AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 6, 1996
REGISTRATION NO. 33-98748
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HARVARD INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 27-0715310
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
2502 NORTH ROCKY POINT DRIVE, SUITE 960
TAMPA, FLORIDA 33607
(Address of principal executive offices) (Zip code)
HARVARD CAPITAL ACCUMULATION PLAN
(Full title of the plan)
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RICHARD T. DAWSON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
HARVARD INDUSTRIES, INC.
2502 NORTH ROCKY POINT DRIVE, SUITE 960
TAMPA, FLORIDA 33607
(name and address of agent for service)
(813) 288-5000
(Telephone Number, Including Area Code, Of Agent For Service)
Copies Of All Communications To:
MICHAEL L. JAMIESON, ESQ.
HOLLAND & KNIGHT
400 NORTH ASHLEY DRIVE
SUITE 2300
TAMPA, FLORIDA 33602
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INTRODUCTION
On October 30, 1995, Harvard Industries, Inc. ("Harvard-Delaware")
filed Registration No. 33-98748 on Form S-8 (the "Registration Statement), which
registered an indeterminate amount of interests to be offered or sold pursuant
to the Harvard Capital Accumulation Plan (the "Plan"). The stockholders of
Harvard-Delaware approved the reincorporation in Florida via merger of
Harvard-Delaware with and into its wholly-owned Florida subsidiary, Harvard
Merger Corporation ("Harvard-Florida"). As part of the merger, Harvard-Florida,
as the surviving corporation of the merger, changed its name to Harvard
Industries, Inc. By this Post-Effective Amendment No. 1, Harvard-Florida adopts
the Registration Statement as its own registration statement for all purposes of
the Securities Act of 1933, as amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), pursuant to Rule 414(d)
as promulgated under the Securities Act. In addition, Harvard- Florida files
amendments to the Plan as an exhibit to the Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by the registrant,
Harvard Industries, Inc., a Florida corporation (the "Registrant"), pursuant to
the Exchange Act, Commission File No. 0-21362, or by the Harvard Capital
Accumulation Plan (the "Plan"), are incorporated by reference in this
Registration Statement:
(a) (i) The Registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 1995.
(ii) The Plan's Annual Report on form 11-K for the fiscal
year ended December 31, 1995.
(b) (i) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1995.
(ii) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996.
(iii) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996.
(iv) The Registrant's Current Report on Form 8-K dated April
8, 1996.
(v) The Registrant's Current Report on Form 8-K dated
October 29, 1996.
(vi) The Registrant's Report on Form 10-C dated October 2,
1996.
(vii) The descriptions of the Common Stock, par value $.01 per
share, of the Registrant (the "Common Stock") contained
in Amendment No. 4 to the Registrant's Registration
Statement on Form 10/A, filed May 2, 1996 (Commission
File No. 0-21362), and Amendment No. 2 to the
Registrant's Registration Statement on Form 8-A/A, filed
June 18, 1996, (Commission File No. 0-21362), and the
Registrant's Form 8-B, filed June 18, 1996 (Commission
File No. 0-21362).
(c) 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 that indicates
that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Florida corporation. The Florida Business
Corporation Act, as amended (the "Florida Act"), provides that, in general, a
business corporation may indemnify any person who is or was a party to any
proceeding (other than an action by, or in the right of, the corporation) by
reason of the fact that he is or was a director or officer of the corporation,
against liability incurred in connection with such proceeding, including any
appeal thereof, provided certain standards are met, including that such officer
or director acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation, and provided,
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further that, with respect to any criminal action or proceeding, the officer or
director had no reasonable cause to believe his conduct was unlawful. In the
case of proceedings by or in the right of the corporation, the Florida Act
provides that, in general, a corporation may indemnify any person who was or is
a party to any such proceeding by reason of the fact that he is or was a
director or officer of the corporation against expenses and amounts paid in
settlement actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof, provided that such
person acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim as to which such person is
adjudged liable unless a court of competent jurisdiction determines upon
application that such person is fairly and reasonably entitled to indemnity. To
the extent that any officers or directors are successful on the merits or
otherwise in the defense of any of the proceedings described above, the Florida
Act provides that the corporation is required to indemnify such officers or
directors against expenses actually and reasonably incurred in connection
therewith. However, the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any officer or director if a judgment or other final adjudication establishes
that his actions, or omissions to act, were material to the cause of action so
adjudicated and constitute: (i) a violation of the criminal law, unless the
director or officer had reasonable cause to believe his conduct was lawful or
had no reasonable cause to believe it was unlawful; (ii) a transaction from
which the director or officer derived an improper personal benefit; (iii) in the
case of a director, a circumstance under which the director has voted for or
assented to a distribution made in violation of the Florida Act or the
corporation's articles of incorporation; or (iv) willful misconduct or a
conscious disregard for the best interests of the corporation in a proceeding by
or in the right of the corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder. Article VIII of the Registrant's
Bylaws provides that the Registrant shall indemnify any director, officer,
employee or agent or any former director, officer, employee or agent.
The Registrant has purchased insurance with respect to, among other
things, any liabilities that may arise under the statutory provisions referred
to above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the Registrant, filed with the
Secretary of State of Florida on February 8, 1996
(incorporated by reference to Exhibit 3.3 to the Registrant's
Form 8-K as filed on April 8, 1996 (Commission File No.
0-21362)).
4.2 Articles of Amendment to Articles of Incorporation of the
Registrant, filed with the Secretary of State of Florida on
March 22, 1996 (incorporated by reference to exhibit 3.4 to
the Registrant's Form 8-K as filed on April 8, 1996
(Commission File No. 0-21362)).
4.3 By-Laws of the Registrant (incorporated by reference to
Exhibit 3.5 to the Registrant's Form 8-K as filed on April 8,
1996 (Commission File No. 0-21362)).
4.4 Rights Agreement dated as of October 18, 1994, between the
Registrant and Shawmut Bank Connecticut National Association,
as Rights Agent (incorporated by reference to Exhibit 2 to
Registrant's Form 8-A as filed with the Securities and
Exchange Commission on October 24, 1994) (Commission File No.
0-21362)).
4.5 Amendment No. 1 to Rights Agreement, dated as of June 12,
1995, between the Registrant and Fleet National Bank (formerly
Shawmut Bank Connecticut National Association), as Rights
Agent (incorporated by reference to Exhibit 1 to Amendment No.
1 to the Registration Statement on Form 8-A/A of the
Registrant as filed with the Securities and Exchange
Commission on June 20, 1995 (Commission File No. 0-21362)).
