As filed with the Securities and Exchange Commission on February 13, 1997
REGISTRATION NO. 333-18911
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 2 to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEW ENGLAND INVESTMENT COMPANIES, L.P.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3405992
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
399 BOYLSTON STREET
BOSTON, MASSACHUSETTS 02116
(617) 578-3500
(Address, of principal executive offices, including zip code)
EDWARD N. WADSWORTH, ESQ.
Executive Vice President
and General Counsel
New England Investment Companies, L.P.
399 Boylston Street
Boston, Massachusetts 02116
(617) 578-3500
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
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Please send copies of all communications to:
Christopher A. Klem, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement under the earlier effective
registration statement for the same offering. [_]
If this form is a post effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTABLE PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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PROSPECTUS SUBJECT TO COMPLETION
FEBRUARY 13, 1997
NEW ENGLAND INVESTMENT COMPANIES, L.P.
LIMITED PARTNERSHIP INTEREST
4,000,000 UNITS
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All of the Units of Limited Partnership Interest ("LP Units") of New England
Investment Companies, L.P. ("NEIC" or the "Partnership") offered hereby are
being sold by the holders of LP Units described herein under "Selling
Unitholders" (the "Selling Unitholders"). The Partnership's LP Units are traded
on the New York Stock Exchange (the "NYSE") under the symbol "NEW." On February
4, 1997, the last reported sale price of the LP Units on the NYSE was $25.00 per
LP Unit.
The Partnership will not receive any of the proceeds from the sale of the LP
Units. Any or all of such LP Units covered by this Prospectus may be sold, from
time to time, by means of ordinary brokerage transactions or otherwise. See
"Plan of Distribution."
FOR INFORMATION CONCERNING CERTAIN CONSIDERATIONS RELATING TO THIS OFFERING,
SEE "RISK FACTORS" BEGINNING ON PAGE 4.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURI-
TIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTA-
TION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The Selling Unitholders named herein or in any supplement or amendment hereto,
or their pledgees, donees, transferees or other successors in interest,
directly, through agents to be designated from time to time, or through dealers
or underwriters also to be designated, may sell the LP Units from time to time
in one or more transactions on the New York Stock Exchange or in the over-the-
counter market and in negotiated transactions, on terms to be determined at the
time of sale. To the extent required, the specific LP Units to be sold, the
names of the Selling Unitholders, the respective purchase prices and public
offering prices, the names of any such agent or dealer, and any applicable
commissions or discounts with respect to a particular offer will be set forth in
any accompanying Prospectus Supplement or, if appropriate, a post-effective
amendment to the Registration Statement of which this Prospectus is a part. See
"Plan of Distribution." By agreement, the Partnership will pay all the expenses
of the registration of the LP Units by the Selling Unitholders other than
underwriting discounts and commissions and transfer taxes, if any. Such expenses
to be borne by the Partnership are estimated at $34,021.
The Selling Unitholders and any broker-dealers, agents or dealers that
participate with the Selling Unitholders in the distribution of the LP Units may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), and any commissions received by them and any
profit on the resale of the LP Units purchased by them may be deemed
underwriting commissions or discounts under the 1933 Act.
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The date of this Prospectus is February , 1997.
AVAILABLE INFORMATION
The Partnership is subject to the informational requirements 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"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549 and at its regional offices at
500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7 World
Trade Center, 13th Floor, New York, New York 10048. Copies of such materials
can be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, on payment of prescribed charges. Such
reports, proxy statements and other information concerning the Partnership can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The Partnership has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act, with respect to the
LP Units offered hereby. This Prospectus does not contain all the information
set forth in the Registration Statement, certain parts of which have been
omitted in accordance with the rules and regulations of the Commission, and the
exhibits relating thereto, which have been filed with the Commission. Copies of
the Registration Statement and the exhibits are on file at the offices of the
Commission and may be obtained upon payment of the fees prescribed by the
Commission, or examined without charge at the public reference facilities of the
Commission described above.
No person is authorized in connection with the offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Partnership, the Selling Unitholders set forth under "Selling
Unitholders" or any underwriter. This Prospectus relates solely to the LP Units
and it may not be used or relied on in connection with any other offer or sale
of securities of the Partnership. This Prospectus does not constitute an offer
to sell or a solicitation of any offer to buy by any person in any jurisdiction
in which it is unlawful for such person to make such an offer or solicitation.
Neither the delivery of this Prospectus at any time nor any sale made hereunder
shall under any circumstance imply that the information herein is correct as of
any date subsequent to the date hereof.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously or simultaneously filed with the Commission
by the Partnership are incorporated herein by reference and made a part hereof:
(a) The Partnership's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(b) The Partnership's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1996, June 30, 1996 and September 30, 1996.
