514,024
|
|
(1)
|
Constitutes a
sign-on
bonus payable to Mr. Bansal pursuant to his offer letter that was satisfied through the grant of fully vested restricted stock units in December 2016
having a grant date fair value equal to $25,000.
|
(2)
|
Amounts shown represent the grant date fair value of restricted stock units and stock options granted, as calculated in accordance with ASC Topic 718 excluding the impact of estimated forfeitures related to
service-based vesting provisions. See footnote 14 of the financial statements included in our Annual Report on Form
10-K
filed March 17, 2017 for the assumptions used in calculating this amount.
|
(3)
|
Represents amount paid under our cash incentive programs which are earned by our NEOs pursuant to the achievement of certain performance objectives. For fiscal year 2016, these amounts will be paid to our NEOs in early
2017. Please see the descriptions of the annual bonuses paid to our NEOs in Narrative to 2016 Summary Compensation Table and Outstanding Equity Awards at 2016 Fiscal Year EndTerms and Conditions of Annual Bonuses below.
|
30
(4)
|
Mr. Bansal commenced employment with us in June 2016. Mr. Bansals salary and bonus was
pro-rated
for his partial year of service.
|
(5)
|
Mr. Chandler resigned his employment with us in June 2016. Amounts shown in the All Other Compensation column equals (i) $103,000, which represents six months of continued payments of
Mr. Chandlers base salary, (ii) $19,828, which represents 50% of Mr. Chandlers annual performance bonus for 2015, (iii) $39,655, which represents Mr. Chandlers 2015 annual performance bonus paid to Mr. Chandler
and (iv) $4,438 which represents consulting fees paid to Mr. Chandler, in each case, pursuant to his transition and separation agreement entered into in connection with his resignation. Please see the descriptions of the annual bonuses paid to
our NEOs in Narrative to 2016 Summary Compensation Table and Outstanding Equity Awards at 2016 Fiscal Year EndSeparation Agreement with David Chandler below.
|
Outstanding Equity Awards at 2016 Fiscal Year End
The following table lists all outstanding equity awards held by our NEOs as of December 31, 2016. Mr. Chandler held no outstanding
equity awards as of December 31, 2016 because his employment terminated in June 2016.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
|
Vesting
Commencement
Date(1)
|
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
|
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
|
|
|
Option
Exercise
Price ($)
|
|
|
Option
Expiration
Date
|
|
Name
|
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
|
Chris A. Raanes
|
|
|
2/4/2013
|
(2)
|
|
|
769,456
|
|
|
|
215,405
|
|
|
|
0.70
|
|
|
|
2/7/2023
|
|
|
|
|
5/13/2013
|
|
|
|
349,652
|
|
|
|
40,650
|
|
|
|
0.75
|
|
|
|
4/11/2024
|
|
|
|
|
11/13/2013
|
|
|
|
114,510
|
|
|
|
34,034
|
|
|
|
0.75
|
|
|
|
4/11/2024
|
|
|
|
|
7/23/2015
|
|
|
|
161,075
|
|
|
|
293,702
|
|
|
|
5.00
|
|
|
|
7/23/2025
|
|
James F. Dempsey, Ph.D.
|
|
|
1/8/2008
|
(2)
|
|
|
75,243
|
|
|
|
|
|
|
|
0.80
|
|
|
|
6/17/2018
|
|
|
|
|
6/17/2010
|
(3)
|
|
|
61,752
|
|
|
|
|
|
|
|
0.68
|
|
|
|
6/29/2020
|
|
|
|
|
7/14/2010
|
|
|
|
197,635
|
|
|
|
|
|
|
|
0.68
|
|
|
|
6/29/2020
|
|
|
|
|
3/1/2012
|
|
|
|
63,257
|
|
|
|
|
|
|
|
0.70
|
|
|
|
8/8/2022
|
|
|
|
|
5/13/2013
|
|
|
|
86,139
|
|
|
|
10,010
|
|
|
|
0.75
|
|
|
|
4/11/2024
|
|
|
|
|
11/13/2013
|
|
|
|
183,607
|
|
|
|
54,549
|
|
|
|
0.75
|
|
|
|
4/11/2024
|
|
|
|
|
7/23/2015
|
|
|
|
96,711
|
|
|
|
176,328
|
|
|
|
5.00
|
|
|
|
7/23/2025
|
|
Ajay Bansal
|
|
|
6/8/2016
|
(2)
|
|
|
|
|
|
|
550,000
|
|
|
|
4.60
|
|
|
|
6/14/2026
|
|
|
|
|
9/13/2016
|
(2)
|
|
|
|
|
|
|
59,832
|
|
|
|
3.58
|
|
|
|
9/13/2026
|
|
(1)
|
Except as otherwise noted, these options vest and become exercisable as to 1/48th of the shares on each monthly anniversary of the vesting commencement date, such that all shares subject to an option will be vested and
exercisable on the fourth anniversary of the vesting commencement date, subject to the holder continuing to provide services to us through the applicable vesting date.
|
(2)
|
These options vest and become exercisable as to 25% of the shares on the first anniversary of the vesting commencement date and vest and become exercisable as to 1/48th of the shares on each monthly anniversary
thereafter, such that all shares subject to an option will be vested on the fourth anniversary of the vesting commencement date, subject to the holder continuing to provide services to us through the applicable vesting date.
|
(3)
|
The option vests and becomes exercisable in 36 installments on each monthly anniversary of the vesting commencement date, such that all awards will be vested on the third anniversary of the vesting commencement date,
subject to Dr. Dempsey continuing to provide services to the company through such vesting date.
|
31
Narrative to 2016 Summary Compensation Table and Outstanding Equity Awards at 2016 Year End
In connection with the Merger, Mr. Raanes, Dr. Dempsey and Mr. Chandler continued to be employed with us under the terms of
their employment agreement or offer letter, as applicable, with ViewRay. Mr. Chandler entered into a transition and separation agreement with us in June 2016 in connection with his resignation of employment. Mr. Bansal entered into a new
offer letter with us in connection with his commencement of employment with us in June 2016.
