Attached files
file | filename |
---|---|
EX-5.1 - EX-5.1 - Financial Engines, Inc. | f52084a6exv5w1.htm |
EX-10.4 - EX-10.4 - Financial Engines, Inc. | f52084a6exv10w4.htm |
As filed with the Securities and Exchange Commission on
March 11, 2010
Registration No. 333-163581
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 6
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
FINANCIAL ENGINES,
INC.
(Exact name of registrant as
specified in its charter)
Delaware | 6282 | 94-3250323 | ||
(State or other jurisdiction
of
|
(Primary Standard Industrial | (I.R.S. Employer | ||
incorporation or
organization)
|
Classification Code Number) | Identification No.) |
1804 Embarcadero Road
Palo Alto, California
94303
(650) 565-4900
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Jeffrey N.
Maggioncalda
Chief Executive
Officer
1804 Embarcadero Road
Palo Alto, California
94303
(650) 565-4900
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
Jorge del Calvo, Esq.
Davina K. Kaile, Esq. Pillsbury Winthrop Shaw Pittman LLP 2475 Hanover Street Palo Alto, CA 94304 (650) 233-4500 (650) 233-4545 facsimile |
Douglas D. Smith, Esq. Stewart L. McDowell, Esq. Gibson, Dunn & Crutcher LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 (415) 393-8200 (415) 986-5309 facsimile |
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement becomes effective.
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, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
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. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) 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. o
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 the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
(Do not check if a smaller
reporting company)
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
Explanatory
Note
This Amendment No. 6 to Financial Engines, Inc.s
Registration Statement on
Form S-1
(Registration
No. 333-163581)
originally filed with the Securities and Exchange Commission on
December 9, 2009, as amended by Amendment No. 1 filed
January 12, 2010, Amendment No. 2 filed
February 3, 2010, Amendment No. 3 filed
February 22, 2010, Amendment No. 4 filed
February 26, 2010 and Amendment No. 5 filed
March 8, 2010, is being filed solely for purposes of
amending the exhibit index to include Exhibit 5.1 and
Exhibit 10.4, which Exhibit 5.1 and 10.4 are also
filed herewith, and updating the transaction expenses set forth
under Item 13 to reflect a decrease in the Securities and
Exchange Commission registration fee. The total amount of
transaction expenses set forth under Item 13 did not
change. No changes have been made to Part I or Part II
of the Registration Statement other than Item 13 and
Item 16(a) of Part II as set forth below.
Part II
INFORMATION NOT
REQUIRED IN PROSPECTUS
Item 13. | Other Expenses of Issuance and Distribution |
The following table sets forth the various expenses expected to
be incurred by the Registrant in connection with the sale and
distribution of the securities being registered hereby, other
than underwriting discounts and commissions. All amounts are
estimated except for the Securities and Exchange Commission
registration fee, the Financial Industry Regulatory Authority
filing fee and The Nasdaq Global Market listing fee.
