4,250,000
Shares
HARRIS
& HARRIS GROUP, INC.
Common
Stock
($0.01
Par Value)
FORM OF SELECTED DEALER
AGREEMENT
October
5, 2009
[Name of Dealer]
[Address]
Ladies
and Gentlemen:
Needham
& Company, LLC, the “Underwriter” named in the
enclosed Prospectus has, subject to the terms and conditions stated in the
Underwriting Agreement, agreed to purchase from Harris & Harris Group, Inc.,
a New York corporation (the “Company”), an
aggregate of
shares of Common Stock, $0.01 par value (the “Firm Shares”), of the Company,
as well as up to an
additional shares
of Common Stock (the “Additional Shares”) to cover
any over-allotments, as set forth in the enclosed Prospectus and subject to the
terms of the Underwriting Agreement referred to therein. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
“Shares.” The
Shares are described in the Prospectus, additional copies of which will be
supplied in reasonable quantities upon request to us.
1. Offering to the Dealer.
Pursuant
to the terms of this Selected Dealer agreement (this “Agreement”), the
Underwriter is offering a portion of the Shares to [Name of Dealer], (the “Dealer”) as principal, at the
public offering price thereof set forth on the cover of the Prospectus less a
concession of $0. per
Share. The offering of Shares to the Dealer may be made on the basis
of reservations or allotments against subscriptions. We are advising
you by electronic transmission or other writing of the method and terms of the
offering. Acceptances of any reserved Shares received at the office
of Needham & Company, LLC, 445 Park Avenue, New York, New York
10022, after the time specified therefor in the electronic transmission or other
writing and any subscriptions for additional Shares, will be subject to
rejection in whole or in part. Subscription books may be closed by us
at any time without notice, and the right is reserved to reject any subscription
in whole or in part.
2. Offering by the Dealer.
Upon
receipt of the aforementioned electronic transmission or other writing, the
Shares purchased by you may be re-offered to the public in conformity with the
terms of offering set forth in the Prospectus. You may, in accordance
with the rules of the Financial Industry Regulatory Authority, Inc. ( “FINRA”), allow a discount from
the public offering price of not more than
$0. per Share with respect to Shares
sold by you to (i) certain dealers that are members of FINRA and that agree to
comply with the provisions of NASD Rule 2740 or any FINRA successor rule thereto
and (ii) foreign dealers or institutions ineligible for membership in FINRA
that agree (x) not to resell Shares (A) to purchasers in, or to persons who are
nationals of, the United States of America or (B) when there is a public demand
for the Shares, to persons specified as those to whom members of FINRA
participating in a distribution may not sell, and (y) to comply, as though such
foreign dealer or institution were a member of FINRA, with NASD Rules 2420 (to
the extent applicable to foreign nonmember brokers or dealers), 2730, 2740 and
2750 or any FINRA successor rules thereto.
Neither
you nor any other person is, or has been, authorized by the Company or us to
give any information or make any representation in connection with the sale of
the Shares other than those contained in the Prospectus.
It is
assumed that the Shares will be effectively placed for investment. In
the event that, during the term of this Agreement, we shall purchase or contract
to purchase any shares purchased by you hereunder, we may, at our election,
either (a) require you to repurchase such Shares at a price equal to the total
cost of such purchase by us, including brokerage commissions, if any, and
transfer taxes on the redelivery or (b) charge you with and collect from you an
amount equal to the selling concession originally allowed you with respect to
the Shares so purchased by us.
3. Payment and Delivery.
Payment
for the Shares which you shall have agreed to purchase hereunder shall be made
by you at such time and place as we shall direct by (i) certified or bank
cashier’s check payable in next-day funds to our order, or (ii) by wire transfer
to an account designated by us of immediately available funds, against delivery
of such Shares. Additional Shares confirmed to you shall be delivered
on such date or dates as we shall advise you.
4. Blue Sky Matters.
This
offer of Shares to the Dealer is made in each jurisdiction by the Underwriter in
which it may lawfully sell the Shares to the Dealer in such
jurisdiction. Upon application to us, we will inform you as to the
jurisdictions in which we believe the Shares have been qualified for sale under
the respective securities or “blue sky” laws of such
jurisdictions. You understand and agree that compliance with the
securities or “blue sky” laws in each jurisdiction where you shall offer or sell
any of the Shares shall be your responsibility and that we assume no
responsibility to the eligibility of the Shares for sale or your right to sell
Shares in any jurisdiction.
