POS EX: Post-effective amendment filed solely to add exhibits to a registration statement
Published on June 17, 2008
As
filed with the Securities and Exchange Commission on June
17, 2008
Securities
Act Registration No. 333-138996
Investment
Company Act File Number 814-176
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________
FORM
N-2
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933:
PRE-EFFECTIVE
AMENDMENT NO.
£
POST-EFFECTIVE
AMENDMENT NO. 5 T
___________
HARRIS
& HARRIS GROUP, INC.
(Exact
Name of Registrant as Specified in its Charter)
111
West 57th
Street
Suite
1100
New
York, New York 10019
(Address
of Principal Executive Offices)
(212)
582-0900
(Registrant’s
Telephone Number, including Area Code)
Charles
E. Harris, Chairman, CEO
111
West 57th
Street
Suite
1100
New
York, New York 10019
(Name
and Address of Agent for Service)
___________
Copies
to:
|
Sandra
M. Forman, Esq.
|
Richard
T. Prins, Esq.
|
|
General
Counsel
|
Skadden,
Arps, Slate, Meagher & Flom LLP
|
|
Harris
& Harris Group, Inc.
|
Four
Times Square
|
|
111
West 57th
Street, Suite 1100
|
New
York, New York 10036
|
|
New
York, New York 10019
|
(212)
735-3000
|
|
(212)
582-0900
|
__________________
Approximate
Date of Proposed Public Offering:
From
time to time after the effective date of this Registration
Statement
If
any securities being registered on this form will be offered on a delayed
or
continuous basis in reliance on Rule 415 under the Securities Act of 1933,
other
than securities offered in connection with a dividend reinvestment plan,
check
the following box. T
This
Post-Effective Amendment No. 5 will become effective immediately upon filing
pursuant to Rule 462(d) under the Securities Act of 1933.
EXPLANATORY
NOTE AND INCORPORATION BY REFERENCE
This
Post-Effective Amendment No. 5 to the Registration Statement on Form N-2
(File
No. 333-138996) is being filed pursuant to Rule 462(d) under the Securities
Act
of 1933 (the “Securities Act”), solely for the purpose of adding additional
exhibits to such Registration Statement. Accordingly, this Post-Effective
Amendment No. 5 consists only of a facing page, this explanatory note, and
Part
C of the Registration Statement on Form N-2 setting forth the exhibits to
the
Registration Statement. This Post-Effective Amendment No. 5 does not change
any
other part of the Registration Statement. Pursuant to Rule 462(d) under the
Securities Act, this Post-Effective Amendment No. 5 shall become effective
immediately upon filing with the Securities and Exchange Commission. The
contents of the Registration Statement are hereby incorporated by
reference.
PART
C — OTHER INFORMATION
Item
25. Financial Statements and Exhibits
|
(1)
|
Financial
Statements
- The following financial statements and related documents are
incorporated by reference into this Registration
Statement:
|
|
(a)
Annual
Report on Form 10-K
|
||
|
Report
of Independent Registered Public Accounting Firm
|
||
|
Consolidated
Statements of Assets and Liabilities as of
December
31, 2007, and 2006
|
||
|
Consolidated
Statements of Operations for the years ended
December
31, 2007, 2006, and 2005
|
||
|
Consolidated
Statements of Cash Flows for the years ended
December
31, 2007, 2006, and 2005
|
||
|
Consolidated
Statements of Changes in Net Assets for the
years
ended December 31, 2007, 2006, and 2005
|
||
|
Consolidated
Schedule of Investments as of December 31, 2007,
and
2006
|
||
|
Notes
to Consolidated Schedule of Investments
|
||
|
Notes
to Consolidated Financial Statements
|
||
|
Financial
Highlights for the years ended December 31,
2007,
2006, and 2005
|
|
(b)
Quarterly
Report on Form 10-Q
|
||
|
Consolidated
Statements of Assets and Liabilities as of
March
31, 2008 and December 31, 2007
Consolidated
Statements of Operations for the quarters ended
March
31, 2008 and 2007
Consolidated
Statements of Cash Flows for the quarters ended
March
31, 2008 and 2007
Consolidated
Statements of Changes in Net Assets for the quarter
ended
March 31, 2008 and the year ended December 31, 2007
Consolidated
Schedule of Investments as of March 31, 2008
Notes
to Consolidated Schedule of Investments
Notes
to Consolidated Financial Statements
Financial
Highlights for the quarters ended March 31, 2008
and
2007
|
Statements,
schedules and historical information other than those listed above have been
omitted since they are either not applicable, or not required or the required
information is shown in the financial statements or notes thereto.