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4.6 Amendment No. 2 to Rights Agreement, dated as of May 31, 1996,
between the Registrant and Fleet National Bank (formerly
Shawmut Bank Connecticut National Association), as Rights
Agent (incorporated by reference to Exhibit 3 to Amendment No.
2 to the Registration Statement on Form 8-A/A of the
Registrant as filed with the Securities and Exchange
Commission on June 18, 1996 (Commission File No. 0-21362)).
4.7 Form of Rights Certificate (incorporated by reference to
Exhibit A to Exhibit 2 to Registrant's Form 8-A filed with the
Securities and Exchange Commission on October 24, 1994
(Commission File No. 0-21362)).
4.8 Form of Stock Certificate for the Common Stock of the
Registrant (incorporated by reference to Exhibit 4.2 to
Amendment No. 4 to Form 10/A, dated May 2, 1996, of the
Registrant (Commission File No. 0-21362)).
4.9 Harvard Capital Accumulation Plan, as amended and restated.
5.1 (See undertaking under 9(b) below)
23.1 Consent of KPMG Peat Marwick LLP, dated October 31, 1996.
23.2 Consent of Price Waterhouse LLP, dated October 31, 1996.
24.1 Powers of Attorney included on signature page.
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 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.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(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) To submit the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and to make all changes required by
the IRS in order to qualify the Plan.
(c) The undersigned registrant hereby 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.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions (see Item 6) or
otherwise, the registrant has been advised that in the opinion of the Commission
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 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)
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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 Securities Act and will be
governed by the final adjudication of such issue.
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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 Post-
Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Tampa,
State of Florida, on November 6, 1996.
HARVARD INDUSTRIES, INC.
By: /s/ JOSEPH J. GAGLIARDI
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Joseph J. Gagliardi
Vice President - Finance and
Chief Financial Officer
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Richard T. Dawson and Arnold M.
Sheidlower, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any and all amendments
to this registration statement and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the date indicated.
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SIGNATURES TITLE DATE
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/s/ VINCENT J. NAIMOLI Chairman of the Board, President, November 6, 1996
- -------------------------- Chief Executive Officer and Director
Vincent J. Naimoli (Principal Executive Officer)
/s/ JOSEPH J. GAGLIARDI Vice President-Finance and Chief November 6, 1996
- --------------------------- Financial Officer (Principal Financial
Joseph J. Gagliardi Officer)
/s/ WILLIAM J. WARREN Vice President and Chief Accounting November 6, 1996
- ---------------------------- Officer (Principal Accounting Officer)
William J. Warren
/s/ C. SCOTT BARTLETT, JR. Director November 6, 1996
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C. Scott Bartlett, Jr.
/s/ MICHAEL HOFFMAN Director November 6, 1996
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Michael Hoffman
/s/ JOSEPH P. HOAR Director November 6, 1996
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Joseph P. Hoar
Director , 1996
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John W. Adams
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Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 1 to the Registration Statement has been signed on
behalf of the Plan Administrator by the following persons in the capacities and
on the dates indicated.
SIGNATURES TITLE DATE
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/s/ MARIANNE D'EMILIO Plan Committee Member November 6, 1996
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/s/ JAMES S. LUCI Plan Committee Member November 6, 1996
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/s/ DEAN C. KONICK Plan Committee Member November 6, 1996
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INDEX TO EXHIBITS
SEQUENTIAL
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NO.
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4.1 Articles of Incorporation of the Registrant, filed with the
Secretary of State of Florida on February 8, 1996
(incorporated by reference to Exhibit 3.3 to the Registrant's
Form 8-K as filed on April 8, 1996 (Commission File No.
0-21362)).
4.2 Articles of Amendment to Articles of Incorporation of the
Registrant, filed with the Secretary of State of Florida on
March 22, 1996 (incorporated by reference to exhibit 3.4 to
the Registrant's Form 8-K as filed on April 8, 1996
(Commission File No. 0- 21362)).
4.3 By-Laws of the Registrant (incorporated by reference to
Exhibit 3.5 to the Registrant's Form 8-K as filed on April 8,
1996 (Commission File No. 0-21362)).
4.4 Rights Agreement dated as of October 18, 1994, between the
Registrant and Shawmut Bank Connecticut National Association,
as Rights Agent (incorporated by reference to Exhibit 2 to
Registrant's Form 8-A as filed with the Securities and
Exchange Commission on October 24, 1994) (Commission File No.
0-21362)).
4.5 Amendment No 1 to Rights Agreement, dated as of June 12,
1995, between the Registrant and Fleet National Bank
(formerly Shawmut Bank Connecticut National Association), as
Rights Agent (incorporated by reference to Exhibit 1 to
Amendment No. 1 to the Registration Statement on Form 8-A/A
of the Registrant as filed with the Securities and Exchange
Commission on June 20, 1995 (Commission File No. 0-21362)).
4.6 Amendment No 2 to Rights Agreement, dated as of May 31, 1996,
between the Registrant and Fleet National Bank (formerly
Shawmut Bank Connecticut National Association), as Rights
Agent (incorporated by reference to Exhibit 3 to Amendment
No. 2 to the Registration Statement on Form 8-A/A of the
Registrant as filed with the Securities and Exchange
Commission on June 18, 1996 (Commission File No. 0-21362)).
4.7 Form of Rights Certificate (incorporated by reference to
Exhibit A to Exhibit 2 to Registrant's Form 8-A filed with
the Securities and Exchange Commission on October 24, 1994
(Commission File No. 0-21362)).
4.8 Form of Stock Certificate for the Common Stock of the
Registrant (incorporated by reference to Exhibit 4.2 to
Amendment No. 4 to Form 10/A, dated May 2, 1996, of the
Registrant (Commission File No. 0-21362)).
