As filed with the Securities and Exchange Commission on
December 31, 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 UNIVERSAL STOCK INCENTIVE 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 3,000,000 $37.0000 $111,000,000 $30,858.00
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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 December
29, 1998.
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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" or the "Securities 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 Universal Stock Incentive 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: the Company's Annual
Report, as amended, on Form 10- K/A for the fiscal year ended September 30,
1998; and the Company's Current Report on Form 8-K dated October 23, 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 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 ("DGCL") provides that
a corporation may indemnify a director, officer, employee or agent made a party
to an action by reason of the fact that he was a director, officer, employee or
agent of the corporation or was serving at the request of the corporation,
against liabilities, costs and expenses actually and reasonably incurred by him
in his capacity as a director or officer or arising out of such action, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action, had no reasonable cause to believe his conduct was unlawful. No
indemnification may be provided where the director, officer, employee or agent
has been adjudged by a court, after exhaustion of all appeals, to be liable to
the corporation, unless a court determines that the person is entitled to such
indemnity.
Section 102(7) of the DGCL permits a corporation to relieve its directors
from personal liability for monetary damages to the corporation or its
stockholders for breaches of their fiduciary duty as directors except for (i) a
breach of the duty of loyalty, (ii) failure to act in good faith, (iii)
intentional misconduct or knowing violation of law, (iv) willful or negligent
violations of certain provisions of the DGCL (Sections 174, 160 and 173)
imposing certain requirements with respect to stock purchases, redemptions and
dividends or (v) any transaction from which the director derived an improper
personal benefit.
The above provisions of the DGCL are non-exclusive.
In addition to the above described provisions, the Company's certificate of
incorporation relieves its directors from personal liability for a breach of
fiduciary duty as a director as set forth in Section 102(7) of the DGCL.
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
("Indemnification Agreements") with its directors, some of whom are also
executive officers ("Indemnified Persons"). 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 paid or incurred by the Indemnified Person in connection with a
Claim.
A "Claim" consists of participation in any threatened, pending or completed
action, or any inquiry or investigation that the Indemnified Person in good
faith believes might lead to the institution of any such action, and 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 entity.
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.
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 the Claim or (ii) if the Board of Directors or other person
or body appointed by the Board of Directors 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 that if there is 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 Agreement. Additionally, the Indemnification
Agreements provide that if there is a potential change in control, the Company
will, upon written request of the Indemnified Person, 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 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 such a claim for indemnification, the
Company will, unless in the opinion of counsel for the Company the question has
previously been decided by controlling legal precedent, 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.
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") (File No. 1-9318)
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 (File No. 1-9318)
5 Opinion of Weil, Gotshal & Manges LLP.
23(a) Consent of PricewaterhouseCoopers LLP.
23(b) Consent of Weil, Gotshal & Manges LLP (included in its opinion which
appears as Exhibit 5 to this Registration Statement).
24 Power of attorney (included as part of the signature pages to this
Registration Statement and incorporated herein by reference).
99 Franklin Resources, Inc. 1998 Universal Stock Incentive Plan
incorporated by reference to Exhibit A to Registrant's Proxy Statement
filed electronically on December 23, 1998 under cover of Schedule 14A in
connection with its Annual Meeting of Stockholders to be held on January
28, 1999
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 refer ence 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 the provisions referred to in Item 6
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.
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 31st day
of December, 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: December 30, 1998 By: /s/ Charles B. Johnson
Charles B. Johnson, President,
Chief Executive Officer and Director
Date: December 30, 1998 By: /s/ Harmon E. Burns
Harmon E. Burns, Executive Vice
President and Director
Date: December 30, 1998 By: /s/ Rupert H. Johnson
Rupert H. Johnson, Jr., Executive
Vice President and Director
Date: December ___, 1998 By:
Charles E. Johnson, Senior Vice
President and Director
Date: December 30, 1998 By: /s/ Martin L. Flanagan
Martin L. Flanagan, Senior Vice
President and Chief Financial Officer
Date: December 30, 1998 By: /s/ Kenneth A. Lewis
Kenneth A. Lewis, Vice President and
Corporate Controller
Date: December 24, 1998 By: /s/ F. Warren Hellman
F. Warren Hellman, Director
Date: December 23, 1998 By: /s/ Harry O. Kline
Harry O. Kline, Director
Date: December ___, 1998 By:
James A. McCarthy, Director
Date: December 30, 1998 By: /s/ Peter M. Sacerdote
Peter M. Sacerdote, Director
Date: December 30, 1998 By: /s/ Louis E. Woodworth
Louis E. Woodworth, Director
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") (File No. 1-9318)
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 (File No. 1-9318)
5 Opinion of Weil, Gotshal & Manges LLP.
23(a)Consent of PricewaterhouseCoopers LLP.
23(b)Consent of Weil, Gotshal & Manges LLP (included in its opinion which
appears as Exhibit 5 to this Registration Statement).
25 Power of attorney (included as part of the signature pages to this
Registration Statement and incorporated herein by reference).
99 Franklin Resources, Inc. 1998 Universal Stock Incentive Plan
incorporated by reference to Exhibit A to Registrant's Proxy Statement
filed electronically on December 23, 1998 under cover of Schedule 14A in
connection with its Annual Meeting of Stockholders to be held on January
28, 1999
Exhibit 5
OPINION AND CONSENT OF WEIL, GOTSHAL & MANGES LLP
WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue, New York, NY 10153-0119
(212) 310-8000 FAX: (212) 310-8007
December 30, 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 December 31, 1998 with respect to three million (3,000,000) 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 Universal Stock Incentive
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, conformed 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 or rights or shares granted or to be granted under the Plan will be,
when issued and paid for upon such exercise or grant 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.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Exhibit 23(a)
CONSENT OF PRICEWATERHOUSECOOPERS LLP,
INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Franklin Resources, Inc. on Form S-8 for the 1998 Universal Stock Incentive Plan
of our report dated October 23, 1998 on our audit of the consolidated financial
statements of Franklin Resources, Inc. and subsidiaries as of September 30, 1998
and 1997 and for the years ended September 30, 1998, 1997 and 1996, which report
is included in the Franklin Resources, Inc. Annual Report on Form 10-K for the
fiscal year ended September 30, 1998.
PricewaterhouseCoopers LLP
San Francisco, California
December 28, 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)
