As filed with the Securities and Exchange Commission on January 30, 2020

 

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

THE RUBICON PROJECT, INC.

(Exact name of registrant as specified in its charter)

 

 

Delaware

7311

20-8881738

(State or other jurisdiction of
incorporation or organization)

(Primary Standard Industrial Classification Code Number)

(I.R.S. Employer
Identification Number)

 

12181 Bluff Creek Drive, 4th Floor
Los Angeles, CA 90094
(310) 207-0272 

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Jonathan Feldman, Esq.

Co-General Counsel and Secretary

12181 Bluff Creek Drive, 4th Floor
Los Angeles, CA 90094
(310) 207-0272 

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Bradford P. Weirick, Esq.

Gibson, Dunn & Crutcher LLP

333 South Grand Avenue

Los Angeles, California 90071

(213) 229-7000

Aaron Saltz, Esq.

General Counsel

Telaria, Inc.

222 Broadway, 16th Floor

New York, New York 10038

(646) 723-5300

Miguel J. Vega, Esq.

J. Peyton Worley, Esq.

Ian A. Nussbaum, Esq.

Cooley LLP

500 Boylston Street, 14th Floor

Boston, Massachusetts 02116-3736

(617) 937-2300

 

 

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after the effectiveness of this registration statement and the satisfaction or waiver of all other conditions under the merger agreement described herein.

 

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.  ☐

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or 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. ☐

 

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of

Securities to be Registered

Amount

to be

Registered

Proposed

Maximum

Offering Price

Per Share

Proposed

Maximum Aggregate

Offering Price

Amount of

Registration Fee

Common Stock, par value $0.00001 per share

61,848,929(1)

N/A

$575,046,420.32(2)

$74,641.02(3)

 

(1)

The number of shares of common stock, par value $0.00001 per share, of the registrant being registered upon completion of the merger of a wholly owned subsidiary of the registrant with and into Telaria, Inc., referred to as Telaria, described in the joint proxy statement/prospectus contained herein is based upon an estimate of the maximum number of shares of common stock of Telaria, par value $0.0001 per share, referred to as Telaria common stock, presently outstanding or issuable or expected to be issued in connection with the merger, including shares of Telaria common stock underlying Telaria stock options and restricted stock units and shares of Telaria common stock potentially issuable in respect of Telaria stock options and restricted stock units, which is equal to 57,161,672, multiplied by the exchange ratio of 1.082 shares of the registrant’s common stock for each share of Telaria common stock, collectively equal to 61,848,929.

 

(2)

Estimated solely for purposes of calculating the registration fee required by Section 6(b) of the Securities Act of 1933, as amended, referred to as the Securities Act, and calculated in accordance with Rules 457(c) and 457(f)(1) promulgated under the Securities Act. The proposed maximum aggregate offering price is solely for the purpose of calculating the registration fee and was calculated based upon the market value of shares of Telaria common stock (the securities to be cancelled in the merger) in accordance with Rule 457(c) under the Securities Act as follows: the product of (a) $10.06, the average of the high and low prices per share of Telaria common stock on January 24, 2020, as quoted on the New York Stock Exchange and (b) 57,161,672, the estimated maximum number of shares of Telaria common stock that may be exchanged for the shares of Rubicon Project common stock being registered.

 

(3)

Computed in accordance with Section 6(b) of the Securities Act at a rate equal to $129.80 per $1,000,000 of the proposed maximum aggregate offering price.

 

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

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The information in this joint proxy statement/prospectus is not complete and may be changed. A registration statement relating to the securities described in this joint proxy statement/prospectus has been filed with the U.S. Securities and Exchange Commission. We may not sell the securities offered by this joint proxy statement/prospectus until the registration statement filed with the U.S. Securities and Exchange Commission is effective.

 

PRELIMINARY—SUBJECT TO COMPLETION, DATED JANUARY 30, 2020 

 

 

 

MERGER AND SHARE ISSUANCE PROPOSED—YOUR VOTE IS VERY IMPORTANT

 

Dear Rubicon Project Stockholders and Telaria Stockholders:

 

On December 19, 2019, The Rubicon Project, Inc., a Delaware corporation, referred to as Rubicon Project, Madison Merger Corp., a Delaware corporation and wholly owned subsidiary of Rubicon Project, referred to as Merger Sub, and Telaria, Inc., a Delaware corporation, referred to as Telaria, entered into an Agreement and Plan of Merger (as it may be amended from time to time, the “merger agreement,”) pursuant to which, subject to approval of Rubicon Project stockholders and Telaria stockholders and the satisfaction or (to the extent permitted by law) waiver of other specified closing conditions, Rubicon Project and Telaria will combine in an all-stock merger. At the completion of the merger, Merger Sub will merge with and into Telaria, with Telaria surviving the merger and becoming a wholly owned subsidiary of Rubicon Project.

 

If the merger is completed, each share of Telaria common stock (other than shares held by Telaria as treasury stock and shares owned directly or indirectly by Rubicon Project or Merger Sub) will be converted into the right to receive 1.082, referred to as the exchange ratio, fully paid and nonassessable shares of Rubicon Project common stock (and, if applicable, substituting cash in lieu of fractional shares), referred to as the merger consideration, less any applicable withholding taxes. The exchange ratio is fixed and will not be adjusted for changes in the market price of either Rubicon Project common stock or Telaria common stock between the dates of signing of the merger agreement and completion of the merger. If the merger is completed, Rubicon Project stockholders will continue to own their existing shares of Rubicon Project common stock, which will not be adjusted by the merger. For more details on the merger consideration, see “The Merger Agreement—Merger Consideration.”

 

Both Rubicon Project and Telaria common stock is traded on the New York Stock Exchange, referred to as the NYSE, under the symbols “RUBI” and “TLRA”, respectively. As of January 29, 2020, the last trading day before the date of this joint proxy statement/prospectus, the last reported sales price of Rubicon Project common stock at the end of regular trading hours, as reported on the NYSE, was $10.00, and the last reported sales price of Telaria common stock at the end of regular trading hours, as reported on the NYSE, was $10.81. Because the merger consideration is payable in a fixed number of shares of Rubicon Project common stock, with each share of Telaria common stock being exchanged for 1.082 shares of Rubicon Project common stock, the implied value of the merger consideration to be received in exchange for each share of Telaria common stock will fluctuate based on the market price of Rubicon Project common stock until the completion of the merger. As a result, the value of the per share merger consideration that Telaria stockholders will be entitled to receive upon completion of the merger could be greater than, less than or the same as the value of the merger consideration on the date of the accompanying joint proxy statement/prospectus. Accordingly, Rubicon Project and Telaria urge you to obtain updated market quotations for Rubicon Project common shares before deciding whether to vote for the proposals presented in the accompanying joint proxy statement/prospectus.

 

Based on the number of shares of Telaria common stock outstanding and reserved for issuance as of the signing of the merger agreement, and the number of shares of Rubicon Project common stock outstanding and reserved for issuance as of the signing of the merger agreement, we estimate that, immediately following completion of the merger, former holders of Telaria common stock will own approximately 47.1% and pre-merger holders of Rubicon Project common stock will own approximately 52.9% of common stock of the combined company on a fully diluted basis.

 

 
 

 

Each of Rubicon Project and Telaria is holding a special meeting of its stockholders to vote on the proposals necessary to complete the merger. Information about each meeting, the merger and the other business to be considered by stockholders at each special meeting is contained in this joint proxy statement/prospectus. Any stockholder entitled to attend and vote at the applicable special meeting is entitled to appoint a proxy to attend and vote on such stockholder’s behalf. Such proxy need not be a holder of Rubicon Project common stock or Telaria common stock. We urge you to read this joint proxy statement/prospectus and the annexes and documents incorporated by reference carefully. You should also carefully consider the risks that are described in the “Risk Factors” section beginning on page 32.

 

Your vote is very important regardless of the number of shares of Rubicon Project common stock or Telaria common stock that you own. The merger cannot be completed unless (1) Rubicon Project stockholders approve the issuance of Rubicon Project common stock to Telaria stockholders in connection with the merger and (2) Telaria stockholders adopt the merger agreement and approve the transactions contemplated by the merger agreement. 

 

The Rubicon Project board of directors unanimously recommends that Rubicon Project stockholders vote “FOR” each of the proposals to be considered at the Rubicon Project special meeting.  The Telaria board of directors unanimously recommends that Telaria stockholders vote “FOR” each of the proposals to be considered at the Telaria special meeting.

 

Whether or not you plan to attend the Rubicon Project special meeting or the Telaria special meeting, please submit your proxy as soon as possible to make sure that your shares are represented at the applicable meeting.

 

Michael G. Barrett

  

 

 

 

President and Chief Executive Officer

The Rubicon Project, Inc. 

Mark Zagorski

  

 

 

 

Chief Executive Officer

Telaria, Inc. 

 

Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of the merger or the other transactions described in this joint proxy statement/prospectus or the securities to be issued in connection with the merger or determined if this joint proxy statement/prospectus is accurate or complete. Any representation to the contrary is a criminal offense.

 

The accompanying joint proxy statement/prospectus is dated [         ], 2020 and is first being mailed to stockholders of Rubicon Project and stockholders of Telaria on or about [         ], 2020.

 

 
 

 

 

 

 

THE RUBICON PROJECT, INC.
12181 Bluff Creek Drive, 4th Floor
Los Angeles, CA 90094

 

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To be held on [       ], 2020

 

To the Stockholders of The Rubicon Project, Inc.:

 

Notice is hereby given that The Rubicon Project, Inc., referred to as Rubicon Project, will hold a special meeting of its stockholders, referred to as the Rubicon Project special meeting, at Rubicon Project’s headquarters, located at 12181 Bluff Creek Drive, 4th Floor, Los Angeles, California 90094, on [       ], 2020 at [       ] local time, for the following purposes:

 

 

1.

Approval of the Rubicon Project Share Issuance. To vote on a proposal to approve the issuance of shares of Rubicon Project common stock, par value $0.00001 per share, to Telaria stockholders in connection with the merger contemplated by the Agreement and Plan of Merger, dated as of December 19, 2019 (as it may be amended from time to time, the “merger agreement”), by and among Rubicon Project, Madison Merger Corp. and Telaria, Inc., referred to as the Rubicon Project share issuance proposal; and

 

 

2.

Adjournment of the Rubicon Project Special Meeting. To vote on a proposal to approve the adjournment of the Rubicon Project special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Rubicon Project special meeting to approve the Rubicon Project share issuance proposal, referred to as the Rubicon Project adjournment proposal.

 

Rubicon Project will transact no other business at the Rubicon Project special meeting, except such business as may properly be brought before the Rubicon Project special meeting or any adjournment or postponement thereof. Please refer to the joint proxy statement/prospectus of which this notice is a part for further information with respect to the business to be transacted at the Rubicon Project special meeting.

 

The Rubicon Project board of directors, referred to as the Rubicon Project board, has fixed the close of business on [      ], 2020 as the record date for the Rubicon Project special meeting, referred to as the Rubicon Project record date. Only Rubicon Project stockholders of record as of the Rubicon Project record date are entitled to receive notice of, and to vote at, the Rubicon Project special meeting or any adjournment or postponement thereof. 

 

Completion of the merger is conditioned on, among other things, approval of the Rubicon Project share issuance proposal by the Rubicon Project stockholders, which requires the affirmative vote of a majority of the outstanding shares of Rubicon Project common stock present in person or represented by proxy and entitled to vote on the Rubicon Project share issuance proposal at the Rubicon Project special meeting.

 

The Rubicon Project board unanimously approved and declared advisable the merger agreement and the transactions contemplated by the merger agreement, including the merger, and determined that the merger agreement and the transactions contemplated by the merger agreement, including the merger and the Rubicon Project share issuance, are advisable and fair to and in the best interests of Rubicon Project and its stockholders, and unanimously recommends that Rubicon Project stockholders vote:

 

●     “FOR” the Rubicon Project share issuance proposal; and

 

●     “FOR” the Rubicon Project adjournment proposal.

 

 
 

Your vote is very important regardless of the number of shares of Rubicon Project common stock that you own. The votes cast in favor of the Rubicon Project share issuance proposal must represent a majority of the outstanding shares of Rubicon Project common stock present in person or represented by proxy and entitled to vote on the proposal. Accordingly, abstentions will have the same effect as a vote against the Rubicon Project share issuance proposal. Whether or not you expect to attend the Rubicon Project special meeting in person, to ensure your representation at the Rubicon Project special meeting, we urge you to submit a proxy to vote your shares as promptly as possible by (1) visiting the Internet site listed on the Rubicon Project proxy card, (2) calling the toll-free number listed on the Rubicon Project proxy card or (3) submitting your Rubicon Project proxy card by mail by using the provided self-addressed, stamped envelope. Submitting a proxy will not prevent you from voting in person, but it will help to secure a quorum and avoid added solicitation costs. Any holder of Rubicon Project common stock as of the Rubicon Project record date who is present at the Rubicon Project special meeting may vote in person, thereby revoking any previous proxy. In addition, a proxy may also be revoked in writing before the Rubicon Project special meeting in the manner described in the accompanying joint proxy statement/prospectus. If your shares are held in the name of a bank, broker or other nominee, please follow the instructions on the voting instruction card furnished by the bank, broker or other nominee.

 

If you own shares in street name through an account with a bank, broker or other nominee and you decide to attend the Rubicon Project special meeting in person, you cannot vote in person at the Rubicon Project special meeting unless you present a “legal proxy,” issued in your name from your bank, broker or other nominee.

 

The enclosed joint proxy statement/prospectus provides a detailed description of the merger and the merger agreement and the other matters to be considered at the Rubicon Project special meeting. We urge you to carefully read this joint proxy statement/prospectus, including any documents incorporated by reference herein, and the annexes in their entirety. If you have any questions concerning either of the proposals in this notice, the merger or the joint proxy statement/prospectus, would like additional copies or need help voting your shares of Rubicon Project common stock, please contact Rubicon Project’s proxy solicitor:

 

D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Telephone: (888) 541-9895 (toll-free)
(212) 269-5550 (collect)
Email: RUBI@dfking.com

 

By Order of the Board of Directors,

 

   

 

Jonathan Feldman
Secretary

 

[       ], 2020

 

 

 
 

 

 

 

 

TELARIA, INC.
222 Broadway, 16th Floor
New York, NY 10038

 

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To be held on [       ], 2020

 

To the Stockholders of Telaria, Inc.:

 

Notice is hereby given that Telaria, Inc., referred to as Telaria, will hold a special meeting of its stockholders, referred to as the Telaria special meeting, at [the offices of Cooley LLP, 55 Hudson Yards, New York, NY 10001] on [       ], 2020 at [       ] local time, for the following purposes:

 

 

1.

Adoption of the Merger Agreement. To vote on a proposal to adopt the Agreement and Plan of Merger, dated as of December 19, 2019 (as amended from time to time, the “merger agreement”), by and among The Rubicon Project, Inc., Madison Merger Corp. and Telaria, which is further described in the section entitled “The Merger Agreement,” and a copy of which is attached as Annex A to the joint proxy statement/prospectus accompanying this notice, referred to as the Telaria merger proposal;

 

 

2.

Telaria Merger-Related Compensation. To vote on a proposal to approve, by advisory (non-binding) vote, certain compensation arrangements that may be paid or become payable to Telaria’s named executive officers in connection with the merger contemplated by the merger agreement, referred to as the Telaria merger-related compensation proposal; and

 

 

3.

Adjournment of the Telaria Special Meeting. To vote on a proposal to approve the adjournment of the Telaria special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Telaria special meeting to approve the Telaria merger proposal, referred to as the Telaria adjournment proposal.

 

Telaria will transact no other business at the Telaria special meeting, except such business as may properly be brought before the Telaria special meeting or any adjournment or postponement thereof. Please refer to the joint proxy statement/prospectus of which this notice is a part for further information with respect to the business to be transacted at the Telaria special meeting.

 

The Telaria board of directors, referred to as the Telaria board, has fixed the close of business on [       ], 2020 as the record date for the Telaria special meeting, referred to as the Telaria record date. Only Telaria stockholders of record as of the Telaria record date are entitled to receive notice of, and to vote at, the Telaria special meeting or any adjournment or postponement thereof.

 

Completion of the merger is conditioned, among other things, the approval of the Telaria merger proposal, which requires the affirmative vote of holders of a majority of the shares of Telaria common stock outstanding and entitled to vote at the Telaria special meeting.

 

The Telaria board has unanimously approved and declared advisable the merger, the merger agreement and the transactions contemplated in the merger agreement or in connection therewith; determined that the merger, the merger agreement and the transactions contemplated in the merger agreement or in connection therewith, are advisable, fair to and in the best interests of Telaria and its stockholders; and unanimously recommends that Telaria stockholders vote:

 

●     “FOR” the Telaria merger proposal;

 

●     “FOR” the Telaria merger-related compensation proposal; and

 

●     “FOR” the Telaria adjournment proposal.

