As filed with the United States Securities and Exchange Commission on February 13, 2023

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
(Address of Principal Executive Offices)   (Zip Code)

Velodyne Lidar, Inc. 2020 Equity Incentive Plan

(Full title of the plan)

Megan Chung

General Counsel

Ouster, Inc.

350 Treat Avenue

San Francisco, California 94110

(Name, address of agent for service)

(415) 949-0108

(Telephone number, including area code, of agent for service)

With copies to:

Drew Capurro

Latham & Watkins LLP

650 Town Center Drive, 20th Floor

Costa Mesa, CA 92626

(714) 540-1235

 

 

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.  ☐

 

 

 

EXPLANATORY NOTE

On November 4, 2022 (the “Agreement Date”), Ouster, Inc. (the “Company”), Velodyne Lidar, Inc. (“Velodyne”), Oban Merger Sub, Inc., a direct, wholly owned subsidiary of the Company (“Merger Sub I”), and Oban Merger Sub II LLC, a direct, wholly owned subsidiary of the Company (“Merger Sub II”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which the Company and Velodyne agreed to combine their respective businesses in a merger of equals. Pursuant to the Merger Agreement, Merger Sub I agreed to merge with and into Velodyne (the “First Merger”), with Velodyne surviving the First Merger as a direct, wholly owned subsidiary of the Company (the “Surviving Corporation”), and as soon as practicable following the First Merger, the Surviving Corporation agreed to merge with and into Merger Sub II, with Merger Sub II surviving as a direct, wholly owned subsidiary of the Company (the “Second Merger”, and together with the First Merger, the “Mergers”). The Company also agreed to assume the Velodyne 2020 Equity Incentive Plan (the “Velodyne Plan”), as well as all restricted stock units granted thereunder, in connection with the Mergers. On February 10, 2023, the transactions contemplated by the Merger Agreement were consummated.

At the effective time of the Mergers (the “Effective Time”), the Company assumed the Velodyne Plan, and all restricted stock units granted thereunder that were outstanding immediately prior to the Effective Time were assumed by the Company and converted into restricted stock units covering shares of the Company’s common stock (such assumed awards, the “Assumed RSUs”). Each Assumed RSU is subject to substantially the same terms and conditions as applied to the related Velodyne restricted stock unit award immediately prior to the Effective Time, except that the number of shares of common stock subject to each Assumed RSU was adjusted in accordance with the terms of the Merger Agreement.

This Registration Statement on Form S-8 registers an aggregate of 25,235,093 shares of common stock of the Company, including (i) 15,530,798 shares of common stock of the Company reserved for issuance under the Velodyne Plan and an additional (ii) 9,704,295 shares of common stock of the Company that may be issued pursuant to the Assumed RSUs.

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 of 1933, as amended (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 Company’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on February 28, 2022;

 

  (b)

the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the Commission on May 6, 2022;

 

  (c)

the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2022, filed with the Commission on August 5, 2022;

 

  (d)

the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2022, filed with the Commission on November 8, 2022;

 

  (e)

the Company’s Current Report on Form 8-K, filed with the Commission on April 29, 2022;

 

  (f)

the Company’s Current Report on Form 8-K, filed with the Commission on May 2, 2022;

 

  (g)

the Company’s Current Report on Form 8-K, filed with the Commission on June 14, 2022;

 

  (h)

the Company’s Current Report on Form 8-K, filed with the Commission on July 13, 2022;

 

  (i)

the Company’s Current Report on Form 8-K, filed with the Commission on November 7, 2022 (Items 1.01 and 9.01 only);

 

  (j)

the Company’s Current Report on Form 8-K, filed with the Commission on January 27, 2023;

 

  (k)

the Company’s Current Report on Form 8-K, filed with the Commission on February 13, 2023 (Items 1.01, 2.01 and 9.01 only);

 

  (l)

the Company’s Current Report on Form 8-K, filed with the Commission on February 13, 2023; and

 

  (m)

the description of the Company’s shares of common stock contained in the Company’s Registration Statement on Form 8-A12B, filed with the Commission on August 19, 2020, as updated in the exhibit titled “Description of Our Securities” filed as Exhibit 4.3 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on February 28, 2022, 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.

