UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 25, 2018

 

 

VIEWRAY, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-37725   42-1777485

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification Number)

2 Thermo Fisher Way

Oakwood Village, Ohio 44146

(Address of principal executive offices, including zip code)

(440) 703-3210

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

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

 

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

 

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

 

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

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☒

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

On February 25, 2018, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with Fosun International Limited and its wholly-owned subsidiary (“Fosun”) pursuant to which the Company agreed to issue and sell 7,090,581 shares of its common stock and warrants to purchase 1,418,116 shares of its common stock for aggregate gross proceeds of approximately $59.1 million (the “Offering”). The purchase price for each share was $8.31, equal to the closing price of the Company’s common stock on the NASDAQ Global Market on February 23, 2018. The exercise price of the warrants is $8.31 per share, and the purchase price for the warrants was $0.125 per underlying share (subject to adjustment in connection with customary anti-dilution provisions). The warrants will be exercisable at any time during their term and expire seven years from the date of sale. The closing of the transaction is expected to occur on or about March 2, 2018.

The Offering was made pursuant to a prospectus supplement to the Company’s effective shelf registration statements on Form S-3 (Registration No. 333-217416 and Registration No. 333-215815). With this transaction, Fosun will increase its ownership of the Company from approximately 9.9% to 18.4% of the Company’s outstanding shares of common stock immediately following the closing of the transaction (without giving effect to the warrants). Fosun has the right to request a designee to be appointed to the Company’s Board of Directors but has not exercised this right to date.

The Purchase Agreement contains lockup provisions restricting Fosun from selling, transferring or otherwise disposing of the purchased securities for a period of 180 days after the closing, subject to certain exceptions. Fosun is also subject to standstill provisions restricting it from acquiring beneficial ownership of more than 25% of the Company’s then-outstanding shares of common stock, entering into business combinations with the Company, engaging in proxy solicitations or taking certain other actions with respect to the Company and its stockholders for a period of one year after the closing. The Purchase Agreement contains customary representations and warranties by the Company.

In connection with the Purchase Agreement, the Company also entered into a Registration Rights Agreement with Fosun. Pursuant to the Registration Rights Agreement, the Company agreed to register the resale of the shares purchased by Fosun, the shares underlying the warrants, and any shares of common stock issued as a dividend or other distribution with respect to such shares pursuant to a registration statement filed with the Securities and Exchange Commission (the “SEC”). The Company agreed to use its commercially reasonable efforts to cause this registration statement to be declared effective by the SEC within 150 days after the closing of the Offering. The Company also agreed, among other things, to indemnify the selling holders under the registration statement from certain liabilities and to pay all fees and expenses (excluding underwriting discounts and selling commissions and all legal fees of any selling holder) incident to the Company’s obligations under the Registration Rights Agreement.

The foregoing description of the transaction is only a summary and is qualified in its entirety by reference to the Purchase Agreement, the form of the warrants and the Registration Rights Agreement, copies of which are attached hereto as exhibits to this report.

 

Item 7.01 Regulation FD Disclosure.

On February 26, 2018, the Company issued the press release attached hereto as Exhibit 99.1 regarding the transactions described in this report.

The information in this Item 7.01 of this Current Report on Form 8-K and the Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section or Sections 11 and 12(a)(2) of the Securities Act, or incorporated by reference in any filing of the Company under the Securities Act or the Exchange Act, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

Item 9.01 Financial Statements and Exhibits.

(d)     Exhibits.

 

Exhibit

Number

  

Description

5.1    Opinion of Davis Polk & Wardwell LLP
23.1    Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
99.1    Press release dated February 26, 2018

SIGNATURES

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

 

    VIEWRAY, INC.
Date: February 26, 2018     By:   /s/ Ajay Bansal
    Name:   Ajay Bansal
    Title:   Chief Financial Officer
   New York

Northern California

Washington DC

São Paulo

London

   Paris
Madrid
Tokyo
Beijing
Hong Kong

 

LOGO

 

Davis Polk & Wardwell LLP

1600 El Camino Real

Menlo Park, CA 94025

  

650 752 2000 tel

650 752 2111 fax

     

 

EXHIBIT 5.1 AND 23.1

February 26, 2018

ViewRay, Inc.

2 Thermo Fisher Way

Oakwood Village, OH 44146

Ladies and Gentlemen:

ViewRay, Inc., a Delaware corporation (the “ Company ”), has filed with the Securities and Exchange Commission Registration Statements on Form S-3 (File Nos. 333-215815 and 333-217416) (the “ Registration Statements ”) for the purpose of registering under the Securities Act of 1933, as amended (the “ Securities Act ”), certain securities, including the 7,090,581 shares of the Company’s common stock, par value $0.01 per share (the “ Shares ”) and warrants (the “ Warrants ”) to purchase 1,418,116 shares of the Company’s common stock (the “ Warrant Shares ”) to be sold pursuant to the Securities Purchase Agreement dated February 25, 2018 (the “ Purchase Agreement ”) by and among the Company, Strong Influence Limited, a British Virgin Islands corporation, and Fosun International Limited, a company organized under the laws of Hong Kong.

We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.

In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.

