UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 14, 2021
CASPER SLEEP
INC.
(Exact name of registrant as specified in its
charter)
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Delaware
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001-39214
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46-3987647
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification Number)
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Three World Trade Center
175 Greenwich Street, Floor 40
New York, NY 10007
(Address of principal executive offices)(Zip
Code)
Registrant’s telephone number, including
area code: (347) 941-1871
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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¨
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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x
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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Common Stock, par value $0.000001 per share
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CSPR
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The New York Stock Exchange
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
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 13(a) of the Exchange Act. ¨
Item 1.01.
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Entry into Material Definitive Agreement.
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Agreement and Plan of Merger
On November 14, 2021, Casper Sleep Inc., a Delaware corporation (the
“Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Marlin Parent, Inc., a
Delaware corporation (“Parent”), and Marlin Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
(“Merger Sub”), pursuant to which, subject to the satisfaction or waiver of the conditions set forth therein, Merger Sub will
be merged with and into the Company, with the Company surviving the merger as a wholly-owned subsidiary of Parent (the “Merger”).
Parent and Merger Sub are subsidiaries of an investment vehicle managed by Durational Capital Management LP, a U.S.-based private equity
firm.
Pursuant to the Merger Agreement, at the effective time of the Merger
(the “Effective Time”), and as a result of the Merger:
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each share of common stock, par value $0.000001 per share, of the Company (“Common Stock”) outstanding immediately prior to the Effective Time (subject to certain exceptions, including for shares of Common Stock owned by stockholders of the Company who have not voted in favor of the adoption of the Merger Agreement and have properly exercised appraisal rights in accordance with Section 262 of the General Corporation Law of the State of Delaware) will, at the Effective Time, automatically be converted into the right to receive $6.90 in cash (the “Merger Consideration”), subject to applicable withholding taxes;
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each then-outstanding, vested and unexercised option to purchase Common Stock (each a “Company Option”), including any Company Option that accelerates and vests in connection with the Merger, shall be cancelled, with the holder of such Company Option becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash, subject to applicable tax withholdings, equal to the product obtained by multiplying (i) the excess, if any, of the Merger Consideration over the per share exercise price of such Company Option, by (ii) the number of shares of Common Stock covered by such Company Option immediately prior to the Effective Time;
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each award of restricted stock units, including any deferred stock units, granted under any of the Company’s Equity Plans (“Company Restricted Stock Unit Award”) that is outstanding immediately prior to the Effective Time shall be cancelled, with the holder of such Company Restricted Stock Unit Award becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash, subject to applicable tax withholdings, equal to the product obtained by multiplying (i) the Merger Consideration by (ii) the number of shares of Common Stock covered by such Company Restricted Stock Unit Award immediately prior to the Effective Time;
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each Company performance-based restricted stock unit (“Company Performance Stock Unit Award”) that is outstanding immediately prior to the Effective Time shall, without any action on the part of the Parent, the Company or the holder thereof, be cancelled, with the holder of such Company Performance Stock Unit Award becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash, subject to required applicable tax withholdings (the “Cash Based Award”), equal to the product obtained by multiplying (i) the Merger Consideration by (ii) the number of shares of Company common stock issuable pursuant to such Company Performance Stock Unit Award upon the greater of (A) target performance and (B) actual performance, as estimated in good faith (and subject to Parent’s review and approval) based upon the Company’s performance during the applicable performance period(s) as of the Effective Time; and
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each outstanding warrant of the Company exercisable for Common Stock (“Company Warrant”) pursuant to the Plain English Warrant Agreements dated March 1, 2019 with TriplePoint Venture Growth BDC Corp. and TriplePoint Capital LLC (“Company Warrant Agreements”) shall, without any action on the part of Parent, the Company or the holder thereof, be automatically cancelled for no consideration, and the Company Warrant Agreements will be automatically terminated, in each case in accordance with the terms of the Company Warrant Agreements.
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The board of directors of the Company (the “Board”) has
unanimously approved and declared to be in the best interest of the Company and its stockholders, the Merger Agreement and the transactions
contemplated thereby, including the Merger, and resolved to recommend that the stockholders of the Company adopt the Merger Agreement.