(c) The Partnership's Current Reports on Form 8-K dated August 30, 1996,
September 23, 1996, October 15, 1996, December 10, 1996 and January 3,
1997.
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(d) The description of the Partnership's LP Units, contained in the
Partnership's Amendment on Form 8-A/A dated April 19, 1994 to its
Registration Statement on Form 8-A, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15(d) of the Exchange Act after the date
of this Prospectus prior to the termination of the offering shall be deemed
incorporated herein by reference from the date of filing of such documents. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, or in any other subsequently filed
document that also is incorporated by reference herein, modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Partnership will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents that have been incorporated by reference in this
Prospectus, other than exhibits to such documents. Such documents may be
obtained by writing to New England Investment Companies, L.P., 399 Boylston
Street, Boston, Massachusetts 02116, Attention: Edward N. Wadsworth, Corporate
Secretary, or by calling (617) 578-3500.
THE PARTNERSHIP
The Partnership is a major investment manager that offers a broad array of
investment management products and styles across a wide range of asset
categories to institutions and individuals. NEIC operates through ten
investment management firms (the "Investment Management Firms") and three
principal distribution and consulting firms (the "Distribution and Consulting
Firms" and, together with the Investment Management Firms, the "Firms"). NEIC's
assets under management include domestic and international fixed income and
equity securities, real estate and money market funds.
The Partnership's strategy is to capitalize on growth opportunities for
investment management services in the institutional, mutual fund and private
client markets. The Investment Management Firms are primarily responsible for
developing and implementing their own investment philosophy, business plans and
management fees. Each Investment Management Firm manages its business
independently on a day-to-day basis and maintains an image and identity that is
separate from both the Partnership and the other Investment Management Firms.
The Partnership makes available distribution, consulting and administrative
services which the Investment Management Firms draw upon as needed. The
Partnership seeks to grow by expanding the Investment Management Firms'
capabilities; increasing and focusing its marketing efforts; selectively
expanding its distribution channels; and selectively pursuing the acquisition
of investment management firms.
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RISK FACTORS
Prospective investors should carefully consider the following factors,
together with the other information contained in this Prospectus and
incorporated by reference, prior to purchasing the LP Units offered hereby.
CONTROL BY METLIFE
NEIC is controlled by New England Investment Companies, Inc., its general
partner (the "General Partner"), which is wholly owned by Metropolitan Life
Insurance Company ("MetLife"). Following this offering, MetLife, through a
subsidiary, will own approximately 52% of NEIC's outstanding LP Units. MetLife
has the right to elect all of the directors of the General Partner, subject to
its obligation to elect one designee of Reich & Tang, Inc. ("RTI"). Currently,
three persons who are officers and/or directors of MetLife serve on the General
Partner's nine member board. LP Unitholders have no rights to participate in
the election of such directors and otherwise have only limited voting rights
with respect to Partnership matters. In cases where LP Unitholders do vote,
NEIC's partnership agreement (the "Partnership Agreement") prevents any Person
or Group (as defined in the Partnership Agreement), other than MetLife and
certain other persons (including persons approved by the General Partner), from
voting more than 20% of NEIC's Voting Units (as defined in the Partnership
Agreement). See "Regulation" under this heading.
RELATED PARTY TRANSACTIONS BETWEEN NEIC AND METLIFE
As of December 31, 1996, certain of the Investment Management Firms managed
approximately $6.0 billion of net assets in MetLife's General Account (which,
prior to the merger of New England Mutual Life Insurance Company ("New England
Mutual") into MetLife, were held in the General Account of New England Mutual).
These services are principally provided under separate agreements between
MetLife and the individual firms. The agreements are subject to periodic
negotiation and can be terminated at any time by MetLife, with the assets
allocated to other managers. Any future rate changes will be negotiated, and
management expects that such negotiated rates will be competitive in the market
at such time.
Agents of New England Mutual, who now serve primarily as agents of New England
Life Insurance Company ("New England Life"), a wholly owned subsidiary of
MetLife, have been a major factor in the sales of shares of mutual funds in The
New England Fund Group. NEIC provides investment management and other services
to MetLife and New England Life, and these companies are involved in various
client relationships of NEIC. In addition, NEIC and certain of its firms lease
space from MetLife and purchase various services from MetLife and New England
Life, including certain data processing and administrative services, all at
market prices. NEIC's various relationships with MetLife and New England Life
have been material to its results of operations and are expected to continue to
be significant.