Employment Agreement with Chris A. Raanes
In January 2013, ViewRay entered into an employment agreement with Mr. Raanes, or the Raanes Agreement, to serve as our
President and Chief Executive Officer and as a member of our board of directors, providing for base salary, target annual bonus opportunity and standard employee benefit plan participation. Mr. Raanes base salary is subject to annual
increases in the sole discretion of the board of directors. Mr. Raanes base salary for 2016 was $415,000, and he had an annual bonus target of 50% of base salary that is earned based on the achievement of certain milestones. Please see
the section below titled Terms and Conditions of Annual Bonuses for a further description of the annual bonuses awarded to Mr. Raanes. Under the Raanes Agreement, Mr. Raanes employment is terminable
at-will.
Mr. Raanes has also executed ViewRays standard confidential information and invention assignment agreement, which contains certain
non-competition
covenants.
The Raanes Agreement also provides Mr. Raanes with certain severance and change in control benefits.
Mr. Raanes was eligible to participate in any carveout plan that ViewRay adopted, with minimum levels of compensation at various transaction price levels as set forth in the Raanes Agreement. ViewRay never adopted any such carveout plan
prior to the Merger (and as a result Mr. Raanes was not eligible for any such carveout payments).
In addition, pursuant to the
Raanes Agreement, if Mr. Raanes employment is terminated without cause or Mr. Raanes resigns for good reason (as defined below) at any time three months prior to or 18 months following a change of control, then the
vesting and exercisability of Mr. Raanes initial option granted under the Raanes Agreement will accelerate in full.
Additionally, in the event that Mr. Raanes is terminated without cause or resigns for good reason, subject to his executing and not
revoking a general release of all claims, then Mr. Raanes will become entitled to receive (i) a severance payment equal to 12 months of his annual base salary, payable in substantially equal installments, (ii) a lump sum cash
payment equal to a
pro-rated
portion of his annual performance bonus payable on the later of (a) the annual date bonuses are made to current employees and (b) the first installment payment for the
base salary severance, (iii) payment or reimbursement by us of COBRA premiums for up to 12 months, and (iv) accelerated vesting of Mr. Raanes option granted under the Raanes Agreement with respect to that number of shares
that would have vested had he remained employed with the company for an additional 12 months.
Under the Raanes Agreement,
change of control means (i) a sale of all or substantially all of the assets of the company and its subsidiaries taken as a whole or (ii) a merger, consolidation or other similar business combination involving the company, if,
upon completion of such transaction, the beneficial owners of voting equity securities of the company immediately prior to the transaction beneficially own less than 50% of the successor entitys voting equity securities; provided that
change of control will not include a transaction where the consideration received or retained by the holders of the then-outstanding capital stock of the company does not consist primarily of (a) cash or cash equivalent
consideration, (b) securities which are registered under the Securities Act or any successor statute thereto, or (c) securities for which the company or any other issuer thereof has agreed, including pursuant to a demand, to file a
registration statement within 90 days of completion of the transaction for resale to the public pursuant to the Securities Act.
Under the Raanes Agreement, cause means Mr. Raanes (i) dishonesty of a material nature; (ii) theft or
embezzlement of our funds or assets; (iii) conviction of, or guilty or no contest plea to, a felony charge or
32
misdemeanor involving moral turpitude, or the entry of a consent decree with any governmental body; (iv) noncompliance in any material respect with any laws or regulations, foreign or
domestic; (v) violation of any express direction or any rule, regulation or policy established by the board of directors that is consistent with the terms of the Raanes Agreement; (vi) material breach of the Raanes Agreement or material
breach of Mr. Raanes fiduciary duties to the company; (vii) gross incompetence, gross neglect or gross misconduct in the performance of his duties; or (viii) repeated and consistent failure to perform the duties under the Raanes
Agreement during normal business hours except during vacation periods or absences due to temporary illness. If the board of directors determines in good faith that cause exists, Mr. Raanes will be given written notice by the board of directors
that provides the factual basis for the determination prior to that determination being final and Mr. Raanes will have 10 business days to respond and to attempt to cure the condition, although no cure period need be offered if the board
of directors reasonably determines that the conditions are not subject to cure.
Under the Raanes Agreement, good reason means
a resignation that occurs within 30 days following Mr. Raanes first having knowledge of any (i) material reduction in his base salary, (ii) material breach of the Raanes Agreement by the company, or (iii) material
diminution of Mr. Raanes title as Chief Executive Officer or responsibility as Chief Executive Officer imposed by the board of directors (other than in response to an event constituting cause). With respect to subsection (i), any
reduction consistent with general reductions in the base salaries of other executives as part of a plan to avoid insolvency or manage any financial distress or hardship of the company will not be deemed to constitute a material reduction in his base
salary; and with respect to subsection (ii), good reason will only exist where Mr. Raanes has provided the company with written notice of the breach and the company has failed to cure such breach within 10 business days of such
written notice.