Based upon the foregoing, and subject to the additional assumptions and qualifications set forth hereto, we advise you that, in our opinion, (i) when the Shares have been issued and delivered against payment therefor in accordance with the terms of the Purchase Agreement, the Shares will be validly issued, fully paid and non-assessable, and (ii) the Warrants, when the Warrants are executed and delivered against payment therefor pursuant to the Purchase Agreement, will

be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to the validity, legally binding effect or enforceability of any provision in the Warrants that requires or relates to adjustments to the exercise price at a price or in an amount that a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture. As of the date hereof, the Warrant Shares have been duly authorized and reserved for issuance pursuant to the terms of the Warrants and, when issued and delivered upon exercise of the Warrants in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable. The issuance of the Warrants and the Warrant Shares upon exercise of the Warrants is not subject to any preemptive or, to our knowledge, other similar rights.

We are members of the Bars of the States of New York and California and the foregoing opinion is limited to the General Corporation Law of the State of Delaware.

We hereby consent to the filing of this opinion as an exhibit to a report on Form 8-K to be filed by the Company and its incorporation by reference into the Registration Statements and further consent to the reference to our name under the caption “Legal Matters” in the prospectus supplement relating to the offering of the Shares and the Warrants, which is a part of the Registration Statements. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

Very truly yours,

/s/ Davis Polk & Wardwell LLP

Exhibit 99.1

 

LOGO

ViewRay Announces $59 Million Equity Financing

Financing to Further Support Growth of MRIdian Linac

CLEVELAND, February  26, 2018 — ViewRay, Inc. (Nasdaq: VRAY), makers of the world’s first and only clinical MRI-guided radiation therapy system, announced today that it has entered into an agreement to sell its common stock and warrants to an affiliate of Fosun International Limited (“Fosun”) in a direct registered offering for aggregate gross proceeds of approximately $59.1 million. With this transaction, Fosun is increasing its ownership of the Company from approximately 9.9% to 18.4% of the Company’s outstanding shares of common stock immediately following the closing of the transaction (without giving effect to the warrants). The closing of the transaction is expected to occur on or about March 2, 2018.

ViewRay agreed to sell approximately 7.1 million shares of common stock and warrants to purchase approximately 1.4 million shares of common stock for aggregate gross proceeds of approximately $59.1 million before deducting offering expenses. The warrants will have a per share exercise price of $8.31 per share, equal to the closing price of the Company’s common stock on the NASDAQ Global Market on February 23, 2018. The warrants will expire seven years from the date of issuance and will be subject to customary anti-dilution provisions. Proceeds from the offering will be used primarily to support the ongoing commercialization of the MRIdian Linear Accelerator Technology, for research and development related to continued product development activities, and for general corporate purposes, including working capital.

The offering was made pursuant to a prospectus supplement to the Company’s effective shelf registration statements.

“We are excited to complete this financing, which will enable us to scale up production and to continue investing in sales and marketing to meet the growing demand for the MRIdian Linac,” said Chris A. Raanes, president and chief executive officer of ViewRay Inc. “This significant investment provides further validation of our belief that MRIdian Linac will lead to a new standard of care in radiation oncology.”

This press release does not constitute an offer to sell or the solicitation of an offer to buy the securities, nor shall there be any sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of such state. Any offering of the securities under the resale registration statement will only be by means of a prospectus.

About ViewRay

ViewRay ® , Inc. (Nasdaq: VRAY), designs, manufactures and markets the MRIdian ® radiation therapy system. MRIdian is built upon a proprietary high-definition MR imaging system designed from the ground up to address the unique challenges and clinical workflow for advanced radiation oncology. Unlike MR systems used in diagnostic radiology, MRIdian’s high-definition MR was purposely built to deliver high-precision radiation without unnecessary beam distortion, and consequently, help to mitigate skin toxicity and other safety concerns that may otherwise arise when high magnetic fields interact with radiation beams. ViewRay and MRIdian are registered trademarks of ViewRay, Inc.

Forward Looking Statements:

This press release contains forward-looking statements. Statements in this press release that are not purely historical are forward-looking statements. Such forward-looking statements include, among other things, references to the planned use of proceeds from the offering. Actual results could differ from those projected in any forward-looking statements due to numerous factors. Such factors include, among others, the ability to raise the additional funding needed to continue to pursue ViewRay’s business and product development plans, the inherent uncertainties associated with developing new products or technologies, the ability to commercialize MRIdian linac technology, competition in the industry in which ViewRay operates and overall market conditions. These forward-looking statements are made as of the date of this press release, and ViewRay assumes no obligation to update the forward-looking statements, or to update the reasons why actual results could differ from those projected in the forward-looking statements, except as required by law. Investors should consult all of the information set forth herein and should also refer to the risk factor disclosure set forth in the reports and other documents ViewRay files with the SEC available at www.sec.gov , including the risk factors disclosed in ViewRay’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017.

Contact:

Investor Relations:

Ajay Bansal

Chief Financial Officer

1-844-MRIdian (674-3426)

Media Enquiries:

Michael Saracen

Vice President, Marketing

ViewRay, Inc.

Phone: +1 408-242-2994

Email: media@viewray.com

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