Assuming the satisfaction of the conditions set forth in the Merger
Agreement, the Company expects the transactions contemplated thereby to close in the first quarter of 2022.
The stockholders of the Company will be asked to vote on the adoption
of the Merger Agreement and the Merger at a special stockholder meeting that will be held on a date to be announced as promptly as reasonably
practicable following the customary SEC review process. Consummation of the Merger is not subject to a financing condition, but is subject
to customary closing conditions, including (i) approval of the Company’s stockholders, (ii) the expiration or earlier termination
of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and other approvals, clearances or expirations
of waiting periods under other antitrust laws, if any (iii) absence of any order or injunction prohibiting the consummation of the Merger,
(iv) subject to customary materiality qualifiers, the accuracy of the representations and warranties contained in the Merger Agreement
and compliance with the covenants contained in the Merger Agreement and (v) no Company Material Adverse Effect (as defined in the Merger
Agreement) having occurred since the date of the Merger Agreement that is continuing.
The Merger Agreement contains customary representations, warranties
and covenants, including, among others, covenants by the Company to conduct its businesses in the ordinary course between the execution
and completion of the Merger Agreement, not to engage in certain kinds of transactions during such period (including the payment of dividends),
to convene and hold a meeting of its stockholders to consider and vote upon the Merger, to cooperate with Parent in connection with obtaining
financing for the transaction, to obtain regulatory consents, and, subject to certain customary exceptions, for the Board to recommend
that its stockholders approve and adopt the Merger Agreement. The Merger Agreement also contains customary representations, warranties
and covenants of Parent and Merger Sub, including a covenant to use reasonable best efforts to obtain the financing described below.
Parent and Merger Sub have secured committed financing, consisting
of a combination of equity financing to be provided by Durational Consumer SPV IV, LP on the terms and subject to the conditions set forth
in an equity commitment letter provided by such investment vehicle and debt financing to be provided by certain lenders (collectively,
the “Lenders”) on the terms and subject to the conditions set forth in a debt commitment letter. The obligations of the Lenders
to provide debt financing under the debt commitment letter are subject to a number of customary conditions.
The Merger Agreement contains certain termination rights for both the
Company and Parent. Upon termination of the Merger Agreement under specified circumstances, including with respect to the Company’s
entry into an agreement with respect to a Superior Proposal (as defined in the Merger Agreement), the Board changing its recommendation,
if the Company willfully breaches its non-solicitation covenant or if the Company breaches its representations, warranties or covenants
in a manner that would cause the related closing conditions to not be met, the Company will be required to pay Parent a termination fee
of $9,140,000. A termination fee in the amount of $24,375,000 will become payable by Parent in the event it fails to consummate the Merger
after all conditions are met, if Parent breaches its representations, warranties or covenants in a manner that would cause the related
closing conditions to not be met, or if either party terminates the Merger Agreement because the Merger has not been consummated by the
Termination Date (described below), and at the time of such termination, the Company was otherwise entitled to terminate the Agreement
for either of the above reasons. An investment vehicle managed by Durational Capital Management LP has provided a limited guarantee with
respect to the payment of the termination fee payable by Parent in the event it becomes payable, as well as certain reimbursement obligations
that may be owed by Parent pursuant to the Merger Agreement, subject to the terms and conditions set forth in the Merger Agreement and
such limited guarantee, including a $24,375,000 cap on any damages that may be payable. The Merger Agreement also provides that either
party may specifically enforce the other party’s obligations under the Merger Agreement, provided that the Company may only cause
Parent to close the transaction if certain conditions are satisfied, including the funding or availability of the debt financing.
In addition to the foregoing termination rights, and subject to certain
limitations, the Company or Parent may terminate the Merger Agreement if the Merger is not consummated by May 14, 2022 (the “Termination
Date”).