4.9 Harvard Capital Accumulation Plan, as amended and restated.
5.1 (See undertaking under 9(b) below)
23.1 Consent of KPMG Peat Marwick LLP, dated October 31, 1996.
23.2 Consent of Price Waterhouse LLP, dated October 31, 1996.
24.1 Powers of Attorney included on signature page.
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EXHIBIT 4.9
HARVARD CAPITAL ACCUMULATION PLAN
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HARVARD CAPITAL ACCUMULATION PLAN
(Effective April 1, 1988)
(Restated effective January 1, 1989,
including amendments per Determination Letter
dated December 13, 1994)
MARCH, 1994
EDITION
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS
Section 1.1 Parties......................................................... 1
1.2 Important Dates................................................. 2
1.3 Service and Compensation........................................ 2
1.4 Miscellaneous................................................... 6
1.5 Construction.................................................... 7
ARTICLE II PARTICIPATION
Section 2.1 Year of Service................................................. 7
2.2 Eligibility for Participation................................... 8
2.3 Participation................................................... 8
2.4 Continuing Participation........................................ 8
2.5 Reemployment After Termination of Employment.................... 8
ARTICLE III CONTRIBUTIONS
Section 3.1 Employer's Matching Contribution................................ 8
3.1A Temporary Suspension of Matching Contributions.................. 9
3.2 Payment of Employer Matching Contributions...................... 9
3.3 Return of Contributions......................................... 9
3.4 Participant's Salary Reduction Election......................... 9
3.5 Participant's Voluntary Contributions........................... 10
3.6 Participant Withdrawals......................................... 11
3.7 Limitations on Participant's Salary Reduction Election or
Elective Deferrals.............................................. 12
3.8 Limitations on Employee Contributions and Matching
Employer Contributions.......................................... 13
3.9 Limitations on Contributions and Benefits....................... 15
3.10 Distribution of Excess Deferrals................................ 16
3.11 Excess Contributions............................................ 17
3.12 Excess Aggregate Contributions.................................. 17
3.13 Self-Directed Accounts.......................................... 18
3.14 Employer Rollover Contributions................................. 19
ARTICLE IV PARTICIPANTS' ACCOUNTS
Section 4.1 Individual Accounts............................................. 20
4.2 Valuation of the Trust.......................................... 20
4.3 Adjustments and Allocations to Accounts......................... 20
4.4 Combined Limitations............................................ 21
ARTICLE V PAYMENT OF BENEFITS
Section 5.1 Vesting......................................................... 23
5.2 Retirement...................................................... 23
5.3 Age 59-1/2...................................................... 23
5.4 Disability...................................................... 23
5.5 Death........................................................... 23
5.6 Termination of Employment Prior to Retirement Disability
or Death........................................................ 24
5.7 Limitation on Distributions..................................... 24
5.8 Distribution upon Retirement, Disability, Death or Other
Termination of Employment....................................... 25
5.9 Direct Rollovers Permitted...................................... 26
5.10 Mandatory Distributions of Small Accounts....................... 27
ARTICLE VI PAYMENT OF ACCRUED BENEFITS OF PRIOR PLANS
Section 6.1 Prior Plans Defined............................................. 28
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6.2 Payment of Benefits Accrued to March 31, 1988 under
Prior Plans.................................................... 28
6.3 Allocations..................................................... 32
ARTICLE VII FIDUCIARY RESPONSIBILITY
Section 7.1 Named Fiduciary................................................. 32
7.2 Allocation of Fiduciary Responsibility.......................... 32
7.3 Service in More than One Capacity............................... 32
7.4 Employment of Advisers.......................................... 32
7.5 Compensation of Fiduciaries and Advisers........................ 32
7.6 Liability of Fiduciaries........................................ 33
ARTICLE VIII PLAN ADMINISTRATION
Section 8.1 Plan Committee.................................................. 33
8.2 Duties and Powers of Plan Committee............................. 33
8.3 Claims Procedure................................................ 34
8.4 Records and Reports............................................. 34
8.5 Application and Forms for Benefits.............................. 35
ARTICLE IX AMENDMENT, MERGER AND TERMINATION OF THE PLAN
Section 9.1 Right to Amend or Terminate..................................... 35
9.2 Action by Employer.............................................. 35
9.3 Effect of Termination........................................... 35
9.4 Partial Termination............................................. 35
9.5 Manner of Distribution.......................................... 36
9.6 Merger.......................................................... 36
9.7 Successor Employer.............................................. 36
9.8 Discontinuance of Employer Contributions........................ 36
9.9 Prospective Amendment of Vesting Schedule....................... 37
9.10 Amendment Affecting Vested Benefits............................. 37
ARTICLE X TOP-HEAVY AND OWNER-EMPLOYEE PROVISIONS AND DEFINITIONS
Section 10.1 Top-Heavy Plan Definitions....................................... 37
10.2 Effective Date.................................................. 40
10.3 Minimum Contribution Requirements............................... 40
10.4 Maximum Compensation Limitation................................. 41
10.5 Adjustment to Section 415 Limits................................ 41
10.6 Remedial Provisions............................................. 41
ARTICLE XI MISCELLANEOUS
Section 11.1 Non-Guarantee of Employment...................................... 41
11.2 Non-Alienation of Benefits...................................... 41
11.3 Facility of Payment............................................. 42
11.4 Exclusive Benefit............................................... 42
11.5 No Reversion.................................................... 42
11.6 Effect of Social Security Benefits.............................. 42
11.7 Titles.......................................................... 42
11.8 Severability.................................................... 42
11.9 Applicable Law.................................................. 42
11.10 Initial Qualification........................................... 42
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PREAMBLE
Harvard Industries, Inc. has adopted the Harvard Capital Accumulation
Plan, effective April 1, 1988 to provide benefits for eligible Employees. This
Plan also has been adopted as of April 1, 1988 by subsidiaries of Harvard
Industries, Inc. who maintained Prior Plans by the restatement of and merger of
such Prior Plans into this Plan. It is specifically intended that no Prior Plan
will be considered terminated as a result of its merger into this Plan. The term
"Prior Plant" includes the following Plans: Harman Deferred Income Plan; Harvard
Industries, Inc. ESNA Division Retirement Plan; Harvard Industries, Inc. Anchor
Swan Division Retirement Plan; Hayes- Albion Salaried Employees Savings Profit
Sharing Plan; and Kooima Machine Works Profit Sharing Plan. As required by the
Tax Reform Act of 1986 and the Revenue Procedures issued by the Internal Revenue
Service, this Restatement of the Capital Accumulation Plan is effective January
1, 1989, except where otherwise indicated.
ARTICLE I
DEFINITIONS
Whenever used herein, the following words shall have the meaning set
forth below, unless otherwise clearly required by the context.
1.1 PARTIES.
(a) "Employer" means Harvard Industries, Inc., a
Delaware corporation, and any successor. Employer shall also include any
organization affiliated with Harvard Industries, Inc. which, with its consent,
adopts the Plan as provided in Section 9.2, but each Employer shall be deemed an
Employer only with respect to its Employees.
(b) "Plan Administrative Committee" or "Committee"
means the Committee established by the Employer to administer the Plan as set
forth in Article VIII hereof.
(c) "Trustee" means the corporation, individual or
individuals appointed by the Employer to hold and administer the assets of the
Trust.
(d) "EMPLOYEE" means an individual employed by the
Employer or an Affiliated Employer, except that such term shall not include any
leased employee as defined in Section 414(n)(2).
(e) "PARTICIPANT" means an Employee who has satisfied
the eligibility requirements and has entered the plan as provided in Article II.
