UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant
to Section 13 OR 15(d)
of
the Securities Exchange Act of 1934
January
14, 2020
Date
of Report (Date of earliest event reported)
THE
RUBICON PROJECT, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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001-36384
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20-8881738
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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12181
Bluff Creek Drive, 4th Floor
Los
Angeles, CA 90094
(Address
of principal executive offices, including zip code)
(310)
207-0272
(Registrant’s
telephone number, including area code)
Not
applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☒
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
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Trading
Symbol(s)
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Name
of each exchange on which registered
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Common
Stock
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RUBI
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NYSE
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Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§
230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
8.01. Other Events.
On
January 14, 2020, the U.S. Federal Trade Commission granted early termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the “HSR Act”), with respect to the proposed combination of
The Rubicon Project, Inc., a Delaware corporation (“Rubicon Project”) and Telaria, Inc., a Delaware corporation
(“Telaria”) pursuant to that certain Agreement and Plan of Merger, dated December 19, 2019 (the “Merger
Agreement”). The early termination of the waiting period under the HSR Act satisfies one of the conditions to the closing
of the transaction, which remains subject to other customary closing conditions, including receipt of stockholder approval by
the stockholders of Rubicon Project and Telaria.
Forward-Looking Statements
This document may contain 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 financial performance, including, without limitation, revenue,
advertising spend, non-GAAP loss per share, profitability, net income (loss), Adjusted EBITDA, earnings per share, and cash flow;
strategic objectives, including focus on header bidding, mobile, video, Demand Manager, and private marketplace opportunities;
investments in Rubicon Project’s or Telaria’s business; development of Rubicon Project’s or Telaria’s technology;
introduction of new offerings; the impact of transparency initiatives Rubicon Project or Telaria may undertake; the impact of Rubicon
Project’s traffic shaping technology on its business; the effects of cost reduction initiatives; scope and duration of client
relationships; the fees Rubicon Project or Telaria may charge in the future; business mix and expansion of Rubicon Project’s
or Telaria’s mobile, video and private marketplace offerings; sales growth; client utilization of Rubicon Project’s
or Telaria’s offerings; Rubicon Project’s or Telaria’s competitive differentiation; Rubicon Project’s or
Telaria’s market share and leadership position in the industry; market conditions, trends, and opportunities; user reach;
certain statements regarding future operational performance measures including ad requests, fill rate, paid impressions, average
CPM, take rate, and advertising spend; benefits from supply path optimization; anticipated benefits of the merger, including estimated
synergies and cost savings resulting from the merger; the expected timing of completion of the merger; estimated costs associated
with such transactions; 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. These
risks include, but are not limited to: 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’s and Telaria’s 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; 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; Rubicon Project’s and Telaria’s ability to adapt effectively to shifts in digital advertising;
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; 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; potential adverse effects
of malicious activity such as fraudulent inventory and malware; 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 factors should not be construed
as exhaustive and should be read in conjunction with the other cautionary statements that are included herein and elsewhere, including
the risk factors included in Rubicon Project’s and Telaria’s most recent reports on Form 10-K, Form 10-Q, Form 8-K
and other documents on file with the SEC. These forward-looking statements represent estimates and assumptions only as of the
date made. Unless required by federal securities laws, Rubicon Project and Telaria assume no obligation to update any of these
forward-looking statements, or to update the reasons actual results could differ materially from those anticipated, to reflect
circumstances or events that occur after the statements are made. Given these uncertainties, investors should not place undue
reliance on these forward-looking statements. Investors should read this document with the understanding that Rubicon Project’s
and Telaria’s actual future results may be materially different from what Rubicon Project and Telaria expect. Rubicon Project
and Telaria qualify all of their forward-looking statements by these cautionary statements.
No
Offer or Solicitation
This
communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of
any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities
shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
Additional
Information and Where to Find It
In
connection with the proposed merger, Rubicon Project intends to file with the United States Securities and Exchange Commission
(“SEC”) a registration statement on Form S-4, which will include a document that serves as a prospectus of
Rubicon Project and a joint proxy statement of Rubicon Project and Telaria (the “joint proxy statement/prospectus”).
After the registration statement has been declared effective by the SEC, the joint proxy statement/prospectus will be delivered
to stockholders of Rubicon Project and Telaria. SECURITY HOLDERS OF RUBICON PROJECT AND TELARIA ARE URGED TO READ THE JOINT PROXY
STATEMENT/PROSPECTUS (INCLUDING ALL AMENDMENTS AND SUPPLEMENTS THERETO) AND OTHER DOCUMENTS RELATING TO THE MERGER THAT WILL BE
FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. Investors
and security holders will be able to obtain copies of the joint proxy statement/prospectus (when available) and other documents
filed by Rubicon Project and Telaria, without charge, through the website maintained by the SEC at http://www.sec.gov. Copies
of documents filed with the SEC by Rubicon Project will be made available free of charge on Rubicon Project’s website at
https://rubiconproject.com/ under the link “Investor” and then under the heading “Financials and Filings”
and the subheading “SEC Filings.” Copies of documents filed with the SEC by Telaria will be made available free of
charge on Telaria’s website at https://telaria.com/ under the link “Investor Relations” and then under
the heading “SEC Filings.”
Participants
in the Solicitation
Rubicon
Project and Telaria and their respective directors and executive officers may be deemed to be participants in the solicitation
of proxies from the holders of Rubicon Project common stock and Telaria common stock in respect of the proposed transaction. Information
about Rubicon Project’s directors and executive officers is set forth in Rubicon Project’s Form 10-K for the year
ended 2018 and the proxy statement for Rubicon Project’s 2019 Annual Meeting of Stockholders, which were filed with the
SEC on February 27, 2019 and April 5, 2019, respectively. Information about Telaria’s directors and executive officers
is set forth in Telaria’s Form 10-K for the year ended 2018 and the proxy statement for Telaria’s 2019 Annual Meeting
of Stockholders, which were filed with the SEC on March 19, 2019 and April 24, 2019, respectively. Additional information
regarding the participants in the proxy solicitation and a description of their direct and indirect interests, through securities
holdings or otherwise, will be contained in the joint proxy statement/prospectus and other relevant materials to be filed with
the SEC regarding the proposed merger when they become available. Investors should read the joint proxy statement/prospectus carefully
when it becomes available before making any voting or investment decisions.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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THE
RUBICON PROJECT, INC.
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Date:
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January
16, 2020
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By:
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/s/
Jonathan Feldman
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Jonathan
Feldman
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Co-General
Counsel and Secretary
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Telaria (NYSE:TLRA)
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