S-8

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

Emerging growth company

As filed with the United States Securities and Exchange Commission on October 28, 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)

Sense Photonics, Inc. 2017 Equity Incentive Plan, as amended

(Full title of the plan)

Anna Brunelle

Chief Financial Officer

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

140 Scott Drive

Menlo Park, CA 94025

(650) 328-4600

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.

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 Aggregate Offering Price	Amount of Registration Fee
Common Stock, $0.0001 par value per share
- Stock Options	823,114(2)	$6.68(3)	$5,498,401.52	$509.70
- Restricted Stock Units	4,490,980(4)	$6.68(3)	$29,999,746.40	$2,780.98

(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 Sense Photonics, Inc. 2017 Equity Incentive Plan (the “Sense 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 823,114 shares of Common Stock underlying stock options granted under the Sense 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 October 22, 2021.

(4)	Represents 4,490,980 shares of Common Stock underlying restricted stock units granted under the Sense Plan and assumed by the Company.

EXPLANATORY NOTE

On October 5, 2021 (the “Agreement Date”), the Company, Sparrow Acquisition Sub., Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub”), Sense Photonics, Inc., a Delaware corporation (“Sense”), and Fortis Advisors LLC, solely in its capacity as the representative of securityholders of Sense (“Holders’ Agent”), entered into an Agreement and Plan of Merger and Plan of Reorganization (the “Merger Agreement”), pursuant to which, and subject to the terms and conditions set forth in the Merger Agreement, Merger Sub agreed to merge with and into Sense (the “Merger”), with Sense surviving the Merger as a wholly owned subsidiary of the Company. The Company also agreed to assume stock options and restricted stock units granted under the Sense Plan in connection with the Merger. On October 22, 2021, the transactions contemplated by the Merger Agreement were consummated.

At the effective time of the Merger (the “Effective Time”), certain stock options and restricted stock units granted pursuant to the Sense Plan that were outstanding immediately prior to the Effective Time were assumed by the Company and converted into stock options and restricted stock units covering shares of the Company’s common stock (such assumed awards, the “Assumed Awards”). Each Assumed Award is subject to substantially the same terms and conditions as applied to the related Sense stock option or restricted stock unit award immediately prior to the Effective Time, except that the number of shares of Common Stock subject to and, if applicable, the exercise price of each Assumed Award will be adjusted in accordance with the terms of the Merger Agreement. This Registration Statement on Form S-8 registers an aggregate of 5,314,094 shares of Common Stock that may be issued pursuant to such Assumed Awards.

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 Company’s 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)

the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, filed with the Commission on May 14, 2021;

(c)

the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2021, filed with the Commission on August 10, 2021;

(d)

the Company’s Current Report on Form 8-K, filed with the Commission on February 22, 2021 (Item 8.01 only);

(e)

the Company’s Current Report on Form 8-K, filed with the Commission on March 3, 2021 (Item 8.01 only);

(f)

the Company’s Current Report on Form 8-K, filed with the Commission on March 9, 2021;

(g)

the Company’s 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 as further amended by Amendment No. 2 on Form 8-K/A, filed with the Commission on July 12, 2021;

(h)

the Company’s Current Report on Form 8-K, filed with the Commission on March 26, 2021;

(i)

the Company’s Current Report on Form 8-K, filed with the Commission on May 14, 2021;

(j)

the Company’s Current Report on Form 8-K, filed with the Commission on June 10, 2021;

(k)

the Company’s Current Report on Form 8-K, filed with the Commission on July 22, 2021;

(l)

the Company’s Current Report on Form 8-K, filed with the Commission on October 5, 2021;

(m)

the Company’s Current Report on Form 8-K, filed with the Commission on October 13, 2021

(n)

the Company’s Current Report on Form 8-K, filed with the Commission on October 25, 2021; and

(o)

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 section titled “Description of Ouster Pubco Securities” beginning on page 267 of the Company’s 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.

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).

4.2		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 Marcum LLP.

23.2*		Consent of PricewaterhouseCoopers LLP.

23.3*		Consent of Latham & Watkins LLP (included in Exhibit 5.1).

24.1*		Powers of Attorney (included on the signature page of the Registration Statement).

99.1*		Sense Photonics, Inc. 2017 Equity Incentive Plan, as amended.

* Filed herewith.

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 October 28, 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 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	Director, Co-Founder and Chief Executive Officer (Principal Executive Officer)	October 28, 2021
Angus Pacala

/s/ Anna Brunelle	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	October 28, 2021
Anna Brunelle

/s/ Jorge del Calvo	Director	October 28, 2021
Jorge del Calvo

/s/ Emmanuel Hernandez	Director	October 28, 2021
Emmanuel Hernandez

/s/ Susan Heystee	Director	October 28, 2021
Susan Heystee

/s/ Sundari Mitra	Director	October 28, 2021
Sundari Mitra

/s/ Karin Rådström	Director	October 28, 2021
Karin Rådström

/s/ Remy Trafelet	Director	October 28, 2021
Remy Trafelet

Signature page to S-8 Registration Statement