EX-10.16




 Exhibit 10.16 

ViewRay Incorporated 

Two Thermo Fisher Way 

Village of Oakwood, Ohio 44146 

March 16 , 2016 
 Mr. Michael Cogswell

 ***** 
 ***** 

***** 
 Dear Mike: 

We are pleased to extend you this offer to serve as Senior Vice President of Sales of ViewRay Incorporated (the “Company”). This offer may be
accepted by countersigning where indicated at the end of this letter. Your employment with the Company shall be effective as of April 1st, 2016 (the “Start Date”). 

 

	1.	Duties and Extent of Service 

 As Senior Vice President of Sales of the Company, you will have
responsibility for performing those duties as are customary for, and are consistent with, such position, as well as those duties as the Company’s Chief Executive Officer (“CEO”) may from time to time designate. You agree to abide by
the rules, regulations, instructions, personnel practices and policies of the Company and any changes therein that may be adopted from time to time by the Company. Except for vacations and absences due to temporary illness, you will be expected to
devote your full time and effort to the business and affairs of the Company and shall not, during your employment by the Company, without the prior written approval of either the CEO or of the board of directors of the Company (the
“Board”), be employed by or otherwise engaged in any other business activity requiring any of your time, other than previously disclosed in Addendum “B,” and further that the total combined time dedicated to these
disclosed activities does not exceed 8 hours per month, and that employee attests that none of the activities listed are competitors to Viewray, and that if they become competitors, employee will immediately resign any director and/or officer
positions related to those activities. 
 The Company is currently located in Mountain View, California and Village of Oakwood, Ohio (or such other
locations as the Company may from time to time utilize as its principal offices) (the “Principal Offices”). The Company acknowledges that your primary residence is in Evansville, Indiana. You shall not be required to relocate your
primary residence to either of the Company’s Principal Offices’ areas. The Company expects that in your capacity as Senior Vice President of Sales, you will spend the substantial majority of your time outside the Company’s Principal
Office traveling to and working at prospective customers’ locations. In addition, you will be expected to frequent the Principal Offices, for various internal meetings. 
  

	2.	Compensation 

 In consideration of your employment with the Company, the Company will pay you a base
salary, payable in periodic installments in accordance with the Company’s standard payroll practices, which annualizes to $300,000. You shall also be entitled to the exclusive use of a company car, which will be leased by the Company and
provided to you at no cost to you, up to a maximum monthly lease cost to the Company of $900. Should you prefer, you may elect to receive $900 per month car allowance instead, provided that such election is made prior to the Company entering into a
lease agreement for a leased car for your use. You acknowledge that the use of a company car or a car allowance may be considered taxable income by federal and state taxing authorities. 

  
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 You shall also be entitled to receive additional commission compensation according to a sales incentive
compensation plan to be negotiated with the company CEO on an annual basis. The general outline of the commission plan for your first year will result in a sales incentive compensation paid to you of approximately $150,000 at the achievement of ten
(10) new sales orders, provided they are of quality, price, and accompanying deposit as described in your commission plan. The achievement of fifteen (15) new sales orders as described above shall result in a sales incentive compensation
paid to you of approximately $200,000. The attached commission schedule represents an approximate form of the sales incentive commission plan. 
 You hereby
acknowledge and confirm that sales orders in the radiation oncology industry, as well as the Company’s sales orders, are inherently complex and contain a number of important strategic and business considerations that must be constructed to meet
specific customer and market opportunities and remain within the strategic parameters set forth both formally and informally by the Company. Accordingly, there are factors including, but not limited to, price to the customer, warranty period, down
payment deposits, and other important business and contractual terms which may effect the economics and accounting treatment of such orders, and therefore these parameters must be determined in collaboration with the Company’s CEO and other
members of Company senior management. The final determination of such terms shall be made by the CEO, Chief Financial Officer, and/or other members of senior management as may be appropriate and the final determination of sales incentive
compensation for such sales orders shall be made by the CEO. 
 You will also be entitled to 20 days of paid time off (“PTO”) annually (which is
accrued as you work) in accordance with the Company’s standard vacation and PTO policy and 2 days of personal holidays. You will be entitled to participate in such employee benefit plans and fringe benefits as may be offered or made available
by the Company from time to time to its employees. The Board reserves the right from time to time to change the Company’s employee benefit plans and fringe benefits. Your participation in such employee benefit plans and fringe benefits, and the
amount and nature of the benefits to which you shall be entitled thereunder or in connection therewith, shall be subject to the terms and conditions of such employee benefit plans and fringe benefits. 