PARTNERSHIP TAX CONSIDERATIONS
In general, under the Internal Revenue Code of 1986, as amended (the "Code"),
entities classified as partnerships are not subject to federal income tax.
Instead, all holders of partnership interests are taxable on their allocable
share of the partnership's income or gain for tax purposes, whether or not such
income or gain is distributed. Under current law, as described below, the
Partnership will cease to be
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treated as a partnership for federal income tax purposes no later than January
1, 1998 if its interests continue to be publicly traded. A substantial portion
of the Partnership's assets are certain intangible assets amortizable for
federal income tax purposes over a 15-year period.
New England Mutual merged with and into MetLife on August 30, 1996. The
transfer of New England Mutual's interest in NEIC to MetLife incident to the
merger caused a technical termination and reconstitution of NEIC as a
partnership for federal income tax purposes. Management expects to make certain
tax elections and adopt certain tax conventions and interpretations which are
intended to provide public unitholders with all or a substantial portion of the
benefits of tax amortization that they would have enjoyed if the termination had
not occurred.
In addition, literal application of IRS rules regarding the contribution of
property to a partnership could result in differences in the tax attributes of
LP Units depending on the identity of the Selling Unitholder. The Partnership
employs tax accounting methodologies and conventions (and expects to adopt the
tax conventions and interpretations described above relating to amortization
benefits) that it believes are generally responsive to the federal income tax
rules pertaining to partnerships, although such methodologies and conventions
involve matters of interpretation in areas of legal uncertainty and are not
necessarily fully consistent with technical aspects of certain rules. If the
tax conventions and interpretations were successfully challenged by the IRS, the
level of amortization deductions received by Unitholders could be affected, and
different federal income tax consequences might attach to different LP Units
depending on the circumstances of their original issuance, which could affect
the market value and/or marketability of LP Units during the period in which the
Partnership remains a partnership for federal income tax purposes.
LOSS OF PARTNERSHIP TAX STATUS AND POSSIBLE FUTURE RESTRUCTURING OF THE
PARTNERSHIP
Under current tax law, the Partnership will cease being classified as a
partnership for federal income tax purposes, and will be treated as a
corporation, immediately after December 31, 1997 (or sooner if the Partnership
adds a substantial new line of business or otherwise fails to satisfy certain
requirements) unless the Partnership ceases to be publicly traded prior to such
time While such a change in tax status is not expected to result in immediate
income recognition to Unitholders, certain circumstances, legal developments or
adverse interpretations of existing law, all of which may be beyond the
Partnership's control, could cause such a change to be, in whole or in part, a
taxable event. The Partnership Agreement confers on the General Partner broad
authority to effect a Restructuring of the Partnership in connection with, or in
anticipation of, such a change in tax status, subject to a standard of good
faith on the part of the General Partner.
Although the range of possibilities for a Restructuring is broad, management
expects that Public Partners (which generally include holders of publicly traded
LP Units and all other LP Unitholders except non-Public Partners) would
participate through an entity which is taxable as a corporation in order to
preserve public market liquidity for their interests. Management also expects
that non-Public Partners (which at that time are likely to include MetLife, RTI,
former partners of Harris Associates, L.P. ("Harris") and other Unitholders that
have contributed appreciated property to the Partnership) would hold their
interests through a private entity which would be taxed as a partnership. Under
all possible forms, however, all Unitholders will, independent of tax
consequences, continue their respective proportionate participation in the
operating results of the Partnership's business.
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In determining the form of any Restructuring, the General Partner is obligated
to seek to accomplish certain prioritized objectives of MetLife, RTI and other
non-Public Partners with respect to special considerations, including avoidance
of special and potentially significantly adverse tax treatment and continued
participation in a flow-through entity for this purpose. No assurances can be
given regarding the timing or form of any Restructuring, which may be affected
by changes in the tax laws as well as other factors beyond the control of the
Partnership or the General Partner. The General Partner expects that any
Restructuring would provide holders of publicly traded LP Units with the ongoing
benefit of public market liquidity for their interests in the Partnership's
business. While the Partnership Agreement provides that the General Partner may
impose restrictions on transfer as part of a Restructuring (which may have the
effect of preserving the Partnership's tax status as a partnership), the General
Partner believes that trading restrictions will not be necessary to accomplish
the Restructuring objectives described below, absent legal or other
developments, and, if necessary, would be only temporary.
