Document

DEF 14A 1 vray2022proxy.htm DEF 14A Document

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 (Amendment No. )

_____________________

Filed by the Registrant x Filed by a Party other than the Registrant o

Check the appropriate box:


o			Preliminary Proxy Statement

o			Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

x			Definitive Proxy Statement

o			Definitive Additional Materials

o			Soliciting Material under §240.14a-12

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):


x			No fee required.
o			Fee paid previously with preliminary materials.
o			Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.

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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 10, 2022

To the Stockholders of ViewRay, Inc.:

NOTICE IS HEREBY GIVEN that the 2022 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 virtually via live audio webcast on June 10, 2022, at 8:30 a.m. Pacific Time, for the following purposes:

1.To elect the three Class I directors named in the Proxy Statement to hold office until the annual meeting of stockholders to be held in 2024 and until their successors are duly elected and qualified;

2.To approve an amendment to our Amended and Restated 2015 Equity Incentive Award Plan (the “2015 Plan”) in order to increase the number of shares available for issuance under the 2015 Plan;

3.To ratify the selection, by the audit committee (the “Audit Committee”) and our board of directors (the “Board”), of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2022;

4.To conduct an advisory vote to approve ViewRay’s 2021 executive compensation; and

5.To transact such other business as may properly come before the Annual Meeting or any adjournment thereof.

These proposals are more fully described in the Proxy Statement following this Notice. Only stockholders who owned our common stock at the close of business on April 18, 2022 (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 April 29, 2022 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 29, 2022. Electronic delivery of our proxy materials will significantly reduce our printing and mailing costs, and the environmental impact of the proxy materials.

The Annual Meeting can be accessed by visiting www.virtualshareholdermeeting.com/VRAY2022, where you will be able to listen to the meeting live, submit questions and vote online. To participate in the Annual Meeting, you will need the 16-digit control number included on the Notice or on the proxy card that you request and receive by mail or e-mail. 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 and time 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 virtual Annual Meeting. 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.

The Board recommends that you vote (i) FOR the election of the Class I director nominees named in Proposal No. 1, (ii) FOR the amendment to the 2015 Plan in order to increase the number of shares available for issuance under the 2015 Plan as described in Proposal No. 2, (iii) FOR the ratification of the selection, by the Audit Committee and the Board, of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022 as described in Proposal No. 3, and (iv) FOR the approval, on an advisory basis, of ViewRay’s 2021 executive compensation as described in Proposal No. 4.


			By order of the Board of Directors,

			/s/ Scott W. Drake
			Scott W. Drake President and Chief Executive Officer

Oakwood Village, Ohio

April 29, 2022

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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.

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TABLE OF CONTENTS


			Page
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE STOCKHOLDER MEETING TO BE HELD ON JUNE 11, 2021			1
THE PROXY PROCESS AND STOCKHOLDER VOTING—QUESTIONS AND ANSWERS ABOUT THIS PROXY MATERIAL AND VOTING			2
PROPOSAL NO. 1—ELECTION OF DIRECTORS			7
PROPOSAL NO. 2—APPROVAL OF AN AMENDMENT TO OUR AMENDED AND RESTATED 2015 EQUITY INCENTIVE AWARD PLAN			14
PROPOSAL NO. 3—RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM			25
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS			26
PROPOSAL NO. 4—ADVISORY VOTE TO APPROVE COMPANY’S 2021 EXECUTIVE COMPENSATION			27
INFORMATION ABOUT STOCK OWNERSHIP—SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT			28
EXECUTIVE OFFICERS			31
EXECUTIVE COMPENSATION			32
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS			46
CORPORATE GOVERNANCE AND BOARD OF DIRECTORS MATTERS			49
ADDITIONAL INFORMATION			55
APPENDIX A			56

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VIEWRAY, INC.

2 Thermo Fisher Way

Oakwood Village, OH 44146

PROXY STATEMENT

FOR THE 2022 ANNUAL MEETING OF STOCKHOLDERS

IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIAL FOR THE

STOCKHOLDER MEETING TO BE HELD ON JUNE 10, 2022

The Board of ViewRay, Inc. is soliciting your proxy to vote at our 2022 Annual Meeting of Stockholders to be held virtually via live audio webcast on June 10, 2022, at 8:30 a.m. Pacific Time, and any adjournment or postponement of that meeting (the “Annual Meeting”). The Annual Meeting can be accessed by visiting www.virtualshareholdermeeting.com/VRAY2022, where you will be able to listen to the meeting live, submit questions and vote online. To participate in the Annual Meeting, you will need the 16-digit control number included on the Notice of Internet Availability of Proxy Materials or on the proxy card that you request and receive by mail or e-mail.

This Proxy Statement is dated as of April 29, 2022. 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.

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 18, 2022 (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 Proxy 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 Proxy Materials and on the website referred to in the Notice of Internet Availability of Proxy 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 29, 2022 and are mailing the Notice of Internet Availability of Proxy Materials to all stockholders entitled to vote at the Annual Meeting on or about April 29, 2022. 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 180,455,595 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 by remote communication or represented by proxy, to hold the Annual Meeting.

The Company’s Annual Report on Form 10-K, which contains financial statements for fiscal year December 31, 2021 (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 Proxy Materials can access this Proxy Statement and the Annual Report at the website referred to in the Notice of Internet Availability of Proxy 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 ViewRay’s Annual Report, without charge, by writing to our Investor Relations department at the above address.

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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 180,455,595 shares of common stock issued and outstanding and entitled to vote. A list of stockholders entitled to vote at the Annual Meeting will be available during the Annual Meeting by visiting www.virtualshareholdermeeting.com/VRAY2022 and for ten days prior to the meeting during normal business hours at our offices at 2 Thermo Fisher Way, Oakwood Village, Ohio 44146. If you wish to examine the list, you may contact our Corporate Secretary, and arrangements will be made for you to review the list.

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 electronically at the Annual Meeting; vote by proxy on the Internet or by telephone; or vote 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 Proxy Materials, by telephone as instructed on the website referred to on the Notice of Internet Availability of Proxy 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 virtual Annual Meeting. However, since you are not the stockholder of record, you may not vote your shares electronically 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 four proposals:

•Proposal No. 1: the election of three Class I directors to hold office until the annual meeting of stockholders to be held in 2024 and until their successors are duly elected and qualified;

•Proposal No. 2: a proposal to approve an amendment to the 2015 Plan in order to increase the number of shares available for issuance under the 2015 Plan;

•Proposal No. 3: the ratification of the selection, by the Audit Committee, of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022; and

•Proposal No. 4: the advisory vote to approve ViewRay’s 2021 executive compensation.

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 recommends that you vote:

•FOR each of the Class I director nominees;

•FOR the amendment to the 2015 Plan in order to increase the number of shares available for issuance under the 2015 Plan;

•FOR ratification of the selection, by the Audit Committee, of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022; and

•FOR the approval, on an advisory basis, of ViewRay’s 2021 executive compensation.

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How do I vote?

•For Proposal No. 1, you may either vote “For,” or choose that your vote be “Withheld” from, any of the nominees to the Board.

•For Proposal No. 2, you may either vote “For” or “Against” the proposal, or “Abstain” from voting.

•For Proposal No. 3, you may either vote “For” or “Against” the proposal, or “Abstain” from voting.

•For Proposal No. 4, you may either vote “For” or “Against” the proposal, or “Abstain” from voting.

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:

•To vote over the Internet prior to the Annual Meeting, follow the instructions provided on the Notice of Internet Availability of Proxy 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.

•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 Proxy Materials.

•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.

•To vote via the virtual meeting website, visit www.virtualshareholdermeeting.com/VRAY2022. You will need the 16-digit control number included on your Notice of Internet Availability of Proxy Materials or on the proxy card that you request and receive by mail or e-mail in order to participate in the virtual Annual Meeting. Instructions on how to attend and participate via the Internet, including how to demonstrate proof of stock ownership, are posted at www.virtualshareholdermeeting.com/VRAY2022.

Even if you plan to participate in the Annual Meeting online, we recommend that you also vote by proxy as described above so that your vote will be counted if you later decide not to participate in the Annual Meeting. The Internet and telephone voting facilities for eligible stockholders of record will close at 11:59 p.m. Eastern Time on June 9, 2022. Even if you have submitted your vote before the Annual Meeting, you may still attend the virtual Annual Meeting and vote electronically. 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 the instructions to submit your vote by the Internet or telephone, if those instructions provide for Internet and telephone voting. To vote at the virtual 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?

Broadridge Financial Solutions, Inc. (“Broadridge”) 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 over the Internet prior to the Annual Meeting or by telephone, Broadridge 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 Broadridge 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 Broadridge on behalf of all its clients.

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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, Proposal 3, and Proposal 4, the Inspector of Election will separately count “For” and “Against” votes, abstentions and broker non-votes, if any. 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 “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 Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2022 (Proposal 3) 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 3. The election of directors (Proposal 1), vote on the amendment to the 2015 Plan in order to increase the number of shares available for issuance under the 2015 Plan (Proposal 2), and advisory vote to approve ViewRay’s executive compensation (Proposal 4) are 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, Proposal 2, and Proposal 4.

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. “Withheld” votes and 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. Abstentions and broker non-votes will have no effect on the outcome of this proposal.

With respect to Proposal 3, the affirmative vote of the majority of votes cast (excluding abstentions) is required for approval. Abstentions and broker non-votes will have no effect on the outcome of this proposal.

With respect to Proposal 4, the affirmative vote of the majority of votes cast (excluding abstentions and broker non-votes) is required for approval. Abstentions and broker non-votes will have no effect on the outcome of this proposal.

