As filed with the Securities and Exchange Commission on August 25, 1995
Registration No. 33-62490
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
HARRIS & HARRIS GROUP, INC.
(Exact name of registrant as specified in its charter)
New York
(State or other jurisdiction of incorporation or organization)
13-3119827
(I.R.S. Employer Identification No.)
_______________
One Rockefeller Plaza, Suite 1430
New York, New York 10020
(Address of principal executive offices)
1988 Long Term Incentive Compensation Plan
(Full title of the plan)
Charles E. Harris
Chairman of the Board
Harris & Harris Group, Inc.
One Rockefeller Plaza, Suite 1430
New York, New York 10020
(Name and address of Agent for Service)
212-332-3600
(Telephone Number of Agent for Service)
______________
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
securities registered Maximum maximum registration
to be offering aggregate fee (2)
registered price per offering
share (1) price (1)
Common Stock 1,758,780 $5.375 $9,453,442.50 $3,259.81
(1) Estimated and calculated pursuant to Rule 457(c) and
(h) solely for the purpose of calculating the
registration fee, on the basis of the average of the
high and low prices reported on the NASDAQ National
Market System for Harris & Harris Group, Inc. common
stock as of the close of business on August 1, 1995.
The amount to be registered represents shares to be
issued under the Amended 1988 Plan and pursuant to
warrants deemed to have been issued under each plan
pursuant to the terms of Release No. 21250, the
exemptive ordered issued by the Securities and
Exchange Commission on July 25, 1995.
(2) Calculated at the rate of 1/29th of 1 percent, under
section 6(b) of the Securities Act of 1933
(15 U.S.C. 77f(b)).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by the
Registrant with the Securities and Exchange Commission
under the Securities Exchange Act of 1934, are hereby
incorporated by reference into the Registration
Statement.
(a) The Registrant's Semi-Annual Report to
Stockholders on Form N-SAR for the fiscal
year ended December 31, 1994.
(b) The Registrant's Report on Form SCH-13D
filed on April 26, 1994 disclosing
beneficial ownership of more than 5% of
certain registered equity securities.
(c) The Registrant's Report on Form SCH-13G
filed on May 15, 1995 disclosing
beneficial ownership of more than 5% of
certain registered equity securities for a
limited category of "persons".
(d) The Registrant's Semi-Annual Report filed
on August 3, 1995 containing unaudited
financial information.
(e) The description of the Registrant's Common
Stock contained in the Registrant's
Registration Statement on Form 8-A, filed
with the Securities and Exchange
Commission on February 13, 1984 and any
amendments or reports filed thereafter for
the purpose of updating such description.
All documents filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities
offered pursuant to this Registration Statement have been
sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference
into the Registration Statement and to be part thereof
from the date of filing of such documents.
Any statement contained in a document
incorporated or deemed to be incorporated by reference
into 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 a document
subsequently filed, 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.
The class of securities offered is
registered under Section 12 of the Securities Exchange
Act of 1934.
Item 5. Interests and Names of Experts and Counsel.
None.
Item 6. Indemnification of Officers and Directors.
Article VI, Section 6 ("Section 6") to the
Registrant's amended By-laws provides for the
indemnification of the Registrant's directors, officers,
employees, and agents to the fullest extent permitted by
applicable New York law or provided by any written
agreement between the Registrant and the indemnified
person. As permitted by Section 6 and Section 722 of the
Business Corporation Law of the State of New York
("BCL"), the Registrant has entered into an
indemnification agreement (the "Indemnification
Agreements") with each of its directors and executive
officers.
Scope of Indemnification Under New York
Law. BCL SECTIONS 721-726 provides 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 shall 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. The Board of Directors may authorize the
advancement of litigation expenses to a director or
officer 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 SECTIONS 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 Indemnification Agreements. Pursuant to
the Indemnification Agreement, the Registrant would
indemnify the indemnified director or executive 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. 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 Registrant), 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 Registrant 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 Registrant 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. If the
Registrant 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 Registrant
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
Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1. Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3(a) to
registrant's Annual Report on Form 10-K for the year
ended December 31, 1989, File No. 0-11576).
4.2. By-Laws
5.0. Opinion of Skadden, Arps, Slate, Meagher &
Flom as to the legality of the securities registered.
23.1. Consent of Skadden, Arps, Slate, Meagher &
Flom is contained in their opinion filed as Exhibit 5
hereto.
