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HOUGHTON MIFFLIN COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
To the Representatives of the
Underwriters engaged in the
sales of the Securities
referenced herein
Ladies and Gentlemen:
Houghton Mifflin Company, a Massachusetts corporation (the
"Company"), proposes to issue and sell to the underwriters specified in the
Terms Agreement referred to in Section 1 hereof (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"), certain of the debt
securities registered under the Registration Statement (as defined below) as set
forth in such Registration Statement (the "Registered Securities"), to be issued
under the Indenture dated as of March 15, 1994, as supplemented by the First
Supplemental Indenture dated as of July 27, 1995 (the "Indenture"), each between
the Company and State Street Bank and Trust Company (the "Trustee"), as
successor Trustee to The First National Bank of Boston, in one or more series,
which series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any particular series of
the Securities being determined at the time of sale. Particular series of the
Registered Securities will be sold pursuant to a Terms
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Agreement, for resale in accordance with terms of offering determined at the
time of sale. The Registered Securities involved in any such offering are
identified in the Terms Agreement with respect thereto and are hereinafter
referred to as the "Securities." The Company shall have no obligation to issue
or sell any of the Registered Securities until and unless a Terms Agreement is
executed and delivered by the Company with respect to the Securities.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Annex I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. Such
registration statement, as amended to the time of any Terms Agreement referred
to in Section 1, is hereinafter referred to as the "Registration Statement" and
the related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented as contemplated by Section 1
to reflect the terms of the Securities and the terms of offering thereof in the
form first used to confirm sales of the Securities is hereinafter referred to
as the "Prospectus". Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any prelim-
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inary prospectus or the Prospectus shall be deemed to refer to and include any
documents filed under the Exchange Act after the date of this Agreement, or the
date of the Basic Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference therein.
The Company and the Representatives hereby agree as follows:
1. Purchase of Securities. The obligation of the Underwriters
to purchase the Securities will be evidenced by an exchange of telegraphic or
other written communication which is substantially in the form set forth in
Annex I ("Terms Agreement") at the time the Company determines to sell the
Securities. The Terms Agreement will incorporate by reference the provisions of
this Agreement, except as otherwise provided therein, and will specify the firm
or firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Securities not already specified
in the Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time and
date of delivery and payment (such time and date, or such other time not later
than four full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of the offering that should be reflected in the
prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered to
the Underwriters on the Closing Date may be represented by one or more permanent
global Securities in definitive form (the "Global Securities") to be deposited
with The Depository Trust Company ("DTC") or may be in definitive, fully
registered form, in such denominations and registered in such names as the
Underwriters may request.
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If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto, with such changes
therein as the Company may authorize or approve ("Delayed Delivery Contracts").
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date,
the Company will pay, as compensation, to the Representatives for the accounts
of the Underwriters, the fee set forth in such Terms Agreement in respect of
the principal amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the principal amount
of Contract Securities.
2. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Underwriter that:
(a) The Registration Statement including the
Prospectus has been filed with the Commission and has been declared
effective under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission.
(b) On the effective date of the Registration
Statement, each of the Xxxxxxxx-
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tion Statement and the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto)
conformed in all material respects to the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively,
the "Trust Indenture Act", and did not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in
Section 1 and the Closing thereunder, the Registration Statement and
the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) will conform in all
material respects to the requirements of the Securities Act and the
Trust Indenture Act, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to
(i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee and (ii) statements in or omissions from
any of such documents based upon written information furnished to the
Company by any Underwriter through the Representatives specifically
for use therein.
(c) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation with full corporate power and corporate authority to
own, lease and operate their respective properties and conduct their
respective businesses as described in the Registration Statement;
and the Company and each of its subsidiaries are duly qualified to
do business as foreign corporations and are in good standing in each
juris-
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diction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition (financial or
otherwise), earnings, prospects or results of operations or business
of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect").