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 person’s 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 person’s 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.

Section 102(b)(7) of the DGCL provides that a corporation’s 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 director’s 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 indemnitee’s 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.

 

Exhibit
Number

  

Description of Exhibit

    4.1   Certificate of Incorporation of Ouster, Inc. (incorporated by reference to Exhibit 3.1 of the Post-Effective Amendment to Ouster, Inc.’s Registration Statement on Form S-4 filed on March 10, 2021).
    4.3   Bylaws of Ouster, Inc. (incorporated by reference to Exhibit 3.2 of the Post-Effective Amendment to Ouster, Inc.’s Registration Statement on Form S-4 filed on March 10, 2021).
    5.1*   Opinion of Latham & Watkins LLP.
  23.1*   Consent of PricewaterhouseCoopers LLP.
  23.2*   Consent of KPMG LLP.
  23.3*   Consent of Latham & Watkins LLP (included in Exhibit 5.1).
  24.1*   Power of Attorney (included on the signature page of the Registration Statement).
  99.1#   Velodyne Lidar, Inc. 2020 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to Velodyne Lidar, Inc.’s Current Report on Form 8-K filed on October 5, 2020).
  99.1(a)#   Form of Stock Option Agreement under the Velodyne Lidar, Inc. 2020 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to Velodyne Lidar, Inc.’s Current Report on Form 8-K filed on October 5, 2020).
  99.1(b)#*   Form of Restricted Stock Unit Agreement under the Velodyne Lidar, Inc. 2020 Equity Incentive Plan.
107*   Filing Fee Table

 

*

Filed herewith.

#

Indicates a management contract or compensatory plan or arrangement.

Item 9.

Undertakings.

 

(a)

The undersigned Company hereby undertakes:

 

  (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 Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s 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.

SIGNATURES

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 February 13, 2023.

 

OUSTER, INC.
By:   /s/ Mark Weinswig
  Mark Weinswig
  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 Mark Weinswig and each of them, with full power to act without the other, such person’s 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

    President, Chief Executive Officer and Director (Principal Executive Officer)   February 13, 2023

/s/ Mark Weinswig

Mark Weinswig

    Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)   February 13, 2023

/s/ Theodore L. Tewksbury

Theodore L. Tewksbury

   

Chair of the Board of Directors

   February 13, 2023

/s/ Virginia Boulet

Virginia Boulet

   

Director

   February 13, 2023

/s/ Susan Heystee

Susan Heystee

   

Director

   February 13, 2023

/s/ Ernest E. Maddock

Ernest E. Maddock

   

Director

   February 13, 2023

 

Karin Rådström

   

Director

   February 13, 2023

 

Kristin Slanina

   

Director

   February 13, 2023

/s/ Riaz Valani

Riaz Valani

   

Director

   February 13, 2023

Exhibit 5.1

 

 

650 Town Center Drive, 20th Floor

Costa Mesa, California 92626-1925

Tel: +1.714.540.1235 Fax: +1.714.755.8290

www.lw.com

LOGO

  FIRM / AFFILIATE OFFICES
February 13, 2023   Austin    Milan
  Beijing    Munich
  Boston    New York
  Brussels    Orange County
  Century City    Paris
  Chicago    Riyadh
  Dubai    San Diego
  Düsseldorf    San Francisco
  Frankfurt    Seoul
  Hamburg    Shanghai
  Hong Kong    Silicon Valley
  Houston    Singapore
  London    Tel Aviv
  Los Angeles    Tokyo
  Madrid    Washington, D.C.

Ouster, Inc.

350 Treat Avenue

San Francisco, California 94110

 

Re:

Registration Statement on Form S-8; 25,235,093 shares of common stock, par value $0.0001 per share, of Ouster, Inc.

To the addressee set forth above:

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 25,235,093 shares of its common stock, $0.0001 par value per share (the “Shares”), issuable under the Velodyne Lidar, Inc. 2020 Equity Incentive Plan (the “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 February 13, 2023 (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 related prospectus, 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 Plan are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the 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 provided in the DGCL.