23.2. Consent of Arthur Andersen LLP
24.0. Power of Attorney is contained in the
Signature Page to this Registration Statement.
99.1. Securities and Exchange Commission's
Exemptive Order, Release No. 21250, issued to Harris &
Harris on July 25, 1995
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 by 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;
(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) do not apply if the registration
statement is on Form S-3, 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.
(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.
(b) 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.
(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 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 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 the City
of New York, State of New York, on this 1st day of
August, 1995.
HARRIS & HARRIS GROUP, INC.
By /s/Charles E. Harris
Charles E. Harris
Chairman of the Board of
Directors and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below constitutes and
appoints Charles E. Harris and C. Richard Childress
Robert B. Schulz, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to
file the same, with all exhibits thereto, and other
documents in connection therewith, with authority to do
and perform each and every act and thing requisite and
necessary to be done in and about the premises as fully
to all intents and purposes as he might or could do in
person, hereby ratifying and confirming that said
attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
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 August
1, 1995.
Signature Title
/s/Charles E. Harris Chairman of the Board of
Charles E. Harris Directors and Chief
Executive Officer
/s/Robert B. Schulz President and Chief
Robert B. Schulz Operating Officer and
Chief Compliance Officer
/s/C. Richard Childress Executive Vice President
C. Richard Childress and Chief Financial Officer
/s/David C. Johnson, Jr. Executive Vice President
David C. Johnson, Jr.
/s/Rachel M. Pernia Vice President, Treasurer
Rachel M. Pernia and Controller
/s/C. Wayne Bardin Director
C. Wayne Bardin
/s/G. Morgan Browne Director
G. Morgan Browne
/s/Harry E. Ekblom Director
Harry E. Ekblom
/s/Charles F. Hays Director
Charles F. Hays
/s/Jon J. Masters Director
Jon J. Masters
/s/Glenn E. Mayer Director
Glenn E. Mayer
/s/William R. Polk Director
William R. Polk
/s/Philip M. Skidmore Director
Philip M. Skidmore
/s/James E. Roberts Director
James E. Roberts
EXHIBIT INDEX
Exhibit
No. Description Page
4.1. Restated Certificate of
Incorporation (incorporated
herein by reference to Exhibit
3(a) to registrant's Annual
Report on Form 10-K for the year
ended December 31, 1989, File No.
0-11576).
4.2. By-Laws
5.0. Opinion of Skadden, Arps, Slate,
Meagher & Flom as to the legality
of the securities registered.
23.1. Consent of Skadden, Arps, Slate,
Meagher & Flom is contained in
their opinion filed as Exhibit 5
hereto.
23.2. Consent of Arthur Andersen LLP
24.0. Power of Attorney is contained in
the Signature Page to this
Registration Statement.
99.1. Securities and Exchange
Commission's Exemptive Order,
Release No. 21250, issued to
Harris & Harris on July 25, 1995.
Exhibit 4.2
BY-LAWS
OF
HARRIS & HARRIS GROUP, INC.
I certify that the following By-Laws, consisting of
nine pages, each of which I have initialed for identification,
are the By-Laws:
(1) Adopted, as contemplated by Section 601(a) of
the New York Business Corporation Law, as amended, for and on
behalf of the shareholders of Harris & Harris Group, Inc. (the
"Corporation") , by a written action signed by the
Corporation's sole incorporator and dated as of December 1,
1981;
(2) Approved and adopted by the Corporation's Board
of Directors by a unanimous written consent in lieu of an
organizational meeting dated as of December 1, 1981; and
(3) As amended by the Corporation's Board of
Directors (a) at its March 23, 1984, special meeting, (b) by a
unanimous written consent of directors dated as of April 13,
1984, (c) at its April 30, 1984, special meeting, (d) at its
July 9, 1984, meeting, (e) at its October 19, 1984, meeting,
(f) at its July 11, 1985, meeting, (g) at its November 17,
1988, meeting, (h) at its April 25, 1989, meeting; (i) by a
unanimous written consent of directors dated June 9, 1992; and
(j) at its October 19, 1992 meeting.
/s/Susan Neissa-Carey
Susan Neissa-Carey, Secretary
Dated: August 3, 1995
BY-LAWS
OF
HARRIS & HARRIS GROUP, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal
office of the corporation shall be located in the City, County
and State of New York.