The Partnership Agreement relieves the General Partner of all duties and
liabilities to the Partnership and other Unitholders for actions taken in good
faith by the General Partner in connection with a Restructuring. The General
Partner, MetLife and RTI may each be deemed to have conflicts of interest with
respect to possible future Restructurings insofar as they may be treated
differently than the holders of publicly traded LP Units, as noted above.
REAL ESTATE INVESTMENT MANAGEMENT
As a real estate investment manager, one of NEIC's Investment Management
Firms, AEW Capital Management, L.P., is subject to a number of special
considerations. Real estate investment portfolios are, by their terms,
generally liquidated over an investment period, creating a continual need to
attract new assets in order to achieve asset growth. In addition, real estate
investment managers may be subject to certain potential risks as a result of the
structures used for client investment that are not characteristic of the risks
for other investment managers, such as the possibility that such managers might
be responsible for tort and environmental claims and, in a limited number of
cases, for property debt.
RELIANCE ON KEY PERSONNEL
The ability of NEIC's firms to attract and retain clients is dependent to a
large extent on their ability to attract and retain key employees, including
skilled portfolio managers. Certain of these employees are responsible for
significant client relationships. Many key employees are not under non-
competition or other restrictions as to their departure and may be able to
attract clients away upon their departure. Loss of key personnel could have a
material adverse effect on NEIC's results of operations.
COMPETITION
The investment management business is highly competitive. NEIC and its Firms
compete with a large number of investment management firms, commercial banks,
insurance companies and others, many of which are larger and have access to
greater resources. NEIC believes that the most important factors affecting
competition for clients are: the abilities, performance records and reputations
of investment managers; the ability to hire and retain key investment managers;
the effectiveness of marketing programs; the development of new investment
strategies and information technologies; and competitiveness in fees and
investor service. NEIC's ability to increase assets under management and to
retain such assets could be adversely affected if client accounts underperform
the market or NEIC's competitors and if key
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investment managers leave the Investment Management Firms. The Partnership's
competitive position also is dependent, in part, on the relative attractiveness
of the types of investment products offered and investment philosophies,
strategies and methods of the various Investment Management Firms under
prevailing market conditions.
FACTORS AND CONDITIONS AFFECTING FEE REVENUES
Investment management agreements between investment management firms and their
clients typically provide for fees based on a percentage of the assets under
management, determined at least quarterly and valued at current market levels.
The percentage of the fee applicable to a particular classification of assets
under management is a function of several factors, though generally investments
which have a higher degree of risk and uncertainty command a higher percentage
fee. Therefore, significant fluctuations in the value and type of assets under
management can have a material effect on NEIC's consolidated revenues and
profitability. Such asset valuations and client investment patterns may be
affected by overall economic conditions and other factors influencing the
capital markets generally.
With relatively minor exceptions, virtually all of NEIC's revenues are derived
from investment management agreements with clients that are terminable at any
time or upon 30 to 60 days' notice, as is the case generally in the investment
management industry. Any termination of agreements representing a significant
portion of assets under management could have an adverse impact on NEIC's
results of operations.
ACQUISITION STRATEGY
As part of its growth strategy, NEIC has selectively pursued the acquisition
of investment management firms, which, following acquisition, are expected to
continue to manage their businesses independently on a day-to-day basis.
Consideration for such acquisitions include cash (including cash from NEIC's
borrowings), LP Units and future payments (in cash or LP Units) based on
performance. Other employment incentives are frequently provided for. NEIC
typically seeks to obtain employment and non-competition agreements from key
managers. There can be no assurance that suitable acquisition candidates can be
located or that appropriate agreements with them can be reached or completed, or
that any acquired business will perform as expected following acquisition.
REGULATION
The business of NEIC and the Firms is subject to regulation by the Commission
and other federal, state and foreign regulatory bodies. The applicable laws and
regulations are primarily intended to benefit investment management clients and
investment company shareholders and generally grant supervisory agencies broad
administrative powers, including the power to limit or restrict business
activities for failure to comply with such laws and regulations.
Under applicable federal securities laws, investment management agreements
held by NEIC and most of its Investment Management Firms either may not be
assigned without the client's consent or terminate automatically upon
assignment. For these purposes, "assignment" includes direct assignments as
well as assignments which may be deemed to occur, under certain circumstances,
upon the transfer, directly or indirectly, of control of NEIC. The Partnership
Agreement contains provisions designed to
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reduce the likelihood of transactions resulting in an assignment of such
investment management agreements through a deemed change in control of NEIC.
