S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on December 17, 2008
Table of Contents
As
filed with the Securities and Exchange Commission on December 17, 2008
Registration No. 333-
United States
Securities and Exchange Commission
Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNDER
THE SECURITIES ACT OF 1933
INTUIT INC.
(Exact Name of Issuer as Specified in Its Charter)
|
Delaware (State of Incorporation) |
77-0034661 (I.R.S. Employer Identification No.) |
2700 Coast Avenue
Mountain View, California 94043
(Address of Principal Executive Offices)
Mountain View, California 94043
(Address of Principal Executive Offices)
Intuit Inc. 2005 Equity Incentive Plan
(Full title of the Plan)
(Full title of the Plan)
Laura A. Fennell, Esq.
Intuit Inc.
2700 Coast Avenue
Mountain View, California 94043
(650) 944-6000
(Name, Address and Telephone Number of Agent for Service)
Intuit Inc.
2700 Coast Avenue
Mountain View, California 94043
(650) 944-6000
(Name, Address and Telephone Number of Agent for Service)
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 þ | Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
| Title of securities | Amount to be | Proposed maximum | Proposed maximum | Amount of registration | ||||||||||||||||||
| to be registered | registered | offering price per share | aggregate offering price | fee | ||||||||||||||||||
Common Stock, $0.01 par value |
10,000,000 | (1) | $22.745 | (2) | $227,450,000 | (2) | $8,938.79 | |||||||||||||||
| (1) | Represents 10,000,000 additional shares available for awards under the Intuit Inc. 2005 Equity Incentive Plan, as amended by the Registrants stockholders on December 16, 2008. 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 Registrants common stock in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction. | |
| (2) | Estimated solely for the purpose of calculating the registration fee. Calculated pursuant to Rules 457(c) and 457(h) under the Securities Act based on the average of the high and low prices per share of the Registrants common stock as reported on The Nasdaq Global Select Market on December 15, 2008, which was $22.745. |
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EXPLANATORY NOTE
This Registration Statement relates to the registration of additional securities under the Intuit
Inc. 2005 Equity Incentive Plan (the Plan), which has been amended since the filing of Intuit
Inc.s (the Company or Registrant) Registration Statements covering the Plan. In accordance
with General Instruction E to Form S-8, the contents of the previous Registration Statements on
Form S-8 related to the 2005 Equity Incentive Plan (Commission File No. 333-121170 filed on
December 10, 2004, Commission File No. 333-130453, filed on December 19, 2005, Commission File No.
333-139452 filed on December 18, 2006, and Commission File No. 333-148112 filed on December 17,
2007 with the Securities and Exchange Commission (the Commission)) are incorporated herein by
reference and made part of this Registration Statement, except as amended hereby.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents of the Registrant filed with the Securities and Exchange Commission
(the Commission) are incorporated herein by reference:
| (a) | The Registrants Annual Report on Form 10-K for the fiscal year ended July 31, 2008; | ||
| (b) | All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrants Annual Report referred to in (a) above; and | ||
| (c) | The Registrants Registration Statement on Form 8-A filed with the Commission on February 4, 1993 pursuant to Section 12(g) of the Exchange Act, in which there is described the terms, rights and provisions applicable to the Registrants Common Stock. |
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Laura A. Fennell, Esq., Senior Vice President, General Counsel and Corporate Secretary of
Intuit, will pass upon the validity of the issuance of the shares of Common Stock offered by this
Registration Statement. As of November 30, 2008, Ms. Fennell held 9,798 shares of Intuits common
stock, options to purchase 305,000 shares of Common Stock (of which 225,275 shares are exercisable
within the next 60 days), and 47,545 restricted stock units (3,045 of which are vested or will vest
in the next 60 days).
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law, the Registrants
Certificate of Incorporation includes a provision that eliminates the personal liability of its
directors for monetary damages for breach or alleged breach of their duty of care. In addition, as
permitted by Section 145 of the Delaware General Corporation Law, the Registrants Bylaws provide
that:
| | the Registrant is required to indemnify its directors and officers and persons serving in such capacities in other business enterprises (including, for example, subsidiaries of Intuit) at the request of the Registrant, to the fullest extent permitted by Delaware law, including those circumstances in which indemnification would otherwise be discretionary; | |
| | the Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is not required by law; | |
| | the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding (except that it is not required to advance expenses to a person against whom the Registrant brings a claim for breach of the duty of loyalty, failure to act in good faith, intentional misconduct, knowing violation of law or deriving an improper personal benefit); | |
| | the rights conferred in the Registrants Bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers and employees; and | |
| | the Registrant may not retroactively amend the Registrants Bylaw provisions in a way that is adverse to such directors, officers and employees. |
The Registrants policy is to enter into indemnity agreements with each of its and its
subsidiaries directors and officers. The agreements provide that the Registrant will indemnify its
directors and officers under Section 145 of the Delaware General Corporation Law and the
Registrants Bylaws. In addition, the indemnity agreements provide that the Registrant will advance
expenses (including attorneys fees) and settlement amounts paid or incurred by the directors and
officers in any action or proceeding, including any derivative action by or in the right of the
Registrant, on account of their services as directors or officers of the Registrant or as directors
or officers of any other company or enterprise when they are serving in such capacities at the
request of the Registrant. The Registrant will not be obligated pursuant to the agreements to
indemnify or advance expenses to an indemnified party with respect
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to proceedings or claims initiated by the indemnified party and not by way of defense, except with
respect to proceedings specifically authorized by the Registrants Board of Directors or brought to
enforce a right to indemnification under the indemnity agreement, the Registrants Bylaws or any
statute or law. Under the agreements, the Registrant is not obligated to indemnify the indemnified
party:
| | for any expenses incurred by the indemnified party with respect to any proceeding instituted by the indemnified party to enforce or interpret the agreement, if a court of competent jurisdiction determines that each of the material assertions made by the indemnified party in such proceeding was not made in good faith or was frivolous; | |
| | for any amounts paid in settlement of a proceeding unless the Registrant consents to such settlement; | |
| | with respect to any proceeding brought by the Registrant against the indemnified party for willful misconduct, unless a court determines that each of such claims was not made in good faith or was frivolous; | |
| | on account of any suit in which judgment is rendered against the indemnified party for an accounting of profits made from the purchase or sale by the indemnified party of securities of the Registrant pursuant to the provisions of Section 16(b) of the Exchange Act and related laws; | |
| | on account of the indemnified partys conduct which is finally adjudged to have been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct or a knowing violation of the law; or | |
| | if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. |
The indemnification provision in the Registrants Bylaws, and the indemnity agreements entered
into between the Registrant and its directors and executive officers, may be sufficiently broad to
permit indemnification of the Registrants officers and directors for liabilities arising under the
Securities Act.
