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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 7, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------------
HOUGHTON MIFFLIN COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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MASSACHUSETTS 04-1456030
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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222 BERKELEY STREET
BOSTON, MA 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, MA 02116
(617) 351-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
COPIES TO:
RICHARD A. SODEN
JOHN O. NEWELL
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MA 02109
(617) 570-1000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
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, please check the following box. [X]
If this form is used 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, please 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. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT PRICE(1)(2) REGISTRATION FEE(3)
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Debt Securities(4)......................
Common Stock and associated Preferred
Stock Purchase Rights(5).............. $190,000,000 (1) $190,000,000 $52,820
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(1) In United States dollars or the equivalent thereof in foreign currency or
currency units. The amount registered represents the aggregate public
offering price received from the sale of the Debt Securities and Common
Stock registered hereby, including any securities sold at a discount, which
will not exceed $190 million. No separate consideration will be received for
Common Stock that is issued upon conversion or exchange of Debt Securities.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) A filing fee of $2,780 was previously paid in connection with $10,000,000 of
securities registered under the Company's Registration Statement on Form S-3
(No. 333-76323) and with respect to which this Registration Statement amends
such previous Registration Statement.
(4) Such indeterminate amount of Debt Securities as may from time to time be
issued at indeterminate prices or issuable upon conversion or exchange of
Debt Securities, to the extent such Debt Securities are, by their terms,
convertible into or exchangeable Debt Securities.
(5) Such indeterminate number of shares of Common Stock and accompanying
Preferred Stock Purchase Rights, if any, (i) as shall be issuable or
deliverable upon conversion or exchange of any Debt Securities registered
hereby which are convertible into or exchangeable for such Common Stock and
(ii) as may be required for delivery upon conversion or exchange of any such
convertible or exchangeable debt securities as a result of anti-dilution
provisions thereof.
Pursuant to Rule 429 of the Securities Act of 1933, the Prospectus contained
in this Registration Statement also relates to $10,000,000 of unissued
securities registered pursuant to the Registrant's Registration Statements on
Form S-3 (Registration Statement No. 333-76323). This Registration Statement,
which is a new registration statement, also constitutes a post-effective
amendment to Registration Statement No. 333-76323. Such post-effective amendment
shall become effective concurrently with the effectiveness of this Registration
Statement in accordance with Section 8(a) 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 SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MAY 7, 1999
PROSPECTUS
HOUGHTON MIFFLIN COMPANY
$200,000,000
Debt Securities
Common Stock
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Houghton Mifflin will provide Houghton Mifflin may offer any
specific terms of these securities in of the following securities from time
supplements to this prospectus. You to time:
should read this prospectus and any
supplement carefully before you invest. - debt securities or
- common stock
-------------------------
We may list the securities on the New York Stock Exchange.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-------------------------
May , 1999
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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TABLE OF CONTENTS
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PAGE
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About This Prospectus............... 1
Where You Can Find More
Information....................... 1
About Houghton Mifflin Company...... 2
Ratio of Earnings to Fixed
Charges........................... 3
How We Intend to Use the Proceeds... 4
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PAGE
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Description of the Debt
Securities........................ 4
Description of Houghton Mifflin
Common Stock...................... 11
How We Plan to Sell the
Securities........................ 13
Experts............................. 14
Legal Opinions...................... 14
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a shelf registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $200,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
Houghton Mifflin files annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any
document we file at the SEC's public reference rooms in Washington, D.C.,
Chicago, Illinois, and New York, New York. Please call the SEC at 1-800-SEC-0330
for further information about the public reference rooms. Our SEC filings are
also available to the public from the SEC's Web site at http://www.sec.gov. In
addition, you may look at our SEC filings at the offices of the New York Stock
Exchange (NYSE), which is located at 20 Broad Street, New York, New York 10005.
Our SEC filings are available at the NYSE because our common stock is listed and
traded on the NYSE.
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by referring
you to these documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede the information already incorporated
by reference. We are incorporating by reference the documents listed below,
which we have already filed with the SEC, and any future filings we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until we sell all of the securities. These documents contain important
information about us, our business and our finances.
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HOUGHTON MIFFLIN SEC FILINGS (FILE NO. 1-5406) PERIOD
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Annual Report on Form 10-K, as amended
by Form 10-K/A............................ Year ended December 31, 1998
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We are also incorporating by reference the descriptions of our common stock, and
the related preferred stock purchase rights under our Stockholder Rights Plan,
from registration statements we have previously filed under Section 12 of the
Securities Exchange Act, including any amendments or reports filed for the
purpose of updating these descriptions.
You may request a copy of these filings, and any exhibits we have
specifically incorporated by reference as an exhibit in this prospectus, at no
cost by writing or telephoning us at the following address: Houghton Mifflin
Company, 222 Berkeley Street, Boston, MA 02116, Attention: Investor Relations.
Our telephone number is 617-351-5000.
This prospectus is part of a registration statement we filed with the SEC.
As SEC rules allow, this prospectus does not contain all of the information you
can find in the registration statement or in the exhibits. You should read the
exhibits and other parts of the registration statement carefully for provisions
that may be important to you.
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You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or the documents incorporated by
reference is accurate as of any date other than the date on the front of this
prospectus or those documents.
ABOUT HOUGHTON MIFFLIN COMPANY
Houghton Mifflin Company was incorporated in 1908 in Massachusetts as the
successor to a partnership formed in 1880. Antecedents of the partnership date
back to 1832. Houghton Mifflin's principal business is publishing, and its
operations are classified into three operating segments:
- K-12 Publishing, which includes textbooks and other educational materials
and services for the kindergarten through grade twelve, or K-12, school
markets;
- College Publishing, which includes textbooks and other educational
materials and services for the college markets; and
- Other, which includes fiction, nonfiction, children's books, dictionary
and reference materials in a variety of formats and media and
computer-based testing solutions.
