As filed with the
Securities and Exchange Commission on March 28, 2005
Registration No.
333-
UNITED
STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
_________________________
FORM
S-8
REGISTRATION
STATEMENT
Under
the
Securities Act of
1933
_________________________
FRANKLIN COVEY
CO.
(Exact name of
registrant as specified in its charter)
|
Utah
(State or
other jurisdiction of incorporation or organization) |
87-0401551
(I.R.S.
Employer Identification No.) |
| |
|
2200 West Parkway
Boulevard
Salt Lake City,
Utah 84119-2331
(Address of
Principal Executive Offices) (Zip Code)
_________________________
FRANKLIN COVEY CO.
2004 EMPLOYEE STOCK PURCHASE PLAN
FRANKLIN COVEY CO.
2004 NON-EMPLOYEE DIRECTORS’ STOCK INCENTIVE PLAN
(Full Title of the
Plans)
_________________________
Stephen D.
Young
Chief Financial
Officer
Franklin Covey
Co.
2200 West Parkway
Boulevard
Salt Lake City,
Utah 84119-2331
(801)
817-7171
(Name, address and
telephone number, including area code, of agent for service)
_________________________
Copy
to:
Nolan S.
Taylor
Dorsey &
Whitney LLP
170 South Main
Street, Suite 900
Salt Lake City,
Utah 84101-1655
CALCULATION OF
REGISTRATION FEE
|
Title of
Securities
to be
Registered |
Amount
to
be
Registered(1) |
Proposed
Maximum Offering Price per Share(2) |
Proposed
Maximum Aggregate Offering Price(2) |
Amount of
Registration Fee |
|
Common
Stock, $.05 par
value per share, available for issuance under the Franklin Covey Co. 2004
Employee Stock Purchase Plan |
1,000,000
shares |
$2.30 |
$2,300,000 |
$270.71 |
|
Common
Stock, $.05 par value per share, available for issuance under the Franklin
Covey Co. 2004 Non-Employee Directors’ Stock Incentive
Plan |
300,000
shares |
$2.30 |
$690,000 |
$81.21 |
| Total |
1,300,000
shares |
|
$2,990,000 |
$351.92 |
(1) This Registration
Statement shall also cover any additional shares of Common Stock which become
issuable under the Franklin Covey Co. 2004 Employee Stock Purchase Plan or the
Franklin Covey Co. 2004 Non-Employee Directors’ Stock Incentive Plan by reason
of any stock dividend, stock split, recapitalization or other similar
transaction, or as otherwise provided for in the plans, effected without the
receipt of consideration which results in an increase in the number of
outstanding shares of Common Stock of Franklin Covey Co.
(2) Calculated
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended solely for the purpose of determining the registration fee. The offering
price per share and aggregate offering price are computed on the basis of the
average of the high and low prices for the Registrant’s Common Stock as reported
by the New York Stock Exchange as of March 21, 2005.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. PLAN
INFORMATION.
Information
required by Item 1 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.
Item
2. REGISTRANT
INFORMATION.
Information
required by Item 2 to be contained in the Section 10(a) prospectus is
omitted from this Registration Statement in accordance with Rule 428 under
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 (the “SEC”) 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, 2004, filed
with the SEC on November 29, 2004, and amended on December 29,
2004;
(2) The Registrant’s
Quarterly Report on Form 10-Q for the Quarter ended
November 27, 2004, filed with
the SEC on January 11, 2005;
(3) The Registrant’s
Current Reports on Form 8-K filed with the SEC on November 18, 2004, November
19, 2004, December 3, 2004, December 14, 2004, January 11, 2005 (this Current
Report on Form 8-K is deemed incorporated by reference only in relation to Item
8.01 that was deemed to be filed and not in relation to Items 2.02 and 9.01
which were deemed to be furnished), February 23, 2005, March 10, 2005 and
March 25, 2005; 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.
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
of the Utah Revised Business Corporation Act (the "Revised Act") provides that a
corporation may indemnify any individual made a party to a proceeding because he
is or was a director, against liability incurred in the proceeding, if: (a) his
conduct was in good faith, (b) he reasonably believed that his conduct was in,
or not opposed to, the corporation’s best interests; and (c) in the case of any
criminal proceeding, he had no reasonable cause to believe such conduct was
unlawful; provided, however, that a corporation may not indemnify a director
under Section 16-10a-902 if (i) in connection with a proceeding by or in
the right of the corporation in which the director was adjudged liable to the
corporation, or (ii) in connection with any other proceeding charging that
the director derived an improper personal benefit, whether or not involving
action in his or her official capacity, in which proceeding he was adjudged
liable on the basis that he derived an improper benefit.
Section 16-10a-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 incurred in
connection with the proceeding or claim with respect to which he has been
successful.
In addition to the
indemnification provided by Sections 902 and 903, Section 16-10a-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.
Section 16-10a-904
of the Revised Act provides that a corporation may pay for or reimburse the
reasonable expenses incurred by a director who is a party to a proceeding in
advance of the final disposition of the proceeding upon the satisfaction of
certain conditions.
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, 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.
Section 16-10a-908
of the Revised Act provides that a corporation may purchase and maintain
liability insurance on behalf of a person who is or was a director, officer,
employee, fiduciary, or agent of the corporation or who, while serving as a
director, officer, employee, fiduciary, or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, fiduciary, or agent of another foreign or domestic
corporation or other person, or of an employee benefit plan against liability
asserted against or incurred by the individual in that capacity or arising from
his status as such, whether or not the corporation would have the power to
indemnify him against the same liability under Section 902, 903, or 907 of
the Revised Act.
