As filed with the Securities and Exchange Commission on May 29, 2020

Registration No. 333-_____

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

FORM S-8

REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933

Houghton Mifflin Harcourt Company
(Exact Name of Registrant as Specified in Its Charter)

 

Delaware

27-1566372

(State or Other Jurisdiction of

Incorporation or Organization)

(I.R.S. Employer

Identification No.)

 

 

125 High Street

Boston, Massachusetts

02110

(Address of Principal Executive Offices)

(Zip Code)

 

Amended and Restated 2015 Omnibus Incentive Plan

(Full Title of the Plan)

William F. Bayers
Executive Vice President, Secretary and General Counsel
Houghton Mifflin Harcourt Company

125 High Street

Boston, Massachusetts 02110
(Name and Address of Agent For Service)

(617) 351-5000

(Telephone Number, Including Area Code, of Agent For Service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer

Accelerated filer

 

 

 

 

Non-accelerated filer

Smaller reporting company

 

 

 

 

 

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

 


 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered

Amount to be

Registered(1)

Proposed Maximum

Offering Price Per

Share

Proposed Maximum

Aggregate Offering

Price

Amount of

Registration Fee

Common Stock, par value $0.01 per share

3,630,000 shares (2)

$1.42 (3)

$5,154,600 (3)

$669.07

 

(1)

In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(2)

Consists of the additional shares of common stock, par value $0.01 per share, of Houghton Mifflin Harcourt Company (the “Registrant”) approved by stockholders at the 2020 Annual Meeting of Stockholders for issuance under the Amended and Restated 2015 Omnibus Incentive Plan.  

(3)

Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act, and based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Select Market on May 21, 2020.

 

 


 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1.

Plan Information.

The information required by Item 1 is included in documents sent or given to participants in the plan covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.

Item 2.

Registrant Information and Employee Plan Annual Information.

The written statement required by Item 2 is included in documents sent or given to participants in the plan covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.

Incorporation of Documents by Reference.

The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”).   The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:

 

(a)

The Registrant’s latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed.

 

(b)

All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above.

 

(c)

The description of the securities contained in the Registrant’s registration statement on Form 8-A filed under the Exchange Act, as updated by Exhibit 4.7 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, and including any amendment or report filed for the purpose of updating such description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of the filing of such documents.  Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.  Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4.

Description of Securities.

Not applicable.

Item 5.

Interests of Named Experts and Counsel.

Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement.  

Item 6.

Indemnification of Directors and Officers.

Section 145(a) of the Delaware General Corporation Law provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, because the person is or was a director or officer of the corporation. Such indemnity may be against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect to any criminal action or proceeding, the person did not have reasonable cause to believe the person’s conduct was unlawful.

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Section 145(b) of the Delaware General Corporation Law provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director or officer of the corporation, against any expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses which the Court of Chancery or such other court shall deem proper.

Section 145(g) of the Delaware General Corporation Law provides, in general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation against any liability asserted against the person in any such capacity, or arising out of the person’s status as such, whether or not the corporation would have the power to indemnify the person against such liability under the provisions of the law.

The Registrant’s amended and restated certificate of incorporation provides that, to the fullest extent permitted by applicable law, a director will not be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. The Registrant’s amended and restated certificate of incorporation also provides that it will indemnify and hold harmless each director and officer to the fullest extent permitted by applicable law.

The foregoing statements are subject to the detailed provisions of Section 145 of the Delaware General Corporation Law and the Registrant’s amended and restated certificate of incorporation and amended and restated by-laws.

Section 102 of the Delaware General Corporation Law permits the limitation of directors’ personal liability to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director except for (i) any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) breaches under Section 174 of the Delaware General Corporation Law, which relates to unlawful payments of dividends or unlawful stock repurchase or redemptions, and (iv) any transaction from which the director derived an improper personal benefit.

Reference is made to Item 9 for the Registrant’s undertakings with respect to indemnification for liabilities arising under the Securities Act.

The Registrant maintains directors’ and officers’ liability insurance for its officers and directors.

The Registrant has entered into an indemnification agreement with each of its executive officers and directors that provides, in general, that it will indemnify them to the fullest extent permitted by law in connection with their service to the Registrant or on its behalf.

Item 7.

Exemption from Registration Claimed.

Not applicable.

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Item 8.

Exhibits.

The following exhibits are incorporated herein by reference:

 

Number

Description

 

 

  4.1(1)

Amended and Restated Certificate of Incorporation of the Registrant

 

 

  4.2(2)

Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant

 

 

  4.3(3)

Amended and Restated By-Laws of the Registrant, as amended

 

 

  5.1

Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant

 

 

23.1

Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1)

 

 

23.2

Consent of PricewaterhouseCoopers LLP

 

 

24.1

Power of attorney (included on the signature pages of this registration statement)

 

 

99.1(4)

Amended and Restated 2015 Omnibus Incentive Plan

 

(1)

Previously filed with the Securities and Exchange Commission as Exhibit 3.1 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-190356) filed with the Securities and Exchange Commission on October 25, 2013 and incorporated herein by reference.

