UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 14A INFORMATION 

PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment No.   )

 

Filed by the Registrant ☒ Filed by a Party other than the Registrant  

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Preliminary Proxy Statement

 

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

 

Definitive Proxy Statement

 

Definitive Additional Materials

 

Soliciting Material under §240.14a‑12

 

Ra Medical Systems, Inc.

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

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2070 Las Palmas Drive

Carlsbad, California 92011

(760) 804-1648

To our Stockholders:

We are pleased to invite you to attend the annual meeting of stockholders of Ra Medical Systems, Inc., to be held on Monday, October 12, 2020 at 9:00 a.m. Pacific Time, or at any adjournment of postponement thereof. The annual meeting will be a virtual meeting of stockholders. You are invited to attend and vote your shares at the annual meeting live via internet webcast so long as you register to attend the annual meeting at www.proxydocs.com/RMED by 5:00 p.m. Pacific Time on October 8, 2020 (the “Registration Deadline”). Questions will need to be submitted prior to the Annual Meeting. To submit questions, please visit www.proxydocs.com/RMEDYou will not be able to attend the annual meeting in person.

At this year’s annual meeting, our stockholders will be asked to:

 

elect as Class II directors the two nominees named in the accompanying proxy statement to serve until our 2023 annual meeting of stockholders or until their respective successors are duly elected and qualified.

 

approve an amendment to our 2018 Equity Incentive Plan (the “2018 Equity Incentive Plan”) to increase the number of shares of common stock reserved for issuance thereunder by 9,000,000 shares (on a pre-split basis).

 

approve the amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of our outstanding shares of common stock at a stock split ratio of between 1-for-25 and 1-for-75, inclusive, which ratio will be selected at the sole discretion of our Board of Directors at any whole number in the above range (the “Reverse Stock Split”), with cash paid for any fractional shares that would otherwise be issued as a result of the Reverse Stock Split; provided, that the Board may abandon the Reverse Stock Split in its sole discretion;

 

ratify the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2020; and

 

transact such other business that may properly come before the annual meeting.

Details regarding how to attend the annual meeting and the business to be conducted at the annual meeting are more fully described in the accompanying notice of annual meeting of stockholders and proxy statement.

Your vote is important.  Regardless of whether you plan to attend the annual meeting, it is important that your shares be represented and voted at the annual meeting, and we hope you will vote as soon as possible.  You may vote by proxy via the Internet, by telephone, or by mail, according to the instructions on the enclosed proxy card or voting instruction card.  Voting over the Internet or by telephone, by written proxy or voting instruction card will ensure your representation at the annual meeting regardless of whether you attend the annual meeting.


Thank you for your ongoing support of, and continued interest in, Ra Medical Systems, Inc.

Sincerely,

Jonathan Will McGuire
Chief Executive Officer,
Carlsbad, California
August 28, 2020

The date of this proxy statement is August 28, 2020, and is being mailed to stockholders on or about September 2, 2020.

Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting to Be Held on October 12, 2020.  Our Proxy Statement and Annual Report to Stockholders are available at www.proxydocs.com/RMED.

 

 


RA MEDICAL SYSTEMS, INC.

2070 Las Palmas Drive

Carlsbad, California 92011

(760) 804-1648

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS

 

Time and Date

9:00 a.m. Pacific Time, on Monday, October 12, 2020, or any adjournment or postponement thereof.

Webcast Address

www.proxydocs.com/RMED.

Items of Business

(1) To elect as Class II directors the two nominees named in the accompanying proxy statement to serve until our 2023 annual meeting of stockholders or until their respective successors are duly elected and qualified.

(2) To approve an amendment to our 2018 Equity Incentive Plan to increase the number of shares of common stock reserved for issuance thereunder by 9,000,000 shares (on a pre-split basis).

(3) To approve the amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of our outstanding shares of common stock at a stock split ratio of between 1-for-25 and 1-for-75, inclusive, which ratio will be selected at the sole discretion of our Board of Directors at any whole number in the above range (the “Reverse Stock Split”), with cash paid for any fractional shares that would otherwise be issued as a result of the Reverse Stock Split; provided, that the Board may abandon the Reverse Stock Split in its sole discretion.

(4) To ratify the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2020.

(5) To transact such other business that may properly come before the annual meeting.

Adjournments and Postponements

Any action on the items of business described above may be considered at the annual meeting at the time and on the date specified above or at any time and date to which the annual meeting may be properly adjourned or postponed.

Record Date

August 24, 2020.

Only stockholders of record of our common stock as of the close of business on Monday, August 24, 2020, are entitled to notice of and to vote at the annual meeting.

Meeting Admission

You are invited to attend the annual meeting live via webcast if you are a stockholder of record or a beneficial owner of shares of our common stock, in each case, as of August 24, 2020. Prior registration to attend the annual meeting at www.proxydocs.com/RMED is required by 5:00 p.m. Pacific Time on October 8, 2020. Instructions regarding how to connect and participate live via the internet, including how to demonstrate proof of stock ownership, are posted at www.proxydocs.com/RMED.


Voting

Your vote is very important.  You may vote by proxy via the Internet, by telephone, or by mail, according to the instructions on the enclosed proxy card or voting instruction card.  For specific instructions on how to vote your shares, please refer to the section entitled Questions and Answers beginning on page 1 of the accompanying proxy statement.

 

Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting to be Held on October 12, 2020.  The proxy statement, the accompanying materials and our 2019 annual report are being mailed on or about September 2, 2020 to all stockholders entitled to vote at the annual meeting.  A copy of our proxy statement and our 2019 annual report are also posted on www.proxydocs.com/RMED and are available from the SEC on its website at www.sec.gov.

 

By order of the Board of Directors

Daniel Horwood

General Counsel and Corporate Secretary

Carlsbad, California

 

August 28, 2020

 

 

 


 

Table of Contents

 

 

Page

 

 

QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND ANNUAL MEETING

1

BOARD OF DIRECTORS AND CORPORATE GOVERNANCE

10

 

Composition of the Board

10

 

Information about the Board of Directors

10

 

Nominees for Election at the Annual Meeting

10

 

Continuing Directors

11

 

Director Independence

12

 

Board Leadership Structure

13

 

Role of Board in Risk Oversight Process

13

 

Board Meetings and Committees

13

 

Compensation Committee Interlocks and Insider Participation

16

 

Considerations in Evaluating Director Nominees

16

 

Stockholder Recommendations for Nominations to Our Board of Directors

17

 

Communications with the Board of Directors

18

 

Corporate Governance Principles and Code of Ethics and Conduct

18

 

Director Compensation

18

 

2019 Director Compensation Table

20

PROPOSAL NUMBER 1 ‑ ELECTION OF CLASS II DIRECTORS

21

 

Nominees for Director

21

 

Required Vote

21

 

Board Recommendation

21

PROPOSAL NUMBER 2 – APPROVAL OF AMENDMENT TO THE COMPANY’S 2018 EQUITY INCENTIVE PLAN

22

 

Summary of the 2018 Equity Incentive Plan

23

 

Summary of the U.S. Federal Income Tax Consequences

27

 

Number of Awards Granted to Employees, Consultants and Directors

29

 

Required Vote

29

 

Board Recommendation

29

PROPOSAL NUMBER 3 ‑ AMENDMENT OF THE COMPANY’S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT

30

 

General

30

 

Reasons for Reverse Stock Split

30

 

Certain Risks Associated with a Reverse Stock Split

31

 

Potential Anti-Takeover Effect

32

 

Impact of the Reverse Stock Split Amendment if Implemented

33

 

Effect on Beneficial Holders of Common Stock (i.e., stockholders who hold in “street name”)

34

 

Effect on Registered “Book- Entry” Holders of Common Stock (i.e., stockholders who are registered on the transfer agent’s books and records but do not hold stock certificates)

34

 

Material United States Federal Income Tax Considerations of the Reverse Stock Split

35

 

Required Vote

38

 

Board Recommendation

38

PROPOSAL NUMBER 4 ‑ RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

39

 

Fees Paid to the Independent Registered Public Accounting Firm

39

 

Auditor Independence

40

 

Pre-Approval Policy

40

 

Required Vote

40

 

Board Recommendation

40

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REPORT OF THE AUDIT COMMITTEE

41

EXECUTIVE OFFICERS

43

EXECUTIVE COMPENSATION

44

 

Processes and Procedures for Executive Compensation

44

 

Summary Compensation Table

45

 

Executive Employment Agreements and Arrangements

46

 

Executive Change in Control and Severance Agreements

46

 

Outstanding Equity Awards at 2019 Fiscal Year-End

48

 

Perquisites, Health, Welfare and Retirement Benefits

48

 

401(k) Savings Plan

48

 

Equity Compensation Plan Information

49

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

50

 

Related Person Transactions

50

 

Certain Family Relationships

50

 

Indemnification of Officers and Directors

50

 

Policies and Procedures for Transactions with Related Persons

51

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

52

OTHER MATTERS

54

 

Section 16(a) Beneficial Ownership Reporting Compliance

54

 

Fiscal Year 2019 Annual Report

54

 

Company Website

54

 

Availability of Bylaws

54

PROPOSALS OF STOCKHOLDERS FOR 2021 ANNUAL MEETING

55

 

 

 

 

 

 

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RA MEDICAL SYSTEMS, INC.
2070 Las Palmas Drive

Carlsbad, California 92011

PROXY STATEMENT
For the 2020 Annual Meeting of Stockholders
to be held on October 12, 2020

The information provided in the “Questions and Answers” format below is for your convenience only and is merely a summary of the information contained in this proxy statement.  You should read the entire proxy statement carefully.

QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND ANNUAL MEETING

Why am I receiving these materials?

This proxy statement and the enclosed form of proxy are furnished in connection with the solicitation of proxies by our board of directors for use at the 2020 annual meeting of stockholders of Ra Medical Systems, Inc., a Delaware corporation, and any postponements, adjournments, or continuations thereof, or the annual meeting.  The annual meeting will be held on Monday, October 12, 2020 at 9:00 a.m. Pacific Time, via live internet webcast.

Stockholders are invited to attend the annual meeting and are requested to vote on the items of business described in this proxy statement.  This proxy statement, the accompanying materials and our 2019 annual report are being mailed on or about September 2, 2020, to all stockholders entitled to vote at the annual meeting.  A copy of our proxy statement and our 2019 annual report are posted on www.proxydocs.com/RMED, and are also available from the SEC on its website at www.sec.gov.

What is a proxy?

A proxy is your legal designation of another person to vote the stock you own.  The person you designate is your “proxy,” and you give the proxy authority to vote your shares by submitting the enclosed proxy card, or if available, voting by telephone or over the Internet.  We have designated Jonathan Will McGuire, Andrew Jackson and Daniel Horwood to serve as proxies for the annual meeting.

What am I voting on?

You are being asked to vote on two proposals:

 

the election of two (2) Class II directors from the nominees named in this proxy statement to hold office until our 2023 annual meeting of stockholders or until their respective successors are duly elected and qualified;

 

the approval of an amendment to our 2018 Equity Incentive Plan to increase the number of shares of common stock reserved for issuance thereunder by 9,000,000 shares (on a pre-split basis);

 

the approve the amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of our outstanding shares of common stock at a stock split ratio of between 1-for-25 and 1-for-75, inclusive, which ratio will be selected at the sole discretion of our Board of Directors at any whole number in the above range (the “Reverse Stock Split”), with cash paid for any fractional shares that would otherwise be issued as a result of the Reverse Stock Split; provided, that the Board may abandon the Reverse Stock Split in its sole discretion;

 

the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2020; and

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We will also transact any other business that properly comes before the annual meeting.

What if other matters are properly brought before the annual meeting?

As of the date of this proxy statement, we are not aware of any other matters that will be presented for consideration at the annual meeting.  If any other matters are properly brought before the annual meeting, the persons named as proxies will be authorized to vote or otherwise act on those matters in accordance with their judgment.  If for any reason a director nominee is not available as a candidate for director, the persons named as proxy holders will vote your proxy for such other candidate as may be nominated by our board of directors.

How does the board of directors recommend that I vote?

Our board of directors recommends that you vote your shares:

 

“FOR” the election of the directors nominated by our board of directors and named in this proxy statement as Class II directors;

 

“FOR” the amendment to our 2018 Equity Incentive Plan to increase the number of shares of common stock reserved for issuance thereunder by 9,000,000 shares (on a pre-split basis);

 

“FOR” the amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of our outstanding shares of common stock at a stock split ratio of between 1-for-25 and 1-for-75, inclusive, which ratio will be selected at the sole discretion of our Board of Directors at any whole number in the above range (the “Reverse Stock Split”), with cash paid for any fractional shares that would otherwise be issued as a result of the Reverse Stock Split; provided, that the Board may abandon the Reverse Stock Split in its sole discretion; and

 

“FOR” the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2020.

Who may vote at the annual meeting?

Only stockholders of record as of the close of business on August 24, 2020, the record date for the annual meeting, or the record date, are entitled to vote at the annual meeting.  As of the record date, there were 72,468,337 shares of our common stock issued and outstanding, held by 76 holders of record.  We do not have cumulative voting rights for the election of directors.

You are invited to attend and vote your shares at the annual meeting live via webcast so long as you register to attend the annual meeting at www.proxydocs.com/RMED by 5:00 p.m. Pacific Time on October 8, 2020 (the “Registration Deadline”). You will be asked to provide the control number located inside the shaded gray box on your proxy card (the “Control Number”) as described in the proxy card. After completion of your registration by the Registration Deadline, further instructions, including a unique link to access the annual meeting, will be emailed to you.

Stockholder of Record: Shares Registered in Your Name.  If, at the close of business on the record date for the annual meeting, your shares were registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, then you are a stockholder of record.  As a stockholder of record, you have the right to grant your voting proxy directly to the individuals listed on the proxy card or to vote live via the internet at the annual meeting.   You may also vote on the internet, mail, or by telephone as described below under the heading “How can I vote my shares?” and on your proxy card.

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Beneficial Owner: Shares Registered in the Name of a Broker, Bank, or Other Nominee.  If, at the close of business on the record date for the annual meeting, your shares were held, not in your name, but rather in an account at a brokerage firm, bank, or other nominee, 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, bank or other nominee regarding how to vote the shares in your account by following the voting instructions your broker, bank or other nominee provides.  You are also invited to attend the annual meeting live via webcast, and you must pre-register at www.proxydocs.com/RMED.  However, since you are not the stockholder of record, you may not vote your shares in person at the annual meeting unless you obtain a valid proxy from your broker, bank or other nominee.

How can I vote my shares?

Stockholder of Record: Shares Registered in Your Name

If you are a stockholder of record, you may vote in one of the following ways:

 

You may vote during the annual meeting live via the internet.  If you plan to attend the annual meeting live via webcast, you may vote by following the instructions posted at www.proxydocs.com/RMED. To be admitted to the annual meeting and vote your shares, you must register by the Registration Deadline and provide the Control Number as described in the proxy card. After completion of your registration by the Registration Deadline, further instructions, including a unique link to access the annual meeting, will be emailed to you.

 

You may vote by mail.  Complete, sign and date the proxy card that accompanies this proxy statement and return it promptly in the postage-prepaid envelope provided (if you received printed proxy materials).  Your completed, signed and dated proxy card must be received prior to the annual meeting.

 

You may vote by telephone.  To vote over the telephone, dial toll-free (855) 673-0647 and follow the recorded instructions.  You will be asked to provide the company number and control number from your proxy card.  Telephone voting is available 24 hours a day, 7 days a week, until 8:59 a.m. Pacific Time, on October 12, 2020.

 

You may vote via the Internet.  To vote via the Internet, go to www.proxypush.com/RMED to complete an electronic proxy card (have your proxy card in hand when you visit the website).  You will be asked to provide the company number and control number from your proxy card.  Internet voting is available 24 hours a day, 7 days a week, until 8:59 a.m. Pacific Time, on October 12, 2020.

Beneficial Owners: Shares Registered in the Name of a Broker, Bank or Other Nominee

If you are a beneficial owner of shares held of record by a broker, bank or other nominee, you will receive voting instructions from your broker, bank or other nominee.  You must follow the voting instructions provided by your broker, bank or other nominee in order to instruct your broker, bank or other nominee on how to vote your shares.  Beneficial owners of shares should generally be able to vote by returning the voting instruction card, or by telephone or via the Internet.  However, the availability of telephone or Internet voting will depend on the voting process of your broker, bank, or other nominee.  As discussed above, if you are a beneficial owner, you may not vote your shares in live via the internet at the annual meeting unless you obtain a legal proxy from your broker, bank or other nominee that holds your shares, giving you the right to vote the shares at the meeting.

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Can I change my vote or revoke my proxy?

Stockholder of Record: Shares Registered in Your Name.  If you are a stockholder of record, you can change your vote or revoke your proxy at any time before the annual meeting by:

 

entering a new vote by Internet or telephone (until the applicable deadline for each method as set forth above);

 

returning a later-dated proxy card (which automatically revokes the earlier proxy);

 

providing a written notice of revocation to our corporate secretary at Ra Medical Systems, Inc., 2070 Las Palmas Drive, Carlsbad, California 92011, Attention: Corporate Secretary; or

 

attending the annual meeting and voting live via the internet.  Attendance at the annual meeting live via the internet will not cause your previously granted proxy to be revoked unless you specifically so request.

Beneficial Owner: Shares Registered in the Name of a Broker, Bank or Other Nominee.  If you are the beneficial owner of your shares, you must contact the broker, bank or other nominee holding your shares and follow their instructions to change your vote or revoke your proxy.

What is the effect of giving a proxy?

Proxies are solicited by and on behalf of our board of directors.  The persons named in the proxy, Jonathan Will McGuire, our Chief Executive Officer, Andrew Jackson, our Chief Financial Officer, and Daniel Horwood, our General Counsel and Corporate Secretary, have been designated as proxies for the annual meeting by our board of directors.  When proxies are properly dated, executed and returned, the shares represented by such proxies will be voted at the annual meeting in accordance with the instruction of the stockholder.  If no specific instructions are given, however, the shares will be voted in accordance with the recommendations of our board of directors as described above and, if any other matters are properly brought before the annual meeting, the shares will be voted in accordance with the proxies’ judgment.

What shares can I vote?

Each share of our common stock issued and outstanding as of the close of business on August 24, 2020, the record date for the 2020 annual meeting of stockholders, is entitled to vote on all items being considered at the 2020 annual meeting. You may vote all shares owned by you as of the record date, including (i) shares held directly in your name as the stockholder of record and (ii) shares held for you as the beneficial owner in street name through a broker, bank, trustee, or other nominee. On the record date, we had 72,468,337 shares of common stock issued and outstanding.

How many votes do I have?

On each matter to be voted upon at the annual meeting, each stockholder will be entitled to one vote for each share of our common stock held by them on the record date.

What is the quorum requirement for the annual meeting?

A quorum is the minimum number of shares required to be present or represented at the annual meeting for the meeting to be properly held under our bylaws and Delaware law.  Holders of a majority of the voting power of our issued and outstanding common stock and entitled to vote at the annual meeting must be present in person or represented by proxy to hold and transact business at the annual meeting.  On the record date, there were 72,468,337 shares outstanding and entitled to vote.  Thus, the holders of at least 36,234,169 shares must be present in person or represented by proxy at the annual meeting to have a quorum.

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Abstentions, “WITHHOLD” votes, and “broker non-votes” are counted as present and entitled to vote for purposes of determining a quorum.  If there is no quorum, the chairman of the meeting or the holders of a majority of the voting power present in person or represented by proxy at the annual meeting and entitled to vote at the annual meeting may adjourn the meeting to another date.