Offer Letter to James F. Dempsey, Ph.D.
In October 2010, ViewRay entered into an offer letter with Dr. Dempsey that provides for employment
at-will
and annual base salary, annual target bonus, option awards and certain other benefits. Dr. Dempseys base salary for 2016 was $260,000. In addition, for 2016, Dr. Dempsey has an annual
target bonus of 35% of base salary awarded based on the achievement of certain milestones. Please see the section titled Terms and Conditions of Annual Bonuses below for a further description of the annual bonuses awarded to
Dr. Dempsey. His offer letters also contain certain
non-disparagement
and
non-competition
restrictive covenants (during Dr. Dempseys employment and for
12 months following termination). The offer letter also provides Dr. Dempsey with certain severance and change of control benefits.
In the event that Dr. Dempsey is terminated without cause, subject to executing and not revoking a general release of all claims, then
Dr. Dempsey is entitled to receive a severance payment equal to 12 months of his base salary plus his annual bonus for the year preceding the termination date, payable in substantially equal installments over the
six-month
period following his termination.
Change of control has the same meaning as under
the Raanes Agreement. Cause means Dr. Dempseys (i) willful failure to perform his material duties, other than a failure resulting from his complete or partial incapacity due to long-term physical or mental illness or
impairment, (ii) willful act that constitutes gross misconduct and that is injurious to the company, (iii) willful breach of a provision of the offer letter, (iv) material or willful violation of a federal or state law or regulation
applicable to the business of the company, or (v) conviction or plea of guilty or no contest to a felony.
Offer Letter to Ajay Bansal
Effective as of June 2016, we entered into an offer letter with Mr. Bansal that provides for employment
at-will
and annual base salary, annual target bonus, option awards and certain other benefits. Mr. Bansals base salary for 2016 was $330,000
(pro-rated
for his
partial service) and his target annual bonus percentage for 2016 was 45%. Please see the section titled Terms and Conditions of Annual Bonuses below for a further description of the annual bonuses awarded to Mr. Bansal.
Mr. Bansals offer letter also contains a
sign-on
bonus equal to
33
$75,000 in the aggregate, whereby $25,000 will be paid to Mr. Bansal in December 2016, March 2017 and June 2017, subject to Mr. Bansals continued employment through the applicable
payment date. For the December 2016 payment, Mr. Bansals
sign-on
bonus was settled when the company issued to him fully vested restricted stock units. The offer letter also includes the promise to
grant an option as discussed in more details below under the section entitled
Terms and Conditions of Equity Awards
, whereby the option will accelerate in full in the event he is terminated without cause (as defined
below) or resigns for good reason (as defined below) within 12 months following a change of control (as defined below). In addition, in the event we closed an equity financing transaction in 2016, we would grant
Mr. Bansal an addition option to up to an amount of our common stock equal to 1% of the number of shares of common stock issued by us in such financing transaction. His offer letters also contain certain
non-disparagement
and confidential information restrictive covenants.
The offer letter also
provides Mr. Bansal with certain severance and change of control benefits. In the event that Mr. Bansal is terminated without cause or resigns for good reason, subject to executing and not revoking a general release of all claims, then
Mr. Bansal is entitled to receive a severance payment equal to six months of his base salary plus 50% of his annual bonus for the year preceding the termination date, payable in substantially equal installments over the
six-month
period following his termination. Change of control has the same meaning as under the Raanes Agreement. Cause has the same meaning as under Dr. Dempseys offer letter.
Good reason means the occurrence of one or more of the following conditions, without Mr. Bansals consent and without remedy by the company: (i) a material reduction in his compensation, including but not limited to his
level of base salary and annual bonus opportunity, other than reductions approved by the board of directors that are applicable to all employees; (ii) a material,
non-voluntary,
reduction in his
authority, duties, position, title or responsibilities or a material, adverse change in his reporting structure; or (iii) a reduction in the kind or level of his benefits to which he was entitled immediately prior to such reduction, other than
reductions approved by the board of directors that are applicable to all employees of the company.
Separation Agreement with D. David Chandler
In October 2010, ViewRay entered into an offer letter with Mr. Chandler on substantially similar terms to
Dr. Dempseys offer letter. Mr. Chandler resigned his employment with us effective as of June 8, 2016. In connection with Mr. Chandlers resignation and in consideration of his release of claims against us and our
affiliates, on June 8, 2016, the Company entered into a separation agreement with Mr. Chandler. Under the separation agreement, Mr. Chandler will receive, among the other benefits provided for in the separation agreement,
(i) cash payments equal to Mr. Chandlers base salary at the rate in effect immediately prior to the separation date for the six months following the separation date, (ii) a cash payment of $19,828 (which amount is equal to 50%
of Mr. Chandlers 2015 annual performance bonus amount), (iii) within thirty (30) days following the payment to other executives of their 2015 bonuses, a cash payment of $39,655 (which amount is equal to Mr. Chandlers 2015
annual performance bonus amount) and (iv) $4,438 which represents consulting fees paid to Mr. Chandler for transition related services performed after June 8, 2016.