The Merger Agreement is not intended to provide any other factual information
about the Company, Parent or Merger Sub. The representations, warranties and covenants contained in the Merger Agreement were made only
for the purposes of the Merger Agreement and as of specified dates, were solely for the benefit of the parties to the Merger Agreement,
and may be subject to limitations agreed upon by the contracting parties. The representations and warranties may have been made for the
purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and
may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors
and stockholders accordingly should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations
of the actual state of facts or condition of the Company, Parent, Merger Sub or any of their respective subsidiaries or affiliates. In
addition, the assertions embodied in the representations and warranties contained in the Merger Agreement are qualified by information
in confidential disclosure schedules that the Company exchanged with Parent and Merger Sub in connection with the execution of the Merger
Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the
Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Merger
Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the parties to the
Merger Agreement and the Merger that will be contained in, or incorporated by reference into, the proxy statement that the Company will
be filing in connection with the Merger, as well as in the Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K and other documents that the Company has filed or may file with the Securities and Exchange Commission (the “SEC”).
If the Merger is consummated, the Company’s common stock will
be delisted from the New York Stock Exchange and deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
Voting Agreement
Contemporaneously with and as a condition to Parent entering into the
Merger Agreement, certain shareholders of the Company (the “Shareholders”) entered into a voting agreement with Parent and
the Company (the “Voting Agreement”), with respect to all shares of Common Stock beneficially owned by the Shareholders, as
set forth in the Voting Agreement (collectively, the “Voting Agreement Shares”).
The Shareholders beneficially own approximately 28% of the outstanding
shares of Common Stock and have agreed to take the following actions, among others, during the term of the Voting Agreement: (1) vote
the Voting Agreement Shares in favor of the Merger and the adoption of the Merger Agreement and (2) vote the Voting Agreement Shares against
any Acquisition Proposal (as defined in the Merger Agreement). The Voting Agreement will terminate upon the earliest of (i) the consummation
of the transactions contemplated by the Merger Agreement, (ii) the valid termination of the Merger Agreement in accordance with its terms,
(iii) the time that the Requisite Stockholder Approval (as defined in the Merger Agreement) has been obtained, and (iv) any change to
the terms of the Merger Agreement (A) that reduces the amount or changes the form of consideration payable to the Company’s stockholders
or (B) extends the Termination Date.
Bridge Financing; Amendment to Credit Agreement
On November 14, 2021 (the “Effective Date”), the Company
entered into an amendment to the amended subordinated facility among the Company, Casper Science LLC, and Casper Sleep Retail LLC with
TriplePoint Venture Growth BDC Corp. as lender and collateral agent and TriplePoint Capital LLC as lender (the “Amended Subordinated
Facility”) to, among other things, permit the incurrence of additional borrowings under the Amended Subordinated Facility in an
aggregate principal amount not to exceed $30.0 million (the “Bridge Loans”). The Bridge Loans will accrue interest at a floating
rate of prime plus 6.75% margin per annum, require a one-time, upfront facility fee equal to 1.00% of the funded amount, an end of term
fee equal to 10.00% of the funded amount and a success fee of (x) $150,000 if the Merger closes on or before January 15, 2022 and (y)
$300,000 if the Merger closes after January 15, 2022 (in each case, payable only upon completion of the Merger). If the Merger does not
close on or before March 15, 2022, then the Company will be required to issue common stock warrants to our Bridge Loans lender with warrant
coverage equal to 40% of the outstanding amounts under the Bridge Loans, at an exercise price equal to equal to the average of the Company’s
common stock closing price for the five-trading day period ending on March 15, 2022.
The Bridge Loan will mature upon the earlier of the consummation of
the Merger and 211 days after the Effective Date.
On November 14, 2021, the Company entered into a waiver and amendment
(the “Second Waiver”) to the credit agreement (the “Credit Agreement”) by and among the Company, Casper Science
LLC and Casper Sleep Retail LLC, and Wells Fargo Bank, National Association, which, among other things, (i) amended the initial waiver
dated October 18, 2021 that waived certain requirements with respect to both an Accelerated Borrowing
Base Delivery Event and a Cash Dominion Event (each, as defined in the Credit Agreement) for the period from October 18, 2021 through
December 31, 2021 (the “Initial Waiver”) in order to extend the relevant period through February 28, 2022 (subject
to certain conditions), (ii) waived certain defaults under the Initial Waiver and (iii) amended the Credit Agreement and Growth Capital
Subordination Agreement (as defined in the Credit Agreement) to permit the incurrence the Bridge Loans.
Item 2.02
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Results of Operations and Financial Condition.
