As filed with the Securities and Exchange Commission on June 22, 2006
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Harris & Harris Group, Inc.
(Exact name of registrant as specified in its charter)
New York 13-3119827
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
111 West 57th Street, Suite 1100
New York, New York 10019
Telephone: (212) 582-0900
Facsimile: (212) 582-9563
(Address of principal executive offices)
HARRIS & HARRIS GROUP, INC. 2006 EQUITY INCENTIVE PLAN
(Full title of the plan)
Sandra M. Forman, Esq.
General Counsel
Harris & Harris Group, Inc.
111 West 57th Street, Suite 1100
New York, New York 10019
Telephone: (212) 582-0900
Facsimile: (212) 582-9563
(Name and address of agent for service)
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Copies to:
Phyllis G. Korff, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed-
maximum maximum
Title of each class of offering aggregate Amount of
securities to be Amount to be price per offering registration
registered registered (1) share (2) price (2) fee
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Common stock, par
value $0.01 per share 4,151,269 $10.06 $41,761,766.14 $4,468.51
(1) Pursuant to Rule 416(c) under the Securities Act of 1933 (the
"Securities Act"), this Registration Statement also covers
additional shares that may become issuable under the Plan (as
defined below) by reason of certain corporate transactions or
events, including any stock dividend, stock split,
recapitalization or any other similar transaction effected
without the receipt of consideration which results in an
increase in the number of the Registrant's outstanding shares
of Common Stock.
(2) The estimated exercise price of $10.06 per share was computed
in accordance with Rule 457(c) and 457(h) under the
Securities Act by averaging the high and low sales prices of
Harris & Harris Group, Inc. Common Stock as quoted on the
Nasdaq National Market on June 21, 2006.
This Registration Statement shall become effective upon
filing in accordance with Rule 462(a) under the Securities Act.
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EXPLANATORY NOTE
This registration statement registers shares of common
stock, par value $0.01 per share (the "Common Stock"), of Harris
& Harris Group, Inc. (the "Company") that may be issued and sold
under the Harris & Harris Group, Inc. 2006 Equity Incentive Plan
(the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
* (a) The documents containing the information specified in
Part I of Form S-8 will be sent or given to employees as
specified by Rule 428(b)(1) of the Securities Act of 1933 (the
"Securities Act"). Such documents need not be filed with the
Securities and Exchange Commission (the "SEC") either as part of
this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These
documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this
registration statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities
Act.
* (b) Upon written or oral request, any of the documents
incorporated by reference in Item 3 of Part II of this
Registration Statement (which documents are incorporated by
reference in the Section 10(a) prospectus), other documents
required to be delivered to eligible employees pursuant to Rule
428(b) or additional information about the Harris & Harris
Group, Inc. 2006 Equity Incentive Plan are available without
charge to participants by contacting the Investor Relations,
Harris & Harris Group, Inc., 111 West 57th Street, Suite 1100,
New York, New York 10019.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the
Company, pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act"), are incorporated by reference in this
Registration Statement; provided, however, that the Company is
not incorporating any information furnished under either Item
2.02 or Item 7.01 of any Current Report on Form 8-K:
(a) The Company's annual report on Form 10-K (File No.
814-00176) for the fiscal year ended December 31, 2005, filed
with the SEC on March 16, 2006 (the "Form 10-K"), including the
information contained in the Company's Proxy Statement dated
April 3, 2006, for its Annual Meeting of Shareholders to be held
on May 4, 2006, that has been incorporated by reference into the
Form 10-K;
(b) The Company's quarterly report on Form 10-Q (File No.
814-00176) for the three months ended March 31, 2006 filed with
the SEC on May 8, 2006;
(c) The Company's Current Report on Form 8-K filed with
the SEC on January 23, 2006; and
(d) The description of the Company's Common Stock
contained in the Registration Statement on Form 8-A filed with
the Commission on February 13, 1984, 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 to this
Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing
of such documents with the Commission.
