As filed with the Securities and Exchange Commission on May 25, 2000
Registration Statement No. 333-36438
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HARCOURT GENERAL, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-1619609
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
27 Boylston Street
Chestnut Hill, MA 02467
(617) 232-8200
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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Eric P. Geller,
Senior Vice President,
General Counsel and Secretary
Harcourt General, Inc.
27 Boylston Street
Chestnut Hill, MA 02467
(617) 232-8200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------
Copy to:
Rise B. Norman, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
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(212) 455-2000
Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective as
determined by market conditions and other factors.
-----------------
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. /--/
<PAGE>
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 statement
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. /--/
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 shall thereafter become effective in
accordance with Section 8(a) of the Securities Act or until this
Registration Statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a),
may determine.
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EXPLANATORY NOTE
This Amendment No. 1 to the Form S-3 Registration Statement is being
filed for the sole purpose of filing additional exhibits.
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
The following is an itemization of all fees and expenses incurred
or expected to be incurred by the Registrant in connection with the
issuance and distribution of the securities being registered hereby,
other than underwriting discounts and commissions. All but the Securities
and Exchange Commission registration fee and the New York Stock Exchange
filing fee are estimates and remain subject to future contingencies.
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . . . . . . . . $ 20,328.75
Legal fees and expenses . . . . . . . . . . . . . . . . . 125,000.00
Accounting fees and expenses. . . . . . . . . . . . . . . 30,000.00
New York Stock Exchange filing fee. . . . . . . . . . . . 6,000.00
Printing and engraving fees . . . . . . . . . . . . . . . 1,000.00
Blue Sky fees and expenses. . . . . . . . . . . . . . . . 5,000.00
Miscellaneous expenses. . . . . . . . . . . . . . . . . . 3,671.25
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Total. . . . . . . . . . . . . . . . . . . . . . . . . . $191,000.00
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Item 15. Indemnification Of Directors And Officers
Section 145 of the General Corporation Law of Delaware provides
that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at
the request of the corporation in related capacities against amounts paid
and expenses incurred in connection with an action or proceeding to which
he is or is threatened to be made a party by reason of such position, if
such person shall have 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, in any criminal proceeding, if such person had no reasonable cause to
believe his conduct was unlawful; provided that, in the case of actions brought
by or in the right of the corporation, no indemnification shall be made with
respect to any matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the adjudicating
court determines that such indemnification is proper under the circumstances.
The By-laws of the Registrant contain provisions to the effect that each
director or officer of the Registrant and persons serving at the request of the
Registrant as a director, officer, employee or agent of another organization
shall be indemnified by the Registrant against liabilities and expenses in
connection with any legal proceedings to which he may be made a party or with
which he may become involved or threatened by reason of his position with the
Registrant or such other organization. The provisions include indemnification
with respect to matters covered by a settlement. Any such indemnification shall
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<PAGE>
be made only if our board determines by a majority vote of a quorum consisting
OF directors who were not parties to such action (or, if such quorum is not
obtainable, or if our board directs, by independent legal counsel) or by
the stockholders, that indemnification is proper in the circumstances
because the person seeking indemnification has met applicable standards
of conduct. It must be determined that the director, officer or other
person acting at the request of the Registrant acted in good faith with
the reasonable belief that his action was in or not opposed to the best
interests of the Registrant, and with respect to any criminal action or
proceeding, he had no reasonable cause to believe his conduct was
unlawful.
The Registrant has a directors and officers liability insurance policy
covering certain liabilities that may be incurred by its directors and officers.
Any agreement with underwriters or agents may contain provisions providing
for the indemnification of the Registrant and certain of its directors and
officers in certain circumstances.
Item 16. Exhibits
The following exhibits are filed as part of this registration statement:
Exhibit No. Description
- ---------- -----------
1.1* Equity Swap Agreement, dated April 20, 2000.
1.2* Purchase Agreement, dated April 20, 2000.
4.2* Form of Common Stock Certificate.
5 Opinion of Eric P. Geller, Esq. as to the legality of the Common Stock.
23.1* Consent of Deloitte & Touche LLP.