 

 
 

Your vote is very important regardless of the number of shares of Telaria common stock that you own. A failure to vote your shares, or to provide instructions to your bank, broker or nominee as to how to vote your shares, is the equivalent of a vote against the Telaria merger proposal. Whether or not you expect to attend Telaria special meeting in person, to ensure your representation at the Telaria special meeting, we urge you to submit a proxy to vote your shares as promptly as possible by (1) visiting the Internet site listed on the Telaria proxy card, (2) calling the toll-free number listed on the Telaria proxy card or (3) submitting your Telaria proxy card by mail by using the provided self-addressed, stamped envelope. Submitting a proxy will not prevent you from voting in person, but it will help to secure a quorum and avoid added solicitation costs. Any holder of Telaria common stock as of the Telaria record date who is present at the Telaria special meeting may vote in person, thereby revoking any previous proxy. In addition, a proxy may also be revoked in writing before the Telaria special meeting in the manner described in the accompanying joint proxy statement/prospectus. If your shares are held in the name of a bank, broker or other nominee, please follow the instructions on the voting instruction card furnished by the bank, broker or other nominee.

 

If you own shares in street name through an account with a bank, broker or other nominee and you decide to attend the Telaria special meeting in person, you cannot vote in person at the Telaria special meeting unless you present a “legal proxy,” issued in your name from your bank, broker or other nominee.

 

The enclosed joint proxy statement/prospectus provides a detailed description of the merger and the merger agreement and the other matters to be considered at the Telaria special meeting. We urge you to carefully read this joint proxy statement/prospectus, including any documents incorporated by reference herein, and the annexes in their entirety. If you have any questions concerning either of the proposals in this notice, the merger or the joint proxy statement/prospectus, would like additional copies or need help voting your shares of Telaria common stock, please contact Telaria’s proxy solicitor:

 

D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Telephone: (800) 848-2998 (toll-free)
(212) 269-5550 (collect)
Email: TLRA@dfking.com

 

By Order of the Board of Directors,

 

   

 

Aaron Saltz
General Counsel

 

[       ], 2020

 

 

 
 

ADDITIONAL INFORMATION

 

The joint proxy statement/prospectus incorporates by reference important business and financial information about The Rubicon Project, Inc., referred to as Rubicon Project, and Telaria, Inc., referred to as Telaria, from other documents that are not included in or delivered with the joint proxy statement/prospectus. For a listing of the documents incorporated by reference into the joint proxy statement/prospectus, see “Where You Can Find More Information.”

 

You can obtain any of the documents incorporated by reference into the joint proxy statement/prospectus by requesting them in writing or by telephone as follows:

 

For Rubicon Project Stockholders:
The Rubicon Project, Inc.
12181 Bluff Creek Drive, 4th Floor
Los Angeles, CA 90094
Attention: Investor Relations
(310) 207-0272

For Telaria Stockholders:
Telaria, Inc.
222 Broadway, 16th Floor
New York, NY 10038
Attention: Investor Relations
(646) 723-5300

investor@rubiconproject.com

IR@telaria.com

 

To receive timely delivery of the documents in advance of the Rubicon Project special meeting and the Telaria special meeting, you should make your request no later than [         ], 2020.

 

You may also obtain any of the documents incorporated by reference into the joint proxy statement/prospectus without charge through the Securities and Exchange Commission, referred to as the SEC, website at www.sec.gov. In addition, you may obtain copies of documents filed by Rubicon Project with the SEC on Rubicon Project’s Internet website at http://investor.rubiconproject.com, under the tab “Financials and Filings,” then under the tab “SEC Filings” or by contacting Rubicon Project’s Corporate Secretary at The Rubicon Project, Inc., 12181 Bluff Creek Drive, 4th Floor, Los Angeles, California 90094 or by calling (310) 207-0272. You may also obtain copies of documents filed by Telaria with the SEC on Telaria’s Internet website at http://investor.telaria.com under the tab “SEC Filings” or by contacting Telaria’s Corporate Secretary at Telaria, Inc., 222 Broadway, 16th Floor, New York, New York 10038 or by calling (646) 723-5300.

 

We are not incorporating the contents of the websites of the SEC, Rubicon Project, Telaria or any other entity or any other website into the joint proxy statement/prospectus. We are providing the information about how you can obtain certain documents that are incorporated by reference into the joint proxy statement/prospectus at these websites only for your convenience.

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ABOUT THIS JOINT PROXY STATEMENT/PROSPECTUS

 

This joint proxy statement/prospectus, which forms part of a registration statement on Form S-4 filed with the SEC by Rubicon Project, constitutes a prospectus of Rubicon Project under Section 5 of the Securities Act of 1933, as amended, referred to as the Securities Act, with respect to the shares of Rubicon Project common stock to be issued to Telaria stockholders pursuant to the merger agreement. This document also constitutes a joint proxy statement of each of Rubicon Project and Telaria under Section 14(a) of the Securities Exchange Act of 1934, as amended, referred to as the Exchange Act. It also constitutes a notice of meeting with respect to the Rubicon Project special meeting, at which Rubicon Project stockholders will be asked to consider and vote upon the Rubicon Project share issuance proposal and certain other proposals, and constitutes a notice of meeting with respect to the Telaria special meeting, at which Telaria stockholders will be asked to consider and vote upon the Telaria merger proposal and certain other proposals.

 

Rubicon Project has supplied all information contained or incorporated by reference into this joint proxy statement/prospectus relating to Rubicon Project and Madison Merger Corp., referred to as Merger Sub, and Telaria has supplied all information contained or incorporated by reference into this joint proxy statement/prospectus relating to Telaria.

 

You should rely only on the information contained in or incorporated by reference into this joint proxy statement/prospectus. Rubicon Project and Telaria have not authorized anyone to provide you with information that is different from that contained in or incorporated by reference into this joint proxy statement/prospectus. This joint proxy statement/prospectus is dated as of the date set forth above on the cover page of this joint proxy statement/prospectus, and you should not assume that the information contained in this joint proxy statement/prospectus is accurate as of any date other than such date. Further, you should not assume that the information incorporated by reference into this joint proxy statement/prospectus is accurate as of any date other than the date of the incorporated document. Neither the mailing of this joint proxy statement/prospectus to Rubicon Project stockholders or Telaria stockholders nor the issuance by Rubicon Project of shares of Rubicon Project common stock pursuant to the merger agreement will create any implication to the contrary.

 

This joint proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction in which or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction.

 

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TABLE OF CONTENTS

 

    Page
     
QUESTIONS AND ANSWERS   1
     
SUMMARY   11
     
The Parties to the Merger   11
The Merger and the Merger Agreement   11
Merger Consideration; Exchange Ratio   11
Treatment of Telaria Equity Awards   12
Recommendation of the Rubicon Project Board and its Reasons for the Merger   12
Recommendation of the Telaria Board and its Reasons for the Merger   12
Opinion of Rubicon Project’s Financial Advisor   13
Opinion of Telaria’s Financial Advisor   13
Interests of Rubicon Project’s Directors and Executive Officers in the Merger   13
Interests of Telaria’s Directors and Executive Officers in the Merger   14
Information about the Rubicon Project Special Meeting   14
Information about the Telaria Special Meeting   15
Voting by Rubicon Project Directors and Executive Officers   16
Voting by Telaria Directors and Executive Officers   16
Governance of the Combined Company   16
Regulatory Approvals   18
Conditions to Completion of the Merger   18
Expected Timing of the Merger   19
Ownership of the Combined Company after the Merger   19
No Solicitation; Change of Recommendation   19
Termination of the Merger Agreement   19
Termination Fee   20
No Appraisal Rights   20
Material U.S. Federal Income Tax Consequences of the Merger   20
Accounting Treatment   21
Rights of Telaria Stockholders Will Change as a Result of the Merger   21
NYSE Listing of Rubicon Project Common Stock and Delisting and Deregistration of Telaria Stock   21
Risk Factors   21
     
SELECTED HISTORICAL CONDENSED CONSOLIDATED FINANCIAL DATA OF RUBICON PROJECT   22
     
SELECTED HISTORICAL CONDENSED CONSOLIDATED FINANCIAL DATA OF TELARIA   24
     
SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION   26
     
COMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA   27
     
COMPARATIVE PER SHARE MARKET PRICE INFORMATION   28
     
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS   29
     
RISK FACTORS   32
     
Risks Relating to the Merger   32
Risks Relating to the Combined Company Upon Completion of the Merger   37
Other Risks Relating to Rubicon Project and Telaria   40
     
THE RUBICON PROJECT SPECIAL MEETING   41
     
Date, Time and Place of the Special Meeting   41
Matters to be Considered   41
Recommendation of the Rubicon Project Board   41
Rubicon Project Record Date; Rubicon Project Stockholders Entitled to Vote   41

 

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TABLE OF CONTENTS
(continued)

 

    Page
     
Voting by Rubicon Project’s Directors and Executive Officers   42
Quorum   42
Required Vote   42
Voting via the Internet or by Telephone   43
Voting by Mail   43
Treatment of Abstentions; Failure to Vote   43
Shares Held in Street Name / Broker Non-Votes   43
Attendance at the Rubicon Project Special Meeting and Voting in Person   43
Revocability of Proxies   44
Solicitation of Proxies; Expenses of Solicitation   44
Tabulation of Votes   45
Adjournments   45
Assistance and Additional Information   45
     
RUBICON PROJECT PROPOSALS   46
     
Rubicon Project Proposal 1: Approval of the Rubicon Project Share Issuance   46
Rubicon Project Proposal 2: Adjournment of the Rubicon Project Special Meeting   46
     
THE TELARIA SPECIAL MEETING   47
     
Date, Time and Place of the Special Meeting   47
Matters to be Considered   47
Recommendation of the Telaria Board   47
Telaria Record Date; Telaria Stockholders Entitled to Vote   47
Voting by Telaria Directors and Executive Officers   48
Quorum   48
Required Vote   49
Voting of Proxies by Holders of Record   49
Voting via the Internet or by Telephone   49
Voting by Mail   49
Treatment of Abstentions; Failure to Vote   49
Shares Held in Street Name / Broker Non-Votes   50
Attendance at the Telaria Special Meeting and Voting in Person   50
Revocability of Proxies   50
Solicitation of Proxies; Expenses of Solicitation   51
Tabulation of Votes   51
Adjournments   51
Assistance and Additional Information   51
     
TELARIA PROPOSALS   52
     
Telaria Proposal 1: Adoption of the Merger Agreement   52
Telaria Proposal 2: Telaria Merger-Related Compensation   52
Telaria Proposal 3: Adjournment of the Telaria Special Meeting   52
     
THE PARTIES TO THE MERGER   54
     
Rubicon Project   54
Telaria   54
     
THE MERGER   55
     
Effect of the Merger   55
Merger Consideration   55
Background of the Merger   56
Reasons for the Merger   69

 

ii 

 

  

TABLE OF CONTENTS
(continued)

 

    Page
     
Opinion of Rubicon Project’s Financial Advisor   77
Opinion of Telaria’s Financial Advisor   87
Certain Unaudited Prospective Financial Information Prepared by Rubicon Project or Used at Rubicon Project’s Direction   92
Certain Unaudited Prospective Financial Information Prepared by Telaria or Used at Telaria’s Direction   97
Certain Estimated Synergies   101
Interests of Rubicon Project’s Directors and Executive Officers in the Merger   101
Interests of Telaria’s Directors and Executive Officers in the Merger   105
Governance of the Combined Company after the Merger   110
Regulatory Approvals   111
Timing of the Transaction   111
No Appraisal or Dissenters’ Rights in the Merger   111
Accounting Treatment   112
NYSE Listing; Delisting and Registration of Telaria Common Stock   112
Restrictions on Sales of Rubicon Project Common Stock Received in the Merger   113
     
THE MERGER AGREEMENT   114
     
Explanatory Note Regarding the Merger Agreement   114
Structure of the Merger   114
Merger Consideration   114
Treatment of Telaria Equity Awards   115
Closing and Effectiveness of the Merger   116
Conversion of Shares; Exchange of Certificates; Fractional Shares   116
Governance of the Combined Company   117
Representations and Warranties; Material Adverse Effect   118
Covenants and Agreements   120
Conditions to the Merger   130
Termination   131
Expenses and Termination Fees   132
Amendment and Waiver   134
Third-Party Beneficiaries   134
Governing Law; Waiver of Jury Trial   134
Specific Performance   135
     
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER   136
     
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION   139
     
Unaudited Pro Forma Condensed Combined Balance Sheet   141
Unaudited Pro Forma Condensed Combined Statement of Operations   142
Unaudited Pro Forma Condensed Combined Statement of Operations   143
Notes To Unaudited Pro Forma Condensed Combined Financial Statements   144
     
RUBICON PROJECT BENEFICIAL OWNERSHIP TABLE   149
     
TELARIA BENEFICIAL OWNERSHIP TABLE   151
     
2019 EXECUTIVE AND DIRECTOR COMPENSATION   153
     
Rubicon Project Compensation Discussion and Analysis   153
Rubicon Project Director Compensation   163
Rubicon Project Named Executive Officer Compensation Tables   167
Rubicon Project CEO Pay-Ratio Disclosure   175
Telaria Continuing Director and Officer Information   176
     
DESCRIPTION OF CAPITAL STOCK OF THE COMBINED COMPANY   182
     
COMPARATIVE RIGHTS OF STOCKHOLDERS   185
     

 

iii 

 

 

TABLE OF CONTENTS
(continued)

 

    Page
     
LEGAL MATTERS   198
     
EXPERTS   199
     
DEADLINES FOR SUBMITTING RUBICON PROJECT STOCKHOLDER PROPOSALS   200
     
DEADLINES FOR SUBMITTING TELARIA STOCKHOLDER PROPOSALS   201
     
HOUSEHOLDING OF PROXY MATERIALS   202
     
WHERE YOU CAN FIND MORE INFORMATION   203
     
ANNEXES TO JOINT PROXY STATEMENT/PROSPECTUS   A-i
     
Annex A: Agreement and Plan of Merger   A-i
Annex B: Second Amended and Restated Bylaws of Rubicon Project  

B-1

Annex C: Form of Rubicon Project Voting Agreement   C-1
Annex D: Form of Telaria Voting Agreement   D-1
Annex E: Opinion of Needham & Company, LLC   E-1
Annex F: Opinion of RBC Capital Markets, LLC   F-1
     

iv 

 

 

QUESTIONS AND ANSWERS

 

The following questions and answers briefly address some commonly asked questions about the merger, the merger agreement, the transactions contemplated by the merger agreement, the Rubicon Project special meeting and the Telaria special meeting. They may not include all the information that is important to Rubicon Project stockholders and Telaria stockholders. Rubicon Project stockholders and Telaria stockholders should carefully read this entire joint proxy statement/prospectus, including the annexes and the other documents referred to or incorporated by reference herein.

 

Q:

What is the merger?

 

A:

Rubicon Project, Merger Sub and Telaria have entered into a merger agreement. A copy of the merger agreement is attached as Annex A to this joint proxy statement/prospectus. The merger agreement contains the terms and conditions of the proposed merger between Rubicon Project and Telaria, whereby Rubicon Project and Telaria will combine in an all-stock merger. Under the merger agreement, subject to satisfaction or (to the extent permitted by law) waiver of the conditions set forth in the merger agreement and described hereafter, in each case prior to the completion of the merger, Merger Sub will merge with and into Telaria, with Telaria continuing as the surviving corporation and a wholly owned subsidiary of Rubicon Project. As a result of the merger, shares of Telaria will no longer be publicly traded and will be delisted from the New York Stock Exchange, referred to as the NYSE, and will be deregistered under the Exchange Act. We sometimes refer to Rubicon Project, following completion of the merger, as the combined company.

 

Q:

Why am I receiving these materials?

 

A:

You are receiving this joint proxy statement/prospectus to help you decide how to vote your shares of Rubicon Project common stock or Telaria common stock with respect to the Rubicon Project share issuance proposal or the Telaria merger proposal, respectively, and other matters to be considered at the special meetings.

 

The merger cannot be completed unless, among other things, (1) Rubicon Project stockholders approve the issuance of Rubicon Project common stock to Telaria stockholders in connection with the merger at the Rubicon Project special meeting and (2) Telaria stockholders adopt the merger agreement at the Telaria special meeting.

 

This joint proxy statement/prospectus constitutes both a joint proxy statement of Rubicon Project and Telaria and a prospectus of Rubicon Project. It is a joint proxy statement because each of the Rubicon Project board and the Telaria board is soliciting proxies from its stockholders. It is a prospectus because Rubicon Project will issue shares of its common stock in exchange for outstanding shares of Telaria common stock in the merger. Information about the Rubicon Project special meeting, the Telaria special meeting, the merger, the merger agreement and the other business to be considered by Rubicon Project stockholders at the Rubicon Project special meeting and Telaria stockholders at the Telaria special meeting is contained in this joint proxy statement/prospectus. Rubicon Project stockholders and Telaria stockholders should read this information carefully and in its entirety. The enclosed voting materials allow Rubicon Project stockholders and Telaria stockholders to vote their shares by proxy without attending the applicable special meeting in person.

 

Q:

What matters will be considered at each of the special meetings?

 

A:

Rubicon Project stockholders are being asked to vote on the following proposals:

 

 

1.