LP UNITS AVAILABLE FOR FUTURE SALE
As of January 31, 1997, there were 40,347,631 LP Units outstanding. Following
this Offering, assuming 2,000,000 of the 4,000,000 LP Units offered hereby are
sold, 6,112,343 of those LP Units will be freely tradable without registration
under the Securities Act. Of the remaining LP Units outstanding that are
"restricted securities" under the federal securities laws, 20,790,000 LP Units
(not including 110,000 units of general partnership interest held by MetLife)
will be held by MetLife and approximately 13,445,288 LP Units will be held by
other private partners. Approximately 28,286,850 of such LP Units that are
restricted securities under the federal securities laws, including those held by
MetLife and RTI, may be sold within the limitations under Rule 144 under the
Securities Act. The Selling Unitholders and certain other Unitholders have
rights to register their remaining LP Units for public resale and may otherwise
seek to resell some or all of their LP Units in the future subject to the above
limitation. Sales of large numbers of LP Units to the public within a limited
time period could adversely affect the market price of the LP Units. Resales of
LP Units may, under certain circumstances, result in a change in control of NEIC
and an assignment of investment management agreements under applicable federal
securities law.
USE OF PROCEEDS
The Partnership will not receive any of the proceeds of the LP Units offered
hereunder by the Selling Unitholders.
SELLING UNITHOLDERS
The Selling Unitholders are various Unitholders holding registration rights
and their permitted charitable donees, pledgees, transferees or other successors
in interest, and include those Unitholders listed below and additional
Unitholders who will be individually identified along with Unitholders'
affiliations and holdings of LP Units (if greater than 1% of all outstanding LP
Units) by a supplement hereto. Such registration rights were granted pursuant
to various agreements with the Partnership, including an agreement with New
England Mutual and RTI made as of September 15, 1993 (the "1993 Registration
Rights Agreement") and an agreement with Harris Associates, L.P. made as of
September 19, 1995 (the "Harris Registration Rights Agreement" and, together
with the 1993 Registration Rights Agreement and other similar agreements, the
"Registration Rights Agreements").
The LP Units offered by the Selling Unitholders hereby constitute "restricted
securities" under the Securities Act. Pursuant to the Registration Rights
Agreements, the Selling Unitholders and the Partnership have agreed that all
expenses incident to a registration demanded thereunder will be borne by the
Partnership. The Registration Rights Agreements provide that the Partnership
need not effect more than one registration statement on Form S-3 in a six-month
period.
The following table sets forth certain information known to the Partnership
with respect to beneficial ownership of the Partnership's LP Units as of January
31, 1997, and as adjusted to reflect the proposed sale of LP Units being offered
by the Selling Unitholders hereby.
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Units Beneficially
Owned After Offering
Units Beneficially Units to be ------------------------------
Selling Unitholder Owned Prior to Offering(1) Sold in Offering Number (1) Percent (2)
- ------------------ -------------------------- ---------------- ---------- -----------
Brown Generation Trust, U/A/D 8/16/91 (3) 62,920 62,920 0 *
Roger O. Brown Revocable Trust, U/A/D 12/16/82 (3) 279,600 239,600 40,000 *
Barbara E. Brown Revocable Trust, U/A/D 12/16/82 (3) 97,567 97,567 0 *
Old Compton, L.P. (4) 391,581 335,668 55,913 *
Phillips Exeter Academy 10,200 10,200 0 *
Field Museum of Natural History 10,200 10,200 0 *
Kenneth H. Foreman Gift Trust for Peter &
Christoper Dated 5/15/79 (5) 26,286 26,286 0 *
Kenneth H. Foreman Gift Trust for Peter &
Jeffrey Dated 5/15/79 (5) 26,286 26,286 0 *
Kenneth H. Foreman Support Trust for Peter &
Christopher Dated 5/15/79 (5) 26,286 26,286 0 *
Kenneth H. Foreman Support Trust for Peter &
Jeffrey Dated 5/15/79 (5) 26,286 26,286 0 *
David M. Herro (6) 45,908 45,908 0 *
I&G Charitable Foundation (3) 40,000 40,000 0 *
Investment Income Partnership (3) 105,148 105,148 0 *
Jewish United Fund of Metropolitan Chicago 2,100 2,100 0 *
Roxanne M. Martino (6) 80,798 20,000 60,798 *
Victor A. Morgenstern (7) 520,000 100,000 420,000 1.04%
Reich & Tang, Inc. (8) 6,394,100 300,000 6,094,100 15.11%
Resolute Partners (9) 180,000 50,000 130,000 *
Kathleen Schulte Revocable Trust U/A/D 2/1/89 (6) 6,309 6,309 0 *
1261 Foundation(3) 47,190 47,190 0 *
VNSM Holdings, Inc. (10) 444,500 177,800 266,700 *
Charles Zis (6) 69,923 49,923 20,000 *
---------
1,805,677
* LESS THAN 1%
(1) Except as indicated in the other footnotes to this table, based on
information provided by such persons and subject to applicable community
property laws, the persons and entities named in the table above have sole
voting and investment power with respect to all of the LP Units shown as
beneficially owned by them.