SECTION 2. OTHER OFFICES. The corporation may
have other offices and places of business, within or without
the State of New York, as shall be determined by the
directors.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the
shareholders may be held at such place or places, within or
without the State of New York, as shall be fixed by the
directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING. The annual meeting
of shareholders for the election of directors and the
transaction of such other business as may properly come before
the meeting shall be held on the date selected by the Board of
Directors in each calendar year.(1)
SECTION 3. NOTICE OF ANNUAL MEETING. Notice of
the annual meeting shall be given to each shareholder entitled
to vote, at least ten days prior to the meeting.
SECTION 4. SPECIAL MEETINGS. Special meetings
of the shareholders for any purpose or purposes may be called
by the President or Secretary.
SECTION 5. NOTICE OF SPECIAL MEETING. Notice of
a special meeting, stating the time, place and purpose or
purposes thereof, shall be given to each shareholder entitled
to vote, at least ten days prior to the meeting. The notice
shall also set forth at whose direction it is being issued.
SECTION 6. QUORUM. At any meeting of the
shareholders, the holders of a majority of the shares of stock
then entitled to vote, shall constitute a quorum for all
purposes, except as otherwise provided by law or the
Certificate of Incorporation.
____________________
1 As amended at the April 30, 1984, special directors'
meeting.
SECTION 7. VOTING. At each meeting of the
shareholders, every holder of stock then entitled to vote may
vote in person or by proxy, and, except as may be otherwise
provided by the Certificate or Incorporation, shall have one
vote for each share of stock registered in his name.
SECTION 8. ADJOURNED MEETINGS. Any meeting of
shareholders may be adjourned to a designated time and place
by a vote of a majority in interest of the shareholders
present in person or by proxy and entitled to vote, even
though less than a quorum is so present. No notice of such an
adjourned meeting need by given, other than by announcement at
the meeting, and any business may be transacted which might
have been transacted at the meeting as originally called.
SECTION 9. ACTION BY WRITTEN CONSENT OF
SHAREHOLDERS. Whenever by any provision of statute or of the
Certificate of Incorporation or of these By-Laws, the vote of
shareholders at a meeting thereof is required or permitted to
be taken in connection with any corporate action, the meeting
and vote of shareholders may be dispensed with, if all the
shareholders who would have been entitled to vote upon the
action if such meeting were held, shall consent in writing to
such corporate action being taken.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER. The number of directors of
the corporation shall be determined from time to time by
resolutions of the directors, who shall hold office for the
term of one year and until their successors are duly elected
and qualify. The number of directors may be less than three
when all of the shares are owned by less than three
shareholders, but in such event the number of directors may
not be less than the number of shareholders. Directors need
not be shareholders.
SECTION 2. POWERS. The Board of Directors may
adopt such rules and regulations for the conduct of its
meetings, the exercise of its powers and the management of the
affairs of the corporation as it may deem proper, not
inconsistent with the laws of the State of New York, the
Certificate of Incorporation or these By-Laws.
In addition to the powers and authorities by these
By-Laws expressly conferred upon them, the Board of Directors
may exercise all such powers of the corporation and do such
lawful acts and things except as are by statute, the
Certificate of Incorporation or these By-Laws directed or
required to be exercised or done by the shareholders.
SECTION 3. MEETING, QUORUM, ACTION WITHOUT
MEETING. Meetings of the Board of Directors may be held at
any place, either within or outside the State of New York,
provided a quorum be in attendance. Except as may be
otherwise provided by the Certificate of Incorporation or by
the Business Corporation Law, a majority of the directors in
office shall constitute a quorum at any meeting of the Board
of Directors and the vote of a majority of a quorum of
directors shall constitute the act of the Board of Directors.
