S-3MEF

As filed with the Securities and Exchange Commission on July 15, 2021

Registration No. 333-            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

MARIN SOFTWARE INCORPORATED

(Exact name of registrant as specified in its charter)

Delaware	7372	20-4647180
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number	(I.R.S. Employer Identification Number)

123 Mission Street, 27th Floor

San Francisco, CA 94105

(415) 399-2580

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

Christopher A. Lien

Chief Executive Officer and Chairman of the Board

123 Mission Street, 27th Floor

San Francisco, CA 94105

(415) 399-2580

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

Copies to:

Michael A. Brown, Esq. Katherine K. Duncan, Esq. Fenwick & West LLP 555 California Street, 12th Floor San Francisco, CA 94104 (415) 875-2300 Michael Coleman, Esq. Marin Software Incorporated 123 Mission Street, 27th Floor San Francisco, CA 94105 (415) 399-2580

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.

If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  ☐

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  ☒

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☒ 333-230275

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this form is a registration statement filed pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  ☐ “

If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐

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,” “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.  ☐

CALCULATION OF REGISTRATION FEE

Title of each class of securities to be registered(1)	Amount to be registered	Proposed maximum aggregate offering price(1)	Amount of registration fee(2)
Common stock, $0.001 par value per share		$3,000,000	$327.30

(1) The Registrant previously registered (i) an indeterminate number of shares of the Registrant’s common stock, preferred stock, debt securities, warrants, subscription rights and units with an aggregate initial offering price not to exceed $50,000,000 to be offered and sold by the Registrant on a registration statement on Form S-3 (File No. 333-230275), as amended on May 9, 2019, which was declared effective on May 10, 2019 (the “Initial Registration Statement”), and for which a filing fee of $6,060 was previously paid. Of the securities registered for offer and sale by the Registrant, a balance of $37,000,000 of such securities remains available for offer and sale by the Registrant under the Initial Registration Statement as of the date hereof. In accordance with Rule 462(b) under the Securities Act of 1933, as amended, an additional indeterminate number of shares of common stock of the Registrant having a proposed maximum aggregate offering price of $3,000,000 is hereby registered, representing no more than 20% of the maximum aggregate offering price of unsold securities remaining available for issuance by the Registrant under the Initial Registration Statement. The proposed maximum offering price per share will be determined from time to time by the Registrant in connection with, and at the time of, the issuance by the Registrant of the common stock registered hereunder.

(2) Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended. Pursuant to Rule 416(a), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.

This registration statement shall become effective upon filing in accordance with Rule 462(b) under the Securities Act.

EXPLANATORY NOTE

Pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), Marin Software Incorporated (the “Registrant”) is filing this Registration Statement (this “Registration Statement”) with the U.S. Securities and Exchange Commission (the “Commission”). This Registration Statement relates to the public offering of securities contemplated by the Registration Statement on Form S-3, as amended (File No. 333-230275) (the “Initial Registration Statement”), which the Registrant originally filed with the Commission on March 14, 2019, and which the Commission declared effective on May 10, 2019.

The Registrant is filing this Registration Statement pursuant to Rule 462(b) of the Securities Act solely to register an additional indeterminate amount of shares of the Registrant’s common stock, par value $0.001 per share, having a maximum aggregate offering price of $3,000,000, which amount does not exceed 20% of the maximum aggregate offering price of unsold securities remaining available for offer and sale by the Registrant under the Initial Registration Statement.

The information set forth in the Initial Registration Statement and all exhibits to the Initial Registration Statement are incorporated by reference into this Registration Statement. The required opinions and consents are listed on the Exhibit Index attached hereto and filed herewith.

EXHIBIT INDEX

		Incorporated by Reference				Filed Herewith
Exhibit Number	Description of Document	Form	File No.	Exhibit	Filing Date
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 (incorporated by reference to Registration Statement on Form S-3 (Registration No. 333-230275).						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-3 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 15th day of July, 2021.