(f) "BENEFICIARY" or "Designated Beneficiary" means a
person or persons (natural or otherwise) designated by a Participant to receive
any death benefit payable under this plan. If there is no such designation, or
if the designated person or persons predecease the Participant, Beneficiary
shall mean the surviving spouse, surviving children, surviving parents or estate
of the Participant, in the order listed.
(g) "PLAN" means the Harvard Capital Accumulation
Plan as set forth herein and as it may be amended in the future.
(h) "TRUST" or "Trust Agreement" means the Harvard
Capital Accumulation Plan Trust established by the Employer.
(i) "AFFILIATED EMPLOYER" means the Employer and any
corporation which is a member of a controlled group of corporations (as defined
in Section 414(b) of the Code) which includes the Employer; any trade or
business (whether or not incorporated) which is under common control (as defined
in Section 414(c) of the Code) with the Employer; an organization (whether or
not incorporated) which is a member of an affiliated service group (as defined
in Section 414(m) of the Code) which includes the Employer; and any other entity
required to be aggregated with the Employer pursuant to regulations under
Section 414(o) of the Code.
(j) "HIGHLY COMPENSATED EMPLOYEE" means both highly
compensated active Employees and highly compensated former Employees as
described in Section 414(q) of the Code and the regulations thereunder.
(k) "FAMILY MEMBER" means an individual described in
Section 414(q)(6)(B) of the Code and the Treasury Regulations thereunder.
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(l) "NON-HIGHLY COMPENSATED EMPLOYEE" means an
Employee of the Employer who is neither a Highly Compensated Employee nor a
Family Member.
1.2 IMPORTANT DATES.
(a) "Effective Date" means April 1, 1988, the date on
which the provisions of the Plan became effective.
(b) "Plan Year" means the calendar year.
(c) "Anniversary Date" means the last day of each
Plan Year after the Effective Date.
(d) "Limitation Year" means the Plan Year.
(e) "Restated Effective Date" means January 1, 1989.
1.3 Service and Compensation.
(a) "Hour of Service" means:
(1) Each hour for which an Employee is paid,
or entitled to payment, for the performance of duties for the Employer. These
hours shall be credited to the Employee for the computation period in which the
duties are performed; and
(2) Each hour for which an Employee is paid,
or entitled to payment, by the Employer on account of a period of time during
which no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty or leave of absence. No
more than 501 Hours of Service shall be credited under this paragraph for any
single continuous period (whether or not such period occurs in a single
computation period). Hours under this paragraph shall be calculated and credited
pursuant to Section 2530.200(b)2 of the Department of Labor Regulations which
are incorporated herein by reference; and
(3) Each hour for which back pay,
irrespective of mitigation of damages, is either awarded or agreed to by the
Employer. The same Hours of Service shall not be credited both under paragraph
(1) or paragraph (2), as the case may be, and under this paragraph (3). These
hours shall be credited to the Employee for the computation period or periods to
which the award or agreement pertains rather than the computation period in
which the award, agreement or payment is made.
(4) Hours of service will be credited for
employment with other members of an affiliated service group, a controlled group
of corporations, or a group of trade or businesses under common control of which
the Employer is a member and any other entity required to be aggregated with the
Employer pursuant to Section 414(o) and the regulations thereunder. Hours of
service will also be credited for any individual considered an Employee for
purposes of this Plan under Section 414(n) or Section 414(o) and the regulations
thereunder.
(5) For absences beginning on or after the
first day of the Plan Year, solely for purposes of determining whether a
One-Year Break in Service for participation and vesting purposes has occurred in
a Plan Year (or other computation period), an Employee who is on Maternity or
Paternity Leave shall receive credit for the Hours of Service which would
otherwise have been credited to such Employee but for such absence, or in any
case in which such Hours cannot be determined, 8 Hours of Service per day of
such absence. No more than 501 Hours of Service shall be credited under this
paragraph for any single absence due to Maternity or Paternity Leave. The Hours
of Service credited under this paragraph shall be credited only (i) in the Plan
Year (or other computation period) in which the absence begins if the crediting
is necessary to prevent a One Year Break in Service in that period, or (ii) in
any other case, in the immediately following Plan Year (or other computation
period).
(b) "ONE-YEAR BREAK IN SERVICE" means a Plan Year
during which an Employee fails to complete at least 500 Hours of Service. For
purposes of Section 2.1, the relevant eligibility computation period shall be
substituted for the Plan Year.
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(c) "YEARS OF SERVICE" MEANS:
(1) For purposes of eligibility to
participate, as provided in Section 2.1.
(2) Years of Service credited prior
to a period of consecutive One-Year Breaks in Service shall not be credited if
the number of consecutive One-Year Breaks in Service during such period before
the Employee earns any vested benefit in Employer contributions under the Plan
equals or exceeds the greater of (A) five (5), or (B) the aggregate number of
Years of Service before such period.
(3) An Employee's Years of Service shall
include Years of Service with the Employer in noncovered employment and with
other members of a controlled group of corporations or businesses under common
control which includes the Employer and with other members of an affiliated
service group which includes the Employer.
(d) "COMPENSATION" MEANS:
(1) For Employees who are paid on an hourly
basis, the total taxable compensation paid to such Employee by the Employer
during the Plan Year;
(2) For Employees who are paid on a salaried
basis, the Employee's base salary increased by any overtime and shift premium
pay received by the Employee during the Plan Year, and including the
Participant's Elective Deferrals for the Plan year, but excluding any bonus or
other additional compensation; and excluding amounts paid prior to an Employee
becoming a ParticiPant hereunder and amounts paid after an Employee ceases to be
eligible to be a Participant in accordance with Section 2.2 hereof. Effective as
of January 1, 1989, no Employee shall be permitted to have Elective Deferrals or
any other contributions made by Employer under this Plan during any calendar
year based on compensation in excess of $200,000.00 multiplied by the Adjustment
Factor as provided by the Secretary of the Treasury.
(3) In determining the compensation of a
highly compensated Employee, the rules of IRC ss.414(g)(6) shall apply, except
that for this purpose the term "Family" shall include only the spouse of the
highly compensated Employee and any lineal descendants who have not attained age
nineteen (19) before the close of the Plan Year. If as a result of the
application of these rules, the $200,000 limitation is exceeded, then the
limitation shall be pro-rated among the affected individuals in proportion to
each such individual's compensation as determined under this paragraph prior to
the application of this limitation.
