As filed with the Securities and Exchange Commission on
March 18, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under the
Securities Act of 1933
FRANKLIN RESOURCES, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 13-2670991
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
777 Mariners Island Blvd.,
San Mateo, CA 94404
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(Address, Including Zip Code, of Principal Executive Offices)
FRANKLIN RESOURCES, INC.
1998 EMPLOYEE STOCK INVESTMENT PLAN
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(Full Title of Plan)
Leslie M. Kratter, Esq.
Vice President and Secretary
Franklin Resources, Inc.
777 Mariners Island Blvd.,
San Mateo, California 94404-1585
(650) 312-2000
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(Name and Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent For Service)
Copies to:
Jeffrey E. Tabak, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
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CALCULATION OF REGISTRATION FEE
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Title of Amount to Proposed Proposed Amount of
Securities be Maximum Maximum Registration
to be Registered Offering Aggregate Fee(2)
Registered (1) Price Per Offering
Share(2) Price(2)
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Common Stock,
par value
$0.10 per
share 4,000,000 $52.65625 $210,625,000 $62,134.38
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein. (2)
Pursuant to Rule 457(h) under the Securities Act of 1933, as amended, the
proposed maximum aggregate offering price and the Registration fee are based
upon the average of the high and low composite prices per share of the
Registrant's Common Stock reported on the New York Stock Exchange on March 12,
1998.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Pursuant to Rule 428(b) under the Securities Act of 1933, as amended (the
"Act"), information has been, or will be, distributed to employees, officers,
directors and others as specified by Rule 428(b)(1) relating to the Franklin
Resources, Inc. 1998 Employee Stock Investment Plan (the "Plan"). Such
information, together with the documents incorporated by reference herein
pursuant to Item 3 of Part II below, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Act.
Item 2. Registration Information and Employee Plan Annual Information
The Registrant has delivered, or will cause to be delivered, the documents
containing the information specified in this Item 2 to employees, officers,
directors or others as specified by Rule 428(b)(1). In accordance with the rules
and regulations of the Securities and Exchange Commission (the "Commission") and
the instructions to Form S-8, the Registrant is not filing such documents with
the Commission either as part of the Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Franklin Resources, Inc. (the "Company")
with the Commission are incorporated herein by reference: (i) the Company's
Annual Report on Form 10-K for the fiscal year ended September 30, 1997; (ii)
the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1997; and (iii) the Company's Current Reports on Form 8-K dated
October 23, 1997 and January 22, 1998. The description of the Company's Common
Stock, which is registered under Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), is contained in the Company's Certificate
of Incorporation, as amended, filed as amended on December 29, 1994 as Exhibits
3(i), 3(ii), 3(iii) and 3(iv) to the Company's Annual Report on Form 10-K for
the year ended September 30, 1994 and is also hereby incorporated herein by
reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment indicating that all
securities offered hereby have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") is
applicable to the present and former officers, directors, employees and agents
of the Company. This law provides specific statutory rights and limitations on
indemnification to such persons involved as plaintiff or defendant in actual or
threatened litigation or an investigation by reason of the status of that person
as an officer, director, employee or agent of a corporation. Indemnification of
such persons for judgments or amounts paid in settlement in civil cases,
including attorneys' fees and other expenses is permitted by Section 145(a),
provided that the action or civil case is not brought by or in the right of the
corporation. In the event of a civil suit or investigation, the officer,
director, employee or agent seeking indemnification must have acted in good
faith and in a manner reasonably believed by that person to be in or not opposed
to the best interests of the corporation. In the case where such a person is
seeking indemnification for fines and costs in a criminal action, the person
must not have had reasonable cause to believe that his conduct was unlawful.
Indemnification of an officer, director, employee or agent for expenses,
including attorneys' fees, in connection with actions brought by or in the right
of the corporation is also permitted by Section 145(b), but only where such
person was not adjudged to be liable to the corporation. An exception may be
made, and indemnification allowed, if a court determines that despite the
finding of liability, indemnification for such expenses is proper in view of all
the circumstances of the matter.