(2)

Previously filed with the Securities and Exchange Commission as Exhibit 3.2 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-190356) filed with the Securities and Exchange Commission on October 25, 2013 and incorporated herein by reference.

(3)

Previously filed with the Securities and Exchange Commission as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-36166) filed with the Securities and Exchange Commission on September 30, 2019 and incorporated herein by reference.

(4)

Previously filed with the Securities and Exchange Commission as Exhibit 99.1 to the Registrant’s Current Report on Form 8-K (File No. 001-36166) filed with the Securities and Exchange Commission on May 22, 2020 and incorporated herein by reference.

Item 9.

Undertakings.

1.

Item 512(a) of Regulation S-K.  The undersigned registrant hereby undertakes:

 

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i)

To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)

To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and

 

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that paragraphs (1)(i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

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(2)

That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

2.

Item 512(b) of Regulation S-K.  The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

3.

Item 512(h) of Regulation S-K.  Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Boston, Massachusetts, on this 29th day of May, 2020.

 

HOUGHTON MIFFLIN HARCOURT COMPANY

 

By:

/s/ John J. Lynch, Jr.

Name:

John J. Lynch, Jr.

Title:

President, Chief Executive Officer and Director

 

POWER OF ATTORNEY AND SIGNATURES

We, the undersigned officers and directors of Houghton Mifflin Harcourt Company, hereby severally constitute and appoint John J. Lynch, Jr., Joseph P. Abbott, Jr. and William F. Bayers, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Houghton Mifflin Harcourt Company to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John J. Lynch, Jr.

 

President, Chief Executive Officer (Principal Executive Officer) and Director

 

May 29, 2020

John J. Lynch, Jr.

 

 

 

 

 

 

 

/s/ Joseph P. Abbott, Jr.

 

Executive Vice President and Chief Financial Officer (Principal Financial Officer)

 

May 29, 2020

Joseph P. Abbott, Jr.

 

 

 

 

 

 

 

/s/ Michael J. Dolan

 

Senior Vice President and Corporate Controller (Principal Accounting Officer)

 

May 29, 2020

Michael J. Dolan

 

 

 

 

 

 

 

/s/ Lawrence K. Fish

 

Chairman of the Board of Directors

 

May 29, 2020

Lawrence K. Fish

 

 

 

 

 

 

 

/s/ Daniel M. Allen

 

Director

 

May 29, 2020

Daniel M. Allen

 

 

 

 

 

 

 

/s/ L. Gordon Crovitz

 

Director

 

May 29, 2020

L. Gordon Crovitz

 

 

 

 

 

 

 

/s/ Jean S. Desravines

 

Director

 

May 29, 2020

Jean S. Desravines

 

 

 

 

 

 

 

/s/ Jill A. Greenthal

 

Director

 

May 29, 2020

Jill A. Greenthal

 

 

 

 

 

 

 

/s/ John F. Killian

 

Director

 

May 29, 2020

John F. Killian

 

 

 

 

 

 

 

/s/ John R. McKernan, Jr.

 

Director

 

May 29, 2020

John R. McKernan, Jr.

 

 

 

 

 

 

 

/s/ Tracey D. Weber

 

Director

 

May 29, 2020

Tracey D. Weber

 

 

 

 

hmhc-ex51_31.htm

 

Exhibit 5.1

 

 

May 29, 2020

Houghton Mifflin Harcourt Company

125 High Street

Boston, Massachusetts 02110

Re:

Amended and Restated 2015 Omnibus Incentive Plan

Ladies and Gentlemen:

We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of 3,630,000 shares of common stock, par value $0.01 per share (the “Shares”), of Houghton Mifflin Harcourt Company, a Delaware corporation (the “Company”), issuable under the Company’s Amended and Restated 2015 Omnibus Incentive Plan (the “Plan”).

We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion.

In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.

We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.

We express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.

It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.

 

 


Houghton Mifflin Harcourt Company

May 29, 2020

Page 2

 

 

Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.  In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

Very truly yours,

WILMER CUTLER PICKERING HALE AND DORR LLP

 

By:_/s/Jonathan Wolfman________________
Jonathan Wolfman, Partner

 

 

 

 

 

hmhc-ex232_40.htm

 

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of Houghton Mifflin Harcourt Company of our report dated February 27, 2020 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Houghton Mifflin Harcourt Company’s Annual Report on Form 10-K for the year ended December 31, 2019.

 

/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP

Boston, Massachusetts

May 29, 2020

 

 

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