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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 1995
REGISTRATION NO. 33-59649
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
HOUGHTON MIFFLIN COMPANY
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-1456030
(State or other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
222 BERKELEY STREET
BOSTON, MASSACHUSETTS 02116
(617) 351-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
------------------------
PAUL D. WEAVER
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
HOUGHTON MIFFLIN COMPANY
222 BERKELEY STREET
BOSTON, MASSACHUSETTS 02116
(617) 351-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
<TABLE>
<S> <C>
RICHARD A. SODEN LOUIS A. GOODMAN
GOODWIN, PROCTER & HOAR SKADDEN, ARPS, SLATE, MEAGHER & FLOM
EXCHANGE PLACE ONE BEACON STREET
BOSTON, MASSACHUSETTS 02109 BOSTON, MASSACHUSETTS 02108
(617) 570-1000 (617) 573-4800
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
AS SOON AS PRACTICABLE 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, check the following box: / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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: / / 33-
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: / / 33-
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
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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 OF 1933, AS AMENDED, OR UNTIL THE 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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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the distribution of the securities being
registered (other than underwriting discounts and commissions) are estimated as
follows:
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Securities and Exchange Commission Registration Fee....................... $ 40,000
NASD Filing Fee........................................................... 12,100
Printing and Engraving Fees............................................... 75,000
Legal Fees and Expenses................................................... 135,000
Accounting Fees and Expenses.............................................. 50,000
Rating Agencies Fees...................................................... 62,500
State Securities Laws Fees and Expenses................................... 10,000
Trustee and Registrar Fees and Expenses................................... 10,000
Miscellaneous............................................................. 5,400
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Total........................................................... $400,000
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</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Underwriting Agreement (a form of which appears as Exhibit 1 hereto)
provides for indemnification of the directors and officers of the Company in
certain circumstances.
As permitted by Massachusetts law, the Restated Articles of Organization of
the Company (the "Articles of Organization") contain indemnification provisions
to the effect that, subject to certain standards, directors and officers may be
indemnified by the Company for all liabilities incurred by them in connection
with any proceeding in which they are involved as a result of serving or having
served as a director or officer of the Company or, at the request of the
Company, as a director or officer of any other organization or in any capacity
with respect to any employee benefit plan.
As permitted by Massachusetts law, the Articles of Organization provide
that a director of the Company will not be personally liable to the Company or
its stockholders for monetary damages arising out of the director's breach of
his or her fiduciary duty, except to the extent that the Massachusetts Business
Corporation Law ("MBCL") does not permit exemption from such liability.
Currently, the MBCL provides that a director remains potentially liable for
monetary damages for (i) any breach of the director's duty of loyalty to the
Company or its stockholders; (ii) any acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law; (iii) an
improper payment of a dividend, improper repurchase of the Company's stock, or
certain loans to directors and officers of the Company in violation of Sections
61 or 62 of MBCL; or (iv) any transaction from which a director derives an
improper benefit.
As also permitted by Massachusetts law, the Company has purchased
directors' and officers' liability insurance, which insures against certain
liabilities incurred in connection with the performance of their duties.
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ITEM 16. EXHIBITS
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
1 Form of Underwriting Agreement
4.1 Indenture dated as of March 15, 1994 between Houghton Mifflin Company and The
First National Bank of Boston, as Trustee (incorporated by reference to Exhibit
4.1 to the Company's Registration Statement on Form S-3 (No. 33-51700))
4.2 Form of First Supplemental Indenture dated as of July , 1995 between the
Company and The First National Bank of Boston, as Trustee
4.3 Form of the SAILS (included in Exhibit 4.2)
</TABLE>
II-1
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
5 Opinion of Goodwin, Procter & Hoar regarding legality of securities being
registered
8 Opinion of Goodwin, Procter & Hoar with respect to federal tax matters*
10.1 Formation Agreement, dated January 10, 1994, by and between the Company and
INSO
10.2 Amendment dated July 24, 1995 to Formation Agreement, dated January 10, 1994,
by and between the Company and INSO
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Written consent of Ernst & Young LLP
23.2 Written consent of Goodwin, Procter & Hoar (contained in the opinions filed as
Exhibits 5 and 8)
24 Power of Attorney (included on the signature page of the Registration
Statement)
25 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of The First National Bank of Boston (incorporated by reference to
Exhibit 26 to the Company's Registration Statement on Form S-3 (No. 33-51700))
<FN>
- ---------------
* Filed herewith
</TABLE>
ITEM 17. UNDERTAKINGS
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 Section 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 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.
Insofar as indemnification for liabilities under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, 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
of 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 a 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 of 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 undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, 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 a part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, 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.
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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 on Form S-3 and has duly caused this Pre-Effective
Amendment No. 3 to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, the Commonwealth
of Massachusetts on July 27, 1995.