Indemnification in the two circumstances described above generally is
optional. The DGCL, however, requires that a corporation indemnify a present or
former director or officer (but not an employee or agent) who has been
successful on the merits in connection with any action described in the two
preceding paragraphs. This indemnification includes coverage of expenses,
including attorneys' fees. A corporation may choose to indemnify an employee or
agent who is successful in such an action, but is not obligated to do so.
Unless indemnification is ordered by a court, the DGCL also provides
procedures for determining whether a person seeking indemnification has met the
standard of conduct described in Section 145(a) or 145(b) related to a civil
claim or a criminal claim. This determination for a person who is a director or
officer at the time of such determination, would be made in varying
circumstances by (1) a majority vote of directors who are not party to the
action, (2) by a committee of such directors, (3) by independent legal counsel
or (4) by the stockholders. No procedural requirements are set forth in the DGCL
for determining the standard of conduct for a former director or officer, or for
a present or former employee or agent.
The DGCL also permits the corporation to make an unsecured advance of
expenses to a current officer or director for the defense of a civil, criminal,
administrative or investigative action. The advance may be made, prior to final
determination of the action, if the corporation receives a repayment undertaking
by the officer or director that the person will repay the corporation if it is
later determined that such person is not entitled to be so indemnified. A
corporation is authorized to pay expenses, including attorneys' fees, for a
former director or officer or a current or former employee or agent, upon the
terms and conditions, if any, that the corporation deems appropriate.
The above provisions are non-exclusive and indemnification is also
permitted by law, agreement, vote of stockholders or disinterested directors or
otherwise. In addition, the DGCL permits the procurement of officers and
directors liability insurance by a corporation to insure against various
liabilities even if indemnification of such liability may not otherwise be
permitted.
In addition to the above described provisions, the Company's certificate
of incorporation eliminates personal liability for a director's breach of
fiduciary duty as a director, except: (i) for a breach of the duty of loyalty,
(ii) for failure to act in good faith, (iii) for intentional misconduct or
knowing violation of law, (iv) for violations of Section 174 of the DGCL or (v)
for any transaction from which the director derived an improper personal
benefit. Section 174 of the DGCL provides that directors shall, under certain
circumstances, be jointly and severally liable for willful or negligent
violations of Sections 160 and 173 of the DGCL. Section 160 of the DGCL imposes
certain requirements with respect to stock repurchases and redemptions, and
Section 173 imposes certain requirements with respect to dividends.
The Company's by-laws provide that directors, officers, employees and
agents who have been successful on the merits or otherwise in a civil or
criminal action referred to in Section 145(a) or 145(b) of the DGCL shall be
indemnified against expenses, including attorneys' fees, actually and reasonably
incurred in connection therewith.
It is the Company's policy to enter into indemnification agreements (the
"Indemnification Agreements") with its directors, some of whom are also
executive officers (the "Indemnified Persons") and the Company may enter into
such agreements with other executive officers in the future. The Indemnification
Agreements provide for the prompt indemnification "to the fullest extent
permitted by law," and the prompt advancing of attorneys' fees and all other
costs, expenses and obligations (collectively, "Expenses") paid or incurred by
the Indemnified Person in connection with a Claim. A "Claim" is defined as the
investigation, defending, being a witness or otherwise participating in any
threatened, pending or completed action, suit or proceeding, or any inquiry or
investigation that the Indemnified Person in good faith believes might lead to
the institution of any such action, suit or proceeding. In addition, a "Claim"
must be related to the fact that the Indemnified Person is or was a director,
officer, employee, agent or fiduciary of the Company or is or was serving at the
request of the Company in such a capacity for another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, or must be
related to anything done or not done by the Indemnified Person in any such
capacity.