Terms and Conditions of Annual Bonuses
For 2016, all of the NEOs were eligible for cash performance-based bonuses pursuant to the achievement of certain performance objectives. The
performance targets are approved annually by our board of directors. When determining the 2016 performance bonus program for the NEOs, in late 2015, the board of directors set certain performance goals, using a mixture of performance objectives
after receiving input from our Chief Executive Officer. These performance objectives included certain revenue, gross margin, financial and product development measures. There was no specific weighting for each performance goal when determining the
overall bonus amount, and instead the board of directors evaluated the overall achievement of all performance goals based on the importance to the success of the company. For each of these performance goals under the annual bonus program, the board
of directors set general performance goals, but there was no minimum or maximum achievement for each performance target; instead, the board of directors weighed the achievement, partial achievement or
non-achievement
for each performance target when deciding the overall achievement level.
34
These performance goals were not expected to be attained based on average or below-average performance. The board of directors intended for the performance targets to require significant effort
on the part of the NEOs and, therefore, set these targets at levels they believed would be difficult to achieve, such that average or below-average performance would not satisfy these targets.
Each NEOs target bonus opportunity is expressed as a percentage of base salary which can be achieved by meeting corporate goals. For
each of the NEOs, his target bonus opportunity is originally set in his employment agreement or offer letter, as applicable, with the company as described above. The board of directors reviews these target percentages to ensure they are adequate,
and, while reviewing these target percentages the board of directors does not follow a formula but rather uses the factors as general background information prior to determining the target bonus opportunity rates for the participating NEOs. The
board of directors sets these rates based on each participating executives experience in his role with the company and the level of responsibility held by each executive, which the board of directors believes directly correlates to his ability
to influence corporate results. For 2016, the board of directors used a guideline target bonus opportunity of 50% for Mr. Raanes, 35% for Dr. Dempsey and Mr. Chandler and 45% for Mr. Bansal. The bonus payable to Mr. Bansal
is subject to
pro-ration
for his partial year of service because he commenced employment with us in June 2016.
Corporate goals and performance targets are reviewed and approved by the board of directors prior to any allocation of the annual bonuses. In
early 2017, the board of directors reviewed our 2016 company-wide performance with respect to determining bonuses for executive officers and determined achievement of the performance goals at 100%. Following its review and determinations, the board
of directors awarded cash bonuses to the NEOs at 100% of their target bonus opportunity ($207,500 for Mr. Raanes, $91,000 for Dr. Dempsey and $83,811 for Mr. Bansal). Mr. Bansals bonus was
pro-rated
for his partial year of service. The NEOs 2016 annual bonuses are set forth in the 2016 Summary Compensation Table above.
Terms and Conditions of Equity Awards
Mr. Bansal was the only NEO to receive an option grant in 2016. In connection with the commencement of employment with us in June 2016, we
granted Mr. Bansal an option to purchase 550,000 shares of our common stock, at an exercise price per share equal to $4.60. In September 2016, after the closing of an equity financing transaction and pursuant to his offer letter, we granted
Mr. Bansal another option to purchase 59,832 shares of our common stock, at an exercise price equal to $3.58. The options will vest and become exercisable with respect to 25% of the shares on the first anniversary of the date of grant and
thereafter as to 1/48
th
of the aggregate shares in substantially equal monthly installments, subject to Mr. Bansal continuing to provide services to us through the applicable vesting date. In
December 2016, we granted Mr. Bansal 7,507 restricted stock units in satisfaction of the $25,000
sign-on
bonus payable to him in December 2016 pursuant to his offer letter agreement. The restricted stock
units were fully vested on the date of grant.
Terms and Conditions of 401(k) Plan
In June 2008, ViewRay adopted the 401(k) Retirement Savings Plan for employees, which we assumed in connection with the Merger. Under the
401(k) plan, employees may elect to reduce their current compensation by up to the statutorily prescribed annual limit and to have the amount of such reduction contributed to the 401(k) plan. We do not currently make any matching contributions under
our 401(k) plan.
35
Equity Compensation Plan Information
The following table provides certain information as of December 31, 2016, with respect to all of our equity compensation plans in effect
on that date.
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan Category
|
|
Number of Securities
To be Issued Upon Exercise
of Outstanding Options,
Warrants and
Rights
(a)
|
|
|
Weighted-Average
Exercise Price of
Outstanding Options,
Warrants
and Rights
(b)
|
|
|
Number of Securities
Remaining Available for
Future Issuance Under
Equity Compensation Plans
(Excluding
Securities
Reflected in Column (a))
(c)
|
|
Equity Compensation Plans Approved by Stockholders(1)(2)
|
|
|
6,127,291
|
|
|
$
|
2.60
|
(3)
|
|
|
2,836,061
|
(4)
|
Equity Compensation Plans Not Approved by Stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
6,127,291
|
|
|
$
|
2.60
|
|
|
|
2,836,061
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Includes the ViewRay Incorporated 2008 Stock Option and Incentive Plan, or 2008 Plan; the ViewRay, Inc. 2015 Equity Incentive Award Plan, or 2015 Plan; and the ViewRay, Inc. 2015 Employee Stock Purchase Plan, or ESPP.