K-12 PUBLISHING
This operating segment includes textbooks and instructional materials,
tests for measuring achievement and aptitude, clinical/special needs testing
products, computer-assisted as well as computer-managed instructional programs
for the K-12 market, and a computer-based career and college guidance
information system in versions for both junior and senior high school students.
K-12 Publishing consists of five of Houghton Mifflin's divisions:
- The School Division, which publishes for the elementary school market;
- McDougal Littell Inc., which publishes for the secondary school market;
- Great Source Education Group, Inc., which publishes supplementary
materials for both the elementary and secondary school markets;
- Houghton Mifflin Interactive Corporation, which develops and sells
multimedia products, chiefly CD-ROM titles, for both the elementary and
secondary school markets; and
- The Riverside Publishing Company, which serves the educational and
clinical testing markets.
COLLEGE PUBLISHING
This operating segment, which consists of the College Division, includes
textbooks, ancillary products such as workbooks and study guides, and
instructional materials for introductory and upper level courses in the
post-secondary higher education market. Products may be in print or electronic
form.
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OTHER
Houghton Mifflin's Other operating segment consists of unallocated
corporate-related items and two divisions:
- The Trade & Reference Division, which publishes fiction and nonfiction
for adults and children, dictionaries, and other reference works; and
- Computer Adaptive Technologies, Inc., which specializes in developing and
delivering computer-based testing solutions.
Houghton Mifflin derives almost 90% of its revenues from educational
publishing in the K-12 and College Publishing segments, which are markedly
seasonal businesses. Sales of K-12 instructional materials are also cyclical,
with some years offering more sales opportunities than others. Our SEC reports
contain more detailed information about our business and factors that may affect
our financial performance.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods indicated is
as follows:
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YEARS ENDED DECEMBER 31,
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1998 1997 1996 1995(B) 1994(A)
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Earnings (loss) before fixed charges:
Net income (loss) before extraordinary
item and cumulative effect of
accounting changes.................. $ 45.6 $ 49.8 $ 43.6 $(7.2) $52.4
Provision (benefit) for income taxes... 33.6 33.7 30.3 (4.2) 32.7
------ ------ ------ ----- -----
Income (loss) from continuing operations
before taxes, extraordinary item, and
cumulative effect of accounting
changes................................ 79.2 83.5 74.0 (11.4) 85.1
Interest expense....................... 34.7 39.7 41.6 15.2 7.7
Interest portion of rent expense*...... 3.1 2.7 3.0 3.8 3.4
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Earnings (loss) before fixed charges..... $117.0 $125.9 $118.6 $ 7.6 $96.2
Fixed charges:
Interest expense....................... 34.7 39.7 41.6 15.2 7.7
Interest portion of rent expense*...... 3.1 2.7 3.0 3.8 3.4
------ ------ ------ ----- -----
Total fixed charges...................... $ 37.8 $ 42.4 $ 44.6 $19.0 $11.1
Ratio of earnings to fixed charges....... 3.1 3.0 2.7 0.4 8.6
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(A) On March 30, 1994, Houghton Mifflin completed an early redemption of $25
million in senior notes due March 30, 1997. Houghton Mifflin recognized an
extraordinary loss of $1.2 million, net of a tax benefit of $0.8 million.
This extraordinary loss is excluded from earnings before fixed charges and
interest expense in calculating the ratio of earning to fixed charges.
(B) Houghton Mifflin would need $11.4 million in additional income to cover its
fixed charges in 1995.
* Includes the portion of rent expense for each period presented that is
deemed by management to be the interest component of such rentals.
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This ratio shows the coverage of earnings before income taxes to fixed
charges, which consist primarily of interest and debt expense.
For the purpose of calculating the ratio of earning to fixed charges, we
calculate earnings by adding fixed charges to income before income taxes, and by
deducting interest capitalized during the period.
HOW WE INTEND TO USE THE PROCEEDS
We intend to use the net proceeds from the sale of the securities for
working capital, capital expenditures, repayment and refinancing of debt,
potential future acquisitions, and other general corporate purposes.
DESCRIPTION OF THE DEBT SECURITIES
This prospectus describes the general terms and provisions of the debt
securities. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the securities in a supplement to this
prospectus. The prospectus supplement will also indicate whether the general
terms and provisions described in this prospectus apply to a particular series
of debt securities. You should look at the actual indenture if you do not fully
understand a term or the way we use it in this prospectus.
Houghton Mifflin will issue and offer the debt securities under an
indenture dated as of March 15, 1994, as supplemented by a First Supplemental
Indenture dated as of July 27, 1995, between Houghton Mifflin and State Street
Bank and Trust Company, as successor trustee.
We have summarized some of the important portions of the indenture in this
section, but this summary is not complete. We have incorporated the indenture by
reference as an exhibit to the registration statement for these securities that
we filed with the SEC. We sometimes refer to specific sections of the indenture.
When we do so, we indicate where you can find the relevant section in the
indenture by noting the section number in parentheses so that you can easily
locate these provisions. When we do refer to specific sections contained in the
indenture or terms defined in the indenture, including important terms which we
capitalize here, we use them in this prospectus in the same way we use them in
the indenture. You should refer to the indenture itself for detailed, specific,
legal descriptions and other provisions that may be important to you.