February 13, 2023

Page 2

 

LOGO

 

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.

 

Sincerely,
/s/ Latham & Watkins LLP

Exhibit 23.1

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 February 28, 2022 relating to the financial statements, which appears in Ouster Inc.’s Annual Report on Form 10-K for the year ended December 31, 2021.

/s/ PricewaterhouseCoopers LLP

San Jose, CA

February 13, 2023

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated March 1, 2022, with respect to the consolidated financial statements of Velodyne Lidar, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.

/s/ KPMG LLP

Santa Clara, California

February 13, 2023

Exhibit 99.1(b)

VELODYNE LIDAR, INC.

2020 EQUITY INCENTIVE PLAN

Notice of Restricted Stock Unit Award

You have been granted Restricted Stock Units (“RSUs”), each representing the right to receive one share of common stock of Velodyne Lidar, Inc. (the “Company”) on the following terms:

 

Name of Recipient:

    «Name»

Total Number of RSUs Granted:

    «TotalRSUs»

Date of Grant:

    «DateGrant»

Vesting Commencement Date:

    «Vesting Commencement Date»

Vesting Schedule:

    The first «CliffPercent»% of the RSUs subject to this award will vest on «InitialVestDate», an additional «IncrementPercent»% of the RSUs subject to this award will vest on «SecondVestDate», and an additional «IncrementPercent»% of the RSUs subject to this award will vest on the final day of each «IncrementPeriod»-month period thereafter, provided that you remain in continuous service as an [Employee or Consultant][Outside Director] (“Service”) through each such date. [In addition, the RSUs may become vested on an accelerated basis, as provided in the Restricted Stock Unit Agreement.]1

You and the Company agree that the RSUs are granted under and governed by the terms and conditions of the Company’s 2020 Equity Incentive Plan (the “Plan”) and the Restricted Stock Unit Agreement (the “Agreement”), both of which are attached to, and made a part of, this document. Capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Plan or the Agreement.

The Company may, in its sole discretion, decide to deliver any documents related to RSUs awarded under the Plan, future RSUs that may be awarded under the Plan and all other documents that the Company is required to deliver to security holders (including annual reports and proxy statements) by email or other electronic means (including posting them on a website maintained by the Company or a third party under contract with the Company). You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through any on-line or electronic system established and maintained by the Company or a third party designated by the Company.

In addition, by indicating acceptance of this award through the Company’s online acceptance procedure, you acknowledge that: (a) you have received, and understand and agree to the terms of, this Notice of Restricted Stock Unit Award (this “Grant Notice”), the Agreement, and the Plan; (b) you accept this award on the terms and conditions set forth in this Grant Notice, the Agreement and the Plan; and (c) this Grant Notice, the Agreement and the Plan set forth the entire understanding between you and the Company regarding the rights to acquire the shares subject to this award and supersede all prior oral and written agreements with respect thereto.

 

1 

NTD: Include if holder is entitled to vesting acceleration rights.

VELODYNE LIDAR, INC.

2020 EQUITY INCENTIVE PLAN

RESTRICTED STOCK UNIT AGREEMENT

 

Grant of RSUs

   

Subject to all of the terms and conditions set forth in the Notice of Restricted Stock Unit Award (the “Grant Notice”), this Restricted Stock Unit Agreement (this “Agreement”) and the Plan, the Company has granted to you the number of RSUs set forth in the Grant Notice.

 

All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan.

Nature of RSUs

    The RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue shares of common stock on a future date. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company.

Payment for RSUs

    No payment is required for the RSUs that you are receiving.

Vesting

   

The RSUs vest in accordance with the vesting schedule set forth in the Grant Notice.

 

[Notwithstanding the foregoing, if you are, or become, eligible for more favorable vesting acceleration provisions pursuant to a written agreement with the Company (an “Outside Agreement”), the more favorable terms in such Outside Agreement shall apply instead of the acceleration terms in this Agreement.]2

 

No additional RSUs will vest after your Service has terminated for any reason[, except as set forth in this Agreement or an Outside Agreement, to the extent you are eligible for benefits thereunder]3.

