As filed with the Securities and Exchange Commission on October 4, 1996
Registration No. 333-12101
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT 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 of (I.R.S. Employer Identification No.)
Incorporation or Organization)
777 MARINERS ISLAND BLVD.
SAN MATEO, CALIFORNIA 94404
(415) 312-3000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
LESLIE M. KRATTER
VICE PRESIDENT AND
ASSISTANT SECRETARY
FRANKLIN RESOURCES, INC.
777 MARINERS ISLAND BLVD.
SAN MATEO, CALIFORNIA 94404
(415) 312-3000
(Name and Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copies to:
JEFFREY E. TABAK, ESQ. ERIC S. HAUETER, ESQ.
WEIL, GOTSHAL & MANGES LLP BROWN & WOOD LLP
767 FIFTH AVENUE 555 CALIFORNIA STREET
NEW YORK, NEW YORK 10153 SAN FRANCISCO, CALIFORNIA 94104
(212) 310-8000 (415) 772-1200
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.[_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration s atement number of the earlier effective
registration statement for the same offering.[_] __________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[ ]____________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [x]
__________________
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus included
in this Registration Statement is a combined Prospectus and relates to this
Registration Statement and Registration Statement No. 33-53147 previously filed
by the Registrant on Form S-3 and declared effective on May 19, 1994. This
Registration Statement also constitutes Post-Effective Amendment No. 1 to
Registration Statement No. 33-53147, and such Post-Effective Amendment shall
hereafter become effective concurrently with the effectiveness of this
Registration Statement in accordance with Section 8(c) of the Securities Act of
1933.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
thereafter shall become effective in accordance with Section 8(c) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(c),
may determine.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses in connection with this Registration
Statement. All such expenses are estimates, other than the filing fee payable to
the Securities and Exchange Commission.
Item Amount
---- ------
SEC registration fee $ 137,932
Trustee's fees and expenses $ 10,000
Printing and engraving expenses $ 25,000
Legal fees and expenses $ 25,000
Accounting fees and expenses $ 10,000
Blue Sky fees and expenses $ 15,000
Miscellaneous $ 27,068
---------
Total $ 250,000
=========
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") is
applicable to the officers, directors, employees and agents of the Company
("Covered Persons") and provides certain specific statutory rights and
limitations on indemnification to persons involved as plaintiff or defendant in
actual or threatened litigation or an investigation by reason of the status of
such person as an officer, director, employee or agent of a corporation.
Indemnification of Covered Persons for judgments or amounts paid in settlement
in civil cases, including attorneys' fees and other expenses is permitted,
provided such action or civil case is not brought by or in the right of the
corporation. In such instance, a Covered Person seeking indemnification must
have acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation in respect of the claim; or, in
addition, in the case where a Covered Person is seeking indemnification for
fines and costs in a criminal action, such Covered Person did not have
reasonable cause to believe his conduct was unlawful.
Indemnification of a Covered Person for expenses, including attorneys'
fees, in connection with actions brought by or in the right of the corporation
is also permitted but only where such Covered Person shall not have been
adjudged to be liable to the Company unless a court determines that despite such
finding of liability, indemnification for such expenses is proper in view of all
the circumstances of the matter.
The DGCL requires that a corporation indemnify a Covered Person to the
extent such Covered Person has been successful on the merits in connection with
any action described therein, provides procedures for determining the merits of
indemnification by the corporation and permits an unsecured advance of expenses
prior to the final disposition of such proceeding upon a repayment undertaking
by the Covered Person if such person is not entitled to be so indemnified.
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 liability for breach of fiduciary duty, 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
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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 also provide that directors and certain other
personnel of the Company shall be indemnified against expenses and certain other
liabilities as provided in Section 145 of the DGCL.
The Company has also entered into indemnification agreements (the
"Indemnification Agreements") with its directors, some of whom are also
executive officers (the "Indemnified Persons") which 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 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 (any of the foregoing, a "Claim") 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 as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by a director 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 when 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 (and, in the event of
such determination, requires the Indemnified Person to reimburse the Company for
all amounts theretofore paid 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 therefore is
not entitled to indemnification under 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 shall 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 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 other 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, since their rights to full protection are
contractually assured by the Indemnification Agreements.
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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.
Item 16. EXHIBITS
1* Form of Distribution Agreement
4.1** Indenture, dated as of May 19, 1994, between the Company and The Chase
Manhattan Bank (formerly Chemical Bank), as trustee
4.2*** Form of First Supplemental Indenture
4.3*** Form of Fixed Rate Note
4.4*** Form of Floating Rate Note
5* Opinion of Weil, Gotshal & Manges LLP
12* Computation of Ratio of Earnings to Fixed Charges
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Graber & Co.
23.3* Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5)
24* Power of Attorney
25* Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank
------------------------
* Previously filed.
** Incorporated by reference from the Company's Registration Statement
on Form S-3 (Registration No. 33-53147), originally filed with the
Commission on April 14, 1994.
*** Filed herewith.
Item 17. 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 of 1933, as amended (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. Notwithstanding
the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of
securities
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offered would not exceed that which was registered),
and any deviation from the low or high and of the
estimated maximum offering range, may be reflected in
the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
and
(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 Securities Exchange Act of 1934, as amended (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 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) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
(f) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
(g) 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
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.
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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-3 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of San Mateo, State of California, on the 4th day of October, 1996.
FRANKLIN RESOURCES, INC.
By: /s/ LESLIE M. KRATTER
--------------------------------
Leslie M. Kratter
Vice President and Assistant
Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed by the following persons on the 4th day of October, 1996 in the
capacities indicated.
Signature Title
--------- -----
* Chairman, President and Chief Executive Officer,
--------------------------- Principal Executive Officer and Director
Charles B. Johnson
* Executive Vice President, Legal and
--------------------------- Administrative, Secretary and Director
Harmon E. Burns
* Senior Vice President and Chief Financial Officer,
--------------------------- Principal Financial Officer and Principal Accounting
Martin L. Flanagan Officer
* Director
---------------------------
Rupert H. Johnson, Jr.
* Director
---------------------------
Judson R. Grosvenor
* Director
---------------------------
Charles E. Johnson
* Director
---------------------------
Harry O. Kline
* Director
---------------------------
Louis E. Woodworth
* Director
---------------------------
F. Warren Hellman
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* Director
---------------------------
Peter M. Sacerdote
* By: /s/ LESLIE M. KRATTER
---------------------
Leslie M. Kratter
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit No. Page
- ----------- ----
1* Form of Distribution Agreement
4.1** Indenture, dated as of May 19, 1994, between the Company and
The Chase Manhattan Bank (formerly Chemical Bank), as trustee
4.2*** Form of First Supplemental Indenture
4.3*** Form of Fixed Rate Note
4.4*** Form of Floating Rate Note
5* Opinion of Weil, Gotshal & Manges LLP
12* Computation of Ratio of Earnings to Fixed Charges
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Graber & Co.
23.3* Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5)
24* Power of Attorney
25* Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of The Chase Manhattan Bank
------------------------
* Previously filed.
** Incorporated by reference from the Company's Registration Statement
on Form S-3 (Registration No. 33-53147), originally filed with the
Commission on April 14, 1994.
*** Filed herewith.
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