Approval of the Rubicon Project Share Issuance. To vote on a proposal to approve the issuance of Rubicon Project common stock, par value $0.00001 per share, to Telaria stockholders in connection with the merger agreement, referred to as the Rubicon Project share issuance proposal; and

 

 

2.

Adjournment of the Rubicon Project Special Meeting. To vote on a proposal to approve the adjournment of the Rubicon Project special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Rubicon Project special meeting to approve the Rubicon Project share issuance proposal, referred to as the Rubicon Project adjournment proposal.

 

1 

 

 

Telaria stockholders are being asked to vote on the following proposals:

 

 

1.

Adoption of the Merger Agreement. To vote on a proposal to adopt the merger agreement, which is further described in the section entitled “The Merger Agreement,” and a copy of which merger agreement is attached as Annex A to this joint proxy statement/prospectus, referred to as the Telaria merger proposal;

 

 

2.

Telaria Merger-Related Compensation. To vote on a proposal to approve, by advisory (non-binding) vote, certain compensation arrangements that may be paid or become payable to Telaria’s named executive officers in connection with the merger contemplated by the merger agreement, referred to as the Telaria merger-related compensation proposal; and

 

 

3.

Adjournment of the Telaria Special Meeting. To vote on a proposal to approve the adjournment of the Telaria special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Telaria special meeting to approve the Telaria merger proposal, referred to as the Telaria adjournment proposal.

 

Approval of the Rubicon Project share issuance proposal by Rubicon Project stockholders and approval of the Telaria merger proposal by Telaria stockholders are required for completion of the merger.

 

Q:

What will Telaria stockholders receive in the merger?

 

A:

If the merger is completed, each share of Telaria common stock (other than shares held by Telaria as treasury stock and shares owned directly or indirectly by Rubicon Project or Merger Sub) will be converted into the right to receive the merger consideration, which is the right to receive 1.082, referred to as the exchange ratio, fully paid and nonassessable shares of Rubicon Project common stock, and, if applicable, substituting cash in lieu of fractional shares. The merger consideration is described in more detail in “The Merger Agreement—Merger Consideration.”

 

Q:

What will Rubicon Project stockholders receive in the merger?

 

A:

Rubicon Project stockholders will not receive any merger consideration, and their shares of Rubicon Project common stock will remain outstanding and will constitute shares of the combined company.

 

Q:

What respective equity stakes will Rubicon Project stockholders and Telaria stockholders hold in the combined company immediately following the merger?

 

A:

As of the date of this joint proxy statement/prospectus, based on the number of shares of Rubicon Project common stock and Telaria common stock outstanding and reserved for issuance as of the signing of the merger agreement, we estimate that, immediately following completion of the merger, pre-merger holders of Rubicon Project common stock will own approximately 52.9% and former holders of Telaria common stock will own approximately 47.1% of the common stock of the combined company on a fully diluted basis. The exact equity stake of Rubicon Project stockholders and Telaria stockholders in the combined company immediately following the merger will depend on the number of shares of Rubicon Project common stock and Telaria common stock issued and outstanding immediately prior to the merger.

 

Q:

Will the market value of the merger consideration change between the date of this joint proxy statement/prospectus and the time the merger is completed?

 

A:

Yes. Although the number of shares of Rubicon Project common stock that holders of Telaria common stock will receive is fixed, the market value of the merger consideration will fluctuate between the date of this joint proxy statement/prospectus and the completion of the merger based upon the trading price of shares of Rubicon Project common stock. Any fluctuation in the trading price of shares of Rubicon Project common stock after the date of this joint proxy statement/prospectus will change the market value of the shares of Rubicon Project common stock that holders of Telaria common stock will receive.

 

Q:

When do Rubicon Project and Telaria expect to complete the transaction?

 

A:

Rubicon Project and Telaria are working to complete the transaction as soon as practicable. We currently expect that the merger will be completed in the first half of 2020. Neither Rubicon Project nor Telaria can predict, however, the actual date on which the merger will be completed because it is subject to conditions beyond each company’s control, including obtaining the necessary regulatory approvals.

 

See “The Merger Agreement—Conditions to the Merger.”

 

2 

 

 

Q:

What vote is required to approve each proposal at the Rubicon Project special meeting?

 

A:

The Rubicon Project share issuance proposal: The affirmative vote of a majority of the outstanding shares of Rubicon Project common stock present in person or represented by proxy and entitled to vote on the Rubicon Project share issuance proposal at the Rubicon Project special meeting, referred to as the Rubicon Project stockholder approval, is required to approve the Rubicon Project share issuance proposal.

 

Rubicon Project adjournment proposal: The affirmative vote of a majority of the outstanding shares of Rubicon Project common stock present in person or represented by proxy and entitled to vote on the Rubicon Project adjournment proposal at the Rubicon Project special meeting is required to approve the Rubicon Project adjournment proposal.

 

Q:

What vote is required to approve each proposal at the Telaria special meeting?

 

A:

The Telaria merger proposal: The affirmative vote of the holders of a majority of the shares of Telaria common stock outstanding and entitled to vote at the Telaria special meeting, referred to as the Telaria stockholder approval, is required to approve the Telaria merger proposal.

 

The Telaria merger-related compensation proposal: The affirmative vote of the holders of a majority of the shares of Telaria common stock present in person or represented by proxy at the Telaria special meeting and entitled to vote on the Telaria merger-related compensation proposal, assuming a quorum, is required to approve the Telaria merger-related compensation proposal.

 

The Telaria adjournment proposal: The affirmative vote of the holders of a majority of the shares of Telaria common stock present in person or represented by proxy at the Telaria special meeting is required to approve the Telaria adjournment proposal.

 

Q:

Why are Telaria stockholders being asked to consider and vote on a proposal to approve, by advisory (non-binding) vote, the Telaria merger-related executive compensation?

 

A:

Under SEC rules, Telaria is required to seek an advisory (non-binding) vote with respect to the compensation that may be paid or become payable to its named executive officers that is based on, or otherwise relates to, the merger.

 

Q:

What happens if the Telaria merger-related compensation proposal is not approved?

 

A:

Approval of the Telaria merger-related compensation proposal is not a condition to completion of the merger, and because the vote on the Telaria merger-related compensation proposal is advisory only, it will not be binding on Telaria. Accordingly, if the merger is approved and the other conditions to closing are satisfied or waived, the merger will be completed even if the Telaria merger-related compensation proposal is not approved. If the Telaria merger proposal is approved and the Rubicon Project share issuance proposal is approved and the merger is completed, the Telaria merger-related compensation will be payable to Telaria’s named executive officers, subject only to the conditions applicable thereto, regardless of the outcome of the vote on the Telaria merger-related compensation proposal.

 

Q:

Do any of Rubicon Project’s or Telaria’s directors or executive officers have interests in the merger that may differ from those of Rubicon Project stockholders or Telaria stockholders?

 

A:

Certain of Rubicon Project’s non-employee directors and executive officers and Telaria’s non-employee directors and executive officers have certain interests in the merger that may be different from, or in addition to, the interests of Rubicon Project stockholders and Telaria stockholders generally. The Rubicon Project board was aware of the interests of Rubicon Project’s directors and executive officers, the Telaria board was aware of the interests of Telaria’s directors and executive officers, and each board considered such interests, among other matters, when it approved the merger agreement and in making its recommendations to its stockholders. For more information regarding these interests, see the sections entitled “The Merger—Interests of Rubicon Project’s Directors and Executive Officers in the Merger” and “The Merger—Interests of Telaria’s Directors and Executive Officers in the Merger.”

 

Q:

How many votes do I have?

 

Each Rubicon Project stockholder is entitled to one vote for each share of Rubicon Project common stock held of record as of the close of business on [      ], 2020, referred to as the Rubicon Project record date, and each Telaria stockholder is entitled to one vote for each share of Telaria common stock held of record as of the close of business on [      ], 2020, referred to as the Telaria record date.

 

3 

 

 

As of the close of business on the Rubicon Project record date, there were [         ] shares of Rubicon Project common stock outstanding. As of the close of business on the Telaria record date, there were [         ] shares of Telaria common stock outstanding. As summarized below, there are some important distinctions between shares held of record and those owned beneficially in street name.

 

Q:

What constitutes a quorum for the Rubicon Project special meeting?

 

A:

The holders of a majority of the outstanding shares of Rubicon Project common stock entitled to vote at the Rubicon Project special meeting, present in person or represented by proxy, will constitute a quorum for the transaction of business at the Rubicon Project special meeting. Abstentions (which are described below) will count for the purpose of determining the presence of a quorum for the transaction of business at the Rubicon Project special meeting.

 

Q:

What constitutes a quorum for the Telaria special meeting?

 

A:

The holders of a majority of the outstanding shares of Telaria common stock entitled to vote, present in person, by remote communication, if applicable, or by proxy, will constitute a quorum for the transaction of business at the Telaria special meeting. Abstentions (which are described below) will count for the purpose of determining the presence of a quorum for the transaction of business at the Telaria special meeting.

 

Q:

How does the Rubicon Project Board recommend that Rubicon Project stockholders vote?

 

A:

The Rubicon Project board unanimously recommends that Rubicon Project stockholders vote: “FOR” the Rubicon Project share issuance proposal and “FOR” the Rubicon Project adjournment proposal.

 

Q:

How does the Telaria Board recommend that Telaria stockholders vote?

 

A:

The Telaria board unanimously recommends that Telaria stockholders vote: “FOR” the Telaria merger proposal, “FOR” the Telaria merger-related compensation proposal and “FOR” the Telaria adjournment proposal.

 

Q:

Why did the Rubicon Project board approve the merger agreement and the transactions contemplated by the merger agreement, including the merger?

 

A:

For information regarding the Rubicon Project board’s reasons for approving the merger agreement and the transactions contemplated by the merger agreement, including the merger, and recommending that Rubicon Project stockholders approve the Rubicon Project share issuance proposal, see the section entitled “The Merger—Rubicon Project Board’s Recommendation and Reasons for the Merger.”

 

Q:

Why did the Telaria board approve the merger agreement and the transactions contemplated by the merger agreement, including the merger?

 

A:

For information regarding the Telaria board’s reasons for approving and recommending adoption of the merger agreement and the transactions contemplated by the merger agreement, including the merger, see the section entitled “The Merger—Telaria Board’s Recommendation and Reasons for the Merger.”

 

Q:

What if I hold shares in both Rubicon Project and Telaria?

 

A:

If you hold shares of both Rubicon Project common stock and Telaria common stock, you will receive two separate packages of proxy materials. A vote cast as a holder of Rubicon Project common stock will not count as a vote cast as a holder of Telaria common stock, and a vote cast as a holder of Telaria common stock will not count as a vote cast as a holder of Rubicon Project common stock. Therefore, please submit separate proxies for your shares of Rubicon Project common stock and your shares of Telaria common stock.

 

Q:

What do I need to do now?

 

A:

After carefully reading and considering the information contained in this joint proxy statement/prospectus, please vote your shares as soon as possible so that your shares will be represented at the Rubicon Project special meeting or Telaria special meeting, as applicable. Please follow the instructions set forth on the Rubicon Project proxy card or the Telaria proxy card, as applicable, or on the voting instruction form provided by the record holder if your shares are held in the name of your bank, broker or other nominee. 

 

4 

 

 

Q:

Does my vote matter?

 

A:

Yes. The merger cannot be completed unless the Rubicon Project share issuance proposal is approved by the affirmative vote of a majority of the outstanding shares of Rubicon Project common stock present in person or represented by proxy and entitled to vote on the Rubicon Project share issuance proposal at the Rubicon Project special meeting and the Telaria merger proposal is approved by the affirmative vote of the holders of a majority of all of the shares of Telaria common stock outstanding and entitled to vote at the Telaria special meeting.

 

Q:

How do I vote?

 

A:

If you are a stockholder of record of Rubicon Project as of the Rubicon Project record date, you are entitled to receive notice of, and cast a vote at, the Rubicon Project special meeting. If you are a stockholder of record of Telaria as of the Telaria record date, you are entitled to receive notice of, and cast a vote at, the Telaria special meeting. If you are a stockholder of record, you may submit your proxy before the Rubicon Project special meeting or the Telaria special meeting in one of the following ways:

 

Telephone voting—use the toll-free number shown on your proxy card;

 

Via the Internet—visit the website shown on your proxy card to vote via the Internet; or

 

Mail—complete, sign, date and return the enclosed proxy card in the enclosed postage-paid envelope.

 

If you are a stockholder of record, you may also cast your vote in person at the applicable special meeting.

 

If your shares are held in street name, through a bank, broker or other nominee, that institution will send you separate instructions describing the procedure for voting your shares. Street name stockholders who wish to vote at the Rubicon Project special meeting or the Telaria special meeting will need to obtain a legal proxy form from their bank, broker or other nominee.  

 

Q:

What is the difference between holding shares as stockholder of record and as a beneficial owner?

 

A:

You are a “stockholder of record” if your shares are registered directly in your name with Rubicon Project’s and Telaria’s transfer agent, American Stock Transfer & Trust Company, referred to as AST. As the stockholder of record, you have the right to vote in person at the Rubicon Project special meeting or the Telaria special meeting, as applicable. You may also vote by Internet, telephone or mail, as described above under the heading “How do I vote?” You are deemed to beneficially own shares in “street name” if your shares are held by a bank, broker or other nominee. Your bank, broker or other nominee will send you, as the beneficial owner, instructions for voting your shares. You should follow the instructions provided by them to vote your shares. If you beneficially own your shares, you are invited to attend the Rubicon Project special meeting or Telaria special meeting, as applicable; however, you may not vote your shares in person at the Rubicon Project special meeting or the Telaria special meeting, as applicable, unless you obtain a “legal proxy” from your bank, broker or other nominee that holds your shares, giving you the right to vote the shares at the Rubicon Project special meeting or the Telaria special meeting, as applicable.

 

Q:

If my shares are held in “street name” by a bank, broker or other nominee, will my bank, broker or other nominee vote my shares for me?

 

A:

If your shares are held in “street name” by a bank, broker or other nominee, you must provide the record holder of your shares with instructions on how to vote your shares. Please follow the voting instructions provided by your bank, broker or other nominee. Please note that you may not vote shares held in street name by returning a proxy card directly to Rubicon Project or Telaria, as applicable, or by voting in person at the Rubicon Project special meeting or Telaria special meeting, as applicable, unless you provide a “legal proxy,” which you must obtain from your bank, broker or other nominee. Your bank, broker or other nominee is obligated to provide you with a voting instruction card for you to use.

 

If you hold your shares through a brokerage account, your broker typically has the authority to vote your shares in its discretion on routine proposals when it has not received voting instructions from you. However, a broker is not allowed to exercise its voting discretion with respect to the approval of matters determined to be non-routine without specific instructions from the beneficial owner. It is expected that all proposals to be voted on at each of the Rubicon Project special meeting and the Telaria special meeting are non-routine matters. Accordingly, if you hold your shares in street name through a brokerage account, your broker will not be able to exercise its discretion to vote uninstructed shares on any of the proposals presented at the Rubicon Project special meeting or the Telaria special meeting. As a result, we do not expect any broker non-votes at the Rubicon Project special meeting or the Telaria special meeting.

 

5 

 

 

If you are a beneficial owner of Rubicon Project shares and you do not instruct your bank, broker or other nominee on how to vote your shares:

 

your bank, broker, or other nominee may not vote your shares on the Rubicon Project share issuance proposal, which will have no effect on the outcome of such proposal; and

 

your bank, broker or other nominee may not vote your shares on the Rubicon Project adjournment proposal, which will have no effect on the outcome of such proposal.

 

If you are a beneficial owner of Telaria shares and you do not instruct your bank, broker or other nominee on how to vote your shares:

 

your bank, broker or other nominee may not vote your shares on the Telaria merger proposal, which broker non-votes, if any, will have the same effect as a vote “AGAINST” such proposal;

 

your bank, broker or other nominee may not vote your shares on the Telaria merger-related compensation proposal, which broker non-votes, if any, will have no effect on the outcome of such proposal; and

 

your bank, broker or other nominee may not vote your shares on the Telaria adjournment proposal, which broker non-votes, if any, will have no effect on the outcome of such proposal.

 

Q:

May I attend the Rubicon Project special meeting or the Telaria special meeting in person?

 

A:

You or your authorized proxy may attend the Rubicon Project special meeting in person if you were a registered or beneficial stockholder of Rubicon Project common stock as of the Rubicon Project record date.

 

You or your authorized proxy may attend the Telaria special meeting in person if you were a registered or beneficial stockholder of Telaria common stock as of the Telaria record date.

 

Q:

When and where will each of the Rubicon Project special meeting and Telaria special meeting take place? What must I bring to attend the Rubicon Project special meeting or the Telaria special meeting?