Forfeiture

   

If your Service terminates for any reason, then the RSUs will be forfeited to the extent that they have not vested before the termination date and do not vest as a result of the termination of your Service. This means that any RSUs that have not vested under this Agreement will be cancelled immediately. You receive no payment for RSUs that are forfeited. The Company determines when your Service terminates for all purposes of the RSUs.

 

For purposes of the RSUs, your Service will be considered terminated as of the date you are no longer providing active services to the Company, its Parent or any of its Subsidiaries or Affiliates (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws) and will not be extended by any notice period. The Administrator shall have exclusive discretion to determine when your Service terminates for purposes of this award (including when you are no longer considered to be providing Service while on a leave of absence).

 

 

2 

Include if holder is entitled to vesting acceleration rights.

3 

Include if holder is entitled to vesting acceleration rights.

 

2

Leaves of Absence and Part-Time Work   

Service shall be deemed to continue for any purpose under this Agreement while you are on a bona fide leave of absence, if (a) such leave was approved by the Company in writing and (b) continued crediting of Service for such purpose is expressly required by the terms of such leave or by applicable law or policy (as determined by the Company). Subject to applicable law or policy (as determined by the Company), service may be deemed to terminate when such leave ends, unless you immediately return to active work.

If you commence working on a part-time basis, the Company may adjust the vesting schedule so that the rate of vesting is commensurate with your reduced work schedule, to the extent permitted by applicable law.

Settlement of RSUs   

Each RSU will be settled on or after it vests (unless you and the Company have agreed in writing to a later settlement date pursuant to procedures the Company may prescribe at its discretion); provided that settlement shall in all events occur within the “short term deferral period” as defined under Section 409A of the Code.

 

At the time of settlement, you will receive one share of the Company’s common stock for each vested RSU.

 

No fractional shares will be issued upon settlement.

Section 409A   

Unless you and the Company have agreed to a deferred settlement date (pursuant to procedures that the Company may prescribe at its discretion), settlement of these restricted stock units is intended to be exempt from the application of Code Section 409A pursuant to Treasury Regulation 1.409A-1(b)(4) and shall be administered and interpreted in a manner that complies with such exception.

 

Notwithstanding the foregoing, if it is determined that settlement of the RSUs is not exempt from Code Section 409A and the Company determines that you are a “specified employee,” as defined in the regulations under Code Section 409A at the time of your “separation from service,” as defined in Treasury Regulation Section 1.409A-1(h), then this paragraph will apply. If this paragraph applies, and the event triggering settlement is your “separation from service,” then any RSUs that otherwise would have been settled during the first six months following your “separation from service” will instead be settled on the first business day following the earlier of (a) the six-month anniversary of your separation from service or (b) your death.

 

Each installment of RSUs that vests is hereby designated as a separate payment for purposes of Code Section 409A.

 

3

No Voting Rights or Dividends

    The RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until the RSUs are settled by issuing shares of the Company’s common stock.

RSUs Nontransferable

    You may not sell, transfer, assign, pledge or otherwise dispose of any RSUs. For instance, you may not use the RSUs as security for a loan. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in the RSUs in any way.

Beneficiary Designation

    You may dispose of the RSUs in a written beneficiary designation, if authorized by the Company and to the extent such designation is valid under applicable laws. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you file no beneficiary designation, if the beneficiary designation is not valid or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death.

Responsibility for Taxes

   

Regardless of any action the Company (or, if applicable, the Parent, Subsidiary or Affiliate employing or retaining you (the “Employer”)) takes with respect to any or all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount, if any, actually withheld by the Company and/or the Employer. You further acknowledge that neither the Company nor the Employer: (a) make any representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vesting of the RSUs, the issuance of shares upon vesting of the RSUs, the subsequent sale of shares acquired pursuant to such vesting or the receipt of any dividends; nor (b) commit to or are under any obligation to structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result.