 

	3.	Stock Options 

 (a) As soon as reasonably practicable after your Start Date and subject to the separate
approvals of the Board and Compensation Committee, you shall be entitled to a stock option grant (the “Option”) to purchase 115,000 shares of the Company’s common stock, par value $0.01 per share (the “Common
Stock”), underlying the Option (the “Option Shares”) which Option shall be set forth in an Incentive Stock Option and Reverse Vesting Agreement between you and the Company (the “Option Agreement”) issued
under the Company’s 2015 Stock Incentive Plan. The Option will be exercisable at a price per share equal to the fair market value per share of the Company’s Common Stock on the Start Date. The Option will be subject to the following
vesting schedule: 28,750 Option Shares shall vest on the one-year anniversary of the Start Date, with 1/36th of the remaining Option Shares vesting monthly thereafter. 

(b) The Option Agreement shall provide that, in the event that (i) a Change of Control (defined below) occurs during your employment hereunder,
and (ii) your employment with the Company is terminated by the Company (or its successor) without Cause or you resign for Good Reason (as defined below) at any time during the (12) twelve-month period following such Change of
Control, then (x) without further action by the Company (or its successor) or the Company’s Board of Directors, all Option Shares shall accelerate and become vested and exercisable as of the date of such termination, and
(y) you shall be entitled to receive the Severance subject to, and in accordance with Section 12 of this letter agreement. As used herein, “Change of Control” means (i) a sale of all or substantially all of the
assets of the Company and its subsidiaries taken as a whole, or (ii) a merger, consolidation or other similar business combination involving the Company, if, upon completion of such transaction the beneficial owners of voting equity securities
of the Company immediately prior to the transaction beneficially own less than fifty percent of the successor entity’s voting equity securities; provided, that “Change 

  
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of Control” shall not include a transaction where the consideration received or retained by the holders of the then outstanding capital stock of the Company does not consist primarily of
(i) cash or cash equivalent consideration, (ii) securities which are registered under the Securities Act of 1933, as amended (the “Securities Act”), or any successor statute and/or (iii) securities for which the
Company or any other issuer thereof has agreed, including pursuant to a demand, to file a registration statement within ninety days of completion of the transaction for resale to the public pursuant to the Securities Act. 

 

	4.	Travel Expenses  

 During your employment with the Company, the Company shall reimburse you for
reasonable costs of accommodation, transportation and commercial air travel between your home, the Principal Office and all prospective customer locations, as required by the Company and subject to the Company’s travel and related procedures
and practices as established by the Company; provided, that in addition to complying with all travel and related policies, the “reasonableness” of all such costs shall be determined by the Chief Executive Officer and/or the Board.

  

	5.	Immigration Status; Background Checks 

 For purposes of federal immigration law, you will be required to
provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three business days of your date of hire, or our employment relationship with you may
be terminated. 
 The Company reserves the right to conduct background investigations and/or reference checks on all of its potential employees. Your job
offer, therefore, is contingent upon a clearance of such a background investigation and/or reference check, if any. 
  

	6.	Nondisclosure and Developments 

 Regardless of the reason your employment with the Company terminates,
you will continue to comply with the Employee Confidentiality, Inventions and Non-Interference Agreement, dated as of the date hereof, between you and the Company (the “Employee Confidentiality Inventions and Non-Interference
Agreement”). 
  

	7.	No Conflicting Obligation 

 You hereby represent and warrant that the execution and delivery of this
letter agreement, the performance by you of any or all of the terms of this letter agreement and the performance by you of your duties as an employee of the Company do not and will not breach or contravene (i) any agreement or contract
(including, without limitation, any employment or consulting agreement, any agreement not to compete or any confidentiality or nondisclosure agreement) to which you are or may become a party, or (ii) any obligation you may otherwise have under
applicable law to any former employer or to any person to whom you have provided, provide or will provide consulting services. 
  

	8.	Non-Competition 

 During your employment with the Company, you shall not, directly or indirectly, own any
interest in, operate, join, control or participate as a partner, director, principal, officer, or agent of, enter into the employment of, act as a consultant to, or perform any services for any company in the business of manufacturing, marketing or
distributing any radiotherapy device incorporating real-time imaging. The parties hereto expressly agree that the scope and duration of the restrictions set forth in this paragraph are reasonable. In the event that any arbitrator or court of
competent jurisdiction shall hold that the duration or scope of the restrictions set forth in this paragraph are unreasonable under circumstances now or hereafter existing, the maximum duration or scope of restriction


  
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reasonable under such circumstances shall be substituted, and each party hereto shall petition any such court to cause the maximum duration or scope of restriction reasonable under such
circumstances to be so substituted for the duration or scope of restriction set forth herein. 
  