 

A:

The Rubicon Project special meeting will be held at Rubicon Project’s headquarters, located at 12181 Bluff Creek Drive, 4th Floor, Los Angeles, California 90094 on [         ] at [         ] local time. Subject to space availability, all Rubicon Project stockholders as of the Rubicon Project record date, or their duly appointed proxies, may attend the Rubicon Project special meeting. You will need to obtain an admission ticket in advance to attend the Rubicon Project special meeting. To do so, please make your request by mail to Office of the Corporate Secretary, 12181 Bluff Creek Drive, 4th Floor, Los Angeles, California 90094, by email at corporatesecretary@rubiconproject.com or by phone at (310) 207-0272. Rubicon Project’s Corporate Secretary must receive your request for an admission ticket on or before [         ]. Seating will be limited and requests for tickets will be processed in the order in which they are received.

 

If you own shares in street name through an account with a bank, broker or other nominee, then send proof of your Rubicon Project share ownership as of the Rubicon Project record date (for example, a brokerage firm account statement or a legal proxy from your intermediary) along with your ticket request. If you are not sure what proof to send, check with your intermediary.

 

If your shares are registered in your name with Rubicon Projects stock registrar and transfer agent, AST, no proof of ownership is required because Rubicon Project can verify your ownership.

 

For security reasons, be prepared to show a form of government-issued photo identification when presenting your ticket for admission to the Rubicon Project special meeting. If you forget to bring your ticket, you will be admitted only if you provide photo identification. If you do not request a ticket in advance, you will be admitted only if space is available and you provide photo identification and satisfactory evidence that you were a stockholder of Rubicon Project common stock as of the Rubicon Project record date. If you need special assistance at the Rubicon Project special meeting because of a disability, please contact Rubicon Projects Corporate Secretarys office.

 

6 

 

 

The Telaria special meeting will be held at [the offices of Cooley LLP, 55 Hudson Yards, New York, NY 10001] on [         ], 2020 at [         ] local time. All Telaria stockholders as of the Telaria record date, or their duly appointed proxies, may attend the Telaria special meeting. Please allow ample time for the check-in procedures.

 

Telaria stockholders and their proxies will be admitted to the Telaria special meeting beginning at [         ] on [         ], 2020. For security reasons, be prepared to show a form of government-issued photo identification, such as a driver’s license, state-issued identification card, or passport. If your shares are registered in your name with Telaria’s stock registrar and transfer agent, AST, your ownership will be verified against the list of record holders as of the record date prior to being admitted to the meeting. If you own shares in street name through an account with a bank, broker or other nominee, then you will need to provide proof of your Telaria share ownership as of the Telaria record date, such as a letter from your broker or nominee or a brokerage firm account statement reflecting your stock ownership as of the record date of the meeting or a legal proxy from your intermediary.  You will only be admitted if you provide photo identification and satisfactory evidence that you were a stockholder of Telaria common stock as of the Telaria record date.  If you need special assistance at the Telaria special meeting because of a disability, please contact Telaria’s Corporate Secretarys Office at 222 Broadway, 16th Floor, New York, New York 10038.

 

Q:

What if I fail to vote or abstain?

 

A:

For purposes of the Rubicon Project special meeting, an abstention occurs when a Rubicon Project stockholder attends the Rubicon Project special meeting in person and does not vote or returns a proxy with an “abstain” instruction.

 

Rubicon Project share issuance proposal: An abstention will have the same effect as a vote cast AGAINST the Rubicon Project share issuance proposal. If a Rubicon Project stockholder is not present in person at the Rubicon Project special meeting and does not respond by proxy, it will have no effect on the vote count for such proposal.

 

Rubicon Project adjournment proposal: An abstention will have the same effect as a vote cast AGAINST the Rubicon Project adjournment proposal. If a Rubicon Project stockholder is not present in person at the Rubicon Project special meeting and does not respond by proxy, it will have no effect on the vote count for such proposal.

 

For purposes of the Telaria special meeting, an abstention occurs when a Telaria stockholder attends the Telaria special meeting in person and does not vote or returns a proxy with an abstain instruction.

 

Telaria merger proposal: An abstention will have the same effect as a vote cast AGAINST the Telaria merger proposal. If a Telaria stockholder is not present in person at the Telaria special meeting and does not respond by proxy, it will have the same effect of a vote cast AGAINST such proposal.

 

Telaria merger-related compensation proposal: An abstention will have the same effect as a vote cast AGAINST the Telaria merger-related compensation proposal. If a Telaria stockholder is not present in person at the Telaria special meeting and does not respond by proxy, it will have no effect on the outcome of the merger-related compensation proposal.

 

Telaria adjournment proposal: An abstention will have the same effect as a vote cast AGAINST the Telaria adjournment proposal. If a Telaria stockholder is not present in person at the Telaria special meeting and does not respond by proxy, it will have no effect on the vote count for such proposal.

 

Q:

What will happen if I return my proxy without indicating how to vote?

 

A:

If you are a stockholder of record and you sign and return your proxy card without indicating how to vote on any particular proposal, the common stock represented by your proxy will be voted as recommended by the Rubicon Project board or the Telaria board, as applicable, with respect to that proposal. See above under the heading “If my shares are held in “street name” by a bank, broker or other nominee, will my bank, broker or other nominee vote my shares for me?” if your shares are held in street name.

 

7 

 

 

Q:

May I change or revoke my vote after I have delivered my proxy or voting instruction card?

 

A:

Yes. If you are a stockholder of record, you may change or revoke your vote at the Rubicon Project special meeting or the Telaria special meeting, as applicable, as described herein. You may do this in one of the following four ways:

 

by logging onto the Internet website specified on your proxy card in the same manner you would to submit your proxy electronically or by calling the telephone number specified on your proxy card, in each case, if you are eligible to do so;

 

by sending a notice of revocation to the corporate secretary of Rubicon Project or Telaria, as applicable;

 

by sending a completed proxy card bearing a later date than your original proxy card; or

 

by attending the Rubicon Project special meeting or the Telaria special meeting, as applicable, and voting in person.

 

If you choose the first method, you must take the described action no later than 11:59 p.m. Eastern time on the day before the Rubicon Project special meeting or the Telaria special meeting, as applicable. If you choose the second or third method, your notice of revocation or completed proxy card bearing a later date than your original proxy card must be received by 11:59 p.m. Eastern time on the day before the Rubicon Project special meeting or the Telaria special meeting, as applicable.

 

If your shares are held in an account at a bank, broker or other nominee and you have delivered your voting instruction card or otherwise given instruction on how to vote your shares to your bank, broker or other nominee, you should contact your bank, broker or other nominee to change your vote.

 

Q:

What are the material U.S. federal income tax consequences of the merger?

 

A:

The obligations of the parties to complete the merger are conditioned on, among other things, the receipt by each of Rubicon Project and Telaria of an opinion from its respective nationally recognized outside counsel (or other nationally recognized outside counsel reasonably acceptable to the parties), each dated and based on the facts and law existing as of the closing date of the merger, that for U.S. federal income tax purposes the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, referred to as the Code. Accordingly, it is expected that U.S. holders of shares of Telaria common stock generally will not recognize any gain or loss for U.S. federal income tax purposes upon receipt of Rubicon Project common stock in exchange for Telaria common stock in the merger (other than gain or loss, if any, with respect to any cash received in lieu of a fractional share of Rubicon Project common stock). For more information regarding the material U.S. federal income tax consequences of the merger, see “The Merger—Material U.S. Federal Income Tax Consequences of the Merger.”

 

Q:

Where can I find the voting results of the Rubicon Project special meeting and the Telaria special meeting?

 

A:

The preliminary voting results will be announced at each of the Rubicon Project special meeting and the Telaria special meeting. In addition, within four business days following certification of the final voting results, each of Rubicon Project and Telaria intends to file the final voting results with the SEC on a Current Report on Form 8-K.

 

Q:

Are holders of Rubicon Project common stock entitled to appraisal rights?

 

A:

No. Holders of Rubicon Project common stock are not entitled to appraisal rights under the General Corporation Law of the State of Delaware, as amended, referred to as the DGCL. For more information, see the section entitled “The Merger—No Appraisal or Dissenters’ Rights in the Merger.”

 

Q:

Are holders of Telaria common stock entitled to appraisal rights?

 

A:

No. Holders of Telaria common stock are not entitled to appraisal rights under the DGCL. For more information, see the section entitled “The Merger—No Appraisal or Dissenters’ Rights in the Merger.”

 

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Q:

What happens if I sell my shares of Rubicon Project common stock after the Rubicon Project record date but before the Rubicon Project special meeting?

 

A:

The Rubicon Project record date for the Rubicon Project special meeting (the close of business on [         ], 2020) is earlier than the date of the Rubicon Project special meeting and earlier than the date that the merger is expected to be completed. If you sell or otherwise transfer your shares of Rubicon Project common stock after the Rubicon Project record date but before the date of the Rubicon Project special meeting, you will retain your right to vote at the Rubicon Project special meeting.

 

Q:

What happens if I sell my shares of Telaria common stock after the Telaria record date but before the Telaria special meeting?

 

A:

The Telaria record date for the Telaria special meeting (the close of business on [         ], 2020) is earlier than the date of the Telaria special meeting and earlier than the date that the merger is expected to be completed. If you sell or otherwise transfer your shares of Telaria common stock after the Telaria record date but before the date of the Telaria special meeting, you will retain your right to vote at the Telaria special meeting. However, you will not have the right to receive the merger consideration to be received by Telaria stockholders in the merger. In order to receive the merger consideration, you must hold your shares through completion of the merger.

 

Q:

Are there any risks that I should consider in deciding whether to vote in favor of the Rubicon Project share issuance proposal or the Telaria merger proposal, or the other proposals to be considered at the Rubicon Project special meeting or the Telaria special meeting, as applicable?

 

A:

Yes. You should read and carefully consider the risk factors set forth in the section entitled “Risk Factors” beginning on page 32. You also should read and carefully consider the risk factors of Rubicon Project and Telaria contained in the documents that are incorporated by reference into this joint proxy statement/prospectus.

 

Q:

What are the conditions to completion of the merger?

 

A:

In addition to the approval of the Rubicon Project share issuance proposal by Rubicon Project stockholders and of the Telaria merger proposal by Telaria stockholders as described above, completion of the merger is subject to the satisfaction or (to the extent permitted by law) waiver of a number of other conditions, including:

 

the expiration or termination of the applicable waiting period under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended, referred to as the HSR Act;

 

the effectiveness of the registration statement on Form S-4 of which this joint proxy statement/prospectus forms a part;

 

approval of the listing on the NYSE of the Rubicon Project common stock forming part of the merger consideration;

 

the absence of an injunction or law prohibiting the merger;

 

receipt by each of Rubicon Project and Telaria of an opinion of its respective outside counsel to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code;

 

the accuracy of the representations and warranties of Rubicon Project or Telaria, as applicable, made in the merger agreement (subject to the materiality standards set forth in the merger agreement);

 

the performance by Rubicon Project or Telaria, as applicable, of its covenants and obligations under the merger agreement in all material respects; and

 

delivery of an officer’s certificate by the other party certifying satisfaction of the conditions described in the preceding two bullet points.

 

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Q:

Whom should I contact if I have any questions about the proxy materials or voting?

 

A:

If you have any questions about the proxy materials, or if you need assistance submitting your proxy or voting your shares or need additional copies of this joint proxy statement/prospectus or the enclosed Rubicon Project proxy card or Telaria proxy card, as applicable, you should contact D.F. King & Co., Inc., referred to as D.F. King, the proxy solicitation agent for each of Rubicon Project and Telaria:

 

if you are a Rubicon Project stockholder:

if you are a Telaria stockholder:

 

D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Telephone: (888) 541-9895 (toll-free)
(212) 269-5550 (collect)
Email: RUBI@dfking.com

D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Telephone: (800) 848-2998 (toll-free)
(212) 269-5550 (collect)
Email: TLRA@dfking.com

 

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SUMMARY

 

This summary highlights selected information contained in this joint proxy statement/prospectus and does not contain all the information that may be important to you. Rubicon Project and Telaria urge you to read carefully this joint proxy statement/prospectus in its entirety, including the annexes. Additional, important information, which Rubicon Project and Telaria also urge you to read, is contained in the documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”

 

The Parties to the Merger (page 54)

 

Rubicon Project

 

Rubicon Project provides a technology solution to automate the purchase and sale of digital advertising inventory for buyers and sellers. Rubicon Project’s platform features applications and services for digital advertising sellers, including websites, mobile applications and other digital media properties, and their representatives, to sell their digital advertising inventory; applications and services for buyers, including advertisers, agencies, agency trading desks, and demand side platforms, or DSPs, to buy digital advertising inventory; and a marketplace over which such transactions are executed. 

 

Rubicon Project’s principal executive offices are located at 12181 Bluff Creek Drive, 4th Floor, Los Angeles, California 90094, and its telephone number is (310) 207-0272.

 

Rubicon Project common stock is publicly traded on the NYSE under the ticker symbol “RUBI.”

 

Telaria

 

Telaria provides a fully programmatic software platform for premium publishers to manage and monetize their video advertising. Telaria’s platform is built specifically for digital video and to support the unique requirements of connected TV, referred to as CTV, mobile and over-the-top content. Telaria provides publishers with real-time analytics, data and decisioning tools to control their video advertising business and offers a holistic monetization solution to optimize yield across a publisher’s entire supply of digital video inventory.

 

Telaria’s principal executive offices are located at 222 Broadway, 16th Floor, New York, New York 10038 and its telephone number is (646) 723-5300.

 

Telaria common stock is publicly traded on the NYSE under the ticker symbol “TLRA.”

 

Merger Sub

 

Merger Sub, a direct wholly owned subsidiary of Rubicon Project, is a Delaware corporation incorporated on December 18, 2019 for the purpose of effecting the merger. Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement.

 

The Merger and the Merger Agreement (page 114)

 

The terms and conditions of the merger are contained in the merger agreement, a copy of which is attached as Annex A to this joint proxy statement/prospectus. We encourage you to read the merger agreement carefully and in its entirety, as it is the primary legal document that governs the merger.

 

Subject to the terms and conditions of the merger agreement and in accordance with the DGCL, Merger Sub will merge with and into Telaria, with Telaria continuing as the surviving corporation and a wholly owned subsidiary of Rubicon Project. Following the merger, Telaria common stock will be delisted from the NYSE, deregistered under the Exchange Act and will cease to be publicly traded.

 

Merger Consideration; Exchange Ratio (page 114)

 

At the completion of the merger, each share of Telaria common stock that is issued and outstanding immediately prior to the completion of the merger (except for shares held by Telaria as treasury stock and shares owned directly or indirectly by Rubicon Project or Merger Sub) will be converted into the right to receive 1.082 fully paid and nonassessable shares of Rubicon Project common stock, and, if applicable, substituting cash in lieu of fractional shares. The exchange ratio is fixed, which means that it will not change between now and the completion of the merger, regardless of whether the market price of either Rubicon Project common stock or Telaria common stock changes or whether operating results of either entity come in higher or lower than expected. The market value of Rubicon Project common stock at the time of completion of the merger could be greater than, less than or the same as the market value of Rubicon Project common stock on the date of this joint proxy statement/prospectus. We urge you to obtain current market quotations for the shares of common stock of Rubicon Project and Telaria.

 

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For more details on the exchange ratio, see “The Merger Agreement—Merger Consideration.”

 

Treatment of Telaria Equity Awards (page 115)

 

Telaria Stock Options

 

Upon completion of the merger, each then-outstanding Telaria stock option (whether vested or unvested) will automatically be assumed by Rubicon Project and converted into an option to purchase (1) that number of shares of Rubicon Project common stock, rounded down to the nearest whole number of shares, equal to the product of (a) the number of shares of Telaria common stock subject to such Telaria stock option and (b) the exchange ratio, (2) at an exercise price per share of Rubicon Project common stock, rounded up to the nearest whole cent, equal to the quotient of (a) the exercise price per share of Telaria common stock of such Telaria stock option immediately prior to the completion of the merger and (b) the exchange ratio.

 

Telaria RSU Awards

 

Upon completion of the merger, each then-outstanding award of restricted stock units relating to Telaria common stock, referred to as a Telaria RSU Award, will, automatically: (1) if such Telaria RSU Award either becomes vested at the completion of the merger pursuant to its terms or is vested at the completion of the merger, be cancelled and converted into the right to receive a number of shares of Rubicon Project common stock equal to the product of (a) the number of shares of Telaria common stock subject to such Telaria RSU Award immediately prior to the completion of the merger and (b) the exchange ratio (plus a cash payment in respect of any fractional shares), less applicable tax withholding, or (2) if such Telaria RSU Award is not and does not become vested at the completion of the merger pursuant to its terms, be assumed by Rubicon Project and converted into an award of Rubicon Project restricted stock units with the same terms and conditions that applied to such Telaria RSU Award immediately prior to the completion of the merger, relating to a number of shares of Rubicon Project common stock equal to the product, rounded down to the nearest whole number of shares, of (a) the number of shares of Telaria common stock subject to such Telaria RSU Award immediately prior to the completion of the merger and (b) the exchange ratio.

 

For additional information with respect to treatment of Telaria equity awards, please see “The Merger Agreement—Treatment of Telaria Equity Awards.”