|
(2)
|
The 2015 Plan contains an evergreen provision, pursuant to which the number of shares of common stock reserved for issuance pursuant to awards under such plan shall be increased on the first day of each year
beginning in 2017 and ending in 2026, in each case subject to the approval of the compensation committee of our board of directors on or prior to the applicable date, equal to the lesser of (A) four percent (4%) of the shares of stock
outstanding (on an as converted basis) on the last day of the immediately preceding fiscal year and (B) such smaller number of shares of stock as determined by our board of directors; provided, however, that no more than 15,000,000 shares of
stock may be issued upon the exercise of incentive stock options. The ESPP contains an evergreen provision, pursuant to which the number of shares of common stock reserved for issuance under such plan shall be increased on the first day
of each year beginning in 2016 and ending in 2025, in each case subject to the approval of the compensation committee of our board of directors on or prior to the applicable date, equal to the lesser of (A) one percent (1%) of the shares of
stock outstanding (on an as converted basis) on the last day of the immediately preceding fiscal year and (B) such smaller number of shares of stock as determined by our board of directors; provided, however, no more than 1,675,000 shares of
stock may be issued under the ESPP.
|
(3)
|
Represents the weighted average exercise price of outstanding options under the 2008 Plan and 2015 Plan.
|
(4)
|
Includes 2,168,391 shares that were available for future issuance as of December 31, 2016 under the 2015 Plan and 667,670 shares that were available for future issuance as of December 31, 2016 under the ESPP,
which allows eligible employees to purchase shares of common stock with accumulated payroll deductions.
|
36
INFORMATION ABOUT STOCK OWNERSHIP
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table presents information as to the beneficial ownership of our common stock as of March 31, 2017 for:
|
|
|
each person, or group of affiliated persons, known by us to beneficially own more than five percent of our common stock;
|
|
|
|
each named executive officer as set forth in the summary compensation table included in this proxy statement;
|
|
|
|
each of our directors; and
|
|
|
|
all current executive officers and directors as a group.
|
Beneficial ownership is determined
in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole
investment power with respect to all shares beneficially owned, subject to community property laws where applicable. Shares of our common stock subject to common stock warrants, options that are currently exercisable or exercisable within
60 days of March 31, 2017, and restricted stock units that vest within 60 days of March 31, 2017, are deemed to be outstanding and to be beneficially owned by the person holding such securities for the purpose of computing the
percentage ownership of that person, but are not treated as outstanding for the purpose of computing the percentage ownership of any other person.
Percentage ownership of our common stock in the table is based on 56,086,583 shares of our common stock issued and outstanding on
March 31, 2017. Unless otherwise indicated, the address of each of the individuals and entities named below is c/o ViewRay, Inc., 2 Thermo Fisher Way, Oakwood Village, Ohio 44146.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name and Address of Beneficial Owner
|
|
Number of
Outstanding
Shares
Beneficially
Owned
|
|
|
Number of
Shares
Exercisable
Within 60
Days
|
|
|
Number of
Shares
Beneficially
Owned
|
|
|
Percentage of
Beneficial
Ownership
|
|
5% and Greater Stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Entities affiliated with OrbiMed Private Investments III, LP(1)
|
|
|
9,458,567
|
|
|
|
407,535
|
|
|
|
9,866,102
|
|
|
|
17.91
|
%
|
Puissance Cross-Border Opportunities I LP(2)
|
|
|
6,842,975
|
|
|
|
1,368,595
|
|
|
|
8,211,570
|
|
|
|
14.64
|
|
Aisling Capital II, LP(3)
|
|
|
7,461,923
|
|
|
|
|
|
|
|
7,461,923
|
|
|
|
13.30
|
|
Entities affiliated with FMR LLC(4)
|
|
|
6,884,721
|
|
|
|
|
|
|
|
6,884,721
|
|
|
|
12.28
|
|
Harbour Tycoon Limited(5)
|
|
|
4,876,745
|
|
|
|
441,840
|
|
|
|
5,318,585
|
|
|
|
9.48
|
|
Entities affiliated with Kearny Venture Partners, L.P.(6)
|
|
|
3,429,537
|
|
|
|
236,825
|
|
|
|
3,666,362
|
|
|
|
6.54
|
|
|
|
|
|
|
Named Executive Officers and Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chris A. Raanes(7)
|
|
|
|
|
|
|
1,606,371
|
|
|
|
1,606,371
|
|
|
|
2.78
|
%
|
James F. Dempsey, Ph.D.(8)
|
|
|
182,602
|
|
|
|
840,090
|
|
|
|
1,022,692
|
|
|
|
1.80
|
|
Ajay Bansal(9)
|
|
|
70,104
|
|
|
|
15,645
|
|
|
|
85,749
|
|
|
|
*
|
|
D. David Chandler(10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Joshua Bilenker, M.D.(11)
|
|
|
7,461,923
|
|
|
|
38,520
|
|
|
|
7,500,443
|
|
|
|
13.36
|
|
David Bonita, M.D.(12)
|
|
|
9,458,567
|
|
|
|
446,622
|
|
|
|
9,905,189
|
|
|
|
17.65
|
|
Caley Castelein, M.D.(13)
|
|
|
3,429,537
|
|
|
|
278,006
|
|
|
|
3,707,543
|
|
|
|
6.61
|
|
Mark S. Gold, M.D.(14)
|
|
|
161,938
|
|
|
|
95,219
|
|
|
|
257,157
|
|
|
|
*
|
|
Henry A. McKinnell, Jr., Ph.D. (15)
|
|
|
647,717
|
|
|
|
188,157
|
|
|
|
835,874
|
|
|
|
1.49
|
|
Aditya Puri(16)
|
|
|
4,876,745
|
|
|
|
480,360
|
|
|
|
5,357,105
|
|
|
|
9.54
|
|
Brian K. Roberts(17)
|
|
|
|
|
|
|
32,493
|
|
|
|
32,493
|
|
|
|
*
|
|
Theodore T. Wang(18)
|
|
|
6,842,975
|
|
|
|
1,375,115
|
|
|
|
8,218,090
|
|
|
|
14.65
|
|
All current directors and executive officers as a group (14 persons)(19)
|
|
|
33,132,108
|
|
|
|
5,635,932
|
|
|
|
38,768,040
|
|
|
|
62.81
|
|
37
*
|
Represents beneficial ownership of less than one percent of our outstanding shares of common stock.
