exv10w4






Exhibit 10.4




INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (the “Agreement”), dated as of                                         , 2010, between
Financial Engines, Inc., a Delaware corporation (the “Corporation”), and                                         
(“Indemnitee”),



WITNESSETH:




     WHEREAS, Indemnitee is either a member of the board of directors of the Corporation (the
“Board of Directors”), a director of a wholly owned subsidiary of the Corporation, an officer of
the Corporation or an officer of a wholly owned subsidiary of the Corporation, or one or more of
such positions, and in such capacity or capacities, or otherwise as an Agent (as hereinafter
defined) of the Corporation, is performing a valuable service for the Corporation; and



     WHEREAS, the Corporation is aware that competent and experienced persons are increasingly
reluctant to serve as directors or officers of corporations or other business entities unless they
are protected by comprehensive indemnification and liability insurance, due to increased exposure
to litigation costs and risks resulting from their service to such entities, and because the
exposure frequently bears no reasonable relationship to the compensation of such directors and
officers; and



     WHEREAS, the Board of Directors of the Corporation has concluded that, to retain and attract
talented and experienced individuals to serve or continue to serve as officers or directors of the
Corporation or its subsidiaries, and to encourage such individuals to take the business risks
necessary for the success of the Corporation, it is necessary for the Corporation contractually to
indemnify directors and officers and to assume for itself to the fullest extent permitted by law
expenses and damages in connection with claims against such officers or directors in connection
with their service to the Corporation; and



     WHEREAS, section 145 of the General Corporation Law of Delaware (the “DGCL”), under which the
Corporation is organized, empowers the Corporation to indemnify by agreement its officers,
directors, employees and agents, and persons who serve, at the request of the Corporation, as
directors, officers, employees or agents of other corporations or enterprises, and expressly
provides that the indemnification provided by the DGCL is not exclusive; and



     WHEREAS, the Corporation desires and has requested the Indemnitee to serve or continue to
serve as a director, officer or agent of the Corporation or one or more of its subsidiaries free
from undue concern for claims for damages arising out of or related to such services to the
Corporation; and



     WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Corporation on the condition that he or she be indemnified as herein
provided; and



     WHEREAS, it is intended that Indemnitee shall be paid promptly by the Corporation all amounts
necessary to effectuate in full the indemnity provided herein; and



 









 





     WHEREAS, certain defined terms are set forth in Section 16 below:



     NOW, THEREFORE, in consideration of the premises and the covenants in this Agreement, and of
Indemnitee serving or continuing to serve the Corporation or one or more of its subsidiaries as an
Agent and intending to be legally bound hereby, the parties hereto agree as follows:



     1. Services by Indemnitee. Indemnitee agrees to serve or continue to serve (a)
as a director or an officer of the
Corporation, or as a director or employee of a wholly owned subsidiary of the Corporation, or one
or more of such positions, so long as Indemnitee is duly appointed or elected and qualified in
accordance with the applicable provisions of the Certificate of Incorporation and bylaws of the
Corporation, and until such time as Indemnitee resigns or fails to stand for election or is removed
from Indemnitee’s position, or (b) otherwise as an Agent of the Corporation. Indemnitee may from
time to time also perform other services at the request or for the convenience of, or otherwise
benefiting the Corporation or one or more of its subsidiaries. Indemnitee may at any time and for
any reason resign or be removed from such position (subject to any other contractual obligation or
other obligation imposed by operation of law), in which event the Corporation shall have no
obligation under this Agreement to continue Indemnitee in any such position.



     2. Indemnification of Indemnitee. Subject
to the limitations set forth herein and particularly in Section 6 hereof, the
Corporation shall indemnify Indemnitee as follows:



     (a) The Corporation shall, with respect to any Proceeding (as hereinafter defined), indemnify
Indemnitee to the fullest extent permitted by applicable law or as such law may from time to time
be amended (but, in the case of any such amendment, only to the extent such amendment permits the
Corporation to provide broader indemnification rights than the law permitted the Corporation to
provide before such amendment). The right to indemnification conferred herein shall be presumed to
have been relied upon by Indemnitee in serving or continuing to serve the Corporation as an Agent
and shall be enforceable as a contract right. Without in any way diminishing the scope of the
indemnification provided by this Section 2(a), the rights of indemnification of Indemnitee shall
include but shall not be limited to those rights hereinafter set forth.