	9.	Non-Disparagement 

 During your employment with the Company and thereafter, you agree that you will not
knowingly disparage, criticize, or otherwise make any derogatory statements regarding the Company or its past, present or future directors, officers, employees or products. 
  

	10.	No Cooperation 

 During your employment with the Company and thereafter, you agree that you will not act
in any manner that might damage the business of the Company. You agree that you will not counsel or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges or complaints by
any third party against the Company and/or any officer, director, employee, agent, representative, stockholder or attorney of the Company, unless under a subpoena or other court order to do so. 

 

	11.	At-Will 

 You acknowledge that the employment relationship between the Company and you is at-will,
meaning that the employment relationship may be terminated, at any time, by the Company or you for any reason or for no reason, with or without notice. However, you agree to make reasonable efforts to provide the Company at least thirty
(30) days’ written notice prior to termination of the employment relationship. 
  

	12.	Severance 

 (a) If your employment with the Company is terminated for any or no reason, then the Company
will pay you all accrued but unpaid wages and paid vacation, based on your then current base salary, and any other amounts required by applicable law through the termination date. 

(b) If your employment with the Company is terminated by the Company without Cause (as defined below) or you resign for Good Reason (defined
below), then, subject to your delivery to the Company of a release of claims against the Company and its affiliates in a form acceptable to the Company that becomes effective and irrevocable within sixty (60) days following your
termination of employment, the Company shall pay you equal monthly installments of the Severance Amount (defined below), in accordance with the Company’s standard payroll practices, with the first such installment to be paid on the payroll date
following the date the release is effective and irrevocable (“Severance”). The “Severance Amount” means an amount, in cash, equal to three (3) months of your annualized base salary. No Severance will be paid or provided
unless the release of claims becomes effective and irrevocable within sixty (60) days following your termination of employment. The receipt of any Severance will also be subject to you not violating the provisions set forth above under the
headings Non-Disparagement and No Cooperation. In the event that you breach any of those provisions, all continuing payments to which you may otherwise be entitled will immediately cease. 

(c) As used herein, “Cause” means (i) your willful failure to perform your material duties as Senior Vice President of Sales, other than
a failure resulting from your complete or partial incapacity due to long-term physical or mental illness or impairment, (ii) your willful act that constitutes gross misconduct and that is injurious to the Company, (iii) your willful breach
of a provision of this letter agreement, (iv) your material and willful violation of a federal or state law or regulation applicable to the business of the Company, or (v) your conviction or plea of guilty or no contest to a felony. 

  
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 (d) As used herein, “Good Reason” means the occurrence of one or more of the following
conditions, without your consent and without remedy by the Company as described herein: (i) a material reduction in your compensation, including but not limited to your level of base salary and annual bonus opportunity, other than reductions
approved by the Board that are applicable to all employees of the Company, (ii) a material, non-voluntary, reduction of your authority, duties, or responsibilities or a material, adverse change in your reporting structure or (iii) a
material reduction in the kind or level of your benefits to which you were entitled immediately prior to such reduction, other than reductions approved by the Board that are applicable to all employees of the Company. Notwithstanding the forgoing,
in no event will you have Good Reason to resign unless (i) you provide written notice to the Company of the event or condition giving rise to Good Reason within ninety (90) days of its initial occurrence, (ii) the Company fails to
remedy the event or condition giving rise to Good Reason within thirty (30) days after receiving your written notice and (iii) your resignation is effective within thirty (30) days after the expiration of the Company’s period to
remedy under subclause (ii). 
  