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 holding the shares as to how to vote on matters deemed “non-routine” and there is at least one “routine” matter to be voted upon at the meeting.  Generally, if shares are held in street name, the beneficial owner of the shares is entitled to give voting instructions to the broker holding the shares.  If the beneficial owner does not provide voting instructions, the broker can still vote the shares with respect to matters that are considered to be “routine,” but not with respect to “non-routine” matters.  In the event that a broker votes shares on the “routine” matters, but does not vote shares on the “non-routine” matters, those shares will be treated as broker non-votes with respect to the “non-routine” proposals.  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.

What matters are considered “routine” and “non-routine”?

The approval of the amendment to our Amended and Restated Certificate to effect a reverse stock split of our outstanding shares (Proposal No. 3) and the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2020 (Proposal No. 4) are considered “routine” matters.  The election of directors (Proposal No. 1) and the approval of the amendment to our 2018 Equity Incentive Plan to increase the number of shares (Proposal No. 2) are considered “non-routine.”

What are the effects of abstentions and broker non-votes?

An abstention represents a stockholder’s affirmative choice to decline to vote on a proposal.  If a stockholder indicates on its proxy card that it wishes to abstain from voting its shares, or if a broker, bank or other nominee holding its customers’ shares of record causes abstentions to be recorded for shares, these shares will be considered present and entitled to vote at the annual meeting.  As a result, abstentions will be counted for purposes of determining the presence or absence of a quorum and will also count as votes against a proposal in cases where approval of the proposal requires the affirmative vote of a majority of the shares present in person or represented by proxy and entitled to vote at the annual meeting (e.g., Proposal No. 2 and Proposal No. 4).  However, because the outcome of Proposal No. 1 (election of directors) will be determined by a plurality vote, abstentions will have no impact on the outcome of such proposal as long as a quorum exists. Additionally, because the outcome of Proposal No. 3 (reverse stock split) is required to be approved by the affirmative vote of a majority of the issued and outstanding shares of the Company, abstentions will count as votes against Proposal No. 3.

Broker non-votes will be counted for purposes of calculating whether a quorum is present at the annual meeting but will not be counted for purposes of determining the number of votes cast.  Therefore, a broker non-vote will make a quorum more readily attainable but will not otherwise affect the outcome of the vote on any proposal.

What is the voting requirement to approve each of the proposals?

Proposal No. 1: Election of two nominees for Class II director named in this proxy statement to hold office until our 2023 annual meeting of stockholders or until their successors are duly elected and qualified.  

The election of directors requires a plurality of the voting power of shares present in person or represented by proxy at the annual meeting and entitled to vote on the election of directors.  This means that the two (2) nominees for Class II director receiving the highest number of “FOR” votes will be elected as Class II directors.  You may vote (i) “FOR” each nominee, or (ii) “WITHHOLD” your vote as to each nominee.  Any shares not voted “FOR” a particular nominee (whether as a result of voting withheld or a broker non-vote) will not be counted in such nominees’ favor and will have no effect on the outcome of the election.  Because the outcome of this proposal will be determined by a

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plurality vote, shares voted “WITHHOLD” will have no impact on the outcome of this proposal, but will count towards the quorum requirement for the annual meeting.

Proposal No. 2; Approval of an amendment to our 2018 Equity Incentive Plan to increase the number of shares of common stock reserved for issuance thereunder by 9,000,000 shares.

The approval of an amendment to our 2018 Equity Plan requires the affirmative vote of a majority of the shares of our common stock present in person or represented by proxy at the annual meeting and entitled to vote thereon to be approved.  You may vote “FOR,” “AGAINST,” or “ABSTAIN” on this proposal. Abstentions are deemed to be votes cast and have the same effect as a vote against the proposal. Broker non-votes are not deemed to be votes cast, are not included in the tabulation of voting results on this proposal, and will not affect the outcome of voting on this proposal.

Proposal No. 3:Approval of the amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of our outstanding shares of common stock at a stock split ratio of between 1-for-25 and 1-for-75, inclusive, which ratio will be selected at the sole discretion of our Board of Directors at any whole number in the above range (the “Reverse Stock Split”), with cash paid for any fractional shares that would otherwise be issued as a result of the Reverse Stock Split; provided, that the Board may abandon the Reverse Stock Split in its sole discretion.

The approval of the amendment to Amended and Restated Certificate of Incorporation requires the affirmative vote of a majority of the shares of our common stock outstanding as of the Record Date.  You may vote “FOR,” “AGAINST,” or “ABSTAIN” on this proposal. Abstentions are deemed to be votes cast and have the same effect as a vote against the proposal.

Proposal No. 4: Ratification of Appointment of Deloitte & Touche LLP.  

The ratification of the appointment of Deloitte & Touche LLP requires the affirmative vote of a majority of the shares of our common stock present in person or represented by proxy at the annual meeting and entitled to vote thereon to be approved.  You may vote “FOR,” “AGAINST,” or “ABSTAIN” on this proposal.  Abstentions will count towards the quorum requirement for the annual meeting and will have the same effect as a vote against the proposal. Broker non-votes are not included in the tabulation of voting results on this proposal, and will not affect the outcome of voting on this proposal. Notwithstanding the appointment of Deloitte & Touche LLP and even if our stockholders ratify the appointment, our audit committee, in its discretion, may appoint another independent registered public accounting firm at any time during our fiscal year if our audit committee believes that such a change would be in the best interests of our company and our stockholders.

Who will count the votes?

A representative of Mediant Communications, Inc. will tabulate the votes and act as inspector of elections.

What if I do not specify how my shares are to be voted or fail to provide timely directions to my broker, bank or other nominee?

Stockholder of Record: Shares Registered in Your Name.  If you are a stockholder of record and you submit a proxy but you do not provide voting instructions, your shares will be voted:

 

“FOR” the election of the directors nominated by our board of directors and named in this proxy statement as Class II directors;

 

“FOR” the amendment to our 2018 Equity Incentive Plan to increase the number of shares of common stock reserved for issuance thereunder by 9,000,000 shares (on a pre-split basis);

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“FOR” the amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of our outstanding shares of common stock at a stock split ratio of between 1-for-25 and 1-for-75, inclusive, which ratio will be selected at the sole discretion of our Board of Directors at any whole number in the above range (the “Reverse Stock Split”), with cash paid for any fractional shares that would otherwise be issued as a result of the Reverse Stock Split; provided, that the Board may abandon the Reverse Stock Split in its sole discretion; and

 

“FOR” the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2020.

 

In addition, if any other matters are properly brought before the annual meeting, the persons named as proxies will be authorized to vote or otherwise act on those matters in accordance with their judgment.

Beneficial Owner: Shares Registered in the Name of a Broker, Bank or Other Nominee.  Brokers, banks and other nominees holding shares of common stock in street name for customers are generally required to vote such shares in the manner directed by their customers.  In the absence of timely directions, your broker, bank or other nominee will have discretion to vote your shares on our “routine” matters – Proposal No. 3 to approve the Reverse Stock Split and Proposal No. 4 to ratify the appointment of Deloitte & Touche LLP.  Absent direction from you, however, your broker, bank or other nominee will not have the discretion to vote on Proposal No. 1 relating to the election of directors and Proposal No. 2 relating to the amendment to our 2018 Equity Incentive Plan.

What are the tax consequences of the Reverse Stock Split to Ra Medical Systems stockholders?

 

In general, and except with respect to cash received in lieu of fractional shares, no gain or loss should be recognized by our stockholders from the Reverse Stock Split for U.S. federal income tax purposes. For a more fulsome discussion of certain U.S. federal tax consequences of the Reverse Stock Split, see “Tax Consequences of the Reverse Stock Split” below. Each stockholder should consult his, her, or its own tax advisor regarding the particular consequences of the Reverse Stock Split on his, her, or its shares and holding periods, including the applicability and effect of any U.S. federal, state and local and non-U.S. tax laws.

How can I contact Ra Medical Systems’ transfer agent?

You may contact our transfer agent by writing American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, New York 11219.  You may also contact our transfer agent via email at help@astfinancial.com or by telephone at (800) 937-5449.

How can I attend the annual meeting?

We will host the annual meeting live via internet webcast. You will not be able to attend the annual meeting in person. Prior registration to attend the annual meeting at www.proxydocs.com/RMED is required by 5:00 p.m. Pacific Time on October 8, 2020. A summary of the information you need in order to attend the annual meeting online is provided below:

 

Any stockholder may listen to the annual meeting and participate live via the internet at www.proxydocs.com/RMED. To be admitted to the annual meeting’s live internet webcast, you must register at www.proxydocs.com/RMED by the Registration Deadline as described in the proxy card. The live internet webcast will begin on October 12, 2020 at 9:00 a.m., Pacific Time.

 

 

If a stockholder wishes to ask a question to directors and/or members of management in attendance at the annual meeting, please note that such questions must be submitted in advance of the annual meeting. To submit a question, mark the box on the proxy card when registering to attend the meeting and submit your written question or submit a question at www.proxydocs.com/RMED after logging in with your Control Number.

 

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Stockholders may vote during the annual meeting live via the internet.

 

 

A stockholder must register to attend the annual meeting prior to the Registration Deadline, and after doing so, you will be sent a link in an email to join the meeting.

 

 

Instructions regarding how to connect and participate live via the internet, including how to demonstrate proof of stock ownership, are posted at www.proxydocs.com/RMED.

Stockholder of Record: Shares Registered in Your Name.  If you were a stockholder of record at the close of business on the record date, follow the instructions regarding how to demonstrate proof of stock ownership posted at www.proxydocs.com/RMED.

Beneficial Owners: Shares Registered in the Name of a Broker, Bank or Other Nominee.  If you were a beneficial owner at the close of business on the record date, you may not vote your shares live via internet at the annual meeting unless you obtain a “legal proxy” from your broker, bank or other nominee who is the stockholder of record with respect to your shares. You may still attend the annual meeting even if you do not have a legal proxy. Instructions regarding how to demonstrate proof of stock ownership, are posted at www.proxydocs.com/RMED.

How are proxies solicited for the annual meeting and who is paying for such solicitation?

Our board of directors is soliciting proxies for use at the annual meeting by means of the proxy materials.  We will bear the entire cost of proxy solicitation, including the preparation, assembly, printing, mailing and distribution of the proxy materials.  Copies of solicitation materials will also be made available upon request to brokers, banks and other nominees to forward to the beneficial owners of the shares held of record by such brokers, banks or other nominees.  The original solicitation of proxies may be supplemented by solicitation by telephone, electronic communication, or other means by our directors, officers or employees.  No additional compensation will be paid to these individuals for any such services, although we may reimburse such individuals for their reasonable out-of-pocket expenses in connection with such solicitation.  We do not plan to retain a proxy solicitor to assist in the solicitation of proxies.

If you choose to access the proxy materials and/or vote over the Internet, you are responsible for Internet access charges you may incur.  If you choose to vote by telephone, you are responsible for telephone charges you may incur.

Where can I find the voting results of the annual meeting?

We will announce preliminary voting results at the annual meeting.  We will also disclose voting results on a Current Report on Form 8-K filed with the SEC within four (4) business days after the annual meeting.  If final voting results are not available to us in time to file a Current Report on Form 8-K within four (4) business days after the annual meeting, we will file a Current Report on Form 8-K to publish preliminary results and, within four (4) business days after final results are known, file an additional Current Report on Form 8-K to publish the final results.

What does it mean if I receive more than one set of printed materials?

If you receive more than one set of printed materials, your shares may be registered in more than one name and/or are registered in different accounts.  Please follow the voting instructions on each set of printed materials, as applicable, to ensure that all of your shares are voted.

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I share an address with another stockholder, and we received only one printed copy of the proxy materials.  How may I obtain an additional copy of the proxy materials?

We have adopted an SEC-approved procedure called “householding,” under which we can deliver a single copy of the proxy materials and annual report to multiple stockholders who share the same address unless we receive contrary instructions from one or more of the stockholders.  This procedure reduces our printing and mailing costs.  Stockholders who participate in householding will continue to be able to access and receive separate proxy cards.  Upon written or oral request, we will undertake to deliver promptly a separate copy of the proxy materials and annual report to any stockholder at a shared address to which we delivered a single copy of any of these documents.  To receive a separate copy, or, if you are receiving multiple copies, to request that we only send a single copy of next year’s proxy materials and annual report, you may contact us as follows:

Ra Medical Systems, Inc.
Attention: Corporate Secretary
2070 Las Palmas Drive
Carlsbad, California 92011
(760) 804-1648

Stockholders who hold shares in street name may contact their brokerage firm, bank, broker-dealer or other nominee to request information about householding.

Is there a list of stockholders entitled to vote at the annual meeting?

The names of stockholders of record entitled to vote at the annual meeting will be available at the annual meeting and from our corporate secretary for ten days prior to the meeting for any purpose germane to the meeting, between the hours of 9:00 a.m. and 4:30 p.m., Pacific Time, at our corporate headquarters located at 2070 Las Palmas Drive, Carlsbad, California 92011.

When are stockholder proposals due for next year’s annual meeting?

Please see the section entitled “Proposals of Stockholders for 2021 Annual Meeting” in this proxy statement for more information regarding the deadlines for the submission of stockholder proposals for our 2021 annual meeting.

What are the implications of being an “emerging growth company”?

We are an “emerging growth company” under applicable federal securities laws and therefore permitted to take advantage of certain reduced public company reporting requirements.  As an emerging growth company, we provide in this proxy statement the scaled disclosure permitted under the Jumpstart Our Business Startups Act of 2012, or the JOBS Act, including certain executive compensation disclosures required of a “smaller reporting company,” as that term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended, or the Exchange Act.  In addition, as an emerging growth company, we are not required to conduct votes seeking approval, on an advisory basis, of the compensation of our named executive officers or the frequency with which such votes must be conducted.  We will remain an emerging growth company until the earliest to occur of: (a) January 1, 2024; (b) the last day of the fiscal year in which we have more than $1.07 billion in annual revenue; (c) the end of the fiscal year in which the market value of our common stock that is held by non-affiliates exceeds $700.0 million as of the end of the second quarter of that fiscal year; or (d) the issuance, in any three-year period, by us of more than $1.0 billion in non-convertible debt securities.

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BOARD OF DIRECTORS AND CORPORATE GOVERNANCE

Composition of the Board

Our business and affairs are managed under the direction of our Board, which currently consists of seven members, six of which are “independent” under New York Stock Exchange, or NYSE, listing standards. The Board is nominating two nominees for election. Our bylaws provide that the number of directors will be fixed from time to time by resolution of the Board. All directors hold office until their successors have been elected and qualified or until their earlier death, resignation, disqualification or removal. We have divided the terms of office of the directors into three classes with staggered three year terms: Class I, whose term expires at the 2022 Annual Meeting of Stockholders; Class II, whose term expires at the 2020 Annual Meeting of Stockholders; and Class III, whose term expires at the 2021 Annual Meeting of Stockholders.

Maurice Buchbinder, M.D., who has served as a director since 2017, has not been renominated, and his term as a director will expire at the Annual Meeting. The Board would like to thank Dr. Buchbinder for his dedicated service to Ra Medical. Although we presently have seven directors, as a result of Dr. Buchbinder’s departure from the Board, the Board has reduced the number of directors from seven to six. Dr. Buchbinder will continue to serve until his term expires at the Annual Meeting, at which time the reduction to six directions will take effect.  There are two Class II directors whose current term of office expires at the annual meeting: Martin Colombatto and Maurice Buchbinder, M.D. The Board nominated, Martin Colombatto and Joan Stafslien, who was reclassified as a Class II director in August, as nominees for re-election to the Board as Class II directors at the annual meeting. If elected, Mr. Colombatto and Ms. Stafslien will continue as directors and their terms will expire at the 2023 Annual Meeting of Stockholders.  

Information about the Board of Directors

The following table sets forth the names, ages as of April 24, 2020, and certain other information regarding each member of the Board, including the nominees for election to the Board as Class II directors at the Annual Meeting, are set forth below. The following information has been furnished to us by the directors.

 

Name

 

Class

 

Age

 

 

Position

 

Director

Since

 

Current

Term

Expires

 

Expiration

of Term

For Which

Nominated

 

Nominees for Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Martin Colombatto (2)(3)

 

II

 

 

61

 

 

Chairman of the Board of Directors

 

2017

 

2020

 

2023

 

Joan Stafslien

 

II

 

 

56

 

 

Director

 

2020

 

2020

 

2023

 

Continuing Directors

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jonathan Will McGuire

 

I

 

 

57

 

 

Chief Executive Officer, Director

 

2020

 

2022

 

 

 

Mark E. Saad(1)(2)

 

I

 

 

50

 

 

Director

 

2018

 

2022

 

 

 

Richard Mejia, Jr. (2)(3)

 

III

 

 

72

 

 

Director

 

2018

 

2021

 

 

 

William R. Enquist, Jr. (1)(3)

 

III

 

 

63

 

 

Director

 

2018

 

2021

 

 

 

 

(1)

Member of our nominating and corporate governance committee.

(2)

Member of our audit committee.

(3)

Member of our compensation committee.

Nominees for Election at the Annual Meeting

Martin Colombatto has served as a director of Ra Medical since January 2017. Mr. Colombatto has served as a Venture and Industry Partner of Seven Peaks Ventures LLP, a venture capital fund based in Bend, OR, since January 2016. From December 2013 to August 2014, Mr. Colombatto served as a director of PLX Technology, Inc., a technology company. Mr. Colombatto has also served as the Chief Executive Officer and President of Staccato Communications,

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Inc., an Ultra Wideband semiconductor company, from January 2006 to March 2009 and as Executive Chairman of Staccato Communications, Inc., from January 2006 to September 2010. Prior to joining Staccato, Mr. Colombatto served as Vice President and General Manager of the Networking Business unit of Broadcom Corp., a broadband communication semiconductor company, from July 1996 to July 2002. Mr. Colombatto was also previously employed by LSI Logic, an application

Joan Stafslien has served as a director of Ra Medical since April 2020. Prior to that, she served as Executive Vice President, General Counsel and Corporate Secretary of Nuvasive, Inc. from October 2016 through June 2018, and then as an Executive Consultant from June 2018 through October 2019. Previously, Ms. Stafslien served as General Counsel, Corporate Secretary and Chief Compliance Officer of CareFusion Corporation, where she led the legal team through the spin-off from Cardinal Health, Inc. in 2009 until its acquisition by Becton, Dickinson and Company in March 2015. Prior to that, Ms. Stafslien was the segment general counsel of Cardinal Health’s Clinical Technologies and Services from 2004 to 2009, joining Cardinal Health through the acquisition of Alaris Medical Systems in 2004, where she served as deputy general counsel and assistant secretary. Prior to joining Alaris, she was in private practice with Brobeck, Phleger & Harrison. We believe that Ms. Stafslien is qualified to serve as a director because of her leadership experience in the medical device industry and extensive knowledge of legal and regulatory issues.

Continuing Directors

Richard Mejia, Jr. has served as a director of Ra Medical since July 2018. Mr. Mejia previously served as a partner in the San Diego office of Ernst & Young LLP, a public accounting firm, from 1988 up until his retirement in 2008, including that from 2001 through 2008 he led the Life Sciences practice. From 2014 to 2018 he served on the Board of Stemedica Cell Technologies, Inc., a life science company and from 2008 to 2015, Mr. Mejia served on the board of directors of Dot Hill Systems Corp., a public company which manufacturers software and hardware storage systems. From 2010 to 2012 he served on the board of directors of Sharp Health, a healthcare delivery system. Mr. Mejia holds a B.S. in Accounting from the University of Southern California. We believe that Mr. Mejia is qualified to serve as a director because of his extensive experience in public accounting, financial matters, industry knowledge and serving on boards of directors.