 

Prior to any relevant taxable or tax withholding event, as applicable, you agree to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, you authorize the Company and/or the Employer to satisfy any withholding obligations with regard to Tax-Related Items by one or a combination of the following: (a) withholding shares of Company common stock otherwise issuable in connection with the vesting of the RSUs; (b) withholding from proceeds of the sale of shares acquired upon vesting either through a voluntary sale or through a mandatory sale arranged by the Company (on your behalf pursuant to this authorization without further consent); (c) withholding from your wages or other compensation payable to you by the Company and/or the Employer; or (d) any other method determined by the Administrator to be in compliance with applicable laws; provided, however, that if you are a Company officer subject to Section 16 of the Exchange Act, then the Tax-Related Items will be satisfied by withholding in shares of Company common stock, unless otherwise determined in advance by the Board.

 

 

4

  

The Company may withhold or account for Tax-Related Items by considering the statutory withholding amount or other withholding rates, in which case you may receive a refund of any over-withheld amount in cash and will have no entitlement to the equivalent in shares.

 

If the withholding obligation for Tax-Related Items is satisfied by withholding in shares of Company common stock, for tax purposes, you will be deemed to have been issued the full number of shares subject to the RSUs, notwithstanding that a number of shares are held back solely for the purpose of paying the Tax-Related Items.

 

Finally, you agree to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue and/or deliver the shares of Company common stock or proceeds from the sale of shares of Company common stock, if you fail to comply with your obligations in connection with the Tax-Related Items.

Restrictions on Issuance / Compliance with Law    Notwithstanding any other provision in the Plan or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the shares of Company common stock, the Company shall not be required to issue any shares to you prior to the completion of any registration or qualification of the shares under any local, state or federal securities law or under rulings or regulations of the Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any local, state or federal governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Company’s shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. Further, you agree that the Company shall have unilateral authority to amend this Agreement with your consent to the extent necessary to comply with securities or other laws applicable to the issuance of shares.
Restrictions on Resale    You agree not to sell any shares at a time when applicable laws or Company policies prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. You further agree to comply with the Company’s Insider Trading Policy when selling shares of the Company’s common stock.

 

5

Nature of Grant    In accepting the RSUs, you acknowledge, understand and agree that: (a) the Plan is established voluntarily by the Company, it is discretionary in nature, and the Company may amend, modify, suspend or terminate the Plan at any time, to the extent permitted by the Plan; (b) the grant of the RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs or benefits in lieu of RSUs, even if RSUs have been granted in the past; (c) all decisions with respect to future RSUs or other grants, if any, will be at the sole discretion of the Company; (d) neither your award nor this Agreement alters the at-will nature of your Service relationship; (e) neither the RSUs nor this Agreement gives you the right to remain retained by the Company, its Parent or any Subsidiary or Affiliate in any capacity; (f) if you are not providing services to the Company, the RSU grant does not establish an employment or other service relationship with the Company; (g) you are voluntarily participating in the Plan; (h) the RSUs and the shares of Company common stock subject to the RSUs, and the income from and value of same, are not intended to replace any pension rights or compensation; (i) the RSUs and the shares of Company common stock subject to the RSUs, and the income from and value of same, are not part of normal or expected compensation for purposes of, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, holiday pay, bonuses, long-service awards, pension or retirement or welfare benefits or similar mandatory payments; (j) the future value of the shares of Company common stock subject to the RSUs is unknown, indeterminable, and cannot be predicted with certainty; (k) no claim or entitlement to compensation or damages shall arise from the forfeiture of the RSUs resulting from the termination of your Service (for any reason whatsoever, whether or not later found to be invalid or in breach of employment or other applicable laws); (l) unless otherwise agreed with the Company, the RSUs and the shares of Company common stock acquired under the Plan, and the income from and value of same, are not granted as consideration for, or in connection with, any service you may provide as a director of any Parent, Subsidiary or Affiliate; and (m) unless otherwise provided in the Plan or by the Company in its discretion, the RSUs and the benefits evidenced by this Agreement do not create any entitlement to have the RSUs transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of Company common stock.

Adjustments

   

In the event of a stock split, a stock dividend or a similar change in Company stock, the number of the RSUs will be adjusted pursuant to the Plan.