Section 16-10a-909
of the Revised Act provides that a provision treating a corporation's
indemnification of or advance for expenses to, directors that is contained in
its articles of incorporation or bylaws, in a resolution of its stockholders or
board of directors or in a contract, (except an insurance policy), or otherwise,
is valid only if and to the extent the provision is not inconsistent with
Sections 901 through 909 of the Revised Act. If the articles of incorporation
limit indemnification or advancement of expenses, indemnification and
advancement of expenses are valid only to the extent not inconsistent with the
articles.
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 laws 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
Amended and Restated Articles of Incorporation provide that to the fullest
extent permitted by the Revised Act, no director shall be liable to the
Registrant or its shareholders for monetary damages. In addition, the Registrant
is authorized to indemnify directors and officers of the Registrant to the
fullest extent permitted under applicable 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.
EXHIBIT
INDEX
|
Exhibit
No. |
Description |
|
4.1 |
Amended and
Restated Articles of Incorporation of the Registrant (Incorporated by
reference to Exhibit 99.6 of the Registrant’s Current Report on Form 8-K
filed with the SEC on March 10, 2005, File No.
001-11107). |
|
4.2 |
Amended and
Restated Bylaws of the Registrant (Incorporated by reference to Exhibit
3.2 of the Registrant’s Registration Statement on Form S-1 filed with the
SEC on April 17, 1992, Registration No. 33-47283). |
|
4.3 |
Franklin
Covey Co. 2004 Employee Stock Purchase Plan. |
|
4.4 |
Franklin
Covey Co. 2004 Non-Employee Directors’ Stock Incentive
Plan. |
|
5.1 |
Opinion of
Dorsey & Whitney LLP. |
|
23.1 |
Consent of
KPMG LLP, an independent registered public accounting
firm. |
|
23.2 |
Consent of
Dorsey & Whitney LLP (contained in Exhibit 5.1). |
|
24.1 |
Powers of
Attorney (included in signature page). |
Item 9.
UNDERTAKINGS
| (1) |
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; |
| (ii) |
To reflect
in the prospectus any facts or events arising after the effective date of
the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high end 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
20% 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 the registration statement or any material change
to such information in the registration
statement; |
provided, however,
that paragraphs (a) (1) (i) and (a) (1) (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
| (b) |
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. |
| (c) |
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. |
| (d) |
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 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. |
| (e) |
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. |
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 Salt
Lake City, State of Utah, on March 25, 2005.
| |
|
FRANKLIN COVEY
CO. |
| |
|
|
| |
By: |
/s/
ROBERT A. WHITMAN |
| |
|
Robert
A. Whitman, Chairman of the |
| |
|
Board
of Directors, President 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 D. Young, 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 of Directors, President and Chief Executive Officer (Principal
Executive Officer) |
March 25,
2005 |
|
Robert A.
Whitman |
|
| |
|
|
|
|
/s/ STEPHEN
D. YOUNG |
|
Senior Vice
President and Chief Financial Officer (Principal Financial and Accounting
Officer) |
March 25,
2005 |
|
Stephen D.
Young |
|
| |
|
|
|
|
/s/ CLAYTON
M. CHRISTENSEN |
|
|
|
|
Clayton M.
Christensen |
|
Director |
March 25,
2005 |
| |
|
|
|
|
/s/ STEPHEN
R. COVEY |
|
|
|
|
Stephen R.
Covey |
|
Director |
March 25,
2005 |
| |
|
|
|
|
/s/ ROBERT
H. DAINES |
|
Director |
March 25,
2005 |
|
Robert H.
Daines |
|
| |
|
|
|
|
/s/ E. J.
“JAKE” GARN |
|
Director |
March 25,
2005 |
|
E. J. “Jake”
Garn |
|
| |
|
|
|
|
/s/ DENNIS
G. HEINER |
|
Director |
March 25,
2005 |
|
Dennis G.
Heiner |
|
| |
|
|
|
|
/s/ BRIAN A.
KRISAK |
|
Director |
March 25,
2005 |
|
Brian A.
Krisak |
|
| |
|
|
|
|
/s/ DONALD
J. MCNAMARA |
|
Director |
March 25,
2005 |
|
Donald J.
McNamara |
|
| |
|
|
|
|
/s/ JOEL C.
PETERSON |
|
Director |
March 25,
2005 |
|
Joel C.
Peterson |
|
| |
|
|
|
|
/s/ E. KAY
STEPP |
|
Director |
March 25,
2005 |
|
E. Kay
Stepp |
|
FRANKLIN COVEY
CO.
EXHIBIT
INDEX
|
Exhibit
No. |
Description |
|
4.1 |
Amended and
Restated Articles of Incorporation of the Registrant (Incorporated by
reference to Exhibit 99.6 of the Registrant’s Current Report on Form 8-K
filed with the SEC on March 10, 2005, File No.
001-11107). |
|
4.2 |
Amended and
Restated Bylaws of the Registrant (Incorporated by reference to Exhibit
3.2 of the Registrant’s Registration Statement on Form S-1 filed with the
SEC on April 17, 1992, Registration No. 33-47283). |
|
4.3 |
Franklin
Covey Co. 2004 Employee Stock Purchase Plan. |
|
4.4 |
Franklin
Covey Co. 2004 Non-Employee Directors’ Stock Incentive
Plan. |
|
5.1 |
Opinion of
Dorsey & Whitney LLP. |
|
23.1 |
Consent of
KPMG LLP, an independent registered public accounting
firm. |
|
23.2 |
Consent of
Dorsey & Whitney LLP (contained in Exhibit 5.1). |
|
24.1 |
Powers of
Attorney (included in signature page). |