As filed with the Securities and Exchange Commission on February 23, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE Securities Act of 1933
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Marin Software Incorporated
(Exact name of registrant as specified in its charter)
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Delaware |
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20-4647180 |
(State or other jurisdiction
of incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
Marin Software Incorporated
149 New Montgomery Street, 4th 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 Amended and Restated Equity Incentive Plan
(Full title of the plans)
______________________
Christopher A. Lien
Chief Executive Officer and Director
Marin Software Incorporated
149 New Montgomery Street, 4th 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 555 California Street San Francisco, California 94104 (415) 875-2300 |
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Michael Coleman, Esq. Marin Software Incorporated 149 New Montgomery Street, 4th 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, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
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 903,206 additional shares of common stock under the Registrant’s Amended and Restated 2013 Equity Incentive Plan (the “Amended and Restated 2013 Plan”), pursuant to the provisions of the Amended and Restated 2013 Plan providing for an automatic increase in the number of shares reserved and available for issuance under the Amended and Restated 2013 Plan on January 1, 2024. The Amended and Restated 2013 Plan was approved by the Registrant’s stockholders at the Registrant’s annual stockholder meeting on May 25, 2023.
This Registration Statement hereby incorporates by reference the contents of the Registrant’s previous registration statement on Form S-8 filed with the Commission on August 8, 2023 (Registration No. 333-273818) 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:
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 23nd day of February, 2024.
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MARIN SOFTWARE INCORPORATED |
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By: |
/s/ Christopher A. Lien |
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Christopher A. Lien |
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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 Robert Bertz, 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 23, 2024 |
Christopher A. Lien |
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(Principal Executive Officer) |
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/s/ Robert Bertz |
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Chief Financial Officer |
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February 23, 2024 |
Robert Bertz |
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(Principal Accounting and Financial Officer) |
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/s/ Brian Kinion |
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Director |
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February 23, 2024 |
Brian Kinion |
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/s/ L. Gordon Crovitz |
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Director |
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February 23, 2024 |
L. Gordon Crovitz |
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/s/ Donald Hutchison |
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Director |
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February 23, 2024 |
Donald Hutchison |
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/s/ Diena Lee Mann |
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Director |
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February 23, 2024 |
Diena Lee Mann |
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/s/ Daina Middleton |
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Director |
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February 23, 2024 |
Daina Middleton |
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EXHIBIT 5.1
February 23, 2024
Marin Software Inc.
149 New Montgomery Street, 4th Floor
San Francisco, CA 94105
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
As counsel to Marin Software, Inc., a Delaware corporation (the “Company”), we have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about February 22, 2024 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 903,206 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), that consists of the Company’s Amended and Restated 2013 Equity Incentive Plan (the “Plan”).
As to matters of fact relevant to the opinions rendered herein, we have examined such documents, certificates and other instruments which we have deemed necessary or advisable, including a certificate addressed to us and dated the date hereof executed by the Company (the “Opinion Certificate”). We have not undertaken any independent investigation to verify the accuracy of any such information, representations or warranties or to determine the existence or absence of any fact, and no inference as to our knowledge of the existence or absence of any fact should be drawn from our representation of the Company or the rendering of the opinion set forth below. We have not considered parol evidence in connection with any of the agreements or instruments reviewed by us in connection with this letter.
In our examination of documents for purposes of this letter, we have assumed, and express no opinion as to, the genuineness and authenticity of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, that each document is what it purports to be, the conformity to originals of all documents submitted to us as copies or facsimile copies, the absence of any termination, modification or waiver of or amendment to any document reviewed by us (other than as has been disclosed to us), the legal competence or capacity of all persons or entities (other than the Company) executing the same and (other than the Company) the due authorization, execution and delivery of all documents by each party thereto. We have also assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies submitted for our examination.
The opinions in this letter are limited to the existing General Corporation Law of the State of Delaware now in effect. We express no opinion with respect to any other laws.
Based upon, and subject to, the foregoing, it is our opinion that the Shares, when issued and sold by the Company in accordance with the terms (including, without limitation, payment and authorization provisions) of the Plan and the applicable form of award agreement thereunder, against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share), and duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, 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 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 Securities Act or the rules and regulations of the Commission thereunder.
This opinion is intended solely for your use in connection with the 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 brought to our attention, whether or not such occurrence would affect or modify any of the opinions expressed herein.
Very truly yours,
/s/ Fenwick & West LLP
FENWICK & WEST LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated February 23, 2024, with respect to the consolidated financial statements of Marin Software Incorporated included in the Annual Report on Form 10-K for the year ended December 31, 2023, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.
/s/ Grant Thornton LLP
San Jose, California
February 23, 2024
EXHIBIT 107.1
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Marin Software Incorporated
(Exact Name of Registrant as Specified in Charter)
Newly Registered Securities
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Security Type |
Security Class Title |
Fee Calculation Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Unit(2) |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
Equity |
Common Stock, $0.001 par value per share |
Rule 457(c) and Rule 457(h) |
903,206(3) |
$0.38 |
$343,218.28 |
0.00014760 |
$50.66 |
Total Offering Amount |
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$50.66 |
Total Fee Offsets(4) |
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$— |
Net Fee Due |
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$50.66 |
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(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) 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 Nasdaq Capital Market on February 16, 2024.
(3) Represents additional shares of the Registrant’s common stock reserved for issuance under the Registrant’s Amended and Restated 2013 Equity Incentive Plan resulting from the automatic annual 5% increase in the number of authorized shares reserved and available for issuance under the Amended and Restated 2013 Equity Incentive Plan on January 1 of each calendar year through 2033.
(4) The Registrant does not have any fee offsets.
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