GENERAL
The debt securities will rank equally and ratably with all Houghton
Mifflin's other unsecured and unsubordinated indebtedness. The indenture allows
us to issue debt securities at any time in an unlimited amount. It does not
limit the amount of additional debt that we may incur, and it does not contain
any provisions that would protect the holders of the debt securities if our
credit quality declines due to a takeover, recapitalization, highly leveraged
transaction or other similar event. However, the indenture does limit the
ability of Houghton Mifflin and our subsidiaries (1) to lease properties back
from persons to whom we sold the property; and (2) to grant mortgages and other
security interests on other debt without similarly securing the debt securities.
We summarize these limitations under the heading "Covenants" on page 7.
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A prospectus supplement relating to any series of debt securities that we
offer for sale will include specific terms of that series of debt securities.
These terms will include some or all of the following:
- their type and title;
- their total principal amount and currency or currency unit;
- the denominations in which they are authorized to be issued;
- the percentage of the principal amount at which they will be issued;
- the date on which they will mature;
- if they bear interest, the interest rate or the method by which the
interest rate will be determined;
- the times at which any interest will be payable or the manner of
determining the interest payment dates and how we will make interest
payments;
- any optional or mandatory redemption periods and the redemption or
purchase price;
- any sinking fund requirements;
- any special United States federal income tax consequences;
- whether they are to be issued in the form of one or more temporary or
permanent global securities and, if so, the identity of the depositary
for the global securities;
- in the case of global securities, whether and under what circumstances
they may be exchanged for registered securities;
- any information with respect to book-entry procedures;
- the manner in which the amount of any payments of principal and interest
determined by reference to an index are determined;
- whether the defeasance provisions will apply; and
- any other specific terms not inconsistent with the indenture.
DENOMINATIONS, REGISTRATION, TRANSFER AND PAYMENT
Houghton Mifflin will issue the debt securities as registered securities
without coupons, or in the form of one or more global securities, as described
below under the heading "Global Securities." We will issue registered securities
denominated in U.S. dollars only in denominations of $1,000 and integral
multiples of $1,000. We will issue global securities in a denomination equal to
the total principal amount of outstanding debt securities of the series
represented by the global security. The denomination of debt securities
denominated in a foreign or composite currency will be described in a prospectus
supplement.
You may present registered debt securities for registration of transfer at
the office of the registrar or at the office of any transfer agent that we
designate. Houghton Mifflin has initially appointed the trustee as registrar and
transfer agent for the debt securities.
We will pay principal and any premium and interest on registered securities
at the office of the paying agent we designate. Houghton Mifflin may choose to
make any interest payment (1) by check mailed to the address of the holder, as
the address appears in the
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register or (2) by wire transfer to the holder's account, as specified in the
register. Houghton Mifflin will make interest payments to the person in whose
name the debt security is registered at the close of business on the day or days
specified by Houghton Mifflin.
If we issue original issue discount debt securities, we will describe the
special United States federal income tax and other considerations of a purchase
of original issue discount debt securities in the prospectus supplement.
Original issue discount debt securities are securities that are issued at a
substantial discount below their principal amount because they pay no interest
or pay interest that is below market rates at the time of issuance.
The trustee's principal office in the city of New York will be designated
as Houghton Mifflin's sole paying agent for payments on registered securities
unless we designate another paying agent in a prospectus supplement for a
particular series of debt securities.
GLOBAL SECURITIES
We will deposit global securities with the depositary identified in the
prospectus supplement. A global security is a security, typically held by a
depository, that represents the beneficial interests of a number of purchasers
of the security.
After we issue a global security, the depositary will credit on its
book-entry registration and transfer system the respective principal amounts of
the debt securities represented by the global security to the accounts of
persons that have accounts with the depositary, referred to in this prospectus
as the "participants." The underwriters or agents participating in the
distribution of the debt securities will designate the accounts to be credited.
Ownership of beneficial interests in a global security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests in a global security will be shown on, and the transfer
of that ownership may only be made through, records maintained by the depositary
and its participants.
We and the trustee will treat the depositary or its nominee as the sole
owner or holder of the debt securities represented by a global security. Except
as set forth below, owners of beneficial interests in a global security will not
be entitled to have the debt securities represented by the global security
registered in their names, will not receive or be entitled to receive physical
delivery of the debt securities in definitive form, and will not be considered
the owners or holders of the debt securities.
Any premium and any interest payments on debt securities represented by a
global security registered in the name of a depositary or its nominee will be
made to that depositary or its nominee as the registered owner of the global
security. Neither Houghton Mifflin, the trustee nor any paying agent will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in the global
security or for maintaining, supervising or reviewing any records relating to
those beneficial ownership interests.
We expect that the depositary, upon receipt of any payments, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of the global
security as shown on the depositary's records. We also expect that payments by
participants to owners of beneficial interests in the global security will be
governed by standing instructions and customary practices, as is the case with
the securities held for the accounts of customers registered in "street name,"
and will be the responsibility of the participants.
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If the depositary is at any time unwilling or unable to continue as
depositary and Houghton Mifflin does not appoint a successor depositary within
90 days, we will issue registered securities in exchange for the global
security. In addition, Houghton Mifflin may at any time in our sole discretion
determine not to have any of the debt securities of a series represented by
global securities. in this event, we will issue debt securities of that series
in definitive form in exchange for the global security.
COVENANTS
We have agreed to some restrictions on our activities for the benefit of
holders of the debt securities. The restrictive covenants summarized below will
apply, unless waived or amended, while any of the debt securities are
outstanding. The prospectus supplement may describe different covenants
applicable to a specific series of debt securities.