(2) Percentage of ownership is based on 40,347,361 LP Units outstanding on
January 31, 1997, and does not include 110,000 units of general
partnership interest ("GP Units") owned by the Partnership's general
partner, which represent all GP Units outstanding.
(3) Roger O. Brown, currently an employee of an operating subsidiary of the
Partnership, is the trustee of the Roger O. Brown Revocable Trust; is
President of I&G Charitable Foundation; and is General Manager of
Investment Income Partnership, and has sole voting and investment power
with respect to the LP Units owned by such entities. Mr. Brown's spouse,
Barbara E. Brown, is trustee of the Brown Generation Trust and the
Barbara E. Brown Revocable Trust, and has sole voting and investment power
with respect to the LP Units owned by such trusts. Mr. and Mrs. Brown also
serve as directors of the 1261 Foundation and may therefore be deemed to
have voting and investment power with respect to the LP Units held by such
entity.
(4) The listed entity (formerly Aldrich, Eastman & Waltch, L.P.) sold its
business assets to the Partnership in December 1996. Certain current
officers of the subsidiary of the Partnership (AEW Capital Management,
L.P.) now operating the acquired business remain limited partners in Old
Compton, L.P. Peter C. Aldrich, Thomas G. Eastman and Joseph F. Azrack,
who are the non-executive Co-Chairman, non-executive Director and Chief
Executive Officer, respectively, of AEW Capital Management, L.P., are the
directors and controlling
-9-
stockholders of the general partner of the general partner of Old
Compton, L.P. Each of such persons (and such general partners) may
therefore be deemed to be a beneficial owner of the listed LP Units. Mr.
Azrack serves as the Chief Executive Officer and President and as a
member of the Board of Directors of AEW Capital Management, L.P.'s
general partner, which is a wholly owned indirect subsidiary of the
Partnership.
(5) Peter B. Foreman, trustee of the trusts listed in the table, has voting
and investment power over 801,640 LP Units in addition to the LP Units
shown in the table, in his capacity as trustee of other trusts.
(6) The named person is an officer and/or an employee of an operating
subsidiary of the Partnership.
(7) Mr. Morgenstern serves as a director of the general partner of the
Partnership pursuant to a program whereby chief executive officers of
operating subsidiaries of the Partnership serve for a period as
directors.
(8) Oscar L. Tang, a director of the general partner of the Partnership,
beneficially owns approximately 34% of the stock of Reich & Tang, Inc.
("RTI"), not including approximately 13% of such stock held by trusts
for the benefit of Mr. Tang's children, as to which Mr. Tang disclaims
beneficial ownership. The number of LP Units shown does not include
101,500 LP Units contributed to the Partnership's Restricted Unit Plan
(the "RUP") by RTI, as to which RTI retains certain income or
reversionary rights. All stockholders of RTI are parties to a
stockholders' agreement relating to the maintenance of such
corporation's status as an "S" corporation under the Internal Revenue
Code and which creates numerous reciprocal and other rights relating to
the disposition of stock in RTI by the stockholders.
(9) The listed entity is a partnership of which Mr. Morgenstern serves as
general partner.
(10) The listed entity (formerly Vaughan, Nelson, Scarborough & McConnell,
Inc.) sold its business assets to the Partnership in May 1996. All
stockholders of such entity are currently employed by the subsidiary of
the Partnership now operating the acquired business (Vaughan, Nelson,
Scarborough & McConnell, L.P.) as officers and/or investment principals.
In addition, two of such stockholders are members of the Board of
Directors of such subsidiary's general partner, which is a wholly owned
indirect subsidiary of the Partnership.
-10-
PLAN OF DISTRIBUTION
The Partnership will not receive any of the proceeds from the sale by the
Selling Unitholders of the LP Units offered hereby. Any or all of LP Units may
be sold from time to time (i) to or through brokers or dealers, (ii) directly to
one or more other purchasers, (iii) through agents on a best-efforts basis, or
(iv) through a combination of any such methods of sale.
