Registration
No. 333-__________
As
filed
with the Securities and Exchange Commission on December 1, 2006
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. AMENDED AND RESTATED 1992 STOCK INCENTIVE PLAN
(f/k/a
Franklin Quest Co. 1992 Stock Incentive Plan)
(Full
Title of the Plan)
____________________
Stephen
D. Young
Chief
Financial Officer
Franklin
Covey Co.
2200
West Parkway Boulevard
Salt
Lake City, Utah 84119-2331
(801)
817-1776
(Name
and
Address of Agent for Service)
____________________
Copy
to:
Nolan
S. Taylor, Esq.
Dorsey
& Whitney LLP
170
South Main Street, Suite 900
Salt
Lake City, Utah 84101-1655
(801)
933-7360
____________________
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, $0.05 par value per share
|
2,000,000
shares
|
$5.69
|
$11,380,000
|
$1,218
|
(1) Pursuant
to Rule 416 under the Securities Act of 1933, this registration statement
also
relates to such additional number of shares available for issuance under
the
plan as may be required pursuant to the plan in the event of a stock dividend,
stock split, recapitalization or other similar event, or as otherwise provided
for in the plan.
(2) Estimated
solely for the purpose of calculating the registration fee in accordance
with
Rule 457(c) under the
Securities Act of 1933, as amended.
The
proposed maximum aggregate offering price is based upon the average of the
high
and low prices of the Registrant’s Common Stock traded on the New York Stock
Exchange as reported on the consolidated reporting system on November 27,
2006.
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
adopted 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 and Employee Plan Annual 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
adopted 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 Documents by Reference.
The
following documents, which have been filed with the Securities and Exchange
Commission (the “Commission”)
by the
Registrant, are incorporated by reference in this registration statement,
as of
their respective dates:
|
(a)
|
the
Registrant’s Annual Report on Form 10-K for the fiscal year ended
August 31, 2006;
|
|
(b)
|
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.
|
All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, subsequent to the date hereof and prior to the
filing
of a post-effective amendment which indicates that all securities offered
hereby
have been sold or which deregisters all securities remaining unsold shall
be
deemed to be incorporated by reference herein and to be a part hereof from
the
respective dates 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 personal 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
by
him 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.
Section
16-10a-841 of the Revised Act provides that the liability of a director to
the
corporation or its stockholders for monetary damages for any action taken
or any
failure to take any action, as a director, may be limited or eliminated by
the
corporation except for liability for (i) the amount of a financial benefit
received by a director to which he is not entitled; (ii) an intentional
infliction of harm on the corporation or its stockholders; (iii) a violation
of
Section 16-10a-842 of the Revised Act, which prohibits unlawful distributions
by
a corporation to its stockholders; or (iv) an intentional violation of criminal
law.
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
Number
|
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
|
|
|
Amendment
to Amended and Restated Articles of Incorporation of the Registrant
(Incorporated by reference to Appendix C to the Definitive Proxy
Statement
filed December 12, 2005, File No. 001-11107).
|
|
|
4.3
|
|
|
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).
|
|
|
5.1
|
|
|
Opinion
of Dorsey & Whitney LLP.
|
|
|
23.1
|
|
|
Consent
of KPMG LLP, independent registered public accounting firm.
|
|
|
23.2
|
|
|
Consent
of Dorsey & Whitney LLP (contained in Exhibit 5.1 to this registration
statement).
|
|
|
24.1
|
|
|
Power
of Attorney (included with the signatures in Part II of this registration
statement).
|
|
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:
(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 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 a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement;
(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) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration
statement.
(2) 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.
(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, 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 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 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 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, 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 November 30, 2006.
| FRANKLIN COVEY CO. | ||
| |
|
|
| Date: November 30, 2006 | By: | /s/ ROBERT A. WHITMAN |
|
Robert A. Whitman |
||
| President and Chief Executive Officer | ||
POWER
OF ATTORNEY
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.
Pursuant
to the requirements of the Securities Act, this registration statement has
been
signed by the following persons in the capacities indicated.
|
Signature
|
Title
|
Date
|
|
/s/
ROBERT A. WHITMAN
|
Chairman
of the Board of Directors, President and Chief Executive Officer
(Principal Executive Officer)
|
November
30, 2006
|
|
Robert
A. Whitman
|
||
|
/s/
STEPHEN D. YOUNG
|
||
|
Stephen
D. Young
|
Senior
Vice President and Chief Financial Officer (Principal Financial
and
Accounting Officer)
|
November
30, 2006
|
|
/s/
CLAYTON M. CHRISTENSEN
|
||
|
Clayton
M. Christensen
|
Director
|
November
30, 2006
|
|
/s/
STEPHEN R. COVEY
|
||
|
Stephen
R. Covey
|
Director
|
November
30, 2006
|
|
/s/
ROBERT H. DAINES
|
||
|
Robert
H. Daines
|
Director
|
November
30, 2006
|
|
/s/
E.J. “JAKE” GARN
|
||
|
E.J.