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On November 15, 2021, Casper Sleep Inc. announced its financial results
for the quarter ended September 30, 2021. The full text of the press release issued in connection with the announcement is furnished as
Exhibit 99.1 to this Current Report on Form 8-K.
The information contained in Item 2.02 of this Current Report on Form
8-K (including Exhibit 99.1 attached hereto) shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or
otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities
Act of 1933, as amended (the “Securities Act”), or the Exchange Act, except as expressly provided by specific reference in
such a filing.
Item 2.03
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Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
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The disclosure set forth above under Item 1.01 under “Bridge
Financing; Amendment to Credit Agreement” is hereby incorporated by reference into this Item 2.03.
Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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Resignation of Philip Krim and Appointment
of Emilie Arel as Chief Executive Officer
On November 14, 2021, Philip Krim, Chief Executive Officer the Company,
notified the Board of his decision to retire from such position effective as of November 15, 2021 (the “Transition Date”).
Mr. Krim will continue to serve as the non-executive chairman of the Board, subject to the Company’s nominating and reelection policies
and procedures.
In connection with Mr. Krim’s resignation, on November 15, 2021,
the Board appointed Emilie Arel, President of the Company, as the new President and Chief Executive Officer of the Company, effective
as of the Transition Date.
Ms. Arel’s biographical information is included under Item 10,
Part III of the Company’s annual report on Form 10-K for the year ended December 31, 2020 filed with the SEC on February 26, 2021
(“2020 Form 10-K”), which biographical information is incorporated herein by reference.
Election of Emilie Arel as Director
On November 14, 2021, the Board elected Ms. Arel to serve as a Class
I director, effective as of November 15, 2021, with a term expiring at the 2024 annual meeting of stockholders or until her successor
has been duly elected and qualified.
As an employee of the Company, Ms. Arel will not serve on any
committees of the Board and will not receive any additional compensation as a director.
There are no arrangements or understandings between Ms. Arel and any
other persons pursuant to which Ms. Arel was appointed as the Chief Executive Officer and a director of the Company. There are no family
relationships between Ms. Arel and any director or executive officer of the Company. Ms. Arel has no direct or indirect material
interest in any transaction or proposed transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Michael Monahan Letter Agreement
On November 14, 2021 the Company entered into a letter agreement with
Mr. Monahan providing that he will be eligible to earn a supplemental bonus of $500,000 in the event a Change in Control (as defined in
the Casper Sleep Inc. 2020 Equity Incentive Plan) occurs during his employment with the Company and he remains employed through the first
anniversary of such Change in Control.
Employment Agreement
In connection with Ms. Arel’s promotion, the Company entered
into a new employment agreement with Ms. Arel (the “Employment Agreement”), providing for her employment as the Chief
Executive Officer effective as of November 15, 2021. Pursuant to the Employment Agreement, Ms. Arel is entitled to an annual base salary
of $750,000, which will not be increased during the two years following the Transition Date, and indemnification from the Company for
acts committed in good faith in the course and scope of her employment. The Employment Agreement also provides that Ms. Arel is eligible
to earn an annual performance-based bonus ranging from 50%—200% of her base salary, with a target bonus opportunity of 100% of her
base salary, as well as a supplemental bonus of $600,000 in the event a Change in Control (as defined in the Casper Sleep Inc. 2020 Equity
Incentive Plan) occurs during her employment with the Company and she remains employed through the first anniversary of such Change in
Control.
