Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
On
On
In approving the accelerated vesting and payment of the awards, the Board
considered, among other things, the projected value of the corporate income tax
deductions that may be lost as a result of the effect of Section 280G and 4999
of the Code and the benefits accruing to Velodyne from reducing the potential
tax burden that the Company's executives may bear in connection with payments
associated with the closing of the Merger and thereby providing Drs. Tewksbury
and Gupta, and
With respect to Dr. Tewskbury, the Board approved the accelerated vesting of
436,343 performance vesting restricted stock awards ("PSAs"), which were
scheduled to vest on
In addition, the Board approved cash payment of
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In connection with the bonus payment and accelerated equity and equity-based award vesting and payment described above, each Executive has signed and Acceleration and Clawback Acknowledgement ("Clawback Agreement"). Each Clawback Agreement provides that the Executive's accelerated payments are subject to certain repayment and true-up conditions, as described in the Clawback Agreement.
The description of the Clawback Agreements is qualified in its entirety by reference to the full text of the form of Clawback Agreement, a copy of which is filed as Exhibit 10.1 herewith and is incorporated by reference herein.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K ("Form 8-K") contains forward-looking statements within the meaning of the federal securities law. Such statements are based upon current plans, estimates and expectations of the management of Ouster and Velodyne that are subject to various risks and uncertainties that could cause actual results to differ materially from such statements. The inclusion of forward-looking statements should not be regarded as a representation that such plans, estimates and expectations will be achieved. Words such as "anticipate," "expect," "project," "intend," "believe," "may," "will," "should," "plan," "could," "continue," "target," "contemplate," "estimate," "forecast," "guidance," "predict," "possible," "potential," "pursue," "likely," and words and terms of similar substance used in connection with any discussion of future plans, actions or events identify forward-looking statements. All statements, other than historical facts, including statements regarding the expected timing of the closing of the proposed transaction; the ability of the parties to complete the proposed transaction considering the various closing conditions; the expected benefits of the proposed transaction; the cash position of the combined company; the competitive ability and position of the combined company; and any assumptions underlying any of the foregoing, are forward-looking statements. Important factors that could cause actual results to differ materially from Ouster's and Velodyne's plans, estimates or expectations could include, but are not limited to: (i) the risk that the proposed transaction may not be completed in a timely manner or at all, which may adversely affect Ouster's and Velodyne's businesses and the price of their respective securities; (ii) uncertainties as to the timing of the consummation of the proposed transaction and the potential failure to satisfy the conditions to the consummation of the proposed transaction, including obtaining stockholder and regulatory approvals; (iii) the proposed transaction may involve unexpected costs, liabilities or delays; (iv) the effect of the announcement, pendency or completion of the proposed transaction on the ability of Ouster or Velodyne to retain and hire key personnel and maintain relationships with customers, suppliers and others with whom Ouster or Velodyne does business, or on Ouster's or Velodyne's operating results and business generally; (v) Ouster's or Velodyne's respective businesses may suffer as a result of uncertainty surrounding the proposed transaction and disruption of management's attention due to the proposed transaction; (vi) the outcome of any legal proceedings related to the proposed transaction or otherwise, or the impact of the proposed transaction thereupon; (vii) Ouster or Velodyne may be adversely affected by other economic, business, and/or competitive factors; (viii) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement and the proposed transaction; (ix) restrictions during the pendency of the proposed transaction that may impact Ouster's or Velodyne's ability to pursue certain business opportunities or strategic transactions; (x) the risk that Ouster or Velodyne may be unable to obtain governmental and regulatory approvals required for the proposed transaction, or that required governmental and regulatory approvals may delay the consummation of the proposed transaction or result in the imposition of conditions that could reduce the anticipated benefits from the proposed transaction or cause the parties to abandon the proposed transaction; (xi) risks that the anticipated benefits of the proposed transaction or other commercial opportunities may otherwise not be fully realized or may take longer to realize than expected; (xii) the impact of legislative, regulatory, economic, competitive and technological changes; (xiii) risks relating to the value of the Ouster shares to be issued in the proposed transaction;
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(xiv) the risk that integration of the proposed transaction post-closing may not
occur as anticipated or the combined company may not be able to achieve the
growth prospects and synergies expected from the proposed transaction, as well
as the risk of potential delays, challenges and expenses associated with
integrating the combined company's existing businesses; (xv) exposure to
inflation, currency rate and interest rate fluctuations and risks associated
with doing business locally and internationally, as well as fluctuations in the
market price of Ouster's and Velodyne's traded securities; (xvi) the impact of
the COVID-19 pandemic on Ouster's and Velodyne's business and general economic
conditions; (xvii) the market for and adoption of lidar and related technology
and the combined company's ability to compete in a market that is rapidly
evolving and subject to technological developments; (xviii) the impact of cost
increases and supply chain shortages in the components needed for the production
of lidar products and related technology; and (xix) the unpredictability and
severity of catastrophic events, including, but not limited to, acts of
terrorism or outbreak of war or hostilities, as well as Ouster's and Velodyne's
response to any of the aforementioned factors. Additional factors that may
affect the future results of Ouster and Velodyne are set forth in their
respective filings with the
Any such forward-looking statements represent management's reasonable estimates and beliefs as of the date of this Form 8-K. While Ouster and Velodyne may elect to update such forward-looking statements at some point in the future, they disclaim any obligation to do so, other than as may be required by law, even if subsequent events cause their views to change.
Additional Information
In connection with the proposed transaction, Ouster and Velodyne plan to file
with the
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No Offer or Solicitation
This Form 8-K shall not constitute an offer to sell or the solicitation of an
offer to buy any securities, nor shall there be any sale of securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made except by means of a
prospectus meeting the requirements of Section 10 of the
Participants in the Solicitation
Ouster, Velodyne and their respective directors, executive officers and certain
employees and other persons may be deemed to be participants in the solicitation
of proxies from the stockholders of Ouster and Velodyne in connection with the
proposed transaction. Securityholders may obtain information regarding the
names, affiliations and interests of Ouster's directors and executive officers
in Ouster's Annual Report on Form 10-K for the fiscal year ended
Item 9.01 Financial Statements and Exhibits
(d) Exhibits Exhibit Number Description of Exhibit 10.1 Form of Clawback Agreement 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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