The Board of Directors may hold an annual meeting,
without notice, immediately after the annual meeting of
shareholders. Regular meetings of the Board of Directors may
be established by a resolution adopted by the Board of
Directors. The Chairman of the Board of Directors may call,
and at the request of any two directors must call, a special
meeting of the Board of Directors, three days notice of which
shall be given by overnight United States Mail or by Federal
Express or any other private overnight courier service, or two
days notice of which shall be given personally or by
telephone, telecopier or telefax (or similar communications
equipment), telegram or cable, to each director.(2)
Any one or more members of the Board of Directors or
any committee thereof may participate in a meeting of such
Board of Directors or Committee by means of a conference
telephone call or similar communications equipment allowing
all persons participating in the meeting to hear each other at
the same time, if before the meeting the Chairman of the Board
of Directors or the Chairman of such Committee, as the case
____________________
2 As amended at the November 17, 1988, directors'
meeting.
may be, determines that an emergency or other extraordinary
circumstances exist, making telephone participation in the
meeting by one or more directors appropriate. The
determination by the Chairman of the Board of Directors or the
Chairman of a Committee thereof, as the case may be, that an
emergency or other extraordinary circumstances exist, making
telephone participation in the meeting by one or more
directors appropriate, shall be final and conclusive. Where
authorized by the Chairman of the Board of Directors or the
Chairman of a Committee thereof, as described above in this
paragraph, participation by means of a conference telephone
call or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same
time shall constitute presence in person at the meeting.(3)
Any action required or permitted to be taken by the
Board of Directors or any Committee thereof may be taken
without a meeting if all members of the Board of Directors or
the Committee consent in writing to the adoption of a
resolution authorizing the action. The resolution and the
written consents thereto by the members of the Board of
Directors or Committee shall be filed with the minutes of the
meetings of the Board of Directors or Committee.
SECTION 4. VACANCIES, REMOVAL. Except as
otherwise provided in the Certificate of Incorporation or in
the following paragraph, vacancies occurring in the membership
of the Board of Directors, from whatever cause arising
(including vacancies occurring by reason of the removal of
directors without cause and newly created directorships
resulting from any increase in the authorized number of
directors), may be filled by a majority vote of the remaining
directors, though less than a quorum, or such vacancies may be
filled by the shareholders.
Except where the Certificate of Incorporation
contains provisions authorizing cumulative voting or the
election of one or more directors by class or their election
by holders of bonds, or requires all action by shareholders to
be by a greater vote, any one or more [of](4) the directors
may be removed, (a) either for or without cause, at any time,
by vote of the shareholders holding a majority of the
outstanding stock of the corporation entitled to vote, present
in person or by proxy, at any special meeting of the
shareholders or by written consent of all of the shareholders
entitled to vote, or (b) for cause, by action of the Board of
Directors at any regular or special meeting of the Board of
Directors. A vacancy or vacancies occurring from such removal
may be filled at the special meeting of shareholders or at a
regular or special meeting of the Board of Directors.
SECTION 5. COMMITTEES. The Board of Directors,
by resolution adopted by a majority of the entire Board of
Directors, may designate from its members an Executive
Committee or other committee or committees, each consisting of
three or more members, with such powers and authority (to the
extent permitted by law) as may be provided in said resolution.
________________
3 As amended at the April 25, 1989, directors' meeting.
4 Apparent typographical error in originally adopted
text.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE OFFICERS. The executive
officers of the corporation shall be a Chairman of the Board,
a President, a Treasurer and a Secretary, all of whom shall be
elected annually by the Board of Directors, who shall hold
office at the pleasure of the Board of Directors. No one
person may serve simultaneously as both President and
Secretary of the corporation, but any two or more other
offices may be held simultaneously by the same person. All
vacancies occurring among any of the officers shall be filled
by the Board of Directors.(5)
SECTION 2. OTHER OFFICERS. The Board of
Directors may appoint such other officers and agents with such
powers and duties as it shall deem necessary.
SECTION 3. THE CHAIRMAN OF THE BOARD. The
Chairman of the Board of Directors shall be the chief
executive officer of the corporation and, while the Board of
Directors is not in session, shall have general management and
control of the business and affairs of the corporation. He
shall also preside at all meetings of the Board of Directors
and shall have and perform such other duties as from time to
time may be assigned to him by the Board of Directors.(6)
SECTION 4. THE PRESIDENT. The President, who
may but need not be a director, shall, in the absence of a
Chairman of the Board, preside at all meetings of the
shareholders and directors. He shall have and perform such
other duties as from time to time may be assigned to him by
the Board of Directors or the Chairman of the Board.(7)
SECTION 5. THE VICE-PRESIDENT. The Vice-
President, if one be elected, or if there be more than one,
the senior Vice-President as determined by the Board of
Directors, in the absence or disability of the President,
shall exercise the powers and perform the duties of the
President and each Vice-President shall exercise such other
powers and perform such other duties as from time to time may
be assigned to him by the Board of Directors, the Chairman of
the Board, or the President.(8)
__________________
5 As amended at the November 17, 1988, directors'
meeting.
