As filed with the Securities and Exchange Commission on October __, 2002
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.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2670991
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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ONE FRANKLIN PARKWAY
SAN MATEO, CALIFORNIA 94403
(650) 312-2000
Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
FRANKLIN RESOURCES, INC.
1998 EMPLOYEE STOCK INVESTMENT PLAN
(Full Title of Plans)
---------------------------------------
LESLIE M. KRATTER, ESQ.
SENIOR VICE PRESIDENT AND SECRETARY
ONE FRANKLIN PARKWAY
SAN MATEO, CALIFORNIA 94403
(650) 312-2000
(Name and address, including zip code,
and telephone number, including area code, of agent for service)
---------------------------------------
Copy 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
================================================================================
Title of Securities to be Amount to be Proposed Proposed Amount of
Registered Registered Maximum Maximum Registration
(1) Offering Aggregate Fee (1)
Price Per Offering
Share Price
- --------------------------------------------------------------------------------
Plan Interests in the Indeterminate N/A N/A N/A
Franklin Resources 1998
Employee Stock Investment
Plan
================================================================================
(1) This Registration Statement covers an indeterminate amount of plan interests
which may be offered or sold pursuant to the Franklin Resources, Inc. 1998
Employee Stock Investment Plan. Pursuant to the Division of Corporation Finance
Manual of Publicly Available Telephone Interpretations, July 1997 Interpretation
G68, there is no fee required where an indeterminate number of plan interests
are being registered.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
(a)(1) The Annual Report on Form 10-K for the fiscal year ended
September 30, 2001, filed by Franklin Resources, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") and (2)
the Franklin Resources, Inc. 1998 Employee Stock Investment Plan's
(the "Plan"), Annual Report on Form 11-K for the year ended July 31,
2002; and
(b)(1) The Quarterly Reports on Form 10-Q for the quarters ended
December 31, 2001, March 31, 2002 and June 30, 2002 filed by the
Company and (2) the Current Reports on Form 8-K filed October 25,
2001, January 24, 2002, April 26, 2002, July 25, 2002, August 13, 2002
and October 24, 2002.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than
current reports furnished under Item 9 of Form 8-K), prior to the filing of a
post-effective amendment to this Registration Statement which indicate that all
securities covered by this Registration Statement have been sold or which
deregister all of the securities then remaining unsold, will be deemed to be
incorporated by reference in this Registration Statement and to be a part of
this document from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference in this
document will be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this document
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference in this document modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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(b)(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(b)(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.
Exhibit No. Exhibit Description
- ---------- -------------------
4.1 Certificate of Incorporation, as filed November 28, 1969
(incorporated by reference to Exhibit (3)(i) to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994).
4.2 Certificate of Amendment of the Certificate of
Incorporation, as filed March 1, 1985 (incorporated by
reference to Exhibit (3)(ii) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30,
1994).
4.3 Certificate of Amendment of the Certificate of
Incorporation, as filed April 1, 1987 (incorporated by
reference to Exhibit (3)(iii) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30,
1994).
4.4 Certificate of Amendment of the Certificate of
Incorporation, as filed February 2, 1994 (incorporated by
reference to Exhibit (3)(iii) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30,
1994).
4.5 Amended and Restated By-laws adopted on June 27, 2002.
4.6 Franklin Resources, Inc. 1998 Employee Stock Investment Plan
approved on October 10, 2002.
5.1 Opinion of Weil, Gotshal & Manges LLP as to the legality of
the Plan Interests being registered
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1 hereto).
24.1 Power of Attorney (included on signature page).
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) 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 the Registration Statement or any material change to such
information in the Registration Statement; and
(2) 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; and
(3) 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.
(b) The undersigned registrant hereby undertakes 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 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 therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that 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 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 Securities 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 Securities 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 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 this 28th day of
October, 2002.
FRANKLIN RESOURCES, INC.
By: /s/ Charles B. Johnson
______________________
Charles B. Johnson, Chairman, Chief
Executive Officer and Member - Office
of the Chairman
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
constitutes and appoints each of Martin L. Flanagan, and Leslie M. Kratter or
any of them, each acting alone, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for such person and in his
or her name, place and stead, in any and all capacities, to sign this
Registration Statement on Form S-8 (including all pre-effective and
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each acting alone,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming that any such attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on October 28,
2002 in the capacities indicated.
Date: October 28, 2002 By: /s/ Charles B. Johnson
________________________
Charles B. Johnson, Chairman, Chief Executive
Officer, Member - Office of the Chairman, and
Director
Date: October 28, 2002 By: /s/ Harmon E. Burns
________________________
Harmon E. Burns, Vice Chairman, Member -
Office of the Chairman, and Director
Date: October 28, 2002 By: /s/ Anne M. Tatlock
________________________
Anne M. Tatlock, Vice Chairman, Member -
Office of the Chairman, and Director
Date: October 28, 2002 By: /s/ Martin L. Flanagan
________________________
Martin L. Flanagan, President, Member -
Office of the President, and Chief Financial
Officer
Date: October 28, 2002 By: /s/ Gregory E. Johnson
________________________
Gregory E. Johnson, President, and Member -
Office of the President
Date: October 28, 2002 By: /s/ Rupert H. Johnson, Jr.
__________________________
Rupert H. Johnson, Jr., Vice Chairman,
Member - Office of the Chairman, and Director
Date: October 28, 2002 By: /s/ Harry O. Kline
__________________________
Harry O. Kline, Director
Date: October 28, 2002 By: /s/ James A. McCarthy
__________________________
James A. McCarthy, Director
Date: October 28, 2002 By: /s/ Peter M. Sacerdote
__________________________
Peter M. Sacerdote, Director
Date: October 28, 2002 By: /s/ Kenneth A. Lewis
__________________________
Kenneth A. Lewis, Vice President - Finance,
Chief Accounting Officer,
and Treasurer
Date: October 28, 2002 By: /s/ Louis E. Woodworth
__________________________
Louis E. Woodworth, Director
Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator of the Franklin Resources, Inc. 1998 Employee Stock Investment
Plan has 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 this 28th day of October, 2002.
1998 EMPLOYEE STOCK INVESTMENT PLAN
By: /s/ Leslie M. Kratter
__________________________
Name: Leslie M. Kratter
Title: Authorized Representative of the
Plan Administrator
Exhibit No. Exhibit Description
- ---------- -------------------
4.1 Certificate of Incorporation, as filed November 28, 1969
(incorporated by reference to Exhibit (3)(i) to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994).
4.2 Certificate of Amendment of the Certificate of
Incorporation, as filed March 1, 1985 (incorporated by
reference to Exhibit (3)(ii) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30,
1994).
4.3 Certificate of Amendment of the Certificate of
Incorporation, as filed April 1, 1987 (incorporated by
reference to Exhibit (3)(iii) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30,
1994).
4.4 Certificate of Amendment of the Certificate of
Incorporation, as filed February 2, 1994 (incorporated by
reference to Exhibit (3)(iii) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30,
1994).
4.5 Amended and Restated By-laws adopted on June 27, 2002.
4.6 Franklin Resources, Inc. 1998 Employee Stock Investment Plan
approved on October 10, 2002.
5.1 Opinion of Weil, Gotshal & Manges LLP as to the legality of
the Plan Interests being registered
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1 hereto).
24.1 Power of Attorney (included on signature page).