No Advice Regarding Grant

    The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or the acquisition or sale of shares of Company common stock. You should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan.

 

6

Insider Trading/Market Abuse Laws

   

You understand that you may be subject to applicable insider trading restrictions and/or market abuse laws, which may affect your ability, directly or indirectly, to purchase or sell, or attempt to sell or otherwise dispose of shares, rights to shares (RSUs), or rights linked to the value of shares during such times as you are considered to have “inside information” regarding the Company (as defined by applicable law). Insider trading laws and regulations prohibit the cancellation or amendment of orders you placed before possessing the inside information. Furthermore, you understand that you may be prohibited from (a) disclosing the inside information to any third party, including fellow employees (other than on a “need to know” basis) and (b) “tipping” third parties by sharing with them Company inside information, or otherwise causing third parties to buy or sell Company securities. Any restrictions under these laws or regulations are separate from and in addition to restrictions that may apply to you under the Company’s Inside Trading Policy. It is your responsibility to comply with the Company’s Insider Trading Policy and any applicable legal or regulatory trading restrictions. You should consult with your personal legal advisor on this matter.

Effect of Significant Corporate Transactions    If the Company is a party to a merger, consolidation, or certain change in control transactions, then the RSUs will be subject to the applicable provisions of Article 9.3 of the Plan, provided that any action taken must either (a) preserve the exemption of the RSUs from Code Section 409A or (b) comply with Code Section 409A.
Recoupment Policy    This award, and the shares acquired upon settlement of this award, shall be subject to any Company recoupment or clawback policy in effect from time to time.
Imposition of Other Requirements    The Company reserves the right to impose other requirements on your participation in the Plan and on any shares of Company common stock acquired under the Plan, if the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

Governing Law; Venue

    This Agreement will be interpreted and enforced under the laws of the State of Delaware (without regard to its choice-of-law provisions). For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts the Northern District of California, and no other courts, where this grant is made and/or to be performed.

Severability

    The provisions of this Agreement are severable and if any one or more of the provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions will nevertheless be binding and enforceable.

 

7

Waiver    You acknowledge that a waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by your or any other Participant.
The Plan and Other Agreements   

The text of the Plan is incorporated in this Agreement by reference.

 

The Plan, this Agreement[, any Outside Agreement]4 and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded.

BY ACCEPTING THIS RSU AWARD, YOU AGREE TO ALL OF THE

TERMS AND CONDITIONS DESCRIBED IN THIS AGREEMENT AND

IN THE PLAN.

 

 

4 

Include if holder is entitled to vesting acceleration rights.

 

8

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Ouster, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1—Newly Registered Securities

 

               
Security Type  

Security
Class

Title

   Fee
Calculation
Rule		  

Amount

to be

Registered (1)

  

Proposed

Maximum

Offering
Price Per
Unit

  

Maximum

Aggregate

Offering Price

  

Fee

Rate

  

Amount of

Registration
Fee

               
Equity   Common stock, $0.0001 par value per share   Rule 457(c) and Rule 457(h)   25,235,093(2)   $1.52(3)  

$38,357,341.36

   $110.20 per $1,000,000   $4,226.98
         
Total Offering Amounts        

$4,226.98

         
Total Fee Offsets         —
         
Net Fee Due              

$4,226.98

 

(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 Velodyne 2020 Equity Incentive Plan (the “Velodyne 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. To the extent that (i) any outstanding awards under the Velodyne Plan are forfeited, cancelled or expire for any reason before being exercised or settled in full, or are reacquired by the Company pursuant to a forfeiture provision, repurchase right or for any other reason, or (ii) shares subject to awards are delivered to the Company to satisfy an exercise price or to tax withholding obligation, such shares of common stock will be available for issuance under the Velodyne Plan.

(2)

Represents (A) an aggregate of 15,530,798 shares of Common Stock reserved for issuance under the Velodyne Plan and (B) an aggregate of 9,704,295 additional shares of Common Stock underlying outstanding restricted stock units under the Velodyne Plan and assumed by the Company.

(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 Company’s shares of Common Stock as reported on the New York Stock Exchange on February 10, 2023.