(d) The documents incorporated by reference in the
Registration Statement or the Prospectus, when they became effective
or when they were filed with the Commission, as the case may be,
under the Exchange Act, conformed, and any documents so filed and
incorporated before the Closing Date will, when they are filed with
the Commission, conform, in all material respects to the requirements
of the Securities Act and the Exchange Act, as applicable, and none
of such documents contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(e) The Securities conform in all material respects to
the statements relating thereto contained in the Registration
Statement and the Prospectus (and such statements correctly state
the substance of the instruments defining the obligations of the
Company in all material respects).
(f) The financial statements, and the related notes and
schedules thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the
periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent
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basis except, in the case of interim unaudited financial statements,
for normal recurring year-end adjustments, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein; and the pro forma financial information, and the related
notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus have been prepared in all
material respects in accordance with the applicable requirements of
the Securities Act and the Exchange Act, as applicable.
(g) The Indenture has been duly authorized, executed
and delivered by the Company and the Securities to be purchased from
the Company hereunder have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement; the Indenture has been
duly qualified under the Trust Indenture Act; and the Indenture
constitutes and the Securities (when they are duly executed,
authenticated and issued as contemplated hereby and by the Indenture
and delivered against payment therefor in accordance with the terms of
this Agreement) will constitute valid and legally binding obligations
of the Company enforceable in accordance with their respective terms
subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting creditors'
rights generally or by general equitable principles.
(h) Except as set forth in the Prospectus, there is no
pending or, to the Company's knowledge, threatened action, suit, claim
or proceeding by or before any court or governmental agency, authority
or body or otherwise against the Company or any of its subsidiaries
or any of their respective officers or any of their respective
properties, assets or rights which would or could reasonably be
expected to have a Material Adverse Effect or prevent consummation of
the transactions contemplated herein.
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(i) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
or the execution, delivery and performance of this Agreement and the
Indenture in connection with the issuance or sale of the Securities
by the Company or the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under
the Securities Act, the Exchange Act, the Trust Indenture Act or under
state or other securities or Blue Sky laws, rules and regulations.
(j) The Company has full legal right, corporate power
and corporate authority to enter into this Agreement and the Terms
Agreement and perform the transactions contemplated hereby and
thereby; this Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company and are valid
and binding agreements of the Company, enforceable against the Company
in accordance with their respective terms, except as the
indemnification and contribution provisions hereunder and thereunder
may be limited by applicable law and except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws relating to
or affecting creditors' rights generally or by general equitable
principles.
(k) The execution, delivery and performance of this
Agreement, the Terms Agreement and the Indenture by the Company and
the consummation of the transactions herein and therein
contemplated, including without limitation the issuance and sale of
the Securities, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) the
charter or by-laws of the Company or any subsidiary; (ii) any material
indenture, mortgage, deed of trust, loan agreement, bond, debenture,
note or other evidence of indebtedness or any material lease, contract
or other agreement or instrument to which the Company or any
subsidiary is a party
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or by which it or any such subsidiary or any of their respective
properties may be bound; or (iii) any law or any order, rule or
regulation of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary or over the
properties of the Company or any such subsidiary.
(l) Except as described in the Prospectus, there are
no contracts, agreements or understandings between the Company and
any person granting such person any preemptive right, co-sale right,
right of first refusal or right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(m) Ernst & Young LLP ("Ernst & Young") (who have
audited the financial statements, together with the related
schedules and notes, of the Company filed with the Commission as a
part of the Registration Statement, some of which are included
in the Prospectus) are, to the best of the Company's knowledge,
independent accountants within the meaning of the Securities Act;
the audited financial statements of the Company, together with
the related schedules and notes, forming part of the Registration
Statement and the Prospectus, fairly present the financial position
and the results of operations of the Company at the respective
dates and for the respective periods to which they apply; all audited
financial statements of the Company, together with the related
schedules and notes, and all interim unaudited financial information
of the Company filed with the Commission as part of the Registration
Statement have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as may be otherwise stated
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therein; the selected and summary financial data included in the
Registration Statement present fairly the information shown therein
and have been compiled on a basis substantially consistent with
the financial statements presented therein; and no other financial
statements or schedules or notes are required to be included in the
Registration Statement.