	13.	Code Section 280G 

 (a) In the event it shall be determined that any payment or distribution to you or
for your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of
Section 280G(b)(2) of the Code), whether paid or payable pursuant to this letter agreement or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be
subject to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the “Excise Tax”), then the Payments shall be reduced to the extent necessary so
that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit received by you shall exceed the net after-tax benefit received by you if no such
reduction was made. The specific Payments that shall be reduced and the order of such reduction shall be determined so as to achieve the most favorable economic benefit to you, and to the extent economically equivalent, the Payments shall be reduced
pro rata, all as determined by the Company in its sole discretion. For purposes of this section, “net after-tax benefit” shall mean (i) the Payments which you receive or are then entitled to receive from the Company that would
constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the Payments calculated at the maximum marginal income tax
rate for each year in which the Payments shall be paid to you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Taxes imposed
with respect to the Payments. 
 (b) All determinations required to be made under this Section 13 shall be made by such nationally recognized
accounting firm as may be selected by the Audit Committee of the Board as constituted immediately prior to the change in control transaction (the “Accounting Firm”), provided, that the Accounting Firm’s determination
shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the
Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided, that you reasonably believe that any of the Payments may be subject to the Excise Tax) or
the Company. All reasonable fees and expenses of the Accounting Firm in reaching such a determination shall be borne solely by the Company. 
  

	14.	Section 409(A) of the Code. 

 To the extent that any payments or benefits under this letter
agreement are deemed to be subject to Section 409(A) of the Code, this letter agreement will be interpreted in accordance with Section 409(A) of the Code and Department of Treasury regulations and other interpretive guidance issued
thereunder in order to (a) preserve the intended tax treatment of the benefits provided with respect to such payments and (b) comply with the requirements of Section 409(A) of the Code. 

  
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	15.	Governing Law; Arbitration 

 This letter agreement shall be governed by and construed in accordance with
the substantive laws of Ohio (without reference to principles of conflicts or choice of law that would cause the application of the internal laws of any other jurisdiction). 

In consideration of the Company employing you and the wages and benefits provided under this letter agreement, you and the Company each agree that all claims
arising out of or relating to your employment, including its termination, shall be resolved by arbitration. 
 The dispute will be arbitrated in accordance
with the rules of the American Arbitration Association. The Company agrees to pay the fees and expenses relating to arbitration, except those related to your legal fees and costs. However, if either party prevails on a statutory claim which affords
the prevailing party attorneys’ fees and costs, the arbitrator may award reasonable fees and costs to the prevailing party, under the standards for an award of fees and costs provided by law. You and the Company agree to file any demand for
arbitration within the time limit established by the applicable statute of limitations for the asserted claims or within one year of the conduct that forms the basis of the claim if no statutory limitation is applicable. Failure to demand
arbitration within the prescribed time period shall result in waiver of said claims. 
 These provisions regarding arbitration will cover all matters
directly or indirectly related to your recruitment, employment or termination of employment by the Company, including, but not limited to claims involving laws against any form of discrimination whether brought under federal or state law, and claims
involving present and former employees, officers and directors of the Company, but excluding workers’ compensation and unemployment insurance claims. EACH PARTY TO THIS LETTER AGREEMENT UNDERSTANDS AND AGREES THAT IT IS WAIVING ITS RIGHTS TO
BRING SUCH CLAIMS TO COURT, INCLUDING THE RIGHT TO A JURY TRIAL. 
  

	16.	Entire Agreement; Amendment; Severability 

 This letter agreement (together with the Employee
Confidentiality, Inventions and Non-Interference Agreement and Option Agreement) sets forth the sole and entire agreement and understanding between the Company and you with respect to the specific matters contemplated and addressed hereby and
thereby. No prior agreement, whether written or oral, shall be construed to change or affect the operation of this letter agreement in accordance with its terms, and any provision of any such prior agreement which conflicts with or contradicts any
provision of this letter agreement is hereby revoked and superseded. Any prior agreement, if any, you may have with the Company regarding your employment, whether written or oral, is hereby, and without any further action on your part or the
Company’s, terminated, revoked and superseded by this letter agreement. This letter agreement may be amended or terminated only by a written instrument executed both by you and the Company. In the event that any provision of this letter
agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid and unenforceable or void and shall not affect in
any way the remainder of such provision or any other provision of this letter agreement. 
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left blank.] 

  
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 We are excited to have you on board. Please acknowledge your acceptance of this offer and the terms of this
letter agreement by signing below and returning a copy to me. 
  

			
	Sincerely,
	
	VIEWRAY INCORPORATED
		
	By:	 	 /s/ Chris A. Raanes

	Name: Chris A. Raanes
	Title: President and Chief Executive Officer


  

	
	I hereby acknowledge that I have had a full and adequate opportunity to read, understand and discuss the terms and conditions contained in this letter agreement prior to signing hereunder.
	
	  /s/ Michael Cogswell

	Michael Cogswell
	
	Date: 3/16/2016
	
	Please Complete the Following:
	Home Address: ******
	Home Telephone: ******
	Home Fax, if any:N/A
	Home Email, if any: ******


  
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