Jonathan Will McGuire has served as the Chief Executive Officer and a director of Ra Medical since March 2020. From August 2015 through March 2020 Mr. McGuire served as President and CEO of Second Sight Medical Products (Nasdaq: EYES), a developer, manufacturer and marketer of implantable visual prosthetics to treat blindness where he remains on the board as a director. Prior to Second Sight Medical Products he held leadership positions at Volcano Corporation including President of Americas Commercial and Senior Vice President and General Manager of Coronary Imaging, Systems and Program Management. Prior to that Mr. McGuire served as Vice President and General Manager of Patient Monitoring at Covidien, and President and Chief Executive Officer at AtheroMed, Inc., a venture capital-backed peripheral atherectomy company. For approximately five years, Mr. McGuire served as Chief Operating Officer for Spectranetics Corporation, a publicly traded medical device company with laser-based atherectomy products for treating peripheral and coronary arterial disease. Earlier in his career, he held senior management positions at Guidant Corporation including General Manager of Latin America, Director of U.S. and Global Marketing for Vascular Intervention, and Production Manager for Coronary Stents. Mr. McGuire also held positions in Finance and Production at IVAC Medical Systems. Mr. McGuire received an engineering degree from the Georgia Institute of Technology, and his MBA from the Kenan-Flagler Business School at the University of North Carolina at Chapel Hill. We believe that Mr. McGuire is qualified to serve as a director because of his extensive knowledge of our industry and his prior and current experience as a senior officer of medical device companies.

Mark E. Saad has served as a director of Ra Medical since July 2018. Mr. Saad currently serves as Partner and Chief Operating Officer of Alethea Capital Management, LLC, an asset management firm based in San Diego. From August 2014 to February 2017, Mr. Saad served as the Chief Financial Officer of Bird Rock Bio, Inc., a clinical stage biopharmaceutical company focused on developing innovative immuno-inflammatory regulators. Previously, Mr. Saad served as Chief Financial Officer of Cytori Therapeutics, a medical device developer and manufacturer, from 2004 to 2014, where he was responsible for finance and accounting, business development, and other operating functions. Prior to Cytori, he served as Executive Director of UBS Investment Bank, a multinational investment bank and financial services company, where he was the Chief Operating Officer of the Global Healthcare Group. Prior to UBS, Mr. Saad was part of the Health Care Investment Banking Group at Salomon Smith Barney, an investment bank. Mr. Saad has been a member of the board of directors of Axsome Therapeutics, Inc., a clinical-stage biopharmaceutical company,

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since December 2014. Mr. Saad holds a Bachelor of Arts from Villanova University. We believe that Mr. Saad is qualified to serve as a member of our board of directors due to his financial expertise and leadership experience.

William R. Enquist, Jr. has served as a director of Ra Medical since July 2018. Mr. Enquist held various roles at Stryker Corporation, a medical device company, from 1986 to 2014, including Advisor from 2013 to 2014 and President, Global Endoscopy from 1998 to 2013. From 2015 to 2016, Mr. Enquist served as the chairman of the board of directors of EndoChoice Holdings, Inc., a publicly traded medical device company, until its acquisition by Boston Scientific in 2016. Mr. Enquist currently is board director for SpineEx and Firefly Medical, both medical device companies. Mr. Enquist earned a BBA from the University of San Diego and completed Harvard University’s Program for Management Development. We believe that Mr. Enquist is qualified to serve as a member of our board of directors because of his extensive experience as a senior executive officer of other healthcare companies.

Director Independence

Our common stock is listed on the NYSE.  Under the rules of the NYSE, independent directors must comprise a majority of a listed company’s board of directors within a specified period of the completion of such company’s initial public offering.  In addition, the rules of the NYSE require that, subject to specified exceptions, each member of a listed company’s audit, compensation, and nominating and corporate governance committees be independent.  Under the rules of the NYSE, a director will only qualify as an “independent director” if, in the opinion of that company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.

To be considered independent for purposes of Rule 10A-3 and under the rules of NYSE, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, board of directors, or any other board committee: (1) accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries; or (2) be an affiliated person of the listed company or any of its subsidiaries.

Our board of directors undertook a review of the independence of our directors and considered whether any director has a material relationship with us that could compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities.  Based upon information requested from and provided by each director concerning his background, employment and affiliations, including family relationships, our board of directors has determined that each of Martin Colombatto, Maurice Buchbinder, Richard Mejia, Jr., Mark E. Saad, William R. Enquist, Jr. and Joan Stafslien, representing six of our seven directors, is “independent” as that term is defined under the rules of NYSE.

Our board of directors also determined that Richard Mejia, Jr. (Chairperson), Martin Colombatto, and Mark E. Saad, who currently comprise our audit committee, and Martin Colombatto (Chairperson), Richard Mejia, Jr., and William R. Enquist, who currently comprise our compensation committee, and Mark E. Saad (Chairperson), Maurice Buchbinder, M.D., and William R. Enquist, Jr., who currently comprise our nominating and corporate governance committee, satisfy the independence standards for those committees established by applicable Securities and Exchange Commission, or SEC, rules and the listing standards of the NYSE.  

In making these determinations, our board of directors considered the relationships that each non-employee director has with us and all other facts and circumstances our board of directors deemed relevant in determining their independence, including consulting relationships, family relationships and the beneficial ownership of our capital stock by each non-employee director.

There are currently no family relationships among any of our directors or executive officers.  For a description of the prior family relationships among our directors or executive officers, see the section entitled “Certain Relationships and Related Party Transactions: Certain Family Relationships.

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Board Leadership Structure

As described below, Mr. Colombatto, an independent director with substantial executive leadership experience, currently serves as our Chairman of the board of directors and Mr. McGuire currently serves as our Chief Executive Officer.

Chairman of the Board

Our corporate governance principles provide that the board will fill the chairman position based upon the board’s view of what is in our best interests at any point in time. Our board of directors believes that Mr. Colombatto’s service as chairman is in the best interests of Ra Medical Systems and its stockholders.  As Mr. Colombatto currently serves as our chairman and is an independent director, the board does not currently have a lead independent director. The Board has determined that this leadership structure, specifically the separation of the Chief Executive Officer and Chairman of the board of directors positions, is appropriate for our company because, in the judgment of the board of directors, an independent chairman of the board of directors (or lead independent director, if the chair of the board of directors is not an independent director) is best positioned to express to management the views of the board of directors (and, particularly, the independent directors) and to provide constructive feedback to the Chief Executive Officer regarding management’s performance.

Given his tenure with and status within Ra Medical Systems, our board of directors believes Mr. Colombatto possesses detailed and in-depth knowledge of the issues, opportunities, and challenges facing Ra Medical Systems, and we believe he is best positioned, in consultation with Mr. McGuire, to develop agendas that ensure that the board’s time and attention are focused on the most critical matters. In addition, we believe the working relationship between Mr. Colombatto and Mr. McGuire, on the one hand, and between Mr. Colombatto and the other independent directors, on the other, enhances and facilitates the flow of information between management and our board as well as the ability of our independent directors to evaluate and oversee management and its decision-making. Mr. Colombatto and Mr. McGuire speak regularly on strategic, operational, and management matters facing Ra Medical Systems. In addition, as discussed below, our board of directors typically holds executive sessions consisting only of non-employee directors in conjunction with each regular quarterly meeting of the board, and Mr. Colombatto and Mr. McGuire discuss board feedback to management following these executive sessions.

Role of Board in Risk Oversight Process

One of the key functions of our board of directors is informed oversight of our risk management process.  Our board of directors does not have a standing risk management committee, but rather administers this oversight function directly through the board of directors as a whole, as well as through its standing committees that address risks inherent in their respective areas of oversight.  In particular, our board of directors is responsible for monitoring and assessing strategic risk exposure.  Our audit committee is responsible for reviewing and discussing our major financial risk exposures and the steps our management has taken to monitor and control these exposures, including guidelines and policies with respect to risk assessment and risk management.  Our audit committee also monitors compliance with legal and regulatory requirements and reviews related party transactions, in addition to oversight of the performance of our external audit function.  Our nominating and corporate governance committee assists our board of directors in fulfilling its oversight responsibilities with respect to the management of risk associated with board organization, membership and structure, and corporate governance. Our compensation committee assesses and monitors whether any of our compensation policies and programs has the potential to encourage excessive risk-taking.  The board believes its leadership structure is consistent with and supports the administration of its risk oversight function.

Board Meetings and Committees

During our fiscal year ended December 31, 2019, our board of directors held eleven (11) meetings (including regularly scheduled and special meetings), and each director attended at least 75% of the aggregate of (i) the total number of meetings of our board of directors held during the period for which he has been a director and (ii) the total number of meetings held by all committees of our board of directors on which he served during the periods that he served.

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It is the policy of our Board to regularly have separate meeting times for independent directors without management. Although we do not have a formal policy regarding attendance by members of our board of directors at annual meetings of stockholders, we encourage, but do not require, our directors to attend.

Our board of directors has an audit committee, a compensation committee and a nominating and corporate governance committee, each of which has the composition and the responsibilities described below.  We believe that the composition of these committees meets the criteria for independence under, and the functioning of these committees comply with the requirements of, the Sarbanes-Oxley Act of 2002, the rules of the NYSE, and SEC rules and regulations.  

Audit Committee

The members of our audit committee are Richard Mejia, Jr., Martin Colombatto and Mark E. Saad. Mr. Mejia serves as the chairperson of our audit committee.  Our board of directors has determined that each of the members of our audit committee is an independent director under the NYSE listing rules, satisfies the additional independence criteria for audit committee members and satisfies the requirements for financial literacy under the NYSE listing rules and Rule 10A-3 of the Exchange Act, as applicable.  Our board has also determined that Mr. Mejia qualifies as an audit committee financial expert within the meaning of the applicable rules and regulations of the SEC and satisfies the financial sophistication requirements of the NYSE listing rules.

Our audit committee oversees our corporate accounting and financial reporting process and assists our board of directors in monitoring our financial systems and our legal and regulatory compliance.  Our audit committee responsibilities also include, among other things:

 

selecting and hiring the independent registered public accounting firm to audit our financial statements;

 

overseeing the performance of the independent registered public accounting firm and taking those actions as it deems necessary to satisfy itself that the accountants are independent of management;

 

reviewing financial statements and discussing with management and the independent registered public accounting firm our annual audited and quarterly financial statements, the results of the independent audit and the quarterly reviews, and the reports and certifications regarding internal control over financial reporting and disclosure controls;

 

preparing the audit committee report that the SEC requires to be included in our annual proxy statement;

 

reviewing the adequacy and effectiveness of our internal controls and disclosure controls and procedures;

 

overseeing our policies on risk assessment and risk management;

 

reviewing related party transactions; and

 

approving or, as required, pre-approving, all audit and all permissible non-audit services and fees to be performed by the independent registered public accounting firm.

Our audit committee operates under a written charter approved by our board of directors and that satisfies the applicable rules and regulations of the SEC and the listing requirements of NYSE.  The charter is available on our website, www.ramed.com, under the Investor Relations tab under Governance.  Our audit committee held seventeen (17) meetings during 2019.

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Compensation Committee

The members of our compensation committee are Martin Colombatto, William R. Enquist, Jr. and Richard Mejia, Jr.  Mr. Colombatto serves as the chairperson of our compensation committee.  Our board of directors has determined that each member of our compensation committee is an independent director under the current rules of NYSE, satisfies the additional independence criteria for compensation committee members under Rule 10C-1 and the NYSE listing rules and is a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act.

Our compensation committee oversees our corporate compensation programs.  The compensation committee responsibilities also include, among other things:

 

reviewing and approving or recommending to the board for approval compensation of our executive officers;

 

reviewing and recommending to the board for approval compensation of directors;

 

overseeing our overall compensation philosophy and compensation policies, plans and benefit programs for service providers, including our executive officers;

 

reviewing, approving and making recommendations to our board of directors regarding incentive compensation and equity plans; and

 

administering our equity compensation plans.

Our compensation committee operates under a written charter approved by our board of directors and that satisfies the applicable rules and regulations of the SEC and the listing requirements of NYSE.  The charter is available on our website, www.ramed.com, under the Investor Relations tab under Governance.  Our compensation committee held six (6) meetings during 2019.

Nominating and Corporate Governance Committee

The current members of our nominating and corporate governance committee are Mark E. Saad, Maurice Buchbinder and William R. Enquist, Jr. Mr. Saad serves as the chairperson of our nominating and corporate governance committee. All current members of our nominating and corporate governance committee meet the requirements for independence under current NYSE listing standards and SEC rules and regulations. The nominating and corporate governance committee oversees our nominations for directors and corporate governance matters.  The nominating and corporate governance committee responsibilities also include, among other things:

 

identifying, evaluating and selecting, or making recommendations to our board of directors regarding, nominees for election to our board of directors and its committees;

 

evaluating the performance of our board of directors and of individual directors;

 

considering and making recommendations to our board of directors regarding the composition of our board of directors and its committees; and

 

developing and making recommendations to our board of directors regarding corporate governance guidelines and matters.

Our nominating and corporate governance committee operates under a written charter approved by our board of directors and that satisfies the applicable rules and regulations of the SEC and the listing requirements of NYSE.  The charter is available on our website, www.ramed.com, under the Investor Relations tab under Governance.  Our nominating and corporate governance committee held two (2) meetings during 2019.

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Compensation Committee Interlocks and Insider Participation

None of our executive officers currently serves, or in the past year has served, as a member of the compensation committee, or other board committee performing equivalent functions (or in the absence of any such committee, the entire board of directors) or director of any entity that has one or more executive officers serving on our compensation committee or our board of directors.  None of the members of our compensation committee during the last fiscal year, which included Martin Colombatto, William R. Enquist, Jr. and Richard Mejia, Jr. is or has been an officer or employee of the Company.

Considerations in Evaluating Director Nominees

The nominating and corporate governance committee uses the following procedures to identify and evaluate any individual recommended or offered for nomination to the Board:

 

The nominating and corporate governance committee will consider candidates recommended by stockholders in the same manner as candidates recommended to the nominating and corporate governance committee from other sources.

 

In its evaluation of director candidates, including the members of the Board eligible for re-election, the nominating and corporate governance committee will consider the following:

 

o

The current size and composition of the Board and the needs of the Board and the respective committees of the Board.

 

o

Such factors as character, integrity, judgment, diversity of background (including gender diversity) and experience, independence, area of expertise, corporate experience, length of service, potential conflicts of interest, other commitments and the like. The nominating and corporate governance committee evaluates these factors, among others, and does not assign any particular weighting or priority to any of these factors.

 

o

Other factors that the nominating and corporate governance committee may consider appropriate.

The nominating and corporate governance committee evaluates all incumbent, replacement or additional nominees for election as directors, taking into account (i) all factors the committee considers appropriate, which may include career specialization, relevant technical skills or financial acumen, diversity of viewpoint and industry knowledge, and (ii) the following minimum qualifications:

 

the highest personal and professional ethics and integrity;

 

proven achievement and competence in the nominee’s field and the ability to exercise sound business judgment;

 

skills that are complementary to those of the existing board;

 

the ability to assist and support management and make significant contributions to the Company’s success; and

 

an understanding of the fiduciary responsibilities required of a member of the board and the commitment of time and energy necessary to diligently carry out those responsibilities.

The nominating and corporate governance committee also focuses on issues of diversity, such as diversity of gender, race, and national origin, education, professional experience and differences in viewpoints and skills.  The nominating and corporate governance committee believes that it is essential that members of our board of directors represent diverse viewpoints.  

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If our nominating and corporate governance committee determines that an additional or replacement director is required, the nominating and corporate governance committee may take such measures as it considers appropriate in connection with its evaluation of a director candidate, including candidate interviews, inquiry of the person or persons making the recommendation or nomination, engagement of an outside search firm to gather additional information, or reliance on the knowledge of the members of the nominating and corporate governance committee, board, or management.

The nominating and corporate governance committee may propose to the Board a candidate recommended or offered for nomination by a stockholder as a nominee for election to the Board.

Our nominating and corporate governance committee has discretion to decide which individuals to recommend for nomination as directors and our board of directors has the final authority in determining the selection of director candidates for nomination to our board.  After completing its review and evaluation of director candidates, our board of directors unanimously recommends Mr. Colombatto and Ms. Stafslien, the director nominees, for election as Class II directors to serve until our 2023 annual meeting of stockholders or until their respective successors are duly elected and qualified.

Stockholder Recommendations for Nominations to Our Board of Directors

It is the policy of our nominating and corporate governance committee to consider recommendations for candidates to our board of directors from our stockholders holding no less than one percent (1%) of the outstanding shares of the Company’s common stock continuously for at least twelve (12) months prior to the date of the submission of the recommendation or nomination.  A stockholder that wishes to recommend a candidate for consideration by the committee as a potential candidate for director must direct the recommendation in writing to Ra Medical Systems, Inc., 2070 Las Palmas Drive, Carlsbad, California 92011, Attention: Corporate Secretary, and must include the candidate’s name, home and business contact information, detailed biographical data, relevant qualifications, a signed letter from the candidate confirming willingness to serve, information regarding any relationships between us and the candidate and evidence of the recommending stockholder’s ownership of our stock.  Such recommendation must also include a statement from the recommending stockholder in support of the candidate, particularly within the context of the criteria for board membership, including issues of character, integrity, judgment, and diversity of experience, independence, area of expertise, corporate experience, length of service, potential conflicts of interest, other commitments and the like and personal references.  Our board of directors will consider the recommendation but will not be obligated to take any further action with respect to the recommendation.

A stockholder that instead desires to nominate a person directly for election to the Board at an annual meeting of the stockholders must meet the deadlines and other requirements set forth in Section 2.4 of the Company’s Bylaws and the rules and regulations of the Securities and Exchange Commission.  Section 2.4 of the Company’s Bylaws requires that a stockholder who seeks to nominate a candidate for director must provide a written notice to the Secretary of the Company not later than the 45th day nor earlier than the 75th day before the one-year anniversary of the date on which the corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or if the date of the annual meeting is advanced by more than 30 days prior to or delayed by more than 60 days after the one-year anniversary of the date of the previous year’s annual meeting, then notice by the stockholder to be timely must be so received by the Secretary of the Company not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting and (ii) the 10th day following the day on which Public Announcement (as defined below) of the date of such annual meeting is first made.  That notice must state the information required by Section 2.4 of the Company’s Bylaws, and otherwise must comply with applicable federal and state law.  The Secretary of the Company will provide a copy of the Bylaws upon request in writing from a stockholder.  “Public Announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or any successor thereto.

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Communications with the Board of Directors

The Board believes that management speaks for the Company.  Individual Board members may, from time to time, communicate with various constituencies that are involved with the Company, but it is expected that Board members would do this with knowledge of management and, in most instances, only at the request of management.

In cases where stockholders or other interested parties wish to communicate directly with our non-management directors, messages can be sent to Ra Medical Systems, Inc., 2070 Las Palmas Drive, Carlsbad, California 92011, Attention: Corporate Secretary.  Our corporate secretary monitors these communications and will provide a summary of all received messages to the board at each regularly scheduled meeting.  Our board typically meets on a quarterly basis.  Where the nature of a communication warrants, our Secretary may determine, in his or her judgment, to obtain the more immediate attention of the appropriate committee of the board or non-management director, of independent advisors or of our management, as our Secretary considers appropriate.

Our Secretary may decide in the exercise of his or her judgment whether a response to any stockholder or interested party communication is necessary.

This procedure for stockholder and other interested party communications with the non-management directors is administered by our nominating and corporate governance committee.  This procedure does not apply to (a) communications to non-management directors from our officers or directors who are stockholders, (b) stockholder proposals submitted pursuant to Rule 14a-8 under the Exchange Act, or (c) communications to the audit committee pursuant to our procedures for complaints regarding accounting and auditing matters.

