SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
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FRANKLIN COVEY CO.
(Exact name of registrant as specified in its charter)
Utah 87-0401551
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
---------------------
2200 West Parkway Boulevard
Salt Lake City, Utah 84119-2331
(Address of Principal Executive Offices,
including Zip Code)
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FRANKLIN COVEY CO.
AMENDED AND RESTATED
2000 EMPLOYEE STOCK PURCHASE PLAN
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J. SCOTT NIELSEN Copy to:
Chief Financial Officer BRIAN G. LLOYD
Franklin Covey Co. Parr Waddoups Brown Gee & Loveless
2200 West Parkway Boulevard 185 South State Street, Suite 1300
Salt Lake City, Utah 84119-2331 Salt Lake City, Utah 84111
(801) 817-7171 (801) 532-7840
(Name, address and telephone
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum Proposed Maximum
Title of Securities to be Registered Amount to be Offering Aggregate Amount of
Registered Price per Offering Price(1) Registration
Share(1) Fee (1)
--------------------------------------- ---------------------- -------------- ------------------ -----------------
<S> <C> <C> <C> <C> <C>
Common Shares, $.05 par value 1,000,000 shares $7.94 $7,937,500 $2,096
--------------------------------------- ---------------------- -------------- ------------------ -----------------
</TABLE>
(1) Calculated pursuant to Rule 457(c). The offering price per share, aggregate
offering price and registration fee are computed on the basis of the average of
the high and low prices for the Registrant's Common Shares as reported by the
New York Stock Exchange as of May 23, 2000.
--------------------------------------------------------------------------------
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by Franklin Covey Co. (the "Registrant") with
the Securities and Exchange Commission are hereby incorporated by reference in
this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended August
31, 1999;
(2) The Registrant's Quarterly Report on Form 10-Q for the Quarter ended
November 30, 1999;
(3) The Registrant's Quarterly Report on Form 10-Q for the Quarter ended
February 29, 2000; and
(4) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed under the Exchange Act for the
purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates 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
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof except as
so modified or superseded.
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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 16-10a-902 ("Section 902") of the Utah Revised Business Corporation
Act (the "Revised Act") provides that a corporation may indemnify any individual
who was, is, or is threatened to be made a named defendant or respondent (a
"Party") in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether formal or
informal (a "Proceeding"), because he is or was a director of the corporation or
is or was serving at its request as a director, officer, partner, trustee,
employee, fiduciary or agent of another corporation or other person or of an
employee benefit plan (an "Indemnified Director"), against any obligation
incurred with respect to a Proceeding, including any judgment, settlement,
penalty, fine or reasonable expenses (including attorneys' fees), incurred in
the Proceeding if his conduct was in good faith, he reasonably believed that his
conduct was in, or not opposed to, the best interests of the corporation, and,
in the case of any criminal Proceeding, he had no reasonable cause to believe
his conduct was unlawful; except that (i) indemnification under Section 902 in
connection with a Proceeding by or in the right of the corporation is limited to
payment of reasonable expenses (including attorneys' fees) incurred in
connection with the Proceeding and (ii) the corporation may not indemnify an
Indemnified Director in connection with a Proceeding by or in the right of the
corporation in which the Indemnified Director was adjudged liable to the
corporation, or in connection with any other Proceeding charging that the
Indemnified Director derived an improper personal benefit, whether or not
involving action in his official capacity, in which Proceeding he was adjudged
liable on the basis that he derived an improper personal benefit.
Section 16-10a-906 of the Revised Act provides that a corporation may not
indemnify a director under Section 902 unless authorized and a determination has
been made (by the board of directors, a committee of the board of directors or
by the stockholders) that indemnification of the director is permissible in the
circumstances because the director has met the applicable standard of conduct
set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that, unless
limited by its articles of incorporation, a corporation shall indemnify a
director who was successful, on the merits or otherwise, in the defense of any
Proceeding, or in the defense of any claim, issue or matter in the proceeding,
to which he was a Party because he is or was a director of the corporation,
against reasonable expenses (including attorneys' fees) incurred by him in
connection with the Proceeding or claim.
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In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court's determination that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable standard
of conduct set forth in Section 902, the court may order indemnification as the
court determines to be proper, except that indemnification with respect to
certain Proceedings resulting in a director being found liable for certain
actions against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director furnishes
the corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or in
his behalf, to repay the advance if it is ultimately determined that he did not
meet the required standard of conduct, and (iii) a determination is made that
the facts then known to those making the determination would not preclude
indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a corporation's
articles of incorporation provide otherwise, (i) an officer of the corporation
is entitled to mandatory indemnification under Section 903 and is entitled to
apply for court ordered indemnification under Section 905, in each case to the
same extent as a director, (ii) the corporation may indemnify and advance
expenses to an officer, employee, fiduciary or agent of the corporation to the
same extent as a director, and (iii) a corporation may also indemnify and
advance expenses to an officer, employee, fiduciary or agent who is not a
director to a greater extent than the right of indemnification granted to
directors, if not inconsistent with public policy, and if provided for by its
articles of incorporation, bylaws, general or specific action of its board of
directors or contract.
The Registrant's Bylaws, as amended and restated, provide that the
Registrant shall, to the fullest extent permitted, and in the manner required by
the law of the State of Utah, indemnify an individual made, or threatened to be
made a party to a proceeding because he is or was a director, officer, employee
or agent of the Registrant or of another enterprise at the request of the
Registrant.