6 As amended at the November 17, 1988, directors'
meeting.
7 As amended at the November 17, 1988, directors'
meeting.
8 As amended at the November 17, 1988, directors'
meeting.
SECTION 6. THE TREASURER. The Treasurer shall
have custody of all funds, securities and evidences of
indebtedness of the corporation; he shall receive and give
receipts and acquittances for moneys paid in on account of the
corporation, and shall pay out of the funds on hand all bills,
payrolls, and other just debts of the corporation, of whatever
nature, upon maturity; he shall enter regularly in books to be
kept by him for that purpose, full and accurate accounts of
all moneys received and paid out by him on account of the
corporation, and he shall perform all other duties incident to
the office of Treasurer and as may be prescribed by the Board
of Directors.
SECTION 7. THE SECRETARY. The Secretary shall
keep the minutes of all meetings of the Board of Directors and
of the shareholders; he shall attend to the giving and serving
of all notices to shareholders and directors or other notice
required by law or by these By-Laws; he shall affix the seal
of the corporation to deeds, contracts and other instruments
in writing requiring a seal, when duly signed or when so
ordered by the Board of Directors; he shall have charge of the
certificate books and stock books and such other books and
papers as the Board of Directors may direct, and he shall
perform all other duties incident to the office of Secretary.
SECTION 8. SALARIES. The salaries and other
compensation of all officers and employees shall be fixed by
the Board of Directors, or by any committee designated from
among the directors (in accordance with Article III, Section
5, of the se By-Laws) to handle such compensation matters, and
the fact that any officer is a director shall not preclude him
from receiving a salary and other compensation as an officer,
or from voting upon the resolution providing the same.(9)
ARTICLE V
CAPITAL STOCK
SECTION 1. FORM AND EXECUTION OF CERTIFICATES.
Certificates of stock shall be in such form as required by the
Business Corporation Law of New York and as shall be adopted
by the Board of Directors. They shall be numbered and
registered in the order issued; shall be signed by the
Chairman or a Vice-Chairman of the Board of Directors (if any)
or by the President or Vice-President and by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant
Treasurer and may be sealed with the corporate seal or a
facsimile thereof. When such a certificate is countersigned
by a transfer agent or registered by a registrar, the
signatures of any such officers may be facsimile.
SECTION 2. TRANSFER. Transfer of shares shall
be made only upon the books of the corporation by the
registered holder in person or by attorney, duly authorized,
and upon surrender of the certificate or certificates for such
shares properly assigned for transfer.
_____________________
9 As amended by the Unanimous Written Action by Board of
Directors dated June 9, 1992.
SECTION 3. LOST OR DESTROYED CERTIFICATES. The
holder of any certificate representing shares of stock of the
corporation may notify the corporation of any loss, theft or
destruction thereof, and the Board of Directors may thereupon,
in its discretion, cause a new certificate for the same number
of shares, to be issued to such holder upon satisfactory proof
of such loss, theft or destruction, and the deposit of
indemnity by way of bond or otherwise, in such form and amount
and with such surety or sureties as the Board of Directors may
require, to indemnify the corporation against any loss or
liability by reason of the issuance of such new certificates.
SECTION 4. RECORD DATE. In lieu of closing the
books of the corporation, the Board of Directors may fix, in
advance, a date, not exceeding fifty days, nor less than ten
days, as the record date for the determination of shareholders
entitled to receive notice of, or to vote, at any meeting of
shareholders, or to consent to any proposal without a meeting,
or for the purpose of determining shareholders entitled to
receive payment of any dividends, or allotment of any right,
or for the purpose of any other action.
ARTICLE VI
MISCELLANEOUS
SECTION 1. DIVIDENDS. The Board of Directors
may declare dividends from time to time upon the capital stock
of the corporation from the surplus or net profits available
therefor.
SECTION 2. SEAL. The Board of Directors shall
provide a suitable corporate seal and shall be used as
authorized by the By-Laws.
SECTION 3. FISCAL YEAR. The fiscal year of the
corporation shall be determined by the Board of Directors.
SECTION 4. CHECKS, NOTES, ETC. Checks, notes,
drafts, bills of exchange and orders for the payment of money
shall be signed or endorsed in such manner as shall be
determined by the Board of Directors.