C-1
(2) Exhibits:
(a) (1) Restated
Certificate of Incorporation of Harris & Harris Group, Inc., dated September
23, 2005, incorporated by reference as Exhibit 99 to Form 8-K filed on September
27, 2005.
(2) Certificate
of Amendment of the Certificate of Incorporation of Harris & Harris Group,
Inc., dated May 19, 2006, incorporated by reference as Exhibit 3.1 to the
Company's Form 10-Q filed on August 9, 2006.
(b) Restated
By-laws of the Company, incorporated by reference as Exhibit 2(b) to
Pre-Effective Amendment No. 1 to the Company's Registration Statement on
Form
N-2 (File No. 333-112862), filed on March 22, 2004.
(c) Not
applicable.
(d) Form
of Specimen Certificate of Common Stock.(2)
(e) Not
applicable.
(f) Not
applicable.
(g) Not
applicable.
| (h) |
(1) Placement
Agency Agreement.(1)
|
|
(2)
|
Form
of Subscription Agreement.(1)
|
|
(3)
|
Escrow
Agreement.(1)
|
(i) (1) Harris
& Harris Group, Inc. Amended and Restated Employee Profit-Sharing Plan,
incorporated by reference as Exhibit 10.8 to the Company’s Form 10-K for the
year ended December 31, 2007 (File No. 814-00176), filed on March 13,
2008.
(2) Harris
& Harris Group, Inc., 2006 Equity Incentive Plan, incorporated by reference
as Appendix B to the Company's Proxy Statement for the 2006 Annual Meeting
of
Shareholders filed on April 3, 2006.
(3) Form
of Incentive Stock Option Agreement incorporated by reference as Exhibit
10.1 to
the Company's Form 8-K (File No. 814-00176) filed on June 26, 2006.
(4) Form
of Non-Qualified Stock Option Agreement, incorporated by reference as Exhibit
10.2 to the Company's Form 8-K (File No. 814-00176) filed on June 26,
2006.
(5) Harris
& Harris Group, Inc. Directors Stock Purchase Plan 2001.(2)
(6) Amended
and Restated Employment Agreement between Harris & Harris Group, Inc. and
Charles E. Harris, dated August 2, 2007, incorporated by reference as Exhibit
10.1 to the Company’s Form 8-K (File No. 814-00176) filed on August 3,
2007.
(7) Amended
and Restated Severance Compensation Agreement, dated August 2, 2007,
incorporated by reference as Exhibit 10.2 to the Company’s Form 8-K (File No.
814-00176) filed on August 3, 2007.
(8) Trust
Under Harris & Harris Group, Inc. Deferred Compensation
Agreement.(2)
C-2
(9) Amended
and Restated Harris & Harris Group, Inc. Executive Mandatory Retirement
Benefit Plan, dated August 2, 2007, incorporated by reference as Exhibit
10.4 to
the Company’s Form 8-K (File No. 814-00176) filed on August 3,
2007.
(10) Amended
and Restated Supplemental Executive Retirement Plan, dated August 2, 2007,
incorporated by reference as Exhibit 10.3 to the Company’s Form 8-K (File No.
814-00176) filed on August 3, 2007.
(j) Harris
& Harris Group, Inc. Custodian Agreement with JP Morgan, incorporated by
reference as Exhibit 2(j) to Pre-Effective Amendment No. 1 to the Company's
Registration Statement on Form N-2 (File No. 333-112862) filed on March 22,
2004.
(k) (1) Form
of
Indemnification Agreement which has been established with all directors and
executive officers of the Company, incorporated by reference as Exhibit 2(i)(7)
to Pre-Effective Amendment No. 1 to the Company's Registration Statement
on Form
N-2 (File No. 333-112862) filed on March 22, 2004.
(2) Agreement
of Sub-Sublease, dated April 18, 2003, by and between Prominent USA, Inc.
and
Harris & Harris Group, Inc., incorporated by reference as exhibit 10.17 to
the Company’s Form 10-K for the year ended December 31, 2007 (File No.
814-00176), filed on March 13, 2008.
(3) Amendment
to Agreement of Sub-Sublease, dated May 9, 2003, by and between Prominent
USA,
Inc., and Harris & Harris Group, Inc., incorporated by reference as exhibit
10.18 to the Company’s Form 10-K for the year ended December 31, 2007 (File No.
814-00176), filed on March 13, 2008.
