MARIN SOFTWARE INC (Form: S-8, Received: 02/23/2015 06:02:17)

Large accelerated filer

Accelerated filer

Non-accelerated filer

¨ (Do not check if a smaller reporting company)

Smaller reporting company

As filed with the Securities and Exchange Commission on February 20, 2015

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

MARIN SOFTWARE INCORPORATED

(Exact name of registrant as specified in its charter)

Delaware

20-4647180

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

Marin Software Incorporated

123 Mission Street, 25 ^th Floor

San Francisco, California 94105

(415) 399-2580

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

2013 Equity Incentive Plan

2013 Employee Stock Purchase Plan

(Full title of the plans)

David A. Yovanno

Chief Executive Officer and Director

Marin Software Incorporated

123 Mission Street, 25 ^th Floor

San Francisco, California 94105

(415) 399-2580

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

Please send copies of all communications to:

Jeffrey R. Vetter, Esq.

Michael A. Brown, Esq.

Fenwick & West LLP

801 California Street

Mountain View, California 94041

(650) 988-8500

Stephen Kim, Esq.

General Counsel

Marin Software Incorporated

123 Mission Street, 25 ^th Floor

San Francisco, California 94105

(415) 399-2580

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 definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

CALCULATION OF REGISTRATION FEE



Title of Securities To Be Registered	Amount To Be Registered (1)	Proposed Maximum Offering Price Per Share	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Common Stock, $0.001 par value per share
- Reserved for future issuance under the 2013 Equity Incentive Plan	1,792,246(2)	$6.97(3)	$12,491,955	$1,452
- Reserved for future issuance under the 2013 Employee Stock Purchase Plan	358,449(4)	$5.92(5)	$2,122,019	$247
TOTAL	2,150,695	N/A	$14,613,974	$1,699

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “ Securities Act ”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s common stock.

(2)

Represents additional shares of the Registrant’s common stock reserved for issuance under the Registrant’s 2013 Equity Incentive Plan resulting from the automatic annual 5% increase in the number of authorized shares reserved and available for issuance under the 2013 Equity Incentive Plan on January 1 of each of the first ten years following the Registrant’s initial public offering.

(3)	Estimated pursuant to Rules 457(c) and (h) of the Securities Act, solely for the purpose of calculating the registration fee, on the basis of the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 12, 2015.

(4)

Represents additional shares of the Registrant’s common stock reserved for issuance under the Registrant’s 2013 Employee Stock Purchase Plan (the “ ESPP ”) resulting from the automatic annual 1% increase in the number of authorized shares reserved and available for issuance under the ESPP on January 1 of each of the first ten years following the Registrant’s initial public offering.

(5)

Estimated pursuant to Rules 457(c) and (h) of the Securities Act, solely for the purpose of calculation the registration fee, on the basis of the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 12, 2015. Under the ESPP, the purchase price of a share of common stock is equal to 85% of the fair market value of the Registrant’s common stock on the offering date (i.e., the first business day of the offering period of up to 27 months) or the purchase date (i.e., the last business day of a six-month purchase period), whichever is less.

REGISTRATION OF ADDITIONAL SHARES

PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E of Form S-8, Marin Software Incorporated (the “ Registrant ”) is filing this Registration Statement with the Securities and Exchange Commission (the “ Commission ”) to register:

(i)

1,792,246 additional shares of common stock under the Registrant’s 2013 Equity Incentive Plan, pursuant to the provisions of the 2013 Equity Incentive Plan providing for an automatic increase in the number of shares reserved and available for issuance under the 2013 Equity Incentive Plan on January 1, 2015; and

(ii)

358,449 additional shares of common stock under the Registrant’s 2013 Employee Stock Purchase Plan, pursuant to the provisions of the Registrant’s 2013 Employee Stock Purchase Plan providing for an automatic increase in the number of shares reserved and available for issuance under the 2013 Employee Stock Purchase Plan on January 1, 2015.

This Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the Commission on March 22, 2013 (Registration No. 333-187459) and the Registrant’s registration statement on Form S-8 filed with the Commission on February 28, 2014 (Registration No. 333-194250). In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.

PART II

Information Required in the Registration Statement

Item 8. Exhibits .

The following exhibits are filed herewith:

Exhibit

Incorporated by Reference

Filed

Number

Exhibit Description

Form

File No.

Exhibit

Filing Date

Herewith

4.1

Restated Certificate of Incorporation of the Registrant.

10-Q

001-35838

3.1

5/9/2013

4.2

Restated Bylaws of the Registrant.

10-Q

001-35838

3.2

5/9/2013

4.3

Form of Common Stock Certificate.