 

Recommendation of the Rubicon Project Board and its Reasons for the Merger (page 69)

 

After careful consideration of various factors described in “The Merger—Rubicon Project Board’s Recommendation and Reasons for the Merger,” the Rubicon Project board unanimously determined that the merger agreement and the transactions contemplated by the merger agreement (including the merger, certain governance arrangements and the Rubicon Project share issuance) are advisable and fair to and in the best interests of Rubicon Project and its stockholders, and the Rubicon Project board unanimously recommends that holders of Rubicon Project common stock vote:

 

“FOR” the Rubicon Project share issuance proposal; and

 

“FOR” the Rubicon Project adjournment proposal.

 

Recommendation of the Telaria Board and its Reasons for the Merger (page 69)

 

After careful consideration of various factors described in “The Merger—Telaria Board’s Recommendations and Reasons for the Merger,” the Telaria board unanimously determined that the merger agreement and the transactions contemplated by the merger agreement (including the merger) are fair to and in the best interests of Telaria and its stockholders, and the Telaria board unanimously recommends that holders of Telaria common stock vote:

 

“FOR” the Telaria merger proposal;

 

“FOR” the Telaria merger-related compensation proposal; and

 

“FOR” the Telaria adjournment proposal, if necessary to solicit additional proxies if there are not sufficient votes to adopt the merger agreement at the time of the Telaria special meeting or any adjournment thereof.

 

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Opinion of Rubicon Project’s Financial Advisor (page 77)

 

Rubicon Project retained Needham & Company, LLC, referred to as Needham & Company, to render an opinion as to the fairness, from a financial point of view, to Rubicon Project of the exchange ratio pursuant to the merger agreement. On December 18, 2019, Needham & Company delivered its oral opinion, which it subsequently confirmed in writing, to the Rubicon Project board that, as of that date and based upon and subject to the assumptions and other matters described in the written opinion, the exchange ratio pursuant to the merger agreement was fair to Rubicon Project from a financial point of view. 

 

The complete text of Needham & Company’s opinion, dated December 18, 2019, which sets forth the assumptions made, procedures followed, matters considered, and qualifications and limitations on and scope of the review undertaken by Needham & Company, is attached as Annex E to this joint proxy statement/prospectus. Rubicon Project stockholders should read Needham & Company’s opinion carefully and in its entirety for a discussion of the assumptions made, procedures followed, matters considered and qualifications and limitations on and scope of the review undertaken by Needham & Company in rendering its opinion. This summary is qualified in its entirety by reference to the full text of that opinion. Needham & Company provided its opinion for the information and assistance of the Rubicon Project board in connection with and for the purpose of the Rubicon Project board’s evaluation of the transaction contemplated by the merger agreement. Needham & Company’s opinion does not address any other aspect of the merger, or any related transaction, and does not constitute a recommendation to any stockholder of Rubicon Project as to how that stockholder should vote or act on any matter relating to the merger. Needham & Company’s opinion does not express any opinion as to the value of Rubicon Project common stock when issued pursuant to the merger or the prices at which Rubicon Project common stock or Telaria common stock will actually trade at any time.

 

Opinion of Telaria’s Financial Advisor (page 87)

 

Telaria engaged RBC Capital Markets, LLC, referred to as RBC Capital Markets, as financial advisor to Telaria in connection with the merger.  As part of this engagement, RBC Capital Markets delivered an opinion, dated December 18, 2019, to the Telaria board as to the fairness, from a financial point of view and as of such date, of the exchange ratio provided for pursuant to the merger agreement.  The full text of RBC Capital Markets’ written opinion, dated December 18, 2019, is attached as Annex F to this joint proxy statement/prospectus and sets forth, among other things, the procedures followed, assumptions made, factors considered and qualifications and limitations on the review undertaken by RBC Capital Markets in connection with its opinion.  RBC Capital Markets delivered its opinion to the Telaria board for the benefit, information and assistance of the Telaria board (in its capacity as such) in connection with its evaluation of the merger.  RBC Capital Markets’ opinion addressed only the fairness, from a financial point of view and as of the date of such opinion, of the exchange ratio (to the extent expressly specified in such opinion) and did not address any other aspect of the merger.  RBC Capital Markets’ opinion also did not address the underlying business decision of Telaria to engage in the merger or the relative merits of the merger compared to any alternative business strategy or transaction that may be available to Telaria or which Telaria might engage in or consider.  RBC Capital Markets did not express any opinion and does not make any recommendation to any securityholder as to how such securityholder should vote or act with respect to the merger or any proposal to be voted upon in connection with the merger or otherwise.

 

Interests of Rubicon Project’s Directors and Executive Officers in the Merger (page 101)

 

Certain of Rubicon Project’s directors and executive officers have interests in the merger that are different from, or in addition to, the interests of stockholders of Rubicon Project generally. The members of the Rubicon Project board were aware of, and considered, these interests, among other matters, in evaluating and negotiating the merger agreement and the merger, and in recommending that the stockholders of Rubicon Project approve the Rubicon Project share issuance proposal. Additional interests of the directors and executive officers of Rubicon Project in the merger include the payment of certain severance and other benefits upon a qualifying termination of employment following the completion of the merger, the designation of Michael Barrett, president and chief executive officer of Rubicon Project, as the chief executive officer of the combined company and that, at the completion of the merger, the board of directors of the combined company will consist of nine directors, including four directors who were serving as members of the Rubicon Project board as of immediately before the completion of the merger, plus the combined company’s chief executive officer, expected to be Mr. Barrett. Rubicon Project stockholders should take these interests into account in deciding whether to vote “FOR” the Rubicon Project share issuance proposal.

 

13 

 

 

See the section entitled “The Merger—Interests of Rubicon Project’s Directors and Executive Officers in the Merger” for a more detailed description of these interests.

 

Interests of Telaria’s Directors and Executive Officers in the Merger (page 105)

 

The directors and executive officers of Telaria have interests in the merger that are different from, or in addition to, the interests of stockholders of Telaria generally. The members of the Telaria Board were aware of, and considered, these interests, among other matters, in evaluating and negotiating the merger agreement and the merger, and in recommending that the stockholders of Telaria adopt the merger agreement. Additional interests of the directors and executive officers of Telaria in the merger include the treatment of Telaria stock options and Telaria RSU Awards held by non-employee directors and/or executive officers, as applicable, in accordance with the merger agreement, the payment of certain severance and other benefits to the executive officers of Telaria upon a qualifying termination of employment in connection with the merger, the designation of certain executive officers of Telaria as executive officers of the combined company (including of Mark Zagorski, chief executive officer of Telaria, as president and chief operating officer of the combined company), that, at the completion of the merger, the board of directors of the combined company will consist of nine directors, including four Telaria designees, new employment arrangements with Mr. Zagorski, and the continued provision of indemnification and insurance coverage for current and former directors and executive officers of Telaria in accordance with the merger agreement. Telaria stockholders should take these interests into account in deciding whether to vote “FOR” the Telaria merger proposal.

 

See the section entitled “The Merger—Interests of Telaria’s Directors and Executive Officers in the Merger” for a more detailed description of these interests.

 

Information about the Rubicon Project Special Meeting (page 41)

 

Time, Place and Purpose of the Rubicon Project Special Meeting

 

The Rubicon Project special meeting to consider and vote upon the Rubicon Project share issuance proposal and related matters will be held at Rubicon Project’s headquarters, located at 12181 Bluff Creek Drive, 4th Floor, Los Angeles, California 90094 on [       ], 2020 at [       ] local time.

 

At the Rubicon Project special meeting, Rubicon Project stockholders will be asked to consider and vote upon (1) the Rubicon Project share issuance proposal and (2) the Rubicon Project adjournment proposal.

 

Rubicon Project Record Date and Quorum

 

You are entitled to receive notice of, and to vote at, the Rubicon Project special meeting if you hold shares of Rubicon Project common stock as of the close of business on [       ], 2020, the Rubicon Project record date. On the Rubicon Project record date, there were [       ] shares of Rubicon Project common stock outstanding and entitled to vote at the Rubicon Project special meeting. Rubicon Project stockholders will have one vote on all matters properly coming before the Rubicon Project special meeting for each share of Rubicon Project common stock owned by such stockholders on the Rubicon Project record date.

 

The presence at the Rubicon Project special meeting, in person or by proxy, of the holders of a majority of the outstanding shares of Rubicon Project stock entitled to vote at the Rubicon Project special meeting will constitute a quorum for the transaction of business at the Rubicon Project special meeting.

 

Vote Required

 

The Rubicon Project share issuance proposal requires the affirmative vote of a majority of the outstanding shares of Rubicon Project common stock present in person or represented by proxy and entitled to vote on the Rubicon Project share issuance proposal at the Rubicon Project special meeting. If a Rubicon Project stockholder present in person at the Rubicon Project special meeting abstains from voting, or responds by proxy with an “abstain” vote, it will have the same effect as a vote cast “AGAINST” such proposal. If a Rubicon Project stockholder is not present in person at the Rubicon Project special meeting and does not respond by proxy or does not provide his, her or its bank, broker or other nominee with voting instructions, as applicable, it will have no effect on the vote count for such proposal.

 

The Rubicon Project adjournment proposal requires the affirmative vote of a majority of the outstanding shares of Rubicon Project common stock present in person or represented by proxy and entitled to vote on the Rubicon Project adjournment proposal at the Rubicon Project special meeting. If a Rubicon Project stockholder present in person at the Rubicon Project special meeting abstains from voting, or responds by proxy with an “abstain” vote, it will have the same effect as a vote cast “AGAINST” such proposal. If a Rubicon Project stockholder is not present in person at the Rubicon Project special meeting and does not respond by proxy or does not provide his, her or its bank, broker or other nominee with voting instructions, as applicable, it will have no effect on the vote count for such proposal.

 

14 

 

 

Proxies and Revocations

 

Any Rubicon Project stockholder of record entitled to vote at the Rubicon Project special meeting may submit a proxy by telephone, over the Internet, or by returning the enclosed Rubicon Project proxy card in the accompanying prepaid reply envelope, or may vote in person by appearing at the Rubicon Project special meeting. If your shares of Rubicon Project common stock are held in “street name” through a bank, broker or other nominee, you should instruct your bank, broker or other nominee on how to vote your shares of Rubicon Project common stock using the instructions provided by your bank, broker or other nominee.

 

If you are a record holder, you may change or revoke your vote as described herein. You may do this in one of the following four ways: (1) by logging onto the Internet website specified on your Rubicon Project proxy card in the same manner you would to submit your proxy electronically or by calling the telephone number specified on your Rubicon Project proxy card, in each case, if you are eligible to do so; (2) by sending a notice of revocation to the corporate secretary of Rubicon Project; (3) by sending a completed Rubicon Project proxy card bearing a later date than your original Rubicon Project proxy card; or (4) by attending the Rubicon Project special meeting and voting in person. If you choose the first method, you must take the described action no later than 11:59 p.m. Eastern time on [         ], 2020 (the day before the Rubicon Project special meeting). If you choose the second or third method, your notice of revocation or completed proxy card bearing a later date than your original proxy card must be received by 11:59 p.m. Eastern time on [         ], 2020 (the day before the Rubicon Project special meeting).

 

Information about the Telaria Special Meeting (page 47)

 

Time, Place and Purpose of the Telaria Special Meeting

 

The Telaria special meeting to consider and vote upon the Telaria merger proposal and related matters, will be held [at the offices of Cooley LLP, 55 Hudson Yards, New York, NY 10001] on [       ], 2020 at [       ] local time.

 

At the Telaria special meeting, the Telaria stockholders will be asked to consider and vote upon (1) the Telaria merger proposal, (2) the Telaria merger-related compensation proposal and (3) the Telaria adjournment proposal.

 

Telaria Record Date and Quorum

 

You are entitled to receive notice of, and to vote at, the Telaria special meeting if you hold shares of Telaria common stock as of the close of business on [       ], 2020, the Telaria record date. On the Telaria record date, there were [       ] shares of Telaria common stock outstanding and entitled to vote at the Telaria special meeting. Telaria stockholders will have one vote on all matters properly coming before the Telaria special meeting for each share of Telaria common stock owned by such Telaria stockholders on the Telaria record date.

 

The presence at the Telaria special meeting, in person or by proxy, of the holders of a majority of the outstanding shares of Telaria stock entitled to vote at the Telaria special meeting will constitute a quorum for the transaction of business at the Telaria special meeting.

 

Vote Required

 

The Telaria merger proposal requires the affirmative vote of the holders of a majority of the shares of Telaria common stock outstanding and entitled to vote at the Telaria special meeting. If a Telaria stockholder present in person at the Telaria special meeting abstains from voting, responds by proxy with an “abstain” vote, is not present in person at the Telaria special meeting and does not respond by proxy or does not provide his, her or its bank, broker or other nominee with voting instructions, as applicable, it will have the effect of a vote cast “AGAINST” such proposal.

 

15 

 

 

The Telaria merger-related compensation proposal requires the affirmative vote of holders of a majority of the shares of Telaria common stock present in person or represented by proxy at the Telaria special meeting and entitled to vote on the Telaria merger-related compensation proposal, assuming a quorum. If a Telaria stockholder present in person at the Telaria special meeting abstains from voting, or responds by proxy with an “abstain” vote, it will have the same effect as a vote cast “AGAINST” such proposal. If a Telaria stockholder is not present in person at the Telaria special meeting and does not respond by proxy or does not provide his, her or its bank, broker or other nominee with voting instructions, as applicable, it will have no effect on the vote count for such proposal.

 

The Telaria adjournment proposal requires the affirmative vote of holders of a majority of the shares of Telaria common stock present in person or represented by proxy at the Telaria special meeting. If a Telaria stockholder present in person at the Telaria special meeting abstains from voting, or responds by proxy with an “abstain” vote, it will have the same effect as a vote cast “AGAINST” such proposal. If a Telaria stockholder is not present in person at the Telaria special meeting and does not respond by proxy or does not provide his, her or its bank, broker or other nominee with voting instructions, as applicable, it will have no effect on the vote count for such proposal.

 

Proxies and Revocations

 

Any Telaria stockholder of record entitled to vote at the Telaria special meeting may submit a proxy by telephone, over the Internet, or by returning the enclosed Telaria proxy card in the accompanying prepaid reply envelope, or may vote in person by appearing at the Telaria special meeting. If your shares of Telaria common stock are held in “street name” through a bank, broker or other nominee, you should instruct your bank, broker or other nominee on how to vote your shares of Telaria common stock using the instructions provided by your bank, broker or other nominee.

 

If you are a record holder, you may change or revoke your vote as described herein. You may do this in one of the following four ways: (1) by logging onto the Internet website specified on your Telaria proxy card in the same manner you would to submit your proxy electronically or by calling the telephone number specified on your Telaria proxy card, in each case, if you are eligible to do so; (2) by sending a notice of revocation to the corporate secretary of Telaria; (3) by sending a completed Telaria proxy card bearing a later date than your original Telaria proxy card; or (4) by attending the Telaria special meeting and voting in person. If you choose the first method, you must take the described action no later than 11:59 p.m. Eastern time on [         ], 2020 (the day before the Telaria special meeting). If you choose the second or third method, your notice of revocation or completed proxy card bearing a later date than your original proxy card must be received by 11:59 p.m. Eastern time on [         ], 2020 (the day before the Telaria special meeting).

 

Voting by Rubicon Project Directors and Executive Officers (page 42)

 

As of the close of business on January 24, 2020, the most recent practicable date for which such information was available, directors and executive officers of Rubicon Project and their affiliates owned and were entitled to vote 2,155,459 shares of Rubicon Project common stock, or approximately 5.1% of the shares of common stock outstanding on that date. The number and percentage of shares of Rubicon Project common stock owned by directors and executive officers of Rubicon Project and their affiliates as of the Rubicon Project record date are not expected to be meaningfully different from the number and percentage as of January 24, 2020. In accordance with the Rubicon Project voting agreements described below, the form of which is attached hereto as Annex C, it is expected that Rubicon Project’s directors and executive officers will vote their shares of Rubicon Project common stock in favor of each of the proposals to be considered at the Rubicon Project special meeting. For information with respect to Rubicon Project common stock owned by directors and executive officers of Rubicon Project, please see the section entitled “Rubicon Project Beneficial Ownership Table.” The number of shares reflected above does not include shares underlying outstanding Rubicon Project stock options or Rubicon Project restricted stock unit awards.

 

Voting by Telaria Directors and Executive Officers (page 48)

 

As of the close of business on January 24, 2020, the most recent practicable date for which such information was available, directors and executive officers of Telaria and their affiliates owned and were entitled to vote 1,376,127 shares of Telaria common stock, or approximately 2.91% of the shares of common stock outstanding on that date. The number and percentage of shares of Telaria common stock owned by directors and executive officers of Telaria and their affiliates as of the Telaria record date are not expected to be meaningfully different from the number and percentage as of January 24, 2020. In accordance with the Telaria voting agreements described below, the form of which is attached hereto as Annex D, it is expected that Telaria’s directors and named executive officers will vote their shares of common stock in favor of each of the proposals to be considered at the Telaria special meeting. It is likewise currently expected that Telaria’s other executive officers will vote their shares of Telaria common stock in favor of each of the proposals to be considered at the Telaria special meeting, although none of such other executive officers have entered into an agreement obligating them to do so.