The LP Units offered hereby may be sold from time to time by the Selling
Unitholders, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on one or more exchanges or in the over-the-
counter market, or otherwise at prices and at terms then prevailing or at prices
related to the then current market price, or in negotiated transactions. The LP
Units may be sold by one or more of the following: (a) a block trade in which
the broker or dealer so engaged will attempt to sell the LP Units as agent but
may position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its own account pursuant to this Prospectus; (c) an
exchange distribution in accordance with the rules of such exchange; and (d)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the Selling
Unitholders may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from Selling Unitholders in
amounts to be negotiated prior to the sale. In addition, any securities covered
by this Prospectus which qualify for sale pursuant to Rule 144 may be sold under
Rule 144 rather than pursuant to this Prospectus.
The Selling Unitholders and any such brokers, dealers or agents that
participate in the distribution of the LP Units may be deemed to be underwriters
within the meaning of the Securities Act, and any profit on the sale of the LP
Units by them and any discounts, commissions or concessions received by them may
be deemed to be underwriting discounts and commissions under the Securities Act.
The LP Units may be sold from time to time in one or more transactions at a
fixed offering price, which may be changed, or at varying prices determined at
the time of sale or at negotiated prices. Such prices will be determined by the
Selling Unitholders or by an agreement between the Selling Unitholders and
dealers or agents. Brokers or dealers acting in connection with the sale of LP
Units contemplated by this Prospectus may receive fees or commissions in
connection therewith.
At the time a particular offer of LP Units is made, to the extent required, a
supplement to this Prospectus will be distributed which will identify and set
forth the aggregate number of LP Units being offered and the terms of the
offering, including the name or names of any dealers or agents, any discounts,
commissions and other items constituting compensation from the Selling
Unitholders and/or the Partnership and any discounts, commissions or concessions
allowed or reallowed or paid to dealers. Such supplement to this Prospectus
and, if necessary, a post-effective amendment to the Registration Statement of
which this Prospectus is a part, will be filed with the Commission to reflect
the disclosure of additional information with respect to the distribution of the
LP Units.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of the LP Units may not simultaneously engage in
market making activities with respect to the LP Units for a period of two
business days prior to the commencement of such distribution. In addition and
without limiting the foregoing, the Selling Unitholders and any person
participating in the distribution of the LP Units will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
-11-
including without limitation rules 10b-6 and 10b-7, which provisions may limit
the timing of purchases and sales of the LP Units by the Selling Unitholders or
any such other person.
The Partnership has agreed to indemnify the Selling Unitholders and certain
other persons against certain liabilities, including liabilities arising under
the Securities Act.
-12-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF DISTRIBUTION
SEC registration fee............ $ 4,021.00*
Blue Sky Fees and Expenses**.... 0.00
Legal fees and expenses**....... 15,000.00
Printing Expenses............... 5,000.00
Accounting fees and expenses**.. 5,000.00
Miscellaneous**................. 5,000.00
----------
Total Expenses............... $34,021.00
____________________
* Pursuant to Rule 429
** Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act (the
"Partnership Act"), as amended, gives a limited partnership the power to
indemnify and hold harmless any partner or any other person against any and all
claims and demands whatsoever, subject to any standards and restrictions set
forth in its partnership agreement.
In accordance with Section 17-108 of the Partnership Act, the Amended and
Restated Agreement of Limited Partnership of the Registrant provides that no
Indemnitee shall be liable to the Partnership or any Partner for any act or
omission, provided that the Indemnitee acted in good faith and that no gross
negligence or willful misconduct was involved. An "Indemnitee" is defined to
include, among others, the General Partner, RTI, the Partnership and each of
their present and former directors, officers, partners, employees and agents.
An Indemnitee is not presumed to have acted other than in good faith or to have
engaged in gross negligence or willful misconduct by reason of the termination
of any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent.
In addition to providing for limited liability for any Indemnitee, the
Partnership Agreement requires the Partnership to indemnify any Indemnitee to
the fullest extent permitted by law against expenses, judgments, fines and
amounts paid in settlement incurred in connection with any threatened, pending
or completed claim, demand, action, suit or proceeding to which the Indemnitee
was or is a party or is threatened to be made a party (i) by reason of their
capacity in connection with the Partnership or (ii) by reason of any act or
omission by the Indemnitee taken in such capacity relating to the Agreement or
the property, business, affairs or management of the Partnership. The
Indemnitee is entitled to have such expenses advanced by the Partnership prior
to the final disposition of the claim, demand or other proceeding upon the
Indemnitee's delivery to the Partnership of an undertaking to repay the advanced
amount should it ultimately be determined that the Indemnitee is not entitled to
be indemnified. Indemnification is not available to an Indemnitee who has not
acted in good faith or where the act or
II-1
omission which is the basis of the claim, demand, action, suit or proceeding
involved the gross negligence or willful misconduct of such Indemnitee.