|
(1)
|
Includes (i) 9,369,342 shares held by OrbiMed Private Investments III, LP, or OPI III, (ii) 403,692 shares issuable upon the exercise of common stock warrants held by OPI III, (iii) 89,225 shares held by OrbiMed
Associates III, LP, or OA III and (iv) 3,843 shares issuable upon the exercise of common stock warrants held by OA III. OrbiMed Capital GP III LLC, or GP III, is the general partner of OPI III. OrbiMed is the managing member of GP III and the
general partner of OA III. Samuel D. Isaly is the managing member of and owner of a controlling interest in OrbiMed Advisors LLC, or OrbiMed. By virtue of such relationships, GP III, OrbiMed and Mr. Isaly may be deemed to have voting and
investment power over the shares held by OPI III and OA III. David Bonita, M.D., a member of our board of directors, is a Private Equity Partner of OrbiMed. Each of GP III, OrbiMed, Mr. Isaly and Dr. Bonita disclaim beneficial ownership of
the shares held by OPI III and OA III, except to the extent of its or his pecuniary interest therein, if any. The address of OrbiMed Investments and OrbiMed Associates is c/o OrbiMed Advisors LLC, 601 Lexington Avenue, 54th Floor, New York, New York
10022.
|
(2)
|
Includes 1,368,595 shares issuable upon the exercise of a common stock warrant held by Puissance Cross-Border Opportunities I LP, or PCBO. Puissance Capital Management LP, or PCM, is the investment manager of PCBO.
Puissance Capital Fund (GP) LLC and Puissance Capital Management (GP) LLC are the general partners of PCM. Theodore T. Wang, Ph.D., a member of our board of directors, is the managing member of general partners and may be deemed to have voting and
investment power over the shares held by PCBO.
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(3)
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Aisling Capital Partners, LP, or Aisling GP, is the general partner of Aisling Capital II, LP, or Aisling. Aisling Capital Partners LLC, or Aisling Partners, is the general partner of Aisling GP. The individual managing
members, or the Aisling Managers, of Aisling Partners are Dennis Purcell, Andrew Schiff, M.D. and Steve Elms. By virtue of these relationships, Aisling GP, Aisling Partners and the Aisling Managers may be deemed to have voting and investment power
over the shares held by Aisling. Joshua Bilenker, M.D., a member of our board of directors, is an Operating Partner of Aisling Capital, LLC, an affiliate of Aisling. Voting and dispositive decisions with respect to shares held by Aisling are not
made by Dr. Bilenker; he disclaims beneficial ownership of the shares held by Aisling, except to the extent of any pecuniary interest therein, if any. The address of Aisling is c/o Aisling Capital, LLC, 888 Seventh Avenue, 30th Floor, New York,
New York 10106.
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(4)
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As reported on Schedule 13G/A filed by FMR LLC and Abigail P. Johnson on March 30, 2017, consists of an aggregate of 6,884,721 shares beneficially owned by FMR LLC. Abigail P. Johnson is a Director, the Chairman
and the Chief Executive Officer of FMR LLC. Members of the Johnson family, including Abigail P. Johnson, are the predominant owners, directly or through trusts, of Series B voting common shares of FMR LLC, representing 49% of the voting power of FMR
LLC. The Johnson family group and all other Series B shareholders have entered into a shareholders voting agreement under which all Series B voting common shares will be voted in accordance with the majority vote of Series B voting common
shares. Accordingly, through their ownership of voting common shares and the execution of the shareholders voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group
with respect to FMR LLC. FMR has its principal business office at 245 Summer Street, Boston MA 02210.
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(5)
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Includes (i) 4,876,745 shares held by Harbour Tycoon Limited and (ii) 441,840 shares issuable upon the exercise of common stock warrants held by Harbour Tycoon Limited. Aditya Puri, a member of our board of directors,
is an Investments Director at Xeraya Capital, an affiliate of Harbour Tycoon Limited. The address of Harbour Tycoon Limited is c/o 2nd Floor, The Grand Pavilion Commercial Centre, 802 West Bay Road, P.O. Box 1338, Grand Cayman
KY1-1003,
Cayman Islands.