(n) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been or occurred (i) any change, nor any
development or event involving a prospective material adverse
change in the business, property or assets described or referred to
in the Registration Statement, or the condition (financial or
otherwise), earnings, prospects or results of operations or business
of the Company which could have a Material Adverse Effect, (ii) any
transaction which is material to the Company and its subsidiaries
taken as a whole, except transactions in the ordinary course of
business, (iii) any obligation, direct or contingent, incurred by the
Company which is material to the Company and its subsidiaries taken
as a whole, except obligations incurred in the ordinary course of
business, (iv) any change in the capital stock or outstanding
indebtedness of the Company which is material to the Company and
its subsidiaries taken as a whole or (v) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company.
(o) Neither the Company nor any of its subsidiaries
(i) is in violation of their respective charter or by-laws, (ii) is
in default, and no event has occurred which, with notice or lapse
of time or both, would constitute a breach or default, in the due
performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which they are parties or by which they are
bound or to which any of their respective properties or assets are
sub-
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ject or (ii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which they or their respective
property or assets may be subject or have failed to obtain, comply
with or maintain the effectiveness of any license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of their respective property or
to the conduct of their respective businesses except, in the case
of clauses (ii) and (iii), for those defaults, violations or
failures which, either individually or in the aggregate, would not
or could not reasonably be expected to have a Material Adverse
Effect.
(p) The Company is not, and after giving effect
to the offering and sale of the Securities and the application of
the proceeds as described in the Prospectus, will not be required
to be, registered as an "investment company" as such term is
defined under the Investment Company Act of 1940, as amended.
(q) The Company and its subsidiaries own or
possess adequate rights to use all material trademarks, service
marks, trade names and copyrights described or referred to in the
Prospectus as owned or used by it or which are necessary for the
conduct of its business as described in the Prospectus; the
Company has not received any notice of infringement of or conflict
with asserted rights of others with respect to any patents, patent
rights, inventions, trade secrets, know-how, trademarks, service
marks, trade names or copyrights which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(r) The Company will comply with all agreements
on its part to be complied with, and use all reasonable efforts to
satisfy all conditions on its part to be satisfied, pursuant to
this Agreement on or prior to the Closing Date, as the case may
be.
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(s) As of the date hereof, the Company is in
compliance with all provisions of Section 1 of the Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and if the Company commences engaging in
business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba
changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a
form acceptable to the Department.
3. Certain Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to each Representative and to
Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel for the Underwriters, one signed
copy of the Registration Statement, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with
the Commission pursuant to and in accordance with Rule
424(b)(2)(or, if applicable and if consented to by the
Representatives, subparagraph (5)) not later than the second
business day following the execution and delivery of the Terms
Agreement. The Company will advise the Representatives promptly of
any such filing pursuant to Rule 424(b).
(b) Prior to the completion of the distribution
of the Securities, the Company will (i) advise the Representatives
promptly of any proposal to amend or supplement the Registration
Statement or the Prospectus; (ii) afford the Representatives a
reasonable opportunity to comment on any such proposed amendment
or supplement; (iii) not effect such amendment or sup-
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plementation (other than any document required to be filed under
the Exchange Act which, upon filing, is deemed to be incorporated
by reference therein) without the consent of the Representatives,
which shall not be unreasonably withheld; and (iv) advise the
Representatives promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at any time when a prospectus relating
to the Securities is required to be delivered under the Securities
Act in connection with sales by any Representative, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Securities Act prior
to the completion of the distribution of the Securities, the
Company promptly will notify the Representatives and will prepare
and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will
effect such compliance. Neither the Representatives' consent to,
nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 5.
(d) As soon as practicable, but not later than
16 months, after the date of each Terms Agreement, the Company
will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after
the latest to occur of (i) the effective date of the Registration
Statement, (ii) the effective date of the most
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recent post-effective amendment to the Registration Statement to
become effective prior to the date of such Terms Agreement and
(iii) the date of the Company's most recent Annual Report on Form
10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of
the Securities Act.