S-1

333-186669

4.1

3/15/2013

5.1

Opinion of Fenwick & West LLP.

23.1

Consent of Independent Registered Public Accounting
Firm.

23.2

Consent of Fenwick & West LLP (included
in Exhibit 5.1).

24.1

Power of Attorney (included on the signature page
of this Registration Statement).

99.1

2013 Equity Incentive Plan and forms of stock option
agreement, stock option exercise agreement, restricted
stock agreement and restricted stock unit agreement.

S-1

333-186669

10.3

3/4/2013

99.2

2013 Employee Stock Purchase Plan and form of
subscription agreement.

S-1

333-186669

10.4

3/4/2013

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 San Francisco, State of California, on this 20 ^th day of February, 2015.


MARIN SOFTWARE INCORPORATED

By:		/s/ David A. Yovanno
		David A. Yovanno Chief Executive Officer and Director

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints David A. Yovanno and John A. Kaelle, and each of them, as his or her true and lawful attorney-in-fact and agent with the full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments to this Registration Statement on Form S-8), 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, and each of them 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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.


Name	Title	Date

/s/ David A. Yovanno	Chief Executive Officer and Director	February 20, 2015
David A. Yovanno	(Principal Executive Officer)

/s/ John A. Kaelle	Chief Financial Officer	February 20, 2015
John A. Kaelle	(Principal Accounting and Financial Officer)

/s/ Christopher Lien	Executive Chairman and Director	February 20, 2015
Christopher Lien

/s/ L. Gordon Crovitz	Director	February 20, 2015
L. Gordon Crovitz

/s/ Bruce Dunlevie	Lead Independent Director	February 20, 2015
Bruce Dunlevie

/s/ Donald Hutchison	Director	February 20, 2015
Donald Hutchison

/s/ James Barrese	Director	February 20, 2015
James Barrese

/s/ Allan Leinwand	Director	February 20, 2015
Allan Leinwand

/s/ Paul Auvil	Director	February 20, 2015
Paul Auvil

/s/ Daina Middleton	Director	February 20, 2015
Daina Middleton

EXHIBIT INDEX

Exhibit

Incorporated by Reference

Filed

Number

Exhibit Description

Form

File No.

Exhibit

Filing Date

Herewith

4.1

Restated Certificate of Incorporation of the Registrant.

10-Q

001-35838

3.1

5/9/2013

4.2

Restated Bylaws of the Registrant.

10-Q

001-35838

3.2

5/9/2013

4.3

Form of Common Stock Certificate.

S-1

333-186669

4.1

3/15/2013

5.1

Opinion of Fenwick & West LLP.

23.1

Consent of Independent Registered Public Accounting
Firm.

23.2

Consent of Fenwick & West LLP (included in
Exhibit 5.1).

24.1

Power of Attorney (included on the signature page
of this Registration Statement).

99.1

2013 Equity Incentive Plan and forms of stock option
agreement, stock option exercise agreement, restricted
stock agreement and restricted stock unit agreement.

S-1

333-186669

10.3

3/4/2013

99.2

2013 Employee Stock Purchase Plan and form of
subscription agreement.

S-1

333-186669

10.4

3/4/2013

Exhibit 5.1

February 20, 2015

Marin Software Incorporated

123 Mission Street, 25 ^th Floor

San Francisco, California 94105

Gentlemen/Ladies:

At your request, we have examined the Registration Statement on Form S-8 (the “ Registration Statement ”) to be filed by Marin Software Incorporated, a Delaware corporation (the “ Company ”), with the Securities and Exchange Commission (the “ Commission ”) on or about February 20, 2015 in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 2,150,695 shares (the “ Shares ”) of the Company’s common stock, $0.001 par value per share (the “ Common Stock ”), that are subject to issuance by the Company upon the exercise of (a) awards granted or to be granted under the Company’s 2013 Equity Incentive Plan (the “ 2013 Plan ”), and (b) purchase rights to acquire shares of Common Stock granted or to be granted under the Company’s 2013 Employee Stock Purchase Plan (the “ Purchase Plan ”). The 2013 Plan and the Purchase Plan are collectively referred to herein as the “ Plans .” In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth herein, which included examination of the documents described on Exhibit A attached hereto (which is incorporated in this letter by reference). Capitalized terms used but not defined in this letter have the meanings given to such terms on Exhibit A hereto.

In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness thereof. We have also assumed that the certificates representing the Shares have been, or will be when issued, properly signed by authorized officers of the Company or their agents.

As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Opinion Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.

Marin Software Incorporated

February 20, 2015

Page 2

We render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the Delaware General Corporation Law.

