As filed with the Securities and Exchange Commission on September 20, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Rocket Fuel Inc.
(Exact name of Registrant as specified in its charter)
Delaware |
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30-0472319 |
(State or other jurisdiction of |
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(I.R.S. Employer |
350 Marine Parkway
Marina Park Center
Redwood City, CA 94065
(Address of principal executive offices, including zip code)
Rocket Fuel Inc. 2008 Equity Incentive Plan
Rocket Fuel Inc. 2013 Equity Incentive Plan
Rocket Fuel Inc. 2013 Employee Stock Purchase Plan
(Full title of the plan)
George H. John
Chief Executive Officer
Rocket Fuel Inc.
350 Marine Parkway
Marina Park Center
Redwood City, CA 94065
(650) 595-1300
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Steven E. Bochner Rachel B. Proffitt Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, California 94304 (650) 493-9300 |
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JoAnn C. Covington General Counsel Chief Privacy Officer Rocket Fuel Inc. 350 Marine Parkway Marina Park Center Redwood City, CA 94065 (650) 595-1300 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act (Check one).
Large accelerated filer |
o |
Accelerated filer |
o |
Non-accelerated filer |
x (Do not check if a smaller reporting company) |
Smaller reporting company |
o |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
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Amount |
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Proposed |
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Proposed |
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Amount of |
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Common Stock, $0.001 par value per share, reserved for issuance pursuant to stock option awards outstanding under the 2008 Equity Incentive Plan |
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7,541,522 |
(2) |
$ |
6.40 |
(6) |
$ |
48,265,740.80 |
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$ |
6,583.45 |
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Common Stock, $0.001 par value per share, reserved for issuance pursuant to restricted stock unit awards outstanding under the 2008 Equity Incentive Plan |
|
40,150 |
(3) |
$ |
29.00 |
(7) |
$ |
1,164,350.00 |
|
$ |
158.82 |
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Common Stock, $0.001 par value per share, reserved for issuance pursuant to the 2013 Equity Incentive Plan |
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5,000,000 |
(4) |
$ |
29.00 |
(8) |
$ |
145,000,000.00 |
|
$ |
19,778.00 |
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Common Stock, $0.001 par value per share, reserved for issuance pursuant to the 2013 Employee Stock Purchase Plan |
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1,000,000 |
(5) |
$ |
24.65 |
(9) |
$ |
24,650,000.00 |
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$ |
3,362.26 |
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TOTAL: |
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13,581,672 |
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|
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$ |
219,080,090.80 |
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$ |
29,882.52 |
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrants common stock that become issuable under the 2008 Equity Incentive Plan (the 2008 Plan), the 2013 Equity Incentive Plan (the 2013 Plan) and the 2013 Employee Stock Purchase Plan (the 2013 ESPP) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrants outstanding shares of common stock.
(2) Represents 7,541,522 shares of common stock reserved for issuance pursuant to stock option awards outstanding under the 2008 Plan as of the date of this Registration Statement. To the extent that any such awards are forfeited or lapse unexercised subsequent to the date of this Registration Statement, the shares of common stock reserved for issuance pursuant to such awards will become available for issuance under the 2013 Plan. See footnote 4 below.
(3) Represents 40,150 shares of common stock reserved for issuance pursuant to restricted stock unit awards outstanding under the 2008 Plan as of the date of this Registration Statement. To the extent that any such awards are forfeited or lapse subsequent to the date of this Registration Statement, the shares of common stock reserved for issuance pursuant to such awards will become available for issuance under the 2013 Plan. See footnote 4 below.
(4) Represents 5,000,000 shares of common stock reserved for issuance pursuant to awards under the 2013 Plan. To the extent that any awards outstanding under the 2008 Plan are forfeited or lapse subsequent to the date of this Registration Statement, the shares of common stock reserved for issuance pursuant to such awards as of the date of this Registration Statement will become available for issuance under the 2013 Plan. See footnote 2 and 3 above.
(5) Represents 1,000,000 shares of common stock reserved for issuance pursuant to awards under the 2013 ESPP.
(6) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $6.40, the weighted-average exercise price of options outstanding under the 2008 Plan as of the date of this Registration Statement.
(7) Estimated in accordance with Rule 457(h) solely for purpose of calculating the registration fee on the basis of $29.00, the initial public offering price set forth on the cover page of the Registrants prospectus dated the date of this Registration Statement (the Final Prospectus) relating to its initial public offering.
(8) Estimated in accordance with Rule 457(h) solely for purpose of calculating the registration fee on the basis of $29.00, the initial public offering price set forth on the cover page of the Final Prospectus.
(9) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of 85% of $29.00, the initial public offering price set forth on the cover page of the Final Prospectus. Pursuant to the 2013 ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be 85% of the lower of (i) the fair market value of the common stock on the first trading day of the offering period or (ii) the exercise date.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the Registration Statement) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the Securities Act), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Rocket Fuel Inc. (the Registrant) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the Commission):
(1) Amendment No. 3 to the Registrants Registration Statement on Form S-1 filed with the Commission on September 18, 2013 (File No. 333-190695), which contains the Registrants financial statements for the latest fiscal year for which such statements have been filed;
(2) The Registrants prospectus to be filed with the Commission on or about September 20, 2013, pursuant to Rule 424(b) under the Securities Act, relating to the Registration Statement on Form S-1, as amended (File No. 333-190695); and
(3) The description of the Registrants Common Stock contained in the Companys Registration Statement on Form 8-A (File No. 001-36071) filed with the Commission on September 16, 2013, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a corporations board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrants amended and restated certificate of incorporation includes provisions that eliminate the personal liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, the amended and restated certificate of incorporation and amended and restated bylaws of the Registrant provide that:
· The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrants request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such persons conduct was unlawful.
