S-8

As filed with the Securities and Exchange Commission on February 2, 2023

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 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

845 Market Street, Suite 450

San Francisco, California 94103

(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

845 Market Street, Suite 450

San Francisco, California 94103

(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:

Michael A. Brown, Esq. Katherine K. Duncan, Esq. Fenwick & West LLP 555 California Street San Francisco, California 94104 (415) 875-2300 Michael Coleman, Esq. Marin Software Incorporated 845 Market Street, Suite 450 San Francisco, California 94103 (415) 399-2580

_____________________

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.

Large accelerated filer		Accelerated filer	
Non-accelerated filer		Smaller reporting company	
		Emerging growth company	

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:

(i)861,311 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, 2023; and

(ii)100,000 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, 2023.

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), February 23, 2016 (Registration No. 333-209651), February 28, 2017 (Registration No. 333-216349), March 1, 2018 (Registration No. 333-223332), March 14, 2019 (Registration No. 333-230274), March 24, 2020 (Registration No. 333-237355), February 26, 2021 (Registration No. 333-253550) and February 24, 2022 (Registration No. 333-262972) 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	Certificate of Amendment to the Restated Certificate of Incorporation of the Registrant.	8-K	001-35838	3.1	10/5/17
4.3	Restated Bylaws of the Registrant.	8-K	001-35838	3.1	3/22/2022
4.4	Form of Common Stock Certificate.	S-1	333-186669	4.1	3/15/2013
4.5	Description of Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934.	10-K	001-35838	4.2	3/23/2020
5.1	Opinion of Fenwick & West LLP.					X
23.1	Consent of Grant Thornton LLP, 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
107.1	Filing Fee Table					X

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 2nd day of February, 2023.

MARIN SOFTWARE INCORPORATED
By:	/s/ Christopher A. Lien
	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 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.

Name	Title	Date
/s/ Christopher A. Lien	Chief Executive Officer and Director	February 1, 2023
Christopher A. Lien	(Principal Executive Officer)
/s/ Robert Bertz	Chief Financial Officer	February 1, 2023
Robert Bertz	(Principal Accounting and Financial Officer)
/s/ Brian Kinion	Director	February 1, 2023
Brian Kinion
/s/ L. Gordon Crovitz	Director	February 1 , 2023
L. Gordon Crovitz
/s/ Donald Hutchison	Director	February 1, 2023
Donald Hutchison
/s/ Diena Lee Mann	Director	February 1, 2023
Diena Lee Mann
/s/ Daina Middleton	Director	February 1, 2023
Daina Middleton

EX-5.1

Exhibit 5.1

 

February 2, 2023

Marin Software, Inc.

123 Mission Street, 27th 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 2, 2023 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 961,311 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), that consists of the Company’s 2013 Equity Incentive Plan and the Company’s 2013 Employee Stock Purchase Plan (the “Plans”).

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 applicable 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 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

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our report dated February 24, 2022, 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, 2021, 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 2, 2023

EX-FILING FEES

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

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)	861,311(3)	$1.19	$1,024,960.09	0.00011020	$112.95
Equity	Common Stock, $0.001 par value per share	Rule 457(c) and Rule 457(h)	100,000(4)	$1.01	$101,000.00	0.00011020	$11.13
Total Offering Amount							$124.08
Total Fee Offsets(5)							$—
Net Fee Due							$124.08

_______________

(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) For purposes of the EIP Share Increase (as defined below in Footnote (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 Nasdaq Global Market on January 30, 2023. For purposes of the ESPP Share Increase (as defined below in Footnote (4)), 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 Nasdaq Global Market on January 30, 2023. 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.

(3) 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 10 years following the Registrant’s initial public offering (the “EIP Share Increase”).

(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 10 years following the Registrant’s initial public offering, which has been capped at 100,000 per the terms of the ESPP (the “ESPP Share Increase”).

(5) The Registrant does not have any fee offsets.