RUBICON TECHNOLOGIES, INC. Item 1.01 Entry into a Material Definitive Agreement.
Eighth Amended and Restated Limited Liability Company Agreement of
In connection with the Closing, New Rubicon and the Rubicon Continuing Unitholders entered into the A&R LLCA. Pursuant to the A&R LLCA, New Rubicon serves as managing member of Rubicon; as sole manager, New Rubicon is generally able to control the day-to-day business affairs and decision-making of Rubicon without the approval of any other member. The A&R LLCA, among other things, provides ClassB Unit holders with a right, from time to time, to elect to surrender ClassB Units (an "Elective Exchange") in exchange for (a) shares of Domestication Class A Common Stock, (b) cash, or (c) a combination of cash and Domestication Class A Common Stock, on the terms and subject to the conditions set forth in the A&R LLCA and the Policy Regarding Exchanges set forth as Annex E thereto. Upon the exchange of a ClassB Unit , one share of Domestication Class V Common Stock held by such ClassB Unit holder will be automatically cancelled. Holders may make an Elective Exchange on a quarterly exchange date set by Rubicon, or prior to (i) certain extraordinary transactions (e.g., merger, consolidation) involving Rubicon or New Rubicon or (ii) an Applicable Sale or Termination Transaction (each as defined in the A&R LLCA). At least two business days before an exchange date, New Rubicon will give written notice of its intended form of exchange consideration; if it does not timely deliver such notice, New Rubicon will be deemed to have elected to settle the exchange with shares of Domestication Class A Common Stock. Beginning on the date on which the aggregate interest of holders of ClassB Units (other than the Class A Units and ClassB Units held directly or indirectly by New Rubicon) is less than fifteen (15) percent, Rubicon shall have the right, but not the obligation, to redeem all (but not less than all) outstanding ClassB Units . ClassB Units may be redeemed, at Rubicon's election, for either shares of Domestication Class A Common Stock, cash of an equivalent value, or a combination thereof, in each case subject to certain adjustments made pursuant to and in accordance with the terms of the A&R LLCA.
A description of the A&R LLCA is included in the Proxy Statement/Consent Solicitation Statement/Prospectus in the section entitled "Proposal 1-The . . .
Item 2.01 Completion of Acquisition or Disposition of Assets.
The disclosure set forth in the "Introductory Note" above, including with respect to the Mergers, is incorporated into this Item 2.01 by reference.
Each of the proposals included in the Proxy Statement/Consent Solicitation
Statement/Prospectus was approved by Founder's shareholders at an extraordinary
general meeting of shareholders held on
As of the Closing Date, and immediately following the consummation of the transactions contemplated by the Merger Agreement (the "Business Combination"), New Rubicon had the following issued and outstanding securities:
? 46,300,005 shares of Domestication Class A Common Stock (inclusive of
issuances pursuant to the Merger Agreement, Rubicon Equity Investment
Agreement, PIPE Financing, and Additional PIPE Financing);
? 114,411,906 shares of Domestication Class V Common Stock;
? 15,812,476 Domestication Public Warrants, each exercisable for one share of
Domestication Class A Common Stock at a price of
? 14,204,375 Domestication Private Warrants, each exercisable for one share of
Domestication Class A Common Stock at a price of
The above figures do not include the (a) 114,411,906 issued and outstanding ClassB Units which may be exchanged for an equivalent number of Domestication Class A Common Stock pursuant to the A&R LLCA, (b) 4,265,971 shares of Domestication Class V Common Stock (and an equivalent number of ClassB Units ) issuable by New Rubicon pursuant to the Merger Agreement upon receipt by New Rubicon of the required documentation set forth in the Merger Agreement, including a letter of transmittal, (c) 1,488,519 Earn-Out Class A Shares, (d) 8,900,840 Earn-Out Class V Shares, and (e) 8,900,840 Earn-Out Units which may be exchanged for an equivalent number of shares of Domestication Class A Common Stock pursuant to the A&R LLCA. The Earn-Out Interests and their vesting conditions and terms are described in the section entitled "Proposal 1-The Business Combination Proposal-The Merger Agreement-Earn-Out Consideration" beginning on page 81 of the Proxy Statement/Consent Solicitation Statement/Prospectus, which description is incorporated herein by reference. 7 FORM 10 INFORMATION . . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
Prior to the consummation of the Business Combination, the Founder Units, Founder Class A Shares and Founder Public Warrants were listed on theNasdaq Stock Market LLC ("Nasdaq") under the symbols, "FOUNU", "FOUN" and "FOUNW", respectively. On the Closing Date, all of the issued and outstanding Founder Units separated into their component securities and the Founder Units, Founder Public Warrants and Founder Class A Shares ceased trading on Nasdaq. In connection with the Business Combination, the Domestication Class A Common Stock and Domestication Public Warrants were approved for listing on NYSE. The Domestication Class A Common Stock and Domestication Public Warrants began trading on NYSE under the symbols "RBT" and "RBT WS" onAugust 16, 2022 .