LIMITATIONS ON SALE AND LEASEBACK. Neither we nor any of our subsidiaries
will agree to lease any real property that we owned and commercially operated
for more than 180 days if we sold that real property to the person from whom we
will lease the property, referred to in the indenture as a "Sale and Leaseback
Transaction," unless:
- the lease has a term of three years or less; or
- Houghton Mifflin or a subsidiary, within 180 days of the effective date
of the Sale and Leaseback Transaction, retires debt of Houghton Mifflin
or of a subsidiary that is at least equal in amount to the fair value of
the property at the time we lease the property; or
- Houghton Mifflin or a subsidiary could create a security interest on the
property to secure a debt at least equal in amount to the Attributable
Debt, as explained in the next paragraph, for the lease without securing
the debt securities under the covenant that limits our granting of
security interest for our debt. (Section 1008)
When we use the term "Attributable Debt" under the indenture, we mean, at
the time of determination, the present value of the obligation of a lessee for
net rental payments during the remaining term of any lease entered into in
connection with a Sale and Leaseback transaction, discounted at the semiannually
compounded interest rate equal to the weighted average yield to maturity of the
debt securities then outstanding. The term of the lease for this purpose
includes any period for which we have extended the lease.
LIMITATIONS ON SECURED INDEBTEDNESS. Neither we nor any of our
subsidiaries will agree to issue, assume or guarantee any debt that is secured
by a mortgage, security interest, lien or pledge on any assets, stock or other
debt of Houghton Mifflin unless:
- the security interest secures the debt securities issued under the
indenture equally and ratably with the other secured debt;
- the security interest exists at the time a corporation merges into or
consolidates with Houghton Mifflin or a subsidiary, or becomes a
subsidiary;
- the security interest exists when Houghton Mifflin or a subsidiary
acquires the property;
- Houghton Mifflin or the subsidiary creates or assumes the security
interest on a property at the time we acquire the property or within 180
days after the date we acquire the property;
- Houghton Mifflin or the subsidiary creates or assumes the security
interest to finance all or some of the cost of construction or
improvement of a property at the
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time of its construction or improvement or within 180 days after we
complete and begin operating the property commercially;
- the security interest is for the benefit of Houghton Mifflin or a
subsidiary;
- the security interest extends, renews or replaces in whole or in part a
lien permitted by one of the preceding six sections, as long as we do not
increase the dollar amount of debt secured or the property that secures
the debt; or
- the secured debt plus the total amount of all other secured debt and
Attributable Debt from Sale and Leaseback Transactions at the time does
not exceed 10% of Houghton Mifflin's consolidated stockholders' equity.
(Section 1007)
These exceptions do not apply to properties that we previously owned,
except unimproved real estate that we improve or on which we construct a
facility. The indenture also prevents our subsidiaries from incurring, assuming
or guaranteeing more than $5,000,000 of debt that is payable more than one year
from the date on which it was issued. This prohibition also applies to debt if
we can, at our option, extend the maturity date for more than one year.
CONSOLIDATION, MERGER OR SALE
We may merge into another corporation, or transfer substantially all of our
properties and assets to another person, without the consent of the holders of
any of the outstanding debt securities if the other person:
- assumes all of our obligations under the debt securities and the
indenture in writing;
- takes any action necessary to secure the debt securities equally with any
other secured debt, if our assets become subject to a security interest
as a result of the merger or other transaction;
- is organized under the laws of the United States or one of the states;
and
- immediately after the transaction no event exists that is (or would be
after notice and/or passage of time) an event of default under the
indenture.
If a merger or sale takes place, our obligations on the debt securities
would end.
EVENTS OF DEFAULT
When we use the term "event of default" under the indenture, here are some
examples of what we mean.
An event of default occurs if:
- we fail to pay the principal of any of the debt securities when it is
due;
- we fail to pay an installment of interest on any of the debt securities
within 30 days after it is due;
- we fail to deposit any sinking fund payment for any of the debt
securities when due;
- any debt of more than $10,000,000 becomes due and payable before the date
on which it was to be due and payable;
- we fail to comply with any other covenant in the debt securities and this
failure continues for 60 days after we receive written notice of it; or
- we take specific actions relating to our bankruptcy, insolvency or
reorganization.
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The form of security or the supplemental indenture for a particular series
of debt securities may include additional events of default or changes to the
events of default described above. You should refer to the prospectus supplement
for the events of default relating to a particular series of debt securities. A
default under our other indebtedness will not be a default under the indenture,
and a default under one series of debt securities will not necessarily be a
default under another series.
If an event of default for debt securities of any series occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
all of the outstanding debt securities of that series by notice to Houghton
Mifflin may require us to repay immediately the principal of and any premium and
accrued interest on all the debt securities of that series. The holders of a
majority in principal amount of all of the debt securities of that series may
rescind this accelerated payment requirement, if the rescission would not
conflict with any judgment or decree by a court and if all existing events of
default have been cured or waived.
If an event of default occurs and is continuing, the trustee may pursue any
remedy available to it to collect payment or to enforce the performance of any
provision of the debt securities or the indenture. The trustee may require the
holders of debt securities to indemnify it before it exercises any right or
power under the indenture at their request.
Subject to some exceptions, the holders of a majority in principal amount
of the debt securities may waive an existing default and its consequences.
MODIFICATION OF THE INDENTURE
Houghton Mifflin and the trustee may amend the indenture without the
consent of any holder of debt securities for a variety of reasons, including:
- to permit a successor to assume our obligations under the indenture;
- to appoint a successor trustee;
- to cure any ambiguity or inconsistency;
- to make any other change that does not significantly and adversely affect
the rights of any holder; or
- to establish the terms and conditions of any series of debt securities.
