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As filed with the Securities and Exchange Commission on August 17, 2000
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FRANKLIN ELECTRONIC PUBLISHERS, INCORPORATED
(exact name of registrant as specified in its charter)
PENNSYLVANIA 22-2476703
(state or other jurisdiction of (I.R.S employer
incorporation or organization) identification number)
ONE FRANKLIN PLAZA
BURLINGTON, NEW JERSEY 08016
(address of principal executive offices)
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FRANKLIN ELECTRONIC PUBLISHERS, INCORPORATED AMENDED AND
RESTATED 1998 STOCK OPTION PLAN
(full title of the plan or agreement)
-------------------
GREGORY J. WINSKY, ESQ. Copy to:
SENIOR VICE PRESIDENT EDWARD H. COHEN, ESQ.
FRANKLIN ELECTRONIC PUBLISHERS, INCORPORATED ROSENMAN & COLIN LLP
ONE FRANKLIN PLAZA 575 MADISON AVENUE
BURLINGTON, NEW JERSEY 08016 NEW YORK, NEW YORK 10022
(609) 386-2500 (212) 940-8580
(name, address and telephone number of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Title of Proposed maximum Proposed maximum Amount of
Securities to Amount to be offering price aggregate offering registration
Be registered registered per share(1) price(1) fee
<S> <C> <C> <C> <C>
Common Stock, no par value 750,000 $9.3125 $6,984,375 $1,844
==========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee;
computed, pursuant to Rule 457(c), upon the basis of the average of the high and
low prices of the Common Stock on the New York Stock Exchange on
August 16, 2000.
1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Franklin Electronic Publishers, Incorporated (the "Company") is subject
to the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and, in accordance therewith, files reports and
other information with the Securities and Exchange Commission (the
"Commission"). The following documents, or portions thereof, filed by the
Company with the Commission pursuant to the Exchange Act (File No. 1-14130) are
incorporated by reference in this Registration Statement:
a. The Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 2000 (File No. 001-13198); and
b. The Company's Quarterly Report on Form 10-Q for the Quarter
ended June 30, 2000 (File No. 001-13198).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment hereto indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the respective dates of filings of such
documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 9-04(a) of the By-laws provides that a director of the Company
shall not be personally liable for monetary damages for any action taken or any
failure to take any action, unless (i) the director has breached or failed to
perform the duties of his office as set forth in Section 512 of the Pennsylvania
Business Corporation Law (the "Pennsylvania BCL") (relating to standard of care
and justifiable reliance, as described below) and (ii) the breach or failure to
perform constitutes self-dealing, willful misconduct or recklessness. The
Section does not apply to the responsibility or liability of a director pursuant
to any criminal statute or to the liability of a director for the payment of
taxes pursuant to local, state or federal law. The Section does not limit the
liability of directors for violations of the federal securities laws in their
capacities as directors and officers of the Company.
Section 512 of the Pennsylvania BCL sets forth the standard of care for
directors. As fiduciaries with respect to the corporation they serve, directors
are obligated to perform their duties in good faith, in a manner they reasonably
believe to be in the best interests of the corporation, and with such care,
including reasonable inquiry, skill and diligence, as a person of ordinary
prudence would use under similar circumstances. Section 512 also entitles a
director to rely in good faith on information, opinions, reports or statements,
including financial statements and other financial data, prepared or presented
by officers or employees of the corporation, attorneys, public accountants,
other experts or committees of the board upon which the director does not serve,
provided that the director reasonably believes that such persons or committees
are competent with respect to the matter in question and the director has no
actual knowledge that would cause such reliance to be unwarranted. Directors
may, in considering the best interests of the corporation, consider the effects
of any action upon the corporation's employees, suppliers and customers, and
upon the communities in which the corporation has offices or other
establishments, as well as all other pertinent factors. While Section 9-04(a) of
the By-laws provides directors with protection from awards of monetary damages
for breaches of their duties, including grossly negligent business decisions, it
does not eliminate their duty and standard of care. Accordingly, equitable
remedies for such breaches, including injunctions, are available.
2
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Sections 1741 and 1742 of the Pennsylvania BCL permit Pennsylvania
corporations to grant indemnification rights to their directors, officers and
other persons. The following provisions of Section 9-04 of the By-laws are based
upon the indemnification provisions of these Pennsylvania statutes.
Section 9-04(b) of the By-laws provides that each director or officer
of the Company who was or is a party to, or is threatened to be made a party to,
or is otherwise involved in, any threatened, pending or completed action, suit
or proceeding, including, without limitation, an action by or in the right of
the Company (a shareholder's derivative action), by reason of being or having
been a director or officer of the Company in any other capacity, including as a
director, officer, employee, agent, partner or fiduciary for another entity,
shall be indemnified by the Company to the fullest extent permitted by
Pennsylvania law, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement incurred by such person in connection therewith.