 

Governance of the Combined Company (page 110)

 

At the completion of the merger, the bylaws of Rubicon Project will be amended and restated to be in the form attached to this joint proxy statement/prospectus as Annex B. The amended and restated bylaws contain certain provisions relating to the governance of the combined company following completion of the merger.

 

16 

 

 

Chairman of the Combined Company; Chief Executive Officer of the Combined Company; Other Officers

 

The merger agreement provides that Paul Caine, the current non-executive chairman of the Telaria board (who was executive chairman of the Telaria board as of the signing of the merger agreement), will be appointed to serve as the non-executive chairman of the board of the combined company. The chief executive officer of Rubicon Project as of immediately before the completion of the merger will continue to serve as the chief executive officer of the combined company. The merger agreement provides that the chief executive officer of Telaria as of the signing of the merger agreement, Mark Zagorski, will be appointed to serve as president and chief operating officer of the combined company, reporting to the chief executive officer, and will be responsible in such capacity for overseeing the combined company’s CTV business unit and certain aspects of the integration of Telaria’s and Rubicon Project’s respective businesses.

 

The parties have also agreed to certain other appointments as further described in the section entitled “The Merger—Governance of the Combined Company After the Merger.” Although not specifically agreed to by the parties in the merger agreement or otherwise, it is expected that David Day, Rubicon Project’s chief financial officer, will continue to serve as chief financial officer of the combined company.

 

Board of Directors of the Combined Company

 

The board of directors of the combined company as of the completion of the merger will have nine members, consisting of:

 

four directors, each of whom will be a member of the Rubicon Project board as of immediately before the completion of the merger and each of whom will qualify as an “independent director” under the listing standards of the NYSE, referred to as the Rubicon Project continuing directors;

 

four directors, each of whom will be a member of the Telaria board as of immediately before the completion of the merger and at least three of whom will qualify as an “independent director” under the listing standards of the NYSE, referred to as the Telaria continuing directors; and

 

the chief executive officer of Rubicon Project as of immediately before the completion of the merger.

 

As of the date of this joint proxy statement/prospectus, Rubicon Project expects that the following four Rubicon Project directors will be designated to serve on the combined company board of directors as Rubicon Project continuing directors: Robert J. Frankenberg, Sarah P. Harden, Robert F. Spillane and Lisa L. Troe. As of the date of this joint proxy statement/prospectus, Telaria expects that the following four Telaria directors will be designated to serve on the combined company board of directors as Telaria continuing directors: Paul Caine, Doug Knopper, Rachel Lam and James Rossman.

 

Biographical information for Rubicon Project’s expected designees to the combined company board of directors is incorporated by reference from the Definitive Proxy Statement for Rubicon Project’s 2019 annual meeting filed with the SEC on April 5, 2019. Biographical information for Telaria’s expected designees to the combined company board of directors is incorporated by reference from the Definitive Proxy Statement for Telaria’s 2019 annual meeting filed with the SEC on April 24, 2019. The Rubicon Project board is currently in the process of confirming the independence of each proposed Rubicon Project continuing director and proposed Telaria continuing director for purposes of the listing standards of the NYSE and will make an affirmative determination as to each such director’s independence prior to the completion of the merger.

 

Following the completion of the merger and until the second anniversary of the completion of the merger, the board of directors of the combined company will continue to be comprised of four Rubicon Project continuing directors (or, in the event of a vacancy among the Rubicon Project continuing directors, a replacement Rubicon Project continuing director proposed by a majority of the remaining Rubicon Project continuing directors), each of whom shall meet the independence standards of the NYSE, four Telaria continuing directors (or, in the event of a vacancy among the Telaria continuing directors, a replacement Telaria continuing director proposed by a majority of the remaining Telaria continuing directors), at least three of whom shall meet the independence standards of the NYSE, and the chief executive officer of Rubicon Project.

 

17 

 

 

Following completion of the merger and until the second anniversary of the completion of the merger, Paul Caine, the current non-executive chairman of the Telaria board (who was executive chairman of the Telaria board as of the signing of the merger agreement), will be the non-executive chairman of the board of the combined company so long as he continues to serve as a member of the board of directors of the combined company. If Mr. Caine ceases to be a member of the board of directors of the combined company during such period, then the board of directors of the combined company, acting by the affirmative vote of both a majority of the then-serving Rubicon Project continuing directors and a majority of the then-serving Telaria continuing directors, will elect one of its members (who may be either a Rubicon Project continuing director or a Telaria continuing director) to be the non-executive chairman of the board.

 

Regulatory Approvals (page 111)

 

Under the HSR Act and related rules, certain transactions, including the merger, may not be completed until notifications have been given and information furnished to the Antitrust Division of the United States Department of Justice, referred to as the Antitrust Division, and the United States Federal Trade Commission, referred to as the FTC, and all statutory waiting period requirements have been satisfied. Completion of the merger is subject to the expiration or earlier termination of the applicable waiting period under the HSR Act. Rubicon Project and Telaria each filed their respective HSR Act notification forms on January 6, 2020. On January 14, 2020, Rubicon Project and Telaria received notice from the FTC that it had granted early termination, effective immediately, of the applicable waiting period under the HSR Act.

 

There can be no assurance that a challenge to the merger on antitrust or other regulatory grounds will not be made or, if such a challenge is made, that it would not be successful.

 

See “The Merger—Regulatory Approvals.”

  

Conditions to Completion of the Merger (page 130)

 

In addition to the approval of the Rubicon Project share issuance proposal by Rubicon Project stockholders and of the Telaria merger proposal by Telaria stockholders, completion of the merger is subject to the satisfaction (or waiver to the extent permitted by law) of a number of other conditions, including:

 

the expiration or termination of the applicable waiting period under the HSR Act;

 

the effectiveness of the registration statement on Form S-4 of which this joint proxy statement/prospectus forms a part;

 

approval of the listing on the NYSE of the Rubicon Project common stock forming part of the merger consideration;

 

the absence of an injunction or law prohibiting the merger;

 

receipt by each of Rubicon Project and Telaria of an opinion of its respective outside counsel to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code;

 

the accuracy of the representations and warranties of Rubicon Project or Telaria, as applicable, made in the merger agreement (subject to the materiality standards set forth in the merger agreement);

 

the performance by Rubicon Project or Telaria, as applicable, of its covenants and obligations under the merger agreement in all material respects; and

 

delivery of an officer’s certificate by the other party certifying satisfaction of the conditions described in the preceding two bullet points.

 

The parties expect to complete the merger after all of the conditions to the merger in the merger agreement are satisfied or, to the extent permitted by law, waived, including after Rubicon Project receives stockholder approval of the Rubicon Project share issuance proposal at the Rubicon Project special meeting and Telaria receives stockholder approval of the Telaria merger proposal at the Telaria special meeting and after Rubicon Project and Telaria receive all required regulatory approvals. For a more complete description of the conditions to the merger, see “The Merger Agreement—Conditions to the Merger.”

 

18 

 

 

Expected Timing of the Merger (page 111)

 

The parties expect the merger to be completed in the first half of 2020. Neither Rubicon Project nor Telaria can predict, however, the actual date on which the merger will be completed because it is subject to conditions beyond each company’s control, including obtaining necessary regulatory approvals. For a more complete description of the conditions to the merger, see “The Merger Agreement—Conditions to the Merger.”

 

Ownership of the Combined Company after the Merger (page 114)

 

As of the date of this joint proxy statement/prospectus, based on the number of shares of Rubicon Project common stock and Telaria common stock outstanding and reserved for issuance as of the signing of the merger agreement, we estimate that, immediately following completion of the merger, former holders of Telaria common stock will own approximately 47.1% and pre-merger holders of Rubicon Project common stock will own approximately 52.9% of the common stock of the combined company on a fully diluted basis. The exact equity stake of Rubicon Project stockholders and Telaria stockholders in the combined company immediately following the merger will depend on the number of shares of Rubicon Project common stock and Telaria common stock issued and outstanding immediately prior to the merger.

 

No Solicitation; Change of Recommendation (page 120)

 

As more fully described in this joint proxy statement/prospectus and in the merger agreement, and subject to the exceptions summarized below, each of Rubicon Project and Telaria has agreed that it will not, and it will cause its subsidiaries and its and their respective officers and directors not to, and use reasonable best efforts to cause its and its subsidiaries’ other representatives not to, directly or indirectly (1) solicit, initiate or knowingly encourage or take any other action to facilitate any alternative transaction (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—No Solicitation of Alternative Transactions”) to acquire 20% or more of Rubicon Project’s or Telaria’s, as applicable, equity or voting power or 20% or more of Rubicon Project or Telaria’s, as applicable, consolidated revenues, net income or assets, or (2) participate in any discussions or negotiations, or cooperate in any way with any person, with respect to any alternative transaction.

 

The merger agreement includes certain exceptions to the non-solicitation covenant such that, prior to obtaining the Rubicon Project stockholder approval or the Telaria stockholder approval, Rubicon Project or Telaria, as applicable, may participate in discussions and negotiations concerning an unsolicited alternative transaction if the Rubicon Project board or Telaria board, as applicable, determines in good faith, after consultation with its outside counsel and financial advisors, that the alternative transaction constitutes or would reasonably be expected to result in a “superior proposal” (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—No Solicitation of Alternative Transactions”). Also, each of the Rubicon Project board and the Telaria board may, subject to complying with certain specified procedures, including providing Telaria and Rubicon Project, as applicable, with a good faith opportunity to negotiate, (1) change its recommendation in favor of the Rubicon Project share issuance proposal or the Telaria merger proposal, as applicable, in response to an unsolicited “superior proposal,” to the extent failure to do so would be inconsistent with its fiduciary duties under applicable law, or (2) change its recommendation in favor of the Rubicon Project share issuance proposal or Telaria merger proposal, as applicable, in response to an “intervening event” (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—Changes in Board Recommendations”) that becomes known after the date of the merger agreement but prior to the Rubicon Project stockholder approval or the Telaria stockholder approval, as applicable, to the extent failure to do so would be inconsistent with its fiduciary duties under applicable law.

 

For a more complete description of the limitations on the solicitation of transaction proposals from third parties and the ability of the Rubicon Project board or the Telaria board, as applicable, to change its respective recommendation with respect to the transaction, see “The Merger Agreement—Covenants and Agreements—No Solicitation of Alternative Transactions;—Changes in Board Recommendations.”

 

Termination of the Merger Agreement (page 131)

 

The merger agreement may be terminated by mutual written consent of Telaria and Rubicon Project at any time before the completion of the merger. In addition, the merger agreement may be terminated by either Rubicon Project or Telaria:

 

if the merger has not been completed by June 30, 2020, referred to as the outside date, subject to an automatic extension to August 31, 2020 in the event that the SEC has not by May 1, 2020 declared effective under the Securities Act the registration statement of which this joint proxy statement/prospectus forms a part; provided that this right to terminate the merger agreement will not be available to a party whose material breach of any of its obligations under the merger agreement has been the principal cause of, or principally resulted in, the failure of the closing of the merger to have occurred on or before the outside date;

  

19 

 

 

if the Telaria stockholder approval has not been obtained at the Telaria special meeting or at any adjournment or postponement of such meeting;

 

if the Rubicon Project stockholder approval has not been obtained at the Rubicon Project special meeting or at any adjournment or postponement of such meeting;

 

if any governmental entity of competent jurisdiction has issued or entered any order or any applicable law has been enacted or promulgated that would permanently restrain, enjoin or otherwise prohibit the merger or if any expiration, termination, authorization or consent from a governmental entity required to be obtained under the HSR Act shall have been denied and such denial shall have become final and non-appealable;

 

if the other party breaches or fails to perform any of its respective representations, warranties, covenants or other agreements in the merger agreement, which breach or failure to perform would result in the failure of a condition related to the accuracy of its representations and warranties or performance of its covenants in the merger agreement, subject to certain materiality thresholds and rights to cure and other limitations; or

 

at any time prior to the Rubicon Project special meeting or Telaria special meeting, respectively, if the Rubicon Project board (in the case of a termination by Telaria) or the Telaria board (in the case of a termination by Rubicon Project) changes its recommendation to its stockholders to vote in favor of the transaction or the other party willfully breaches certain covenants under the merger agreement to not solicit alternative transactions or to hold its special meeting, referred to as a triggering event.

 

If the merger agreement is terminated as described above, the merger agreement will be void without liability or obligation on the part of any party, subject to certain exceptions, including as described below and that no party will be relieved from liability for any willful breach of the merger agreement or fraud.

 

Termination Fee (page 132)

 

The merger agreement provides for payment of a termination fee by Telaria to Rubicon Project of $13.7 million in connection with a termination of the merger agreement under certain circumstances.

 

In addition, the merger agreement provides for payment of a termination fee by Rubicon Project to Telaria of $16 million in connection with a termination of the merger agreement under certain circumstances.

 

For a more complete description of each party’s termination rights and the related termination fee obligations, see “The Merger Agreement—Termination” and “The Merger Agreement—Expenses and Termination Fees.”

 

No Appraisal Rights (page 111)

 

Rubicon Project stockholders and Telaria stockholders are not entitled to appraisal rights under the DGCL with respect to the merger. For more information, see “The Merger—No Appraisal Rights in the Merger.”

 

Material U.S. Federal Income Tax Consequences of the Merger (page 136)

 

The obligations of the parties to complete the merger are conditioned on, among other things, the receipt by each of Rubicon Project and Telaria of an opinion from its respective nationally recognized outside counsel (or other nationally recognized outside counsel reasonably acceptable to the parties), each dated and based on the facts and law existing as of the closing date of the merger, that for U.S. federal income tax purposes the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Provided the merger qualifies as a “reorganization,” U.S. holders (as defined in the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger”) of shares of Telaria common stock generally will not recognize any gain or loss for U.S. federal income tax purposes upon the receipt of Rubicon Project common stock in exchange for Telaria common stock in the merger (other than gain or loss, if any, with respect to any cash received in lieu of a fractional share of Telaria common stock).

 

The material U.S. federal income tax consequences of the merger are discussed in more detail in the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger.” The discussion of the material U.S. federal income tax consequences contained in this joint proxy statement/prospectus is intended to provide only a general discussion and is not a complete analysis or description of all potential U.S. federal income tax consequences of the merger that may vary with, or are dependent on, individual circumstances. In addition, it does not address tax considerations under state, local or foreign laws or U.S. federal laws other than those pertaining to U.S. federal income tax.

 

20 

 

 

Accounting Treatment (page 112)

 

Rubicon Project prepares its financial statements in accordance with accounting principles generally accepted in the United States, referred to as GAAP. The merger will be accounted for as an acquisition of Telaria by Rubicon Project under the acquisition method of accounting in accordance with GAAP. Rubicon Project will be treated as the acquiror for accounting purposes. Under this method of accounting, Rubicon Project will record the acquisition based on the fair value of the consideration given as of the effective date of the merger, which will include the market value of the shares of Rubicon Project common stock issued in connection with the merger, the fair value associated with pre-acquisition vested Telaria stock options exchanged for Rubicon Project stock options and the fair value of equity awards that accelerate and become vested as a result of the merger, all based on the exchange ratio of one share of Telaria common stock for 1.082 shares of Rubicon Project common stock. Rubicon Project will allocate the purchase price to the identifiable assets acquired and liabilities assumed based on their respective fair values at the date of the completion of the merger. Any excess of the value of consideration paid over the aggregate fair value of those net assets will be recorded as goodwill. Any identified definite lived intangible assets will be amortized over their estimated useful lives and any identified intangible assets with indefinite useful lives and goodwill will not be amortized but will be tested for impairment at least annually. All intangible assets and goodwill are also tested for impairment when certain indicators are present. The allocation of the purchase price reflected in the unaudited pro forma condensed combined financial statements is based on preliminary estimates using assumptions Rubicon Project management and Telaria management believe are reasonable and based on currently available information. The final purchase price and fair value assessment of assets and liabilities will be based in part on a detailed valuation that has not yet been completed.

 

In identifying Rubicon Project as the accounting acquiror, Rubicon Project and Telaria considered the structure of the transaction and other actions contemplated by the merger agreement, relative outstanding share ownership and market values, the composition of the combined company’s board of directors, the relative size of Rubicon Project and Telaria, and the designation of certain senior management positions of the combined company.

 

Rights of Telaria Stockholders Will Change as a Result of the Merger (page 185)

 

Telaria stockholders will have different rights once they become Rubicon Project stockholders due to differences between the organizational documents of Rubicon Project and Telaria. These differences are described in more detail under the section entitled “Comparative Rights of Stockholders.”

 

NYSE Listing of Rubicon Project Common Stock and Delisting and Deregistration of Telaria Stock (page 112)

 

Prior to the completion of the merger, Rubicon Project has agreed to use its reasonable best efforts to cause the shares of Rubicon Project common stock to be issued in connection with the merger to be approved for listing on the NYSE. The listing of the shares of Rubicon Project common stock on the NYSE, subject to official notice of issuance, is also a condition to completion of the merger.

 

If the merger is completed, Telaria common stock will cease to be listed on the NYSE and Telaria common stock will be deregistered under the Exchange Act.

