As filed with the United States Securities and Exchange Commission on July 12, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OUSTER, INC.
(Exact name of registrant as specified in its charter)
Delaware | 86-2528989 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
350 Treat Avenue
San Francisco, California 94110
Telephone: (415) 949-0108
(Address of Principal Executive Offices, including Zip Code)
Ouster, Inc. 2021 Incentive Award Plan
Ouster, Inc. Amended and Restated 2015 Stock Plan
(Full title of the plan)
Myra Pasek
General Counsel and Secretary
Ouster, Inc.
350 Treat Avenue
San Francisco, California 94110
(415) 949-0108
(Name, address and telephone number, including area code, of agent for service)
With copies to:
Benjamin Potter
Drew Capurro
Latham & Watkins LLP
1271 Avenue of the Americas
New York, New York 10020
(212) 906-1200
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer ☐ |
Non-accelerated filer ☒
|
Smaller reporting company ☒ | Emerging growth company ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum
Offering Price Per Share |
Proposed
Maximum
|
Amount of
Registration Fee |
||||
Common Stock, $0.0001 par value per share |
18,761,099(2) |
$11.82(3) |
$221,756,190.18 | $24,193.60 | ||||
Common Stock, $0.0001 par value per share |
23,795,951(4) | $1.18(5) | $28,079,222.18 | $3,063.44 | ||||
|
(1) |
Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of common stock, par value $0.0001 per share (Common Stock), of Ouster, Inc. (the Company) that may become issuable under the Companys 2021 Incentive Award Plan (the 2021 Plan) or the Ouster, Inc. Amended and Restated 2015 Stock Plan (the 2015 Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock. |
(2) |
Represents 18,761,099 shares of Common Stock reserved for issuance under the 2021 Plan. |
(3) |
Estimated solely for purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act, and based upon the average of the high and low prices of the Companys shares of Common Stock as reported on the New York Stock Exchange on July 8, 2021. |
(4) |
Represents 23,795,951 shares of Common Stock underlying currently outstanding options granted under the 2015 Plan, which amount also represents the maximum amount that may become available for issuance under the 2021 Plan as a result of such outstanding awards under the 2015 Plan being forfeited, expiring, settled for cash, repurchased or for any other reason pursuant to the terms of the 2021 Plan. |
(5) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act, and based upon $1.18, which is the weighted-average exercise price for options to purchase Common Stock outstanding under the 2015 Plan. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. |
Plan Information.* |
Item 2. |
Registrant Information and Employee Plan Annual Information.* |
* The documents containing the information specified in this Part I of Form S-8 (plan information and registration information and employee plan annual information) will be sent or given to employees as specified by the Securities and Exchange Commission (the Commission) pursuant to Rule 428(b)(1) of the Securities Act. Such documents are not required to be and are not filed with the Commission either as part of this registration statement (this Registration Statement) or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Company will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b), and will include the address and telephone number to which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
The following documents, which have been filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:
(a) |
the Companys Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March 9, 2021, as amended by Amendment No. 1 on Form 10-K/A, filed with the Commission on June 30, 2021; |
(b) |
(c) |
(d) |
(e) |
the Companys Current Report on Form 8-K, filed with the Commission on March 9, 2021; |
(f) |
the Companys Current Report on Form 8-K, filed with the Commission on March 15, 2021, as amended by Amendment No. 1 on Form 8-K/A, filed with the Commission on March 15, 2021 and Amendment No. 2 on Form 8-K/A, filed with the Commission on July 12, 2021; |
(g) |
the Companys Current Report on Form 8-K, filed with the Commission on March 26, 2021; |
(h) |
the Companys Current Report on Form 8-K, filed with the Commission on May 14, 2021; |
(i) |
the Companys Current Report on Form 8-K, filed with the Commission on June 10, 2021; and |
(j) |
the description of the Companys shares of Common Stock contained in the Companys Registration Statement on Form 8-A12B, filed with the Commission on August 19, 2020, as updated in the section titled Description of Ouster Pubco Securities beginning on page 267 of the Companys final prospectus and definitive proxy statement, dated February 12, 2021, filed with the Commission on February 18,2021, as well as any additional amendments or reports filed for the purpose of updating such description. |
All reports and other documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered pursuant to this Registration Statement have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents or reports.
2
For purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained therein, or in any other subsequently filed document which also is or is deemed to be incorporated by reference, modifies or supersedes such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. |
Description of Securities. |
Not applicable.
Item 5. |
Interests of Named Experts and Counsel. |
Not applicable.
Item 6. |
Indemnification of Directors and Officers. |
Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware (the DGCL) empowers a corporation to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the persons conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such persons heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
3
Section 102(b)(7) of the DGCL provides that a corporations certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.