“Jake” Garn
|
Director
|
November
30, 2006
|
|
/s/
DENNIS G. HEINER
|
||
|
Dennis
G. Heiner
|
Director
|
November
30, 2006
|
|
/s/
DONALD J. MCNAMARA
|
||
|
Donald
J. McNamara
|
Director
|
November
30, 2006
|
|
/s/
JOEL C. PETERSON
|
||
|
Joel
C. Peterson
|
Director
|
November
30, 2006
|
|
/s/
E. KAY STEPP
|
||
|
E.
Kay Stepp
|
Director
|
November
30, 2006
|
Exhibit
Index to
Form S-8
FRANKLIN
COVEY CO.
|
Exhibit
Number
|
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
|
Amendment
to Amended and Restated Articles of Incorporation of the Registrant
(Incorporated by reference to Appendix C to the Definitive Proxy
Statement
filed December 12, 2005, File No. 001-11107).
|
|
|
4.3
|
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).
|
|
|
5.1
|
Opinion
of Dorsey & Whitney LLP.
|
|
|
23.1
|
Consent
of KPMG LLP, independent registered public accounting firm.
|
|
|
23.2
|
Consent
of Dorsey & Whitney LLP (contained in Exhibit 5.1 to this
registration statement).
|
|
|
24.1
|
Power
of Attorney (included with the signatures in Part II of this registration
statement).
|
Exhibit
5.1
November
30, 2006
|
Franklin
Covey Co.
2200
West Parkway Boulevard
Salt
Lake City, Utah 84119-2331
|
|
|
Re:
|
Registration
Statement on Form S-8
|
Ladies
and Gentlemen:
We
have
acted as counsel to Franklin Covey Co., a Utah corporation (the “Company”), in
connection with the registration under the Securities Act of 1933, as amended,
on a registration statement on Form S-8 (the “Registration Statement”) of
an aggregate of 2,000,000 shares of the Company’s common stock, $0.05 par value
per share (the “Shares”), which are to be offered and sold under the Franklin
Covey Co. Amended and Restated 1992 Stock Incentive Plan (the “Plan”). This
opinion is being delivered at your request.
We
have
examined such documents and have reviewed such questions of law as we have
considered necessary and appropriate for the purposes of this opinion. In
rendering our opinion set forth below, we have assumed the authenticity of
all
documents submitted to us as originals, the genuineness of all signatures and
the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver
and
perform such agreements or instruments, that such agreements or instruments
have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions
of
fact material to our opinion, we have relied upon certificates of officers
of
the Company and of public officials.
Based
on
the foregoing, we are of the opinion that the Shares have been duly authorized
and, upon issuance, delivery and payment therefor in accordance with the terms
of the Plan, will be validly issued, fully paid and nonassessable.
Our
opinion expressed above is limited to the laws of the State of
Utah.
We
hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement. The foregoing opinion is being furnished to you solely for your
benefit and may not be relied upon by, nor may copies be delivered to, any
other
person without our prior written consent.
Very
Truly Yours,
/s/
Dorsey & Whitney LLP
NST
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
The
Board
of Directors and Shareholders
Franklin
Covey Co.:
We
consent to the use of our reports dated November 13, 2006, with respect to
the
consolidated balance sheets of Franklin Covey Co. as of August 31, 2006 and
2005, and the related consolidated statements of income and comprehensive income
(loss), stockholders’ equity, and cash flows for each of the years in the
three-year period ended August 31, 2006 and the related financial statement
schedule, management’s assessment of the effectiveness of internal control over
financial reporting as of August 31, 2006 and the effectiveness of internal
control over financial reporting as of August 31, 2006, incorporated herein
by
reference.
Our
report dated November 13, 2006, on management’s assessment of the effectiveness
of internal control over financial reporting and the effectiveness of internal
control over financial reporting as of August 31, 2006, expresses our opinion
that Franklin Covey Co. did not maintain effective internal control over
financial reporting as of August 31, 2006 because of the effect of a material
weakness on the achievement of the objectives of the control criteria and
contains an explanatory paragraph that states that the material weakness was
that policies and procedures regarding capturing and recording accounts payable
for services were inadequate to ensure the completeness and accuracy of
recording liabilities in the correct period in which the service was provided.
As a result, misstatements existed in the Company’s current liabilities in its
preliminary fiscal 2006 consolidated financial statements. The material weakness
resulted in more than a remote likelihood that a material misstatement of the
Company’s annual or interim financial statements would not be prevented or
detected.
/s/
KPMG LLP
Salt
Lake
City, UT
November
30, 2006