	MARIN SOFTWARE INCORPORATED
By:	/s/ Christopher A. Lien
	Christopher A. Lien
	Chief Executive Officer and Chairman of the Board

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ Christopher A. Lien	Chief Executive Officer and Chairman of the Board (Principal Executive Officer)	July 15, 2021
Christopher A. Lien
/s/ Robert Bertz	Chief Financial Officer (Principal Financial and Accounting Officer)	July 15, 2021
Robert Bertz
*	Director	July 15, 2021
L. Gordon Crovitz
*	Director	July 15, 2021
Donald Hutchison
*	Director	July 15, 2021
Brian Kinion
*	Director	July 15, 2021
Daina Middleton

*By:	/s/ Christopher A. Lien
	Attorney-in-Fact

EX-5.1

Exhibit 5.1

	801 California Street	650.988.8500
	Mountain View, CA 94041	Fenwick.com

July 15, 2021

Marin Software Incorporated

123 Mission Street, 27^th Floor

San Francisco, California 94105

Gentlemen/Ladies:

At your request, we have examined the Registration Statement on Form S-3 (the “Registration Statement”) filed by Marin Software Incorporated, a Delaware corporation (the “Company”), with the Securities and Exchange Commission on July 15, 2021 pursuant to Rule 462(b) of the Securities Act of 1933, as amended (the “Securities Act”), in connection with the registration of an indeterminate amount of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), having a maximum aggregate offering price of $3,000,000 (the “Shares”).

In connection with our opinion, we have examined such matters of fact as we have deemed necessary, which included examination of originals or copies of the Company’s current certificate of incorporation and bylaws, as amended (collectively, the “Charter Documents”), the Registration Statement and the exhibits thereto; certain corporate proceedings of the Company’s board of directors (the “Board”), committees of the Board and stockholders relating to adoption or approval of the Charter Documents, the reservation of the Shares, the filing of the Registration Statement and the registration of the issuance and sale of the Shares under the Securities Act, documents (including confirmations from the Company’s transfer agent) regarding the Company’s outstanding and reserved capital stock and other securities, and such other documents as we have deemed advisable, and we have examined such questions of law as we have considered necessary.

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 (other than the Company) executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us.

We have also assumed that any certificates or instruments representing the Shares, when issued, will be executed by the Company by officers of the Company duly authorized to do so. Furthermore, with respect to the Company’s uncertificated capital stock, we assume that issued Common Stock, including any Shares, will not be reissued by the Company in uncertificated form until any previously issued stock certificate representing such issued Common Stock has been surrendered to the Company in accordance with Section 158 of the Delaware General Corporation Law (the “DGCL”), and that the Company will properly register the transfer of the Common Stock to the purchasers of such Common Stock on the Company’s record of uncertificated securities.

In rendering our opinion, we have also relied upon certifications made to us by the Company, including, without limitation, representations in an Opinion Certificate addressed to us of even date herewith, 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 express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing DGCL and reported judicial decisions relating thereto.

In connection with our opinion expressed 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, that the registration will apply to such Shares and will not have been modified or rescinded and that there will not have occurred any change in law affecting the validity of the issuance of such Shares.

This opinion is based upon the customary practice of lawyers who regularly give, and lawyers who regularly advise opinion recipients regarding, opinions of the kind set forth in this opinion letter, including customary practice as described in bar association reports.

Based upon the foregoing, we are of the opinion that when (i) the issuance of and the terms of the offering of the Shares and related matters have been duly authorized by all required corporate action of the Board or a duly authorized committee thereof, and, if required, of the stockholders of the Company in accordance with the Charter Documents and the DGCL and (ii) if required, certificates representing the shares of Common Stock have been duly executed, countersigned, registered and delivered either (a) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board, or (b) upon conversion or exercise of any other security of the Company, in accordance with the terms of such security or the instrument governing such security providing for such conversion or exercise as approved by the Board, for the consideration approved by the Board (in an amount not less than the par value per share of the Common Stock), then such shares of Common Stock 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 filed with the Registration Statement and any prospectus supplements 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. This opinion is rendered as of the date first written above and is based solely on our understanding of facts in existence as of such date after the aforementioned examination. In rendering the opinions 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. 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 25, 2021 with respect to the consolidated financial statements of Marin Software Incorporated incorporated by reference from the Annual Report on Form 10-K for the year ended December 31, 2020 in the Registration Statement on Form S-3, as amended (File No. 333-230275), which is incorporated by reference in this Registration Statement on Form S-3. We consent to the incorporation by reference of the aforementioned report in this Registration Statement, and to the use of our name as it appears under the caption “Experts” in the prospectus incorporated by reference in this Registration Statement.

/s/ GRANT THORNTON LLP

San Francisco, California

July 15, 2021