Under the Employment Agreement, Ms. Arel will be entitled to receive
severance benefits upon a qualifying termination of her employment by the Company without Cause or by Ms. Arel for Good Reason (each
as defined in the Employment Agreement) of: (i) 18 months of continued base salary, payable in regular installments in accordance
with the Company’s normal payroll practices, (ii) a lump sum cash severance payment equal to the sum of 18 months of group
health insurance premiums for Ms. Arel and her eligible dependents, based on the level of coverage in effect immediately prior to such
termination date, payable within 60 days of such termination date, (iii) if such termination date occurs on or after July 1 of the
year in which termination occurs, a prorated annual bonus, calculated based on actual achievement and paid out at the same time annual
bonuses are generally paid to other executives for the relevant year, and (iv) acceleration of any outstanding time-based equity
awards held by Ms. Arel that would have vested during the twelve-month period following such termination date if Ms. Arel had remained
employed during such twelve-month period, as well as acceleration of any outstanding performance-based equity awards held by Ms. Arel
to the extent the applicable performance conditions are fully satisfied as of such termination date. In the event such qualifying termination
occurs within the three-month period prior to, or within the twelve-month period following, a Change in Control, Ms. Arel will be
entitled to receive enhanced severance benefits, in addition to the payments set forth in clauses (i) and (ii) above, of an additional
severance payment equal to 100% of her then-current annual base salary, the payment of her entire cash severance in a lump sum, and full
acceleration of any outstanding equity awards held by Ms. Arel, in each case, subject to Ms. Arel’s execution of a release
of claims and continued compliance with the applicable restrictive covenants. Pursuant to the Employment Agreement, Ms. Arel will
be subject to 18-month post-termination non-competition and non-solicitation of customers and employees covenants, as well as perpetual
confidentiality and non-disparagement covenants.
Transition Agreement
In connection with Mr. Krim’s resignation, on November 14,
2021, the Company entered into a transition and release of claims agreement (the “Transition Agreement”) with Mr. Krim.
Pursuant to the Transition Agreement, Mr. Krim will continue to remain employed as non-executive chairman of the Board following his
resignation as Chief Executive Officer through the earlier of (x) the date of consummation of a change in control (which, for the
avoidance of doubt, would include the Merger) and (y) March 31, 2022 (provided that in the event the Company enters into a
definitive agreement prior to December 31, 2021 governing a transaction which if consummated would constitute a Change in Control,
the termination date shall be the date of consummation of such transaction) in order to assist with certain special projects of the
Company and serve as an advisor to the successor Chief Executive Officer.
In connection with Mr. Krim’s termination of employment from
the Company, he will be entitled to receive severance payments and benefits pursuant to the Employment Agreement entered into by Mr. Krim
and the Company, as set forth in the Transition Agreement, and subject to, among other things, Mr. Krim’s execution and non-revocation
of a release of claims.
Mr. Krim will not be eligible to receive compensation for his service
on the Board pursuant to the Company’s Non-Employee Director Compensation Policy while he continues to remain employed as non-executive
chairman of the Board pursuant to the Transition Agreement.
On November 15, 2021 the Company issued a press release announcing
entry into the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.2 to this report and is incorporated by
reference herein.
The information contained in Item 7.01 of this Current Report on Form
8-K (including Exhibit 99.2 attached hereto) shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or
otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities
Act or the Exchange Act, except as expressly provided by specific reference in such a filing.
Important Information
and Where to Find It
In connection with the proposed transaction between the Company and
Parent, a special stockholder meeting will be announced soon to obtain stockholder approval in connection with the proposed transaction,
the Company expects to file with the SEC a proxy statement (the “Proxy Statement”), the definitive version of which will be
sent or provided to the Company stockholders. The Company may also file other documents with the SEC regarding the proposed transaction.
This document is not a substitute for the Proxy Statement or any other document which the Company may file with the SEC. INVESTORS AND
SECURITY HOLDERS ARE URGED TO READ THE PROXY STATEMENT AND ANY OTHER RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED WITH THE SEC,
AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED TRANSACTION AND RELATED MATTERS. Investors and security holders may obtain free copies of the Proxy Statement
(when it is available) and other documents that are filed or will be filed with the SEC by the Company through the website maintained
by the SEC at www.sec.gov, the Company’s investor relations website at https://ir.casper.com or by contacting the Company investor
relations department at cspr@jcir.com.
Participants in the Solicitation
The Company and certain of its directors, executive officers and other
members of management and employees may be deemed to be participants in the solicitation of proxies in respect of the proposed transaction.
Information regarding the persons who may, under the rules of the SEC, be considered to be participants in the solicitation of the Company’s
stockholders will be set forth in the Proxy Statement for its special stockholder meeting. The Company’s stockholders may obtain
additional information regarding the direct and indirect interests of the participants in the solicitation of proxies in connection with
the proposed transaction, including the interests of the Company directors and executive officers in the transaction, which may be different
than those of the Company stockholders generally, by reading the Proxy Statement and any other relevant documents that are filed or will
be filed with the SEC relating to the transaction. You may obtain free copies of these documents using the sources indicated above.