(e) The Company will furnish to the
Representatives copies of the Registration Statement, including
all exhibits, any related preliminary prospectus, any related
preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the
qualification of the Securities for sale and the determination of
their eligibility for investment under the laws of such
jurisdictions as the Representatives designate and will continue
such qualifications in effect so long as required for the
distribution; provided, however, that nothing herein shall require
the Company to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject
it to general service of process in any jurisdiction where it is
not now so subject. In each jurisdiction in which the Securities
shall have been qualified as above provided, the Company will make
and file such statements and reports in each year as are or may be
reasonably required by the laws of such jurisdiction.
(g) During the period of five years after the
date of any Terms Agreement, the Company will, upon request,
furnish to the Representatives and to each of the other
Underwriters, if any, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such
year; and the Company will, upon request, furnish to the
Representatives (i) as soon as available, a copy of each report or
definitive proxy state-
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ment of the Company filed with the Commission under the Exchange
Act, any securities exchange or the National Association of
Securities Dealers, Inc. or mailed to stockholders, and (ii) from
time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company will pay all expenses incident
to the performance of its obligations under this Agreement and
will reimburse the Underwriters for any expenses (including
reasonable fees and disbursements of counsel) incurred by them in
connection with qualification of the Securities for sale and
determination of their eligibility for investment under the laws
of such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Securities and
for expenses incurred in distributing the Prospectus, any
preliminary prospectuses and any preliminary prospectus
supplements to Underwriters.
(i) For the period beginning at the time of
execution of any Terms Agreement to and including the business day
following the Closing Date, without the prior consent of the
Representatives, the Company will not offer, sell, contract to
sell, publicly announce its intention to sell or otherwise dispose
of any United States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one
year from the date of issue.
(j) The Company will deliver to the
Representatives at the address specified in Section 9 at or prior
to the Closing Date a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof).
4. Book-entry settlement. If the Terms Agreement specifies
"Book-Entry Only" settlement or
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otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Securities in the form of
one or more Global Securities deposited with the Trustee as custodian for DTC
and registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form through DTC,
except in the limited circumstances provided in the Indenture. Payment for the
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated to
the Representatives by the Company at a bank acceptable to the Representatives,
in each case drawn to the order of the Company at the place of payment specified
in the Terms Agreement on the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Securities.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms
Agreement, the Representatives shall have received letters, dated
the date of delivery thereof, of Ernst & Young confirming that
they are independent public accountants within the meaning of the
Securities Act and stating in effect that:
(i) in their opinion the financial
statements and schedules examined by them and included
in the Registration Statement or incorporated by
reference therein comply in form in all material
respects with the applicable accounting requirements of
the Securities Act;
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(ii) on the basis of a reading of the
latest available interim financial statements of the
Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and
other specified procedures, nothing came to their
attention that caused them to believe that:
(A) at the date of the latest available balance sheet
read by Ernst & Young, or at a subsequent specified
date not more than five days prior to the date of
this Agreement, there was any change in the capital
stock or any increase in short-term indebtedness or
long-term debt of the Company or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(B) for the period from the closing date of the
latest income statement included in the Prospectus to
the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with the corresponding period
of the previous year, in the total amount of net
income;
except in all cases set forth in clauses (A) and (B)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which
are described in such letter; and
(iii) they have compared specified
dollar amounts (or percentages derived from such dollar
amounts) and other financial information contained in
the Registration Statement or incorporated by reference
therein (in each case to the extent that such dollar
amounts, per-
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centages and other financial information are derived
from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from
such records by analysis or computation) with the
results obtained from inquiries, a reading of such
general accounting records and other procedures
specified in such letter and have found such dollar
amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
(b) The Prospectus shall have been filed with
the Commission in accordance with the Securities Act and Section
2(a) of this Agreement. No stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or any Underwriter,
shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms
Agreement, there shall not have occurred: (i) any materially
adverse change, or any development involving a prospective
materially adverse change, in the condition (financial or
otherwise), earnings, prospects or results of operations or
business of the Company and its subsidiaries taken as a whole
which, in the judgment of the Representatives, materially impairs
the investment quality of the Securities or the Registered
Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating
of any debt securities of the Company (other than an announcement
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with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by
federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment
for the Securities.
