As filed with the Securities and Exchange Commission on May 9, 2019
Registration No. 333-230275
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
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. Amanda L. Rose, Esq. Katherine K. Duncan, Esq. Fenwick & West LLP 555 California Street, 12th Floor San Francisco, CA 94104 (415) 875-2300 |
Jonathan M. DeGooyer, 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. ☐
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. ☐
EXPLANATORY NOTE
This Amendment No. 1 (Amendment No. 1) to the Registration Statement on Form S-3 (File No. 333-230275) of Marin Software Incorporated (Registration Statement) is being filed solely for the purpose of filing exhibits in Part II of this Amendment No. 1. This Amendment No. 1 does not modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly, a preliminary prospectus has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution |
The following table sets forth estimated expenses in connection with the issuance and distribution of the securities being registered. All amounts shown are estimates except for the SEC registration fee and the FINRA filing fee.
| SEC registration fee |
$ | 6,060 | ||
| FINRA filing fee |
8,000 | |||
| Nasdaq listing fee |
* | |||
| Printing and engraving |
* | |||
| Legal fees and expenses |
* | |||
| Accounting fees and expenses |
* | |||
| Transfer agent and registrar fees and expenses |
* | |||
| Trustee fees and expenses |
* | |||
| Miscellaneous expenses |
* | |||
| Total |
$ | * |
| * | These fees are calculated based on the type of securities offered and the number of issuances and accordingly, cannot be estimated at this time. |
| Item 15. | Indemnification of Officers and Directors |
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended.
As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
| • | any breach of the director’s duty of loyalty to the Registrant or its stockholders; |
| • | acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| • | under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or |
| • | any transaction from which the director derived an improper personal benefit. |
As permitted by the Delaware General Corporation Law, the Registrant’s restated bylaws provide that:
| • | the Registrant is required to indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; |
| • | the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law; |
| • | the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and |
| • | the rights conferred in the restated bylaws are not exclusive. |
The Registrant has entered into indemnity agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s restated certificate of incorporation and restated bylaws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the Registrant for which indemnification is sought. The indemnification provisions in the Registrant’s restated certificate of incorporation, restated
bylaws and the indemnity agreements entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.
The Registrant currently carries liability insurance for its directors and officers.
Reference is made to the following documents filed as exhibits to this Registration Statement regarding relevant indemnification provisions described above and elsewhere herein:
| Exhibit Document |
Number | |
| Equity Distribution Agreement, dated March 14, 2019, by and between Marin Software Incorporated and JMP Securities LLC |
1.2 | |
| Restated Certificate of Incorporation |
3.1 | |
| Certificate of Amendment to Certificate of Incorporation |
3.3 | |
| Restated Bylaws |
3.2 | |
| Form of Indemnification Agreement entered into between the Registrant and each of its directors and executive officers |
10.1 | |
| Item 16. | Exhibits |
| Incorporated by Reference | ||||||||||||||||||||||
| Exhibit Number |
Description of Document |
Form | File No. | Exhibit | Filing Date |
Filed Herewith |
||||||||||||||||
| 1.1* | Form of Underwriting Agreement. | |||||||||||||||||||||
| 1.2+ | Equity Distribution Agreement, dated March 14, 2019, by and between Marin Software Incorporated and JMP Securities LLC. | S-3 | 333-230275 | 1.2 | 3/14/19 | |||||||||||||||||
| 3.1+ | Restated Certificate of Incorporation. | 10-Q | 001-35838 | 3.1 | 5/9/13 | |||||||||||||||||
| 3.2+ | Restated Bylaws. | 10-Q | 001-35838 | 3.2 | 5/9/13 | |||||||||||||||||
| 3.3+ | Certificate of Amendment to Certificate of Incorporation. | 8-K | 001-35838 | 3.1 | 10/5/17 | |||||||||||||||||
| 4.1+ | Form of Common Stock Certificate. | S-1/A | 333-186669 | 4.1 | 3/15/13 | |||||||||||||||||
| 4.3* | Form of Preferred Stock Certificate. | |||||||||||||||||||||
| 4.4+ | Form of Debt Security. | S-3 | 333-230275 | 4.4 | 3/14/19 | |||||||||||||||||
| 4.5+ | Form of Indenture. | S-3 | 333-230275 | 4.5 | 3/14/19 | |||||||||||||||||
| 4.6* | Form of Warrant. | |||||||||||||||||||||
| 4.7* | Form of Warrant Agreement. | |||||||||||||||||||||
| 4.8* | Form of Subscription Rights Certificate | |||||||||||||||||||||
| 4.9* | Form of Unit. | |||||||||||||||||||||
| 4.10* | Form of Unit Agreement. | |||||||||||||||||||||
| 5.1+ | Opinion of Fenwick & West LLP. | S-3 | 333-230275 | 5.1 | 3/14/19 | |||||||||||||||||
| 23.1 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm. | X | ||||||||||||||||||||
| 23.2 | Consent of Grant Thornton LLP, independent registered public accounting firm. | X | ||||||||||||||||||||
| 23.3+ | S-3 | 333-230275 | 23.3 | 3/14/19 | ||||||||||||||||||
| 24.1+ | S-3 | 333-230275 | 24.1 | 3/14/19 | ||||||||||||||||||
| 25.1** | Form T-1 Statement of Eligibility of Trustee for Senior Indenture under The Trust Indenture Act of 1939. |
|||||||||||||||||||||
| 25.2** | Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under The Trust Indenture Act of 1939. |
|||||||||||||||||||||
| * | To be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended, and incorporated herein by reference. |
| ** | To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder. |
| + | Previously Filed. |
| Item 17. | Undertakings. |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(j) The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act, or the Act, in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Act.
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 9th day of May, 2019.
| 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 Christopher A. Lien |
Chief Executive Officer and Chairman of the Board |
May 9, 2019 | ||||
| /s/ Bradley W. Kinnish Bradley W. Kinnish |
Chief Financial Officer (Principal Financial and Accounting Officer) |
May 9, 2019 | ||||
| * L. Gordon Crovitz |
Director | May 9, 2019 | ||||
| * Donald Hutchison |
Director | May 9, 2019 | ||||
| * Brian Kinion |
Director | May 9, 2019 | ||||
| * Daina Middleton |
Director | May 9, 2019 | ||||
| *By: | /s/ Christopher A. Lien | |
| Christopher A. Lien Attorney-in-fact | ||