     (b) The Corporation shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any Proceeding (other than an action by or in the right of the
Corporation) by reason of the fact that Indemnitee is or was an Agent of the Corporation, or any
subsidiary of the Corporation, or by reason of the fact that Indemnitee is or was serving at the
request of the Corporation as an Agent of another corporation, partnership, joint venture, trust or
other enterprise, against Expenses (as hereinafter defined) or Liabilities (as hereinafter
defined), actually and reasonably incurred by Indemnitee in connection with such Proceeding if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful.



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     (c) The Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the Corporation or any
subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was an Agent of the Corporation, or any subsidiary of the Corporation, or by
reason of the fact that Indemnitee is or was serving at the request of the Corporation as an Agent
of another corporation, partnership, joint venture, trust or other enterprise, against Expenses
and, to the fullest extent permitted by law, Liabilities if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any claim, issue or matter
as to which Indemnitee shall have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the State of Delaware or such other
court shall deem proper.



     3. Advancement of Expenses . All
reasonable Expenses incurred by or on behalf of Indemnitee (including costs of
enforcement of this Agreement) shall be advanced from time to time by the Corporation to Indemnitee
within thirty (30) days after the receipt by the Corporation of a written request for an advance of
Expenses, whether prior to or after final disposition of a Proceeding (except to the extent that
there has been a Final Adverse Determination (as hereinafter defined) that Indemnitee is not
entitled to be indemnified for such Expenses), including without limitation any Proceeding brought
by or in the right of the Corporation. The written request for an advancement of any and all
Expenses under this paragraph shall contain reasonable detail of the Expenses incurred by
Indemnitee. In the event that such written request shall be accompanied by an affidavit of counsel
to Indemnitee to the effect that such counsel has reviewed such Expenses and that such Expenses are
reasonable in such counsel’s view, then such expenses shall be deemed reasonable in the absence of
clear and convincing evidence to the contrary. By execution of this Agreement, Indemnitee shall be
deemed to have made whatever undertaking as may be required by law at the time of any advancement
of Expenses with respect to repayment to the Corporation of such Expenses. In the event that the
Corporation shall breach its obligation to advance Expenses under this Section 3, the parties
hereto agree that Indemnitee’s remedies available at law would not be adequate and that Indemnitee
would be entitled to specific performance.



     4. Presumptions and Effect of Certain Proceedings. Upon making
a request for indemnification, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Corporation shall have the burden of proof to overcome
that presumption in reaching any contrary determination. The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or upon a plea of nolo contendere or
its equivalent shall not affect this presumption or, except as determined by a judgment or other
final adjudication adverse to Indemnitee, establish a presumption with regard to any factual matter
relevant to determining Indemnitee’s rights to indemnification hereunder. If the person or persons
so empowered to make a determination pursuant to Section 5 hereof shall have failed to make the
requested determination within the period provided for in Section 5,
a determination that Indemnitee is entitled to indemnification shall be deemed to have been
made.



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     5. Procedure
for Determination of Entitlement to Indemnification.