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.

What if I return a Proxy Card, but do not make specific choices?

If we receive a signed and dated Proxy Card and that 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, “For” the amendment to the 2015 Plan in order to increase the number of shares available for issuance thereunder, “For” the ratification of the selection, by the Audit Committee, of Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2022, and “For” the approval, on an advisory basis, of ViewRay’s 2021 executive compensation. 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.

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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 Proxy Materials or more than one set of printed materials?

If you receive more than one Notice of Internet Availability of Proxy 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 Proxy 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:

•You may submit a new vote on the Internet or by telephone or submit a properly completed proxy card with a later date.

•You may send a written notice that you are revoking your proxy to ViewRay’s Corporate Secretary at 2 Thermo Fisher Way, Oakwood Village, Ohio 44146.

•You may attend the virtual Annual Meeting and vote electronically at the Annual Meeting. Simply attending the virtual Annual Meeting will not, by itself, revoke your proxy.

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 year’s Annual Meeting?

To be considered for inclusion in next year’s proxy materials, your proposal must be submitted in writing by December 30, 2022, to ViewRay’s Secretary at 2 Thermo Fisher Way, Oakwood Village, Ohio 44146. If you wish to submit a proposal that is not to be included in our proxy materials for the next year’s annual meeting pursuant to the SEC’s shareholder proposal procedures or to nominate a director, you must do so between February 10, 2023 and March 12, 2023; provided that if the date of that annual meeting is more than 30 days before or more than 60 days after June 10, 2023, 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 Amended and Restated Bylaws (the “bylaws”), which contain additional requirements about advance notice of stockholder proposals and director nominations. In addition to satisfying the deadlines in the advance notice provisions of our bylaws, a stockholder who intends to solicit proxies in support of nominees under these advance notice provisions must provide the notice required under Rule 14a-19 to ViewRay’s Secretary no later than April 11, 2023.

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 by remote communication or represented by proxy at the Annual Meeting. On the Record Date, there were 180,455,595 shares of common stock outstanding and entitled to vote.

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 if the

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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 Chair of the Annual Meeting or a majority in voting power of the stockholders entitled to vote at the Annual Meeting, present by remote communication 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.

Attending the Annual Meeting

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PROPOSAL NO. 1

ELECTION OF DIRECTORS

Until the election of directors at the 2024 annual meeting of stockholders, the Board 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 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 may be filled only by the affirmative vote of a majority of the remaining directors.

The Board currently consists of nine seated directors, divided into the three following classes:

•Class I directors: Scott W. Drake, B. Kristine Johnson and Phillip M. Spencer, whose current terms will expire at the Annual Meeting;

•Class II directors: Daniel Moore, Gail Wilensky, Ph.D., and Susan Schnabel, whose current terms will expire at the annual meeting of stockholders to be held in 2023; and

•Class III directors: Caley Castelein, M.D., Brian K. Roberts and Karen Prange, whose current terms will expire at the annual meeting of stockholders to be held in 2024.

Each director elected at the Annual Meeting shall be elected for a two-year term expiring at the annual meeting of stockholders to be held in 2024. Each director elected at the 2023 annual meeting of stockholders shall be elected for a one-year term expiring at the annual meeting of stockholders to be held in 2024. At the 2024 annual meeting of stockholders and each annual meeting of stockholders thereafter, all directors shall be elected for a one-year term expiring at the next annual meeting of stockholders held after such director’s election.

Each director to be elected at the Annual Meeting will hold office from the date of his or her election by the stockholders until the annual meeting of stockholders to be held in 2024 and until that director’s successor is duly elected and has been qualified, or until that director’s earlier death, resignation or removal.

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, those shares will be voted for the election of those substitute nominees as the Board 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. However, under our corporate governance guidelines, any nominee for director in an uncontested election (i.e., an election where the only nominees are those recommended by the Board) who receives a greater number of votes “withheld” from his or her election than votes “for” such election (a “Majority Withheld Vote”) will, within five business days of the certification of the shareholder vote by the inspector of elections, tender a written offer to resign from the Board. The nominating and corporate governance committee of the Board (“Nominating and Corporate Governance Committee”) will promptly consider the resignation offer and recommend to the Board whether to accept it. The Nominating and Corporate Governance Committee will consider all factors its members deem relevant in considering whether to recommend acceptance or rejection of the resignation offer. The Board will act on the Nominating and Corporate Governance Committee’s recommendation within 90 days following the certification of the shareholder vote by the inspector of elections. In considering whether to accept the resignation offer, the Board will consider the factors considered by the Nominating and Corporate Governance Committee and any additional information and factors that the Board believes to be relevant. Any director who tenders his or her offer to resign from the Board pursuant to this provision shall not participate in the Nominating and Corporate Governance Committee or Board deliberations regarding whether to accept the offer of resignation.

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The following table sets forth, for the Class I directors and for our other current directors, information with respect to their position/office held with the Company and their ages as of April 18, 2022:


Name	Age	Position with Company	Position Since
Class I Directors whose terms expire at the Annual Meeting and who are standing for election at the Annual Meeting
Scott W. Drake	54	President, Chief Executive Officer and Director	2018
B. Kristine Johnson (2)	70	Director	2020
Phillip M. Spencer (2)	59	Director	2021
Class II Directors whose terms expire at the annual meeting of stockholders to be held in 2023
Daniel Moore (1)(3)	61	Board Chair	2018
Gail Wilensky, PhD. (3)	78	Director	2019
Susan C. Schnabel	60	Director	2022
Class III Directors whose terms expire at the annual meeting of stockholders to be held in 2024
Caley Castelein, M.D. (1)(3)	51	Director	2008
Brian K. Roberts (1)(2)	51	Director	2015
Karen N. Prange (3)	58	Director	2021

(1)Member of the Audit Committee.

(2)Member of the Compensation Committee.

(3)Member of the Nominating and Corporate Governance Committee.

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 to conclude that they should serve as directors.

Nominees for Election to a Two-Year Term Expiring at the Annual Meeting of Stockholders to be Held in 2024

Scott W. Drake has served as our President and Chief Executive Officer and as a member of the Board since July 2018. Mr. Drake has over 30 years of experience in the medical device field. From August 2011 to August 2017, he served as President and Chief Executive Officer, and as a member of the board of directors of The Spectranetics Corporation (NASDAQ: SPNC), a medical device company. From November 2009 to July 2011, he was a Senior Vice President of DaVita Corporation (NYSE: DVA), a provider of kidney care and dialysis. Mr. Drake has served on the board of directors of Paragon 28, Inc. (NYSE: FNA) a medical device manufacturer, since August 2021. Mr. Drake served as the Board Chair of AtriCure, Inc. (NASDAQ: ATRC) from 2013 to April 2021, as well as a member of the board of directors of Zayo Group Holdings, Inc. (NYSE: ZAYO) from November 2018 to March 2020. He has served on the board of directors of Cordis, a privately held medical device manufacturer, since August 2021. He serves as the Chair of the AdvaMed Radiation Therapy Sector as well as a board member for the Medical Device Manufacturers Association. Mr. Drake holds a B.S. in Business Administration from Miami University of Ohio. We believe that Mr. Drake is qualified to serve on our board of directors based on his experience in leading innovative medical technology companies, delivering value to patients and customers, as well as growth for stockholders.

B. Kristine Johnson has served as a member of the Board since April 2020. Since 2000, Ms. Johnson has been President and General Partner of Affinity Capital Management, a venture capital firm. In April 2021, she was appointed Board Chair of AtriCure, Inc. (NASDAQ: ATRC), a medical device company, where she has also served as a member of the board of directors since March 2017. In December 2021, she was appointed to the board of directors of Paragon 28, Inc. (NASDAQ: FNA), a medical device company. Ms. Johnson has served as a member of the board of directors of ClearPoint Neuro (NASDAQ: CLPT), a medical device company, since August 2019. She served as a member of the board of directors of Piper Sandler, an investment banking firm, from 2003 to 2019. Ms. Johnson served as a member of the board of directors of The Spectranetics Corporation (NASDAQ: SPNC), a medical device company, from 2012 to 2017. She held various executive leadership positions at Medtronic (NYSE: MDT) from 1982 to 1999. Ms. Johnson serves as a member of the board of directors of the University of Minnesota Foundation Investment Advisors. She holds a B.A. from St. Olaf College. We believe Ms. Johnson is qualified to serve on our board based on her extensive experience in the medical device industry as well as her depth of knowledge in the investment banking and capital management arenas.

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Phillip M. Spencer has served as a member of the Board since February 2021. He has served as President and Chief Executive Officer and as a member of the board of directors of MBI (Mega-Broadband Investments), a private cable and communications company, since 2017. Mr. Spencer served as Chief Executive Officer of Rural Broadband Investments from 2011 to 2017. He has served as a member of the board of directors of Halftime Institute, a leadership organization, since October 2020. From August 2015 to August 2018, Mr. Spencer served as a member of the board of directors of the Truman Medical Foundation, a non-profit medical provider that serves as the public health system for residents of Jackson County and Kansas City, Missouri. He holds a B.S. from Marquette University. We believe Mr. Spencer is qualified to serve on our board of directors based on his extensive technical experience and operational leadership expertise.

THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR”

THE ELECTION OF EACH CLASS I NOMINEE NAMED ABOVE

Directors Continuing in Office Until the Annual Meeting of Stockholders to be Held in 2023

Daniel Moore has served as a member of the Board and our Board Chair since February 2018. Mr. Moore has served as Board Chair for medical device company LivaNova, PLC (NASDAQ: LIVN) since September 2015. He served as a member of the board of directors for GI Dynamics, Inc. (ASX: GID), a medical device company from 2014 to 2020. From 2012 to 2019, Mr. Moore served as a member of the board of directors of medical device company, BrainScope. He served as a member of the board of directors of TriVascular (NASDAQ: TRIV), a medical device company, from 2010 to 2016. From 2007 to 2015, Mr. Moore served as Chief Executive Officer as well as a member of the board of directors of Cyberonics, Inc. (NASDAQ: CYBX), a medical device company. From 1989 to 2007, Mr. Moore held various positions in sales, marketing and senior management for Boston Scientific Corporation (NYSE: BSX). From 2009 to 2016, Mr. Moore was a member of the board of directors of the Medical Device Manufacturers Association, serving as Board Chair from 2012 to 2014. He was a member of the board of directors of the Medical Device Innovation Consortium from 2012 to 2014. Mr. Moore has served on the board of the Epilepsy Foundation of America since 2014. He holds a B.A. from Harvard University, and an M.B.A. from Boston University. We believe Mr. Moore is qualified to serve on our board of directors based on his diverse domestic and global business experience in the medical device industry.

Gail Wilensky, Ph.D. has served as a member of the Board since July 2019. She has served as a member of the board of directors of UnitedHealth Group, Inc. (NYSE: UNH), a health and well-being services company, since 1993. Dr. Wilensky has served as a member of the board of directors of Quest Diagnostics, Inc. (NYSE: DGX), a diagnostic testing and information company, since 1997. She has served as a Senior Fellow at Project HOPE, an international non-profit health foundation, since 1993. Dr. Wilensky has served in the U.S. Department of Defense as President and Chair, Health Care Advisory Subcommittee from 2008 to 2009, and from 2006 to 2008 as Co-Chair, Task Force on the Future of Military Health. She served as Co-Chair and Presidential Appointee of the Task Force to Improve Healthcare Delivery for the Nation’s Veterans from 2001 to 2003. From 1997 to 2001, Dr. Wilensky served as Chair of the Medicare Payment Advisory Committee. She served as Chair of the Physician Payment Review Commission from 1995 to 1997. From March 1992 to January 1993, Dr. Wilensky served as Deputy Assistant to the President for Policy Development. She served as Administrator of the Health Care Financing Administration (now known as the Centers for Medicare and Medicaid Services) directing the Medicaid and Medicare programs for the United States from 1990 to 1992. Dr. Wilensky serves on the Board of Regents of the Uniformed Services University of the Health Sciences (USUHS) and the Geisinger Health System Foundation and is an elected member of the National Academy of Medicine. She holds a B.A., M.A. and Ph.D. from the University of Michigan. We believe Dr. Wilensky is qualified to serve on the Board based on her extensive experience as an economist, as well as her advisory and policy making work in the medical technology and healthcare fields.

Susan C. Schnabel has served as a member of the Board since March 2022. Ms. Schnabel is a founder and has served as the Co-Managing Partner of aPriori Capital Partners, a private equity investment firm, since April 2014. She has served on the board of directors of Altice USA (NYSE: ATUS), a broadband communication and video service provider, since July 2021. Ms. Schnabel has served on the board of directors of Kayne Anderson BDC, a private management investment company, since September 2020. Ms. Schnabel served on the board of directors of Versum Materials, Inc. (NYSE: VSM), a technology driven semiconductor materials supplier, from October 2016 to October 2019. Ms. Schnabel has served on numerous other private company boards for the past twenty years. Ms. Schnabel has served on the Cornell University Board of Trustees since July 2019. She has served on the California Institute of Technology Investment Committee since May 2017. Ms. Schnabel has served on the Board of Directors of the US Olympic & Paralympic Foundation since January 2016. She served on the Harvard Business School Alumni Advisory Board from September 2014 to June 2019. Ms. Schnabel holds a B.S. from Cornell University and a M.B.A. from Harvard Business School. Ms. Schnabel was appointed to the board pursuant to a Cooperation Agreement entered into between the Company and Hudson Executive Capital LP and certain of its affiliates (“Hudson”) on March 8, 2022. We believe Ms. Schnabel is qualified to

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serve on the Board based on her extensive capital markets and investment banking experience, as well as her deep executive and board leadership experience.

Directors Continuing in Office Until the Annual Meeting of Stockholders to be Held in 2024

Caley Castelein, M.D. has served as a member of our Board since January 2008. Since March 2006, he has served as a Managing Director and founder of Kearny Venture Partners, L.P., a healthcare venture capital fund. Additionally, he founded KVP Capital, L.P. in 2013 and manages the fund, which invests in small and mid-cap healthcare companies. Since February 2017, Dr. Castelein has served as a member of the board of directors of Aerpio Therapeutics, Inc. (NASDAQ: ARPO), a biopharmaceutical company, which merged with Aadi Bioscience, Inc. (NASDAQ: AADI) in August 2021, where he now serves as Chair. He served as a member of the board of directors for Boreal Genomics, Inc., a diagnostics company, from October 2010 until its successful sale in September 2021. He has served as a director at NewBridge Pharmaceuticals FZ, LLC, a specialty therapeutics company, since March 2015. Dr. Castelein served as a member of the board of directors for Waterstone Pharmaceuticals, Inc., a pharmaceutical company from March 2015 to March 2018; AliveCor, Inc., a medical device company from April 2015 to March 2020; Wellpartner, Inc., a pharmaceutical distribution solutions company, from March 2015 to November 2017; and Neos Therapeutics, Inc. (NASDAQ: NEOS), a pharmaceutical company from March 2015 to July 2015. He holds an A.B. 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 based on his extensive investment experience in the healthcare industry.

Brian K. Roberts has served as a member of the Board since December 2015. Since September 2020, Mr. Roberts has served as President and Chief Executive Officer of Tarveda Therapeutics, Inc., a biopharmaceutical company, where he also served as Chief Financial Officer from January 2018 to September 2020. From July 2016 to April 2020, he served as a member of the board of directors for Valeritas Holdings, Inc. (NASDAQ: VLRX), a medical technology company. Mr. Roberts served as Chief Operating and Financial Officer at Avedro, Inc., a pharmaceutical and medical device company, from January 2015 to October 2016. He served as Chief Financial Officer at Insulet Corporation (NASDAQ: PODD), also a medical device company, from 2009 to 2014. Mr. Roberts served as Chief Financial Officer at Jingle Networks, Inc., an advertising and technology solutions company, from September 2007 to December 2008. From 2001 to 2007, he held various leadership roles, including serving as Chief Financial Officer of Digitas, Inc. (NASDAQ: DTAS), (a/k/a DigitasLBi, Inc.), a marketing and technology agency. Mr. Roberts served as Vice President of Finance at Idiom Technologies, Inc., a provider of globalization management, from 2000 to 2001. From 1997 to 1999, he served as U.S. Controller of The Monitor Group, a consulting firm. Mr. Roberts served as an Auditor with Ernst & Young LLP from 1993 to 1997. He holds a B.S. from Boston College. We believe Mr. Roberts is qualified to serve on the Board because of his over 25 years of financial, operational and strategic experience in private and public companies.

Karen N. Prange has served as a member of the Board since June 2021. She has served as a member of the board of directors of Cantel Medical (NYSE: CMD), a medical equipment company, since October 2019 until its sale to Steris Corp in June 2021. Ms. Prange has served as a member of the board of directors of Atricure (NASDAQ: ATRC), a medical device company, since December 2019. She has served as a member of the board of directors of Nevro (NASDAQ: NVRO), a medical device company, since December 2019. Ms. Prange has served as a member of the board of directors of WS Audiology, a hearing aid manufacturer, since March 2020. Ms. Prange has served on the board of Embecta (NASDAQ: EMBC since April 2022. She has served as Strategic Advisor to Nuvo Group, LLC, a medical device company, since September of 2019 and Industrial Advisor to EQT Group, a global investment organization, since March 2020. From May 2016 to April 2018, Ms. Prange was Executive Vice President and Chief Executive Officer for the Global Animal Health, Medical and Dental Surgical Group at Henry Schein as well as a member of the Executive Committee. She served as Senior Vice President of Boston Scientific and President of its Urology and Pelvic Health business from 2012 to 2016. From 1995 to 2012, Ms. Prange held various roles of increasing leadership at Johnson & Johnson Company (NYSE: JNJ), most recently as General Manager of the Micrus Endovascular and Codman Neurovascular businesses. She holds a B.S. in Business Administration from the University of Florida. We believe Ms. Prange is qualified to serve on the Board based on her other public medical device board service and her extensive experience in commercial, operational and strategic leadership roles in healthcare companies.

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Director Compensation

There were no changes to the amounts payable to non-employee directors in 2021 as compared to 2020. Pursuant to the Company’s Director Compensation Policy for 2021, each non-employee director received the following cash amounts for their service:


Compensation element
Director annual retainer	$	45,000
Board of Directors chair	$	35,000
Audit Committee chair	$	20,000
Audit Committee member	$	10,000
Compensation Committee chair	$	15,000
Compensation Committee member	$	7,000
Nominating and Corporate Governance Committee chair	$	10,000
Nominating and Corporate Governance Committee member	$	5,000

Under the Director Compensation Policy, each non-employee director may elect to receive the Annual Retainer in cash or Deferred Stock Units (“DSUs”). If the non-employee director elects to receive the Annual Retainer in the form of cash, the Annual Retainer will be paid in equal quarterly installments in arrears following the close of each calendar quarter, subject to pro-ration (rounded down to the nearest month) if a non-employee director serves less than a full calendar quarter. If the non-employee director elects to receive the Annual Retainer in the form of DSUs, the underlying shares of our common stock subject to such DSUs will not be issued to the non-employee director until the earlier of the date the non-employee director separates from service with us or upon a change of control of our Company (as defined in the 2015 Plan).