(4) In addition to other applicable
limitations set forth herein, and notwithstanding any other provision herein to
the contrary, for Plan Years beginning after December 31, 1993, the annual
compensation of each Employee taken into account under the Plan shall not exceed
the OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit
is $150,000.00, as adjusted by the Commissioner for increases in the
cost-of-living in accordance with Section 401(a)(17)(b) of the Code. The
cost-of-living adjustment in effect for the calendar year applies to any period
not exceeding twelve (12) months over which compensation is determined
(determination period) beginning in such calendar year. If a determination
period consists of fewer than twelve (12) months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which is
the number of months in the determination period and the denominator of which is
twelve (12). For Plan Years beginning on and after January 1, 1994, any
reference herein to the limitation under Section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision. If
compensation for any prior determination period is taken into account in
determining an Employee's benefit accruing in the current Plan Year, the
compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For the
determination period beginning before the first day of the first Plan Year
beginning on and after January 1, 1994, the OBRA '93 annual compensation limit
is $150,000.00 for this purpose.
(e) "AUTHORIZED LEAVE OF ABSENCE" means any absence
authorized by the Employer under the Employer's standard personnel practices
provided that all persons under similar circumstances must be treated alike in
the granting of such Authorized Leaves of Absence and provided further that the
Employee returns within the period of authorized absence. In the event of
absence due to service in the Armed Forces of the United States, (1) such
absence shall be considered an Authorized Leave of Absence provided that the
Employee returns to employment with the Employer within the period provided by
law, and (2) credit for Hours of Service shall be given to the extent required
by law.
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(f) "EMPLOYMENT COMMENCEMENT DATE" means the first
day on which an Employee completes an Hour of Service for the Employer.
(g) "MATERNITY OR PATERNITY LEAVE" means an absence
from work:
(1) By reason of pregnancy of the Participant;
(2) By reason of the birth of a child of the
Participant;
(3) By reason of the placement of a child
with the Participant in connection with the adoption of such child by the
Participant; or
(4) For purposes of caring for such child,
for a period beginning immediately after such birth or placement.
In approving such leave, the Plan Committee may require the Participant to
furnish such timely information as it may reasonably require to establish that
the reason for the absence from work is for one of the reasons set forth above
and the number of days for which there was such absence.
1.4 MISCELLANEOUS.
(a) "DISABILITY" means a condition which renders a
Participant unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or to be of a long, continued and indefinite duration. The
Plan Committee may require such proof of Disability as it deems necessary, and
may require a Participant to be examined by a physician of its own choosing.
(b) "PARTICIPANT'S ELECTIVE DEFERRAL" or
"Participant's Elective Contribution" means as to each Participant the amount of
the Participant's salary reduction election made pursuant to Section 3.5 during
the Plan Year by the Employer and allocated to the Participant's Elective
Deferral Account.
(c) "EMPLOYER MATCHING CONTRIBUTION" means any
contribution to the Plan made by the Employer for the Plan Year and allocated to
a Participant's Employer Matching Contribution Account by reason of the
Participant's Elective Deferrals.
(d) "PARTICIPANT'S Voluntary Contribution" means the
amount of a Participant's compensation which he voluntarily contributes to the
Plan to supplement his retirement savings and which is not deductible for
federal income tax purposes.
(e) "ERISA" means Public Law No. 93-406, the
Employees Retirement Income Security Act of 1974, as amended from time to time.
(f) "CODE" means the Internal Revenue Code of 1986
and amendments thereto. All section references to other than sections of this
Plan are to sections of the Code.
(g) "HARDSHIP" means an immediate and heavy financial
need of a Participant that cannot reasonably be met from other resources of the
Participant. Any distribution made based on the existence of hardship shall not
exceed the amount needed to meet the need created by the hardship. All
determinations of hardship shall be made by the Plan Committee or its designee
pursuant to rules uniformly applied to all Participants similarly situated.
(h) "ADJUSTMENT FACTOR" means the cost of living
adjustment factor prescribed by the Secretary of the Treasury under Section
415(d) of the Code as applied to such items and in such manner as the Secretary
shall provide.
(i) "EXCESS AGGREGATE CONTRIBUTIONS" means, for any
Plan Year, the excess of the aggregate contribution percentage amounts taken
into account in computing the numerator of the contribution percentage actually
made on behalf of Highly Compensated Employees for the Plan Year over the
maximum contribution percentage amounts permitted by the contribution percentage
limits contained in Section 3.8 hereof (determined by reducing contributions
made on behalf of Highly Compensated Employees in order of their
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contribution percentages beginning with the highest of such percentages). Such
determination shall be made after first determining any Excess Deferral Amounts
and then determining Excess Contributions.
(j) "EXCESS CONTRIBUTIONS" means, for any Plan Year,
the excess of the aggregate amount of contributions actually taken into account
in computing the actual deferral percentage ("ADP") of Highly Compensated
Employees for the Plan Year over the maximum amount of such contributions
permitted by the ADP limits contained in Section 3.7 hereof (determined by
reducing contributions made on behalf of Highly Compensated Employees in the
order of actual deferral percentage beginning with the highest of such
percentages).
(k) "EXCESS DEFERRAL AMOUNTS" means the total of a
Participant's Elective Deferrals made under this Plan for the calendar year and
any other amounts deferred by the Participant under any other plan for the Plan
Year under Sections 401(k), 408(k) or 403(b) of the Code in excess of the limit
imposed on a Participant by Section 402(g) of the Code for the year in which the
deferral occurs.
1.5 CONSTRUCTION. Words used herein in the masculine
include the feminine, in the singular include the plural and in the plural
include the singular, unless the context indicates otherwise.
ARTICLE II
PARTICIPATION
2.1 YEAR OF SERVICE. For purposes of determining
eligibility to participate in the Plan, a "Year of Service" means a consecutive
12-month period during which an Employee completes at least 1,000 Hours of
Service for the Employer. During an Employee's first year of employment, the
consecutive 12-month period shall commence on the Employee's Employment
Commencement Date and end on a date one year later. Thereafter, the consecutive
12-month period shall be the Plan Year, beginning with the first Plan Year
commencing after the Employee's Employment Commencement Date. All of an
Employee's Years of Service with the Employer shall be credited except Years of
Service which are disregarded under Section 1.3(c)(a).
2.2 ELIGIBILITY FOR PARTICIPATION. each employee other
than an individual whose terms and conditions of employment are determined by a
collective bargaining agreement to which the Employer is a party unless the
collective bargaining agreement specifically provides for the inclusion of its
members in this Plan, shall be eligible to become a Participant upon completion
of one Year of Service, except that an individual who becomes an Employee by
September 1, 1988 shall become a Participant as of September 1, 1988 (except
that individuals who became Employees of Trim Trends, Inc. and any of its
subsidiaries by October 1, 1988 shall become Participants as of October 1,
1988).