With respect to our opinion expressed in paragraph (1) below as to the valid existence and good standing of the Company under the laws of the State of Delaware, we have relied solely upon the Certificate of Good Standing and representations made to us by the Company in the Opinion Certificate.

In connection with our opinion expressed in paragraph (2) below, we have assumed that, at or prior to the time of the delivery of any Shares, the Registration Statement will have been declared effective under the Securities Act of 1933, as amended, the registration will apply to all of the Shares and will not have been modified or rescinded. Based upon the foregoing, we are of the opinion that:

(1) The Company is a corporation validly existing, in good standing, under the laws of the State of Delaware; and

(2) The 2,150,695 shares of Common Stock that may be issued and sold by the Company upon the exercise of (a) awards granted or to be granted under the 2013 Plan, and (b) purchase rights granted or to be granted under the Purchase Plan, when issued, sold and delivered in accordance with the applicable Plan and Plan Agreement, if any, to be entered into thereunder and in the manner and for the consideration stated in the Registration Statement and relevant Prospectus, will be 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 all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. In rendering the opinions set forth above, we are opining only as to the specific legal issues expressly set forth therein, and no opinion shall be inferred as to any other matter or matters.

Remainder of page intentionally left blank.

Marin Software Incorporated

February 20, 2015

Page 3

This opinion is intended solely for use in connection with issuance and sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered on, and speaks only as of, the date first written above and based solely on our understanding of facts in existence as of such date after the aforementioned examination and does not address future changes in facts or circumstances. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify any of the opinions expressed herein.


Very truly yours,

FENWICK & WEST LLP

By:		/s/ Michael A. Brown
Michael A. Brown, a Partner

EXHIBIT A

Legal Opinion Regarding S-8 Registration Statement

Marin Software Incorporated (the “ Opinion Letter ”)

Capitalized terms used but not defined in this Exhibit A have the meanings defined for such terms in the Opinion Letter to which this Exhibit A is attached. As used herein, the term the “ Company ” means Marin Software Incorporated, a Delaware corporation.

(1)

The Company’s Restated Certificate of Incorporation, filed with the Delaware Secretary of State on March 27, 2013 and certified by the Delaware Secretary of State on March 27, 2013 (the “ Restated Certificate ”).

(2)

The Company’s Restated Bylaws, certified by the Company’s Secretary on March 27, 2013, and certified by the Company to us in the Opinion Certificate to be the currently effective bylaws of the Company (the “ Bylaws ”).

(3)

The Registration Statement, together with the exhibits filed as a part thereof or incorporated therein by reference.

(4)

The Plans and related forms of agreements used under the Plans in the forms filed as exhibits to the Company’s Registration Statement on Form S-1 filed with the Commission on March 4, 2013 (the “ Plan Agreements ”).

(5)

The prospectuses prepared in connection with the Registration Statement (the “ Prospectuses ”).

(6)

Corporate proceedings and actions of the Company’s Board of Directors and the stockholders provided to us by the Company relating to the adoption, approval, authorization and/or ratification of (i) the Restated Certificate, (ii) the Bylaws, (iii) the filing of the Registration Statement, and (iv) the Plans, including the reservation of the Shares for sale and issuance pursuant to the Plans and the sale and issuance of the Shares pursuant to the Plans.

(7)

A (a) verification by the Company’s transfer agent as to the number of the Company’s authorized, issued and outstanding shares of its capital stock (including Common Stock and Preferred Stock) (and the number of such shares on an as-converted to Common Stock basis) as of February 17, 2015 (the “ Statement Date ”), and (b) report by the Company, set forth in Annex I of the Opinion Certificate, of (i) the issued and outstanding options, warrants and rights to purchase or otherwise acquire from the Company capital stock of the Company (including a list of outstanding options) as of the Statement Date, and (ii) any additional shares of capital stock reserved for future issuance in connection with the Plans and all other plans, agreements or rights to acquire capital stock of the Company as of the Statement Date.

(8)

A Certificate of Good Standing issued by the Delaware Secretary of State dated February 19, 2015, stating that the Company is qualified to do business and in good standing under the laws of the State of Delaware (the “ Certificate of Good Standing ”).

Marin Software Incorporated

February 20, 2015

Page 2

(9)

An Opinion Certificate addressed to us, dated of even date herewith and executed by the Company, containing certain factual representations (the “ Opinion Certificate ”).

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 20, 2015 relating to the financial statements, which appears in Marin Software Incorporated’s Annual Report on Form 10-K for the year ended December 31, 2014.

/s/ PricewaterhouseCoopers LLP

San Jose, California

February 20, 2015