S-8

As filed with the Securities and Exchange Commission on February 24, 2022

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

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:

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 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, 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) 776,602 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, 2022; 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, 2022.

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) and February 26, 2021 (Registration No. 333-253550) 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.		10-Q		001-35838		3.2		5/9/2013
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 24th day of February, 2022.

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 24, 2022
Christopher A. Lien	(Principal Executive Officer)
/s/ Robert Bertz	Chief Financial Officer	February 24, 2022
Robert Bertz	(Principal Accounting and Financial Officer)
/s/ Brian Kinion	Director	February 24, 2022
Brian Kinion
/s/ L. Gordon Crovitz	Director	February 24, 2022
L. Gordon Crovitz
/s/ Donald Hutchison	Director	February 24, 2022
Donald Hutchison
/s/ Diena Lee Mann	Director	February 24, 2022
Diena Lee Mann
/s/ Daina Middleton	Director	February 24, 2022
Daina Middleton

EX-5.1

Exhibit 5.1

February 24, 2022

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 24, 2022 (the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 876,602 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, we have examined such matters of fact as we have deemed necessary, which included examination of originals or copies of (a) the Company’s current certificate of incorporation and bylaws, as amended (collectively, the “Charter Documents”), the Plans, the Registration Statement and the exhibits thereto; (b) certain corporate proceedings of the Company’s board of directors, committees of the board of directors and stockholders relating to adoption or approval of the Charter Documents, the Plans, the reservation of the Shares for sale and issuance pursuant to the Plans, the filing of the Registration Statement and the registration of the issuance and sale of the Shares under the Securities Act; and (c) documents 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.

Marin Software Incorporated

February 24, 2022

Page 2

In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the genuineness of signatures on documents reviewed by us, the conformity to originals and the completeness of all documents submitted to us as copies, the legal capacity of all parties executing any documents (other than the Company), the lack of any undisclosed termination or modification or waiver of any document, the absence of any extrinsic agreements or documents that might change or affect the interpretation or terms of documents, and the due authorization, execution and delivery of all documents by each party thereto other than the Company. 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. In rendering our opinion, we have also relied upon representations and 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 we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than the existing Delaware General Corporation Law now in effect. We express no opinion with respect to the securities or “blue sky” laws of any state.

Based upon, and subject to, the foregoing, it is our opinion that when the 876,602 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, without limitation, payment and authorization 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**

Marin Software Incorporated

February 24, 2022

Page 3

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 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.

Sincerely,

FENWICK & WEST LLP

/s/ 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 24, 2022

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)	776,602(3)	$3.26	$2,531,772.52	0.0000927	$234.69
Equity	Common Stock, $0.001 par value per share	Rule 457(c) and Rule 457(h)	100,000(4)	$2.77	$277,000.00	0.0000927	$25.68
Total Offering Amount							$260.37
Total Fee Offsets(5)							$—
Net Fee Due							$260.37

(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 February 16, 2022. 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 February 16, 2022. 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.