MAGNITE, INC. — M&A Activity 2020

Feb 7, 2020

S-4/A 1 rubi-s4a_020720.htm AMENDMENT TO FORM S-4 rubi-s4a_020720

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As filed with the Securities and Exchange Commission on February 7, 2020

Registration No. 333-236174

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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AMENDMENT NO. 1

TO

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

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THE RUBICON PROJECT, INC.

(Exact name of registrant as specified in its charter)

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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)

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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)

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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

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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) ☐

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.

PART II: INFORMATION NOT REQUIRED IN PROSPECTUS

Item 20. Indemnification of Officers and Directors

Rubicon Project is a Delaware corporation. Section 145 of the DGCL allows for the indemnification of officers, directors and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. Article X of Rubicon Project’s Sixth Amended and Restated Certificate of Incorporation and Article VI of the Rubicon Project’s Amended and Restated Bylaws authorize indemnification of Rubicon Project’s directors, officers, employees and other agents to the extent and under the circumstances permitted by the DGCL.

Rubicon Project’s Amended and Restated Bylaws also expressly authorize Rubicon Project to carry directors’ and officers’ insurance providing indemnification to its directors and officers for some liabilities. Rubicon Project maintains directors’ and officers’ liability insurance.

In addition, Rubicon Project has entered into agreements to indemnify its directors and executive officers.

The above discussion of the DGCL and of Rubicon Project’s Sixth Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws, and indemnification agreements is not intended to be exhaustive and is qualified in its entirety by such statute, certificate of incorporation, bylaws and indemnification agreements.

Item 21. Exhibits and Financial Statement Schedules

The exhibits listed below in the “Exhibit Index” are part of the registration statement and are numbered in accordance with Item 601 of Regulation S-K.

The exhibits contain representations, warranties and covenants that were made by the parties to the applicable agreement only for purposes of that agreement and solely for the benefit of the parties to that agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing these matters as facts, as well as by information contained in certain filings and documents incorporated by reference in the registration statement, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. In addition, in the case of the merger agreement, such representations and warranties (1) will not survive completion of the merger and cannot be the basis for any claims under the merger agreement by the other party after termination of the merger agreement, except as a result of fraud or a willful breach, and (2) were made only as of the dates specified in the merger agreement. Accordingly, the merger agreement is not included to provide investors with any factual information regarding the parties or their respective businesses.

Rubicon Project and Telaria acknowledge that, notwithstanding the inclusion of the foregoing cautionary statements, they are responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in the registration statement not misleading. Additional information about Rubicon Project and Telaria may be found elsewhere in the registration statement and Rubicon Project’s and Telaria’s other public filings, which are available without charge through the SEC’s website at www.sec.gov . See “Where You Can Find More Information.”

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Exhibit Index

Exhibit	Description
2.1†	Agreement and Plan of Merger, dated as of December 19, 2019, by and among The Rubicon Project, Inc., Madison Merger Corp. and Telaria, Inc. (included as Annex A to the joint proxy statement/prospectus contained in this registration statement)
3.1	Sixth Amended and Restated Certificate of Incorporation of Rubicon Project (incorporated by reference to Exhibit 3.1 to the Rubicon Project’s Quarterly Report on Form 10-Q filed with the Commission on May 15, 2014)
3.2	Amended and Restated Bylaws of Rubicon Project (incorporated by reference to Exhibit 3.1 to Rubicon Project’s Current Report on Form 8-K filed with the Commission on April 8, 2016)
3.3	Form of Second Amended and Restated Bylaws of Rubicon Project (included as Annex B to the joint proxy statement/prospectus contained in this registration statement)
5.1	Opinion of Gibson, Dunn & Crutcher LLP as to the validity of the shares of Rubicon Project common stock to be issued in the Merger
8.1	Opinion of Gibson, Dunn & Crutcher LLP as to certain tax matters
8.2	Opinion of Cooley LLP as to certain tax matters
23.1	Consent of Gibson, Dunn & Crutcher LLP for legality and tax opinions (included in Exhibits 5.1 and 8.1)
23.2	Consent of Cooley LLP for tax opinion (included in Exhibit 8.2)
23.3	Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm of Rubicon Project
23.4	Consent of Deloitte & Touche LLP, independent registered public accounting firm of Rubicon Project
23.5	Consent of Ernst & Young LLP, independent registered public accounting firm of Telaria
24.1*	Power of Attorney of Directors of Rubicon Project (included on the signature page of this registration statement)
99.1	Consent of Needham & Company, LLC
99.2*	Consent of RBC Capital Markets, LLC
99.3*	Consent of Paul Caine to be named as a director
99.4*	Consent of Doug Knopper to be named as a director
99.5*	Consent of Rachel Lam to be named as a director
99.6*	Consent of James Rossman to be named as a director
99.7	Form of Rubicon Project Proxy Card
99.8	Form of Telaria Proxy Card

† Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K.

• Previously Filed

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Item 22. Undertakings

(a) The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i)	To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)	To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)	To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

(2)	That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial, bona fide offering thereof.
(3)	To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)	That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5)	That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i)	Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)	Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)	The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)	Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

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(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)

The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.

(2)

The registrant undertakes that every prospectus: (i) that is filed pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.

The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

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Signatures

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California, on February 7, 2020.

/s/ Michael G. Barrett
Name:	Michael G. Barrett
Title:	President and Chief Executive Officer

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints David Day, Jonathan Feldman and Blima Tuller, or either of them individually, as his or her true and lawful attorney in fact and agent, with full powers of substitution and resubstitution, for and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post effective amendments, exhibits thereto and other documents in connection therewith) to this registration statement and any subsequent registration statement we may hereafter file with the Securities and Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to register additional securities in connection with this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys in fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys in fact and agents, or any of them individually, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons, in the capacities indicated below, on February 7, 2020.

Signature	Title
/s/ Michael G.
Barrett
Michael G.
Barrett	President, Chief
Executive Officer and Director (Principal Executive Officer)
/s/
David Day
David Day	Chief Financial
Officer (Principal Financial Officer)
/s/
Blima Tuller
Blima Tuller	Chief Accounting
Officer (Principal Accounting Officer)
*
Frank Addante	Director
*
Robert F. Spillane	Director
*
Robert J. Frankenberg	Director
*
Lisa L. Troe	Director
*
Lewis W. Coleman	Director
*
Sarah P. Harden	Director

• Jonathan Feldman, by signing his name hereto, does hereby sign this registration statement on behalf of the directors of the registrant above in front of whose name asterisks appear, pursuant to powers of attorney duly executed by such directors and filed with the SEC.

By:
Jonathan Feldman
Attorney-in-Fact