The holders of at least a majority of the principal amount of any series of
debt securities affected by an amendment may consent in writing to the
amendment, but the amendment will not affect the rights of holders of any other
series of debt securities.
Some amendments or waivers will not be effective against any holder without
the holder's consent. Some examples of these amendments and waivers are
amendments or waivers that would:
- reduce the principal amount of any debt security or reduce its interest
rate;
- change the maturity or due date of any payment of principal or interest
due on the debt security;
- reduce the amount of debt securities whose holders must consent to an
amendment or waiver;
- waive a default in the payment of the principal or any premium or
interest on any debt security; or
- make any debt security payable in currency other than that stated in the
debt security.
9
<PAGE> 13
DEFEASANCE
When we use the term defeasance, we mean discharge from some or all of
Houghton Mifflin's obligations under the indenture. The indenture lists specific
conditions that we must satisfy to discharge our obligations concerning a series
of debt securities. If we meet these conditions, we will discharge all of our
obligations related to that series of debt securities, and we will be able to
treat them as if we had fully paid all payments that the indenture and that
series of debt securities require us to make. We refer to this as "legal
defeasance." In addition, if we meet the required conditions, we may choose to
stop complying with any covenant, term, provision or condition related to the
series without creating an Event of Default. We refer to this as "covenant
defeasance."
The principal conditions for defeasance are:
- We deposit with the trustee money or government securities sufficient to
pay principal and any premium and interest on the debt securities to date
of redemption or maturity.
- We furnish to the trustee a legal opinion stating that the deposit and
related defeasance would not cause (1) the holders of the debt securities
to recognize income, gain or loss for Federal income tax purposes and (2)
the debt securities to be delisted from any U.S. or foreign securities
exchange on which they are listed. The opinion must be based on a ruling
of the Internal Revenue Service or a change in United States federal
income tax law occurring after the date of this prospectus, since this
would not be the result under current tax law.
If this happens, the holders of the debt securities of that series will not
be entitled to the benefits of the indenture except for registration of transfer
and exchange of debt securities and replacement of lost, stolen or mutilated
debt securities. These holders would only be entitled to the funds or
obligations that we deposited for payment. The indenture would continue to
require the trustee to hold these funds and obligations in trust for payment of
the debt securities, and would require us to continue to maintain an office for
payment of the debt securities.
After covenant defeasance, the funds or obligations that we deposit with
the trustee would be sufficient to pay amounts due on that series of debt
securities at maturity. If the debt securities then become due and payable
before their scheduled maturity date because an event of default occurs, the
funds and obligations we deposited may not be sufficient to pay all amounts due
at that time. However, if the event of default relates to a covenant from which
we have not been relieved, we would remain liable to make payment of the
remaining amount due at the time of acceleration.
We will describe any other provisions permitting defeasance or covenant
defeasance with respect to any series of debt securities in the prospectus
supplement for that offering.
ABOUT THE TRUSTEE
State Street Bank and Trust Company has loaned money to us and provided
other services to us in the past and may do so in the future as a part of its
regular business. State Street also acts as the trustee for some of our employee
benefit plans. Nader F. Darehshori, who is the Chairman of the Board, President
and Chief Executive Officer, and a director, of Houghton Mifflin, and Joseph A.
Baute, a director of Houghton Mifflin, are also directors of State Street.
10
<PAGE> 14
DESCRIPTION OF HOUGHTON MIFFLIN COMMON STOCK
This summary of our common stock and preferred stock is not complete and is
qualified by reference to all the provisions of our Restated Articles of
Organization, our Bylaws, our Stockholder Rights Plan (which is summarized
below) and the Massachusetts General Laws. Our Restated Articles of
Organization, Bylaws and Stockholder Rights Plan are incorporated by reference
into the Registration Statement of which this Prospectus is a part.
GENERAL
Our common stock consists of 70,000,000 authorized shares, par value $1.00
per share. As of April 30, 1999 there were 30,743,899 shares outstanding. Our
common stock trades on the New York Stock Exchange. We issue shares of our
common stock at various times in connection with our employee stock option and
incentive plans.
We may issue common stock from time to time. Our board of directors must
approve the amount of stock we sell and the price for which it is sold. Holders
of our common stock do not have any preferential rights or preemptive rights to
buy or subscribe for capital stock or other securities that we may issue.
However, each outstanding share of our common stock currently has attached to it
one preferred share purchase right issued under our Stockholder Rights Plan,
which is summarized below. Our common stock does not have any redemption or
sinking fund provisions or any conversion rights.
When we issue shares of common stock, the shares will be fully paid and
non-assessable. Under Massachusetts law, if we distribute any cash or property
to our stockholders, other than additional shares of our stock, and if we are
insolvent, or the distribution renders us insolvent, then our stockholders would
be required to pay back to us the amount of the distribution, or the portion of
the distribution that caused us to become insolvent.
VOTING
If you are a holder of our common stock, you are entitled to one vote per
share for all matters on which stockholders are entitled to vote. Our common
stock has non-cumulative voting rights. This means holders of the majority of
our shares can elect all of our directors.
DIVIDENDS
If our board of directors declares a dividend out of funds legally
available for dividends, holders of our common stock are entitled to share
equally, share for share, in those dividends whether they are payable in cash,
stock or other property. We cannot pay any common stock dividends, however,
until we have paid any accrued but unpaid preferred stock dividends. Currently,
we do not have any preferred stock outstanding.