(4) Assignment
and Assumption, Modification and Extension of Sublease Agreement, dated December
17, 2004, by and among the Economist Newspaper Group, Inc., National Academy
of
Television Arts & Sciences, and Harris & Harris Group, Inc.,
incorporated by reference as exhibit 10.19 to the Company’s Form 10-K for the
year ended December 31, 2007 (File No.814-00176) filed on March 13,
2008.
|
(l)
|
Opinion
letter and Consent of Skadden, Arps, Slate, Meagher & Flom,
LLP.(3)
|
|
(m)
|
Not
applicable.
|
|
(n)
|
Consent
of Independent
Registered Public Accounting Firm.(1)
|
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(o)
|
Not
applicable.
|
|
(p)
|
Not
applicable.
|
|
(q)
|
Not
applicable.
|
|
(r)
|
Code
of Ethics Pursuant to Rule 17j-1, incorporated by reference as
Exhibit 14
to the Company's Form 8-K (File No. 814-00176) filed on March
7,
2008.
|
|
(s)
|
Powers
of Attorney.(2)(3)
|
(1) Filed
herewith.
(2) Previously
filed with the Company's Registration Statement on Form N-2 (File No.
333-138996) filed on November 29, 2006.
(3) Previously
filed with Pre-Effective Amendment No. 2 to the Company’s Registration Statement
on Form N-2 (File No. 333-138996) filed on April 23, 2007.
C-3
Item
26. Marketing Arrangements
The
information contained under the heading "Plan of Distribution" of the Prospectus
is incorporated herein by reference, and any information concerning any
underwriters will be contained in the accompanying Prospectus
Supplement.
Item
27. Other Expenses of Issuance and Distribution
The
following table sets forth the expenses to be incurred in connection with
this
offering described in this Registration Statement:
|
Registration
fees
|
$
|
5,000
|
||
|
Nasdaq
listing fee
|
$
|
6,500
|
||
|
Printing
(other than stock certificates)
|
$
|
0
|
||
|
Accounting
fees and expenses
|
$
|
40,000
|
||
|
Legal
fees and expenses
|
$
|
115,000
|
||
|
Miscellaneous
|
$
|
158,500
|
||
|
Total
|
$
|
325,000
|
Item
28. Persons Controlled by or Under Common Control with Company
|
At
December 31, 2007
|
Organized
under
laws of
|
Percentage
of voting
securities
owned
by
the Registrant
|
|
Harris
& Harris Enterprises, Inc.
|
Delaware
|
100%
|
Item
29. Number of Holders of Securities
(as of June 13, 2008)
Title
of class Number
of record holders
Common
Stock, $.01 par value 136
Item
30. Indemnification
Article
8 ("Article 8") of our Certificate of Incorporation, as adopted by our board
of
directors in October 1992, and approved by our shareholders in December 1992
and
restated in September 2005, provides for the indemnification of our directors
and officers to the fullest extent permitted by applicable New York law,
subject
to the applicable provisions of the 1940 Act.
Scope
of Indemnification Under New York Law.
BCL §§ 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 §§ 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.
C-4
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 of 1933
(the
"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 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 Act and
will
be governed by the final adjudication of such issue.
We
maintain directors’ and officers’
liability insurance.
Item
31. Business and Other Connections of Investment Adviser
Not
applicable because the Company
has no investment adviser.
Item
32. Location of Accounts and Records
Certain
accounts, books and other documents required to be maintained by Section
31(a)
of the 1940 Act and the Rules promulgated
there under are maintained at the offices of the Company at 111
West
57th
Street,
Suite 1100,
New York, New York 10019. Certain accounts, books and other documents pertaining
to the Company’s subsidiaries are maintained at 111
West
57th
Street,
Suite 1100, New
York, New York 10019.
C-5
Item
33. Management Services
Global
Shares provides stock plan administration services for our Equity Incentive
Plan. The total cost of these services for 2008 is estimated to be
$17,500.
Item
34. Undertakings
1. We
undertake to suspend the offering of shares until we amend our prospectus
if:
|
(1)
|
subsequent
to the effective date of this Registration Statement, the net asset
value
per share declines more than 10 percent from our net asset value
per share
as of the effective date of the Registration Statement;
or
|
|
(2)
|
the
net asset value increases to an amount greater than our net proceeds
as
stated in the Prospectus.
|
2. Not
applicable.
3. Not
applicable.