Item 3.02 Unregistered Sales of
The descriptions of the Subscription Agreements and the Rubicon Equity Investment Agreement set forth above under "Introductory Note" of this Current Report on Form 8-K are incorporated herein by reference. The information regarding unregistered sales of equity securities set forth under "Item 2.01 Completion of Acquisition or Disposition of Assets-Recent Sales ofUnregistered Securities " in this Current Report on Form 8-K is incorporated herein by reference. In connection with the Closing, pursuant to the Merger Agreement, New Rubicon issued 114,411,906 ClassB Units to certain former holders of Rubicon Interests (and reserved an additional 4,265,971 ClassB Units for issuance to certain former holders of Rubicon Interests upon completion and delivery of certain letter of transmittal documents required pursuant the Merger Agreement). In addition, pursuant to the Merger Agreement, such holders are also entitled to receive a pro rata portion of up to 8,900,840 Earn-Out Units and an equivalent number of shares of Domestication Class V Common Stock, in each case, to be issued by New Rubicon depending upon the performance of the Domestication Class A Common Stock during the five (5) year period following the Closing. ClassB Units (including such units issued as Earn-Out Units) may be exchanged for an equivalent number of Domestication Class A Common Stock pursuant to the A&R LLCA. As a result, New Rubicon will issue up to 127,578,717 shares of Domestication Class A Common Stock (inclusive of Earn-Out Units), subject to adjustment for stock splits, stock dividends, reclassifications or similar transactions, in exchange for ClassB Units , along with the cancellation of an equal number of shares of Domestication Class V Common Stock, and if not issued in registered transactions, such shares will be issued in reliance upon the exemptions set forth in Sections 3(a)(9) and 4(a)(2) of the Securities Act.
Item 3.03 Material Modification to Rights of Security Holders.
On the Closing Date, concurrently with the Domestication, Founder filed the certificate of incorporation of New Rubicon with the Secretary of State of theState of Delaware . The material terms of the Charter and the general effects on the rights of holders of New Rubicon's capital stock are described in the sections of the Proxy Statement/Consent Solicitation Statement/Prospectus entitled "Proposal 3-The Charter Proposal" beginning on page 108, which information is incorporated herein by reference. A copy of the Charter is filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated herein by reference. In addition, upon the Closing, pursuant to the terms of the Merger Agreement, New Rubicon adopted bylaws (the "Bylaws"). A copy of the Bylaws is filed as Exhibit 3.3 to this Current Report on Form 8-K and is incorporated herein by reference. 33
Item 5.01 Changes in Control of the Registrant
The information set forth above under "Introductory Note" and in the section entitled "Security Ownership of Certain Beneficial Owners and Management" in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Incentive Plan
The information set forth under the heading "Equity Incentive Plan" in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Directors and Executive Officers
The information regarding New Rubicon's directors and executive officers and the compensation that will be paid to them set forth under the heading "Information about Directors and Executive Officers" in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference. The information regarding Founder's directors and executive officers and their resignations in connection with the Closing set forth under the heading "Resignations and Appointments" in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information set forth in Item 3.03 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.05 Amendments to the Registrant's Code of Ethics
OnAugust 15, 2022 , the Board adopted a Code of Business Conduct and Ethics (the "Code") applicable to all directors, officers, employees, and certain affiliates of New Rubicon. Among other things, the Code establishes certain guidelines and principles relating to ethics, conflicts of interest, corporate opportunities, confidentiality, compliance with laws, insider trading, anti-corruption and bribery, books and records, data security, external communications and political contributions, internal reporting and compliance procedures. The foregoing description of the Code is not complete and is qualified in its entirety by reference to the complete text of Code, a copy of which is attached hereto as Exhibit 14.1 and is incorporated herein by reference.