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(6)
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Includes (i) 3,360,992 shares held by Kearny Venture Partners, L.P., or KVP, (ii) 232,092 shares issuable upon
the exercise of common stock warrants held by KVP, (iii) 68,545 shares held by Kearny Venture Partners Entrepreneurs Fund, L.P., or KVPE, and (iv) 4,733 shares issuable upon the exercise of common stock warrants held by KVPE. Caley Castelein,
M.D., a member of our board of directors, is a Managing Director of KVP and Kearny Venture Associates, L.L.C., or KVA. KVA is the general partner of each of KVP and KVPE. Voting and dispositive decisions with respect to shares held by KVP and KVPE
are made by Dr. Castelein, Richard Spalding and James Shapiro; however, they each disclaim beneficial ownership
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38
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of the shares held by KVP and KVPE, except to the extent of any pecuniary interest therein, if any. The address of KVP and KVPE is c/o Kearny Venture Partners, One Embarcadero Center, Suite 3700,
San Francisco, California 94111.
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(7)
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Consists of 1,606,371 shares that may be acquired pursuant to stock options within 60 days of March 31, 2017 by Mr. Raanes.
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(8)
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Consists of (i) 182,602 shares held and (ii) 840,090 shares that may be acquired pursuant to stock options within 60 days of March 31, 2017 by Dr. Dempsey.
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(9)
|
Consists of (i) 70,104 shares held and (ii) 15,645 shares that may be acquired pursuant to stock options and common stock warrants within 60 days March 31, 2017 by Mr. Bansal.
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(10)
|
Mr. Chandler resigned his employment with us in June 2016.
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(11)
|
Consists of (i) the shares beneficially owned by Aisling and (ii) 38,520 shares that may be acquired pursuant to stock options and restricted stock units within 60 days of March 31, 2017 by Dr. Bilenker.
See footnote 3. Dr. Bilenker disclaims beneficial ownership of the shares held by Aisling, except to the extent of any pecuniary interest therein, if any.
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(12)
|
Consists of (i) the shares beneficially owned by OPI III and OA III and (ii) 39,087 shares that may be acquired pursuant to stock options and restricted stock units within 60 days of March 31, 2017 by
Dr. Bonita. See footnote 1.
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(13)
|
Consists of (i) the shares beneficially owned by KVP and KVPE and (ii) 41,181 shares that may be acquired pursuant to stock options and restricted stock units within 60 days of March 31, 2017 by
Dr. Castelein. See footnote 6. Dr. Castelein disclaims beneficial ownership of the shares held by KVP and KVPE, except to the extent of any pecuniary interest therein, if any.
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(14)
|
Consists of (i) 114,990 shares held by Dr. Gold, (ii) 85,830 shares that may be acquired pursuant to stock options, restricted stock units and common stock warrants within 60 days of March 31, 2017 by
Dr. Gold, (iii) 46,948 shares held by JMSK, Ltd. and (iv) 9,389 692 shares issuable upon the exercise of common stock warrants held by. JMSK, Ltd. Steven Gold, the son of Dr. Gold, is the General Partner of JMSK, Ltd. Voting and
dispositive decisions with respect to shares held by JMSK, Ltd. are not made by Dr. Gold; he disclaims beneficial ownership of the shares held by JMSK, Ltd. except to the extent of any pecuniary interest therein, if any.
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(15)
|
Consists of (i) 647,717 shares held in the Henry A. McKinnell Master GRAT #35 and (ii) 188,157 shares that may be acquired pursuant to stock options, restricted stock units and common stock warrants within 60 days of
March 31, 2017 by Dr. McKinnell.
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(16)
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Consists of (i) the shares beneficially owned by Harbour Tycoon Limited and (ii) 38,520 shares that may be acquired pursuant to stock options and restricted stock units within 60 days of March 31, 2017 by
Mr. Puri. See footnote 5.
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(17)
|
Consists of 32,493 shares that may be acquired pursuant to stock options and restricted stock units within 60 days of March 31, 2017 by Mr. Roberts.
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(18)
|
Consists of (i) the shares beneficially owned by PCBO and (ii) 6,520 shares that may be acquired pursuant to stock options within 60 days of March 31, 2017 by Dr. Wang. See footnote 2.
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(19)
|
Includes 38,768,040 shares beneficially owned by our executive officers and directors, which includes 32,069,747 shares beneficially owned by entities affiliated with certain of our directors and 5,635,932 shares that
may be acquired pursuant to stock options, restricted stock units and common stock warrants within 60 days of March 31, 2017.
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SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires the Companys directors and executive officers, and persons who own more than 10% of a
registered class of the Companys equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of common stock and other equity securities of the Company. Officers, directors and greater than 10%
beneficial owners are required by SEC regulations to furnish the Company with copies of all Section 16(a) forms they file.
39
To the Companys knowledge, based solely on a review of the copies of such reports furnished
to the Company and written representations that no other reports were required, during the year ended December 31, 2016, all Section 16(a) filing requirements applicable to our officers, directors and greater than 10% beneficial owners
were complied with, except with respect to late Form 4 reports filed for Mr. Puri in connection with the acquisition of common stock that occurred on September 9, 2016 in connection with the 2016 Private Placement.
40
ADDITIONAL INFORMATION
Householding of Proxy Materials
The SEC has adopted rules that permit companies and intermediaries (
e.g
., brokers) to satisfy the delivery requirements for proxy
statements and annual reports with respect to two or more stockholders sharing the same address by delivering a single proxy statement and annual report addressed to those stockholders. This process, which is commonly referred to as
householding, potentially means extra convenience for stockholders and cost savings for companies.