4. We
hereby undertake:
|
(a)
|
to
file, during any period in which offers or sales are being made,
a
post-effective amendment to this Registration
Statement:
|
|
(1)
|
to
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933;
|
|
(2)
|
to
reflect in the prospectus any facts or events after the effective
date of
the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement;
and
|
|
(3)
|
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.
|
|
(b)
|
that
for the purpose of determining any liability under the Securities
Act of
1933, each 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;
|
|
(c)
|
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; and
|
|
(d)
|
that
for the purpose of determining liability under the Securities Act
of 1933
to any purchaser, if the Registrant is subject to Rule 430C: Each
prospectus filed pursuant to Rule 497(b), (c),(d) or (e) under
the
Securities Act of 1933 as part of a registration statement relating
to an
offering, other than prospectuses filed in reliance on Rule 430A
under the
Securities Act of 1933, shall be deemed to be part of and included
in the
registration statement as of the date it is first used after
effectiveness. Provided,
however,
that no statement made in a registration statement or prospectus
that is
part of the registration statement or made in a document incorporated
or
deemed incorporated by reference into the registration statement
or
prospectus that is part of the registration statement will, as
to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or
made in any such document immediately prior to such date of first
use.
|
C-6
|
(e)
|
that
for the purpose of determining our liability under the Securities
Act of
1933 to any purchaser in the initial distribution of
securities:
|
|
We
undertake that in a primary offering of our securities 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 any of the following communications,
we will be
a seller to the purchaser and will be considered to offer or sell
such
securities to the purchaser:
|
|
(1)
|
any
preliminary prospectus or prospectus of the undersigned relating
to the
offering required to be filed pursuant to Rule 497 under the Securities
Act of 1933;
|
|
(2)
|
the
portion of any advertisement pursuant to Rule 482 under the Securities
Act
of 1933 relating to the offering containing material information
about us
or our securities provided by or on our behalf;
and
|
|
(3)
|
any
other communication that is an offer in the offering made by us
to the
purchaser.
|
5. We
hereby undertake:
|
(a)
|
that
for purposes of determining any liability under the Securities
Act of
1933, the information omitted from the form of Prospectus filed
as part of
this Registration Statement in reliance upon Rule 430A and contained
in a
form of Prospectus filed by the Company pursuant to Rule 497(e)
and Rule
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective;
and
|
|
(b)
|
that
for the purpose of determining any liability under the Securities
Act of
1933, each post-effective amendment that contains a form of Prospectus
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.
|
6. Not
Applicable.
7. We
hereby undertake that we will not sell any shares pursuant to this Shelf
Registration Statement below net asset value.
C-7
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, and State
of
New York, on the 17th
day of June, 2008.
HARRIS
& HARRIS GROUP, INC.
By:
/s/
Charles E. Harris
Name: Charles
E. Harris
Title:
Chairman
of the Board and Chief Executive Officer
(Principal
Executive Officer)
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons on behalf of the Registrant
and
in the capacities and on the dates indicated:
|
Signature
|
Title
|
Date
|
||
|
/s/
Charles E. Harris
|
Chairman
of the Board and
|
June
17, 2008
|
||
|
Charles
E. Harris
|
Chief
Executive Officer
(Principal
Executive Officer)
|
|||
|
/s/
Daniel B. Wolfe
|
Chief
Financial Officer
|
June
17, 2008
|
||
|
Daniel
B. Wolfe
|
(Principal
Financial Officer)
|
|||
|
/s/
Patricia N. Egan
|
Chief
Accounting Officer, Senior
|
June
17, 2008
|
||
|
Patricia
N. Egan
|
Controller
and Vice President
|
|
||
|
*
|
Director
|
June
17, 2008
|
||
|
W.
Dillaway Ayres, Jr.
|
||||
|
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
Dr.
C. Wayne Bardin
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
Dr.
Phillip A. Bauman
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
G.
Morgan Browne
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
Dugald
A. Fletcher
|
||||
|
/s/
Douglas W. Jamison
|
Director
|
June
17, 2008
|
||
|
Douglas
W. Jamison
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
Lori
D. Pressman
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
Charles
E. Ramsey
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
James
E. Roberts
|
||||
|
*
|
Director
|
June
17, 2008
|
||
|
Richard
P. Shanley
|
*By:
/s/
Charles E. Harris
Attorney-in-fact
EXHIBITS
|
Exhibit
No.
|
Description
of Exhibit
|
|
(h)(1)
|
Placement
Agency Agreement
|
|
(h)(2)
|
Form
of Subscription Agreement
|
|
(h)(3)
|
Escrow
Agreement
|
|
(n)
|
Consent
of Independent
Registered Public Accounting Firm
|