Corporate Governance Principles and Code of Ethics and Conduct

Our board of directors has adopted corporate governance principles. These principles address items such as the qualifications and responsibilities of our directors and director candidates and corporate governance policies and standards applicable to us in general. In addition, our board of directors has adopted a written code of ethics and conduct that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions.  A copy of our corporate governance principles and code of ethics and conduct are available on our website, www.ramed.com, under the Investor Relations tab under Governance, then Governance Documents.  If we make any substantive amendments to, or grant any waivers from, the code of ethics and conduct for any officer or director, we will disclose the nature of such amendment or waiver on our website.

Director Compensation

In connection with our initial public offering, our board of directors retained Compensia, a national compensation consultant, to provide our board of directors with an analysis of market data compiled from certain comparable public companies and assistance in determining compensation of directors. Our board of directors adopted our Outside Director Compensation Policy which provides that, following our initial public offering, each non-employee director is entitled to receive the following cash compensation for their services:

 

$40,000 retainer per year for each non-employee director;

 

$40,000 retainer per year for service as non-employee chairman of the board of directors;

 

$30,000 retainer per year for service as lead non-employee director;

 

$20,000 retainer per year for the chairman of the audit committee or $10,000 retainer per year for each other member of the audit committee;

 

$15,000 retainer per year for the chairman of the compensation committee or $7,000 retainer per year for each other member of the compensation committee; and

 

$8,500 retainer per year for the chairman of the nominating and corporate governance committee or $4,500 retainer per year for each other member of the nominating and corporate governance committee.

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Each non-employee director may also elect to receive all or part of his or her cash retainer payments in the form of stock options granted under our 2018 Equity Incentive Plan, referred to as “retainer options.” Elections to convert a cash retainer payment into retainer options, referred to as “retainer option elections,” must generally be made on or prior to December 31 of the year prior to the year in which the cash retainer payment is scheduled to be paid, or such earlier deadline as established by our board of directors or compensation committee. Each individual who first becomes a non-employee director is permitted to elect to convert cash retainer payments payable in the same calendar year into retainer options, referred to as an “initial retainer election,” provided that the retainer option election is made prior to the date the individual becomes a non-employee director. The number of shares subject to a retainer option will be equal to the quotient of (i) the dollar value of the aggregate retainer cash payments that the non-employee director elects to forego over the course of a specified period covered by a retainer option election in favor of receiving a retainer option divided by (ii) the grant date value (calculated in accordance with the Black-Scholes option valuation methodology, or such other methodology as our board of directors or the compensation committee may determine) of a retainer option to purchase one share of our common stock, provided that the number of shares covered by such retainer option shall be rounded down to the nearest whole share.  Retainer options generally vest over one year at the rate of 25% each calendar quarter, subject to the non-employee director’s continued service as a director through each vesting date, provided that retainer options granted pursuant to an initial retainer election will vest at the rate of 25%, 33%, 50% or 100% each calendar quarter depending on whether the date of the applicable non-employee director’s election or appointment to our board of directors occurs during the first, second, third or fourth quarter of the applicable calendar year.  

In addition to the cash compensation structure described above, our Outside Director Compensation Policy provides the following equity incentive compensation program for non-employee directors. Each non-employee director who first joins us (other than a director who becomes a non-employee director as a result of terminating employment with us) automatically is granted on the first trading date on or after his or her start date as a non-employee director a one-time, initial restricted stock unit award with a value of $140,000. Further, on the date of each of our annual stockholder meetings, each non-employee director who is continuing as a director following our annual stockholder meeting automatically will be granted an annual restricted stock unit award with a value of $100,000. Unless otherwise determined by our board of directors or our compensation committee, the number of restricted stock units subject to such awards will be determined based on the per share fair market value of our common stock on the applicable grant date. Each initial restricted stock unit award vests as to 1/3rd of the award on each of the first three anniversaries of the date the director’s service as a non-employee director started, subject to continued service through each relevant vesting date. Each annual restricted stock unit award will vest as to 100% of the underlying shares on the earlier of the one-year anniversary of the award’s grant date or the day before the date of our annual stockholder meeting next following the award’s grant date, subject to continued service through such date. In the event of a change in control of our company, all equity awards granted to a non-employee director (including those granted pursuant to our Outside Director Compensation Policy) will fully vest and become immediately exercisable, subject to continued service through such date.

For compensation awarded following our initial public offering, in any fiscal year, a non-employee director may be paid, issued or granted cash compensation and equity awards with a total value of no greater than $500,000 (with the value of an equity award based on its grant date fair value for purposes of this limit), or the annual director limit. Equity awards or cash compensation granted to a non-employee director while he or she was an employee or consultant (other than a non-employee director) will not count toward the annual director limit.

Our Outside Director Compensation Policy also provides for the reimbursement of our non-employee directors for reasonable, customary and documented travel expenses to attend meetings of our board of directors and committees of our board of directors.

Compensation for our non-employee directors is not limited to the equity awards and payments set forth in our Outside Director Compensation Policy. Our non-employee directors remain eligible to receive equity awards and cash or other compensation outside of the Outside Director Compensation Policy, as may be provided from time to time at the discretion of our board of directors.

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2019 Director Compensation Table

The following table sets forth information regarding compensation earned or paid to our directors during the year ended December 31, 2019.

 

Name

 

Fees Earned

or Paid in

Cash ($)

 

 

Stock

Awards ($)

(1)

 

 

Total ($)

 

Martin Colombatto (2)

 

 

98,859

 

 

 

99,998

 

 

 

198,857

 

Maurice Buchbinder (3)

 

 

44,500

 

 

 

99,998

 

 

 

144,498

 

William R. Enquist, Jr. (4)

 

 

51,500

 

 

 

99,998

 

 

 

151,498

 

Richard Mejia, Jr. (5)

 

 

67,000

 

 

 

99,998

 

 

 

166,998

 

Mark E. Saad (6)

 

 

58,500

 

 

 

99,998

 

 

 

158,498

 

Dean S. Irwin (7)

 

 

6,957

 

 

 

 

 

 

6,957

 

 

(1)

Amounts represent the aggregate grant date fair value of the awards calculated in accordance with Financial Accounting Standards Board ASC Topic 718, Stock Compensation, without regard to estimated forfeitures. See Note 12 of the notes to our audited financial statements included in our annual report on Form 10-K for the year ended December 31, 2019 for a discussion of valuation assumptions made in determining the grant date fair value and compensation expense of our awards.

(2)

Mr. Colombatto had 42,000 options to purchase shares of our common stock outstanding and 35,340 restricted stock units outstanding as of December 31, 2019.

(3)

Dr. Buchbinder had 42,000 options to purchase shares of our common stock outstanding and 35,340 restricted stock units outstanding as of December 31, 2019.

(4)

Mr. Enquist had no options to purchase shares of our common stock outstanding and 35,340 restricted stock units outstanding as of December 31, 2019.

(5)

Mr. Mejia had no options to purchase shares of our common stock outstanding and 35,340 restricted stock units outstanding as of December 31, 2019.  

(6)

Mr. Saad had no options to purchase shares of our common stock outstanding and 35,340 restricted stock units outstanding as of December 31, 2019.

(7)

Mr. Irwin resigned as a director on October 14, 2019. Mr. Irwin had 111,110 options to purchase shares of our common stock outstanding and no restricted stock units as of December 31, 2019.  

See “Executive Compensation” for information about the compensation of directors who are also executive officers.

 

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PROPOSAL NUMBER 1

ELECTION OF CLASS II DIRECTORS

Our board of directors is currently composed of seven (7) directors, of which six (6) directors are “independent” under NYSE listing standards. As of the 2020 Annual Meeting of Stockholders, our Board will consist of six (6) members. In accordance with our certificate of incorporation, our Board is divided into three classes with staggered three-year terms.  Any increase or decrease in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of our directors.  This classification of our Board may have the effect of delaying or preventing changes in control of our company.

At the annual meeting, two (2) Class II directors will be elected to our board of directors by the holders of our common stock to serve for three-year terms expiring at the 2023 annual meeting of stockholders.  Each director’s term continues until the election and qualification of his or her successor, or such director’s earlier death, resignation or removal.

Nominees for Director

Our board of directors has nominated, Martin Colombatto and Joan Stafslien, each a current director, as nominees for reelection to our board of directors at the annual meeting as Class II directors.  If elected, each of the aforementioned nominees will serve as a Class II director until the 2023 annual meeting or until his or her respective successor is duly elected and qualified.  For more information concerning the nominees, please see the section entitled “Board of Directors and Corporate Governance.”

Mr. Colombatto and Ms. Stafslien have each agreed to serve, if elected, and management has no reason to believe that they will be unavailable to serve.  In the event a nominee is unable or declines to serve as a director at the time of the annual meeting, proxies will be voted for any nominee who may be proposed by the nominating and corporate governance committee and designated by the present board of directors to fill the vacancy.

Required Vote

The Class II directors elected to the board of directors will be elected by a plurality of the voting power of shares present in person or represented by proxy and entitled to vote on the election of directors.  In other words, the two nominees receiving the highest number of “FOR” votes will be elected as Class II directors.  Shares represented by executed proxies will be voted, if authority to do so is not expressly withheld, for the election of Martin Colombatto and Joan Stafslien.  Broker non-votes will have no effect on this proposal.

Board Recommendation

Our board of directors recommends a vote “FOR” the election of each of the two (2) nominees to the board of directors as Class II directors to serve for three year terms.

 

 

 

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PROPOSAL NUMBER 2

APPROVAL OF AMENDMENT TO THE COMPANY’S 2018 EQUITY INCENTIVE PLAN

The company’s stockholders are being asked to approve an amendment to the company’s 2018 Equity Incentive Plan, or the 2018 Equity Incentive Plan, which would increase the number of shares of common stock reserved for issuance under the 2018 Equity Incentive Plan by 9,000,000 shares. A copy of the 2018 Equity Incentive Plan, as amended by this proposal, is set forth in this proxy statement as Appendix A.

We believe that long-term incentive compensation programs align the interests of management, employees and stockholders to create long-term stockholder value. We believe that the Plan increases the Company’s ability to achieve this objective by allowing for several different forms of long-term incentive awards, which we believe will help us recruit, reward, motivate and retain talented personnel.  All of our outstanding stock options currently have exercise prices significantly higher than our market price, and therefore may not serve as an adequate retention tool for our existing employees.  In addition, in order to achieve our business objectives, we are dependent on attracting and retaining talented executives and employees.  We believe that granting equity awards serve as an important recruiting and retention tool.  Also, given our limited cash resources, we believe that granting equity allows us to use our existing cash for vital business purposes.

If our stockholders approve the amendment, the total number of shares of our common stock that will be reserved for issuance under the 2018 Equity Incentive  Plan will be 10,182,557 shares (representing approximately 14% of our outstanding common stock as of August 24, 2020) plus any additional shares added pursuant to expiration, termination or forfeiture of outstanding awards under the Stock Compensation Plan (the “Compensation Plan”), pursuant to the 2018 Equity Incentive Plan’s terms following August 24, 2020. Our compensation committee and our board of directors considered the following when determining the number of shares to reserve for issuance under the 2018 Equity Incentive Plan:

Number of Shares Remaining under the 2018 Equity Incentive Plan. As of August 24, 2020 the number of shares that remained available for issuance under the 2018 Equity Incentive Plan was 1,182,557 shares plus any shares subject to outstanding equity awards granted under our 2018 Equity Incentive Plan or the Compensation Plan that return or are added to the 2018 Equity Incentive Plan due to expiration, termination or forfeiture thereof pursuant to the 2018 Equity Incentive Plan’s terms. Any shares made subject to new awards granted under the 2018 Equity Incentive Plan between August 24, 2020, and the date the amendment to the 2018 Equity Incentive Plan is approved by our stockholders will reduce the shares available for issuance under the 2018 Equity Incentive Plan. As of August 24, 2020, options to purchase an aggregate of 1,693,154 shares of the company’s common stock were outstanding under the 2018 Equity Incentive Plan, with a weighted average exercise price of $1.22 per share and a weighted average remaining contractual life of 9.27 years, and options to purchase an aggregate of 1,498,843 shares of the company’s common stock were outstanding under the Compensation Plan, with a weighted average exercise price of $28.94 per share and a weighted average remaining contractual life of 6.17 years. In addition, as of August 24, 2020, a total of 511,974 restricted stock units were outstanding under the 2018 Equity Incentive Plan with a weighted average remaining vesting period of 1.76 years, and a total of zero restricted stock units were outstanding under the Compensation Plan.

Overhang. As of August 24, 2020, 2,205,128 shares of common stock were subject to equity awards under our 2018 Equity Incentive Plan, 1,498,843 shares of common stock were subject to equity awards under our Compensation Plan, and 1,182,557 shares of common stock were available for future grant under the 2018 Equity Incentive Plan (excluding the 9,000,000 shares discussed in this proposal and subject to approval at the Annual Meeting).

Historical Grant Practices. Our compensation committee and our board of directors considered the number of equity awards that we granted since our initial public offering. Since our initial public offering, which was completed in September 2018, we granted equity awards representing a total of approximately 2,741,263 shares under the 2018 Equity Incentive Plan.

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External Factors. In determining the number of shares to request for approval under the 2018 Equity Incentive Plan amendment, our compensation committee and our board of directors also considered various other factors, including our current stock price, prior grants made to our employees, and guidance from Compensia, our compensation committee’s independent compensation consultant.

After consideration of these factors, our compensation committee determined that a 9,000,000 share reserve increase would be appropriate to allow us to continue to grant equity-based compensation at levels we deem appropriate for the next one to two years.  If stockholders do not approve the proposed 9,000,000 share increase, in order to remain competitive in hiring and retaining high quality employees, it may become necessary to replace components of compensation previously awarded in equity with cash. We do not believe increasing cash compensation to make up for any shortfall in equity compensation would be practical or advisable because we believe that a combination of equity awards and cash compensation provide a more effective compensation strategy than cash alone for attracting, retaining and motivating our employees long-term and aligning employees’ and stockholders’ interests. In addition, any significant increase in cash compensation in lieu of equity awards could substantially increase our operating expenses and increase the negative cash flow from our operations, which could adversely affect our business results and could adversely affect our business strategy, including the research and development of innovative new products.

Summary of the 2018 Equity Incentive Plan

Our board of directors adopted the 2018 Equity Incentive Plan in connection with the Company’s 2018 initial public offering (“Initial Public Offering”). Our 2018 Equity Incentive Plan provides for the grant of incentive stock options, within the meaning of Section 422 of the Internal Revenue Code, or Code, to our employees and any of our parent and subsidiary corporations’ employees, and for the grant of nonstatutory stock options, restricted stock, restricted stock units, stock appreciation rights, performance units and performance shares to our employees, directors and consultants and our parent and subsidiary corporations’ employees and consultants. As of August 24, 2020, we had 6 non-employee directors and 84 employees, including our employee directors.

Authorized Shares.  Subject to the adjustment provisions contained in the 2018 Equity Incentive Plan and the automatic increase section set forth in Section 3(b) of the Plan, a total of 1,182,557 shares of our common stock are currently reserved for issuance pursuant to our 2018 Equity Incentive Plan, which includes 61,699 shares added to the 2018 Equity Incentive Plan from our Compensation Plan as of August 24, 2020, plus any shares subject to stock options or similar awards granted under the Compensation Plan that expire or otherwise terminate without having been exercised in full and shares issued pursuant to awards granted under the Compensation Plan that are forfeited to or repurchased by the Company (provided that the maximum number of shares that may be added to the 2018 Equity Incentive Plan pursuant to shares originally reserved under the Compensation Plan is 3,300,000 shares). If this amendment is approved by our stockholders, a total of 10,182,557 shares of our common stock will be reserved for issuance pursuant to the 2018 Equity Incentive Plan, plus any additional shares added pursuant to outstanding awards under the Compensation Plan and the 2018 Equity Incentive Plan’s terms following August 24, 2020.

The number of shares available for issuance under our 2018 Equity Incentive Plan also includes an annual increase on the first day of each fiscal year, equal to the least of:

 

 

1,632,134 shares;

 

five percent (5%) of the outstanding shares of our common stock as of the last day of the immediately preceding fiscal year; or

 

such other amount as our board of directors may determine.

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If an award expires or becomes unexercisable without having been exercised in full, is surrendered pursuant to an exchange program, or, with respect to restricted stock, restricted stock units, performance units or performance shares, is forfeited to or repurchased by us due to failure to vest, the unpurchased shares (or for awards other than stock options or stock appreciation rights, the forfeited or repurchased shares) will become available for future grant or sale under the 2018 Equity Incentive Plan (unless the 2018 Equity Incentive Plan has terminated). With respect to stock appreciation rights, only the net shares actually issued will cease to be available under the 2018 Equity Incentive Plan and all remaining shares under stock appreciation rights will remain available for future grant or sale under the 2018 Equity Incentive Plan (unless the 2018 Equity Incentive Plan has terminated). Shares that have actually been issued under the 2018 Equity Incentive Plan will not be returned to the 2018 Equity Incentive Plan, except if shares issued pursuant to awards of restricted stock, restricted stock units, performance shares or performance units are repurchased by or forfeited to us, such shares will become available for future grant under the 2018 Equity Incentive Plan. Shares used to pay the exercise price of an award or satisfy the tax withholding obligations related to an award will become available for future grant or sale under the 2018 Equity Incentive Plan. To the extent an award is paid out in cash rather than shares, such cash payment will not result in a reduction in the number of shares available for issuance under the 2018 Equity Incentive Plan.

Plan Administration.   Our board of directors or one or more committees appointed by our board of directors administers our 2018 Equity Incentive Plan. The compensation committee of our board of directors administers our 2018 Equity Incentive Plan. In addition, if we determine it is desirable to qualify transactions under our 2018 Equity Incentive Plan as exempt under Rule 16b-3 of the Exchange Act, such transactions will be structured to satisfy the requirements for exemption under Rule 16b-3. Subject to the provisions of our 2018 Equity Incentive Plan, the administrator has the power to administer our 2018 Equity Incentive Plan and make all determinations deemed necessary or advisable for administering the 2018 Equity Incentive Plan, including but not limited to, the power to determine the fair market value of our common stock, select the service providers to whom awards may be granted, determine the number of shares covered by each award, approve forms of award agreements for use under the 2018 Equity Incentive Plan, determine the terms and conditions of awards (including, but not limited to, the exercise price, the time or times at which awards may be exercised, any vesting acceleration or waiver or forfeiture restrictions, and any restriction or limitation regarding any award or the shares relating thereto), construe and interpret the terms of our 2018 Equity Incentive Plan and awards granted under it, prescribe, amend and rescind rules relating to our 2018 Equity Incentive Plan, including creating sub-plans, modify or amend each award, including but not limited to the discretionary authority to extend the post-termination exercisability period of awards, and allow a participant to defer the receipt of payment of cash or the delivery of shares that would otherwise be due to such participant under an award. The administrator also has the authority to allow participants the opportunity to transfer outstanding awards to a financial institution or other person or entity selected by the administrator and to institute an exchange program by which outstanding awards may be surrendered or cancelled in exchange for awards of the same type, which may have a higher or lower exercise price and/or different terms, awards of a different type and/or cash, or by which the exercise price of an outstanding award is increased or reduced. The administrator’s decisions, interpretations and other actions are final and binding on all participants.

 

Stock Options.    Stock options may be granted under our 2018 Equity Incentive Plan. The exercise price of options granted under our 2018 Equity Incentive Plan must at least be equal to the fair market value of our common stock on the date of grant. The term of an option may not exceed ten years. With respect to any participant who owns more than 10% of the voting power of all classes of our (or any parent or subsidiary of ours) outstanding stock, the term of an incentive stock option granted to such participant must not exceed five years and the exercise price must equal at least 110% of the fair market value on the grant date. The administrator will determine the methods of payment of the exercise price of an option, which may include cash, shares or other property acceptable to the administrator, as well as other types of consideration permitted by applicable law. After the termination of service of an employee, director or consultant, he or she may exercise his or her option for the period of time stated in his or her option agreement. In the absence of a specified time in an award agreement, if termination is due to death or disability, the option will remain exercisable for 12 months following the termination of service. In all other cases, in the absence of a specified time in an award agreement, the option will remain exercisable for 3 months following the termination of service. An option, however, may not be exercised later than the expiration of its term. Subject to the provisions of our 2018 Equity Incentive Plan, the administrator determines the other terms of options.