In addition to the cash fees outlined above, each non-employee director receives an annual grant of RSUs valued at $115,000 (“Annual Grant”). This Annual Grant is made on the date of the annual meeting of stockholders or, if later, the date of the non-employee director’s appointment to the Board. Non-employee directors appointed after the annual meeting receive a pro-rated grant to reflect their partial year of service. The Annual Grants vest on the one-year anniversary of the annual meeting, subject to the director’s continued service through such vesting date.

Upon the director’s initial appointment or election to the Board, each non-employee director received an initial equity grant with an aggregate grant date fair value equal to $175,000, either (i) 100% in the form of Restricted Stock Units (“RSUs”), or (ii) at the director’s written election, 50% in the form of RSUs and 50% in the form of stock options (an “Initial Grant”). Unless a different vesting schedule is specified, an Initial Grant will vest as to 1/36th of the shares subject to the award on each monthly anniversary of the applicable grant date, subject to continued service through each applicable vesting date.

Pursuant to the terms of the 2021 Director Compensation Policy, 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 under which such awards were granted).

In approving the Director Compensation Policy, the Board considered, among other factors, market data provided by our compensation consultant regarding the compensation paid to directors at peer companies, as described below in the “Executive Compensation – Overview of Executive Compensation Program – Use of Market Data for Comparison Against Peer Companies” section, regarding compensation paid to directors of similarly situated companies in our industry and determined that the levels of cash for director compensation, are appropriate. While the Board considers director compensation annually, market data is currently compiled and assessed every other year.

In connection with his appointment to the Board, in March 2021, we granted Mr. Spencer an Initial Grant of 37,553 RSUs that vest in equal installments of 1/36th of the shares subject to the grant on each monthly anniversary beginning on April 1, 2021, subject to Mr. Spencer’s continued service through each applicable vesting date. In addition, in March 2021 Mr. Spencer received a prorated Annual Grant of 7,166 RSUs that vested on June 15, 2021, subject to the Mr. Spencer’s continued service through such vesting date.

In connection with her appointment to the Board, in June 2021, we granted Ms. Prange an Initial Grant of 26,395 RSUs that vest in equal installments of 1/36th of the shares subject to the grant on each monthly anniversary beginning on August 1, 2021, subject to Ms. Prange’s continued service through each applicable vesting date. In addition, in June 2021

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Ms. Prange received an Annual Grant of 19,759 RSUs that vest on June 15, 2022, subject to the Ms. Prange’s continued service through such vesting date.

2021 Director Compensation Table

The following table sets forth information for the year ended December 31, 2021 regarding the compensation awarded to, earned by, or paid to our non-employee directors.


Name of Director	Fees Earned or Paid in Cash ($)(1)		Stock Awards ($)(2)		Total ($)
Caley Castelein, M.D.	$	60,833	$	114,997	$	175,830
Keith Grossman (3)	8,333		—		8,333
Scott Huennekens (3)	35,000		—		35,000
B. Kristine Johnson	56,667		114,997		171,664
Daniel Moore	95,000		114,997		209,997
Karen N. Prange (4)	29,167		289,996		319,163
Brian K. Roberts	72,000		114,997		186,997
Phillip M. Spencer (5)	47,667		323,388		371,055
Gail Wilensky, Ph.D.	50,000		114,997		164,997
Kevin Xie, Ph.D.	45,000		114,997		159,997

(1)Includes the following fees earned in 2021 that were satisfied through the grant of DSUs for which the underlying common stock will be issued upon the earlier of a change in control or the director’s separation from service.


Name of Director						Fees Satisfied in DSUs ($)
Caley Castelein, M.D.						60,833
Keith Grossman						8,333
Scott Huennekens						—
B. Kristine Johnson						—
Daniel Moore						95,000
Karen N. Prange						—
Brian K. Roberts						—
Phillip M. Spencer						47,667
Gail Wilensky, Ph.D.						50,000
Kevin Xie, Ph.D.						—

(2)Amounts shown represent the aggregate grant date fair value of RSUs granted, as calculated in accordance with FASB ASC Topic 718 excluding the impact of estimated forfeitures related to service-based vesting provisions. See Footnote 13 of the financial statements included in our Annual Report on Form 10-K filed February 25, 2022 for the assumptions used in calculating this amount.

(3)Mr. Grossman and Mr. Huennekens ceased serving on the Board in February 2021 and June 2021, respectively.

(4)Amounts shown for Ms. Prange under “Fees Earned or Paid in Cash” reflect prorated retainer fees (rounded down to the nearest month) since she served less than a full calendar year following her appointment to the Board in June 2021. Amounts shown for Ms. Prange under “Stock Awards” include the Initial Grant that she received in connection with her appointment to the Board as well as her prorated Annual Grant.

(5)Amounts shown for Mr. Spencer under “Fees Earned or Paid in Cash” reflect prorated retainer fees (rounded down to the nearest month) since he served less than a full calendar year following her appointment to the Board in February 2021. Amounts shown for Mr. Spencer under “Stock Awards” include the Initial Grant that he received in connection with his appointment to the Board as well as his prorated Annual Grant.

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As of December 31, 2021, each of our non-employee directors held the following outstanding DSUs, RSUs and options to purchase shares of our common stock:


Name of Director	Deferred Stock Units (#)	Restricted Stock Units (#)	Shares Subject to Outstanding Options(#)
Caley Castelein, M.D.	70,937	19,759	84,305
Keith Grossman*	—	—	—
Scott Huennekens**	—	—	—
B. Kristine Johnson	—	63,253	—
Daniel Moore	52,857	19,759	71,169
Karen N. Prange	—	42,489	—
Brian K. Roberts	27,875	19,759	84,305
Phillip M. Spencer	9,708	47,924	—
Gail Wilensky, Ph.D.	21,972	19,759	—
Kevin Xie, Ph.D.	11,097	19,759	—

* Mr. Grossman ceased serving on the Board in February 2021.

**Mr. Huennekens ceased serving on the Board in June 2021.

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PROPOSAL NO. 2

APPROVAL OF AMENDMENT TO THE 2015 PLAN IN ORDER TO INCREASE THE NUMBER OF SHARES AVAILABLE FOR ISSUANCE UNDER THE 2015 PLAN

On April 19, 2022, the Board approved an amendment to the ViewRay, Inc. Amended and Restated 2015 Equity Incentive Award Plan (the “2015 Plan”) that increases the shares authorized for issuance thereunder by an additional 6,300,000 shares of our common stock, subject to approval by our stockholders. The 2015 Plan is a critical tool for attracting, retaining, and incentivizing our key employees and directors and provides for the grant of stock options, restricted stock, restricted stock units, performance awards, dividend equivalents, deferred stock, deferred stock units, stock payments, and stock appreciation rights.

If the amendment to the 2015 Plan is not approved, we currently expect that we will not be able to continue to grant equity-based compensation awards beyond December 31, 2022. We are asking our stockholders to consider and vote to approve the amendment to the 2015 Plan.

The following table sets forth certain information about the Company and the 2015 Plan:


	As of March 31, 2022
Common shares outstanding	180,442,026
Number of additional shares reserved for issuance under the 2015 Plan by the amendment	6,300,000
Number of shares available for future awards under the 2015 Plan (1)	1,133,564
Number of shares subject to outstanding stock options	3,592,187
Number of shares subject to awards of restricted stock and restricted stock units (including performance awards) (1)	8,080,625
Maximum option term	10 years
Minimum exercise price (relative to the market value on date of grant)	100%
Weighted average remaining term of outstanding options	5.69 years
Weighted average exercise price of outstanding options	$	6.71
Approximate number of shares available for awards under the 2015 Plan if this proposal is approved	7,433,564

(1) Balance assumes 150% and Target achievement of the performance-based awards granted in 2021 and 2022, respectively.

In addition to the above, as of March 31, 2022, the Company had a total of 113,845 outstanding restricted stock units and 2,942,998 outstanding stock options with a weighted average remaining term of 6.7 years and a weighted average exercise price of $8.19 that had been granted as inducement awards under its 2018 Inducement Program, a total of 468,304 outstanding stock options with a weighted average remaining term of 2.1 years and a weighted average exercise price of $1.19 that had been granted under its 2008 Plan, and an additional 3.2 million shares remaining available for issuance under its 2015 Employee Stock Purchase Plan.

If this proposal is approved, the Company’s total potential dilution from the shares available for issuance under its equity incentive plans would increase from 9.9% as of March 31, 2022 to 12.7%. The compensation committee of the Board (“Compensation Committee”) has considered this potential dilution level in the context of competitive data from its peer group, and believes that the resulting dilution levels would be within normal competitive ranges. If the amendment to the 2015 Plan is approved, the Company’s potential dilution will increase by approximately 2.9%, and then would be expected to decline as awards are exercised and/or become vested.

The Company manages its long-term dilution goal by monitoring the number of shares subject to equity awards that it grants annually, commonly referred to as burn rate. Burn rate shows how rapidly a company is depleting its shares reserved for equity compensation plans, and is defined as the number of shares granted under the Company’s equity incentive plans divided by the weighted average number of common shares outstanding at the end of the year. The Company has calculated the burn rate under the 2015 Plan and the 2018 Inducement Program for the past three years, as set forth in the following table:

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	Options Granted	Full-Value Shares Granted (1)	Weighted Average Number of Common Shares Outstanding	Burn Rate
Fiscal 2019	2,652,505	3,356,820	102,001,954	5.89	%
Fiscal 2020	736,579	6,079,659	147,895,561	4.61	%
Fiscal 2021	—	3,802,798	164,521,064	2.31	%

(1) Assumed 150% achievement of the performance-based awards granted in 2021.