The indemnification provided under the Partnership Agreement is non-exclusive
of an Indemnitee's other rights. The indemnity continues to benefit an
Indemnitee no longer serving in a capacity qualifying one as an Indemnitee and
also inures to the benefit of an Indemnitee's heirs, successors, assigns,
administrators and personal representatives.
In addition to indemnification from the Partnership, officers and directors of
the General Partner are indemnified in certain circumstances by the General
Partner of the Partnership. Section 67 of Chapter 156B of the Massachusetts
General Laws provides that indemnification of directors and officers may be
provided to the extent specified or authorized by the articles of organization
or by-laws.
The General Partner's by-laws provide that the General Partner will indemnify
each of its directors and officers to the extent legally permissible against all
liabilities, expenses and fees of counsel reasonably incurred in connection with
the defense or disposition of any civil or criminal action, suit or proceeding
in which he or she may be involved or with which he or she may be threatened by
reason of being or having been such a director or officer. A director or
officer is entitled to have such expenses in connection with the defense of a
claim advanced by the General Partner prior to the final disposition of the
claim upon the officer's or director's delivery to the General Partner of an
undertaking to repay the advanced amount should it ultimately be determined that
the officer or director is not entitled to be indemnified.
Indemnification is not available to a director or officer who has been
adjudicated not to have acted in good faith in the reasonable belief that his or
her action was in the best interest of the general partner. If the matter for
which an officer or director seeks indemnification relates to an employee
benefit plan, such officer or director must have acted in the best interest of
the participants or beneficiaries of such plan. In order for a director or
officer to be indemnified for a matter disposed of by a compromise payment or
pursuant to a consent decree, such disposition must be approved as in the best
interests of the general partner by one of (i) a disinterested majority of the
directors; (ii) a majority of the disinterested directors (subject to certain
conditions) or (iii) the holders of a majority of the outstanding stock
(excluding holders with an interest).
The indemnification provided under the by-laws is non-exclusive of an
officer's or director's other rights, and inures to the benefit of an officer's
or director's heirs, executors and administrators.
The General Partner has purchased policies of insurance covering directors'
and officers' liability and reimbursement of the General Partner for
indemnification of a director or officer. The policies covering directors' and
officers' liability provide for payment on behalf of a director or officer of
any Loss (defined to include among other things, damages, judgments,
settlements, costs and expenses) arising from claims against such director or
officer by reason of any Wrongful Act (as defined) subject to certain
exclusions.
For the undertaking with respect to indemnification, see Item 17 herein.
II-2
ITEM 16. EXHIBITS
Title of Exhibit
----------------
5.1 Opinion of Counsel re: legality*
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in the opinion filed as Exhibit 5.1)*
24.1 Power of Attorney (included as part of signature page previously
filed)*
*Previously filed.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
The undersigned registrant hereby undertakes:
(12) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
II-3
a. To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
b. 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;
c. 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)(a) and (1)(b) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(13) That, for the purpose of determining any liability under the Securities Act
of 1933, 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.
(14) 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.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has
duly caused this Amendment No. 2 to the Registration Statement on Form S-3 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Boston, The Commonwealth of Massachusetts, on the 12th day of February, 1997.
NEW ENGLAND INVESTMENT COMPANIES, L.P.
By: NEW ENGLAND INVESTMENT COMPANIES, INC.,
its General Partner
By: /s/ Edward N. Wadsworth
----------------------------------------
Name: Edward N. Wadsworth
Title: Executive Vice President
II-5
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed on the 12th day of February,
1997 by the following persons in the capacities indicated.
SIGNATURE TITLE
--------- -----
* Chairman of the Board, President, Chief
- --------------------------------- Executive Officer and Director
Peter S. Voss
* Executive Vice President and
- ---------------------------------- Chief Financial Officer
G. Neal Ryland
* Senior Vice President and
- ----------------------------------- Controller
Stephen D. Martino
* Director
- ------------------------------------
William S. Antle, III
* Director
- ------------------------------------
Robert J. Blanding
* Director
- ------------------------------------
Paul E. Gray
* Director
- -------------------------------------
Harry P. Kamen
II-6
* Director
- ------------------------------------
Charles M. Leighton
* Director
- ------------------------------------
Victor A. Morgenstern
*
- ------------------------------------ Director
Catherine A. Rein
* Director
- ------------------------------------
Oscar L. Tang
* /s/ Edward N. Wadsworth
----------------------------------
By Edward N. Wadsworth,
Attorney-In-Fact
II-7