The indemnity agreements with the Registrants officers and directors require the Registrant
to maintain director and officer liability insurance to the extent reasonably available. The
Registrant currently maintains a director and officer liability insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index
Unless otherwise indicated below as being incorporated by reference to another filing of
Intuit Inc. with the Commission, each of the following exhibits is filed herewith:
| Filed | ||||||||||
| with this | Incorporated By Reference | |||||||||
| Exhibit No. | Exhibit Description | Form S-8 | Form | File No. | Date Filed | |||||
5.01
|
Opinion of Counsel | X | ||||||||
23.01
|
Consent of Counsel (included in Exhibit 5.01) | X | ||||||||
23.02
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | X | ||||||||
24.01
|
Power of Attorney (see pages II-5 and II-6) | X | ||||||||
99.01+
|
Intuit Inc. 2005 Equity Incentive Plan, as amended through December 16, 2008 | X | ||||||||
| + | Indicates a management contract or compensatory plan or arrangement |
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ITEM 9. 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;
(ii) To reflect in the prospectus any facts or events arising after the effective date
of this 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 Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to such
information in this Registration Statement.
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 Securities and Exchange Commission by the registrant
pursuant to Section 13 and Section 15(d) of the Securities Exchange Act of 1934 (the
Exchange Act) that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrants annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to applicable
indemnification provisions, 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 hereby, 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.
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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 Mountain View, State of California, on December 17, 2008.
| INTUIT INC. |
||||
| By: | /s/ R. Neil Williams | |||
| R. Neil Williams | ||||
| Senior Vice President and Chief Financial Officer |
||||
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POWER OF ATTORNEY
By signing this Form S-8 below, I hereby appoint each of Brad D. Smith and R. Neil Williams as
my true and lawful attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and agents, and any one
of them, determine may be necessary or advisable or required to enable said corporation to comply
with the Securities Act of 1933, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the power and authority
to sign the names of the undersigned officers and directors in the capacities indicated below to
this Registration Statement, to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or supplements thereof,
and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any
one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed
in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date
indicated. 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.
Principal Executive Officer: |
||||
/s/ BRAD D. SMITH
|
Chief Executive Officer, President and Director |
December 17, 2008 | ||
Principal Financial Officer |
||||
/s/ R. NEIL WILLIAMS
|
Senior Vice President and Chief Financial Officer |
December 17, 2008 | ||
Principal Accounting Officer: |
||||
/s/ JEFFREY P. HANK
|
Vice President, Corporate Controller |
December 17, 2008 | ||
Additional Directors: |
||||
/s/ STEPHEN M. BENNETT
|
Director | December 17, 2008 | ||
/s/ CHRISTOPHER W. BRODY
|
Director | December 17, 2008 | ||
/s/ WILLIAM V. CAMPBELL
|
Director | December 17, 2008 | ||
/s/ SCOTT D. COOK
|
Director | December 17, 2008 | ||
/s/ DIANE B. GREENE
|
Director | December 17, 2008 | ||
/s/ MICHAEL R. HALLMAN
|
Director | December 17, 2008 | ||
/s/ EDWARD A. KANGAS
|
Director | December 17, 2008 | ||
/s/ SUZANNE NORA JOHNSON
|
Director | December 17, 2008 |
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/s/ DENNIS D. POWELL
|
Director | December 17, 2008 | ||
/s/ STRATTON D. SCLAVOS
|
Director | December 17, 2008 |
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EXHIBIT INDEX
| Exhibit | ||
| Number | Exhibit Description | |
5.01
|
Opinion of Counsel | |
23.01
|
Consent of Counsel (included in Exhibit 5.01). | |
23.02
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
24.01
|
Power of Attorney (see pages II-5 and II-6) | |
99.01+
|
Intuit Inc. 2005 Equity Incentive Plan, as amended through December 16, 2008 |
| + | Indicates a management contract or compensatory plan or arrangement |
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