The funds of the corporation shall be deposited in
such bank or trust company, and checks drawn against such
funds shall be signed in such manner as may be determined from
time to time by the Board of Directors.
SECTION 5. NOTICE AND WAIVER OF NOTICE. Any
notice required to be given under these By-Laws may be waived
by the person entitled thereto, in writing, by telecopier or
telefax (or similar communications equipment), telegram, cable
or radiogram, and the presence of any person at a meeting
shall constitute waiver of notice thereof as to such
person.(10) (11)
________________________
10 As amended at the November 17, 1988, directors'
meeting.
ARTICLE VII
AMENDMENTS
SECTION 1. BY SHAREHOLDERS. These By-Laws may
be amended at any shareholders' meeting by vote of the
shareholders holding a majority (unless the Certificate of
Incorporation requires a larger vote) of the outstanding stock
having voting power, present either in person or by proxy,
provided notice of the amendment is included in the notice or
waiver of notice of such meeting.
SECTION 2. BY DIRECTORS. The Board of Directors
may also amend these By-Laws at any regular or special meeting
of the Board by a majority (unless the Certificate of
Incorporation required a larger vote) vote of the entire
Board, but any By-Laws so made by the Board of Directors may
be altered or repealed by the shareholders.
__________________
11 Section 6 "Indemnification" was deleted in its entirety
pursuant to a unanimous written consent of directors
dated October 19, 1992.
Exhibit 5
Skadden, Arps, Slate, Meagher & Flom
919 THIRD AVENUE
NEW YORK 10022-3897
(212) 735-3000
FAX: (212) 735-2000
August 25, 1995
Harris & Harris Group, Inc.
One Rockefeller Plaza, Suite 1430
New York, New York 10022
Re: Harris & Harris Group, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel to Harris & Harris
Group, Inc., a New York corporation (the "Company"), in
connection with the registration statement on Form S-8 (the
"Registration Statement") of the Company to be filed with the
Securities and Exchange Commission (the "Commission") relating
to 1,758,780 shares, subject to adjustment (the "Shares"), of
the Company's common stock, par value $.01 per share (the
"Common Stock"). The Shares are issuable upon exercise of
stock options (the "Options") issuable under the Company's
1988 Long Term Incentive Compensation Plan (the "Plan") and
343,763 warrants (the "Warrants") held by certain employees of
the Company and its subsidiaries.
Pursuant to the terms of Exemptive Order, Release No.
21250 (the "Order"), issued to the Company by the Commission
on July 25, 1995, the Warrants are deemed to have been issued
pursuant to the Plan and the Options will be issued pursuant
to such Plan. The Plan provides for the award of Options to
selected employees of the Company and its subsidiaries.
On April 20, 1994, the Board of Directors of the
Company determined that it would be in the best interests of
the shareholders to elect to be regulated under sections 55
through 65 of the Investment Company Act of 1940 (the "Act")
as a business development company ("BDC"). However, the
Company needed an exemption from the provisions of sections
18(d), 23(b), 61(a)(3)(B) and 61(b) of the Act. The Company
filed an application for such an exemption on July 29, 1994,
and amendments thereto on November 3, 1994, and June 29, 1995
(File No. 812-9132). On July 25, 1995, the Commission issued
the Order which stated: "Upon the Company's election as a BDC,
the order permits the ... warrants to remain exercisable
pursuant their terms as if they had been issued pursuant to an
executive compensation plan conforming to section 61(a)(3)(B)
of the Act."
On July 27, 1995, the Company filed a notification
of election on Form N-54A pursuant to section 54(a) of the
Act.
This opinion is being delivered in accordance with
the requirements of Item 601(b)(5) of Regulation S-K
promulgated by the Commission under the Securities Act of
1933, as amended (the "Securities Act").
In connection with this opinion, we have examined
and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of (i) the Plan;
(ii) the Order; (iii) the Restated and Amended Certificate of
Incorporation of the Company and the By-Laws of the Company,
in each case as amended to date; (iv) resolutions adopted by
the Board of Directors of the Company relating to the Order
and the Plan; (v) the proxy statement and certificate of vote
relating to the amendments to the Plan adopted by the
Company's shareholders at the Annual Meeting of Shareholders
held on June 30, 1994; (vi) the Registration Statement
proposed to be filed with the Commission on the date hereof,
including the prospectus covering the Shares which is part of
such Registration Statement; and (vii) such other documents as
we have deemed necessary or appropriate as a basis for the
opinion set forth below. In our examination, we have assumed
the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the
originals of such latter documents. As to any facts material
to this opinion that we did not independently establish or
verify, we have relied upon statements and representations of
officers and other representatives of the Company and others.