2.3 PARTICIPATION. Each Employee who is employed by the
Employer as of April 1, 1988 and who is not excluded under Sections 2.1 and 2.2
shall be a Participant effective as of that date. Each other Employee eligible
to participate in accordance with Section 2.2 shall become a Participant as of
the first day of the month immediately succeeding the month in which he
completes one Year of Service.
2.4 CONTINUING PARTICIPATION.
(a) The Participant shall continue to be a
Participant until he ceases to be eligible in accordance with Section 2.2 or
until his employment with the Employer terminates for whatever reason.
(b) During a period of Authorized Leave of Absence,
an Employee shall not be deemed to have incurred a One-Year Break in Service. In
the event that an Employee is laid off, such layoff shall be treated as an
Authorized Leave of Absence, to the extent that the Employer's personnel
policies so provide, or in the absence of any such policies, for a period of one
year from the date of layoff.
2.5 Reemployment After Termination of Employment. Upon
the reemployment of any Employee (or reclassification of an Employee as an
Eligible Participant in accordance with Section 2.2) who is still credited with
a Year of Service on the date of such reemployment or reclassification, the
Employee shall become a Participant on the first day he completes at least one
Hour of Service. All of an Employee's Years of Service with the Employer shall
be credited except Years of Service which are disregarded under Section
1.3(c)(2).
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ARTICLE III
CONTRIBUTIONS
3.1 EMPLOYER'S MATCHING CONTRIBUTION.
(a) AMOUNT. The amount of the Employer's Matching Contribution
shall be equal to 50% of that portion of a Participant's Elective Deferral which
does not exceed two (2%) percent of the Participant's Compensation and 25% of a
Participant's Elective Deferral which exceeds two (2%) percent, but not in
excess of six (6%) percent, of the Participant's Compensation.
3.1A TEMPORARY SUSPENSION OF MATCHING CONTRIBUTIONS. Effective for
the period beginning October 1, 1990 and ending December 31, 1990 the Employer's
matching contribution provided in Section 3.1 above shall not be made and no
rights to such matching contribution shall accrue to any Participant with
respect to Elective Deferrals made with respect to or during that period;
provided however, this suspension shall not apply to those Participants who are
employees of the Anchor Swan Division of Employer.
3.2 PAYMENT OF EMPLOYER MATCHING CONTRIBUTIONS. The Employer shall
pay its matching contribution to the Plan on a quarter-annual basis based on the
Elective Deferrals made for that quarter within thirty (30) days of the end of
the calendar quarter with respect to which it relates. Under no circumstances
shall the Employer's Matching Contribution or any part thereof be made later
than the last date, including extensions thereof, for filing its income tax
return for the Plan Year with respect to which the contribution is made.
3.3 RETURN OF CONTRIBUTIONS. In no event shall any Employer Matching
Contributions, or any part thereof, revert to or be recoverable by the Employer,
unless:
(a) the contribution is made by reason of a mistake of fact, it
shall be returned within one (1) year after the payment of the contribution,
(b) the contribution is conditioned upon qualification of the
Plan under Section 401 of the Code and if the Plan does not initially so
qualify, it shall be returned to the Employer within one (1) year after the date
of denial of qualification, or.
(c) the contribution is conditioned upon the deductibility of
the contribution under Section 404 of the Code, to the extent the deduction is
disallowed, it shall be returned within one (1) year after the disallowance of
the deduction.
3.4 PARTICIPANT'S SALARY REDUCTION ELECTION.
(a) Each Participant may make an Elective Contribution to the
Plan and to the extent he elects to reduce or forego an increase in his
Compensation, the amount by which his Compensation is reduced shall be treated
as the Participant's Elective Contribution and be allocated to that
Participant's Elective Account. The amount of the Elective Contribution may not
be less than 2% nor more than 6% of the Participant's Compensation as elected by
the Participant in units of one percentage point on forms provided by the Plan
Committee, which may limit the amount of a Participant's Elective Contribution
at any time, if it determines that such limitation is necessary to satisfy the
requirements of Section 401(k).
(b) The balance in each Participant's Elective Account shall be
fully vested at all times and shall not be subject to forfeiture for any reason.
(c) A Participant may not make withdrawals from his Elective
Account prior to his attaining age 59-1/2, except in the event of disability,
retirement, termination of employment or hardship as provided in Section 3.6.
Distributions made pursuant to this Section shall be deemed to be made as of the
last day of the preceding accounting quarter and the Participant's Elective
Account shall be reduced accordingly.
(d) The Employer shall pay all Participants' Elective
Contributions accumulated through payroll deduction to the Trustee with
reasonable promptness and in all events before the end of the succeeding month
following such payroll deductions.
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(e) A Participant may change or terminate his deferral election
as provided in subparagraph (a) by giving thirty (30) days' written notice of
such change or termination to the Plan Committee or its designee and such change
or termination shall be effective as of the first pay period in the calendar
quarter coincident with or next following the expiration of said thirty (30)-day
period. A Participant who has terminated or not commenced making Elective
Contributions pursuant to paragraph (a) above may commence or reinstate his
deferral election upon thirty (30) days' written notice to the Plan Committee or
its designee and the Participant's Elective Contributions shall commence with
the first pay period in the calendar quarter commencing on or after the
expiration of the thirty (30)-day period. A Participant may reinstate or change
his deferral election only once in each calendar quarter.
(f) The foregoing notwithstanding, a Participant other than a
highly compensated Employee, may contribute up to twelve (12) percent of the
Participant's compensation as elected by the Participant in units of one (1)
percentage point on forms provided by the Plan Committee. This subsection is
effective for compensation paid after October 1, 1989.
3.5 PARTICIPANT'S VOLUNTARY CONTRIBUTIONS.
(a) RATE OF CONTRIBUTION. A Participant may contribute one to
ten percent of the Participant's compensation in units of one percentage point,
provided that such contribution plus any voluntary contributions made under any
other qualified pension or profit-sharing plan of the Employer do not exceed
either ten percent of the Participant's annual compensation or the limitations
of Section 3.9.
(b) TIME OF CONTRIBUTION. A Participant may make a Voluntary
Contribution only once in each calendar year. A Participant shall consent in
writing to having the amount of his Voluntary Contribution withheld by the
Employer from his last paychecks of the calendar year. From time to time the
Plan Committee may, under rules uniformly applicable to all Participants, permit
the Participant's Voluntary Contribution to be made otherwise than by payroll
deduction.