     (a) Whenever Indemnitee believes that Indemnitee is entitled to indemnification pursuant to
this Agreement, Indemnitee shall submit a written request for indemnification to the Corporation.
Any request for indemnification shall include sufficient documentation or information reasonably
available to Indemnitee for the determination of entitlement to indemnification. In any event,
Indemnitee shall submit Indemnitee’s claim for indemnification within a reasonable time, not to
exceed five (5) years after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, or final determination,
whichever is the later date for which Indemnitee requests indemnification. The Secretary or other
appropriate officer shall, promptly upon receipt of Indemnitee’s request for indemnification,
advise the Board of Directors in writing that Indemnitee has made such request. Determination of
Indemnitee’s entitlement to indemnification shall be made not later than sixty (60) days after the
Corporation’s receipt of Indemnitee’s written request for such indemnification, provided that any
request for indemnification for Liabilities, other than amounts paid in settlement, shall have been
made after a determination thereof in a Proceeding. If it is so determined that the Indemnitee is
entitled to indemnification, and Indemnitee has already paid the Liabilities, reimbursement to the
Indemnitee shall be made within ten (10) days after such determination; otherwise, the Corporation
shall pay the Liabilities on behalf of Indemnitee if and when Indemnitee becomes legally obligated
to make payment.



     (b) The Corporation shall be entitled to select the forum in which Indemnitee’s entitlement to
indemnification will be heard; provided, however, that if there is a Change in Control of the
Corporation, Independent Legal Counsel (as hereinafter defined) shall determine whether Indemnitee
is entitled to indemnification. The forum shall be any one of the following:




     (i) a majority vote of Disinterested Directors (as hereinafter defined), even though
less than a quorum;




     (ii) by a committee of Disinterested Directors designated by majority vote of
Disinterested Directors, even though less than a quorum;




     (iii) Independent Legal Counsel, whose determination shall be made in a written
opinion; or




     (iv) the stockholders of the Corporation.



     6. Specific Limitations on Indemnification. Notwithstanding
anything in this Agreement to the contrary, the Corporation shall not be
obligated under this Agreement to make any payment to Indemnitee with respect to any Proceeding:



     (a) To the extent that payment is actually made to Indemnitee under any insurance policy, or
is made to Indemnitee by the Corporation or an affiliate otherwise than pursuant to this Agreement.
Notwithstanding the availability of such insurance, Indemnitee also may claim
indemnification from the Corporation pursuant to this Agreement by assigning to the
Corporation any claims under such insurance to the extent Indemnitee is paid by the Corporation;



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     (b) Provided there has been no Change in Control, for Liabilities in connection with
Proceedings settled without the Corporation’s consent, which consent, however, shall not be
unreasonably withheld;



     (c) For an accounting of profits made from the purchase or sale by Indemnitee of securities of
the Corporation within the meaning of section 16(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), or similar provisions of any state statutory or common law;



     (d) To the extent it would be otherwise prohibited by law, if so established by a judgment or
other final adjudication adverse to Indemnitee; or



     (e) In connection with a Proceeding commenced by Indemnitee (other than a Proceeding commenced
by Indemnitee to enforce Indemnitee’s rights under this Agreement) unless the commencement of such
Proceeding was authorized by the Board of Directors.



     7. Fees and Expenses of Independent Legal Counsel. The
Corporation agrees to pay the reasonable fees and expenses of Independent Legal Counsel
should such Independent Legal Counsel be retained to make a determination of Indemnitee’s
entitlement to indemnification pursuant to Section 5(b) of this Agreement, and to fully indemnify
such Independent Legal Counsel against any and all expenses and losses incurred by any of them
arising out of or relating to this Agreement or their engagement pursuant hereto.



     8. Remedies of Indemnitee.



     (a) In the event that (i) a determination pursuant to Section 5 hereof is made that Indemnitee
is not entitled to indemnification, (ii) advances of Expenses are not made pursuant to this
Agreement, (iii) payment has not been timely made following a determination of entitlement to
indemnification pursuant to this Agreement, or (iv) Indemnitee otherwise seeks enforcement of this
Agreement, Indemnitee shall be entitled to a final adjudication in the Court of Chancery of the
State of Delaware of the remedy sought. Alternatively, unless court approval is required by law
for the indemnification sought by Indemnitee, Indemnitee at Indemnitee’s option may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the commercial arbitration rules
of the American Arbitration Association now in effect, which award is to be made within ninety (90)
days following the filing of the demand for arbitration. The Corporation shall not oppose
Indemnitee’s right to seek any such adjudication or arbitration award. In any such proceeding or
arbitration Indemnitee shall be presumed to be entitled to indemnification and advancement of
Expenses under this Agreement and the Corporation shall have the burden of proof to overcome that
presumption.