Any statement contained in a document incorporated or
deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a
statement contained in this Registration Statement, or in any
other subsequently filed document that also is or is deemed to
be incorporated by reference in this Registration Statement,
modifies or supersedes such prior statement. Any statement
contained in this Registration Statement shall be deemed to be
modified or superseded to the extent that a statement contained
in a subsequently filed document that is or is deemed to be
incorporated by reference in this Registration Statement
modifies or supersedes such prior 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.
Sandra M. Forman, General Counsel and Chief Compliance
Officer of the Company, issued an opinion in connection with
this registration statement, which is filed as Exhibit 5 hereto.
Ms. Forman is also a plan participant.
Item 6. Indemnification of Directors and Officers.
Article 8 ("Article 8") of the Company's Certificate of
Incorporation, as adopted by its board of directors in October
1992, and approved by its shareholders in December, 1992,
provides for the indemnification of its directors and officers
to the fullest extent permitted by applicable New York law,
subject to the applicable provisions of the Investment Company
Act of 1940 (the "1940 Act").
Scope of Indemnification Under New York Law. BCL Section
721-726 provide that a director or officer of a New York
corporation who was or is a party or a threatened party to any
threatened, pending or completed action, suit or proceeding (i)
shall be entitled to indemnification by the corporation for all
expenses of litigation when he is successful on the merits, (ii)
may be indemnified by the corporation for judgments, fines, and
amounts paid in settlement of, and reasonable expenses incurred
in, litigation (other than a derivative suit), even if he is not
successful on the merits, if he acted in good faith and for a
purpose he reasonably believed to be in or not opposed to the
best interest of the corporation (and, in criminal proceedings,
had no reasonable cause to believe that his conduct was
unlawful), and (iii) may be indemnified by the corporation for
amounts paid in settlement and reasonable expenses incurred in a
derivative suit (i.e., a suit by a shareholder alleging a breach
of a duty owed to the corporation by a director or officer) even
if he is not successful on the merits, if he acted in good
faith, for a purpose which he believed to be in, or not opposed
to, the best interest of the corporation. However, no
indemnification may be made in accordance with clause (iii) if
he is adjudged liable to the corporation, unless a court
determines that, despite the adjudication of liability and in
view of all of the circumstances, he is entitled to
indemnification. The indemnification described in clauses (ii)
and (iii) above and the advancement of litigation expenses, may
be made only upon a determination by (i) a majority of a quorum
of disinterested directors, (ii) independent legal counsel, or
(iii) the shareholders that indemnification is proper because
the applicable standard of conduct has been met. In addition,
litigation expenses to a director or officer may only be made
upon receipt of an undertaking by the director or officer to
repay the expenses if it is ultimately determined that he is not
entitled to be indemnified. The indemnification and advancement
of expenses provided for by BCL Section 721-726 are not deemed
exclusive of any rights the indemnitee may have under any
by-law, agreement, vote of shareholders or disinterested
directors, or otherwise. When any action with respect to
indemnification of directors is taken by amendment to the
by-laws, resolution of directors, or agreement, the corporation
must mail a notice of the action taken to its shareholders of
record by the earlier of (i) the date of the next annual
meeting, or (ii) fifteen months after the date of the action
taken.
The foregoing provisions are subject to Section 17(h) of
the 1940 Act, which provides that neither the certificate of
incorporation or by-laws nor any agreement may protect any
director or officer against any liability to the Company or any
of its stockholders to which he would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of his duties.