 

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Stock Appreciation Rights.    Stock appreciation rights may be granted under our 2018 Equity Incentive Plan. Stock appreciation rights allow the recipient to receive the appreciation in the fair market value of our common stock between the exercise date and the date of grant. Stock appreciation rights may not have a term exceeding ten years. After the termination of service of an employee, director or consultant, he or she may exercise his or her stock appreciation right for the period of time stated in his or her stock appreciation rights agreement. In the absence of a specified time in an award agreement, if termination is due to death or disability, the stock appreciation rights will remain exercisable for 12 months following the termination of service. In all other cases, in the absence of a specified time in an award agreement, the stock appreciation rights will remain exercisable for 3 months following the termination of service. However, in no event may a stock appreciation right be exercised later than the expiration of its term. Subject to the provisions of our 2018 Equity Incentive Plan, the administrator determines the other terms of stock appreciation rights, including when such rights become exercisable and whether to pay any increased appreciation in cash or with shares of our common stock, or a combination thereof, except that the per share exercise price for the shares to be issued pursuant to the exercise of a stock appreciation right will be no less than 100% of the fair market value per share on the date of grant.

 

Restricted Stock.    Restricted stock may be granted under our 2018 Equity Incentive Plan. Restricted stock awards are grants of shares of our common stock that vest in accordance with terms and conditions established by the administrator. The administrator will determine the number of shares of restricted stock granted to any employee, director or consultant and, subject to the provisions of our 2018 Equity Incentive Plan, will determine the terms and conditions of such awards. The administrator may impose whatever vesting conditions it determines to be appropriate (for example, the administrator may set restrictions based on the achievement of specific performance goals or continued service to us), except the administrator, in its sole discretion, may accelerate the time at which any restrictions will lapse or be removed. Recipients of shares of restricted stock will have voting and dividend rights with respect to such shares upon grant without regard to vesting, unless the administrator provides otherwise. Shares of restricted stock that do not vest are subject to our right of repurchase or forfeiture.

 

Restricted Stock Units.    Restricted stock units may be granted under our 2018 Equity Incentive Plan. Restricted stock units are bookkeeping entries representing an amount equal to the fair market value of one share of our common stock. Subject to the provisions of our 2018 Equity Incentive Plan, the administrator determines the terms and conditions of restricted stock units, including the vesting criteria and the form and timing of payment. The administrator may set vesting criteria based upon the achievement of company-wide, divisional, business unit or individual goals (including, but not limited to, continued employment or service), applicable federal or state securities laws or any other basis determined by the administrator in its discretion. The administrator, in its sole discretion, may pay earned restricted stock units in the form of cash, in shares or in some combination thereof. In addition, the administrator, in its sole discretion, may accelerate the time at which any restrictions will lapse or be removed.

 

Performance Units and Performance Shares.    Performance units and performance shares may be granted under our 2018 Equity Incentive Plan. Performance units and performance shares are awards that will result in a payment to a participant only if performance objectives established by the administrator are achieved or the awards otherwise vest. The administrator will establish performance objectives or other vesting criteria in its discretion, which, depending on the extent to which they are met, will determine the number or the value of performance units and performance shares to be paid out to participants. The administrator may set performance objectives based on the achievement of company-wide, divisional, business unit or individual goals (including, but not limited to, continued employment or service), applicable federal or state securities laws or any other basis determined by the administrator in its discretion. After the grant of a performance unit or performance share, the administrator, in its sole discretion, may reduce or waive any performance objectives or other vesting provisions for such performance units or performance shares. Performance units will have an initial value established by the administrator on or prior to the grant date. Performance shares will have an initial value equal to the fair market value of our common stock on the grant date. The administrator, in its sole discretion, may payout earned performance units or performance shares in cash, shares or in some combination thereof.

 

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Outside Directors.    All outside (non-employee) directors will be eligible to receive all types of awards (except for incentive stock options) under our 2018 Equity Incentive Plan. Our 2018 Equity Incentive Plan provides that in any given fiscal year, an outside director will not be granted cash compensation and equity awards with an aggregate value greater than $500,000 (with the value of each equity award based on its grant date fair value as determined according to U.S. GAAP). Any cash compensation paid or awards granted to an individual for his or her services as an employee or consultant (other than as an outside director) will not count toward this limit.

 

Non-Transferability of Awards.    Unless the administrator provides otherwise, our 2018 Equity Incentive Plan generally does not allow for the transfer of awards and only the recipient of an award may exercise an award during his or her lifetime. If the administrator makes an award transferrable, such award will contain such additional terms and conditions as the administrator deems appropriate.

 

Certain Adjustments.    In the event of any dividend or other distribution, recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of our shares or other securities, or other change in our corporate structure affecting our shares, to prevent diminution or enlargement of the benefits or potential benefits available under our 2018 Equity Incentive Plan, the administrator will adjust the number and class of shares that may be delivered under our 2018 Equity Incentive Plan and/or the number, class and price of shares covered by each outstanding award and the numerical share limits set forth in our 2018 Equity Incentive Plan.

 

Dissolution or Liquidation.    In the event of our proposed liquidation or dissolution, the administrator will notify participants as soon as practicable and, to the extent not exercised, all awards will terminate immediately prior to the consummation of such proposed transaction.

 

Merger or Change in Control.    Our 2018 Equity Incentive Plan provides that in the event of a merger or change in control, as defined under our 2018 Equity Incentive Plan, each outstanding award will be treated as the administrator determines, without a participant’s consent. The administrator is not required to treat all awards, all awards held by a participant or all awards of the same type similarly.

 

If a successor corporation does not assume or substitute for any outstanding award, then the participant will fully vest in and have the right to exercise all of his or her outstanding options and stock appreciation rights, all restrictions on restricted stock and restricted stock units will lapse, and for awards with performance-based vesting, unless specifically provided for otherwise under the applicable award agreement or other agreement or policy applicable to the participant, all performance goals or other vesting criteria will be deemed achieved at 100% of target levels and all other terms and conditions met. If an option or stock appreciation right is not assumed or substituted in the event of a change in control, the administrator will notify the participant in writing or electronically that such option or stock appreciation right will be exercisable for a period of time determined by the administrator in its sole discretion and the option or stock appreciation right will terminate upon the expiration of such period.

 

For awards granted to an outside director, in the event of a change in control, the outside director will fully vest in and have the right to exercise all of his or her outstanding options and stock appreciation rights, all restrictions on restricted stock and restricted stock units will lapse and, for awards with performance-based vesting, unless specifically provided for otherwise under the applicable award agreement or other agreement or policy applicable to the participant, all performance goals or other vesting criteria will be deemed achieved at 100% of target levels and all other terms and conditions met.

Clawback.    Awards will be subject to any clawback policy of ours, and the administrator also may specify in an award agreement that the participant’s rights, payments, and/or benefits with respect to an award will be subject to reduction, cancellation, forfeiture, and/or recoupment upon the occurrence of certain specified events. Our board of directors may require a participant to forfeit, return, or reimburse us all or a portion of the award and/or shares issued under the award, any amounts paid under the award, and any payments or proceeds paid or provided upon disposition of the shares issued under the award in order to comply with such clawback policy or applicable laws.

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Amendment; Termination.    The administrator has the authority to amend, alter, suspend or terminate our 2018 Equity Incentive Plan, provided such action does not materially impair the rights of any participant. Our 2018 Equity Incentive Plan automatically will terminate in 2028, unless we terminate it sooner.

Summary of U.S. Federal Income Tax Consequences

The following summary is intended only as a general guide to the U.S. federal income tax consequences of participation in the 2018 Equity Incentive Plan. The summary is based on existing U.S. laws and regulations as of July 1, 2020 and there can be no assurance that those laws and regulations will not change in the future. The summary does not purport to be complete and does not discuss the tax consequences upon a participant’s death, or the provisions of the income tax laws of any municipality, state or foreign country in which the participant may reside. As a result, tax consequences for any particular participant may vary based on individual circumstances.

Incentive Stock Options.

A participant recognizes no taxable income for regular income tax purposes as a result of the grant or exercise of an option that qualifies as incentive stock option under Section 422 of the Code. If a participant exercises the option and then later sells or otherwise disposes of the shares acquired through the exercise of the option after both the two-year anniversary of the date the option was granted and the one-year anniversary of the exercise, the participant will recognize a capital gain or loss equal to the difference between the sale price of the shares and the exercise price, and we will not be entitled to any deduction for federal income tax purposes.

 

However, if the participant disposes of such shares either on or before the two-year anniversary of the date of grant or on or before the one-year anniversary of the date of exercise (a “disqualifying disposition”), any gain up to the excess of the fair market value of the shares on the date of exercise over the exercise price generally will be taxed as ordinary income, unless the shares are disposed of in a transaction in which the participant would not recognize a gain (such as a gift). Any gain in excess of that amount will be a capital gain. If a loss is recognized, there will be no ordinary income, and such loss will be a capital loss. Any ordinary income recognized by the participant upon the disqualifying disposition of the shares generally should be deductible by us for federal income tax purposes, except to the extent such deduction is limited by applicable provisions of the Internal Revenue Code.

 

For purposes of the alternative minimum tax, the difference between the option exercise price and the fair market value of the shares on the exercise date is treated as an adjustment item in computing the participant’s alternative minimum taxable income in the year of exercise. In addition, special alternative minimum tax rules may apply to certain subsequent disqualifying dispositions of the shares or provide certain basis adjustments or tax credits for purposes of the alternative minimum tax rules.

Nonstatutory Stock Options.

A participant generally recognizes no taxable income as a result of the grant of such an option. However, upon exercising the option, the participant normally recognizes ordinary income equal to the amount that the fair market value of the shares on such date exceeds the exercise price. If the participant is an employee, such ordinary income generally is subject to withholding of income and employment taxes. Upon the sale of the shares acquired by the exercise of a nonstatutory stock option, any gain or loss (based on the difference between the sale price and the fair market value on the exercise date) will be taxed as capital gain or loss. No tax deduction is available to us with respect to the grant of a nonstatutory stock option or the sale of the shares acquired through the exercise of the nonstatutory stock option.

Stock Appreciation Rights.

In general, no taxable income is reportable when a stock appreciation right is granted to a participant. Upon exercise, the participant generally will recognize ordinary income in an amount equal to the fair market value of any shares received. Any additional gain or loss recognized upon any later disposition of the shares will be taxed as capital gain or loss.

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Restricted Stock Awards.

A participant acquiring shares of restricted stock generally will recognize ordinary income equal to the fair market value of the shares on the vesting date. If the participant is an employee, such ordinary income generally is subject to withholding of income and employment taxes. The participant may elect, pursuant to Section 83(b) of the Internal Revenue Code to accelerate the ordinary income tax event to the date of acquisition by filing an election with the Internal Revenue Service no later than thirty (30) days after the date the shares are acquired. Upon the sale of shares acquired pursuant to a restricted stock award, any gain or loss, based on the difference between the sale price and the fair market value on the date the ordinary income tax event occurs, will be taxed as capital gain or loss.

Restricted Stock Unit Awards.

There are no immediate tax consequences of receiving an award of restricted stock units. A participant who is awarded restricted stock units generally will be required to recognize ordinary income in an amount equal to the fair market value of shares issued to such participant at the end of the applicable vesting period or, if later, the settlement date elected by the administrator or a participant. Any additional gain or loss recognized upon any later disposition of any shares received will be taxed as capital gain or loss.

Performance Shares and Performance Unit Awards.

A participant generally will recognize no income upon the grant of a performance share or a performance unit award. Upon the settlement of such awards, participants normally will recognize ordinary income in the year of receipt in an amount equal to the cash received and the fair market value of any cash or unrestricted shares received. If the participant is an employee, such ordinary income generally is subject to withholding of income and employment taxes. Upon the sale of any shares received, any gain or loss, based on the difference between the sale price and the fair market value on the date the ordinary income tax event occurs, will be taxed as capital gain or loss.

Section 409A.

Section 409A of the Code provides certain requirements for non-qualified deferred compensation arrangements with respect to an individual’s deferral and distribution elections and permissible distribution events. Awards granted under the 2018 Equity Incentive Plan with a deferral feature will be subject to the requirements of Section 409A. If an award is subject to and fails to satisfy the requirements of Section 409A, the recipient of that award may recognize ordinary income on the amounts deferred under the award, to the extent vested, which may be prior to when the compensation is actually or constructively received. Also, if an award that is subject to Section 409A fails to comply with Section 409A’s provisions, Section 409A imposes an additional 20% federal income tax on compensation recognized as ordinary income, as well as interest on such deferred compensation.

 

Tax Effect for the Company.

We generally will be entitled to a tax deduction in connection with an award under the 2018 Equity Incentive Plan in an amount equal to the ordinary income realized by a participant and at the time the participant recognizes such income (for example, the exercise of a nonstatutory stock option) except to the extent such deduction is limited by applicable provisions of the Internal Revenue Code. Special rules limit the deductibility of compensation paid to our chief executive officer and other “covered employees” as determined under Section 162(m) and applicable guidance. Under Section 162(m), the annual compensation paid to any of these specified executives will be deductible only to the extent that it does not exceed $1,000,000.

THE FOREGOING IS ONLY A SUMMARY OF THE EFFECT OF U.S. FEDERAL INCOME TAXATION UPON PARTICIPANTS AND RA MEDICAL SYSTEMS, INC. WITH RESPECT TO AWARDS UNDER THE 2018 EQUITY INCENTIVE PLAN. IT DOES NOT PURPORT TO BE COMPLETE AND DOES NOT DISCUSS THE IMPACT OF EMPLOYMENT OR OTHER TAX REQUIREMENTS, THE TAX CONSEQUENCES OF A PARTICIPANT’S DEATH, OR THE PROVISIONS OF THE INCOME TAX LAWS OF ANY MUNICIPALITY, STATE, OR FOREIGN COUNTRY IN WHICH THE PARTICIPANT MAY RESIDE.

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Number of Awards Granted to Employees, Consultants and Directors

The number of awards that an employee, director, or consultant may receive under the 2018 Equity Incentive Plan is in the discretion of the administrator and therefore cannot be determined in advance. As of August 24, 2020, the fair market value of the company’s common stock was $0.343 per share. The following table sets forth the aggregate number of awards granted under our 2018 Plan during the year ended December 31, 2019 to each of our named executive officers, our executive officers, as a group; directors who are not executive officers, as a group; and all employees who are not executive officers, as a group.

 

Name of Individual or Group

 

Number of

Shares

Subject to

Options

Granted

 

 

Average

Per Share

Exercise

Price of

Options

Granted

 

 

Number of

Shares

Subject to

Stock

Awards

Granted

 

 

Dollar Value

of Shares

Subject to

Stock

Awards

Granted(1)

 

Andrew Jackson Chief Financial Officer (and previously

   Interim Chief Executive Officer)

 

 

139,052

 

 

$

1.22

 

 

 

 

 

$

 

Jeffrey J. Kraws Co-President

 

 

139,052

 

 

$

1.22

 

 

 

 

 

$

 

Daniel Horwood General Counsel

 

 

139,052

 

 

$

1.22

 

 

 

 

 

$

 

Dean S. Irwin Former Chief Executive Officer

 

 

 

 

$

 

 

 

 

 

$

 

All executive officers, as a group

 

 

417,156

 

 

$

1.22

 

 

 

 

 

$

 

All directors who are not executive officers, as a group

 

 

 

 

$

 

 

 

149,250

 

 

$

499,988

 

All employees who are not executive officers, as a group

 

 

1,104,179

 

 

$

1.22

 

 

 

150,753

 

 

$

684,844

 

 

(1)

Reflects the aggregate dollar value of awards computed in accordance with accounting principles generally accepted in the United States of America.

Required Vote

Approval of the amendment of the Company’s 2018 Equity Incentive Plan requires the affirmative “FOR” vote of a majority of the shares present live via the internet or represented by proxy at the annual meeting and entitled to vote on the proposal. You may vote “FOR,” “AGAINST,” or “ABSTAIN” on this proposal. Abstentions have the same effect as a vote against the proposal. Broker non-votes will not affect the outcome of voting on this proposal.

Board Recommendation

Our board of directors recommends a vote “FOR” the approval of the amendment of the Company’s 2018 Equity Incentive Plan.

 


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PROPOSAL NUMBER 3

APPROVAL OF THE AMENDMENT OF THE COMPANY’S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT

General

 

On August 16, 2020, the Board unanimously approved and adopted resolutions (1) declaring that submitting an amendment to the Company’s Amended and Restated Certificate of Incorporation (“Restated Certificate”) to effect a reverse stock split of our issued and outstanding Common Stock (the “Reverse Stock Split”), was advisable and (2) directing that a proposal (the “Reverse Stock Split Proposal”) to approve the Reverse Stock Split be submitted to the holders of our Common Stock for their approval.

 

The form of the proposed amendment to the Restated Certificate to effect the Reverse Stock Split will be substantially as set forth on Appendix B (subject to any changes required by applicable law). If approved by our stockholders, the Reverse Stock Split Proposal would permit, but would not require, the Board to effect a Reverse Stock Split of our issued and outstanding Common Stock at any time prior to December 31, 2020, by a ratio of not less than one-for-25 and not more than one-for-75, with the exact ratio to be set at a whole number within this range as determined by the Board in its sole discretion. If the Company decided to proceed with a Reverse Stock Split, the amendment to our Restated Certificate to effect the Reverse Stock Split will include only the reverse split ratio determined by the Board, and all of the other possible different reverse stock split ratios will be abandoned. The Reverse Stock Split, if effected, would affect all of our holders of Common Stock uniformly. The following description of the proposed amendment is a summary and is subject to the full text of the proposed Certificate of Amendment to our Restated Certificate, which is attached to this Proxy Statement as Appendix B (the “Reverse Split Certificate of Amendment”).

 

If stockholders approve this proposal, the Board in its discretion could determine to cause the Reverse Split Certificate of Amendment to be filed with the Delaware Secretary of State and effect the Reverse Stock Split before December 31, 2020. The Board also may determine in its discretion not to effect the Reverse Stock Split and not to file the Reverse Split Certificate of Amendment. We could decide not to proceed with the Reverse Stock Split even if the Reverse Stock Split Proposal approved by the stockholders. No further action on the part of stockholders will be required to either implement or abandon the Reverse Stock Split. If a Reverse Split Certificate of Amendment effecting the Reverse Stock Split has not been filed with the Secretary of State of the State of Delaware by the close of business before December 31, 2020, our Board will abandon the Reverse Stock Split.

Reasons for Reverse Stock Split

Meet certain continued listing requirements of the New York Stock Exchange.

To continue our listing on the New York Stock Exchange (the “NYSE”), we must comply with NYSE rules, which requirements include a minimum price of $1.00 per share. The share price of our common stock has caused it to close below $1.00 per share for 78 trading days.  Our Board of Directors has considered the potential harm to us and our stockholders should NYSE delist our common stock from NYSE. Delisting could adversely affect the liquidity of our common stock since alternatives, such as the OTC Bulletin Board and the pink sheets, are generally considered to be less efficient markets. An investor likely would find it less convenient to sell, or to obtain accurate quotations in seeking to buy, our common stock on an over-the-counter market. Many investors likely would not buy or sell our common stock due to difficulty in accessing over-the-counter markets, policies preventing them from trading in securities not listed on a national exchange or for other reasons. The Board of Directors believes that a Reverse Stock Split is a potentially effective means for us to maintain compliance with the $1.00 minimum bid requirement and to avoid, or at least mitigate, the likely adverse consequences of our common stock being delisted from the NYSE by producing the immediate effect of increasing the bid price of our common stock.