     (b) In the event that a determination that Indemnitee is not entitled to indemnification, in
whole or in part, has been made pursuant to Section 5 hereof, the decision in the judicial
proceeding or arbitration provided in paragraph (a) of this Section 8 shall be made de
novo and Indemnitee shall not be prejudiced by reason of a determination that Indemnitee is
not entitled to indemnification.



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     (c) If a determination that Indemnitee is entitled to indemnification has been made pursuant
to Section 5 hereof, or is deemed to have been made pursuant to Section 4 hereof or otherwise
pursuant to the terms of this Agreement, the Corporation shall be bound by such determination.



     (d) The Corporation shall be precluded from asserting that the procedures and presumptions of
this Agreement are not valid, binding and enforceable. The Corporation shall stipulate in any such
court or before any such arbitrator that the Corporation is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.



     (e) Expenses reasonably incurred by Indemnitee in connection with Indemnitee’s request for
indemnification under, seeking enforcement of or to recover damages for breach of this Agreement
shall be advanced by the Corporation when and as incurred by Indemnitee irrespective of any Final
Adverse Determination that Indemnitee is not entitled to indemnification.



     9. Contribution.To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Corporation, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to
be paid in settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits
received by the Corporation and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the Corporation (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).



     10. Maintenance of Insurance. The Corporation represents that it presently has in
place certain directors’ and officers’ liability insurance policies covering the directors and
officers of the Corporation and the directors and officers of the wholly owned subsidiaries of the
Corporation. Subject only to the provisions within this Section 10, the Corporation agrees that so
long as Indemnitee shall have consented to serve or shall continue to serve as a director or
officer of the Corporation as a director or officer of a wholly owned subsidiary of the
Corporation, or one or more of such positions, or as an Agent of the Corporation, and thereafter so
long as Indemnitee shall be subject to any possible Proceeding (such periods being hereinafter
sometimes referred to as the “Indemnification Period”), the Corporation will use all reasonable
efforts to maintain in effect for the benefit of Indemnitee one or more valid, binding and
enforceable policies of directors’ and officers’ liability insurance from established and reputable
insurers, providing, in all respects, coverage both in scope and amount which is no less favorable
than that presently provided or, following the Corporation’s initial public offering, than that
provided as of the time of such initial public offering. Notwithstanding the foregoing, the
Corporation shall not be required to maintain said policies of directors’ and officers’ liability
insurance during any time period if during such period such insurance is not reasonably available
or if it is determined in good faith by the then directors of the Corporation either that:



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     (i) The premium cost of maintaining such insurance is substantially disproportionate to
the amount of coverage provided thereunder; or




     (ii) The protection provided by such insurance is so limited by exclusions, deductions
or otherwise that there is insufficient benefit to warrant the cost of maintaining such
insurance.



     Anything in this Agreement to the contrary notwithstanding, to the extent that and for so long
as the Corporation shall choose to continue to maintain any policies of directors’ and officers’
liability insurance during the Indemnification Period, the Corporation shall maintain similar and
equivalent insurance for the benefit of Indemnitee during the Indemnification Period (unless such
insurance shall be less favorable to Indemnitee than the Corporation’s existing policies).



     11. Modification, Waiver, Termination and Cancellation. No supplement, modification,
termination, cancellation or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver.



     12. Subrogation. In the event of payment under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the Corporation effectively
to bring suit to enforce such rights.