Securities and Exchange Commission registration fee
|
$ | 8,011 | ||
Financial Industry Regulatory Authority filing fee
|
14,289 | |||
The Nasdaq Global Market listing fee
|
100,000 | |||
Blue Sky fees and expenses
|
10,000 | |||
Accounting fees and expenses
|
1,500,000 | |||
Legal fees and expenses
|
800,000 | |||
Printing and engraving expenses
|
100,000 | |||
Registrar and Transfer Agents fees
|
25,000 | |||
Miscellaneous fees and expenses
|
42,700 | |||
Total
|
$ | 2,600,000 | ||
Item 16. | Exhibits and Financial Statement Schedules |
(a) Exhibits
Exhibit |
||||
Number
|
Description
|
|||
1 | .1** | Form of Underwriting Agreement. | ||
3 | .(i)1** | Amended and Restated Articles of Incorporation of the Registrant. | ||
3 | .(i)2** | Form of Amended and Restated Certificate of Incorporation of the Registrant, to be effective upon the completion of the offering to which this Registration Statement relates. | ||
3 | .(ii)1** | Bylaws of the Registrant (composite copy). | ||
3 | .(ii)2** | Form of Amended and Restated Bylaws of the Registrant, to be effective upon the completion of the offering to which this Registration Statement relates. | ||
4 | .1** | Specimen Common Stock Certificate. | ||
4 | .2** | Fifth Amended and Restated Investors Rights Agreement dated as of December 20, 2004. | ||
5 | .1 | Opinion of Pillsbury Winthrop Shaw Pittman LLP. | ||
10 | .1** | Financial Engines, Inc. 1998 Stock Plan (as amended on October 20, 2009) and related form stock option plan agreements. | ||
10 | .2** | Financial Engines, Inc. 2009 Stock Incentive Plan. | ||
10 | .3** | Financial Engines, Inc. Special Executive Restricted Stock Purchase Plan and related form stock purchase agreements. | ||
10 | .4 | Form of Indemnification Agreement between the Registrant and its officers and directors. | ||
10 | .5** | Financial Engines, Inc. Consulting Agreement between the Registrant and William F. Sharpe dated as of March 5, 1998, including amendments thereto. | ||
10 | .6** | Financial Engines, Inc. Third Amended and Restated Consulting Agreement between the Registrant and E. Olena Berg-Lacy dated as of October 1, 2009. | ||
10 | .7.1** | Lease Agreement by and between the Registrant and Harbor Investment Partners dated as of July 14, 1997, including amendments thereto. | ||
10 | .7.2** | Partial Lease Termination Agreement between Registrant and Harbor Investment Partners dated as of May 16, 2001. | ||
10 | .8** | Second Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated as of April 20, 2009. |
II-1
Exhibit |
||||
Number
|
Description
|
|||
10 | .9** | Offer letter to Lawrence M. Raffone dated December 21, 2000. | ||
10 | .10** | Lease Agreement by and between the Registrant and Harbor Investment Partners dated as of December 7, 1999, including amendments thereto. | ||
10 | .11** | Form of 2009 Stock Incentive Plan Stock Option Agreement. | ||
10 | .12** | Form of 2009 Stock Incentive Plan Restricted Stock Award Agreement (Employees). | ||
10 | .13** | Form of 2009 Stock Incentive Plan Restricted Stock Award Agreement (Executives). | ||
10 | .14** | Form of 2009 Stock Incentive Plan RSU Agreement. | ||
21 | .1** | List of Subsidiaries. | ||
23 | .1** | Consent of KPMG LLP, independent registered public accounting firm. | ||
23 | .2 | Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1). | ||
24 | .1** | Power of Attorney. | ||
24 | .2** | Power of Attorney for John B. Shoven. |
** | Previously filed. |
| To be executed by all officers and directors upon the completion of the reincorporation of the Registrant in Delaware. |
(b) Consolidated Financial Statement Schedules
No consolidated financial statement schedules are provided
because the information called for is not required or is shown
either in the consolidated financial statements or the notes
thereto.
Item 17. | Undertakings |
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the Act), 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 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 Act and will be
governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the
Act, 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 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
Act, 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.
(3) To provide to the underwriters at the closing(s)
specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser, each prospectus
filed pursuant to Rule 424(b) as part of a registration
statement
II-2
relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and
included in the registration statement as of the date it is
first used after effectiveness. 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 first use, 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 date of first use.
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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment No. 6 to the
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Palo
Alto, State of California, on the
10th day
of March, 2010.
FINANCIAL ENGINES, INC.