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To potentially improve the marketability and liquidity of our common stock.

Our Board of Directors believes that the increased market price of our common stock expected as a result of implementing a Reverse Stock Split could improve the marketability and liquidity of our common stock and encourage interest and trading in our common stock.

Appeal to a Broader Range of Investors to Generate Greater Investor Interest in the Company. 

We believe that the Reverse Stock Split and an increase in our stock price may make our common stock more attractive to a broader range of institutional and other investors. Many brokerage firms and institutional investors have internal policies and practices that either prohibit them from investing in low-priced stocks or tend to discourage individual brokers from recommending low-priced stocks to their customers, which reduces the number of potential purchasers of our common stock. In addition, some of those policies and practices may function to make the processing of trades in low-priced stocks economically less attractive to brokers. Investors may also be dissuaded from purchasing lower-priced stocks because the brokerage commissions, as a percentage of the total transaction, tend to be higher for such stocks. Moreover, we believe the analysts at many brokerage firms do not monitor the trading activity or otherwise provide coverage of lower-priced stocks. Further, lower-priced stocks have a perception in the investment community as being more risky and speculative, which may negatively impact not only the price of our common stock, but also our market liquidity.

 

Certain Risks Associated with a Reverse Stock Split

 

There are certain risks associated with a reverse stock split, and we cannot accurately predict or assure that the Reverse Stock Split will produce or maintain the desired results. However, our Board believes that the benefits to the Company and our stockholders outweigh the risks and recommends that you vote in favor of the reverse stock split proposal.

 

We cannot assure you that the proposed Reverse Stock Split, if effected, will increase our stock priceThere can be no assurance that the total market capitalization of our common stock (the aggregate value of all of our outstanding common stock at the then market price) after the Reverse Stock Split) will be equal to or greater than the total market capitalization before the Reverse Stock Split, or that the per share market price of our common stock following the Reverse Stock Split will either equal or exceed the current per share market price. 

 

At August 24, 2020, the closing sale price of our common stock on the NYSE was $0.343 per share. We expect that the Reverse Stock Split, if effected, will increase the per share trading price of our common stock. However, we cannot assure you that the market price per share of our common stock after the Reverse Stock Split will rise or remain constant in proportion to the reduction in the number of shares of common stock outstanding before the Reverse Stock Split. The effect of the Reverse Stock Split on the per share trading price of our common stock cannot be predicted with any certainty, and the history of reverse stock splits for other companies is varied, particularly since some investors may view a reverse stock split negatively. In many cases, the market price of a company’s shares declines after a reverse stock split, or the market price of a company’s shares immediately after a reverse stock split does not reflect a proportionate or mathematical adjustment to the market price based on the ratio of the reverse stock split. Accordingly, the total market capitalization of our common stock and the Company after a Reverse Stock Split may be lower than the total market capitalization before the Reverse Stock Split, and it is possible that a Reverse Stock Split may not result in a per share trading price that would attract investors who do not trade in lower priced stocks.

 

Reducing the number of outstanding shares of our common stock through the Reverse Stock Split, if we decide to proceed with the Reverse Stock Split, is intended, absent other factors, to increase the per share trading price of our common stock. However, even if we implement the Reverse Stock Split, the per share trading price of our common stock may decrease due to factors unrelated to the Reverse Stock Split. Other factors, such as our financial results, market conditions and the market perception of our business, may adversely affect the per share trading price of our common stock. As a result, there can be no assurance that the Reverse Stock Split, if completed, will result in the benefits that we anticipate, that the per share trading price of our common stock will increase following the Reverse Stock Split or that the per share trading price of our common stock will not decrease in the future. Although no assurances are possible concerning the trading price of our common stock if the Reverse Stock Split is effected or concerning future fluctuations

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in the market prices of our common stock after the Reverse Stock Split, based on such price, the Company’s intention in determining the reverse stock split ratio to be reflected in the Reverse Stock Split is that such ratio will result in minimum bid prices for our common stock immediately after the Reverse Stock Split exceeding the minimum bid price requirement for continued listing on the NYSE, although whether the minimum bid price of our common stock continues to exceed the required minimum for a period of 30 consecutive trading days will depend in part on the ratio of the Reverse Stock Split and future fluctuations in the minimum bid price of our common stock.

 

The proposed Reverse Stock Split may decrease the liquidity of our common stock and result in higher transaction costs.

 

The liquidity of our common stock may be negatively impacted by the Reverse Stock Split, given the reduced number of shares that would be outstanding after the Reverse Stock Split, particularly if the per share trading price does not increase proportionately as a result of the Reverse Stock Split. In addition, if the Reverse Stock Split is implemented, it will increase the number of our stockholders who own “odd lots” of fewer than 100 shares of common stock. Brokerage commission and other costs of transactions in odd lots are generally higher than the costs of transactions of more than 100 shares of common stock. In addition, although we believe the Reverse Stock Split may enhance the marketability of our common stock to certain potential investors, we cannot assure you that, if implemented, our common stock will be more attractive to investors. While our Board believes that a higher stock price may help generate the interest of new investors, the Reverse Stock Split may not result in a per-share price that will attract certain types of investors, such as institutional investors or investment funds, and such share price may not satisfy the investing guidelines of institutional investors or investment funds. As a result, the trading liquidity of our common stock may not improve as a result of a Reverse Stock Split and could be adversely affect by a higher per share price. Accordingly, the Reverse Stock Split may not achieve the desired results of increasing marketability of our common stock as described above. 

 

A Reverse Stock Split may result in future dilution to our stockholders

 

The Reverse Stock Split will reduce the number of outstanding shares of our common stock without a proportionate reduction in the number of shares of authorized but unissued common stock in our Restated Certificate, which will give the Company a larger number of authorized shares available to be issued in the future without further stockholder action, except as may be required by applicable laws or the rules of any stock exchange on which our common stock is listed. The issuance of additional shares of our common stock may have a dilutive effect on the ownership of existing stockholders.

  

Potential Anti-Takeover Effect

 

A Reverse Stock Split would result in an increased proportion of unissued authorized shares to issued shares, which could have possible anti-takeover effects and could be used by us to oppose a hostile takeover attempt or to delay or prevent changes in our control or management (for example, by permitting issuances that would dilute the stock ownership of a person seeking to effect a change in the composition of the board of directors or contemplating a tender offer or other transaction for the combination of us with another company). These authorized but unissued shares could (within the limits imposed by applicable law) be issued in one or more transactions that could make a change of control of the Company more difficult, and therefore more unlikely, or used to resist or frustrate a third-party transaction that is favored by a majority of the independent stockholders. For example, without further stockholder approval, our board of directors could (within the limits imposed by applicable law) strategically sell shares of common stock in a private transaction to purchasers who would oppose a takeover or favor our then current board of directors, or the shares could be available for potential issuance pursuant to a shareholder rights plan. The additional authorized shares could be used to discourage persons from attempting to gain control of the Company by diluting the voting power of shares then outstanding or increasing the voting power of persons that would support the board of directors in a potential takeover situation, including by preventing or delaying a proposed business combination that is opposed by the Board although perceived to be desirable by some stockholders. The issuance of additional shares to certain persons allied with our management could have the effect of making it more difficult to remove our current management by diluting the stock ownership or voting rights of persons seeking to cause such removal. Despite these possible anti-takeover effects, this reverse stock split proposal has been prompted by business and financial considerations and not by the threat of any hostile takeover attempt or any effort of which we are aware to accumulate our stock or to obtain control of our company

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by means of a merger, tender offer, solicitation in opposition to management or otherwise (nor is our board of directors currently aware of any such attempts directed at us). Nevertheless, stockholders should be aware that approval of this proposal could facilitate future efforts by us to deter or prevent changes in our control, including transactions in which the stockholders might otherwise receive a premium for their shares over then current market prices.

 

Procedure for Implementing the Reverse Stock Split

 

The effective time of the Reverse Stock Split (the “Effective Time”), if approved by stockholders and implemented by the Company, will be the date and time set forth in the Reverse Split Certificate of Amendment that is filed with the Delaware Secretary of State. If the reverse stock split proposal is approved and the board of directors determines to proceed with the Reverse Stock Split, the exact timing of the filing of the Reverse Split Certificate of Amendment will be determined by our board of directors.

 

If, at any time prior to the filing of the Reverse Split Certificate of Amendment with the Delaware Secretary of State, notwithstanding stockholder approval, and without further action by the stockholders, the board of directors, in its sole discretion, determines that it is in the Company’s best interests and the best interests of the Company’s stockholders to delay the filing of the Certificate of Amendment or abandon the Reverse Stock Split, the Reverse Stock Split may be delayed or abandoned. The Company reserves the right to abandon a reverse stock split without further action by our stockholders at any time before the effectiveness of the filing with the Secretary of the State of Delaware of the Reverse Split Certificate of Amendment to our Restated Certificate, even if the authority to effect the Reverse Stock Split has been approved by our stockholders at the Meeting. By voting in favor of the Reverse Stock Split Proposal, you are expressly also authorizing the board of directors to delay, not to proceed with, and abandon, the Reverse Stock Split if it should so decide, in its sole discretion, that such action is in the best interests of the Company and its stockholders.

 

If a Reverse Stock Split is effected, then after the Effective Time, our common stock will have new Committee on Uniform Securities Identification Procedures (CUSIP) numbers, which is a number used to identify our equity securities, and stock certificates with the older CUSIP numbers will need to be exchanged for stock certificates with the new CUSIP numbers by following the procedures described below. After the Reverse Stock Split, we will continue to be subject to the periodic reporting and other requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act” ). Our Common Stock will continue to be listed on the NYSE under the symbol “RMED” subject to any future change of listing of our securities, although it will be considered a new listing with a new CUSIP number. The Reverse Stock Split is not intended to be, and will not have the effect of, a “going private transaction” covered by Rule 13e-3 under the Exchange Act. 

 

Impact of the Reverse Stock Split Amendment if Implemented

 

If approved and implemented, the Reverse Stock Split will be realized simultaneously and in the same ratio for all of our issued and outstanding shares of common stock. Any fractional shares that would otherwise be issuable as a result of the Reverse Stock Split will be paid out in cash. The Reverse Stock Split will affect all holders of our common stock uniformly and will not affect any stockholder’s percentage ownership interest in the Company (subject to the treatment of fractional shares). In addition, the Reverse Stock Split will not affect any stockholder’s proportionate voting power (subject to the treatment of fractional shares).

 

Our authorized capital stock currently consists of 300,000,000 shares of common stock, par value $0.0001 per share, and 10,000,000 shares of preferred stock, par value $0.0001 per share. Although the Reverse Stock Split will not affect the rights of stockholders or any stockholder’s proportionate ownership interest in the Company (except as a result of rounding in lieu of fractional shares), the number of authorized shares of our common stock, non-voting common stock and preferred stock will not be reduced. If the Reverse Stock Split is implemented, the number of authorized shares of common stock would remain at 300,000,000 shares, thereby effectively increasing the number of shares of common stock available for future issuance. The total number of authorized shares of preferred stock would remain at 10,000,000 shares. The conversion ratio of our issued outstanding shares of preferred stock will adjust proportionately with the ratio of the Reverse Stock Split.

 

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The table below sets forth, as of August 24, 2020 and for illustrative purposes only, certain effects of potential Reverse Stock Split ratios of between 1-for-25 and 1-for-75, inclusive, including on our total outstanding common stock equivalents (without giving effect to the treatment of fractional shares).

 

 

 

Common Stock and

Equivalents Outstanding

Prior to Reverse Stock Split

 

 

Common Stock

Equivalents Outstanding

Assuming Certain Reverse

Stock Split Ratios

 

 

 

 

 

 

 

Percent of

Total

 

 

1-for-25

 

 

1-for-75

 

Voting common stock outstanding

 

 

72,468,337

 

 

 

24

%

 

 

2,898,733

 

 

 

966,244

 

Common stock underlying options and warrants

 

 

62,362,116

 

 

 

21

%

 

 

2,494,484

 

 

 

831,494

 

Common stock underlying restricted stock units

 

 

511,974

 

 

 

0

%

 

 

20,478

 

 

 

6,826

 

Common stock underlying preferred stock

 

 

 

 

 

0

%

 

 

 

 

 

 

Total common stock and equivalents

 

 

135,342,427

 

 

 

45

%

 

 

5,413,695

 

 

 

1,804,564

 

Common stock available for future issuance

 

 

164,657,573

 

 

 

55

%

 

 

294,586,305

 

 

 

298,195,436

 

 

As illustrated by the table above, the Reverse Stock Split would increase the ability of our board of directors to issue authorized and unissued shares in the future without further stockholder action. The issuance in the future of such additional authorized shares may have the effect of diluting the earnings or loss per share and book value per share, as well as the ownership and voting rights of the holders of our then-outstanding shares of common stock. In addition, an increase in the number of authorized but unissued shares of our common stock may have a potential anti-takeover effect, as our ability to issue additional shares could be used to thwart persons, or otherwise dilute the stock ownership of stockholders, seeking to control us. The Reverse Stock Split is not being recommended by our board of directors as part of an anti-takeover strategy. We have no plans, proposals or arrangements, written or otherwise, at this time involving the issuance of additional shares of common stock.

 

Effect on Beneficial Holders of Common Stock (i.e., stockholders who hold in “street name”)

 

Upon the Reverse Stock Split, we intend to treat shares held by stockholders in “street name,” through a bank, broker or other nominee, in the same manner as registered stockholders whose shares are registered in their names. Banks, brokers or other nominees will be instructed to effect the Reverse Stock Split for their beneficial holders holding our common stock in “street name.” However, these banks, brokers or other nominees may have different procedures than registered stockholders for processing the Reverse Stock Split. If a stockholder holds shares of our common stock with a bank, broker or other nominee and has any questions in this regard, stockholders are encouraged to contact their bank, broker or other nominee.

 

Effect on Registered “Book- Entry” Holders of Common Stock (i.e., stockholders who are registered on the transfer agent’s books and records but do not hold stock certificates)

 

Certain of our registered holders of common stock may hold some or all of their shares electronically in book-entry form with the transfer agent. These stockholders do not have stock certificates evidencing their ownership of the common stock. They are, however, provided with a statement reflecting the number of shares registered in their accounts.

 

If a stockholder holds registered shares in book-entry form with the transfer agent, no action needs to be taken to receive post-Reverse Stock Split shares. If a stockholder is entitled to post-Reverse Stock Split shares, a transaction statement will automatically be sent to the stockholder’s address of record indicating the number of shares of common stock held following the Reverse Stock Split.

  

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Accounting Matters

 

The Reverse Stock Split will not affect the par value of a share of our common stock. As a result, as of the Effective Time of the Reverse Stock Split, the stated capital attributable to common stock on our balance sheet will be reduced proportionately based on the Reverse Stock Split ratio (including a retroactive adjustment of prior periods), and the additional paid-in capital account will be credited with the amount by which the stated capital is reduced. Reported per share net income or loss will be higher because there will be fewer shares of common stock outstanding.

 

No Appraisal Rights

 

Under the Delaware General Corporation Law, stockholders are not entitled to dissenter’s or appraisal rights with respect to the Reverse Stock Split, and we will not independently provide stockholders with any such rights.

 

Material United States Federal Income Tax Considerations of the Reverse Stock Split

 

The following discussion is a summary of material U.S. federal income tax consequences of the Reverse Stock Split to stockholders, but does not purport to be a complete analysis of all potential tax effects that may be relevant to stockholders. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local, or foreign tax laws are not discussed. This discussion is based on the Code, U.S. Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the Internal Revenue Service in effect as of the date of the Reverse Stock Split. These authorities may change or be subject to differing interpretations. Any such change may be applied retroactively in a manner that could adversely affect a holder of our common stock.

This summary is limited to stockholders who hold our common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to the particular circumstances of a stockholder. In addition, it does not address consequences relevant to stockholders that are subject to particular rules, including, without limitation:  

 

persons subject to the alternative minimum tax or Medicare contribution tax on net investment income;

 

persons whose functional currency is not the U.S. dollar;

 

persons holding our common stock as part of a hedge, straddle, or other risk reduction strategy or as part of a conversion transaction or other integrated investment;

 

persons who are not U.S. Holders;

 

banks, insurance companies, and other financial institutions;

 

mutual funds, real estate investment trusts or regulated investment companies;

 

brokers, dealers, or traders in securities;

 

partnerships, other entities or arrangements treated as partnerships for U.S. federal income tax purposes, and other pass-through entities (and investors therein);

 

tax-exempt organizations or governmental organizations;

 

persons deemed to sell our common stock under the constructive sale provisions of the Code;

 

persons who hold or receive our common stock pursuant to the exercise of any employee stock options or otherwise as compensation;

-35-


 

persons who hold our common stock as “qualified small business stock” pursuant to Section 1202 of the Code; and

 

tax-qualified retirement plans.

This discussion is limited to stockholders that are U.S. Holders. For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our common stock that, for U.S. federal income tax purposes, is or is treated as:  

 

an individual who is a citizen or resident of the United States;

 

a corporation (or other entity taxable as a corporation for U.S. Federal income tax purposes) created or organized under the laws of the United States, any state thereof, or the District of Columbia;

 

an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

 

a trust if either a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons (within the meaning of Section 7701(a)(30) of the Code) have the authority to control all substantial decisions of such trust, or the trust has a valid election in effect under applicable Treasury Regulations to be treated as a United States person for U.S. federal income tax purposes.

If an entity treated as a partnership for U.S. federal income tax purposes holds our common stock, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding our common stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

In addition, the following discussion does not address the tax consequences of the Reverse Stock Split under state, local and foreign tax laws. Furthermore, the following discussion does not address any tax consequences of transactions effectuated before, after or at the same time as the Reverse Stock Split, whether or not they are in connection with the Reverse Stock Split.

-36-


INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.

Tax Consequences of the Reverse Stock Split

The following is a summary of certain material U.S. federal income tax consequences of the Reverse Stock Split to “U.S. stockholders” (as defined below). This summary is not intended to be a complete discussion of all possible U.S. federal income tax consequences of the Reverse Stock Split and is included for general information purposes only. Further, it does not address the Medicare tax on net investment income or any state, local or non-U.S. income or other tax consequences. For example, state and local tax consequences of the Reverse Stock Split may vary significantly as to each U.S. stockholder, depending upon the state in which such stockholder resides or does business. Also, it does not address the tax consequences to holders that are subject to special tax rules, such as partnerships, S corporations or other pass-through entities (or persons who hold our shares through such pass-through entities), banks or other financial institutions, individual retirement and other tax-deferred accounts, holders who acquired common stock pursuant to the exercise of employee stock options or otherwise as compensation, traders in securities that elect to apply a mark-to-market method of accounting, insurance companies, regulated investment companies, real estate investment trusts, dealers or traders in securities or currencies, former citizens or residents of the United States subject to Section 877 of the Code, corporations that accumulate earnings to avoid United States federal income tax, taxpayers subject to the alternative minimum tax, persons subject to the base erosion and anti-abuse tax, holders who actually or constructively own more than 5% of the outstanding stock of the company, personal holding companies, foreign entities, nonresident alien individuals, broker-dealers, tax-exempt entities U.S. stockholders whose functional currency is not the U.S. dollar, and holders who hold common stock as part of a hedge, straddle, constructive sale, conversion or other integrated transaction.

For purposes of this discussion, the term “U.S. stockholder” means a means a beneficial owner of Common Stock, that is, for U.S. federal income tax purposes, (i) an individual citizen or resident of the United States, (ii) a corporation, or entity treated as a corporation for U.S. federal income tax purposes, organized under the laws of the United States any state thereof or the District of Columbia, (iii) a trust if (a) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) such trust has made a valid election to be treated as a U.S. person for U.S. federal income tax purposes or (iv) an estate, the income of which is subject to U.S. federal income tax regardless of its source.