The Company’s three-year average burn rate is 4.27%, which the Company believes is in line with peer group practices.

When considering the size of the share reserve under the amended 2015 Plan, the Compensation Committee also reviewed, among other things, projected future share usage and projected future forfeitures. The projected future usage of shares for long-term incentive awards under the 2015 Plan was reviewed under scenarios based on a variety of assumptions. Depending on assumptions, the Compensation Committee currently anticipates that the additional 6,300,000 shares under the amended 2015 Plan, in combination with the shares remaining available under the 2015 Plan and the shares added back to the 2015 Plan from forfeitures or cash settlement of awards previously granted, are expected to satisfy the Company’s equity compensation needs for approximately one year of similar levels of awards.

In order to minimize shareholder dilution, the 2015 Plan provides that, if the exercise price or withholding obligation of any award granted under the 2015 Plan is satisfied by tendering shares to the Company or by withholding shares, such tendered or withheld shares will not again be made available for issuance under the 2015 Plan.

The closing price of a share of our common stock on the NASDAQ Stock Market on April 18, 2022 was $3.36.

Why You Should Vote to Approve the Amendment to the 2015 Plan

The Board recommends that our shareholders approve the amendment to the 2015 Plan because it believes that the 2015 Plan promotes the success and enhances the value of the Company by linking the individual interests of employees, consultants and non-employee directors of the Company and its affiliates to those of the Company’s stockholders and provides such individuals with an incentive for outstanding performance to generate superior returns to the Company’s stockholders. The 2015 Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of such individuals upon whose judgment, interest, and special effort the successful conduct of the Company’s operation is largely dependent. The approval of the amendment to the 2015 Plan will enable us to continue to provide such incentives.

Highlights of the 2015 Plan (as amended). Specific features of the 2015 Plan that are consistent with good corporate governance practices include, but are not limited to:

•There can be no repricing of options or stock appreciation rights without stockholder approval, either by canceling the award in exchange for a replacement award at a lower price or by reducing the exercise price of the award (other than in connection with a change in our capitalization).

•Dividend, distribution and dividend equivalent rights may not be paid on any unvested restricted stock or restricted stock units or unearned performance-based awards. No dividend, distribution and dividend equivalent rights may be granted on stock options or SARs.

•The 2015 Plan includes a $500,000 cap on the aggregate dollar value of equity-based (based on grant date fair value) and cash compensation granted under the plan or otherwise during any calendar year to any non-employee director, which limit is increased by 200% in the calendar year in which the non-employee director first joins the Board or is designated as Chairman of the Board.

•Awards are subject to a minimum vesting period of one year after the grant date with respect to 95% of the shares reserved for issuance under the 2015 Plan. This minimum vesting requirement does not apply to the other 5% of the share pool. Exceptions to this minimum vesting provision apply in the case of awards that accelerate and vest on a change of control, death or disability or awards made to non-employee directors that vest at the next annual shareholder meeting, provided that annual meetings are at least 50 weeks apart. Such awards do not count against the 5% share pool reserve or be subject to the minimum vesting requirement.

•Awards under the 2015 Plan, including any shares subject to an award, may be subject to any recovery, recoupment, clawback and/or other forfeiture policy maintained by the Company now or in the future.

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2015 Plan Summary

The following is qualified in its entirety by the full text of the 2015 Plan as amended, which is attached to this Proxy Statement as Appendix A and is incorporated by reference into this proposal.

Purpose and Eligibility

The purpose of the 2015 Plan is to promote the success and enhance the value of the Company by linking the individual interests of the members of the board, employees, and consultants of the Company and its affiliates to those of the Company’s stockholders and provide such individuals with an incentive for outstanding performance to generate superior returns to the Company’s stockholders. The 2015 Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of members of the board, employees, and consultants of the Company and its affiliates upon whose judgment, interest, and special effort the successful conduct of the Company’s operation is largely dependent.

Awards may be granted under the 2015 Plan to employees, non-employee directors, advisors and consultants of the Company and its affiliates, as selected by the Administrator. As of April 18, 2022, there were approximately 280 individuals who would be eligible to receive awards under the 2015 Plan. Further, only our employees or employees of our subsidiaries are eligible to receive incentive stock options.

Effective Date and Term; Amendment and Termination

The 2015 Plan was adopted by the Board on April 14, 2020, and became effective upon approval by the Company’s stockholders on June 12, 2020 (the “Effective Date”). The 2015 Plan will remain available for the grant of awards until the tenth (10th) anniversary of the Effective Date. However, incentive stock options may not be granted under the 2015 Plan after April 14, 2030. The 2015 Plan may be terminated at such earlier time as the Board may determine (subject to certain limitations described in the following paragraph).

The 2015 Plan may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Board or the Compensation Committee. However, without approval of the Company’s stockholders given within 12 months before or after the action by the Administrator, no action of the Administrator may (other than in connection with changes in the Company’s capital stock) increase the limits on the maximum number of shares which may be issued under the 2015 Plan. Except for changes intended to comply with the requirements of Section 409A of the Internal Revenue Code, no amendment, suspension or termination of the 2015 Plan will, without the consent of the award holder, materially and adversely affect any rights or obligations under any award theretofore granted or awarded, unless the award itself otherwise expressly so provides. No awards may be granted or awarded during any period of suspension or after termination of the 2015 Plan.

Administration

The Compensation Committee (or another committee or a subcommittee of the Board or the Compensation Committee assuming the functions of the Committee under the 2015 Plan) will administer the 2015 Plan (except as otherwise permitted under the 2015 Plan). However, the full Board, acting by a majority of its members in office, will conduct the general administration of the 2015 Plan with respect to awards granted to non-employee directors. The Board or Compensation Committee may delegate its authority to the extent permitted by the 2015 Plan.

The Administrator will conduct the general administration of the 2015 Plan in accordance with its provisions. The Administrator will have the power to interpret the 2015 Plan, any program adopted pursuant to the 2015 Plan and the applicable award agreement, and to adopt such rules for the administration, interpretation and application of the 2015 Plan as are not inconsistent therewith, to interpret, amend or revoke any such rules and to amend any such program or applicable award agreement. However, the rights or obligations of the holder of an award that is the subject of any such program or award agreement cannot be affected materially and adversely by such amendment, unless the consent of the holder is obtained or such amendment is otherwise intended to comply with the requirements of Section 409A of the Internal Revenue Code. In its sole discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the 2015 Plan (except with respect to matters which under Rule 16b-3 under the Exchange Act or any successor rule or the rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded are required to be determined in the sole discretion of the Committee).

Subject to the by-laws of the Company, the charter of the Compensation Committee and any specific designation in the 2015 Plan, the Administrator has the exclusive power, authority and sole discretion to:

•designate eligible individuals to receive awards;

•determine the type or types of awards to be granted to each eligible individual;

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•determine the number of awards to be granted and the number of shares to which an award will relate subject to the limitations set forth in the 2015 Plan;

•subject to limitations set forth in the 2015 Plan, determine the terms and conditions of any award granted pursuant to the 2015 Plan;

•determine whether, to what extent, and pursuant to what circumstances an award may be settled in, or the exercise price of an award may be paid in cash, shares, other Awards, or other property, or an award may be canceled, forfeited, or surrendered;

•prescribe the form of each award agreement;

•decide all other matters that must be determined in connection with an award;

•establish, adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the 2015 Plan;

•interpret the terms of, and any matter arising pursuant to, the 2015 Plan, any program adopted pursuant to the 2015 Plan or any award agreement;

•make all other decisions and determinations that may be required pursuant to the 2015 Plan or as the Administrator deems necessary or advisable to administer the 2015 Plan; and

•accelerate wholly or partially the vesting or lapse of restrictions of any award or portion thereof at any time after the grant of an Award (subject to certain limitations set forth in the 2015 Plan).

Shares Subject to 2015 Plan (As Amended)

Subject to certain limitations set forth in the 2015 Plan, the number of shares which may be issued or transferred pursuant to awards under the 2015 Plan, as amended, on or after the Effective Date will be equal to (i) 9,550,000 Shares, plus (ii) the 1,133,564 shares that remained available for issuance under the prior restatement of the 2015 Plan as of June 12, 2020, plus (iii) any shares subject to outstanding awards under the 2015 Plan that are forfeited, expire or are settled in cash (the “Share Limit”). The maximum number of Shares with respect to incentive stock options which may be granted under the 2015 Plan on or after the Effective Date will be 9,550,000 Shares.

If any shares subject to an award are forfeited or expire or such award is settled for cash (in whole or in part), the shares subject to such award will, to the extent of such forfeiture, expiration or cash settlement, again be available for future grants of awards under the 2015 Plan and will be added back to the Share Limit. In addition, the following shares will not be available for future grants of awards under the 2015 Plan and will not be added back to the Share Limit: (i) shares tendered by a holder of an award or withheld by the Company in payment of the exercise price of an stock option or a stock appreciation right; (ii) shares tendered by the holder of an award or withheld by the Company to satisfy any tax withholding obligation with respect to an award; and (iii) shares purchased on the open market with the proceeds from the exercise of awards.