 

Risk Factors (page 32)

 

You should consider all the information contained in or incorporated by reference into this joint proxy statement/prospectus in deciding how to vote for the proposals presented in this joint proxy statement/prospectus. In particular, you should carefully consider the risks that are described in the section entitled “Risk Factors.”

 

21 

 

 

SELECTED HISTORICAL CONDENSED CONSOLIDATED FINANCIAL DATA OF RUBICON PROJECT

 

The following table presents selected historical condensed consolidated financial data for Rubicon Project as of and for the years ended December 31, 2018, 2017, 2016, 2015 and 2014 and as of and for the nine months ended September 30, 2019 and 2018. The statement of operations data for the years ended December 31, 2018 and 2017 and the balance sheet data as of December 31, 2018 and 2017 have been obtained from Rubicon Project’s audited consolidated financial statements incorporated by reference in Rubicon Project’s Annual Report on Form 10-K for the year ended December 31, 2018, which is incorporated by reference into this joint proxy statement/prospectus. The balance sheet data as of September 30, 2019 and the statement of operations data for the nine months ended September 30, 2019 and 2018 have been obtained from Rubicon Project’s unaudited condensed consolidated financial statements included in Rubicon Project’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, which is incorporated by reference into this joint proxy statement/prospectus. The balance sheet data as of September 30, 2018 has been obtained from Rubicon Project’s unaudited condensed consolidated financial statements included in Rubicon Project’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, which is not incorporated by reference into this joint proxy statement/prospectus. The statement of operations data for the years ended December 31, 2016, 2015 and 2014 and the balance sheet data as of December 31, 2016, 2015 and 2014 have been derived from Rubicon Project’s audited consolidated financial statements as of and for such periods, which have not been incorporated by reference into this joint proxy statement/prospectus.

 

The information set forth below is not necessarily indicative of future results and should be read together with the other information contained in Rubicon Projects Annual Report on Form 10-K for the year ended December 31, 2018 and Rubicon Projects Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, including the sections entitled Managements Discussion and Analysis of Financial Condition and Results of Operations and the consolidated financial statements and related notes therein. See the section entitled Where You Can Find More Information.

  

   

Nine Months
Ended September 30, 

   

Year Ended December 31, 

 
(Dollars and shares in thousands, except per share amounts)      2019       2018        2018       2017(1)       2016(1)        2015       2014  

Consolidated Balance Sheet

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

85,122

 

 

$

82,354

 

 

$

80,452

 

 

$

76,642

 

 

$

149,423

 

 

$

116,499

 

 

$

97,196

 

Marketable securities

 

 

 

 

 

14,486

 

 

 

7,524

 

 

 

52,504

 

 

 

40,550

 

 

 

36,732

 

 

 

 

Accounts receivable, net

 

 

172,284

 

 

 

155,328

 

 

 

205,683

 

 

 

165,890

 

 

 

192,064

 

 

 

218,235

 

 

 

133,267

 

Prepaid expenses and other current assets

 

 

5,773

 

 

 

8,781

 

 

 

6,882

 

 

 

9,620

 

 

 

9,540

 

 

 

7,724

 

 

 

7,514

 

Property and equipment, net

 

 

24,238

 

 

 

33,884

 

 

 

33,487

 

 

 

47,393

 

 

 

36,246

 

 

 

25,403

 

 

 

15,196

 

Internal use software development costs, net

 

 

15,189

 

 

 

14,432

 

 

 

14,570

 

 

 

12,734

 

 

 

16,522

 

 

 

13,929

 

 

 

11,501

 

Intangible assets, net

 

 

7,870

 

 

 

10,971

 

 

 

10,174

 

 

 

13,359

 

 

 

6,804

 

 

 

50,783

 

 

 

14,090

 

Goodwill

 

 

 

 

 

 

 

 

 

 

 

 

 

 

65,705

 

 

 

65,705

 

 

 

16,290

 

Total Assets

 

$

335,321

 

 

$

321,115

 

 

$

360,012

 

 

$

383,635

 

 

$

519,775

 

 

$

536,736

 

 

$

296,481

 

Debt and capital lease obligations, current and non-current

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

105

 

Total liabilities

 

 

231,198

 

 

 

203,363

 

 

 

241,999

 

 

 

219,024

 

 

 

220,262

 

 

 

258,635

 

 

 

167,729

 

Common stockholders’ equity

 

 

104,123

 

 

 

117,752

 

 

 

118,013

 

 

 

164,611

 

 

 

299,513

 

 

 

278,101

 

 

 

128,752

 

                                                         

Consolidated Statements of Operations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

107,928

 

 

$

83,253

 

 

$

124,685

 

 

$

155,545

 

 

$

278,221

 

 

$

248,484

 

 

$

125,295

 

Expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of revenue

 

 

44,070

 

 

 

44,514

 

 

 

60,003

 

 

 

56,836

 

 

 

73,247

 

 

 

58,495

 

 

 

20,754

 

Sales and marketing

 

 

33,151

 

 

 

34,046

 

 

 

44,556

 

 

 

51,794

 

 

 

83,328

 

 

 

83,333

 

 

 

43,203

 

Technology and development

 

 

29,848

 

 

 

29,038

 

 

 

37,863

 

 

 

47,500

 

 

 

51,184

 

 

 

42,055

 

 

 

22,718

 

General and administrative

 

 

29,428

 

 

 

33,340

 

 

 

42,431

 

 

 

55,596

 

 

 

68,570

 

 

 

70,199

 

 

 

57,398

 

Restructuring and other exit costs

 

 

 

 

 

3,440

 

 

 

3,440

 

 

 

5,959

 

 

 

3,316

 

 

 

 

 

 

 

Impairment of intangible assets and internal use software

 

 

 

 

 

 

 

 

 

 

 

4,585

 

 

 

23,473

 

 

 

 

 

 

 

Impairment of goodwill

 

 

 

 

 

 

 

 

 

 

 

90,251

 

 

 

 

 

 

 

 

 

 

Total expenses

 

 

136,497

 

 

 

144,378

 

 

 

188,293

 

 

 

312,521

 

 

 

303,118

 

 

 

254,082

 

 

 

144,073

 

Loss from operations

 

 

(28,569

)

 

 

(61,125

)

 

 

(63,608

)

 

 

(156,976

)

 

 

(24,897

)

 

 

(5,598

)

 

 

(18,778

)

Other (income) expense:

 

 

(999

)

 

 

(1,766

)

 

 

(2,143

)

 

 

(431

)

 

 

(1,984

)

 

 

(1,459

)

 

 

(277

)

 

22 

 

 

   Nine Months
Ended September 30,
   Year Ended December 31, 
(Dollars and shares in thousands, except per share amounts)   2019    2018    2018    2017(1)   2016(1)   2015    2014 
Loss before income taxes   (27,570)   (59,359)   (61,465)   (156,545)   (22,913)   (4,139)   (18,501)
Provision (benefit) for income taxes   (569)   233    357    (1,762)   (4,860)   (4,561)   172 
Net income (loss)  $(27,001)  $(59,592)  $(61,822)  $(154,783)   (18,053)   422    (18,673)
Cumulative preferred stock dividends(2)   —      —      —      —      —      —      (1,116)
Net income (loss) attributable to common stockholders  $(27,001)  $(59,592)  $(61,822)  $(154,783)  $(18,053)  $422   $(19,789)
Net income (loss) per share attributable to common stockholders(3)                                   
Basic  $(0.52)  $(1.19)  $(1.23)  $(3.17)  $(0.39)  $0.01   $(0.70)
Diluted  $(0.52)  $(1.19)  $(1.23)  $(3.17)  $(0.39)  $0.01   $(0.70)
Weighted average shares used to compute net income (loss) per share:                                   
Basic   52,324    50,095    50,259    48,869    46,655    39,663    28,217 
Diluted   52,324    50,095    50,259    48,869    46,655    44,495    28,217 

 

  (1)During the years ended December 31, 2017 and December 31, 2016, Rubicon Project was negatively impacted by rapid changes in the ad tech industry, including demand by ad tech buyers for more efficiency and lower costs, changes in bidding technologies, and increased competition. In response to these challenges, Rubicon Project made significant reductions in fees charged to buyers during 2017, and in November 2017 eliminated its buyer fees altogether. The competitive pressures and reduced take rate resulted in lower revenue on an annual basis in 2018 compared to the prior year. In an effort to bring its costs into better alignment with reduced take rates, Rubicon Project restructured part of its business to reduce headcount and related operating costs, and also reduced capital expenditures. As a result, Rubicon Project recorded impairments to its goodwill, intangible assets, and internal use software. Due to the restructuring, periods presented may not be comparable, specifically the years ended December 31, 2018 and 2017.

 

 

(2)

Upon the close of Rubicon Project’s IPO in April 2014, each outstanding share of convertible preferred stock was converted into one-half of a share of Rubicon Project common stock. Prior to the conversion, the holders of Rubicon Project’s convertible preferred stock were entitled to cumulative dividends prior and in preference to common stock. These cumulative preferred dividends are shown as a reduction to net income (loss) to arrive at net income (loss) attributable to common stockholders for the year ended December 31, 2014.

 

 

(3)

See Note 3 to Rubicon Project’s consolidated financial statements, included in its Annual Report on Form 10-K for the year ended December 31, 2018, which is incorporated by reference into this joint proxy statement/prospectus, for a description of the method used to compute basic and diluted income (loss) per share attributable to common stockholders.

 

23 

 

 

SELECTED HISTORICAL CONDENSED CONSOLIDATED FINANCIAL DATA OF TELARIA

 

The following table presents selected historical condensed consolidated financial data for Telaria as of and for the years ended December 31, 2018, 2017, 2016, 2015 and 2014 and as of and for the nine months ended September 30, 2019 and 2018. The statement of operations data for the years ended December 31, 2018, 2017 and 2016 and the balance sheet data as of December 31, 2018 and 2017 have been obtained from Telaria’s audited consolidated financial statements incorporated by reference in Telaria’s Annual Report on Form 10-K for the year ended December 31, 2018, which is incorporated by reference into this joint proxy statement/prospectus. The balance sheet data as of September 30, 2019 and the statement of operations data for the nine months ended September 30, 2019 and 2018 have been obtained from Telaria’s unaudited condensed consolidated financial statements included in Telaria’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, which is incorporated by reference into this joint proxy statement/prospectus. The balance sheet data as of September 30, 2018 has been obtained from Telaria’s unaudited condensed consolidated financial statements included in Telaria’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, which is not incorporated by reference into this joint proxy statement/prospectus.  The statement of operations data for the years ended December 31, 2015 and 2014 and the balance sheet data as of December 31, 2016, 2015 and 2014 have been derived from Telaria’s audited consolidated financial statements as of and for such periods, which have not been incorporated by reference into this joint proxy statement/prospectus.

 

The information set forth below is not necessarily indicative of future results and should be read together with the other information contained in Telaria’s Annual Report on Form 10-K for the year ended December 31, 2018 and Telaria’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, including the sections entitled Managements Discussion and Analysis of Financial Condition and Results of Operations and the consolidated financial statements and related notes therein. See the section entitled Where You Can Find More Information.

 

 

 

Nine Months
Ended September 30,

 

 

Year Ended December 31,

 

(Dollars in thousands, except per share amounts)

 

 

2019

 

 

 

2018

 

 

20181

 

 

 

20171

 

 

 

20161

 

 

 

20151

 

 

 

20141

 

Consolidated Balance Sheet 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash Equivalents

 

 

65,749

 

 

 

70,567

 

 

 

47,659

 

 

 

76,320

 

 

 

43,160

 

 

 

59,887

 

 

 

77,787

 

Accounts Receivable

 

 

114,382

 

 

 

67,963

 

 

 

104,387

 

 

 

59,288

 

 

 

29,429

 

 

 

14,715

 

 

 

 

Prepaid expenses and other current assets

 

 

3,903

 

 

 

3,502

 

 

 

3,381

 

 

 

2,499

 

 

 

1,833

 

 

 

3,204

 

 

 

1,054

 

Current assets of discontinued operations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

50,170

 

 

 

56,580

 

 

 

47,282

 

Property and equipment, net

 

 

2,167

 

 

 

3,009

 

 

 

2,789

 

 

 

3,194

 

 

 

7,141

 

 

 

7,951

 

 

 

2,489

 

Intangible assets, net

 

 

3,601

 

 

 

4,654

 

 

 

4,379

 

 

 

1,307

 

 

 

1,544

 

 

 

6,274

 

 

 

 

Goodwill

 

 

9,277

 

 

 

9,619

 

 

 

9,478

 

 

 

6,320

 

 

 

6,228

 

 

 

5,862

 

 

 

 

Non-current assets of discontinued operations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12,699

 

 

 

12,257

 

 

 

48,599

 

Total Assets

 

 

225,335

 

 

 

161,675

 

 

 

174,706

 

 

 

150,428

 

 

 

154,225

 

 

 

168,124

 

 

 

178,005

 

Total Liabilities

 

 

169,199

 

 

 

85,865

 

 

 

120,311

 

 

 

67,289

 

 

 

75,703

 

 

 

66,692

 

 

 

38,232

 

Total stockholders’ equity

 

 

56,136

 

 

 

75,810

 

 

 

54,395

 

 

 

83,139

 

 

 

78,522

 

 

 

101,432

 

 

 

139,773

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Consolidated Statement of Operations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

 

48,402

 

 

 

35,509

 

 

 

55,165

 

 

 

43,799

 

 

 

29,121

 

 

 

9,611

 

 

 

 

Cost of revenue

 

 

9,338

 

 

 

4,032

 

 

 

6,844

 

 

 

3,448

 

 

 

2,211

 

 

 

945

 

 

 

 

Gross profit

 

 

39,064

 

 

 

31,477

 

 

 

48,321

 

 

 

40,351

 

 

 

26,910

 

 

 

8,666

 

 

 

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Technology and development

 

 

8,531

 

 

 

7,044

 

 

 

9,925

 

 

 

8,586

 

 

 

6,961

 

 

 

4,762

 

 

 

3,281

 

Sales and marketing

 

 

19,784

 

 

 

18,778

 

 

 

25,424

 

 

 

28,073

 

 

 

22,297

 

 

 

13,841

 

 

 

5,324

 

General and administrative

 

 

21,204

 

 

 

14,670

 

 

 

20,187

 

 

 

20,197

 

 

 

16,069

 

 

 

16,883

 

 

 

14,472

 

Restructuring Costs

 

 

 

 

 

149

 

 

 

149

 

 

 

 

 

 

 

 

 

 

 

 

 

Depreciation and amortization

 

 

1,153

 

 

 

3,198

 

 

 

3,705

 

 

 

4,586

 

 

 

3,754

 

 

 

2,176

 

 

 

839

 

Mark-to-Market

 

 

 

 

 

 

 

 

57

 

 

 

148

 

 

 

1,263

 

 

 

 

 

 

 

Total expenses

 

 

50,672

 

 

 

43,839

 

 

 

59,447

 

 

 

61,590

 

 

 

50,344

 

 

 

37,662

 

 

 

23,916

 

Loss from continuing operations

 

 

(11,608

)

 

 

(12,362

)

 

 

(11,126

)

 

 

(21,239

)

 

 

(23,434

)

 

 

(28,996

)

 

 

(23,916

)

Interest expense and other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest expense, net

 

 

(2

)

 

 

(74

)

 

 

(89

)

 

 

(78

)

 

 

(129

)

 

 

(10

)

 

 

(4

)

Other income (expense), net

 

 

3,097

 

 

 

1,917

 

 

 

1,975

 

 

 

1,270

 

 

 

(123

)

 

 

30

 

 

 

46

 

Total interest and other income (expense), net

 

 

3,095

 

 

 

1,843

 

 

 

1,886

 

 

 

1,192

 

 

 

(252

)

 

 

20

 

 

 

42

 

Loss from continuing operations before income taxes

 

 

(8,513

)

 

 

(10,519

)

 

 

(9,240

)

 

 

(20,047

)

 

 

(23,686

)

 

 

(28,976

)

 

 

(23,874

)

Provision (benefit) for income taxes

 

 

104

 

 

 

146

 

 

 

(10

)

 

 

(347

)

 

 

164

 

 

 

200

 

 

 

1

 

 

24 

 

 

 

 

Nine Months
Ended September 30,

 

 

Year Ended December 31,

 

(Dollars in thousands, except per share amounts)

 

 

2019

 

 

 

2018

 

 

20181

 

 

 

20171

 

 

 

20161

 

 

 

20151

 

 

 

20141

 

Loss from continuing operations, net of income taxes

 

 

(8,617

)

 

 

(10,665

)

 

 

(9,230

)

 

 

(19,700

)

 

 

(23,850

)

 

 

(29,176

)

 

 

(23,875

)

(Loss) gain on sale of discontinued operations, net of income taxes

 

 

 

 

 

(136

)

 

 

(136

)

 

 

14,626

 

 

 

 

 

 

 

 

 

 

Income (loss) from discontinued operations, net of income taxes(2)

 

 

 

 

 

 

 

 

 

 

 

7,301

 

 

 

2,903

 

 

 

(14,054

)

 

 

386

 

Total income (loss) from discontinued operations, net of income taxes

 

 

 

 

 

(136

)

 

 

(136

)

 

 

21,927

 

 

 

2,903

 

 

 

(14,054

)

 

 

386

 

Net Income (loss) attributable to common shareholders

 

 

(8,617

)

 

 

(10,801

)

 

 

(9,366

)

 

 

2,227

 

 

 

(20,947

)

 

 

(43,230

)

 

 

(23,489

)

Net Earnings (loss per share – basic and diluted)(3)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Loss per share from continued operations, net of income taxes

 

 

(0.19

)

 

 

(0.21

)

 

 

(0.18

)

 

 

(0.39

)

 

 

(0.46

)

 

 

(0.57

)

 

 

(0.47

)

Discontinued Operations, net of income taxes

 

 

 

 

 

 

 

 

 

 

 

0.43

 

 

 

0.06

 

 

 

(0.27

)

 

 

0.01

 

Net income (loss) per share

 

 

(0.19

)

 

 

(0.21

)

 

 

(0.18

)

 

 

0.04

 

 

 

(0.40

)

 

 

(0.84

)

 

 

(0.46

)

 

(1) Financial statements have been adjusted to reflect the sale of Telaria’s buy side business, which was sold on August 7, 2017, as discontinued operations.