(d) The Representatives shall have received an
opinion, dated the Closing Date, of Xxxxxxx, Procter & Xxxx,
counsel for the Company, to the effect that:
(i) The Indenture has been duly
authorized, executed and delivered by the Company and
has been duly qualified under the Trust Indenture Act;
the Securities have been duly authorized by the Company;
the Securities other than any Contract Securities have
been duly executed, authenticated, issued and delivered
by the Company; the Indenture and the Securities other
than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery
Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent
19
20
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity principles; and
the Securities other than any Contract Securities
conform, and any Contract Securities, when so issued and
delivered and sold, will conform, to the description
thereof contained in the Prospectus (and to the extent
such statements purport to summarize provisions of the
statutes and instruments referred to therein, fairly
summarize such provisions in all material respects);
(ii) No consent, approval,
authorization or order of, or filing with, any
governmental agency or body or any court is required for
the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of
the Securities by the Company, except such as have been
obtained and made under the Securities Act and the Trust
Indenture Act and such as may be required under state
securities or Blue Sky laws, rules or regulations;
(iii ) The Company has full legal
right, corporate power and corporate authority to enter
into the Terms Agreement (including the provisions of
this Agreement) and perform the transactions
contemplated thereby; and each of the Terms Agreement
(including the provisions of this Agreement) and any
Delayed Delivery Contract has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company;
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21
(iv) The execution,
delivery and performance of the Indenture, the Terms
Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and
the issuance and sale of the Securities and
compliance with the terms and provisions thereof
will not result in a breach or violation of any of
the terms and provisions of, or constitute a default
under: (A) the charter or by-laws of the Company or
any subsidiary; (B) any indenture, mortgage, deed of
trust, loan agreement, bond, debenture, note or
other evidence of indebtedness or any material
lease, contract or other agreement or instrument to
which the Company or any subsidiary is a party or by
which the Company or any such subsidiary may be
bound filed by the Company under the Securities Act
or the Exchange Act; (C) any law or rule or
regulation of any governmental agency or body having
jurisdiction over the Company or any subsidiary or
over the properties of the Company or any such
subsidiary; or (D) to the knowledge of such counsel,
any order of any court having jurisdiction over the
Company or any subsidiary or over the properties of
the Company or any such subsidiary; and
(v) The Registration
Statement has become effective under the Securities
Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified
therein, and, to the best knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have
been instituted or are
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22
pending or contemplated under the Securities Act,
and the registration statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the
date of the Terms Agreement, and any amendment or
supplement thereto, as of its date, complied as to
form in all material respects with the requirements
of the Securities Act and the Trust Indenture Act
(except that such counsel need express no opinion as
to the Statement of Eligibility and Qualification
under the Trust Indenture Act on Form T-1 of the
Trustee (the "T-1"); and the descriptions, if any,
in the Registration Statement and the Prospectus of
the charter and by-laws of the Company, statutes,
legal and governmental proceedings and contracts and
other documents are accurate and fairly present the
information required to be shown).
In addition, such counsel shall state that such counsel has no reason
to believe that such registration statement, as of its effective date, the
Registration Statement or the Prospectus, as of the date of the Terms Agreement,
or any such amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading;
the descriptions in the Registration Statement and Prospectus of statutes, legal
and governmental proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any
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23
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration Statement or
the Prospectus or as to the T-1. In rendering such opinion, such counsel may
rely as to the materiality of agreements and other factual matters on one or
more written certificates of officers of the Company or public officials as and
to the extent they deem such reliance appropriate.