     13. Notice by Indemnitee and Defense of Claim. Indemnitee shall promptly notify the
Corporation in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any matter, whether civil, criminal,
administrative or investigative which may result in the right to indemnification or the advancement
of Expenses, but the omission so to notify the Corporation will not relieve it from any liability
that it may have to Indemnitee if such omission does not prejudice the Corporation’s rights. If
such omission does prejudice the Corporation’s rights, the Corporation will be relieved from
liability only to the extent of such prejudice. Notwithstanding the foregoing, such omission will
not relieve the Corporation from any liability that it may have to Indemnitee otherwise than under
this Agreement. With respect to any Proceeding as to which Indemnitee notifies the Corporation of
the commencement thereof:



     (a) The Corporation will be entitled to participate therein at its own expense; and



     (b) The Corporation jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee;
provided, however, that the Corporation shall not be entitled to assume the defense of any
Proceeding if there has been a Change in Control or if Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Corporation and Indemnitee with respect to
such Proceeding. After notice from the Corporation to Indemnitee of its election to assume the
defense thereof, the Corporation will not be liable to Indemnitee under this



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Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Indemnitee unless:





     (i) the employment of counsel by Indemnitee has been authorized by the Corporation;




     (ii) Indemnitee shall have reasonably concluded that counsel engaged by the Corporation
may not adequately represent Indemnitee due to, among other things, actual or potential
differing interests; or




     (iii) the Corporation shall not in fact have employed counsel to assume the defense in
such Proceeding or shall not in fact have assumed such defense and be acting in connection
therewith with reasonable diligence; in each of which cases the fees and expenses of such
counsel shall be at the expense of the Corporation.



     (c) The Corporation shall not settle any Proceeding in any manner that would impose any
penalty or limitation on Indemnitee without Indemnitee’s written consent; provided, however, that
Indemnitee will not unreasonably withhold his or her consent to any proposed settlement.



     14. Notices. All notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to
whom said notice or other communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date on which it is so
mailed:




	 	(a)	 	If to Indemnitee, to the address set forth below Indemnitee’s signature on the
signature page hereof.
	 
	 	(b)	 	If to the Corporation, to:

Financial Engines, Inc.

1804 Embarcadero Road

Palo Alto, CA 94303

Attn: General Counsel





or to such other address as may have been furnished to Indemnitee by the Corporation or to the
Corporation by Indemnitee, as the case may be.




     15. Nonexclusivity. The
rights of Indemnitee hereunder shall not be deemed exclusive of any other rights to
which Indemnitee may be entitled under applicable law, the Corporation’s Certificate of
Incorporation or bylaws, or any agreements, vote of stockholders, resolution of the Board of
Directors or otherwise, and to the extent that during the Indemnification Period the rights of
the then existing directors and officers are more favorable to such directors or officers than the
rights currently provided to Indemnitee thereunder or under this Agreement, Indemnitee shall be
entitled to the full benefits of such more favorable rights.



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     16. Indemnification and Advancement Rights Primary. The Company hereby acknowledges that
Indemnitee has or may have certain rights to indemnification, advancement of expenses and/or
insurance provided by one or more parties other than the Company or an affiliate of the Company
(collectively, the “Secondary Indemnitors”). The Company hereby acknowledges and the Company and
Indemnitee hereby agree: (i) that the Company is the indemnitor of first resort; i.e., its
obligations to Indemnitee are primary and any obligation of the Secondary Indemnitors to advance
expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee
are secondary; (ii) that the Company shall be required to advance the full amount of expenses
incurred by Indemnitee and shall be liable for the full amount of all expenses, judgments,
penalties, fines and amounts paid in settlement to the extent legally permitted and as required by
the terms of this Agreement and the Certificate of Incorporation and/or Bylaws of the Company (or
any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee
may have against the Secondary Indemnitors; and (iii) that the Company irrevocably waives,
relinquishes and releases the Secondary Indemnitors from any and all claims against the Secondary
Indemnitors that the Company may have for contribution, subrogation or any other recovery of any
kind in respect thereof. The Company further agrees that no advancement or payment by the
Secondary Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has
sought indemnification from the Company shall affect the foregoing and the Secondary Indemnitors
shall have a right of contribution and/or subrogation to the extent of such advancement or payment
to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee
agree that the Secondary Indemnitors are express third party beneficiaries of the terms of this
provision.