However, the Indemnification Agreements prohibit such indemnification (i)
in connection with any Claim initiated by the Indemnified Person against the
Company or any director or officer of the Company unless the Company has joined
in or consented to such Claim, or (ii) if the Board of Directors or other person
or body appointed by the Board of Directors (the "Reviewing Party") determines
that such indemnification is not permitted under applicable law. In the event of
such determination, the Indemnified Person agrees to reimburse the Company for
all amounts that the Company has advanced to the Indemnified Person in respect
of such indemnification.
The Indemnification Agreements also provide: (i) that the Indemnified
Person is entitled to indemnification for Expenses to the extent he is
successful in defending any Claim, whether on the merits or otherwise, and to
partial indemnification if he is entitled to indemnification for some, but not
all, of such Expenses, (ii) a mechanism through which the Indemnified Person may
seek court relief if the Reviewing Party determines that the Indemnified Person
would not be permitted to be indemnified under applicable law and the
Indemnification Agreements, (iii) that the Indemnified Person is entitled to
indemnification against all Expenses incurred in seeking to collect an indemnity
claim from the Company or in seeking to recover under a directors' and officers'
liability insurance policy and (iv) that the Company has the burden of proving
that the Indemnified Person is not entitled to indemnification in any particular
case and that the termination of any Claim by judgment, order, settlement or
conviction will not create a presumption that the indemnification is not
permitted by applicable law.
The Indemnification Agreements provide that in the event of a change in
control of the Company, the Company will seek legal advice from special,
independent counsel selected by the Indemnified Person and approved by the
Company with respect to matters thereafter arising concerning rights of the
Indemnified Person under the Indemnification Agreements. Additionally, such
agreements provide that in the event of a potential change in control, the
Company will, upon written request of the Indemnified Person, create and fund a
trust to satisfy expenses reasonably anticipated to be incurred in connection
with a Claim relating to an indemnifiable event. The Company is not currently,
nor does it expect to be, subject to a change in control.
The rights of the Indemnified Persons under the Indemnification Agreements
will not be exclusive of any rights they may have under the DGCL, directors' and
officers' liability insurance, the Company's by-laws, or otherwise; however, the
Indemnification Agreements will not permit double payment. The Indemnification
Agreements, while not requiring that the Company maintain directors' and
officers' liability insurance, do require that the Indemnified Person be
provided with full coverage under any policy or policies actually obtained.
Additionally, the Indemnification Agreements provide that if the Company pays an
Indemnified Person pursuant to the Indemnification Agreements, the Company will
be subrogated to the Indemnified Person's rights to recover from third parties.
To the extent that the Board of Directors or the stockholders of the
Company may in the future wish to limit or repeal the ability of the Company to
indemnify directors or other persons, such repeal or limitation will not affect
the indemnification of the Indemnified Persons under the Indemnification
Agreements referred to above, because their rights to full protection are
contractually assured by the Indemnification Agreements.
The Company has purchased an insurance policy indemnifying its officers
and directors and the officers and directors of its subsidiaries against claims
and liabilities (with stated exceptions) to which they may become subject by
reason of their positions with the Company as directors and officers.