HOUGHTON MIFFLIN COMPANY
By: /s/ NADER F. DAREHSHORI
------------------------------------
Nader F. Darehshori
Chairman of the Board, President and
Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 3 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ NADER F. DAREHSHORI Chairman of the Board, President, July 27, 1995
- --------------------------------------------- Chief Executive Officer and
Nader F. Darehshori Director (principal executive
officer)
* Vice President, Corporate July 27, 1995
- --------------------------------------------- Controller and Treasurer
Michael J. Lindgren (principal financial and
accounting officer)
* Director July 27, 1995
- ---------------------------------------------
Joseph A. Baute
* Director July 27, 1995
- ---------------------------------------------
Gail Deegan
* Director July 27, 1995
- ---------------------------------------------
James O. Freedman
* Director July 27, 1995
- ---------------------------------------------
Mary H. Lindsay
* Director July 27, 1995
- ---------------------------------------------
Charles R. Longsworth
* Director July 27, 1995
- ---------------------------------------------
John F. Magee
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
* Director July 27, 1995
- ---------------------------------------------
Claudine B. Malone
* Director July 27, 1995
- ---------------------------------------------
Alfred L. McDougal
* Director July 27, 1995
- ---------------------------------------------
George Putnam
* Director July 27, 1995
- ---------------------------------------------
Ralph Z. Sorenson
* Director July 27, 1995
- ---------------------------------------------
DeRoy C. Thomas
*By: /s/ PAUL D. WEAVER July 27, 1995
----------------------------------------
Paul D. Weaver
Attorney-in-fact
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
<C> <S> <C>
1 Form of Underwriting Agreement
4.1 Indenture dated as of March 15, 1994 between Houghton Mifflin
Company and The First National Bank of Boston, as Trustee
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-3 (No. 33-51700))
4.2 Form of First Supplemental Indenture dated as of July , 1995
between the Company and The First National Bank of Boston, as
Trustee
4.3 Form of the SAILS (included in Exhibit 4.2)
5 Opinion of Goodwin, Procter & Hoar regarding legality of securities
being registered
8 Opinion of Goodwin, Procter & Hoar with respect to federal tax
matters*
10.1 Formation Agreement, dated January 10, 1994, by and between the
Company and INSO
10.2 Amendment dated July 24, 1995 to Formation Agreement, dated January
10, 1994, by and between the Company and INSO
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Written consent of Ernst & Young LLP
23.2 Written consent of Goodwin, Procter & Hoar (contained in the
opinions filed as Exhibits 5 and 8)
24 Power of Attorney (included on the signature page of the
Registration Statement)
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The First National Bank of Boston
(incorporated by reference to Exhibit 26 to the Company's
Registration Statement on Form S-3 (No. 33-51700))
<FN>
- ---------------
* Filed herewith
</TABLE>
<PAGE> 1
July 26, 1995
Houghton Mifflin Company
222 Berkeley Street
Boston, Massachusetts 02116
Ladies and Gentlemen:
We have acted as tax counsel to Houghton Mifflin Company, a
corporation organized under the laws of the Commonwealth of
Massachusetts (the "Company"), in connection with the proposed
issuance by the Company of a series of securities denominated its
"__% Exchangeable Notes dues 1999" (the "SAILS"), the principal
amount of which at maturity and upon optional redemption is
mandatorily exchangeable into shares of common stock, par value
$.01 per share, of INSO Corporation, or, at the option of the
Company, cash, all as described in the prospectus (the
"Prospectus") which constitutes a part of the Registration
Statement of the Company on Form S-3, filed with the Securities
and Exchange Commission (the "Commission") on May 26, 1995, as
amended by Pre-Effective Amendment No. 1 filed with the
Commission on July 3, 1995, and by Pre-Effective Amendment No. 2
filed with the Commission on July 25, 1995 (as so amended, the
"Registration Statement"). You have requested our opinion
regarding the discussion of certain federal income tax
consequences of an investment in the SAILS by U.S. Holders (as
defined in the Prospectus), which discussion is set forth under
the heading "Certain United States Federal Income Tax
Considerations" in the Prospectus.
In rendering our opinion, we have reviewed the Prospectus
and such other materials as we have deemed necessary or
appropriate as a basis for our opinion. In addition, we have
considered the applicable provisions of the Internal Revenue Code
of 1986, as amended, Treasury regulations, pertinent judicial
authorities, rulings of the Internal Revenue Service, and such
other authorities as we have considered relevant.
Based upon the foregoing, we hereby affirm that our opinion
with respect to the tax treatment of the SAILS for U.S. Holders
under current law is as set forth under the heading "Certain
United States Federal Income Tax Considerations" in the
Prospectus.
The opinion is being furnished in connection with the
Prospectus. This opinion is solely for your benefit and is not
to be used, circulated, quoted or otherwise referred to for any
purposes without our express written permission. Notwithstanding
the previous sentence, we hereby consent to the filing of this
form of opinion with the Securities and Exchange
<PAGE> 2
Commission as an exhibit to the Registration Statement and to the
reference to us under the heading "Certain United States Federal
Income Tax Considerations" in the Prospectus. In giving this consent,
we do not admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of
1933, as amended, or the Rules and Regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
GOODWIN, PROCTER & HOAR