LIQUIDATION
If we liquidate, dissolve, or wind up, whether voluntarily or
involuntarily, then you, as a holder of our common stock, would be entitled to
share proportionally in any of our assets to which common stockholders are
entitled when these events occur. Your rights, however, would rank behind those
of our creditors and behind those of any holders of our preferred stock.
11
<PAGE> 15
STOCKHOLDER RIGHTS PLAN
In 1988, our board of directors adopted a stockholder rights plan and
entered into a rights agreement with the First National Bank of Boston,
currently known as BankBoston, N.A., as rights agent. That plan expired on
December 18, 1998. In July 1997, our board of directors renewed the then
existing rights agreement and the plan by adopting a renewed rights agreement.
The terms of the renewed rights agreement are substantially similar to those of
the 1988 rights agreement. The purpose of the rights is to enhance the board of
director's ability to protect our stockholders' interests by encouraging
potential acquirors to negotiate with our board of directors prior to attempting
a takeover bid and to provide our board with leverage in negotiating on behalf
of all of our stockholders the terms of any proposed takeover. The rights may
discourage, delay or prevent hostile takeovers. They are not intended, however,
to interfere with any merger or other business combination approved by our board
of directors.
Under the 1997 plan, each of our common stockholders received a dividend of
one preferred stock purchase right for each outstanding share of our common
stock that the stockholder owned on December 18, 1988, the time of the rights
dividend. We refer to these preferred stock purchase rights as the "rights."
Each share of common stock issued after our common stockholders received the
rights dividend also receives a right. Until a right is exercised, the holder of
a right does not have any additional rights as a stockholder. These rights trade
automatically with our shares of common stock and become exercisable only under
the circumstances described below.
In general, the rights will become exercisable when the first of the
following events happens:
- ten business days, or a later date if determined by our board, after a
public announcement by us that a person or group has acquired beneficial
ownership of 20% or more of our common stock; or
- ten business days, or a later date if determined by our board, after the
beginning of a tender offer or exchange offer that would result in a
person or group beneficially owning 30% or more of our outstanding common
stock; or
- immediately after a determination by our board that a person or group
that has acquired 15% or more of our common stock is an adverse person,
which means a person likely to significantly harm our business or
prospects or a person seeking to achieve short-term personal financial
gain at our expense.
If the rights become exercisable, holders of the rights will be able to
purchase from us a unit of preferred stock equal to one ten-thousandth of a
share of our Series A Junior Participating Preferred Stock at a price of $125
per unit, subject to adjustment.
In the event that:
- a person or group becomes the beneficial owner of 30% or more of our
common stock;
- a person or group is declared by our board to be an adverse person;
- we are the survivor of a merger or other business combination with a
person or group beneficially owning 20% or more of our common stock in
which our common stock is not changed or exchanged;
- a person or group which has acquired beneficial ownership of 20% or more
of our common stock and engages in a self-dealing transaction; or
- the ownership interest of a person or group, beneficially owning 20% or
more of our common stock increases by more than 1%
12
<PAGE> 16
then each holder of a right, upon exercise of that right, will be entitled to
receive common stock having a market value equal to two times the exercise price
of the right. However, all rights owned by any person or groups triggering the
event shall be void.
We refer to these occurrences as a "flip-in events." A flip-in event does
not occur if there is an offer for all of our outstanding shares of common stock
that our board believes is fair to our stockholders and is in Houghton Mifflin's
best interest.
In addition, if at any time following the public announcement that a person
or group has acquired beneficial ownership of 20% or more of our common stock:
- we enter into a merger or other business combination transaction in which
we are not the surviving entity;
- we enter into a merger or other business combination transaction in which
all or part of our common stock is exchanged; or
- we sell or transfer 50% or more of our assets or earning power
then each holder of a right, other than rights held by the person or group who
triggered the flip-in event, will be entitled to receive, upon exercise, common
stock of the acquiring company equal to two times the purchase price of the
right.
We may redeem the rights at $.01 per right at any time before the date that
is ten days after 20% or more of our outstanding common stock is acquired by any
person or group. We may extend this redemption period at any time while the
rights are still redeemable. The rights will expire at the close of business on
July 30, 2007 unless we redeem them before that date.
The above description of our Stockholder Rights Plan is not intended to be
a complete description. For a full description of the Stockholder Rights Plan,
you should read both the existing rights agreement and the renewed rights
agreement. A copy of the Renewed Rights Agreement was included as an exhibit to
our Form 10-Q dated August 12, 1997. You may obtain a copy of these agreements
at no charge by writing to us at the address listed on page 1.
LISTING
Our common stock is listed on the New York Stock Exchange.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is Boston EquiServe,
L.P.
HOW WE PLAN TO SELL THE SECURITIES
We may sell the securities in any one or more of the following ways: (1)
directly to investors, (2) to investors through agents, (3) to dealers, (4)
through underwriting syndicates led by one or more managing underwriters, or (5)
through one or more underwriters acting alone.
If we use underwriters in the sale, their obligations to purchase the
securities are subject to specified conditions. The underwriters will be
obligated to purchase all the securities offered, if they purchase any. The
underwriters will purchase the securities for their own account. The
underwriters may resell the securities in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The underwriters may at any time change the
initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers.
13
<PAGE> 17
We may use agents in the sale of securities. Unless indicated in the
prospectus supplement, the agent will be acting on a best efforts basis for the
period of its appointment.
If we use a dealer in the sale of the securities, we will sell the
securities to the dealer as principal. The dealer may then resell the securities
to the public at varying prices it determines at the time of resale.
We may also sell the securities in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by a remarketing firm acting as principals for their own accounts
or as our agents. Remarketing firms may be deemed to be underwriters in
connection with the securities they remarket.