The Commission has taken the position that although indemnification by a
Registrant for liabilities arising under the Securities Act may be provided as
described above, such indemnification is unenforceable because it is against
public policy as expressed in the Securities Act. Therefore, if a director,
officer or controlling person asserts a claim for indemnification against the
Company for any liability arising under the Securities Act, the Company will ask
a court of competent jurisdiction to determine whether such indemnification by
it is unenforceable as being against public policy as expressed in the
Securities Act. Unless in the opinion of counsel for the Company the question
has previously been decided by controlling legal precedent, the Company will
make this submission to a competent court, and will be governed by the final
adjudication of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4(a)Registrant's Certificate of Incorporation, as filed November 28, 1969,
incorporated by reference to Exhibit (3)(i) to the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1994 (the
"1994 Annual Report")
4(b)Registrant's Certificate of Amendment of Certificate of Incorporation,
as filed March 1, 1985, incorporated by reference to Exhibit (3)(ii) to
the 1994 Annual Report
4(c)Registrant's Certificate of Amendment of Certificate of Incorporation,
as filed April 1, 1987, incorporated by reference to Exhibit (3)(iii)
to the 1994 Annual Report
4(d)Registrant's Certificate of Amendment of Certificate of Incorporation,
as filed February 2, 1994, incorporated by reference to Exhibit (3)(iv)
to the 1994 Annual Report
4(e)Registrant's By-laws, as filed February 14, 1995, incorporated by
reference to Exhibit (3)(v) to the Company's Quarterly Report on Form
10-Q for the quarter ended December 31, 1994
4(f) Franklin Resources, Inc. 1998 Employee Stock
Investment Plan, incorporated by reference to Appendix A to
Registrant's Proxy Statement filed electronically on December 19,
1997
5 Opinion and Consent of Weil, Gotshal & Manges LLP
dated March 18, 1998.
23(a) Consent of Coopers & Lybrand L.L.P. dated March 17, 1998.
23(b) Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 Power of attorney (included in the signature pages to this
Registration Statement).
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:
(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 this Registration Statement;
(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 the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this Registration
Statement.
(b) 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.
(c) To remove from Registration by means of a post-effective
amendment any of the Securities being registered hereby which remain
unsold at the termination of the offering.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
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.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to he provisions referred to in Item 8
of this Registration Statement, 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 such 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 such Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant hereby 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 San Mateo, State of California, on the 18th day
of March, 1998.
FRANKLIN RESOURCES, INC.
By: /s/ Leslie M. Kratter
Leslie M. Kratter
Vice President and Secretary
The undersigned officers and directors of Franklin Resources, Inc., hereby
severally constitute Harmon E. Burns and Leslie M. Kratter, and any of them
singly, our true and lawful attorneys with full power to them, and each of them
singly, to sign for us and in our name in the capacities indicated below, any
and all amendments to this Registration Statement on Form S-8 filed by Franklin
Resources, Inc. with the Securities and Exchange Commission, and generally to do
all such things in our name and behalf in such capacities to enable Franklin
Resources, Inc. to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission, and we
hereby ratify and confirm our signatures as they may be signed by our said
attorneys, or any of them, to any and all such amendments.
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.
FRANKLIN RESOURCES, INC.
Date: March 18, 1998 By: /s/Charles B. Johnson
Charles B. Johnson, President,
Chief Executive Officer and Director
Date: March 18, 1998 By: /s/ Harmon E. Burns
Harmon E. Burns, Executive Vice
President and Director
Date: March 18, 1998 By: /s/ Rupert H. Johnson, Jr.
Rupert H. Johnson, Jr., Executive
Vice President and Director
Date: March 18, 1998 By: /s/ Charles E. Johnson
Charles E. Johnson, Senior Vice
President and Director
Date: March 18, 1998 By: /s/ Martin L. Flanagan
Martin L. Flanagan, Senior Vice
President and Chief Financial Officer
Date: March 18, 1998 By: /s/ Kenneth A. Lewis
Kenneth A. Lewis, Vice President and
Controller
Date: March 18, 1998 By: /s/ F. Warren Hellman
F. Warren Hellman, Director
Date: March 18, 1998 By: /s/ Harry O. Kline
Harry O. Kline, Director
Date: March 18, 1998 By: /s/ James A. McCarthy
James A. McCarthy, Director
Date: March 18, 1998 By: /s/ Peter M. Sacerdote
Peter M. Sacerdote, Director
Date: March 18, 1998 By: /s/ Louis E. Woodworth
Louis E. Woodworth, Director
<PAGE>
Exhibit Index
Exhibit Number Description
4(a) Registrant's Certificate of Incorporation, as filed November 28,
1969, incorporated by reference to Exhibit (3)(i) to the Company's
Annual Report on Form 10-K for the fiscal year ended September 30,
1994 (the "1994 Annual Report")
4(b) Registrant's Certificate of Amendment of Certificate of
Incorporation, as filed March 1, 1985, incorporated by reference to
Exhibit (3)(ii) to the 1994 Annual Report
4(c) Registrant's Certificate of Amendment of Certificate of
Incorporation, as filed April 1, 1987, incorporated by reference to
Exhibit (3)(iii) to the 1994 Annual Report
4(d) Registrant's Certificate of Amendment of Certificate of
Incorporation, as filed February 2, 1994, incorporated by reference
to Exhibit (3)(iv) to the 1994 Annual Report
4(e) Registrant's By-laws, as filed February 14, 1995, incorporated by
reference to Exhibit (3)(v) to the Company's Quarterly Report on
Form 10-Q for the quarter ended December 31, 1994
4(f) Franklin Resources, Inc. 1998 Employee Stock Investment Plan,
incorporated by reference to Appendix A to Registrant's Proxy
Statement filed electronically on December 19, 1997
5 Opinion and Consent of Weil, Gotshal & Manges LLP dated March 18,
1998.