Substitute awards granted under the plan upon the assumption of, or in substitution for, outstanding equity awards previously granted by a company or other entity in connection with a corporate transaction will not reduce the shares authorized for grant under the 2015 Plan. Additionally, in the event that a company acquired by the Company or any affiliate or with which the Company or any affiliate combines has shares available under a pre-existing plan approved by its stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for awards under the 2015 Plan and will not reduce the shares authorized for grant under the 2015 Plan.

Non-Employee Director Limitations

Subject to adjustment provisions in the 2015 Plan, the aggregate grant date fair market value of share subject to awards granted under the 2015 Plan, together with any cash compensation paid or payable, during any calendar year to any one non-employee director will not exceed $500,000. However, with respect to the calendar year in which a non-employee director first joins the Board or is designated as Chairman of the Board or Lead Director, such maximum dollar value may be up to two hundred percent (200%) of the dollar value set forth in the foregoing limit.

Minimum Vesting

Awards granted under the 2015 Plan may not become exercisable, vest or settle, in whole or in part, prior to the one-year anniversary of the date of grant. The following are exceptions: (1) the Compensation Committee may provide that awards become exercisable, vest or settle prior to such date in the event of the participant’s death or disability or in connection with a change in control, (2) awards to non-employee directors may vest on the Company’s next annual

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meeting of shareholders (provided that such annual meetings are at least fifty (50) weeks apart), and (3) up to 5% of the aggregate number of shares authorized for issuance under the 2015 Plan may be issued without regard to the restrictions of the sentence.

Awards

Awards under the 2015 Plan may be made in the form of stock options, restricted stock, restricted stock units, performance awards, dividend equivalents, deferred stock, deferred stock units, stock payments, and stock appreciation rights.

•Nonqualified Stock Options, or NQSOs: Nonqualified Stock Options, or NQSOs, will provide for the right to purchase shares of common stock at a specified price that may not be less than the fair market value of a share of common stock on the date of grant, and usually will become exercisable (at the discretion of the Administrator) in one or more installments after the grant date, subject to the participant’s continued employment or service with the Company and/or subject to the satisfaction of corporate performance targets and individual performance targets established by the administrator. NQSOs may be granted for any term specified by the Administrator that does not exceed 10 years. Holders of a NQSO will not have any voting rights and will have no rights to receive dividends or dividend equivalents in respect of a NQSO or shares subject to a NQSO until the holder of such a stock option becomes the holder of record of such shares.

•Incentive Stock Options: Incentive Stock Options will be designed in a manner intended to comply with the provisions of Section 422 of the Internal Revenue Code and will be subject to specified restrictions contained in the Internal Revenue Code. Among such restrictions, Incentive Stock Options must have an exercise price of not less than the fair market value of a share of our common stock on the date of grant, may only be granted to employees of the Company and its subsidiaries, and must not be exercisable after a period of 10 years measured from the date of grant. In the case of an Incentive Stock Option granted to an individual who owns (or is deemed to own) at least 10% of the total combined voting power of all classes of the capital stock of the Company, the 2015 Plan provides that the exercise price must be at least 110% of the fair market value of a share of our common stock on the date of grant and the Incentive Stock Option must not be exercisable after a period of five years measured from the date of grant. Holders of Incentive Stock Options will not have any voting rights and will have no rights to receive dividends or dividend equivalents in respect of Incentive Stock Options or shares subject to an Incentive Stock Option until the holder of such a stock option becomes the holder of record of such shares.

•Restricted Stock Awards: Restricted Stock Awards may be granted to any eligible individual and made subject to such restrictions as may be determined by the Administrator. In general, restricted stock may not be sold or otherwise transferred until restrictions are removed or expire. A holder of restricted stock, unlike recipients of stock options, will have all the rights of a stockholder with respect to the shares. However, all dividends and other distributions paid prior to the vesting of the award of restricted stock will only be paid to the holder when and to the extent that any vesting conditions on such award are satisfied and the underlying share of restricted stock vests.

•Restricted Stock Unit Awards: Restricted Stock Unit Awards may be awarded to any eligible individual, typically without payment of consideration, but subject to vesting conditions based on continued employment or service or on performance criteria established by the Administrator. Like restricted stock, restricted stock units may not be sold, or otherwise transferred or hypothecated, until vesting conditions are removed or expire. Unlike Restricted Stock, stock underlying restricted stock units will not be issued until the restricted stock units have vested, and recipients of restricted stock units generally will have no voting or dividend rights prior to the time when vesting conditions are satisfied.

•Deferred Stock Awards: Deferred Stock Awards represent the right to receive shares of common stock on a future date. Deferred stock may not be sold or otherwise hypothecated or transferred until issued. Deferred stock will not be issued until the deferred stock award has vested, and recipients of deferred stock will have no voting or dividend rights prior to the time when the vesting conditions are satisfied and the shares are issued. Deferred stock awards generally will be forfeited, and the underlying shares of deferred stock will not be issued, if the applicable vesting conditions and other restrictions are not met.

•Deferred Stock Units: Deferred Stock Units are denominated in units equivalent of shares of common stock, and vest pursuant to a vesting schedule or performance criteria set by the Administrator. The common stock underlying deferred stock units will not be issued until the deferred stock units have vested, and recipients of deferred stock units will have no voting rights prior to the time when vesting conditions are satisfied.

•Stock Appreciation Rights, or SARs: Stock Appreciation Rights, or SARs, entitle the holder to exercise all or a specified portion of the Stock Appreciation Right (to the extent then exercisable pursuant to its terms) and to receive from the Company an amount determined by multiplying the difference obtained by subtracting the

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exercise price per share of the Stock Appreciation Right from the fair market value on the date of exercise of the Stock Appreciation Right by the number of shares with respect to which the Stock Appreciation Right will have been exercised, subject to any limitations the Administrator may impose. The exercise price of any Stock Appreciation Right granted under the 2015 Plan must be at least 100% of the fair market value of a share of our common stock on the date of grant. There are no restrictions specified in the 2015 Plan on the exercise of SARs or the amount of gain realizable therefrom, although restrictions may be imposed by the Administrator in the SAR agreements. SARs under the 2015 Plan will be settled in cash or shares of common stock, or in a combination of both, at the election of the Administrator. Holders of SARs will not have any voting rights and will have no rights to receive dividends or dividend equivalents in respect of SARs or shares subject to a SAR until the holder of such a SAR becomes the holder of record of such shares.

•Dividend Equivalent Awards: Dividend Equivalent Awards represent the value of the dividends, if any, per share paid by us, calculated with reference to the number of shares covered by the award. Dividend equivalents may be settled in cash or shares and will only be paid out if and to the extent that the vesting conditions applicable to the underlying award are subsequently satisfied.

•Performance Awards: Performance Awards may be granted by the Administrator. Generally, these awards will be based upon specific performance targets and may be paid in cash or in common stock or in a combination of both. Performance awards may also include bonuses that may be granted by the Administrator and that may be payable in cash or in common stock or in a combination of both.

•Stock Payment Awards: Stock Payment Awards may be authorized by the Administrator in the form of common stock or an option or other right to purchase common stock as part of a deferred compensation or other arrangement in lieu of all or any part of compensation, including bonuses, that would otherwise be payable in cash to the employee, consultant or non-employee director.

Effect of a Change in Control

In the event of a change in control where the acquirer does not assume or replace awards granted prior to the consummation of such transaction, awards issued under the 2015 Plan will be subject to accelerated vesting such that 100% of such awards will become vested and exercisable or payable, as applicable. Performance awards will vest in accordance with the terms and conditions of the applicable award agreement.

In the event that, within the 12-month period immediately following a change in control, a participant’s services are terminated other than for cause (as defined in the 2015 Plan) or by such participant for good reason (as defined in the 2015 Plan), then the vesting and, if applicable, exercisability of 100% of the then-unvested shares subject to the outstanding equity awards held by such participant under the 2015 Plan will accelerate effective as of the date of such termination. The Administrator may also make appropriate adjustments to awards under the 2015 Plan.

Under the 2015 Plan, a change in control is generally defined as:

•A transaction or series of transactions (other than an offering of common stock to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, an employee benefit plan maintained by the Company or any of its subsidiaries or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition;

•During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction otherwise described in this definition) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof;

•The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: (i) which results in the Company’s voting securities

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outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and (ii) after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this definition as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or

•The Company’s stockholders approve a liquidation or dissolution of the Company.

Adjustments of Awards

In the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) or any other corporate event affecting the number of outstanding shares of our common stock or the share price of our common stock other than an “equity restructuring” (as defined below), the Administrator may make equitable adjustments to reflect the event giving rise to the need for such adjustments, with respect to:

•the aggregate number and type of shares subject to the 2015 Plan;

•the number and kind of shares subject to outstanding awards;

•the number and kind of shares for which grants are subsequently made to new and continuing non-employee directors;

•the terms and conditions of outstanding awards; and

•the grant or exercise price per share of any outstanding awards under the 2015 Plan.

In the event of one of the adjustments described above or other corporate transactions, in order to prevent dilution or enlargement of the potential benefits intended to be made available under the 2015 Plan, the Administrator has the discretion to make such equitable adjustments and may also:

•provide for the termination or replacement of an award in exchange for cash or other property;

•provide that such award may be assumed by the successor or survivor corporation or shall be substituted for by similar options, rights or awards covering stock of the successor or survivor corporation with appropriate adjustments as to the number and kind of shares and prices;

•make adjustments in the number and type of shares of subject to outstanding awards, and in the number and kind of outstanding restricted stock or deferred stock and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding awards and awards which may be granted in the future;

•provide that such award shall be exercisable or payable or fully vested with respect to all shares covered thereby, notwithstanding anything to the contrary in the 2015 Plan or the applicable program under the 2015 Plan or award agreement; and

•provide that the award cannot vest, be exercised or become payable after such an event.