Brokers with account
holders who are ViewRay stockholders may be householding our proxy materials. A single proxy statement and annual report may be delivered to multiple stockholders sharing an address unless contrary instructions have been received from
the affected stockholders. Once you have received notice from your broker that it will be householding communications to your address, householding will continue until you are notified otherwise or until you notify your
broker or the Company that you no longer wish to participate in householding.
If, at any time, you no longer wish to
participate in householding and would prefer to receive a separate proxy statement and annual report, you may (1) notify your broker, (2) direct your written request to: Investor Relations, ViewRay, Inc., 2 Thermo Fisher Way,
Oakwood Village, Ohio 44146 or (3) contact our Investor Relations department by telephone at
1-844-MRIdian
(674-3426).
Stockholders who currently receive multiple copies of the proxy statement and annual report at their address and would like to request householding of their communications should contact their broker. In addition, the Company will
promptly deliver, upon written or oral request to the address or telephone number above, a separate copy of the proxy statement and annual report to a stockholder at a shared address to which a single copy of the documents was delivered.
Other Matters
As of the date of this Proxy Statement, the board of directors does not intend to present any matters other than those described herein at the
Annual Meeting and is unaware of any matters to be presented by other parties. If other matters are properly brought before the meeting for action by the stockholders, proxies will be voted in accordance with the recommendation of the board or, in
the absence of such a recommendation, in accordance with the judgment of the proxy holder.
Annual Reports
Our 2016 Annual Report on Form
10-K
(which is not a part of our proxy soliciting materials) will be
mailed with this Proxy Statement to those stockholders that request and receive a copy of the proxy materials in the mail. Stockholders that received the Notice of Internet Availability of Materials can access the Annual Report and this Proxy
Statement on the website referenced on the Notice of Internet Availability of Materials. The Annual Report and this Proxy Statement are also available on the SEC Filings section of our investor relations website at
http://investors.viewray.com and at the SECs website at www.sec.gov. Please note that the information on our website is not part of this Proxy Statement.
Upon written request by an ViewRay stockholder, we will mail without charge a copy of our 2016 Annual Report on
Form 10-K,
including the financial statements and financial statement schedules, but excluding exhibits to the Annual Report on
Form 10-K.
Exhibits to the Annual
Report on
Form 10-K
are available upon payment of a reasonable fee, which is limited to our expenses in furnishing the requested exhibit. All requests should be directed to our Chief Financial Officer, 2
Thermo Fisher Way, Oakwood Village, Ohio 44146.
|
By Order of the Board of Directors
|
|
/s/ Chris A. Raanes
|
Chris A. Raanes
President and Chief
Executive Officer
|
April 28, 2017
41
VIEWRAY,
INC. 2 THERMO FISHER WAY OAKWOOD VILLAGE, OH 44146 VOTE BY INTERNETwww.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time the day before the
cut-off
date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. ELECTRONIC DELIVERY OF
FUTURE PROXY MATERIALS If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via
e-mail
or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials
electronically in future years. VOTE BY
PHONE1-800-690-6903
Use any touch-tone telephone to transmit your voting
instructions up until 11:59 P.M. Eastern Time the day before the
cut-off
date or meeting date. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your
proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: KEEP THIS PORTION FOR YOUR
RECORDS DETACH AND RETURN THIS PORTION ONLY THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. For Withhold For All To All All Except The Board of Directors recommends you vote FOR the following: 1. To elect three directors to hold office until
the 2020 annual meeting of stockholders and until their successors are duly elected and qualified. Nominees 01. James F. Dempsey, Ph.D. 02. Mark S. Gold, M.D. 03. Theodore T. Wang, Ph.D. The Board of Directors recommends you vote FOR the following
proposal: 2. To ratify the selection, by the audit committee by our board of directors, of Deloitte & Touche LLP, as the Companys independent registered public accounting firm for the Companys fiscal year ending
December 31, 2017. NOTE: Such other business as may properly come before the meeting or any adjournment thereof. For Against Abstain To withhold authority to vote for any individual nominee(s), mark For All Except and write the
number(s) of the nominee(s) on the line below. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All
holders must sign. If a corporation or partnership, please sign in full corporate or partnership name, by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date 0000337214_1 R1.0.1.15
Important
Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Form
10-K,
and the Notice & Proxy Statement is/are available at www.proxyvote.com . VIEWRAY, INC. Annual Meeting of
Stockholders June 19, 2017 8:30 AM This proxy is solicited by the Board of Directors The stockholders hereby appoint Chris A. Raanes and Ajay Bansal, or either of them, as proxies, each with the power to appoint his substitute, and hereby
authorizes them to represent and to vote, as designated on the reverse side of this ballot, all of the shares of common stock of VIEWRAY, INC. that the stockholders are entitled to vote at the Annual Meeting of stockholders to be held at 8:30 AM PT
on June 19, 2017, at ViewRays offices, 815 E. Middlefield Road, Mountain View, CA, 94043, and any adjournment or postponement thereof. This proxy, when properly executed, will be voted in the manner directed herein. If no such direction
is made, this proxy will be voted in accordance with the Board of Directors recommendations. Continued and to be signed on reverse side 0000337214_2 R1.0.1.15
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