 

(2) Includes impairment charges incurred during the year ended December 31, 2015 of (i) $20.9 million related to goodwill, (ii) $1.2 million related to certain intangible assets, and (iii) $0.6 million related to certain property and equipment.

 

(3) As a result of Telaria’s operating losses incurred for the years ended December 31, 2018, 2017, 2016, 2015 and 2014, all potentially dilutive securities are anti-dilutive and, accordingly, basic and diluted weighted-average number of shares of common stock outstanding is equal for the years presented.

 

25 

 

SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

 

The following table shows selected unaudited pro forma condensed combined financial information about the financial condition and results of operations of the combined company after giving effect to the merger as described in the section entitled Unaudited Pro Forma Condensed Combined Financial Information. The selected unaudited pro forma condensed combined balance sheet data as of September 30, 2019 give effect to the transactions as if they occurred on September 30, 2019. The selected unaudited pro forma condensed combined statement of operations data for the year ended December 31, 2018 and for the nine months ended September 30, 2019 give effect to the transactions if they occurred on January 1, 2018.

 

The selected pro forma data have been derived from, and should be read in conjunction with, the more detailed unaudited pro forma condensed combined financial information of the combined company appearing elsewhere in this joint proxy statement/prospectus and the accompanying notes to the pro forma financial information. Additionally, the unaudited pro forma condensed combined financial information contains estimated adjustments, based upon available information and certain assumptions that we believe are reasonable under the circumstances. The assumptions underlying the pro forma adjustments are described in greater detail in the section entitled Notes to Unaudited Pro Forma Condensed Combined Financial Information. In addition, the pro forma financial information were based on, and should be read in conjunction with, the historical consolidated financial statements and related notes of Rubicon Project and Telaria for the applicable periods, which have been incorporated in this joint proxy statement/prospectus by reference. See the sections entitled Selected Historical Consolidated Financial Data of Rubicon Project,” “Selected Historical Consolidated Financial Data of Telaria and Where You Can Find More Information for additional information.

 

 

 

 

(Dollars in thousands)

 

As of
September 30, 2019

 

Pro Forma Condensed Balance Sheet Data: 

 

 

 

 

Cash and cash equivalents

 

$

150,871

 

Accounts receivable, net

 

 

286,666

 

Working capital

 

 

75,843

 

Property and equipment, net

 

 

26,405

 

Right-of-use lease asset

 

 

46,852

 

Internal use software development costs, net

 

 

15,189

 

Intangible assets, net

 

 

180,870

 

Goodwill

 

 

294,464

 

Total assets

 

 

1,015,242

 

Total liabilities

 

 

414,348

 

Total stockholders’ equity

 

 

600,894

 

 

 

 

 

 

 

 

(Dollars in thousands, except per share amounts)

 

Nine Months Ended
September 30, 2019

 

 

Year Ended
December 31, 2018

 

Pro Forma Condensed Statement of Operations Data: 

 

 

 

 

 

 

 

 

Revenue

 

$

156,330

 

 

$

179,850

 

Cost of revenue

 

 

69,158

 

 

 

87,847

 

Sales and marketing

 

 

60,487

 

 

 

82,217

 

Technology and development

 

 

38,523

 

 

 

48,416

 

General and administrative

 

 

50,770

 

 

 

63,410

 

Restructuring and other exit costs

 

 

 

 

 

3,589

 

Total expenses

 

 

218,938

 

 

 

285,479

 

Loss from operations

 

 

(62,608

)

 

 

(105,629

)

Loss before income taxes

 

 

(58,514

)

 

 

(101,657

)

Provision (benefit) for income taxes

 

 

(465

)

 

 

347

 

Net loss

 

 

(58,049

)

 

 

(102,004

)

Basic net income (loss) per share attributable to common stockholders

 

$

(0.57

)

 

$

(1.01

)

 

26 

 

 

COMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA

 

The following table summarizes per share data (1) for Rubicon Project and Telaria on a historical basis, (2) for the combined company on an unaudited pro forma combined basis giving effect the merger and (3) on an unaudited pro forma combined equivalent basis.

 

The unaudited pro forma net income (loss) per share for the year ended December 31, 2018 reflects the transactions as if they had occurred on January 1, 2018. The unaudited pro forma book value per share as of September 30, 2019 reflects the transactions as if they had occurred on September 30, 2019.  Book value per share amounts are not calculated on a pro forma basis as of December 31, 2018 because the unaudited pro forma balance sheet has been determined as of September 30, 2019 only. The information in the table is based on, and should be read together with, the historical financial information of Rubicon Project and Telaria which is incorporated by reference in this joint proxy statement/prospectus and the financial information contained under Unaudited Pro Forma Condensed Combined Financial Information, Selected Historical Consolidated Financial Data of Rubicon Project and Selected Historical Consolidated Financial Data of Telaria. See the section entitled Where You Can Find More Information.

 

The unaudited pro forma combined per share data is presented for illustrative purposes only and is not necessarily indicative of actual or future financial position or results of operations that would have been realized if the transactions had been completed as of the dates indicated or will be realized upon the completion of the transactions. The summary pro forma information is preliminary, based on initial estimates of the fair value of assets acquired (including intangible assets) and liabilities assumed, and is subject to change as more information regarding the fair values is obtained, which changes could be materially different than the initial estimates.

 

 

Historical
The Rubicon
Project, Inc.

 

 

Historical
Telaria, Inc.

 

 

Unaudited Pro
Forma
Combined

 

 

Unaudited
Pro Forma
Combined
Equivalent(1)

 

Basic net income (loss) per share of common stock

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nine months ended September 30, 2019

 

$

(0.52

)

 

$

(0.19

)

 

$

(0.57

)

 

$

(0.61

)

Year ended December 31, 2018

 

$

(1.23

)

 

$

(0.18

)

 

$

(1.01

)

 

$

(1.10

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diluted net income (loss) per share of common stock

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nine months ended September 30, 2019

 

$

(0.52

)

 

$

(0.19

)

 

$

(0.57

)

 

$

(0.61

)

Year ended December 31, 2018

 

$

(1.23

)

 

$

(0.18

)

 

$

(1.01

)

 

$

(1.10

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash dividends declared per share

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nine months ended September 30, 2019

 

$

 

 

$

 

 

$

 

 

$

 

Year ended December 31, 2018

 

$

 

 

$

 

 

$

 

 

$

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Book value per share(2)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of September 30, 2019

 

$

1.96

 

 

$

1.21

 

 

$

5.81

 

 

$

6.29

 

As of December 31, 2018

 

$

2.31

 

 

$

1.23

 

 

 

n/a

 

 

 

n/a

 

(1)

Calculated by multiplying the pro forma combined data by the exchange ratio of 1.082.

(2)

The historical book value per share is computed by dividing total stockholders’ equity by the number of shares outstanding at the end of the relevant period.  The pro forma book value per share of the combined company is computed by dividing total pro forma stockholders’ equity by the pro forma number of shares of common stock outstanding at the end of the period. 

 

27 

 

 

COMPARATIVE PER SHARE MARKET PRICE INFORMATION and
implied value of merger consideration

 

The following table sets forth, for the periods indicated, the high and low closing sales prices per share for Rubicon Project common stock, which trades on the NYSE under the symbol “RUBI”, and for Telaria common stock, which trades on the NYSE under the symbol “TLRA”, on (1) December 18, 2019, the last trading day before the public announcement of the merger, and (2) January 29, 2020, the last full trading day for which high and low sales prices were available as of the date of this joint proxy statement/prospectus.

 

The table also includes the estimated equivalent high and low sales prices per share of Telaria common stock on those dates. These equivalent high and low sales prices per share reflect the fluctuating value of Rubicon Project common stock that Telaria stockholders would receive in exchange for each share of Telaria common stock if the merger were completed on either of these dates, by multiplying the closing price of a share of Rubicon Project common stock on the relevant date by the exchange ratio of 1.082.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  Rubicon Project Common
Stock

 

 

  Telaria Common Stock

 

 

Equivalent Telaria
Price per Share

 

 

 

High

 

 

Low

 

 

High

 

 

Low

 

 

High

 

 

Low

 

December 18, 2019

 

$

7.33

 

 

$

6.92

 

 

$

7.90

 

 

$

7.51

 

 

$

7.93

 

 

$

7.49

 

January 29, 2020

 

$

10.02

 

$

9.67

 

$

10.82

 

$

10.43

 

$

10.84

 

$

10.46

 

The above table shows only historical comparisons. These comparisons may not provide meaningful information to Rubicon Project stockholders in determining whether to approve the Rubicon Project share issuance proposal or Telaria stockholders in determining whether to approve the merger proposal.  Rubicon Project and Telaria stockholders are urged to obtain current market quotations for Rubicon Project and Telaria common stock and to review carefully the other information contained in this joint proxy statement/prospectus or incorporated by reference into this joint proxy statement/prospectus in considering whether to approve the issuance of shares of Rubicon Project common stock in the merger in the case of Rubicon Project stockholders, and whether to adopt the merger agreement and approve the transactions contemplated by the merger agreement in the case of Telaria stockholders. See the sections entitled “Risk Factors” and “Where You Can Find More Information” beginning on pages [●] and [●], respectively, of this joint proxy statement/prospectus.

 

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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This joint proxy statement/prospectus contains forward-looking statements, including statements based upon or relating to Rubicon Project’s and Telaria’s expectations, assumptions, estimates, and projections. In some cases, you can identify forward-looking statements by terms such as “may,” “might,” “will,” “objective,” “intend,” “should,” “could,” “can,” “would,” “expect,” “believe,” “design,” “anticipate,” “estimate,” “predict,” “potential,” “plan” or the negative of these terms, and similar expressions. Forward-looking statements may include, but are not limited to, statements concerning anticipated benefits of the merger, including estimated synergies and cost savings resulting from the merger; results of operations and business performance, including without limitation, any forecasts and financial projections; the expected timing of completion of the merger; estimated costs associated with such transactions; the ability of the combined company to drive growth and expand customer and partner relationships; statements of the plans, strategies and objectives of management for future operations; and other statements that are not historical facts. These statements are not guarantees of future performance; they reflect Rubicon Project’s and Telaria’s current views with respect to future events and are based on assumptions and estimates and subject to known and unknown risks, uncertainties and other factors that may cause actual results, performance or achievements to be materially different from expectations or results projected or implied by forward-looking statements. Such risks, uncertainties and other factors include, without limitation:

 

occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement or the failure to satisfy the closing conditions;

 

the possibility that the consummation of the proposed transactions is delayed or does not occur, including the failure of the parties’ stockholders to approve the proposed transactions;

 

uncertainty as to whether the parties will be able to complete the merger on the terms set forth in the merger agreement;

 

uncertainty regarding the timing of the receipt of required regulatory approvals for the merger and the possibility that the parties may be required to accept conditions that could reduce or eliminate the anticipated benefits of the merger as a condition to obtaining regulatory approvals or that the required regulatory approvals might not be obtained at all;

 

the outcome of any legal proceedings that have been or may be instituted against the parties or others following announcement of the transactions contemplated by the merger agreement;

 

challenges, disruptions and costs of closing, integrating and achieving anticipated synergies, or that such synergies will take longer to realize than expected;

 

risks that the merger and other transactions contemplated by the merger agreement disrupt current plans and operations that may harm the parties’ businesses;

 

the amount of any costs, fees, expenses, impairments and charges related to the merger;

 

uncertainty as to the effects of the announcement or pendency of the merger on the market price of the parties’ respective common stock and/or on their respective financial performance;

 

uncertainty as to the long-term value of Rubicon Project and Telaria common stock;

 

the business, economic and political conditions in the markets in which Rubicon Project and Telaria operate;

 

Rubicon Project’s and Telaria’s ability to continue to grow and to manage their growth effectively;

 

Rubicon Project’s and Telaria’s ability to develop innovative new technologies and remain market leaders;

 

Rubicon Project’s and Telaria’s ability to attract and retain buyers and sellers and increase business with them;

 

Rubicon Project’s and Telaria’s vulnerability to loss of, or reduction in spending by, buyers;

 

Rubicon Project’s and Telaria’s reliance on large sources of advertising demand and aggregators of advertising inventory;

 

29 

 

 

Rubicon Project’s and Telaria’s ability to maintain and grow a supply of advertising inventory from sellers and to fill the increased inventory;

 

the effect on the advertising market and Rubicon Project’s and Telaria’s businesses from difficult economic conditions or uncertainty;

 

the freedom of buyers and sellers to direct their spending and inventory to competing sources of inventory and demand;

 

uncertainty around industry growth estimates for CTV and the timing for such growth, and the shift of linear TV advertising dollars to digital video;

 

Rubicon Project’s and Telaria’s ability to cause buyers and sellers to use their solutions and to purchase and sell higher value advertising and to expand the use of their solutions by buyers and sellers utilizing evolving digital media platforms, including connected television, or CTV;

 

the concentration of CTV advertising spend among a small number of large publishers;

 

Rubicon Project’s and Telaria’s ability to introduce new offerings and bring them to market in a timely manner, and otherwise adapt in response to client demands and industry trends, including shifts in digital advertising growth from desktop to mobile and CTV, and from display to video formats, and the introduction and market acceptance of Rubicon Project’s Demand Manager;

 

the potential for larger buyers and sellers of advertising inventory to transact directly without the use of a technological intermediary;

 

uncertainty of Rubicon Project’s and Telaria’s estimates and expectations associated with new offerings, including CTV solutions, header bidding, private marketplace, mobile, video, Demand Manager, addressable audience buying and traffic shaping;

 

lower fees and take rate and the need to grow through advertising spend increases rather than fee increases;

 

Rubicon Project’s and Telaria’s ability to compensate for a reduced take rate by increasing the volume and/or value of transactions on their platforms and increasing their fill rates;

 

Rubicon Project’s and Telaria’s vulnerability to the depletion of their cash resources as they incur additional investments in technology required to support the increased volume of transactions on their exchanges and development of new offerings;

 

Rubicon Project’s and Telaria’s ability to raise additional capital if needed and/or renew their working capital lines of credit;

 

Rubicon Project’s and Telaria’s limited operating history and history of losses;

 

Rubicon Project’s and Telaria’s ability to continue to expand into new geographic markets and grow their market share in existing markets;

 

Rubicon Project’s and Telaria’s ability to effectively cross-market their product offerings to existing clients;

 

Rubicon Project’s and Telaria’s ability to adapt effectively to shifts in digital advertising;

 

increased prevalence of ad-blocking or cookie-blocking technologies and the slow adoption of common identifiers;

 

the slowing growth rate of desktop display advertising;

 

the growing percentage of online and mobile advertising spending captured by owned and operated sites (such as Facebook, Google and Amazon);

 

the effects, including loss of market share, of increased competition in Rubicon Project’s and Telaria’s markets and increasing concentration of advertising spending, including mobile spending, in a small number of very large competitors;

 

the effects of consolidation in the ad tech industry;

 

30 

 

 

acts of competitors and other third parties that can adversely affect Rubicon Project’s and Telaria’s businesses;

 

Rubicon Project’s and Telaria’s ability to differentiate their offerings and compete effectively in a market trending increasingly toward commodification, transparency, and disintermediation;

 

requests for discounts, fee concessions or revisions, rebates, refunds, favorable payment terms and greater levels of pricing transparency and specificity;

 

potential adverse effects of malicious activity such as fraudulent inventory and malware;

 

risks related to Rubicon Project’s and Telaria’s collection and use of data;

 

the effects of seasonal trends on Rubicon Project’s and Telaria’s results of operations;

 

costs associated with defending intellectual property infringement and other claims;

 

Rubicon Project’s and Telaria’s ability to attract and retain qualified employees and key personnel; and

 

Rubicon Project’s and Telaria’s ability to comply with, and the effect on their businesses of, evolving legal standards and regulations, particularly concerning data protection and consumer privacy and evolving labor standards.

 

The foregoing review of important fact