(e) The Representatives shall have received an
opinion, dated the Closing Date, of Xxxx X. Xxxxxx, Senior Vice
President and General Counsel of the Company, to the effect that:
(i) The Company and each
of its Subsidiaries have been duly incorporated, are
validly existing and are in good standing under the
laws of their respective jurisdictions of
incorporation, with corporate power and authority to
own their properties and conduct their business as
described in the Prospectus; and
(ii) The Company and the
Subsidiaries are duly qualified to do business as
foreign corporations in good standing in all other
jurisdictions in which they own or lease substantial
properties or in which the conduct of their business
requires such qualification, except where the
failure to so qualify would not have a material
adverse effect on the Company and its Subsidiaries
taken as a whole.
(f) The Representatives shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
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24
respect to the incorporation of the Company and the subsidiaries
listed on exhibit 21 of the Company's most recent annual report on
Form 10-K, the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as they may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters. In rendering such opinion, Skadden, Arps,
Slate, Xxxxxxx & Xxxx may rely as to the incorporation of the
Company and all other matters governed by Massachusetts law upon
the opinions of Xxxxxxx, Procter & Xxxx and Xxxx X. Xxxxxx
referred to above.
(g) The Representatives shall have received a
certificate, dated the Closing Date, of the President or any
Vice-President and a principal financial or accounting officer of
the Company in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement
are true and correct as if made on and as of such Closing Date,
that the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in
the Prospectus, there has not occurred any materially adverse
change, or any development involving a prospective materially
adverse change, in the condition (financial or otherwise),
earnings, prospects or results of operations or business of the
Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(h) The Representatives shall have received a
letter, dated the Closing Date, of
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25
Ernst & Young which meets the requirements of Section 5(a) hereof,
except that the specified date referred to in Section 5(a) will be
a date not more than four days prior to the Closing Date for
purposes of this Section 5(h).
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and contribution.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case (i) to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein or (ii) if (A) any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
of such documents, (B) such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in any
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26
amendment or supplement to the Registration Statement or the
Prospectus, (C) the Company shall have performed each of its
obligations under Section 3 hereof in respect of such amendment or
supplement and (D) such Underwriter, having been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, thereafter fails to deliver such amended or supplemented
Prospectus prior to or concurrently with the sale of Securities to the
person asserting such loss, claim, damage or liability who purchased
such Securities from such Underwriter.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under
the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the
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27
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above
except to the extent the indemnifying party is actually prejudiced by
such failure to give notice. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, which consent
shall not be unreasonably withheld, be counsel to the indemnifying
party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section 6(c) for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
contrary or (ii) the named parties in any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and the indemnified party is advised by counsel that
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, which consent shall not be unreasonably
withheld, but if settled with such consent or if there be a final
judgment for the plaintiff,
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28
the indemnifying party agrees to indemnify any indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this Section 6(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this Section 6(d). Notwith-
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29
standing the provisions of this Section 6(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
Section 6(d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Securities
Act; and the obligations of the Underwriters under this Section shall
be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Securities Act.
(f) The parties to this Agreement hereby acknowledge that they
are sophisticated business persons who were represented by counsel
during the negotiations regarding the provisions hereof, including
without limitation the provisions of this Section 6, and are fully
informed regarding said provisions. They further acknowledge that the
provisions of this Section 6 fairly allocate the risks in light of the
ability of the parties to investigate the Company and its business in
order to assure that adequate disclosure is made in the Registration
Statement and Prospectus as required by the Securities Act. The parties
are advised that federal or state public policy, as interpreted by the
courts in certain jurisdictions, may be contrary
29
30
to certain of the provisions of this Section 6, and the parties hereto
hereby expressly waive and relinquish any right or ability to assert
such public policy as a defense to a claim under this Section 6 and
further agree not to attempt to assert any such defense.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwrit- ers' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will
not apply if the Terms Agreement specifies that such obligations and agreements
will not apply.
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31
8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 3 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 5(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
9. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to them at their addresses specified in the applicable
Terms Agreement or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Xxxx X. Xxxxxx, General Counsel.
10. Successors. This Agreement will inure to the benefit
of and be binding upon the Company and such Underwriters as are identified in
Terms Agreements and their respective successors and the officers and directors
and controlling persons referred to in Section 6, and no other person will have
any right or obligation hereunder.