Cautionary Statement Regarding Forward-Looking Statements
This communication contains “forward-looking statements”
within the meaning of the federal securities laws, including Section 27A of the Securities Act, and Section 21E of the Exchange Act. These
forward-looking statements are based on the Company’s current expectations, estimates and projections, including about the executive
transitions and the expected date of closing of the proposed transaction and the potential benefits thereof, its business and industry,
management’s beliefs and certain assumptions made by the Company and Durational Capital Management LP, all of which are subject
to change. In this context, forward-looking statements often address expected future business and financial performance and financial
condition, and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,”
“could,” “seek,” “see,” “will,” “may,” “would,” “might,”
“potentially,” “estimate,” “continue,” “expect,” “target,” similar expressions
or the negatives of these words or other comparable terminology that convey uncertainty of future events or outcomes. All forward-looking
statements by their nature address matters that involve risks and uncertainties, many of which are beyond our control, and are not guarantees
of future results, such as statements about the consummation of the proposed transaction and the anticipated benefits thereof. These and
other forward-looking statements, including the failure to consummate the proposed transaction or to make or take any filing or other
action required to consummate the transaction in a timely matter or at all, are not guarantees of future results and are subject to risks,
uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements.
Accordingly, you should not place undue reliance on any such statements and caution must be exercised in relying on forward-looking statements.
Important risk factors that may cause such a difference include, but are not limited to: (i) the completion of the proposed transaction
on anticipated terms and timing, including obtaining stockholder and regulatory approvals, anticipated tax treatment, unforeseen liabilities,
future capital expenditures, revenues, expenses, earnings, synergies, economic performance, indebtedness, financial condition, losses,
future prospects, business and management strategies for the management, expansion and growth of the Company’s business and other
conditions to the completion of the transaction; (ii) conditions to the closing of the transaction may not be satisfied; (iii) the transaction
may involve unexpected costs, liabilities or delays; (iv) the outcome of any legal proceedings related to the transaction; (v) the failure
by Durational Capital Management LP to obtain the necessary financing arrangements set forth in the commitment letters received in connection
with the transaction; (vi) the impact of the COVID-19 pandemic on the Company’s business and general economic conditions; (vii)
the Company’s ability to implement its business strategy or the failure by the Company to obtain or maintain adequate liquidity;
(viii) significant transaction costs associated with the proposed transaction; (ix) potential litigation relating to the proposed transaction;
(x) the risk that disruptions from the proposed transaction will harm the Company’s business, including current plans and operations;
(xi) the ability of the Company to retain and hire key personnel; (xii) potential adverse reactions or changes to business relationships
resulting from the announcement or completion of the proposed transaction; (xiii) legislative, regulatory and economic developments affecting
the Company’s business; (xiv) general economic and market developments and conditions; (xv) the evolving legal, regulatory and tax
regimes under which the Company operates; (xvi) potential business uncertainty, including changes to existing business relationships,
during the pendency of the merger that could affect the Company’s financial performance; (xvii) restrictions during the pendency
of the proposed transaction that may impact the Company’s ability to pursue certain business opportunities or strategic transactions;
and (xviii) unpredictability and severity of catastrophic events, including, but not limited to, acts of terrorism or outbreak of war
or hostilities, as well as the Company’s response to any of the aforementioned factors. While the list of factors presented here
is considered representative, such list should not be considered to be a complete statement of all potential risks and uncertainties.
Unlisted factors may present significant additional obstacles to the realization of forward looking statements. Consequences of material
differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business
disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material
adverse effect on the Company’s financial condition, results of operations, or liquidity. The Company does not assume any obligation
to publicly provide revisions or updates to any forward-looking statements, whether as a result of new information, future developments
or otherwise, should circumstances change, except as otherwise required by securities and other applicable laws.
Item 9.01.
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Financial Statements and Exhibits.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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CASPER SLEEP INC.
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By:
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/s/ Jonathan Truppman
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Name:
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Jonathan Truppman
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Title:
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General Counsel and Secretary
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Dated: November 15, 2021
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