5. Termination.
This
Agreement shall terminate thirty (30) days after the initial public offering of
the Shares, but may be extended for a period or periods not exceeding in the
aggregate fifteen (15) days as we may determine. We may terminate
this Agreement at any time without prior notice. Notwithstanding
termination of this Agreement, you shall remain liable for your proportion of
any transfer tax or other liability which may be asserted or assessed against us
or the Dealer based upon the claim that the Dealer constitutes a partnership, an
unincorporated business or other separate entity.
6. Obligations and Positions of the
Dealer. Your
acceptance hereof will constitute an obligation on your part to purchase, upon
the terms and conditions hereof, the aggregate amount of Shares reserved for and
accepted by you and to perform and observe all of the terms and conditions
hereof.
You are
not authorized to act as our agent in offering any of the Shares to the public
or otherwise. Nothing contained herein shall constitute the Dealer an
association, or partner with us.
You agree
that at any time or times prior to the termination of this Agreement you will,
upon our request, report to us the number of Shares purchased by you under this
Agreement, which then remain unsold by you and will, upon our request at such
time or times, sell to us for our account such unsold Shares as we may
designate, at the public offering price less an amount to be determined by us,
not in excess of total concession allowed you.
The
Dealer agrees in re-offering the Shares to comply with all applicable
requirements of the federal securities laws and all applicable rules and
regulations promulgated thereunder. If any Dealer fails to pay for
the Shares confirmed to such Dealer or fails to perform any of such Dealer’s
other obligations hereunder, the Underwriter may, in its discretion and without
demand, notice or legal proceedings, and in addition to any and all remedies
otherwise available to the Underwriter, (a) terminate any right or interest on
such Dealer’s part, and (b) at any time and from time to time, sell, without
notice to such Dealer, any of the Shares then held for such Dealer’s account at
public or private sale at such price or prices and upon such terms and
conditions as the Underwriter may deem fair, and apply the net proceeds so
realized, as determined by the Underwriter, toward payment of any obligations in
respect of which such Dealer is in default, and, notwithstanding any action
taken under (a) or (b) above, or both, such Dealer shall remain liable to the
Underwriter, to the extent of such Dealer’s respective interest, or at the
Underwriter’s election, to the Underwriter for its account to a like extent, for
all loss and expense resulting from such Dealer’s default. At any
such sale or sales, the Underwriter may for its own account, or for the account
of any other person, become the purchaser of any Shares so sold, free from any
right or interest on any Dealer’s part in such Shares. A default the
Dealer shall not release the Dealer from any of its obligations
hereunder.
We shall
have full authority to take such action as we may deem advisable in respect of
all matters pertaining to the offering or arising hereunder. We shall
be under no liability to you, except for our own want of good faith and for
obligations expressly assumed in this Agreement, and any liabilities arising in
the Securities Act of 1933, as amended. No obligations not expressly
assumed by us in this Agreement shall be implied hereby or inferred
herefrom.
7. Representations.
The
Dealer confirms that such Dealer is familiar with FINRA Rule 5130 and the Dealer
agrees to comply with such Rule in offering and selling Shares to the
public. The Dealer, by its participation in an offering of Shares,
further represents that neither the Dealer nor any of its directors, officers,
partners or “persons associated with” such Dealer (as defined in the By-Laws of
FINRA), nor, to the Dealer’s knowledge, any “related person” (as defined in
FINRA Rule 5110) have participated or intend to participate in any transaction
or dealing as to which documents or information are required to be filed with
FINRA pursuant to such Rule.
8. Notices. All
communications from you should be addressed to us at the office of
Needham & Company, LLC, 445 Park Avenue, New York, New York
10022. Any notice from us to you shall be deemed to have been duly
given if mailed or telegraphed to you at the address to which this letter is
mailed.
9. Governing Law.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
Please
confirm this Agreement by signing and returning at once the duplicate copy of
the letter enclosed herewith.
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Very
truly yours,
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NEEDHAM
& COMPANY, LLC
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By:
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Authorized
Officer
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Agreed
to:
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By:
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Title
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Firm
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October
5, 2009
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Date
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