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32
11. Applicable Law. This Agreement and the Terms
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.
Very truly yours,
HOUGHTON MIFFLIN COMPANY
By: *
----------------------
Name:
Title:
--------------------
* This document will be deemed to be executed and delivered by Houghton
Mifflin Company only when the Terms Agreement, which relates to the
Securities and which incorporates the provisions hereof is executed and
delivered by Houghton Mifflin Company.
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33
HOUGHTON MIFFLIN COMPANY
("Company")
/ /% Notes Due / /
TERMS AGREEMENT
/ /
HOUGHTON MIFFLIN COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Treasurer
Ladies and Gentlemen:
We hereby offer to purchase, on and subject to the terms and conditions
of the Underwriting Agreement being filed as an exhibit to the Company's Report
on Form 8-K and incorporated by reference into the registration statement on
Form S-3 (No. 33-/ /)("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Title: / /% Notes Due / /
Principal Amount: $/ /
Interest: / /% per annum, from / /, payable semiannually on / /
and / /, commencing / / to holders of record on the preceding / / or
/ / as the case may be.
Maturity: / /
Delayed Delivery Contracts: None.
Purchase Price: / /% of principal amount, plus accrued interest, if
any, from / /.
Expected Reoffering Price: / /% of principal amount, subject to
change by the undersigned.
Closing: 9:30 A.M. on / / at Skadden, Arps, Slate, Xxxxxxx & Xxxx,
Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, in immediately available funds.
34
Names and Addresses of Underwriters:
/ /
/ /
/ /
/ /
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
It is understood that we may, with your consent, amend this offer to
add additional Underwriters and reduce the aggregate principal amount to be
purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities delivered to the Underwriters will be represented by a
single, global security to be deposited with The Depository Trust Company.
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35
Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
/ /
/ /
By / /
By_________________________
Name:
Title:
3
36
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
/ /.................................................... $/ /
/ /.................................................... $/ /
--------
Total............................................. $/ /
4
37
ANNEX II
(Three copies of this Delayed Delivery Contract
should be signed and returned to the address shown
below so as to arrive not later than 9:00 A.M.,
New York time, on / /, / /.)
DELAYED DELIVERY CONTRACT
/ /
HOUGHTON MIFFLIN COMPANY
c/o / /
/ /
/ /
Attention: / /
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Houghton Mifflin
Company, a Massachusetts corporation ("Company"), and the Company agrees to sell
to the undersigned, /If one delayed closing, insert-as of the date hereof, for
delivery on / / ("Delivery Date"),/
$----------------
principal amount of the Company's /Insert tile of securities/ ("Securities"),
offered by the Company's Prospectus dated / / and a Prospectus Supplement
dated / /, relating thereto, receipt of copies of which is hereby
acknowledged, at / /% of the principal amount thereof plus accrued interest, if
any, and on the further terms and conditions set forth in this Delayed Delivery
Contract ("Contract").
/If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of
the date hereof, for delivery on the dates set forth
38
below, Securities in the principal amounts set forth
below:
Delivery Date Principal Amount
------------- ----------------
----------------- ------------
----------------- ------------
Each of such delivery dates is hereinafter referred to as
a Delivery Date./
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order by certified or official bank check in /New York Clearing House (next day)
funds/ at the office of _______________________ at ______ A.M. on--the--such--
Delivery Date upon delivery to the undersigned of the Securities to be purchased
by the undersigned--for delivery on such Delivery Date--in definitive, fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to--the--such--Delivery
Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the under-
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39
signed at its address set forth below notice to such effect, accompanied by a
copy of the opinion of counsel for the Company delivered to the Underwriters in
connection therewith.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
________________________________
(Name of Purchaser)
By______________________________
______________________________
(Title of Signatory)
______________________________
______________________________
(Address of Purchaser)
Accepted, as of the above date.
HOUGHTON MIFFLIN COMPANY
By__________________________
Name:
Title:
3