We may authorize underwriters, dealers or agents to solicit offers to
purchase the securities under a delayed delivery contract providing for payment
and delivery at a future date. These contracts would include the following
terms:
- the contracts would provide for purchase of the securities at the public
offering price but at a specified later date;
- the purchase of the securities at the closing of the contracts would be
conditioned only on the purchase being permissible under laws applicable
to the purchasing institution;
- the contracts and purchasing institutions would be subject to our
approval; and
- we would pay disclosed commissions to underwriters, dealers or agents if
we accept any contract.
We will identify any underwriters, dealers or agents and describe their
compensation, including any discounts or commissions, in a prospectus
supplement. Underwriters, dealers and agents that participate in the
distribution of the offered securities may be underwriters as defined in the
Securities Act of 1933. Any discounts or commissions received by them from us
and any profit on the resale of the securities by them may be treated as
underwriting discounts and commissions.
We may have agreements with the underwriters, dealers and agents to
indemnify them against some civil liabilities, including liabilities under the
Securities Act of 1933. We may also have agreements to contribute with respect
to payments which the underwriters, dealers or agents may be required to make.
Underwriters, dealers or agents may engage in transactions with, or perform
services for, us in the ordinary course of their business.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
LEGAL OPINIONS
The validity of the securities we are offering will be passed upon for us
by Goodwin, Procter & Hoar LLP, Boston, Massachusetts.
14
<PAGE> 18
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:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 52,800
Printing and Engraving Fees................................. 5,000
Legal Fees and Expenses..................................... 25,000
Accounting Fees and Expenses................................ 10,000
Rating Agencies Fees........................................ 105,000
Blue Sky Fees and Expenses.................................. 1,000
Trustees and Registrar Fees and Expenses.................... 0
Miscellaneous............................................... 1,000
--------
Total..................................................... $199,800
========
</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 the MBCL, the Company has purchased directors' and
officers' liability insurance, which insures against certain liabilities
incurred in connection with the performance of their duties.
II-1
<PAGE> 19
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- ------ -----------
<C> <C> <S>
1 -- Form of Underwriting Agreement*
4.1 -- Indenture dated as of March 15, 1994 between Houghton
Mifflin Company and State Street Bank and Trust Company, as
successor trustee to The First National Bank of Boston**
4.2 -- First Supplemental Indenture dated as of July 27, 1995
between the Company and State Street Bank and Trust Company,
as successor trustee to The First National Bank of Boston*
4.3 -- Form of Debt Securities (included in Exhibit 4.1)
5 -- Opinion of Goodwin, Procter & Hoar LLP regarding legality of
securities being registered
12 -- Calculation of Ratios of Earnings to Fixed Charges***
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5)
24 -- Power of Attorney
25 -- Statement of Eligibility and Qualification of Trustee on
Form T- I*
</TABLE>
- -------------------------
* Previously filed as an exhibit to the registrant's registration statement on
Form S-3 (file no. 33-64903) and incorporated herein by reference.
** Previously filed as an exhibit to the registrant's registration statement on
Form S-3 (file no. 33-51700) and incorporated herein by reference.
*** Previously filed as an exhibit to the registrant's annual report on Form
10-K for the year ended December 31, 1998, as amended by Form 10-K/A (file
no. 1-5406) and incorporated herein by reference.
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 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.
(2) That, for the purpose of deleting 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; and
(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 of 1933, each of the registrant's
annual report pursuant to Section 13(a) or 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
II-2
<PAGE> 20
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to securityholders that is
incorporated by reference in the prospectus and pursuant to and meeting
the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required
to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide
such interim financial information.
(d) 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 provisions described under
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 of 1933 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 of 1933
and will be governed by the final adjudication of such issue.
(e) 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 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.
(f) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
<PAGE> 21
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, the Commonwealth of Massachusetts, on May 7,
1999.
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
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/ NADER F. DAREHSHORI Chairman of the Board, President, May 7, 1999
- ---------------------------------- Chief Executive Officer and
Nader F. Darehshori Director (principal executive
officer)
/s/ GAIL DEEGAN Executive Vice President and Chief May 7, 1999
- ---------------------------------- Financial Officer (principal
Gail Deegan financial officer)
/s/ DAVID R. CARON Vice President and Controller May 7, 1999
- ---------------------------------- (principal accounting officer)
David R. Caron
* Director May 7, 1999
- ----------------------------------
Joseph A. Baute
* Director May 7, 1999
- ----------------------------------
James O. Freedman
* Director May 7, 1999
- ----------------------------------
Michael Goldstein
* Director May 7, 1999
- ----------------------------------
Gail H. Klapper
Director
- ----------------------------------
Charles R. Longsworth
* Director May 7, 1999
- ----------------------------------
Claudine B. Malone
</TABLE>
II-4
<PAGE> 22
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
* Director May 7, 1999
- ----------------------------------
Alfred L. McDougal
* Director May 7, 1999
- ----------------------------------
Ralph Z. Sorenson
* Director May 7, 1999
- ----------------------------------
Robert J. Tarr, Jr.
</TABLE>
Paul D. Weaver, Senior Vice President and General Counsel of the
registrant, signs this document as attorney-in-fact on behalf of the above-named
directors pursuant to powers of attorney duly executed by such directors and
filed with the Securities and Exchange Commission contemporaneously herewith.