Item 5.06 Change in Shell Company Status
As a result of the Mergers, which fulfilled the definition of a business combination as required by the amended and restated memorandum and articles of association of Founder, datedOctober 14, 2021 , Founder ceased to be a shell company (as defined in Rule 12b-2 of the Exchange Act) as of the Closing Date. The material terms of the Mergers are described in the Proxy Statement/Consent Solicitation Statement/Prospectus in the section entitled "Proposal 1-The Business Combination Proposal-The Merger Agreement" beginning on page 80, which description is incorporated herein by reference.
Item 7.01. Regulation FD Disclosure.
On
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Item 9.01 Financial Statements and Exhibits
(a) Financial Statements of Business Acquired
The audited financial statements of Founder as ofDecember 31, 2021 and for the period fromApril 26, 2021 (inception) throughDecember 31, 2021 and the related notes beginning on page F-3 of the Proxy Statement/Consent Solicitation Statement/Prospectus are incorporated herein by reference. The unaudited condensed financial statements as of and for the three and six months endedJune 30, 2022 and 2021, and the related notes thereto beginning on page 5 of the Form 10-Q, are incorporated herein by reference. The audited consolidated financial statements of Rubicon as ofDecember 31, 2021 and 2020 and for the years endedDecember 31, 2021 and 2020 and the related notes beginning on page F-37 of the Proxy Statement/Consent Solicitation Statement/Prospectus are incorporated herein by reference. The unaudited consolidated financial statements of Rubicon as of and for the three and six months endedJune 30, 2022 and 2021 are set forth in Exhibit 99.2 hereto and are incorporated by reference herein.
(b) Pro Forma Financial Information
The unaudited pro forma condensed combined balance sheet as ofJune 30, 2022 and the unaudited pro forma condensed combined statement of operations for the six months endedJune 30, 2022 and the year endedDecember 31, 2021 is set forth in Exhibit 99.4 hereto and is incorporated by reference herein. (d) Exhibits Incorporated by Reference Schedule/ Exhibit Description Form File Number Exhibits Filing Date
2.1# Merger Agreement, dated as of Form 8-K 001-40910 2.1 December
December 15, 2021, by and among 17, 2021
Founder, Merger Sub, the Blocker
Companies, the Blocker Merger
Subs and Rubicon.
3.1 Second Amended and Restated Form 8-K 001-40910 3.1 October
Memorandum and Articles of 20, 2021
Association of Founder.
3.2 Certificate of Incorporation of
Rubicon Technologies, Inc.
3.3 Bylaws of Rubicon Technologies,
Inc.4.3 Specimen Warrant Certificate of Form S-1/A 333-258158 4.3 October
Founder. 12, 2021
4.4 Warrant Agreement, dated Form 8-K 001-40910 4.1 October
October 14, 2021, by and between 20, 2021
Founder and Continental Stock
Transfer & Trust Company, as
warrant agent.
4.5 Amendment of Warrant Agreement,
dated August 15, 2022, by and
between Rubicon Technologies,
Inc. and Continental Stock
Transfer & Trust Company, as
warrant agent.
4.6 Specimen Class A Common Stock Form S-4/A 333-262465 4.5
Certificate of Rubicon 2022
Technologies, Inc.
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10.1 Letter Agreement, dated October Form 8-K 001-40910 10.1 October
14, 2021, by and among Founder, 20, 2021
its executive officers, its
directors and Sponsor.10.2* Indemnity Agreements, dated Form S-1/A 333-258158 10.4 October
October 14, 2021 , by and among 12, 2021 Founder and its directors and officers. 10.3* Form of Indemnification Agreement ofRubicon Technologies, Inc. 10.4*Rubicon Technologies, Inc. 2022 Equity Incentive Plan. 10.5# Amended and Restated Registration Rights Agreement, dated as ofAugust 15, 2022 , by and among Founder, Sponsor, Rubicon, and certain equityholders of Rubicon.
10.6 Form of Lock-Up Agreement, by Form 8-K 001-40910 10.4 December
and among Founder, Rubicon and 17, 2021
certain equityholders of
Rubicon.10.7 Form of Subscription Agreement Form 8-K 001-40910 10.3 December
by and among Founder and the 17, 2021
subscriber parties thereto.
10.8 Sponsor Agreement by and among Form 8-K 001-40910 10.1 December
Founder, Rubicon, Sponsor, and 17, 2021
certain insiders of Founder.
