As filed with the Securities and Exchange Commission on September 17, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIEWRAY, INC.
(Exact name of Registrant as specified in its charter)
Delaware | 42-1777485 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
2 Thermo Fisher Way
Oakwood Village, OH 44146
(440) 703-3210
(Address of Principal Executive Offices)
ViewRay, Inc. 2018 Equity Inducement Award Program
(Full title of the plan)
Scott Drake
President & Chief Executive Officer
ViewRay, Inc.
2 Thermo Fisher Way
Oakwood Village, OH 44146
(440) 703-3210
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Robert McCormack General Counsel ViewRay, Inc. 2 Thermo Fisher Way Oakwood Village, OH 44146 Telephone: (440) 703-3210 Facsimile: (800) 417-3459 |
Alan F. Denenberg Davis Polk & Wardwell LLP 1600 El Camino Real Menlo Park, California 94025 Telephone: (650) 752-2000 |
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☒ | |||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
Emerging growth company | ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of Securities to be Registered | Amount to be |
Proposed Maximum Offering Price Per Share (2) |
Proposed Maximum Offering Price (2) |
Amount of Registration Fee (3) | ||||
Common Stock, par value $0.01 per share, reserved for issuance pursuant to the ViewRay, Inc. 2018 Equity Inducement Award Program |
1,000,000 (4) | $9.81 | $9,810,000 | $1,221.35 | ||||
| ||||||||
|
(1) | This Registration Statement on Form S-8 (this Registration Statement) covers shares of common stock, $0.01 par value per share (Common Stock), of ViewRay, Inc. (the Company or Registrant) (i) authorized for issuance under the ViewRay, Inc. 2018 Equity Inducement Award Program (the 2018 Program) and (ii) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), any additional shares of Common Stock that may become issuable under the 2018 Program by reason of any stock dividend, stock split, recapitalization or other similar transaction. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act, and based upon the average of the high and low prices of the Registrants common stock as reported on The Nasdaq Global Market on September 10, 2018. |
(3) | Rounded up to the nearest penny. |
(4) | Represents an increase in the number of shares reserved for issuance under the ViewRay, Inc. 2018 Equity Inducement Award Program as approved by the Companys Board of Directors effective as of August 29, 2018 |
Proposed sale to take place as soon after the effective date of the
registration statement as awards under the plans are exercised and/or vest.
EXPLANATORY NOTE
Pursuant to General Instruction E on Form S-8, this Registration Statement is being filed for the purpose of registering an additional 1,000,000 shares of Common Stock of the Registrant issuable pursuant to the 2018 Program. These additional shares of common stock are securities of the same class and relate to the same employee benefit plan (as amended from time to time) as other securities for which a registration statement on Form S-8 has been filed with the Securities and Exchange Commission on August 10, 2018 (File No. 333-226797), which is hereby incorporated by reference. These additional shares of common stock have become reserved for issuance as a result of a reservation of shares by ViewRay, Inc.s Board of Directors, effective as of August 29, 2018
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oakwood Village, State of Ohio, on September 17, 2018.
VIEWRAY, INC. | ||
By: | /s/ Scott Drake | |
Name: | Scott Drake | |
Title: | President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert McCormack and Ajay Bansal, and each of them, with full power of substitution and full power to act without the other, his or her true and lawful attorney-in-fact and agent to act for him or her in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file this registration statement, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in order to effectuate the same as fully, to all intents and purposes, as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Scott Drake Scott Drake |
Director, President and Chief Executive Officer (Principal Executive Officer) |
September 17, 2018 | ||
/s/ Ajay Bansal Ajay Bansal |
Chief Financial Officer (Principal Financial and Accounting Officer) |
September 17, 2018 | ||
/s/ Daniel Moore Daniel Moore |
Chairman and Director | September 17, 2018 | ||
/s/ Caley Castelein Caley Castelein, M.D. |
Director | September 17, 2018 | ||
/s/ James F. Dempsey James F. Dempsey, Ph.D. |
Director and Chief Scientific Officer | September 17, 2018 | ||
/s/ Henry A. McKinnell, Jr. Henry A. McKinnell, Jr., Ph.D. |
Director | September 17, 2018 | ||
/s/ Aditya Puri Aditya Puri |
Director | September 17, 2018 | ||
/s/ Brian K. Roberts Brian K. Roberts |
Director | September 17, 2018 | ||
/s/ Theodore T. Wang Theodore T. Wang, Ph.D. |
Director | September 17, 2018 | ||
/s/ Scott Huennekens Scott Huennekens |
Director | September 17, 2018 | ||
/s/ D. Keith Grossman D. Keith Grossman |
Director | September 17, 2018 |
Exhibit 5.1
New York | Paris | |||
Northern California | Madrid | |||
Washington DC | Tokyo | |||
São Paulo | Beijing | |||
London | Hong Kong |
Davis Polk & Wardwell LLP 1600 El
Camino Real |
650 752 2000 tel 650 752 2111 fax |
September 17, 2018
ViewRay, Inc.
2 Thermo Fisher Way
Oakwood Village, OH 44146
Ladies and Gentlemen:
We have acted as special counsel to ViewRay, Inc., a Delaware corporation (the Company), and are delivering this opinion in connection with the Companys Registration Statement on Form S-8 (the Registration Statement) filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, for the registration of 1,000,000 shares (the Shares) of the Companys Common Stock, par value $0.01 per share, issuable pursuant to the ViewRay, Inc. 2018 Equity Inducement Award Program (the Program).
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.
On the basis of the foregoing, we are of the opinion that the Shares have been duly authorized and, when and to the extent issued pursuant to the Program upon receipt by the Company of the payment therefor, will be validly issued, fully paid and non-assessable.
We are members of the Bars of the States of New York and California and the foregoing opinion is limited to the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours, |
/s/ Davis Polk & Wardwell LLP |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 12, 2018, relating to the consolidated financial statements of ViewRay, Inc. and its subsidiary appearing in the Annual Report on Form 10-K of ViewRay, Inc. for the year ended December 31, 2017.
/s/ Deloitte & Touche LLP
San Francisco, CA
September 17, 2018
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