As filed with the Securities and Exchange Commission on February 22, 2016

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, 27 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, 27 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, 27 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.

 

Large accelerated filer

o  

 

Accelerated filer

x

Non-accelerated filer

o

(Do not check if a smaller reporting company)

Smaller reporting company

o

 

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

1,878,343 (2)

$2.71 (3)

$5,090,310

$513

-  Reserved for future issuance under the 2013 Employee Stock Purchase Plan

375,668 (4)

$2.30 (5)

$864,037

$88

TOTAL

2,254,011

N/A

$5,954,347

$601

(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 16, 2016.

(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 16, 2016. 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 on Form S-8 (this “ Registration Statement ”) with the Securities and Exchange Commission (the “ Commission ”) to register:

 

(i)

1,878,343 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, 2016; and

 

(ii)

375,668 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, 2016.

This Registration Statement hereby incorporates by reference the contents of the Registrant’s previous registration statements on Form S-8 filed with the Commission on March 22, 2013 (Registration No. 333-187459), February 28, 2014 (Registration No. 333-194250), and February 20, 2015 (Registration No. 333-202223), to the extent not superseded hereby.  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.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

23.2

 

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

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

24.1

 

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

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

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 22 nd day of February, 2016.

 

 

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 Catriona M. Fallon, 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 22, 2016

David A. Yovanno

 

(Principal Executive Officer)

 

 

 

 

 

/s/ Catriona M. Fallon

 

Chief Financial Officer

 

February 22, 2016

Catriona M. Fallon

 

(Principal Accounting and Financial Officer)

 

 

 

 

 

/s/ Christopher Lien

 

Director

 

February 22, 2016

Christopher Lien

 

 

 

 

 

 

 

/s/ L. Gordon Crovitz

 

Director

 

February 22, 2016

L. Gordon Crovitz

 

 

 

 

 

 

 

/s/ Bruce Dunlevie

 

Lead Independent Director

 

February 22, 2016

Bruce Dunlevie

 

 

 

 

 

 

 

/s/ Donald Hutchison

 

Director

 

February 22, 2016

Donald Hutchison

 

 

 

 

 

 

 

/s/ James Barrese

 

Director

 

February 22, 2016

James Barrese

 

 

 

 

 

 

 

/s/ Allan Leinwand

 

Director

 

February 22, 2016

Allan Leinwand

 

 

 

 

 

 

 

 

 

/s/ Paul Auvil

 

Director

 

February 22, 2016

Paul Auvil

 

 

 

 

 

 

 

 

 

/s/ Daina Middleton

 

Director

 

February 22, 2016

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.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

23.2

 

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

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

24.1

 

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

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

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 22, 2016

 

Marin Software Incorporated

123 Mission Street, 27th Floor

San Francisco, CA 94105

Ladies and Gentlemen:

At your request, we have examined the Registration Statement on Form S-8 to be filed by Marin Software Incorporated, a Delaware corporation (the “ Company ”), with the Securities and Exchange Commission (the “ Commission ”) on or about February 22, 2016 (the “ Registration Statement ”) in connection with the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of an aggregate of 2,254,011 shares (the “ Shares ”) of the Company’s common stock, $0.001 par value per share (“ Common Stock ”), subject to issuance by the Company (a) upon the exercise or settlement of awards (including any stock option, restricted stock, stock bonus, stock appreciation rights, restricted stock units or awards of performance shares) granted or to be granted under the Company’s 2013 Equity Incentive Plan (the “ 2013 Plan ”) and (b) pursuant to purchase rights 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 together referred to herein as the “ Plans .”  At your request we are providing this letter, to express our opinion on the matters set forth in the numbered paragraphs below.

In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinions 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 the body of this letter have the meanings given to such terms on Exhibit A hereto.

In giving the opinions contained in this letter, we have assumed the current accuracy of the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Opinion Certificate.  Furthermore, with respect to the Company’s uncertificated capital stock, we have assumed that any issued Shares will not be reissued by the Company in uncertificated form until any previously issued stock certificate representing such issued Shares has been surrendered to the Company in accordance with Section 158 of the Delaware General Corporation Law and that the Company will properly register any transfer of the Shares from certificated to uncertificated form to the holders of such Shares on the Company’s record of uncertificated securities.

We render this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law.  We express no opinion with respect to any other laws or with respect to the “blue sky” securities laws of any state.