In the event of an equity restructuring, the Administrator will make appropriate, proportionate adjustments to the number and type of securities subject to each outstanding award and the exercise price or grant price thereof, if applicable. In addition, the Administrator will make equitable adjustments, as the Administrator in its discretion may deem appropriate to reflect such equity restructuring, with respect to the aggregate number and type of shares subject to the 2015 Plan. The adjustments upon an equity restructuring are nondiscretionary and will be final and binding on the affected holders and the Company.

For purposes of the 2015 Plan, “equity restructuring” means a nonreciprocal transaction between us and our stockholders, such as a stock dividend, stock split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of shares (or other securities) or the share price of our common stock (or other securities) and causes a change in the per share value of the common stock underlying outstanding stock-based awards granted under the 2015 Plan.

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Federal Income Tax Consequences

The following summarizes the currently applicable U.S. federal income tax consequences of awards that may be granted under the 2015 Plan.

Incentive Stock Options. An option holder will not realize taxable income upon the grant or of an incentive stock option under the 2015 Plan. In addition, an option holder generally will not realize taxable income upon the exercise of an incentive stock option. An option holder’s alternative minimum taxable income, however, will be increased by the amount by which the aggregate fair market value of the shares underlying the option, which is generally determined as of the date of exercise, exceeds the aggregate exercise price of the option. Further, except in the case of an option holder’s death or disability, if an option is exercised more than three months after the option holder’s termination of employment, the option will cease to be treated as an incentive stock option and will be subject to taxation under the rules applicable to non-qualified stock options, as summarized below.

If an option holder sells the option shares acquired upon exercise of an incentive stock option, the tax consequences of the disposition will depend upon whether the disposition is “qualifying” or “disqualifying.” The disposition of the option shares will be a qualifying deposition if it is made at least two years after the date on which the incentive stock option was granted and at least one year after the date on which the incentive stock option was exercised. If the disposition of the option shares is qualifying, any excess of the sale price of the option shares over the exercise price of the option will be treated as long-term capital gain taxable to the option holder at the time of the sale. If the disposition is a disqualifying disposition, the excess of the fair market value of the option shares on the date of disposition over the exercise price will be taxable income to the option holder at the time of the disposition. Of that income, the amount up to the excess of the fair market value of the shares at the time the option was exercised over the exercise price will be ordinary income for income tax purposes and the balance, if any, will be long-term or short-term capital gain, depending upon whether or not the shares were sold more than one year after the option was exercised.

Unless an option holder engages in a disqualifying disposition, the Company will not be entitled to a deduction with respect to an incentive stock option. If an option holder engages in a disqualifying disposition, the Company will be entitled to a deduction equal to the amount of compensation income taxable to the option holder.

If an option holder pays the exercise price of an incentive stock option by tendering shares with a fair market value equal to part or all of the exercise price, the exchange of shares will be treated as a nontaxable exchange, except that this treatment will not apply if the option holder acquired the shares being tendered pursuant to the exercise of an incentive stock option and has not satisfied the special holding period requirements summarized above. The tax basis of the shares tendered to pay the exercise price will be treated as the substituted tax basis for an equivalent number of shares received, and the new shares will be treated as having been held for the same holding period as the holding period that expired with respect to the tendered shares.

Non-Qualified Stock Options. An option holder will not realize taxable income upon the grant of a non-qualified stock option. When an option holder exercises the option, however, the difference between the exercise price of the option and the fair market value of the shares subject to the option on the date of exercise will constitute compensation income taxable to the option holder. The Company will be entitled to a deduction equal to the amount of compensation income taxable to the option holder. If an option holder tenders shares in payment of part or all of the exercise price of a non-qualified stock option, no gain or loss will be recognized with respect to the shares tendered, even if the shares were acquired pursuant to the exercise of an incentive stock option. In such an event, the option holder will be treated as receiving an equivalent number of shares pursuant to the exercise of the option in a nontaxable exchange. The tax basis of the shares tendered will be treated as the substituted tax basis for an equivalent number of shares received, and the shares received will be treated as having been held for the same holding period as the holding period that expired with respect to the tendered shares. The difference between the aggregate exercise price and the aggregate fair market value of the shares received pursuant to the exercise of the option will be taxed as ordinary income, just as if the option holder had paid the exercise price in cash.

Restricted Stock. A grantee of restricted stock will not recognize any taxable income for federal income tax purposes in the year of the award if the common stock is subject to restrictions (that is, the restricted stock is nontransferable and subject to a substantial risk of forfeiture). The grantee, however, may elect under Section 83(b) of the Internal Revenue Code to recognize compensation income in the year of the award in an amount equal to the fair market value of the shares on the date of the award, determined without regard to the restrictions. If the grantee does not make such a Section 83(b) election, the fair market value of the shares on the date on which the restrictions lapse will be treated as compensation income to the grantee and will be taxable in the year in which the restrictions lapse. The Company generally will be entitled to a deduction for compensation paid equal to the amount treated as compensation income to the grantee in the year in which the grantee is taxed on the income, if the Company complies with applicable reporting requirements.

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Restricted Stock Units. A grantee of restricted stock units does not recognize any taxable income for federal income tax purposes in the year of the award if the award is subject to restrictions. However, when the restricted stock units vest, the grantee generally recognize ordinary income in an amount equal to the fair market value of the restricted stock units at such time. The Company generally will be entitled to a deduction for compensation paid equal to the amount treated as compensation income to the grantee in the year in which the grantee is taxed on the income, if the Company complies with applicable reporting requirements.

Performance Awards. A distribution of common stock or a payment of cash in satisfaction performance awards will be taxable as ordinary income when the distribution or payment is actually or constructively received by the recipient. The amount taxable as ordinary income is the aggregate fair market value of the common stock determined as of the date it is received or the amount of the cash payment. The Company will be entitled to deduct the amount of such payments when such payments are taxable as compensation to the recipient if the Company complies with applicable reporting requirements.

Stock Appreciation Rights. The grant of SARs will not result in taxable income to the participant or a deduction to the Company. Upon exercise of a SAR, the holder will recognize ordinary income in an amount equal to the cash or the fair market value of the Common Stock received by the holder. The Company will be entitled to a deduction equal to the amount of any compensation income taxable to the grantee, and, as to SARs that are settled in shares of common stock, if the Company complies with applicable reporting requirements.

Plan Benefits

The following table sets forth information on stock options and full value awards (i.e., restricted stock, restricted stock units, and deferred awards with outstanding performance-based awards shown at target performance) granted under the 2015 Plan and includes awards subsequently forfeited, if any, as of March 31, 2022.


Name	Stock Options	Full Value Awards
Scott W. Drake President & Chief Executive Officer	314,044	4,431,216
Zachary Stassen Chief Financial Officer	—	654,665
Paul Ziegler Chief Commercial Officer	79,000	533,466
Robert McCormack Chief Legal Officer	61,779	854,742
All Current Executive Officers as a Group	1,258,425	8,259,084
All Non-Employee Directors as a Group	239,779	950,377
All Employees (excluding Executive Officers as a Group)	9,985,348	6,859,873

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Equity Compensation Plan Information

As of December 31, 2021, the Company had an active stock-based incentive compensation plan, an employee stock purchase plan and an equity inducement plan: the 2015 Plan, the 2015 Employee Stock Purchase Plan (as amended and restated, the “ESPP”), and the 2018 Equity Inducement Award Program (the “2018 Plan”), respectively. All new equity compensation grants are issued under these three plans; however, outstanding awards previously issued under inactive plans will continue to vest and remain exercisable in accordance with the terms of the respective plans.

The following table sets forth the number of shares of common stock subject to outstanding options and other rights, the weighted-average exercise price of outstanding options, and the number of shares remaining available for future award grants as of December 31, 2021 in each of the equity compensation plans.


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)(1)		Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column (a)
Equity Compensation Plans Approved by Stockholders(2)(3)	10,869,657	(4)	$	6.13	15,195,997
Equity Compensation Plans Not Approved by Stockholders(5)	3,056,843	(6)	$	8.19	4,558,147
Total	13,926,500				19,754,144

(1) Represents the weighted average exercise price of outstanding options.

(2) Includes the ViewRay Incorporated 2008 Stock Option and Incentive Plan; the 2015 Plan; and the ESPP.

(3) The purpose of the ESPP is to assist employees in acquiring shares of common stock in the Company pursuant to a plan which is intended to qualify as an “employee stock purchase plan” under Section 423 of the Code. 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 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 the Board; provided, however, no more than 3,500,000 shares of stock may be issued under the ESPP.

(4) Consists of the following: (i) 3,743,580 stock options under the 2015 Plan, (ii) 6,324,614 restricted stock units under the 2015 Plan, (iii) 470,198 stock options under the 2008 Plan, and (iv) 331,265 shares purchased under the ESPP.

(5) Includes the 2018 Plan.

(6) Consists of the following: (i) 2,942,998 stock options under the 2018 Plan, and (ii) 113,845 restricted stock units under the 2018 Plan.

The following table sets forth the number of shares of common stock subject to outstanding options and other rights, the weighted-average exercise price of outstanding options, and the number of shares remaining available for future award grants as of March 31, 2022 in each of the equity compensation plans.


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)(1)		Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column (a)
Equity Compensation Plans Approved by Stockholders(2)(3)	12,472,381	(4)	$	6.07	13,605,945	(7)
Equity Compensation Plans Not Approved by Stockholders(5)	3,056,843	(6)	$	8.19	4,558,147
Total	15,529,224				18,164,092

(1) Represents the weighted average exercise price of outstanding options.