The Indemnification Agreements. Pursuant to the
Indemnification Agreement, the Company would indemnify the
indemnified director or officer (the "Indemnitee") to the
fullest extent permitted by New York law as in effect at the
time of execution of the Indemnification Agreement and to such
fuller extent as New York law may permit in the future, subject
in each case to the applicable provisions of the 1940 Act. An
Indemnitee would be entitled to receive indemnification against
all judgments rendered, fines levied, and other assessments
(including amounts paid in settlement of any claims, if approved
by the Company), plus all reasonable costs and expenses
(including attorneys? fees) incurred in connection with the
defense of any threatened, pending, or completed action or
proceeding, whether civil, criminal, administrative, or
investigative (an "Action"), related to or arising from (i) any
actual or alleged act or omission of the Indemnitee at any time
as a director, officer, employee, or agent of the Company or any
of its affiliates or subsidiaries, or (ii) the Indemnitee's
past, present, or future status as a director, officer, employee
or agent of the Company or any of its affiliates or
subsidiaries. An Indemnitee would also be entitled to
advancement of all reasonable costs and expenses incurred in the
defense of any Action upon a finding by a court or an opinion of
independent counsel that the Indemnitee is more likely than not
to prevail. If the Company makes any payment to the Indemnitee
under the Indemnification Agreement and it is ultimately
determined that the Indemnitee was not entitled to be
indemnified, the Indemnitee would be required to repay the
Company for all amounts paid to the Indemnitee under the
Indemnification agreement. An Indemnitee would not be entitled
to Indemnification or advancement of expenses under the
Indemnification Agreement with respect to any proceeding or
claim brought by him against the Company.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the SEC 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 Company
of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
The Company maintains directors' and officers' liability
insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Numbers Description
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4.0 Specimen of common stock certificate, incorporated by
reference to Exhibit D to Pre-Effective Amendment No. 2
to the Registration Statement on Form N-2 filed April
13, 2004
5.0 Opinion of General Counsel of the Company
23.0 Consent of PricewaterhouseCoopers LLP
The undersigned registrant hereby undertakes that it will
submit the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required in Section
10(a)(3) of the Securities Act of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering
price set froth in the "Calculation of Registration Fee" table
in the effective 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 (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the registration statement is on Form S-8 and the
information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement;
(2) 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; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability of the
Registrant under the Securities Act to any purchaser in the
initial distribution of the securities:
The undersigned Registrant undertakes that in a primary
offering of securities of the undersigned Registrant pursuant to
this Registration Statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of the
following communication, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned Registrant
or used or referred to by the undersigned Registrant;
(iii) the portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) The undersigned registrant hereby further 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
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 6 above, or
otherwise, the Registrant has been advised that in the opinion
of the SEC 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.
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
City of New York, State of New York, on June 22, 2006.
HARRIS & HARRIS GROUP, INC.
By: /s/ Charles E. Harris
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Name: Charles E. Harris
Title: Chief Executive Officer
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 date indicated:
Signature Title Date
---------------------- -------------------------- ------------------
/s/ Charles E. Harris Chairman of the Board and
---------------------- Chief Executive Officer June 22, 2006
Charles E. Harris (Principal Executive
Officer)
/s/ Douglas W. Jamison President, Chief Operating June 22, 2006
----------------------- Officer and Chief Financial
Douglas W. Jamison Officer (Principal Financial
Officer)
/s/ Patricia N. Egan Chief Accounting Officer June 22, 2006
----------------------- and Senior Controller
Patricia N. Egan
/s/ C. Wayne Bardin Director June 22, 2006
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Dr. C. Wayne Bardin
/s/ Phillip A. Bauman Director June 22, 2006
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Dr. Phillip A. Bauman
/s/ G. Morgan Browne Director June 22, 2006
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G. Morgan Browne
/s/ Dugald A. Fletcher Director June 22, 2006
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Dugald A. Fletcher
/s/ Kelly S. Kirkpatrick Director June 22, 2006
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Dr. Kelly S. Kirkpatrick
/s/ Mark A. Parsells Director June 22, 2006
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Mark A. Parsells
/s/ Lori D. Pressman Director June 22, 2006
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Lori D. Pressman
/s/ Charles E. Ramsey Director June 22, 2006
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Charles E. Ramsey
/s/ James E. Roberts Director June 22, 2006
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James E. Roberts
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee
benefit plan) have duly caused this registration statement to be
signed on their behalf by the undersigned, thereunto duly
authorized, in City of New York, State of New York, on June 22,
2006.
HARRIS & HARRIS GROUP, INC.
2006 EQUITY INCENTIVE PLAN
By: /s/ James E. Roberts
----------------------
James E. Roberts
not in his individual capacity,
but solely as an authorized
signatory for the Employee
Benefits Administration
Committee
EXHIBIT INDEX
Exhibit
Numbers Description
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5.0 Opinion of General Counsel of the Company
23.0 Consent of PricewaterhouseCoopers LLP