10.9# Eighth Amended and Restated
Limited Liability Company
Agreement of Rubicon Technologies
Holdings, LLC .
10.10# Tax Receivable Agreement, dated
August 15, 2022 , by and among New
Rubicon, Rubicon, the TRA
Representative, and certain
former equityholders of
Rubicon.
10.11* Amended and Restated Employment
Agreement, by and between Nate
Morris and Rubicon Global
Holdings, LLC , effective as of
February 9, 2021 , as amended on
April 26, 2022 and August 10,
2022 .
10.12* Employment Agreement, by and Form S-4/A 333-262465 10.19
between Phil Rodoni and Rubicon 2022
Global Holdings, LLC , dated as of
November 17, 2016 , as amended on
April 20, 2019 , April 16, 2020 ,
August 4, 2020 , January 3, 2021 ,
February 3, 2021 , and November
30, 2021 .
10.13* Employment Agreement, by and Form S-4/A 333-262465 10.20
between Michael Heller and 2022
Rubicon Global Holdings, LLC,
dated as of November 17, 2016, as
amended on July 11, 2018, January
5, 2019, April 16, 2020,
September 17, 2020, January 3,
2021, and February 3, 2021.
10.14 Rubicon Equity Investment Form S-4/A
333-262465 10.21
Agreement, dated May 25, 2022 , by 2022
and among Rubicon, Founder,
Sponsor, MBI Holdings LP , David
Manuel Gutiérrez Muguerza, Raul
Manuel Gutiérrez Muguerza, and
Sergio Manuel Gutiérrez
Muguerza.
10.15 Form of Insider Loan, dated
July 19, 2022 , by and between
Rubicon and each of those certain
members, affiliates, directors
and officers of Rubicon.
10.16 Sponsor Forfeiture Agreement,
dated August 15, 2022 , by and
among Founder, Sponsor and
Rubicon.10.17 Underwriting Agreement, dated Form 8-K 001-40910 1.1 October
October 14, 2021 , by and between 19, 2021Founder andJefferies LLC , as representative of the underwriters.
10.18 Forward Purchase Agreement, Form 8-K 001-40910 10.1 August
dated August 4, 2022, by and 5, 2022
among ACM ARRT F LLC, Founder,
and Rubicon.
36
10.19# Fourth Amendment to Loan and
Security Agreement, dated April
26, 2022, by and among Rubicon
Global, LLC, RiverRoad Waste
Solutions, Inc., Rubicon, Cleanco
LLC, Charter Waste Management,
Inc. and Pathlight Capital LP.
10.20# Loan and Security Agreement,
dated December 21, 2021, by and
among Rubicon Global, LLC,
RiverRoad Waste Solutions, Inc.,
Rubicon, Cleanco LLC, Charter
Waste Management, Inc., Rubicon
Technologies International, Inc.,
the lenders thereto, and Mizzen
Capital, LP.
10.21# Fifth Amendment to Loan and
Security Agreement, dated April
26, 2022, by and among the
lenders thereto, Eclipse Business
Capital LLC, Rubicon Global, LLC,
RiverRoad Waste Solutions, Inc.,
Rubicon, Cleanco LLC, and Charter
Waste Management, Inc.
14.1 Code of Business Conduct and
Ethics of Rubicon Technologies,
Inc.
21.1 List of Subsidiaries of New Form 333-262465 21.1 May
Rubicon. S-4/A 12,
2022
99.1 Press Release issued by Rubicon
Technologies, Inc. on August 15,
2022.
99.2 Unaudited consolidated
financial statements of Rubicon
as of and for the three and six
months ended June 30, 2022 and
the year ended December 31,
2021.
99.3 Rubicon's Management's
Discussion and Analysis of
Financial Condition and Results
of Operations.
99.4 Unaudited pro forma condensed
combined balance sheet as of June
30, 2022 and the unaudited pro
forma condensed combined
statement of operations for the
six months ended June 30, 2022
and the year ended December 31,
2021.
104 Cover Page Interactive Data File
(formatted as Inline XBRL).
* Indicates management contract or compensatory plan or arrangement. # Certain of the exhibits and schedules to this Exhibit have been omitted in
accordance with Regulation S-K Item 601. The Registrant agrees to furnish a
copy of all omitted exhibits and schedules to the
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