Additionally, our Certificate of Incorporation limits the liability of our directors to the fullest extent permitted by the DGCL, and our Bylaws provide that we will indemnify them to the fullest extent permitted by such law. We have entered into and expect to continue to enter into agreements to indemnify our directors, executive officers and other employees as determined by our board of directors. Under the terms of such indemnification agreements, we are required to indemnify each of our directors and officers, to the fullest extent permitted by the laws of the state of Delaware, if the basis of the indemnitees involvement was by reason of the fact that the indemnitee is or was our director or officer or was serving at our request in an official capacity for another entity. We must indemnify our officers and directors against all direct and indirect costs, fees and expenses of any type or nature whatsoever, including all other disbursements, obligations or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be witness in, settlement or appeal of, or otherwise participating in any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding. The indemnification agreements also require us to advance, to the extent not prohibited by law, all direct and indirect costs, fees and expenses that such director or officer incurred, provided that such person will return any such advance if it is ultimately determined that such person is not entitled to indemnification by us. Any claims for indemnification by our directors and officers may reduce our available funds to satisfy successful third-party claims against us and may reduce the amount of money available to us.
The foregoing is only a general summary of certain aspects of Delaware law and our Certificate of Incorporation and Bylaws, and does not purport to be complete. It is qualified in its entirety by reference to the detailed provisions of the DGCL and our Certificate of Incorporation and Bylaws.
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
Item 8. |
Exhibits. |
* Filed herewith.
Item 9. |
Undertakings. |
(a) The undersigned Company hereby undertakes:
4
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Companys annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
5
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of San Francisco, state of California, on July 12, 2021.
OUSTER, INC. | ||
By: | /s/ Anna Brunelle | |
Anna Brunelle | ||
Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Angus Pacala and Anna Brunelle, and each of them, with full power to act without the other, such persons true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement, and any and all amendments thereto (including post-effective amendments), and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
Signature | Title | Date | ||
/s/ Angus Pacala Angus Pacala |
Director, Co-Founder and Chief Executive Officer (Principal Executive Officer) | July 12, 2021 | ||
/s/ Anna Brunelle Anna Brunelle |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | July 12, 2021 | ||
/s/ Jorge del Calvo Jorge del Calvo |
Director | July 12, 2021 | ||
/s/ Emmanuel Hernandez Emmanuel Hernandez |
Director | July 12, 2021 | ||
/s/ Susan Heystee Susan Heystee |
Director | July 12, 2021 | ||
/s/ Sundari Mitra Sundari Mitra |
Director | July 12, 2021 | ||
/s/ Remy Trafelet Remy Trafelet |
Director | July 12, 2021 |
Exhibit 5.1
Ouster, Inc.
350 Treat Avenue
San Francisco, California 94110
Re: |
Registration Statement on Form S-8; 42,557,050 shares of common stock, par value $0.0001 per share, of Ouster, Inc. |
Ladies and Gentlemen:
We have acted as special counsel to Ouster, Inc., a Delaware corporation (the Company), in connection with the registration by the Company of an aggregate of 42,557,050 shares of its common stock, $0.0001 par value per share (the Shares), issuable under the Ouster, Inc. Amended and Restated 2015 Stock Plan and the Ouster, Inc. 2021 Incentive Award Plan (each, a Plan). The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the Act), filed with the Securities and Exchange Commission (the Commission) on July 12, 2021 (the Registration Statement). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the related prospectuses, other than as expressly stated herein with respect to the issue of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware (the DGCL) and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients thereof, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plan, and assuming in each case that the individual issuances, grants or awards under the applicable Plan are duly authorized by all necessary corporate action and duly issued, granted or awarded and
July 12, 2021
Page 2
exercised in accordance with the requirements of law and the applicable Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issuance and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares in the DGCL.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours, |
/s/ Latham & Watkins LLP |
Exhibit 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMS CONSENT
We consent to the incorporation by reference in this Registration Statement of Ouster Inc. (the Company) on Form S-8 of our report dated March 8, 2021, except for the effects of the restatement discussed in Notes 2 and 9 as to which the date is June 30, 2021, which includes an explanatory paragraph as to the Companys ability to continue as going concern, with respect to our audit of the consolidated financial statements of Ouster Inc. (formerly Colonnade Acquisition Corp.) as of December 31, 2020 and for the period from June 4, 2020 (inception) through December 31, 2020, which report appears in the Annual Report on Form 10-K/A for the year ended December 31, 2020.
/s/ Marcum LLP
Marcum LLP
Houston, Texas
July 12, 2021
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Ouster, Inc. of our report dated March 12, 2021, except for the effects of the reverse recapitalization discussed in Note 1 to the consolidated financial statements, as to which the date is July 12, 2021, relating to the financial statements of Ouster, Inc., which appears in Ouster, Inc.s Amendment No. 2 to the Current Report on Form 8-K dated July 12, 2021.
/s/ PricewaterhouseCoopers LLP
San Jose, California
July 12, 2021