The discussion below is based on the provisions of the U.S. federal income tax law as of the date hereof, which are subject to change retroactively as well as prospectively. This summary also assumes that the shares held by a U.S. stockholder prior to the Reverse Stock Split (“Old Shares”) were, and the shares owned by such stockholder immediately after the Reverse Stock Split (“New Shares”) will be, held as “capital assets,” as defined in the Code, generally property held for investment. The tax treatment of a stockholder may vary depending upon the particular facts and circumstances of such stockholder. The discussion below regarding the U.S. federal income tax consequences of the Reverse Stock Split also is not binding on the Internal Revenue Service or the courts. Accordingly, each stockholder is urged to consult with his, her or its own tax advisor with respect to the tax consequences of the Reverse Stock Split.

U.S. Federal Income Tax Consequences of the Reverse Stock Split to U.S. Stockholders

In general, and except as described below with respect to cash in lieu of fractional shares, no gain or loss should be recognized by a U.S. stockholder upon such stockholder’s exchange, or deemed exchange, of Old Shares for New Shares pursuant to the Reverse Stock Split. Accordingly, the aggregate tax basis of the New Shares received in the Reverse Stock Split should be the same as such stockholder's aggregate tax basis in the Old Shares being exchanged (excluding the portion of the tax basis allocable to any fractional share), and holding period for the New Shares received should include the holding period for the Old Shares being exchanged. Special tax basis and holding period rules may apply to holders that acquired different blocks of stock at different prices or at different times. Holders should consult their own tax advisors as to the applicability of these special rules to their particular circumstances.

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Cash in Lieu of Fractional Stock

A U.S. stockholder who receives cash in lieu of a fractional share of New Shares pursuant to the Reverse Stock Split should generally recognize capital gain or loss in an amount equal to the difference between the amount of cash received and the U.S. stockholder’s tax basis in the Old Shares being exchanged that is allocated to the fractional share of New Shares. The capital gain or loss should be long term capital gain or loss if the U.S. stockholder’s holding period for such Old Shares being exchanged that is allocated to the fractional share of New Shares exceeded one year at the effective time of the Reverse Stock Split. The deductibility of net capital losses by individuals and corporations is subject to limitations. U.S. stockholders are advised to consult their tax advisors regarding the tax treatment of their receipt of cash in lieu of a fractional share of common stock pursuant to the Reverse Stock Split.

Information Reporting and Backup Withholding

Information returns generally will be required to be filed with the Internal Revenue Service (“IRS”) with respect to the payment of cash in lieu of a fractional share of New Shares pursuant to the Reverse Stock Split, unless a U.S. stockholder is an exempt recipient. In addition, U.S. stockholders may be subject to a backup withholding tax (at the current applicable rate of 24%) on the payment of this cash if they do not provide their taxpayer identification numbers in the manner required or otherwise fail to comply with applicable backup withholding tax rules. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded or allowed as a credit against the U.S. stockholder’s federal income tax liability, if any, provided the required information is timely furnished to the IRS. U.S. stockholders should consult their own tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.

 

Required Vote

 

Approval of the Reverse Stock Split Proposal requires the affirmative “FOR” vote of a majority of the Company’s issued and outstanding shares. You may vote “FOR,” “AGAINST,” or “ABSTAIN” on this proposal. If the required votes for this proposal are obtained, then our board of directors will have the authority to select the Reverse Stock Split ratio in the above range and authorize the filing of the Reverse Stock Split Amendment in substantially the form attached to this Proxy Statement as Appendix B at any time after the approval of the Reverse Stock Split but prior to December 31, 2020. Our Board reserves the right to abandon the proposed Reverse Stock Split at any time prior to the effectiveness of the filing of the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware, notwithstanding authorization of the proposed Reverse Stock Split Amendment by our stockholders.

 

Recommendation of the Board of Directors

 

Our board of directors recommends a vote “FOR” the approval of the Reverse Stock Split Proposal.

 

 


-38-


PROPOSAL NUMBER 4

RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

Our audit committee appointed Deloitte & Touche LLP, or Deloitte & Touche, as the Company’s independent registered public accounting firm to audit the Company’s financial statements for its fiscal year ending December 31, 2020.  During the year ended December 31, 2019, Deloitte & Touche LLP served as our independent registered public accounting firm.

At the Annual Meeting, stockholders are being asked to ratify the appointment of Deloitte & Touche as our independent registered public accounting firm for our fiscal year ending December 31, 2020.  Stockholder ratification of the appointment of Deloitte & Touche is not required by our bylaws or other applicable legal requirements.  However, our board is submitting the appointment of Deloitte & Touche to our stockholders because we value our stockholders’ views on our independent registered public accounting firm and as a matter of good corporate governance.  If the appointment is not ratified by our stockholders, our audit committee may reconsider whether it should appoint another independent registered public accounting firm.  A representative of Deloitte & Touche is expected to attend the annual meeting, where he or she will be available to respond to appropriate questions and, if he or she desires, to make a statement.

Fees Paid to the Independent Registered Public Accounting Firm

The following table represents aggregate fees for services provided to us in the fiscal years ended December 31, 2019 and 2018 by Deloitte & Touche, our independent registered public accounting firm.  Following the creation of our audit committee in 2018, all fees paid to the independent registered public accounting firm were pre-approved by the audit committee:

 

 

 

Fiscal Year ended

 

 

 

2019

 

 

2018

 

Audit Fees(1)

 

$

925,105

 

 

$

1,604,415

 

Audit-Related Fees

 

 

 

 

 

 

Tax Fees(2)

 

 

 

 

 

 

All Other Fees(3)

 

 

 

 

 

 

Total Fees

 

$

925,105

 

 

$

1,604,415

 

 

(1)

“Audit Fees” consist of fees billed for professional services rendered in connection with the audit of our annual financial statements, review of our quarterly financial statements, and services that are normally provided by Deloitte & Touche LLP in connection with statutory and regulatory filings or engagements for those fiscal years. Fees for 2018 also included fees billed for professional services rendered in connection with our Form S-1 and Form S-8 registration statements related to our initial public offering of common stock completed in 2018.

(2)

“Tax Fees” consist of permissible tax compliance and tax advisory service fees. Deloitte & Touche LLP did not bill us for any tax fees for the years ended December 31, 2019 and December 31, 2018.

(3)

“All Other Fees” consist of fees billed for services other than the services reported in Audit Fees and Tax Fees. Deloitte & Touche LLP did not bill us for any other fees for the years ended December 31, 2019 and December 31, 2018.

 

-39-


Auditor Independence

In 2019, there were no other professional services provided by Deloitte & Touche that would have required our audit committee to consider their compatibility with maintaining the independence of Deloitte & Touche.

Pre-Approval Policy

Our audit committee’s policy is to pre-approve all audit and permissible non-audit services provided by the independent accountants and the related estimated fees. These services may include audit services, audit-related services, tax services and other services. Our audit committee generally pre-approves particular services or categories of services on a case-by-case basis. The independent registered public accounting firm and management are required to periodically report to our audit committee regarding the extent of services provided by the independent registered public accounting firm in accordance with these pre-approvals, and the fees for the services performed to date. Following the creation of our audit committee in 2018, all of the services of Deloitte & Touche LLP for 2018 and 2019 described above were pre-approved by our audit committee.

Required Vote

Ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2020 requires the affirmative “FOR” vote of a majority of the shares present in person or represented by proxy at the annual meeting and entitled to vote on the proposal.  You may vote “FOR,” “AGAINST,” or “ABSTAIN” on this proposal.  Abstentions have the same effect as a vote against the proposal.  Broker non-votes will not affect the outcome of voting on this proposal.

Board Recommendation

Our board of directors recommends a vote “FOR” the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for the year ending December 31, 2020.

 

***

 

-40-


REPORT OF THE AUDIT COMMITTEE

The audit committee is a committee of the Board of Directors comprised solely of independent directors as required by the listing standards of the New York Stock Exchange and rules and regulations of the SEC.  The audit committee serves as the representative of the Board with respect to its oversight of:

 

o

our accounting and financial reporting processes and controls and the audit of our financial statements;

 

o

the integrity of our financial statements;

 

o

our compliance with legal and regulatory requirements and efficacy of and compliance with our corporate policies;

 

o

inquiring about significant risks, reviewing our policies for risk assessment and risk management, and assessing the steps management has taken to control these risks; and

 

o

the independent registered public accounting firm’s appointment, qualifications and independence.

The audit committee also reviews the performance of our independent registered public accounting firm, Deloitte & Touche LLP, including the qualifications and performance of the lead partner, in the annual audit of our financial statements and in assignments unrelated to the audit, and reviews and preapproves the independent registered public accounting firm’s audit and non-audit fees.

The members of the audit committee are currently Richard Mejia, Jr. (chair), Martin Colombatto, and Mark E. Saad. Each of the members of the Audit Committee is an “independent director” as currently defined in the applicable New York Stock Exchange and U.S. Securities and Exchange Commission (“SEC”) rules. The Board of Directors has also determined that Mr. Mejia is an “audit committee financial expert” as described in applicable rules and regulations of the SEC.

In fulfilling its oversight responsibilities, the audit committee meets at least quarterly and provides our Board such information and materials as it may deem necessary to make our Board aware of financial matters requiring the attention of our Board. The audit committee reviews our financial disclosures and meets privately, outside the presence of our management, with our independent registered public accounting firm. The audit committee also reviewed and discussed the audited financial statements in our 2019 Annual Report with management, including a discussion of the quality and substance of the accounting principles, the reasonableness of significant judgments made in connection with the audited financial statements, and the clarity of disclosures in the financial statements. The audit committee reports on these meetings to our Board.

The audit committee has reviewed and discussed the Company’s audited financial statements with management and Deloitte & Touche LLP, the Company’s independent registered public accounting firm. The audit committee has discussed with Deloitte the matters required to be discussed by Public Company Accounting Oversight Board Auditing Standard No. 1301 (Communications with Audit Committees).

The audit committee has received and reviewed the written disclosures and the letter from Deloitte required by the applicable requirements of the Public Company Accounting Oversight Board regarding Deloitte’s communications with the audit committee concerning independence, and has discussed with Deloitte its independence.

Based on the review and discussions referred to above, the audit committee recommended to the board of directors that the Company’s audited financial statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 for filing with the Securities and Exchange Commission. The audit committee also has selected Deloitte & Touche LLP as the independent registered public accounting firm for fiscal year 2020. The Board recommends that stockholders ratify this selection at the Annual Meeting.

-41-


Respectfully submitted by the members of the audit committee of the board of directors:

Richard Mejia, Jr. (Chair)
Martin Colombatto
Mark E. Saad

The information contained in the above Audit Committee Report shall not be deemed to be soliciting material or to be filed with the Securities and Exchange Commission, nor shall such information be incorporated by reference into any future filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent that Ra Medical Systems, Inc., or the Company, specifically incorporates it by reference in such filing.

 

 

-42-


EXECUTIVE OFFICERS

The names of our executive officers and key employees, their ages, their positions with the Company and other biographical information as of April 24, 2020 are set forth below.  There are currently no family relationships among any of our directors or executive officers.  For a description of the prior family relationships among our directors or executive officers, see the section entitled “Certain Relationships and Related Party Transactions: Certain Family Relationships.

 

Name

 

Age

 

 

Position

Jonathan Will McGuire

 

 

57

 

 

Chief Executive Officer

Andrew Jackson

 

 

51

 

 

Chief Financial Officer

Jeffrey J. Kraws

 

 

56

 

 

Co-President

Daniel Horwood

 

 

46

 

 

General Counsel and Secretary

 

Jonathan Will McGuire.  Please see the biographical information above in the section entitled “Board of Directors and Corporate Governance – Nominees for Director.”

Andrew Jackson has served as our Chief Financial Officer since April 2018. From October 2016 to April 2018 he was Chief Financial Officer for AltheaDx, Inc, a molecular diagnostics company specializing in precision medicine. From March 2014 to March 2016, Mr. Jackson held senior financial positions, including Chief Financial Officer, at Celladon Corporation, a publicly-traded, clinical stage biotechnology company. From April 2013 to March 2014 he held senior financial positions at Sapphire Energy, an industrial biotechnology company. Mr. Jackson received a MSBA in Finance in December 2006 from San Diego State University and a BSB in Accounting in June 1992 from the University of Minnesota. Mr. Jackson is also a certified public accountant (inactive).

Jeffrey J. Kraws has served as our Co-President since May 2018 and served as the President of Ra Medical from August 2016 until May 2018. Since 2003, Mr. Kraws has served as Chief Executive Officer and co-founder of Crystal Research Associates and CRA Advisors. Mr. Kraws is a partner at Grannus Securities Pty Ltd. (an Australian based private equity fund) since November 2015. Prior to founding Crystal Research Associates, Mr. Kraws served as co-president of The Investor Relations Group (IRG), a firm representing primarily under-followed, small-capitalization companies. Previously, Mr. Kraws served as a managing director of healthcare research for Ryan Beck & Co. and as director of research/senior pharmaceutical analyst and managing director at Gruntal & Co., LLC (prior to its merger with Ryan Beck & Company). Mr. Kraws served as managing director of the healthcare research group and senior pharmaceutical analyst at First Union Securities (formerly EVEREN Securities); as senior U.S. pharmaceutical analyst for the Swedish-Swiss conglomerate Asea Brown Boveri; and as managing director and president of the Brokerage/Investment Banking operation of ABB Aros Securities, Inc. He also served as senior pharmaceutical analyst at Nationsbanc Montgomery Securities, BT Alex Brown & Sons, and Buckingham Research. Mr. Kraws also served in the treasury group at Bristol-Myers-Squibb Company. Mr. Kraws serves on the board of directors of Avivagen (TSX:VIV), Saleen Automotive, Inc. (OTC: SLNN), and is Chairman of the Board of Synthetic Biologics (NYSE:SYN). Mr. Kraws holds an MBA from Cornell University and a BS degree from State University of New York, Buffalo.

Daniel Horwood has served as our General Counsel since October 2018 and as our Secretary since December 2018. From April 2018 until October 2018, Mr. Horwood served as Corporate Counsel to Teradata Corporation, a data and analytics, cloud analytics and consulting company. Mr. Horwood was Counsel at Wilson Sonsini Goodrich & Rosati, P.C. from November 2014 through April 2018, advising life sciences and technology companies on public offerings, private financing, mergers and acquisitions, securities compliance, public company reporting and corporate governance. Mr. Horwood began his legal career at the United States Securities and Exchange Commission, where he served as Special Counsel in the Division of Corporation Finance. Mr. Horwood received a B.A. from Connecticut College and a J.D. from the University of Pennsylvania.

 

-43-


EXECUTIVE COMPENSATION

Processes and Procedures for Executive Compensation

Our compensation committee assists the board in discharging the board’s responsibilities relating to oversight of the compensation of our chief executive officer and our other executive officers, including reviewing and making recommendations to the board with respect to the compensation, plans, policies and programs for our chief executive officer and our other executive officers and administering our equity compensation plans for our executive officers and employees.

Our compensation committee annually reviews the compensation, plans, policies and programs for our chief executive officer and our other executive officers.  In connection therewith, our compensation committee considers, among other things, each executive officer’s performance in light of established individual and corporate goals and objectives and the recommendations of our chief executive officer.  In particular, our compensation committee considers the recommendations of our chief executive officer when reviewing base salary and incentive performance compensation levels of our executive officers and when setting specific individual and corporate performance targets under our annual incentive bonus plan for our executive officers.  While our chief executive officer provides input on his compensation, he does not participate in compensation committee or board deliberations regarding his own compensation. Our compensation committee may delegate its authority to a subcommittee, but it may not delegate any power or authority required by agreement, law, regulation or listing standard to be exercised by the compensation committee as a whole.

In April 2018, prior to the establishment of our compensation committee, our board of directors engaged Compensia, Inc., or Compensia, an independent compensation consultant, to provide information, recommendations and other advice relating to director and executive compensation on an ongoing basis.  Following the establishment of our compensation committee, Compensia served and continues to serve at the discretion of our compensation committee.  Compensia was engaged to assist in developing an appropriate group of peer companies to help us determine the appropriate level of overall compensation for our directors and executive officers, as well as assess each separate element of compensation, with a goal of ensuring that the compensation we offer to our directors and executive officers is competitive and fair. Our compensation committee assessed the independence of Compensia taking into account, among other things, the enhanced independence standards and factors set forth in Exchange Act Rule 10C-1 and the applicable NYSE listing standards, and concluded that that there were no conflicts of interest with respect to the work that Compensia performed for the compensation committee.

Our named executive officers for 2019, which consist of our principal executive officer and our next two most highly compensated executive officers who were officers as of December 31, 2019, were as follows:

 

Andrew Jackson, Chief Financial Officer and Interim Chief Executive Officer;

 

Jeffrey J. Kraws, Co-President; and

 

Daniel Horwood, General Counsel, Chief Compliance Officer and Secretary.

In addition, Dean Irwin, former Chief Executive Officer, Co-President, Chief Technology Officer, and Chairman of the Board of Directors, served as the Company’s principal executive officer until August 11, 2019, and his compensation is also listed below.

-44-


Summary Compensation Table

The following table provides information regarding the compensation of our chief executive officer, and each of the next two most highly compensated executive officers during 2019, together referred to as our “named executive officers,” for 2019 and 2018, as applicable.

 

Name and Principal Position

 

Year

 

Salary ($)

 

 

Bonus ($)

 

 

 

Stock

Awards($)(1)

 

 

Option

Awards($)(2)

 

 

All Other

Compensation

($)(3)

 

 

Total ($)

 

Andrew Jackson(4)

 

2019

 

 

384,808

 

 

 

194,805

 

(6)

 

 

 

 

 

91,385

 

 

 

16,575

 

 

 

687,573

 

Chief Financial Officer and

   Interim Chief Executive

   Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jeffrey J. Kraws

 

2019

 

 

345,425

 

 

 

65,000

 

(7)

 

 

 

 

 

93,832

 

 

 

13,265

 

 

 

517,522

 

Co-President

 

2018

 

 

228,000

 

 

 

114,000

 

 

 

 

5,280,219

 

 

 

3,292,050

 

 

 

 

 

 

8,914,269

 

Daniel Horwood (5)

 

2019

 

 

298,275

 

 

 

104,226

 

(8)

 

 

 

 

 

91,385

 

 

 

13,753

 

 

 

507,639

 

General Counsel

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dean S. Irwin

 

2019

 

 

311,983

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

311,983

 

Former Chief Executive Officer

 

2018

 

 

292,109

 

 

 

175,200

 

 

 

 

7,180,014

 

 

 

3,227,500

 

 

 

 

 

 

10,874,823

 

 

(1)

This column reflects the aggregate grant date fair value of restricted stock units granted to the named individuals during the corresponding year, computed in accordance with the provisions of ASC Topic 718. These amounts do not reflect the actual economic value that will be realized by the named executive officer upon the vesting of restricted stock units. The actual value that may be realized is also subject to time-based vesting restrictions that require the named executive officer to continue to provide services to us. As described in Note 12 to our audited financial statements in this Annual Report on Form 10-K, in June 2018 the Company’s board of directors authorized 1,901,900 replacement equity awards of stock options and 1,340,832 restricted stock units to certain service providers, including certain named executive officers, to replace option awards communicated to optionees that were not validly authorized.