The Registrant's Articles of Incorporation, as amended, provide that to the
fullest extent permitted by the Revised Act or any other applicable law as now
in effect or as it may hereafter be amended, a director of the Registrant shall
not be personally liable to the Registrant or its shareholders for monetary
damages for any action taken or any failure to take any action, as a director.
The extent to which the Revised Act permits director liability to be eliminated
4
<PAGE>
is governed by Section 16-10a-841 of the Revised Act, which provides that the
liability of a director may not be eliminated or limited for (i) the amount of
financial benefit received by a director to which he is not entitled; (ii) an
intentional infliction of harm on the corporation or its shareholders; (iii) a
violation of Section 16-10a-842 of the Revised Act which prohibits unlawful
distributions by a corporation to its shareholders; or (iv) an intentional
violation of criminal law.
Indemnification may be granted pursuant to any other agreement, bylaw, or
vote of shareholders or directors. In addition to the foregoing, the Registrant
maintains insurance from commercial carriers against certain liabilities which
may be incurred by its directors and officers.
The foregoing description is necessarily general and does not describe all
details regarding the indemnification of officers, directors or controlling
persons of the Registrant.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
See the Exhibit Index on page 9.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and 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 Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
5
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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
Securities and Exchange 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.
6
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Salt Lake City, State of Utah, on May 26, 2000.
FRANKLIN COVEY CO.
By: /s/ Robert A. Whitman
-------------------------------------------
Robert A. Whitman, Chairman of the Board of
Directors and Chief Executive Officer
POWER OF ATTORNEY
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. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Robert A.
Whitman and Stephen M. R. Covey, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Signature Title Date
/s/ Robert A. Whitman Chairman of the Board, and May 26, 2000
----------------------------
Robert A. Whitman Chief Executive Officer
Vice Chairman of the Board May __, 2000
----------------------------
Hyrum W. Smith
Vice Chairman of the Board May __, 2000
----------------------------
Stephen R. Covey
/s/ Stephen M. R. Covey Executive Vice President and May 26, 2000
----------------------------
Stephen M. R. Covey Director
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/s/ J. Scott Nielsen Chief Accounting Officer and May 26, 2000
----------------------------
J. Scott Nielsen Chief Financial Officer
---------------------------- Director May __, 2000
Robert H. Daines
/s/ E. J. Jake Garn Director May 26, 2000
----------------------------
E. J. "Jake" Garn
/s/ Dennis G. Heiner Director May 26, 2000
----------------------------
Dennis G. Heiner
/s/ Brian A. Krisak Director May 25, 2000
----------------------------
Brian A. Krisak
/s/ Donald J. McNamara Director May 26, 2000
----------------------------
Donald J. McNamara
/s/ Joel C. Peterson Director May 26, 2000
----------------------------
Joel C. Peterson
/s/ E. Kay Stepp
---------------------------- Director May 26, 2000
E. Kay Stepp
---------------------------- Director May __, 2000
Steven C. Wheelwright
8
<PAGE>
FRANKLIN COVEY CO.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Regulation S-K Sequential
Exhibit No. Description Page No.
------------------- --------------------------------------------------------------- -----------------
<S> <C> <C>
3.1 Revised Articles of Incorporation of the Registrant*
3.2 Amended and Restated Bylaws of the Registrant*
3.3 Articles of Amendment to Revised Articles of Incorporation of
the Registrant*
5 Opinion of Parr Waddoups Brown Gee & Loveless, a professional 10
corporation, as to the legality of the securities offered.
23.1 Consent of Independent Public Accountants 11
23.2 Consent of Parr Waddoups Brown Gee & Loveless, a professional
corporation (included in Exhibit No. 5).
24 Powers of Attorney (included on page 7 hereof).
-------------------------------------------
* Incorporated by reference
</TABLE>
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EXHIBIT 23.1
CONSENT OF PARR WADDOUPS BROWN GEE & LOVELESS
May 31, 2000
The Board of Directors of
Franklin Covey Co.
2200 West Parkway Boulevard
Salt Lake City, Utah 84119
Re: Franklin Covey Co. 2000 Employee Stock Purchase Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
As counsel to Franklin Covey Co., a Utah corporation (the "Company"), in
connection with the Company's Registration Statement on Form S-8 (the
"Registration Statement") to be filed under the Securities Act of 1933, as
amended, for registration of 1,000,000 shares (the "Shares") of common stock,
$0.05 par value, of the Company to be offered, sold and issued by the Company
pursuant to the Franklin Covey Co. 2000 Employee Stock Purchase Plan (the
"Plan"), we have examined the originals or certified, conformed or reproduction
copies of all such records, agreements, instruments and documents as we have
deemed necessary as the basis for the opinion expressed herein. In all such
examinations, we have assumed the genuineness of all signatures on original or
certified copies and the conformity to original or certified copies of all
copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to the opinion hereinafter expressed, we have relied
upon certificates of public officials and statements or certificates of officers
or representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the terms and conditions of the Plan and
pursuant to the Registration Statement, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Parr Waddoups Brown Gee & Loveless
----------------------------------------
PARR WADDOUPS BROWN GEE & LOVELESS
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement.
Arthur Andersen LLP
Salt Lake City, Utah
May 30, 2000
11