· The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
· The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
· The Registrant is not obligated pursuant to the amended and restated bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrants board of directors or brought to enforce a right to indemnification.
· The rights conferred in the amended and restated certificate of incorporation and amended and restated bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons.
· The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees and agents.
The Registrant has entered into separate indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also to provide for certain additional procedural protections. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.
These indemnification provisions and the indemnification agreements entered into between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the Registrants officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
Exhibit |
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Description | |
4.1 |
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Specimen common stock certificate of Registrant (which is incorporated herein by reference to Exhibit 4.1 to the Registrants Registration Statement on Form S-1 (Registration No. 333-190695), as declared effective by the Commission on September 19, 2013 (the Registrants Form S-1)). |
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5.1 |
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. |
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23.1 |
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto). |
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23.2 |
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. |
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24.1 |
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Power of Attorney (contained on signature page hereto). |
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99.1 |
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2008 Equity Incentive Plan, as amended, and form agreements thereunder (which are incorporated herein by reference to Exhibit 10.7 to the Registrants Form S-1). |
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99.2 |
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2013 Equity Incentive Plan and form agreements thereunder (which is incorporated herein by reference to Exhibit 10.8 to the Registrants Form S-1). |
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99.3 |
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2013 Employee Stock Purchase Plan (which is incorporated herein by reference to Exhibit 10.9 to the Registrants Form S-1). |
Item 9. 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;
(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 a 20 percent 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.
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans 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. 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 Commission such indemnification is against public policy as expressed in the Securities 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 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Redwood City, State of California, on September 19, 2013.
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ROCKET FUEL INC. | |
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By: |
/s/ George H. John |
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George H. John |
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Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints George H. John and J. Peter Bardwick and each of them, as his true and lawful attorney-in-fact and agent with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, proxy and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ George H. John |
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Co-Founder, Chief Executive Officer and |
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September 19, 2013 |
George H. John |
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(Principal Executive Officer) |
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/s/ J. Peter Bardwick |
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Chief Financial Officer |
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September 19, 2013 |
J. Peter Bardwick |
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(Principal Accounting and Financial Officer) |
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/s/ Richard Frankel |
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Richard Frankel |
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Co-Founder, President and Director |
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September 19, 2013 |
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/s/ Susan L. Bostrom |
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Susan L. Bostrom |
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Director |
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September 19, 2013 |
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/s/ Ronald E. F. Codd |
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Ronald E. F. Codd |
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Director |
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September 19, 2013 |
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/s/ William Ericson |
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William Ericson |
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Director |
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September 19, 2013 |
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/s/ John Gardner |
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John Gardner |
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Director |
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September 19, 2013 |
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/s/ Clark Kokich |
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Clark Kokich |
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Director |
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September 19, 2013 |
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/s/ Monte Zweben |
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Monte Zweben |
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Director |
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September 19, 2013 |
INDEX TO EXHIBITS
Exhibit |
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Description |
4.1 |
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Specimen common stock certificate of Registrant (which is incorporated herein by reference to Exhibit 4.1 to the Registrants Registration Statement on Form S-1 (Registration No. 333- 190695), as declared effective by the Commission on September 19, 2013 (the Registrants Form S-1)). |
5.1 |
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. |
23.1 |
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto). |
23.2 |
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. |
24.1 |
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Power of Attorney (contained on signature page hereto). |
99.1 |
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2008 Equity Incentive Plan, as amended, and form agreements thereunder (which are incorporated herein by reference to Exhibit 10.7 to the Registrants Form S-1). |
99.2 |
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2013 Equity Incentive Plan and form agreements thereunder (which is incorporated herein by reference to Exhibit 10.8 to the Registrants Form S-1). |
99.3 |
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2013 Employee Stock Purchase Plan (which is incorporated herein by reference to Exhibit 10.9 to the Registrants Form S-1). |
Exhibit 5.1
OPINION OF WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
September 20, 2013
Rocket Fuel Inc.
350 Marine Parkway
Marina Park Center
Redwood City, CA 94065
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the Registration Statement) to be filed by Rocket Fuel Inc., a Delaware corporation, with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of 7,581,672 shares of Common Stock reserved for issuance pursuant to the Rocket Fuel Inc. 2008 Equity Incentive Plan, 5,000,000 shares of Common Stock reserved for issuance pursuant to the Rocket Fuel Inc. 2013 Equity Incentive Plan and 1,000,000 shares of Common Stock reserved for issuance pursuant to the Rocket Fuel Inc. 2013 Employee Stock Purchase Plan (which plans are referred to herein as the Plans and which shares of Common Stock are referred to herein as the Shares).
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plans and pursuant to the agreements that accompany the Plans, will be legally and validly issued, fully paid, and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.
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Very truly yours, |
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/s/ Wilson Sonsini Goodrich & Rosati, P.C. |
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WILSON SONSINI GOODRICH & ROSATI |
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Professional Corporation |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 23, 2013 (July 2, 2013 as to the effects of the restatement discussed in Note 15) relating to the consolidated financial statements of Rocket Fuel Inc. and subsidiary, appearing in the Rocket Fuel Inc.s Amendment No. 3 to the Registration Statement (Form S-1 No. 333-190695) filed on September 18, 2013.
/s/ DELOITTE & TOUCHE LLP |
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San Jose, CA |
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September 19, 2013 |
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