(c) WRITTEN CONSENT REQUIRED FOR EACH VOLUNTARY CONTRIBUTION. A
Participant who elects to make a Voluntary Contribution must consent thereto on
forms provided by the Plan Committee which indicate the amount of contribution
stated in unit percentages ranging from 1% to 10% of the Participant's
compensation. The consent form must be submitted to the Plan Committee no later
than the last weekday in the month of November preceding the Voluntary
Contribution. A Participant's consent in writing to make a Voluntary
Contribution shall be effective for that year only. If the Participant desires
to make a Voluntary Contribution the succeeding year, he shall again consent in
writing to having the amount thereof withheld by the Employer from his last
paycheck of the year.
(d) PARTICIPANT'S INTEREST. A Participant shall at all times
be 100% vested in the value of his Voluntary Contribution Account.
3.6 PARTICIPANT WITHDRAWALS.
(a) PARTICIPANT'S ELECTIVE DEFERRAL ACCOUNT. A Participant may
not withdraw any amount attributable to his Elective Deferrals prior to the
Participants retirement, death, disability, separation from service or
attainment of age 59-1/2 except in the case of hardship as defined in Section
1.4(g). Upon application to the Plan Committee for a withdrawal based on
hardship, the Plan Committee shall make a determination of the existence of
hardship. If the Plan Committee determines that a hardship exists with respect
to the Participant, the Participant may withdraw up to 100 percent of his vested
interest in the Participant's Elective Deferral Account, but not in excess of
the amount requested by the Participant in his initial application. Withdrawal
of amounts less than the total amount in the Participant's Elective Deferral
Account shall be in units of $1,000 with a minimum withdrawal of $1,000. The
Plan Committee shall implement the foregoing by such rules, regulations, forms
and procedures as to which the Plan Committee seems appropriate, provided always
that participants similarly situated be treated uniformly. After December 31,
1988, hardship withdrawals may be made from Participant's Elective Deferrals
only, excluding withdrawal of any income earned by Participant's Elective
Deferrals after December 31, 1988.
(b) PARTICIPANT'S EMPLOYER MATCHING CONTRIBUTION ACCOUNT. A
Participant may not withdraw any amount attributable in his Employer Matching
Contribution Account prior to the Participant's retirement, death, disability,
separation from service, or attainment of age 59-1/2.
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(c) PARTICIPANT'S VOLUNTARY CONTRIBUTION. A Participant may
withdraw up to 100% of his accumulated contributions in his Participant's
Voluntary Contribution Account; however, a Participant may not withdraw any
amount attributable to income earned on such accumulated Voluntary Contributions
prior to the Participant's retirement, death, disability, separation from
service, or attainment of age 591/2. A Participant shall file a written request
for withdrawal from the Participant's Voluntary Contribution Account with the
Plan Committee at least thirty (30) days prior to the date of withdrawal.
Withdrawal of amounts less than the total amount in the Participant's Voluntary
Contribution Account shall be in units of $1,000 with a minimum withdrawal of
$1,000. Once a Participant has made a withdrawal from his Voluntary Contribution
Account, he shall be suspended from making any such Voluntary Contribution until
the next calendar year.
3.7 LIMITATIONS ON PARTICIPANT'S SALARY REDUCTION ELECTION OR
ELECTIVE DEFERRALS.
(a) MAXIMUM AMOUNT OF ELECTIVE DEFERRALS. No Employee shall be
permitted to have Elective Deferrals made under this Plan during any calendar
year in excess of $7,000.00 multiplied by the Adjustment Factor for such year as
provided by the Secretary of the Treasury.
(b) AVERAGE ACTUAL DEFERRAL PERCENTAGES.
(1) The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year multiplied by 1.25; or
(2) The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year multiplied by 2, provided
that the Average Actual Deferral Percentage for Eligible Participants who are
Highly Compensated Employees does not exceed the Average Actual Deferral
Percentage for Eligible Participants who are Non-Highly Compensated Employees by
more than two (2) percentage points, or such lesser amount as the Secretary of
the Treasury shall prescribe to prevent the multiple use of this alternative
limitation with respect to any Highly Compensated Employee.
(c) DEFINITIONS. For purposes of this Section 3.7 and for
purposes of Sections 3.10 and 3.11, the following definitions shall be used:
(1) "ACTUAL DEFERRAL PERCENTAGE" shall mean the ratio
(expressed as a percentage), of Elective Deferrals and Qualified Employer
Deferral Contributions on behalf of each Eligible Participant for the Plan Year
to such Eligible Participant's Compensation for the Plan Year.
(2) "AVERAGE ACTUAL DEFERRAL PERCENTAGE" shall mean the
average (expressed as a percentage) of the Actual Deferral Percentage of all
Eligible Participants as a group.
(3) "QUALIFIED EMPLOYER DEFERRAL CONTRIBUTIONS" shall mean
Qualified Nonelective Contributions taken into account hereunder in determining
the Actual Deferral Percentage.
(4) "ELIGIBLE PARTICIPANT" shall mean any Employee of the
Employer who is otherwise authorized under the terms of the Plan to have
Elective Deferrals or Qualified Employer Deferral Contributions allocated to his
account for the Plan Year.
(d) SPECIAL RULES.
(1) For purposes of this Section 3.7, the Actual Deferral
Percentage for any Eligible Participant who is a Highly Compensated Employee for
the Plan Year and who is eligible to have Elective Deferrals or Qualified
Employer Deferral Contributions allocated to his account under two or more Plans
or arrangements described in Section 401(k) of the Code that are maintained by
the Employer or an Affiliated Employer shall be determined as if all such
Elective Deferrals and Qualified Employer Deferral Contributions were made under
a single arrangement.
(2) For purposes of determining the Actual Deferral
Percentage of a Participant who is a Highly Compensated Employee, the Elective
Deferrals, Qualified Employer Deferral Contributions and Compensation of such
Participant shall include the Elective Deferrals, Qualified Employer
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Deferral Contributions and Compensation of Family Members, and such Family
Members shall be disregarded in determining the Actual Deferral Percentage for
Participants who are Non-Highly Compensated Employees.
(3) The determination and treatment of the Elective
Deferrals, Qualified Nonelective Contributions and Actual Deferral Percentage of
any Participant shall satisfy such other requirements as may be prescribed by
the Secretary of the Treasury.
3.8 LIMITATIONS ON EMPLOYEE CONTRIBUTIONS AND MATCHING EMPLOYER
CONTRIBUTIONS.