23(a) Consent of Coopers & Lybrand L.L.P. dated March 17, 1998.
23(b) Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 Power of attorney (included in the signature pages to this
Registration Statement).
Exhibit 5
OPINION AND CONSENT OF WEIL, GOTSHAL & MANGES LLP
March 18, 1998
Franklin Resources, Inc.
777 Mariners Island Blvd.
San Mateo, California 94404
Ladies and Gentlemen:
We have acted as counsel to Franklin Resources, Inc. (the "Company") in
connection with the filing of the Registration Statement on Form S-8 (the
"Registration Statement") by the Company with the Securities and Exchange
Commission on the date hereof with respect to 4,000,000 shares of common stock
of the Company, par value $0.10 per share (the "Common Stock"), being registered
in connection with the Company's 1998 Employee Stock Investment Plan (the
"Plan").
In so acting, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of the Registration Statement and such corporate
records, agreements, documents and other instruments, and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such inquiries of such officers and representatives
as we have deemed relevant and necessary as a basis for the opinion hereinafter
set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such latter documents. As to all questions of fact material to this
opinion that have not been independently established, we have relied upon
certificates or comparable documents of officers and representatives of the
Company.
Based on the foregoing, and subject to the qualifications stated herein,
we are of the opinion that the Common Stock reserved for issuance upon the
exercise of options granted and to be granted under the Plan will be, when
issued and paid for upon such exercise in accordance with the provisions of the
Plan, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. We further consent to any and all references to our firm
in the Registration Statement.
The opinion expressed herein is limited to the corporate laws of the State
of Delaware and the federal laws of the United States, and we express no opinion
as to the effect on the matters covered by this letter of the laws of any other
jurisdiction.
The opinion expressed herein is rendered solely for your benefit in
connection with the transaction described herein. Except as noted above, this
opinion may not be used or relied upon by any other person, nor may this letter
or any copies thereof be furnished to a third party, filed with a governmental
agency, quoted, cited or otherwise referred to without our prior written
consent.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Weil, Gotshal & Manges LLP
Exhibit 23(a)
CONSENT OF COOPERS & LYBRAND, L.L.P., INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement of
Franklin Resources, Inc. on Form S-8 for the 1998 Employee Stock Investment Plan
of our report dated October 22, 1997 on our audits of the consolidated financial
statements of Franklin Resources, Inc. and subsidiaries as of September 30, 1997
and 1996 and for the three years in the period ended September 30, 1997 included
in the Company's Annual Report on Form 10-K for the fiscal year ended September
30, 1997.
/s/ Coopers & Lybrand, L.L.P.
San Francisco, California
March 17, 1998
Exhibit 23(b)
CONSENT OF WEIL GOTSHAL & MANGES LLP
(included in Exhibit 5)
Exhibit 24
POWER OF ATTORNEY
(included in the signature pages to this Registration Statement)