We are admitted to the Bar of the State of New York
and express no opinion as to the laws of any other
jurisdiction.
Based upon and subject to the foregoing, we are of
the opinion that the Shares have been duly and validly
authorized and reserved for issuance upon exercise of the
Options and the Warrants and, when the Shares are issued upon
exercise of the Options and the Warrants in accordance with
the terms thereof and of the Plan and the Company has received
the full consideration required to be paid upon such exercise,
the Shares will have been validly issued and will be fully
paid and non-assessable (except insofar as liability may be
imposed by Section 630 of the New York Business Corporation
Law).
We have assumed that (i) the Options and the
Warrants have been duly authorized and issued in accordance
with their terms and that the Company has received full
consideration therefor and (ii) the certificates evidencing
the Shares have been duly and validly countersigned by the
then-acting registrar and transfer agent for the Common Stock.
We hereby consent to the filing of this opinion as
Exhibit 5 to the Registration Statement. In giving this
consent, we do not concede that we are experts within the
meaning of the Securities Act or that this consent is required
by Section 7 of the Securities Act.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom
____________________________________________________________________________
Exhibit 23.2
Arthur
Andersen
Arthur Andersen & Co, SC
_____________________
Arthur Andersen LLP
_____________________
1345 Avenue of the Americas
New York NY 10105
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of
our report dated February 6, 1995 included in Harris & Harris
Group, Inc.'s Form N-SAR for the year ended December 31, 1994
and to all references to our Firm included in this
registration statement.
Arthur Andersen LLP
New York, New York
August 24, 1995
______________________________________________________________________________
Exhibit 99.1
UNITED STATES OF AMERICA
BEFORE THE
SECURITIES AND EXCHANGE COMMISSION
INVESTMENT COMPANY ACT OF 1940
Release No. 21250 / July 25, 1995
___________________________________
In the Matter of :
:
HARRIS & HARRIS GROUP, INC. :
One Rockefeller Plaza :
New York, NY 10020 :
:
(812-9132) :
:
___________________________________:
ORDER UNDER SECTIONS 6(c) and 61(a) OF THE INVESTMENT COMPANY
ACT OF 1940 GRANTING AN EXEMPTION FROM SECTIONS 18(d), 23(b),
61(a)(3)(B), AND 61(b)
Harris & Harris Group, Inc. filed an application on July 29,
1994, and amendments thereto on November 3, 1994, and June 29,
1995 requesting an order under sections 6(c) and 61(a) of the
Act for an exemption from sections 18(d), 23(b), 61(a)(3)(B),
and 61(b). Applicant is a closed-end registered investment
company that intends to elect business development company
("BDC") status under the Act. Before becoming a registered
investment company, applicant issued warrants that currently
are held by two of its officers and issued stock options to
certain officers and non-employee directors. Upon applicant's
election of BDC status, the order permits the options and
warrants to remain exercisable pursuant to their terms as if
they had been issued pursuant to an executive compensation
plan conforming to section 61(a)(3)(B) of the Act.
On June 29, 1995, a notice of the filing of the application
was issued (Investment Company Act Release No. 21174). The
notice gave interested persons an opportunity to request a
hearing and stated that an order disposing of the application
would be issued unless a hearing was ordered. No request for
a hearing has been filed, and the Commission has not ordered a
hearing.
The matter has been considered and it is found, on the basis
of the information set forth in the application and the
amendments thereto, that granting the requested exemption is
appropriate in the public interest and consistent with the
protection of investors and the purposes fairly intended by
the policy and provisions of the Act. It is also found that
the terms of the requested authorization are fair and
reasonable and do not involve overreaching of the company or
its shareholders.
Accordingly,
IT IS ORDERED, under sections 6(c) and 61(a) of the Act, that
the requested exemption from sections 18(d), 23(b),
61(a)(3)(B), and 61(b) is hereby granted, effective forthwith,
subject to the conditions contained in the application, as
amended.
For the Commission, by the Division of Investment Management,
under delegated authority.
Jonathan G. Katz
Secretary