(2)

This column reflects the aggregate grant date fair value of stock options granted to the named individuals during the corresponding year computed in accordance with the provisions of ASC Topic 718. These amounts do not reflect the actual economic value that will be realized by the named executive officer upon the vesting of the stock options, the exercise of the stock options, or the sale of the common stock underlying such stock options. The actual value that may be realized is also subject to time-based vesting restrictions that require the named executive officer to continue to provide services to us. As described in Note 12 to our audited financial statements in this Annual Report on Form 10-K, in June 2018 the Company’s board of directors authorized 1,901,900 replacement equity awards of stock options and 1,340,832 restricted stock units to certain service providers, including certain named executive officers, to replace option awards communicated to optionees that were not validly authorized.

(3)

This column reflects Company matching contributions to the Named Executive Officers’ 401(k) plans.

(4)

Mr. Jackson was not a Named Executive Officer in 2018.

(5)

Mr. Horwood was not a Named Executive Officer in 2018.

(6)

Includes a retention bonus payment of $44,805 paid in December 2019. Mr. Jackson will receive additional retention bonus payments of $44,805 on each of March 31, 2020, June 30, 2020 and September 30, 2020, subject to Mr. Jackson’s continued service as of each date. Also includes a discretionary bonus payment of $150,000 based on the compensation committee’s evaluation of Mr. Jackson’s performance and our accomplishments during 2019, with reference to Mr. Jackson’s bonus targets.

(7)

Includes a discretionary bonus payment of $65,000 based on the compensation committee’s evaluation of Mr. Kraws’ performance and our accomplishments during 2019, with reference to Mr. Kraws’ bonus targets.

(8)

Includes a retention bonus of $26,226 paid in December 2019. Mr. Horwood will receive additional retention bonus payments of $26,226 on each of March 31, 2020, June 30, 2020 and September 30, 2020, subject to Mr. Horwood’s continued service as of each date. Also includes a discretionary bonus payment of $78,000 based on the compensation committee’s evaluation of Mr. Horwood’s performance and our accomplishments during 2019, with reference to Mr. Horwood’s bonus targets.

-45-


Executive Employment Agreements and Arrangements

Andrew Jackson

We entered into a confirmatory employment letter with Mr. Jackson dated September 12, 2018, and effective as of the closing of our initial public offering. The confirmatory employment letter has no specific term and provides for at-will employment. The confirmatory employment letter provided for an initial base salary, effective on the closing of our initial public offering, of $348,000 and eligibility annually for a target cash bonus of 50% of his annual base salary, based on achieving performance objectives established by our board of directors or a committee of our board of directors. In connection with his appointment as Interim Chief Executive Officer, on August 11, 2019, the compensation committee also approved an Interim Chief Executive Officer offer letter that includes an additional $6,000 per month stipend amount, less applicable tax withholdings, to Mr. Jackson during the period in which Mr. Jackson serves as Ra Medical’s Interim Chief Executive Officer. This stipend will be discontinued once Mr. Jackson no longer serves as Interim Chief Executive Officer. Mr. Jackson is also eligible for severance benefits, as more fully described in “Executive Change in Control and Severance Agreements.”

Jeffrey J. Kraws

We entered into a confirmatory employment letter with Mr. Kraws dated September 12, 2018, and effective as of the closing of our initial public offering. The confirmatory employment letter has no specific term and provides for at-will employment. The confirmatory employment letter provided for an initial base salary, effective on the closing of our initial public offering, of $337,000 and eligibility annually for a target cash bonus of 50% of his annual base salary, based on achieving performance objectives established by our board of directors or a committee of our board of directors. Mr. Kraws is also eligible for severance benefits, as more fully described in “Executive Change in Control and Severance Agreements.”

Daniel Horwood

We entered into an offer letter with Mr. Horwood dated October 24, 2018. The offer letter has no specific term and provides for at-will employment. The confirmatory employment letter provided for an initial base salary of $291,000 and eligibility annually for a target cash bonus of 35% of his annual base salary, based on achieving performance objectives established by our board of directors or a committee of our board of directors. Mr. Horwood is also eligible for severance benefits, as more fully described in “Executive Change in Control and Severance Agreements.”

Dean S. Irwin

We entered into a confirmatory employment letter with Mr. Irwin dated July 13, 2018, and effective as of the closing of our initial public offering. The confirmatory employment letter has no specific term and provides for at-will employment. The confirmatory employment letter provided for an initial base salary, effective on the closing of our initial public offering, of $418,000 and eligibility annually for a target cash bonus of 100% of his annual base salary, based on achieving performance objectives established by our board of directors or a committee of our board of directors. Upon his termination, effective August 12, 2019, Mr. Irwin was eligible for severance benefits, as more fully described in “Management— Executive Change in Control and Severance Agreements.” However, Mr. Irwin did not receive any severance benefits upon his termination.

Executive Change in Control and Severance Agreements

Our board of directors has approved a change in control and severance agreement for certain of our executive officers, including our named executive officers, which agreements provide for certain severance and change in control benefits as described below. Each change in control and severance agreement supersedes any prior agreement or arrangement the executive officer may have had with us that provides for severance and/or change in control payments or benefits.

-46-


Each change in control and severance agreement has an initial term of three years, starting on the effective date of the agreement, which was the closing date of our initial public offering. On the third anniversary of the effective date of the agreement, the agreement will renew automatically for additional one year terms unless either party provides the other party with written notice of nonrenewal at least one year prior to the date of automatic renewal. However, if a change in control (as defined in the applicable agreement) occurs when there are fewer than 12 months remaining during the initial term or during an additional term, the term of the change in control and severance agreement will extend automatically through the date that is 12 months following the date of the change in control.

If an executive officer’s employment is terminated outside the period beginning 3 months before a change in control and ending 12 months following a change in control, or the Change in Control Period either (1) by the Company (or any of its subsidiaries) without “cause” (excluding by reason of death or disability) or (2) by the executive officer for “good reason” (as such terms are defined in the executive officer’s change in control and severance agreement), the executive officer will receive the following benefits if he or she timely signs and does not revoke a release of claims in our favor:

 

a lump-sum payment equal to 12 months (6 months for Mr. Horwood) of the executive officer’s annual base salary as in effect immediately prior to such termination (or if such termination is due to a resignation for good reason based on a material reduction in base salary, then as in effect immediately prior to the reduction); and

 

payment of premiums for coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or COBRA, for the executive officer and the executive officer’s eligible dependents, if any, for up to 12 months (6 months for Mr. Horwood), or taxable monthly payments for the equivalent period in the event payment of the COBRA premiums would violate or be subject to an excise tax under applicable law.

If, within the Change in Control Period, the executive officer’s employment is terminated either (1) by the Company (or any of its subsidiaries) without cause (excluding by reason of death or disability) or (2) by the executive officer for good reason, the executive officer will receive the following benefits if he or she timely signs and does not revoke a release of claims in our favor.

 

a lump-sum payment equal to 12 months of the executive officer’s annual base salary as in effect immediately prior to such termination (or if such termination is due to a resignation for good reason based on a material reduction in base salary, then as in effect immediately prior to the reduction) or if greater, at the level in effect immediately prior to the change in control);

 

a lump-sum payment equal to 100% of the executive officer’s target annual bonus as in effect for the fiscal year in which such termination occurs;

 

payment of premiums for coverage under COBRA for the executive officer and the named executive officer’s eligible dependents, if any, for up to 12 months, or taxable monthly payments for the equivalent period in the event payment of the COBRA premiums would violate or be subject to an excise tax under applicable law; and

 

100% accelerated vesting and exercisability of all outstanding equity awards and, in the case of an equity award with performance-based vesting, all performance goals and other vesting criteria generally will be deemed achieved at target.

If any of the amounts provided for under these change in control and severance agreements or otherwise payable to our named executive officers would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code and could be subject to the related excise tax, the executive officer would be entitled to receive either full payment of benefits under his or her change in control or severance agreement or such lesser amount which would result in no portion of the benefits being subject to the excise tax, whichever results in the greater amount of after-tax benefits to the executive officer. The change in control and severance agreements do not require us to provide any tax gross-up payments.

-47-


Outstanding Equity Awards at 2019 Fiscal Year-End

The following table sets forth certain information concerning outstanding equity awards for our named executive officers at December 31, 2019:

 

 

 

Option Awards

 

Stock Awards

 

Name and Position

 

Number of

Securities

Underlying

Unexercised

Options (#)

Exercisable

 

 

 

Number of

Securities

Underlying

Unexercised

Options (#)

Unexercisable

 

 

 

Option

Exercise

Price ($)

 

 

Option

Expiration

Date

 

Number

of Shares

or Units

of Stock

That Have

Not

Vested (#)

 

 

 

Market

Value of

Shares or

Units of

Stock That

Have Not

Vested($) (1)

 

Andrew Jackson

 

 

144,999

 

(2)

 

 

145,001

 

 

 

$

28.94

 

 

6/4/2028

 

 

 

 

 

 

 

Interim Chief Executive Officer

   and Chief Financial Officer

 

 

 

 

 

 

139,052

 

(3)

 

$

1.22

 

 

12/3/2029

 

 

 

 

 

 

 

Jeffrey J. Kraws

 

 

127,498

 

(2)

 

 

127,502

 

 

 

$

28.94

 

 

6/4/2028

 

 

 

 

 

 

 

Co- President

 

 

 

 

 

 

 

139,052

 

(4)

 

$

1.22

 

 

12/3/2029

 

 

 

 

 

 

 

Daniel Horwood

 

 

 

 

 

 

139,052

 

(3)

 

$

1.22

 

 

12/3/2029

 

 

 

 

 

 

 

 

 

General Counsel and Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18,428

 

(5)

 

$

20,824

 

Dean S. Irwin

 

 

111,110

 

(2)

 

 

 

 

 

$

28.94

 

 

6/4/2028

 

 

 

 

 

 

 

Former Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1)

Market value of the unvested restricted stock units identified in this column is based on a closing price of $1.13 per share of the Company’s common stock as of December 31, 2019. These amounts do not correspond to the actual value that may be realized by the Named Executive Officers.

(2)

One-third of the shares subject to the option vested on June 4, 2019 and one thirty-sixth of the shares subject to the option shall vest monthly thereafter, in each case subject to continued service.

(3)

One-twelfth of the shares subject to the option shall vest every month after December 3, 2019, in each case subject to continued service.

(4)

One-thirty sixth of the shares subject to the option shall vest every month after December 3, 2019, in each case subject to continued service.

(5)

Restricted stock units vest according to the following schedule: 1/3 of the total number of shares underlying the RSUs granted vested on November 20, 2019, and 1/6th of the total number of shares underlying the RSUs will vest on each May 20 and November 20 thereafter, in each case subject to continued service.

Perquisites, Health, Welfare and Retirement Benefits

Our named executive officers are eligible to participate in our employee benefit plans, including our medical, dental, vision, group life, disability and accidental death and dismemberment insurance plans, in each case on the same basis as all of our other employees. We provide a 401(k) savings plan to our employees, including our current named executive officers, as discussed in the section below entitled “401(k) Savings Plan.”

We generally do not provide perquisites or personal benefits to our named executive officers, except in limited circumstances and as noted in the Summary Compensation Table above. Our board of directors may elect to adopt qualified or non-qualified benefit plans in the future if it determines that doing so is in our best interests.

401(k) Savings Plan

We maintain a tax-qualified retirement plan that provides eligible employees, including named executive officers, with an opportunity to save for retirement on a tax advantaged basis. All participants’ interests in their deferrals are 100% vested when contributed. Pre-tax and after-tax contributions are allocated to each participant’s individual account and are then invested in selected investment alternatives according to the participant’s directions. The Company, in its sole discretion, may make certain contributions to the plan. The 401(k) plan is intended to qualify under

-48-


Sections 401(a) and 501(a) of the Internal Revenue Code. As a tax-qualified retirement plan, contributions to the 401(k) plan and earnings on those contributions are not taxable to the employees until distributed from the 401(k) plan, and all contributions, if any, are deductible by us when made. The Company began matching contributions to this plan for all eligible employees in 2019 when the 401(k) plan was implemented.

Equity Compensation Plan Information

The following table summarizes information about our equity compensation plans as of December 31, 2019 with respect to shares of our common stock that may be issued under our existing 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)(c)

 

Equity compensation plans approved by security holders(2)(3)(4):

 

 

3,286,293

 

 

$

13.84

 

 

 

1,736,216

 

Equity compensation plans not approved by security holders:

 

 

450,000

 

 

$

1.02

 

 

 

225,000

 

Total

 

 

3,736,293

 

 

$

12.30

 

 

 

1,961,216

 

 

(1)

The weighted average exercise price is based solely on outstanding options.

(2)

Includes our 2018 Equity Incentive Plan, or 2018 Plan, our 2018 Stock Compensation Plan, or Compensation Plan, and our 2018 Employee Stock Purchase Plan, or ESPP.

(3)

The number of shares reserved for issuance under our 2018 Plan also includes (a) those shares reserved but unissued under the Compensation Plan as of the date of stockholder approval of the 2018 Plan and (b) shares of common stock subject to or issued pursuant to awards granted under the Compensation Plan that, after the date of stockholder approval of the 2018 Plan, expire or otherwise terminate without having been exercised in full or are forfeited to or repurchased by us (provided that the maximum number of shares that may be added to the 2018 Plan pursuant to (a) and (b) is 3,300,000 shares). The number of shares available for issuance under the Company’s 2018 Plan also includes an annual increase on the first day of each fiscal year beginning with our 2019 fiscal year, equal to the least of i) 1,632,134 shares; ii) five percent (5%) of the outstanding shares of our common stock as of the last day of the immediately preceding fiscal year; or iii) such other amount as our board of directors may determine.

(4)

The number of shares available for issuance under the Company’s ESPP also includes an annual increase on the first day of each fiscal year beginning with our 2019 fiscal year, equal to the least of i) 296,752 shares; ii) one and a quarter percent (1.25%) of the outstanding shares of our common stock as of the last day of the immediately preceding fiscal year; or iii) such other amount as our board of directors may determine.

 

 

-49-


CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

Related Person Transactions

The following is a summary of transactions since January 1, 2018 to which we have been a party in which the amount involved exceeded $120,000 and in which any of our executive officers, directors, promoters or beneficial holders of more than 5% of our capital stock had or will have a direct or indirect material interest, other than compensation arrangements which are described under the section of this proxy statement titled “Executive Compensation.”

Certain Family Relationships

Melissa Burstein, the wife of our former Chief Executive Officer, Dean Irwin, served as Executive Vice President and was a member of our board of directors until March 2019. For the year ended December 31, 2018, as previously disclosed on our definitive proxy statement on Schedule 14A filed with the SEC on April 19, 2019, Ms. Burstein received a salary of $202,570, bonuses totaling $417,000, stock awards with an aggregate grant date fair value of $4,308,008, option awards with an aggregate grant date fair value of $1,936,500, a $6,000 car allowance, and $25,704 for a health insurance plan paid for by us on behalf of Ms. Burstein. Mr. Irwin was covered by Ms. Burstein’s health insurance plan. For the year ended December 31, 2019, Ms. Burstein received a salary of $237,561, a $1,500 car allowance, a $1,939 reimbursement for COBRA premiums, $8,882 for a health insurance plan paid for by us on behalf of Ms. Burstein, and a severance payment of $230,000.

Additionally, Martin Burstein, who served as a member of our board of directors until he resigned upon the effectiveness of our initial public offering in September 2018, is Mr. Irwin’s father-in-law. For the year ended December 31, 2018, as previously disclosed on our definitive proxy statement on Schedule 14A filed with the SEC on April 19, 2019, Mr. Burstein received stock awards with an aggregate grant date fair value of $5,187,495 and option awards with an aggregate grant date fair value of $2,478,720.

Ray Hartman, the brother-in-law of Mark Saad, is a partner of Cooley LLP. For the year ended December 31, 2019, we paid Cooley LLP $403,827 for legal services rendered, in a matter for which Cooley LLP no longer represents us.  

Indemnification of Officers and Directors

We have entered, and intend to continue to enter, into separate indemnification agreements with each of our directors and executive officers, in addition to the indemnification provided for in our amended and restated certificate of incorporation and amended and restated bylaws. The indemnification agreements and our amended and restated certificate of incorporation and amended and restated bylaws require us to indemnify our directors, executive officers and certain controlling persons to the fullest extent permitted by Delaware law.

-50-


Policies and Procedures for Transactions with Related Persons

Our audit committee has the primary responsibility for reviewing and approving or disapproving “related party transactions,” which are transactions between us and related persons in which the aggregate amount involved exceeds or may be expected to exceed $120,000 and in which a related person has or will have a direct or indirect material interest. The charter of our audit committee provides that our audit committee shall review and approve or disapprove in advance any related party transaction.

Our board of directors and audit committee have adopted a formal written policy that our executive officers, directors, holders of more than 5% of any class of our voting securities, and any member of the immediate family of any of the foregoing persons, are not permitted to enter into any transaction with us for which disclosure would be required under Item 404 of Regulation S-K, referred to as a related person transaction, without the review and approval or ratification of our audit committee, or other independent members of our board of directors if it is inappropriate for our audit committee to review such transaction due to a conflict of interest. Any related person transaction must be presented to our audit committee for review, consideration and approval or ratification. In approving or rejecting any such related person transaction, our audit committee is to consider the relevant facts and circumstances available and deemed relevant to the audit committee, including, but not limited to, whether the transaction is on terms no less favorable than terms generally available to an unaffiliated third party under the same or similar circumstances and the extent of the related person’s interest in the transaction.

 

-51-


SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth certain information with respect to the beneficial ownership of our common stock as of August 24, 2020 by:

 

each person, or group of affiliated persons, who we know to beneficially own more than 5% of our common stock;

 

each of our named executive officers;

 

each of our directors; and

 

all of our executive officers and directors as a group.

The percentage ownership information shown in the table is based on an aggregate of 72,468,337 shares of our common stock outstanding as of August 24, 2020.

We have determined beneficial ownership in accordance with the rules of the Securities and Exchange Commission. These rules generally attribute beneficial ownership of securities to persons who possess sole or shared voting power or investment power with respect to those securities. In addition, the rules include shares of common stock issuable pursuant to: (i) the exercise of stock options that are either immediately exercisable or exercisable on or before October 23, 2020, which is 60 days after August 24, 2020 (ii) RSUs held by that person that will vest within 60 days of August 24, 2020 and (iii) outstanding warrants to purchase common stock held by that person that is either immediately exercisable or exercisable on or before October 9, 2020, which is 60 days after August 24, 2020. These shares are deemed to be outstanding and beneficially owned by the person holding those options and warrants for the purpose of computing the percentage ownership of that person, but they are not treated as outstanding for the purpose of computing the percentage ownership of any other person.

Unless otherwise noted below, the address of each of the individuals and entities named in the table below is c/o Ra Medical Systems, Inc., 2070 Las Palmas Drive, Carlsbad, California 92011.  Beneficial ownership representing less than 1% is denoted with an asterisk (*).

-52-


Unless otherwise indicated, the persons or entities identified in this table have sole voting and investment power with respect to all shares shown as beneficially owned by them, subject to applicable community property laws.

 

 

 

Number of

Shares of

Common

Stock

Beneficially

Owned

 

 

Percentage of

Stock

Beneficially

Owned

 

5% Stockholders:

 

 

 

 

 

 

 

 

Intracoastal Capital LLC (1)

 

 

4,624,483

 

 

 

6.1

%

Laurence W. Lytton (2)

 

 

3,712,582

 

 

 

5.1

%

Directors and Named Executive Officers:

 

 

 

 

 

 

 

 

Jonathan Will McGuire (3)

 

 

211,250

 

 

*

 

Andrew Jackson (4)

 

 

401,632

 

 

*

 

Jeffrey J. Kraws (5)

 

 

380,296

 

 

*

 

Daniel Horwood (6)

 

 

164,695

 

 

*

 

Martin Colombatto (7)

 

 

179,985

 

 

*

 

Maurice Buchbinder (8)

 

 

106,985

 

 

*

 

Richard Mejia, Jr. (9)

 

 

120,095

 

 

*

 

Mark E. Saad (10)