The Company shall not, however, indemnify any person for actions determined by a
court to have constituted willful misconduct or recklessness.
Section 9-04(c) of the By-laws obligates the Company to advance to
directors or officers the expenses incurred by them in defending any of the
proceedings specified above in advance of the final disposition of such
proceedings, provided that, so long as Pennsylvania law continues so to require,
such payment shall only be made upon delivery to the Company by the indemnified
party of an undertaking to repay all amounts so advanced if it shall ultimately
be determined by a court that the person receiving such payments is not entitled
to be indemnified.
Section 9-04(d) of the By-laws provides that the rights to
indemnification and to the advancement of expenses conferred in the By-laws
shall be contractual rights and shall not be exclusive of any other right that
any person may have or acquire under the Company's Articles of Incorporation or
By-laws or any statute, agreement or otherwise.
Section 9-04(f) of the By-laws provides that the Company may procure
and maintain insurance, or create a fund, to secure or insure its
indemnification obligations whether arising under the By-laws or otherwise. The
Company has obtained such insurance.
ITEM 8. EXHIBITS
Exhibit No. Description
----------- -----------
3(a) Certificate of Incorporation of the Company
(Incorporated by reference to Exhibit 3.01 to the
Company's Registration Statement on Form S-1, File
No. 3-6612 (the "Company's 1986 S-1 Registration
Statement))
3(b) Articles of Amendment to the Certificate of
Incorporation of the Company (Incorporated by
reference to Exhibit 3.02 to the Company's Annual
Report on Form 10-K for the year ended March 31, 1990
(the "Company's 1990 10-K"))
3(c) By-laws of the Company (Incorporated by reference to
Exhibit 3.02 to the Company's 1986 S-1 Registration
Statement)
3(d) Amendment to By-laws of the Company (Incorporated by
reference to Exhibit A to the Company's Proxy
Statement relating to the 1987 Annual Meeting of
Shareholders)
3(e) Amendment to By-laws of the Company (Incorporated by
reference to Exhibit 3.05 to the Company's 1990 10-K)
3
<PAGE>
4 Franklin Electronic Publishers, Incorporated Amended
and Restated 1998 Stock Option Plan
5 Opinion of Gregory J. Winsky, Esq.
23(a) Consent of Radin, Glass & Co., LLP
23(b) Consent of Gregory J. Winsky, Esq. (included in
Exhibit 5 above)
4
<PAGE>
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes (a) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement 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; (b)
that, for the purpose of determining any liability under the Securities Act of
1933 (the "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; and (c) 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.
The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under 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 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.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Burlington, State of New Jersey, on this 16 day of
August, 2000.
FRANKLIN ELECTRONIC PUBLISHERS,
INCORPORATED
By: /s/
--------------------------------------
Barry J. Lipsky
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ August 16, 2000
----------------------------------
Edward H. Cohen, Director
/s/ August 16, 2000
----------------------------------
Barry J. Lipsky, Director
/s/ August 16, 2000
----------------------------------
Leonard M. Lodish, Director
/s/ August 16, 2000
----------------------------------
James Meister, Director
----------------------------------
Howard L. Morgan, Director
/s/ August 16, 2000
----------------------------------
Jerry R. Schubel, Director
----------------------------------
James H. Simons, Director
----------------------------------
William H. Turner, Director
/s/ August 16, 2000
----------------------------------
Arnold D. Levitt, (Chief Financial
Officer and Treasurer)
6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
3(a) Certificate of Incorporation of the Company
(Incorporated by reference to Exhibit 3.01 to the
Company's Registration Statement on Form S-1, File
No. 3-6612 (the "Company's 1986 S-1 Registration
Statement))
3(b) Articles of Amendment to the Certificate of
Incorporation of the Company (Incorporated by
reference to Exhibit 3.02 to the Company's report on
Form 10-K for the year ended March 31, 1990 (the
"Company's 1990 10-K"))
3(c) By-laws of the Company (Incorporated by reference to
Exhibit 3.02 to the Company's 1986 S-1 Registration
Statement)
3(d) Amendment to By-laws of the Company (Incorporated by
reference to Exhibit A to the Company's Proxy
Statement relating to the 1987 Annual Meeting of
Shareholders)
3(e) Amendment to By-laws of the Company (Incorporated by
reference to Exhibit 3.05 to the Company's 1990 10-K)
4 Franklin Electronic Publishers, Incorporated Amended
and Restated 1998 Stock Option Plan
5 Opinion of Gregory J. Winsky, Esq.
23(a) Consent of Radin, Glass & Co., LLP
23(b) Consent of Gregory J. Winsky, Esq. (included in
Exhibit 5 above)
7