23.2 Consent of Eric P. Geller, Esq., included in Exhibit 5.
24* Powers of Attorney, included on pages II-5-6 of this Registration
Statement.
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* Previously filed.
Item 17. 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;
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(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; 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 (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.
(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 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, (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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
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the Securities Act, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a director,
officer or controlling person of such 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.
[The rest of this page is intentionally left blank.]
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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 Amendment No. 1 to Form S-3 and
has duly caused this Amendment No. 1 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Newton, the
Commonwealth of Massachusetts, on May 24, 2000.
Harcourt General, Inc.
By: /s/ Brian J. Knez*
---------------------------------
Name: Brian J. Knez
Title: President and
Co-Chief Executive Officer
By: /s/ Robert A. Smith*
---------------------------------
Name: Robert A. Smith
Title: President and
Co-Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in
the capacities indicated and on the dates indicated.
Signature Title Date
--------- ----- ----
Principal Executive
Officers:
President and Co-Chief May 24, 2000
/s/ Brian J. Knez* Executive Officer
- ------------------------
Brian J. Knez
President and Co-Chief May 24, 2000
/s/ Robert A. Smith* Executive Officer
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Robert A. Smith
Principal Financial
Officer:
Senior Vice President and May 24, 2000
/s/ John R. Cook Chief Financial Officer
- ------------------------
John R. Cook
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<PAGE>
Principal Accounting
Officer:
Vice President and May 24, 2000
/s/ Catherine N. Janowski* Controller
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Catherine N. Janowski
Directors:
May 24, 2000
/s/ Richard A. Smith*
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Richard A. Smith
May 24, 2000
/s/ William F. Connell*
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William F. Connell
May 24, 2000
/s/ Gary L. Countryman*
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Gary L. Countryman
May 24, 2000
/s/ Jack M. Greenberg*
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Jack M. Greenberg
May 24, 2000
/s/ Brian J. Knez*
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Brian J. Knez
May 24, 2000
/s/ Jeffrey R. Lurie*
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Jeffrey R. Lurie
May 24, 2000
/s/ Lynn Morley Martin*
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Lynn Morley Martin
May 24, 2000
/s/ Maurice Segall*
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Maurice Segall
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<PAGE>
May 24, 2000
/s/ Robert A. Smith*
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Robert A. Smith
May 24, 2000
/s/ Paula Stern*
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Paula Stern
May 24, 2000
/s/ Hugo Uyterhoeven*
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Hugo Uyterhoeven
May 24, 2000
/s/ Clifton R. Wharton,Jr.*
- ------------------------------
Clifton R. Wharton, Jr.
*By: /s/ Eric P. Geller
-------------------------
Eric P. Geller
Attorney-in-fact
*By: /s/ John R. Cook
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John R. Cook
Attorney-in-fact
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EXHIBIT 5
May 15, 2000
Harcourt General, Inc.
27 Boylston Street
Boston, MA 02467
Ladies and Gentlemen:
I am the Senior Vice President, General Counsel and Secretary of
Harcourt General, Inc., a Delaware corporation (the "Company"), and have
advised the Company in connection with the preparation and filing by the
Company with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended, of a Registration Statement on Form
S-3 (the "Registration Statement") relating to the sale of shares of Common
Stock par value $1.00 per share of the Company (the "Shares").
I have reviewed the corporate action of the Company in connection with
the issuance and sale of the Shares and I have examined the Registration
Statement and a form of the share certificate, which has been filed with the
Commission as an exhibit to the Registration Statement. I also have examined
the originals, or duplicates or certified or conformed copies, of such
records, agreements, instruments and other documents and have made such other
and further investigations as I have deemed relevant and necessary in
connection with the opinions expressed herein.
In such examination, I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as duplicates or certified or conformed copies, and
the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, I am of the opinion that the Shares to be sold by
the selling stockholder named in the Registration Statement have been duly
authorized by the Company and are or will be validly issued, fully paid and
nonassessable.
I am a member of the Bar of the Commonwealth of Massachusetts and I do
not express any opinion herein concerning any law other than the law of the
Commonwealth of Massachusetts and the Delaware General Corporation Law.
<PAGE>
I hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus included in the Registration Statement.
Very truly yours,
Eric P. Geller
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