By |
/s/ Jeffrey
N. Maggioncalda
|
Jeffrey N. Maggioncalda
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Name
|
Title
|
Date
|
||||
/s/ Jeffrey
N. Maggioncalda Jeffrey N. Maggioncalda |
Chief Executive Officer (Principal Executive Officer), President and Director | March 10, 2010 | ||||
/s/ Raymond
J. Sims Raymond J. Sims |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | March 10, 2010 | ||||
* Paul G. Koontz |
Chairman | March 10, 2010 | ||||
* E. Olena Berg-Lacy |
Director | March 10, 2010 | ||||
* Heidi K. Fields |
Director | March 10, 2010 | ||||
* Joseph A. Grundfest |
Director | March 10, 2010 | ||||
* C. Richard Kramlich |
Director | March 10, 2010 | ||||
* John B. Shoven |
Director | March 10, 2010 | ||||
* Mark A. Wolfson |
Director | March 10, 2010 | ||||
*By |
/s/ Raymond
J. Sims Raymond J. Sims |
Attorney-in-Fact | March 10, 2010 |
II-4
EXHIBIT INDEX
Exhibit |
||||
Number
|
Description
|
|||
1 | .1** | Form of Underwriting Agreement. | ||
3 | .(i)1** | Amended and Restated Articles of Incorporation of the Registrant. | ||
3 | .(i)2** | Form of Amended and Restated Certificate of Incorporation of the Registrant, to be effective upon the completion of the offering to which this Registration Statement relates. | ||
3 | .(ii)1** | Bylaws of the Registrant (composite copy). | ||
3 | .(ii)2** | Form of Amended and Restated Bylaws of the Registrant, to be effective upon the completion of the offering to which this Registration Statement relates. | ||
4 | .1** | Specimen Common Stock Certificate. | ||
4 | .2** | Fifth Amended and Restated Investors Rights Agreement dated as of December 20, 2004. | ||
5 | .1 | Opinion of Pillsbury Winthrop Shaw Pittman LLP. | ||
10 | .1** | Financial Engines, Inc. 1998 Stock Plan (as amended on October 20, 2009) and related form stock option plan agreements. | ||
10 | .2** | Financial Engines, Inc. 2009 Stock Incentive Plan. | ||
10 | .3** | Financial Engines, Inc. Special Executive Restricted Stock Purchase Plan and related form stock purchase agreements. | ||
10 | .4 | Form of Indemnification Agreement between the Registrant and its officers and directors. | ||
10 | .5** | Financial Engines, Inc. Consulting Agreement between the Registrant and William F. Sharpe dated as of March 5, 1998, including amendments thereto. | ||
10 | .6** | Financial Engines, Inc. Third Amended and Restated Consulting Agreement between the Registrant and E. Olena Berg-Lacy dated as of October 1, 2009. | ||
10 | .7.1** | Lease Agreement by and between the Registrant and Harbor Investment Partners dated as of July 14, 1997, including amendments thereto. | ||
10 | .7.2** | Partial Lease Termination Agreement between Registrant and Harbor Investment Partners dated as of May 16, 2001. | ||
10 | .8** | Second Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated as of April 20, 2009. | ||
10 | .9** | Offer letter to Lawrence M. Raffone dated December 21, 2000. | ||
10 | .10** | Lease Agreement by and between the Registrant and Harbor Investment Partners dated as of December 7, 1999, including amendments thereto. | ||
10 | .11** | Form of 2009 Stock Incentive Plan Stock Option Agreement. | ||
10 | .12** | Form of 2009 Stock Incentive Plan Restricted Stock Award Agreement (Employees). | ||
10 | .13** | Form of 2009 Stock Incentive Plan Restricted Stock Award Agreement (Executives). | ||
10 | .14** | Form of 2009 Stock Incentive Plan RSU Agreement. | ||
21 | .1** | List of Subsidiaries. | ||
23 | .1** | Consent of KPMG LLP, independent registered public accounting firm. | ||
23 | .2 | Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1). | ||
24 | .1** | Power of Attorney. | ||
24 | .2** | Power of Attorney for John B. Shoven. |
** | Previously filed. |
| To be executed by all officers and directors upon the completion of the reincorporation of the Registrant in Delaware. |