     17. Certain Definitions.



     (a) “Agent” shall mean any person who is or was, or who has consented to serve as, a director,
officer, employee, agent, fiduciary, joint venturer, partner, manager or other official of the
Corporation or a subsidiary or an affiliate of the Corporation, or any other entity (including
without limitation, an employee benefit plan), in each case either at the request of, for the
convenience of, or otherwise to benefit the Corporation or a subsidiary of the Corporation. Any
person who is or was serving as a director, officer, employee or agent of a subsidiary of the
Corporation shall be deemed to be serving, or have served, at the request of the Corporation.



    
 (b) “Change in Control” shall mean the occurrence,
after the Corporation’s initial public
offering, of any of the following:




    
 (i) Both (A) any “person” (as defined below) is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Corporation representing at least twenty percent (20%) of the total voting power represented
by the Corporation’s then outstanding voting securities and (B) the beneficial ownership by
such person of securities representing such percentage is not approved by a majority of the
“Continuing Directors” (as defined below);




     (ii) Any “person” is or becomes the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Corporation



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     representing at least fifty percent (50%) of the total voting power represented by the
Corporation’s then outstanding voting securities;




     (iii) A change in the composition of the Board of Directors occurs, as a result of
which fewer than two-thirds of the incumbent directors are directors who either (A) had been
directors of the Corporation on the “look-back date” (as defined below) (the “Original
Directors”) or (B) were elected, or nominated for election, to the Board of Directors with
the affirmative votes of at least a majority in the aggregate of the Original Directors who
were still in office at the time of the election or nomination and directors whose election
or nomination was previously so approved (together, the directors referenced in clauses (A)
and (B) of this Section 16(b)(iii) shall be referred to as the “Continuing Directors”);




     (iv) The stockholders of the Corporation approve a merger or consolidation of the
Corporation with any other corporation, if such merger or consolidation would result in the
voting securities of the Corporation outstanding immediately prior thereto representing
(either by remaining outstanding or by being converted into voting securities of the
surviving entity) 50% or less of the total voting power represented by the voting securities
of the Corporation or such surviving entity outstanding immediately after such merger or
consolidation; or




     (v) The stockholders of the Corporation approve (A) a plan of complete liquidation of
the Corporation or (B) an agreement for the sale or disposition by the Corporation of all or
substantially all of the Corporation’s assets.



     For purposes of Subsections (i) and (ii) above, the term “person” shall have the same meaning
as when used in sections 13(d) and 14(d) of the Exchange Act, but shall exclude (x) a trustee or
other fiduciary holding securities under an employee benefit plan of the Corporation or of a parent
or subsidiary of the Corporation or (y) a corporation owned directly or indirectly by the
stockholders of the Corporation in substantially the same proportions as their ownership of the
common stock of the Corporation.



     For purposes of Subsection (iii) above, the term “look-back date” shall mean the later of (x)
the date first written above in the preamble to this Agreement or (y) the date 24 months prior to
the date of the event that may constitute a “Change in Control.”



     Any other provision of this Section 17(b) notwithstanding, the term “Change in Control” shall
not include a transaction, if undertaken at the election of the Corporation, the result of which is
to sell all or substantially all of the assets of the Corporation to another corporation (the
“surviving corporation”); provided that the surviving corporation is owned directly or indirectly
by the stockholders of the Corporation immediately following such transaction in substantially the
same proportions as their ownership of the Corporation’s common stock immediately preceding such
transaction; and provided, further, that the surviving corporation expressly assumes this
Agreement.



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     (c) “Disinterested Director” shall mean a director of the Corporation who is not or was not a
party to the Proceeding in respect of which indemnification is being sought by Indemnitee.



     (d) “Expenses” shall include all direct and indirect costs (including, without limitation,
attorneys’ fees, retainers, court costs, transcripts, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery
service fees, all other disbursements or out-of-pocket expenses and reasonable compensation for
time spent by Indemnitee for which Indemnitee is otherwise not compensated by the Corporation or
any third party) actually and reasonably incurred in connection with either the investigation,
defense, settlement or appeal of a Proceeding or establishing or enforcing a right to
indemnification under this Agreement, applicable law or otherwise; provided, however, that
“Expenses” shall not include any Liabilities.



