As filed with the Securities and Exchange Commission on February 28, 2017
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)
______________________
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Delaware
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20-4647180
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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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)
______________________
Christopher A. Lien
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:
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Michael A. Brown, Esq.
Katherine K. Duncan, Esq.
Fenwick & West LLP
801 California Street
Mountain View, California 94041
(650) 988-8500
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Jonathan M. DeGooyer, Esq.
Marin Software Incorporated
123 Mission Street, 27
th
Floor
San Francisco, California 94105
(415) 399-2580
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______________________
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.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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(Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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CALCULATION OF REGISTRATION FEE
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Title of Securities
To Be Registered
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Amount To Be
Registered (1)
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Proposed Maximum Offering Price
Per Share
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee
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Common Stock, $0.001 par value per share
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-Reserved for future issuance under the 2013 Equity Incentive Plan
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1,939,542 (2)
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$2.23 (3)
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$4,325,179
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$502
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-Reserved for future issuance under the 2013 Employee Stock Purchase Plan
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387,908 (4)
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$1.90 (5)
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$737,025
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$86
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TOTAL
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2,327,450
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N/A
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$5,062,204
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$588
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(1)
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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.
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(2)
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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.
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(3)
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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 21, 2017.
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(4)
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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.
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(5)
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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 21, 2017. 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
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____________________________________________________________________
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:
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(i)
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1,939,542 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, 2017; and
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(ii)
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387,908 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, 2017.
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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), February 20, 2015 (Registration No. 333-202223), and February 23, 2016 (Registration No. 333-209651) 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
The following exhibits are filed herewith:
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Exhibit
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Incorporated by Reference
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Filed
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Number
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Exhibit Description
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Form
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File No.
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Exhibit
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Filing Date
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Herewith
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4.1
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Restated Certificate of Incorporation of the Registrant.
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10-Q
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001-35838
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3.1
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5/9/2013
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4.2
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Restated Bylaws of the Registrant.
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10-Q
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001-35838
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3.2
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5/9/2013
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4.3
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Form of Common Stock Certificate.
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S-1
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333-186669
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4.1
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3/15/2013
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5.1
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Opinion of Fenwick & West LLP.
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X
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23.1
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Consent of Independent Registered Public Accounting Firm.
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X
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23.2
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Consent of Fenwick & West LLP (included in Exhibit 5.1).
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X
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24.1
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Power of Attorney (included on the signature page of this Registration Statement).
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X
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99.1
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2013 Equity Incentive Plan and forms of stock option agreement, stock option exercise agreement, restricted stock agreement and restricted stock unit agreement.
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S-1
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333-186669
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10.3
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3/4/2013
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99.2
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2013 Employee Stock Purchase Plan and form of subscription agreement.
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S-1
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333-186669
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10.4
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3/4/2013
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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 28th day of February, 2017.
MARIN SOFTWARE INCORPORATED
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By:
/s/ Christopher A. Lien
____________________
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Christopher A. Lien
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 Christopher A. Lien 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.
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Name
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Title
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Date
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/s/ Christopher A. Lien
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Chief Executive Officer and Director
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February 28, 2017
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Christopher A. Lien
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(Principal Executive Officer)
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/s/ Catriona M. Fallon
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Chief Financial Officer
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February 28, 2017
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Catriona M. Fallon
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(Principal Financial and Accounting Officer)
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/s/ Paul Auvil
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Director
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February 28, 2017
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Paul Auvil
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/s/ James Barrese
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Director
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February 28, 2017
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James Barrese
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/s/ L. Gordon Crovitz
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Director
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February 28, 2017
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L. Gordon Crovitz
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/s/ Donald Hutchison
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Director
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February 28, 2017
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Donald Hutchison
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/s/ Allan Leinwand
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Director
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February 28, 2017
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Allan Leinwand
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/s/ Daina Middleton
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Director
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February 28, 2017
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Daina Middleton
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EXHIBIT INDEX
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Exhibit
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Incorporated by Reference
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Filed
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Number
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Exhibit Description
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Form
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File No.
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Exhibit
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Filing Date
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Herewith
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4.1
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Restated Certificate of Incorporation of the Registrant.
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10-Q
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001-35838
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3.1
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5/9/2013
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4.2
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Restated Bylaws of the Registrant.
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10-Q
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001-35838
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3.2
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5/9/2013
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4.3
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Form of Common Stock Certificate.
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S-1
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333-186669
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4.1
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3/15/2013
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5.1
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Opinion of Fenwick & West LLP.
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X
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23.1
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Consent of Independent Registered Public Accounting Firm.
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X
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23.2
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Consent of Fenwick & West LLP (included in Exhibit 5.1).
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X
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24.1
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Power of Attorney (included on the signature page of this Registration Statement).
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X
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99.1
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2013 Equity Incentive Plan and forms of stock option agreement, stock option exercise agreement, restricted stock agreement and restricted stock unit agreement.
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S-1
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333-186669
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10.3
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3/4/2013
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99.2
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2013 Employee Stock Purchase Plan and form of subscription agreement.
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S-1
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333-186669
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10.4
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3/4/2013
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Exhibit 5.1
February 28, 2017
Marin Software Incorporated
123 Mission Street, 27th Floor
San Francisco, CA 94105
Ladies and Gentlemen:
As counsel to Marin Software Incorporated, a Delaware corporation (the “
Company
”), we have examined the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on or about February 28, 2017 (the “
Registration Statement
”) in connection with the registration under the Securities Act of 1933, as amended (the “
Securities Act
”), of an aggregate of 2,327,450 shares (the “
Shares
”) of the Company’s common stock, $0.001 par value per share (the “
Common Stock
”), subject to issuance by the Company (a) upon the exercise or settlement of awards granted or to be granted under the Company’s 2013 Equity Incentive Plan (the “
2013 Plan
”) and (b) pursuant to 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 in this letter as the “
Plans
.” At your request we are providing this letter, to express our opinion on the matters set forth below (“
our opinion
”).
In connection with our opinion expressed here, we have examined originals or copies of the Company’s certificate of incorporation and bylaws, the Plans, certain corporate proceedings of the Company’s board of directors and stockholders relating to the Registration Statement, the Plans and such other agreements, documents, certificates and statements of the Company, its transfer agent and public or governmental officials, as we have deemed advisable, and have examined such questions of law as we have considered necessary. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures on documents submitted to us, the conformity to originals of all documents submitted to us as copies, and the absence of any
undisclosed termination, waiver or amendment to
any document reviewed by us. In giving our opinion, we have also relied upon a good standing certificate regarding the Company issued by the Secretary of State of the State of Delaware and representations made to us by the Company, including representations that the Company has available a sufficient number of authorized shares of Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.
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.
Based upon, and subject to, the foregoing, it is our opinion that when the 2,327,450 shares of Common Stock that may be issued and sold by the Company (a) upon the exercise or settlement of awards granted or to be granted under the 2013 Plan and (b) pursuant to purchase rights granted or to be granted under the Purchase Plan have been issued and sold by the Company against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share) in accordance with the terms (including payment provisions) of the applicable Plan, and have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares will be validly issued, fully paid and non-assessable.
**Concluding Paragraph Appears on Next Page**
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 prospectuses constituting a part thereof and any amendments thereto. We do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the S
ecurities Act or the rules and regulations of the Commission thereunder. 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. This opinion is rendered on, and speaks only as of, the date of this letter first
written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be b
rought to our attention, whether or not such occurrence would affect or modify any of the opinions expressed herein.
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Very truly yours,
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FENWICK & WEST LLP
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/s/ Michael A. Brown
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Michael A. Brown, a Partner