(2) Includes the ViewRay Incorporated 2008 Stock Option and Incentive Plan; the 2015 Plan; and the ESPP.

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shares of stock as determined by the Board; provided, however, no more than 3,500,000 shares of stock may be issued under the ESPP.

(4) Consists of the following: (i) 3,592,187 stock options under the 2015 Plan, (ii) 8,080,625 restricted stock units under the 2015 Plan (assuming a 150% payout of the 2021 PSUs), (iii) 468,304 stock options under the 2008 Plan, and (iv) 331,265 shares purchased under the ESPP.

(5) Includes the 2018 Plan. The Board determined that the 2018 Plan was no longer required under ViewRay’s compensation program and terminated the 2018 Plan effective April 19, 2022.

(6) Consists of the following: (i) 2,942,998 stock options under the 2018 Plan, and (ii) 113,845 restricted stock units under the 2018 Plan.

(7) Consists of the following: (i) 12,472,381 securities reflected in column (a), and (ii) 1,133,564 shares available for future awards under the 2015 Plan excluding the ESPP (assuming a 150% payout of the 2021 PSUs).

The 2018 Plan was adopted by the Board as of July 22, 2018 and was not approved by our stockholders in accordance with the exception from the requirement for the Company’s stockholders to approve equity incentive plans under Nasdaq Listing Rule 5635(c)(4). The purpose of the 2018 Plan was to further the long-term stability and success of the Company by providing a program to reward selected individuals hired as employees of the Company with grants of inducement awards. Unless otherwise provided in the 2018 Plan, the operative terms of any inducement awards granted under the 2018 Plan adhered to the terms and conditions of the 2015 Plan. The Board (or any committee of the Board to whom such authority has been delegated) approves the shares that may be issued under the 2018 Plan, which shares do not count against the shares reserved for issuance or per participant limits that apply under the 2015 Plan. The Board or such committee determines the type, size, exercise price, if applicable, and the methods by which any award granted under the 2018 Plan may be exercised, if applicable, cancelled, forfeited or suspended. The Board or such committee may amend the 2018 Plan as it deems advisable and the Board may terminate the 2018 Plan at any time, except with regard to outstanding awards.

The Board determined that the 2018 Plan was no longer required under ViewRay’s compensation program and terminated the 2018 Plan effective April 19, 2022. No further awards will be granted under this plan and no such awards have been granted since August 16, 2021. As a result, all 1,501,304 shares previously available for issuance under the 2018 Plan have been restored to the Company’s general authorized but unissued share reserve and are no longer set aside for grants under the 2018 Plan.

THE BOARD RECOMMENDS A VOTE “FOR” THE AMENDMENT TO THE 2015 PLAN IN ORDER TO INCREASE THE NUMBER OF SHARES AVAILABLE FOR ISSUANCE UNDER THE 2015 PLAN

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PROPOSAL NO. 3

RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING

FIRM

The Audit Committee has engaged Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2022 and is seeking ratification of this 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 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, 2021 and 2020. All fees described below were approved by the Audit Committee.


	December 31,
	2021		2020
	(in thousands)
Audit Fees (1)	$	1,157	$	776
Audit-Related Fees	—		—
Tax Fees (2)	—		5
All Other Fees	—		—
Total	$	1,157	$	781

(1)Audit Fees of Deloitte & Touche LLP for 2021 and 2020 were for professional services rendered for 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. In 2021, the audit fees also included fees associated with the annual audit of our internal controls over financial reporting.

(2)Tax Fees consist of fees for tax compliance, tax advice and tax planning.

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, the 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 to provide these pre-approvals for audit or non-audit services, provided that the person or persons to whom authority is delegated must report the 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) is not required if those 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 2021 and 2020 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 RECOMMENDS A VOTE “FOR” THE RATIFICATION OF THE APPOINTMENT OF DELOITTE & TOUCHE, LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDED DECEMBER 31, 2022.

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REPORT OF THE AUDIT COMMITTEE

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, Inc. (“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 the Board. The Audit Committee’s functions are more fully described in its charter, which is available in the “Corporate Governance” section of ViewRay’s investor relations website at https://investors.viewray.com/corporate-governance/esg. Management has the primary responsibility for ViewRay’s financial statements and reporting processes, including its systems of internal controls. In fulfilling its oversight responsibilities, the Audit Committee reviewed and discussed with management ViewRay’s audited financial statements as of and for the year ended December 31, 2021.

The Audit Committee has discussed with Deloitte & Touche LLP, ViewRay’s independent registered public accounting firm, the matters required to be discussed under applicable requirements of the Public Company Accounting Oversight Board (the “PCAOB”) and the SEC. In addition, the Audit Committee discussed Deloitte & Touche LLP’s independence with their representatives and has received the written disclosures and the letter from Deloitte & Touche LLP required by applicable requirements of the PCAOB regarding the independent accountant’s communications with the audit committee concerning independence. Finally, the Audit Committee discussed with Deloitte & Touche LLP, with and without management present, the scope and results of Deloitte & Touche LLP’s audits of ViewRay’s financial statements.

Based on these reviews and discussions, the Audit Committee has recommended to the Board that the audited financial statements be included in our Annual Report on Form 10-K for the year ended December 31, 2021 for filing with the SEC. The Audit Committee also has engaged Deloitte & Touche LLP as ViewRay’s independent registered public accounting firm for the fiscal year ending December 31, 2022 and is seeking ratification of this selection by the stockholders.


			Audit Committee
			Brian K. Roberts, Chair
			Dr. Caley Castelein
			Daniel Moore

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PROPOSAL NO. 4

ADVISORY VOTE TO APPROVE THE COMPANY’S 2021 EXECUTIVE COMPENSATION

We are providing our stockholders an opportunity to indicate whether they approve of our 2021 named executive officer compensation as disclosed pursuant to Item 402 of Regulation S-K, including the Compensation Discussion and Analysis, the compensation tables and the related narrative discussion in this proxy statement. This proposal is required pursuant to Section 14A of the Securities Exchange Act of 1934, as amended. Although this vote is advisory and is not binding on the Company, the Compensation Committee and the Board will take into account the outcome of this vote when making future executive compensation decisions. We believe that our compensation philosophy and practices are consistent with market practices, designed to attract and retain key executives and reward company performance, and aligned with long-term stockholder interests. Accordingly, stockholders are being asked to vote “FOR” the following resolution:

“RESOLVED, that the compensation paid to the Company’s named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the Compensation Discussion and Analysis, compensation tables and narrative discussion of the Company’s 2022 proxy statement, is hereby APPROVED.”

This advisory vote, commonly referred to as a “say on pay” vote is not intended to address any specific item of compensation, but instead relates to the Compensation Discussion and Analysis, the tabular disclosures regarding named executive officer compensation, and the narrative disclosure accompanying such tables. These disclosures allow you to view the trends in our executive compensation program and the application of our compensation philosophy for the years presented.

ViewRay’s compensation program is designed and administered by the Compensation Committee, which is composed entirely of independent directors within the meaning of the Nasdaq Stock Market Rules. We carefully consider many different factors and engaged in a robust shareholder engagement effort throughout 2021, as described on page 32 of the Compensation Discussion and Analysis, in order to provide appropriate compensation for our executives and consider shareholder viewpoints on such compensation. Our executive compensation program is designed to attract, motivate and reward the executive talent required to achieve our corporate objectives and increase stockholder value. The Compensation Committee has designed our compensation program to be competitive with the compensation offered by those peers with whom we compete for executive talent. Targets for base salaries, annual cash incentive and long-term incentive awards for executives factor in competitive data. A majority of our executive officers’ total compensation is performance-based in order to align their interests with those of our stockholders and place more of their compensation at risk and emphasize a long-term strategic view. As discussed in the Compensation Discussion and Analysis beginning on page 32 of this proxy statement, we believe that our executive compensation program properly links executive compensation to Company performance and aligns the interests of our executive officers with those of our stockholders.

Following the vote to be conducted at the Annual Meeting, it is anticipated that the next advisory vote to approve named executive officer compensation will be conducted at the Company’s 2023 Annual Meeting of Stockholders.

Required Vote

The vote on Proposal No. 4 is advisory in nature and, therefore, are not binding on ViewRay. However, the Board and Compensation Committee will review the results of the vote in making future compensation decisions. For purposes of determining the number of votes cast on the matter, only those cast “For” or “Against” are included. Abstentions and broker non-votes are not included.

Unless otherwise indicated, properly executed proxies will be voted in favor of Proposal No. 4 to approve the compensation of ViewRay’s named executive officers as disclosed in the Compensation Discussion and Analysis, the compensation tables, and the related disclosure contained in this proxy statement set forth under the caption “Executive Compensation” of this proxy statement.

THE BOARD RECOMMENDS A VOTE “FOR” THE APPROVAL OF THE ADVISORY RESOLUTION ON VIEWRAY’S 2021 EXECUTIVE COMPENSATION

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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 April 18, 2022, unless noted otherwise, 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 April 18, 2022, and restricted stock units and performance share awards that vest within 60 days of April 18, 2022, 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 180,455,595 shares of our common stock issued and outstanding on April 18, 2022. Unless noted otherwise, 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 of Beneficial Owner

Number of Outstanding Common Shares Beneficially Owned

Number of Common Shares Exercisable Within 60 Days

Number of Common Shares Beneficially
Owned

Percent of
Beneficial
Ownership

Greater than 5% Shareholders:

Entities affiliated with Artisan Partners Limited Partnership (1)

SEC Form DEF 14A filed by ViewRay Inc.