     (e) “Final Adverse Determination” shall mean that a determination that Indemnitee is not
entitled to indemnification shall have been made pursuant to Section 5 hereof and either (1) a
final adjudication in the courts of the State of Delaware from which there is no further right of
appeal or decision of an arbitrator pursuant to Section 8(a) hereof shall have denied Indemnitee’s
right to indemnification hereunder, or (2) Indemnitee shall have failed to file a complaint in a
Delaware court or seek an arbitrator’s award pursuant to Section 8(a) for a period of one hundred
twenty (120) days after the determination made pursuant to Section 5 hereof.



     (f) “Independent Legal Counsel” shall mean a law firm or a member of a firm or law professor
selected by the Corporation and approved by Indemnitee (which approval shall not be unreasonably
withheld) or, if there has been a Change in Control, selected by Indemnitee and approved by the
Corporation (which approval shall not be unreasonably withheld), that neither is presently nor in
the past five (5) years has been retained to represent: (i) the Corporation or any of its
subsidiaries or affiliates, or Indemnitee or any corporation of which Indemnitee was or is a
director, officer, employee or agent, or any subsidiary or affiliate of such a corporation, in any
material matter, or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term “Independent Legal Counsel”
shall not include any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Corporation or Indemnitee
in an action to determine Indemnitee’s right to indemnification under this Agreement.



     (g) “Liabilities” shall mean liabilities of any type whatsoever including, but not limited to,
any judgments, fines, Employee Retirement Income Security Act excise taxes and penalties, penalties
and amounts paid in settlement (including all interest assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or amounts paid in
settlement) of any Proceeding.



     (h) “Proceeding” shall mean any threatened, pending or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any
other proceeding whether civil, criminal, administrative or investigative, in which Indemnitee was,
is or will be involved as a party, as a witness or otherwise, that is associated with Indemnitee’s
being an Agent of the Corporation.



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     18. Binding Effect; Duration and Scope of Agreement. This Agreement shall be binding
upon the parties hereto and their respective successors and
assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business or assets of the Corporation), spouses, heirs and
personal and legal representatives. This Agreement shall be deemed to be effective as of the
commencement date of the Indemnitee’s service as an officer or director of the Corporation and
shall continue in effect during the Indemnification Period, regardless of whether Indemnitee
continues to serve as an Agent.



     19. Severability.  If any provision or provisions of this Agreement (or any portion
thereof) shall be held to be invalid, illegal or unenforceable for any reason whatsoever:



     (a) the validity, legality and enforceability of the remaining provisions of this Agreement
shall not in any way be affected or impaired thereby; and



     (b) to the fullest extent legally possible, the provisions of this Agreement shall be
construed so as to give effect to the intent of any provision held invalid, illegal or
unenforceable.



     20. Governing Law.  This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within the State of Delaware, without regard to
conflict of laws rules.



     21. Consent to Jurisdiction. The Corporation and Indemnitee each irrevocably consent
to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any
action or proceeding that arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be brought only in the state courts of the State of Delaware.



     22. Entire Agreement. This Agreement represents the entire agreement between the
parties hereto, and there are no other agreements, contracts or understandings between the parties
hereto with respect to the subject matter of this Agreement, except as specifically referred to
herein or as provided in Section 15 hereof.



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     23. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of which together shall constitute
one and the same Agreement.



     IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed by a duly
authorized officer and Indemnitee has executed this Agreement as of the date first above written.



	 	 	 	 	 
	 	FINANCIAL ENGINES, INC.,

a Delaware corporation

 	 
	 	By  	 	 
	 	 	Its	 	 
	 



	 	 	 	 	 
	 	INDEMNITEE

 	 
	 	  	 	 
	 
	 	Address:  	 
	 
	 	 	 	 
	 
	 	 	 	 
	 




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