<TABLE>
<S> <C> <C>
*By: /s/ PAUL D. WEAVER May 7, 1999
-----------------------------
Paul D. Weaver
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 23
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- ------ -----------
<C> <C> <S>
1 -- Form of Underwriting Agreement*
4.1 -- Indenture dated as of March 15, 1994 between Houghton
Mifflin Company and State Street Bank and Trust Company, as
successor trustee to The First National Bank of Boston**
4.2 -- First Supplemental Indenture dated as of July 27, 1995
between the Company and State Street Bank and Trust Company,
as successor trustee to The First National Bank of Boston*
4.3 -- Form of Debt Securities (included in Exhibit 4.1)
5 -- Opinion of Goodwin, Procter & Hoar LLP regarding legality of
securities being registered
12 -- Calculation of Ratios of Earnings to Fixed Charges***
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5)
24 -- Power of Attorney
25 -- Statement of Eligibility and Qualification of Trustee on
Form T- I*
</TABLE>
- -------------------------
* Previously filed as an exhibit to the registrant's registration statement on
Form S-3 (file no. 33-64903) and incorporated herein by reference.
** Previously filed as an exhibit to the registrant's registration statement on
Form S-3 (file no. 33-51700)) and incorporated herein by reference.
*** Previously filed as an exhibit to the registrant's annual report on Form
10-K for the year ended December 31, 1998, as amended by Form 10-K/A (file
no. 1-5406) and incorporated herein by reference.
II-6
<PAGE> 1
EXHIBIT 5
May 7, 1999
Houghton Mifflin Company
222 Berkeley Street
Boston, MA 02116
Re: Legality of Securities to be Registered
under Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Houghton Mifflin
Company, a Massachusetts corporation (the "Company"), in connection with the
Company's registration statement on Form S-3 (the "Registration Statement")
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, which relates to the sale from time to time of an
indeterminate amount of debt securities ("Debt Securities") and shares of common
stock, par value $1.00 per share (together with the associated rights (the
"Rights") to purchase shares of Series A Junior Participating Cumulative
Preferred Stock, par value $.01 per share, which are attached to all shares of
Common Stock (the "Common Stock"), and or any combination of Debt Securities and
Common Stock (collectively, the "Securities"), having a maximum aggregate public
offering price of $200,000,000. The Registration Statement provides that the
Securities may be offered separately or together, in separate series, in
amounts, at prices and on terms to be set forth in one or more prospectus
supplements (each a "Prospectus Supplement") to the prospectus contained in the
Registration Statement.
We have examined the charter of the Company, as amended and on file with
the Secretary of State of the Commonwealth of Massachusetts, the bylaws of the
Company, as amended, such records of corporate proceedings of the Company as we
have deemed appropriate for the purposes of this opinion, the Registration
Statement and the exhibits thereto. This opinion is limited the the laws of the
United States of America and the Commonwealth of Massachusetts.
Based upon the foregoing, we are of the opinion that (i) when the
Securities are specifically authorized for issuance by the Company's Board of
Directors or an authorized committee thereof (the "Authorizing Resolution"),
(ii) upon receipt by the Company of the full consideration therefor as provided
in the Authorizing Resolution and (iii) upon the issuance of the Securities as
described in the Registration Statement and a Prospectus Supplement that is
consistent with the Authorizing Resolution, the Securities will be legally
issued, fully paid and nonassessable.
We hereby consent to being named as counsel to the Company in the
Registration Statement, to the references therein to our firm under the caption
"Legal Matters" and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Houghton Mifflin
Company for the registration of $200,000,000 of securities and to the
incorporation by reference therein of our report dated January 26, 1999, except
for the third paragraph of Note 14, as to which the date is February 28, 1999,
with respect to the consolidated financial statements and schedule of Houghton
Mifflin Company included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
May 3, 1999
<PAGE> 1
EXHIBIT 24
DIRECTORS OF HOUGHTON MIFFLIN COMPANY
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Directors of Houghton Mifflin Company, a Massachusetts
corporation (the "Corporation"), hereby constitute and appoint Nader F.
Darehshori, Gail Deegan and Paul D. Weaver, and each of them acting singly, with
full power of substitution and resubstitution, as attorneys or attorney to sign
for us and in our names, in the capacities indicated below, under the Securities
Act of 1933, as amended, a Registration Statement on Form S-3 relating to the
registration of securities and any and all amendments and exhibits thereto,
including post-effective amendments or supplements and registration statements
to increase the amount of securities registered for offering and sale filed
pursuant to Rule 462(b), and any and all applications or other documents to be
filed with the Securities and Exchange Commission pertaining thereto, with full
power and authority to do and perform any and all acts and things whatsoever
required and necessary to be done in the premises, as fully to all intents and
purposes as we could do if personally present, hereby ratifying and approving
the acts of said attorneys, and any of them, and any such substitute.
EXECUTED this 28th day of April, 1999.
/s/ NADER F. DAREHSHORI
- --------------------------------------
Nader F. Darehshori
/s/ JOSEPH A. BAUTE
- --------------------------------------
Joseph A. Baute
/s/ JAMES O. FREEDMAN
- --------------------------------------
James O. Freedman
/s/ MICHAEL GOLDSTEIN
- --------------------------------------
Michael Goldstein
/s/ GAIL H. KLAPPER
- --------------------------------------
Gail H. Klapper
- --------------------------------------
Charles R. Longsworth
/s/ CLAUDINE B. MALONE
- --------------------------------------
Claudine B. Malone
/s/ ALFRED L. MCDOUGAL
- --------------------------------------
Alfred L. McDougal
<PAGE> 2
/s/ RALPH Z. SORENSON
- --------------------------------------
Ralph Z. Sorenson
/s/ ROBERT J. TARR, JR.
- --------------------------------------
Robert J. Tarr, Jr.