In our examination of documents for purposes of this opinion, we have r elied on the accuracy of representations to us by officers of the Company with respect to , and express no opinion as to, the genuineness of all signatures on original documents by the Company.  We have also assumed the authenticity and completeness of all documents submitted to us as originals, the conformity to originals

 

 

and complet eness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, and the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us.  We have also assumed that th ere has been no amendment to, or revocation of, any corporate proceedings of the Board of Directors or stockholders of the Company referenced in this letter or in Exhibit A hereto.   

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 upon the Good Standing Certificate and representations made to us by the Company, including those set forth in the Opinion Certificate.

In connection with our opinion expressed in paragraph (2) below, we have assumed that (i) at or prior to the time of the delivery of any Shares, the Registration Statement will have been declared effective under the Securities Act, the registration will apply to all the Shares and will not have been modified or rescinded and (ii) the absence of any future amendment to the Company’s Certificate of Incorporation that would make the Common Stock assessable.

Based upon, and subject to, the foregoing, it is our opinion that:

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

(2) The Shares that may be issued and sold by the Company (a) upon the exercise or settlement of awards (including any stock option, restricted stock, stock bonus, stock appreciation rights, restricted stock units or awards of performance shares)  granted or to be granted under the 2013 Plan and (b) pursuant to purchase rights granted or to be granted under the Purchase Plan, when issued, sold and delivered in accordance with the applicable Plan and Plan Agreements (as defined in Exhibit A attached hereto) and in the manner and for the consideration stated in the Registration Statement and the relevant Prospectus, will be validly issued, fully paid and non-assessable.

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.  This opinion is intended solely for use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose.  In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters.  

***Remainder of page intentionally left blank***

 

 

This opinion is rendered on, and speaks only as of, the date of this letter first written above, is bas ed solely on our understanding of facts in existence as of such date and does not address any potential changes in facts, circumstance or law that may occur after the date of this opinion letter.  We assume no obligation to advise you of any fact, circumst ance, 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

 

 

 

/s/ Michael A. Brown

Michael A. Brown, a Partner

 

 

EXHIBIT A

to

Legal Opinion Regarding S-8 Registration Statement of Marin Software Incorporated

 

Certain Reviewed Documents

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.

(1)

The Restated Certificate of Incorporation of the Company filed with the Delaware Secretary of State on March 27, 2013 and filed as Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q filed by the Company with the Commission on May 9, 2013, and certified by the Company in the Opinion Certificate to be the Company’s currently effective Certificate of Incorporation(the “ Charter” ).

(2)

The Company’s Restated Bylaws, filed as Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed by the Company with the Commission on May 9, 2013 and certified by the Company in the Opinion Certificate to be the Company’s currently effective bylaws (the “ Bylaws ” and together with the Charter, the “ Charter Documents ”).

(3)

The Registration Statement.

(4)

The prospectuses prepared for use pursuant to the Registration Statement (the “ Prospectuses ”).

(5)

An Opinion Certificate of the Company addressed to us and dated the date of this letter containing certain factual representations (the “ Opinion Certificate ”).

(6)

A certificate of verification by Computershare Inc., the Company’s transfer agent, of the number of the Company’s authorized, issued and outstanding shares of capital stock as of February 18, 2016 (the “ Statement Date ”).

(7)

A statement prepared by the Company in the Opinion Certificate, of (i) the issued and outstanding options, restricted stock units, warrants and any other rights to purchase or otherwise acquire from the Company capital stock of the Company (including a list of outstanding options and warrants) 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 dated February 22 , 2016 issued by the Delaware Secretary of State stating that the Company is duly incorporated, in good standing and has a legal corporate existence as of such date (the “ Good Standing Certificate ”).

(9)

The Plans, the forms of agreements used by the Company under the 2013 Plan and the forms of stock purchase and other agreements for use under the Purchase Plan that will govern the Company’s issuance of Shares, copies of which are incorporated by reference as exhibits to the Company’s Registration Statement on Form S-1 filed with the Commission on March 4, 2013 (collectively, the “ Plan Agreements ”) and the Plan Agreements have been certified to us by the Company to be currently in use in connection with the Plans.

(10)

Copies of corporate proceedings of the Company’s Board of Directors and the Company’s stockholders relating to approval of the Charter Documents, the Plans, the Plan Agreements, the filing of the Registration Statement, the reservation of the Shares for sale and issuance pursuant to, and the sale and issuance of the Shares pursuant to, the Plans.

 

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 22, 2016 relating to the financial statements, which appears in Marin Software Incorporated’s Annual Report on Form 10-K for the year ended December 31, 2015.

/s/ PricewaterhouseCoopers LLP

San Jose, California

February 22, 2016