(a) CONTRIBUTION PERCENTAGE. The Average Contribution Percentage
for Eligible Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Average Contribution Percentage for Eligible Participants
who are Nonhighly Compensated Employees for the Plan Year multiplied by 1.25; or
The Average Contribution Percentage for Eligible Participants who are
Highly Compensated Employees for the Plan Year shall not exceed the Average
Contribution Percentage for Eligible Participants who are Nonhighly Compensated
Employees the Plan Year multiplied by 2, provided that the Average Contribution
Percentage for Eligible Participants who are Highly Compensated Employees does
not exceed the Average Contribution Percentage for Eligible Participants who are
Nonhighly Compensated Employees by more than two (2) percentage points or such
lesser amount as the Secretary of the Treasury shall prescribe to prevent the
multiple use of this alternative limitation with respect to any Highly
Compensated Employee.
(b) DEFINITIONS. For purposes of this Article III, the following
definitions shall apply:
(i) "AVERAGE CONTRIBUTION PERCENTAGE" shall mean the
average (expressed as a percentage) of the Contribution Percentages of the
Eligible Participants in a group.
(ii) "CONTRIBUTION PERCENTAGE" shall mean the ratio
(expressed as a percentage), of the sum of the Employee Contributions and
Matching Contributions made on behalf of each Eligible Participant for the Plan
Year to such Eligible Participant's Compensation for the Plan Year.
(iii) "ELIGIBLE PARTICIPANT" shall mean any employee of the
Employer who is otherwise authorized under the terms of the plan to have
Employee Contributions or Matching Contributions allocated to his account for
the Plan Year.
(c) SPECIAL RULES.
(i) For purposes of this section 3.8, the Contribution
Percentage for any Eligible Participant who is a Highly Compensated Employee for
the Plan Year and who is eligible to make Employee Contributions, or to receive
Matching contributions, Qualified Nonelective Contributions or Elective
Deferrals allocated to his account under two or more plans described in Section
401(a) of the Code or arrangements described in Section 401(k) of the Code that
are maintained by the Employer or an Affiliated Employer shall be determined as
if all such contributions and Elective Deferrals were made under a single plan.
(ii) In the event that this plan satisfies the requirements
of Section 410(b) of the Code only if aggregated with one or more other plans,
or if one or more other plans satisfy the requirements of Section 410(b) of the
Code only if aggregated with this plan, then this Section VI shall be applied by
determining the Contribution Percentages of Eligible Participants as if all such
plans were a single plan.
(iii) For purposes of determining the Contribution
Percentage of an Eligible Participant who is a Highly Compensated Employee, the
Employee Contributions, Matching Employer Contributions and Compensation of such
Participant shall include the Employee Contributions, Matching Employer
Contributions and Compensation of Family Members, and such Family Members shall
be disregarded in determining the Contribution Percentage for Eligible
Participants who are Nonhighly Compensated Employees.
(iv) The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
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(v) The limitations of this Section 3.8 apply to a
Participant's Voluntary Contributions permitted by Section 3.5 hereof which
shall be aggregated with Matching Contributions for this purpose.
(d) PROHIBITION ON MULTIPLE USE OF ALTERNATIVE LIMITATIONS. The
multiple use of the alternative limitation for a Participant's Elective
Deferrals and Employee Contributions and Matching Contributions as provided in
Section 3.7 and this Section 3.8 shall be as provided in Section 1.401(m)-2(b)
of the Treasury Regulations. If a prohibited multiple use of the alternative
limitation occurs, the Actual Contribution Percentage of the Highly Compensated
Employees shall be reduced in accordance with the formula contained in the
Treasury Regulations. This reduction shall apply to all Highly Compensated
Employees.
3.9 LIMITATIONS ON CONTRIBUTIONS AND BENEFITS.
(a) DEFINITION OF ANNUAL ADDITIONS. For purposes of the Plan,
"Annual Addition" shall mean the amount allocated to a Participant's account
during the limitation year that constitutes:
(1) Employer Contributions,
(2) Employee Contributions,
(3) Forfeitures, and
(4) Amounts described in Sections 415(l)(1) and 419A(d)(2)
of the Code.
(b) MAXIMUM ANNUAL ADDITION. The maximum annual addition that
may be contributed or allocated to a Participant's account under the Plan for
any limitation year shall not exceed the lesser of
(1) the Defined Contribution Dollar Limitation, or
(2) Twenty-five (25%) percent of the Participant's
compensation, within the meaning of Section 415(c)(3) of the Code for the
Limitation Year.
(c) SPECIAL RULES. The compensation limitation referred to in
subsection (b)(2) shall not apply to:
(1) Any contribution for medical benefits (within the
meaning of Section 419A(f)(2) of the Code) after separation from service which
is otherwise treated as an Annual Addition, or
(2) Any amount otherwise treated as an Annual Addition
under Section 415(l)(1) of the Code.
(d) DEFINITIONS. For purposes of Section 3.9,
(1) DEFINED CONTRIBUTION DOLLAR LIMITATION. "Defined
Contribution Dollar Limitation" shall mean $30,000.00 or, if greater, 1/4 of the
defined benefit dollar limitation set forth in Section 415(b)(1) of the Code as
in effect for the Limitation Year.
(2) LIMITATION YEAR. "Limitation Year" means the calendar
year.
3.10 DISTRIBUTION OF EXCESS DEFERRALS.
(a) IN GENERAL. Notwithstanding any other provision of the Plan,
Excess Deferral Amounts for any Plan Year and the income allocable thereto shall
be distributed no later than April 15 of the next succeeding year to
Participants who claim such allocable Excess Deferral Amounts for the calendar
year, as provided in paragraph (b) hereof.
(b) CLAIMS. The Participant's claim shall be in writing and be
submitted to the Plan Committee no later than March l of the next succeeding
year. It shall specify the Participant's Excess Deferral Amount for the
preceding calendar year and be accompanied by the Participant's written
statement that if such amounts are not distributed, such Excess Deferral Amount,
when added to amounts deferred under other plans or arrangements described in
Section 401(k), 408(k) or 403(b) of the Code, will exceed the limit imposed on
the Participant by Section 402(g) of the Code for the year in which the deferral
occurred.
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(c) MAXIMUM DISTRIBUTION AMOUNT. The Excess Deferral Amount
distributed to a Participant with respect to a calendar year shall be adjusted
for income and, if there is a loss allocable to the Excess Deferral, shall in no
event be less than the lesser of the Participant's account under the Plan or the
Participant's Elective Deferrals for the Plan Year.
3.11 EXCESS CONTRIBUTIONS.
(a) AMOUNT TO BE DISTRIBUTED. The amount of excess contributions
for a Highly Compensated Employee shall be determined as follows: First, the
actual deferral ratio ("ADR") of the Highly Compensated Employee with the
highest ADR shall be reduced to the extent necessary to satisfy the actual
deferral percentage ("ADP") test or cause such ratio to equal the ADR of the
Highly Compensated Employee with the next highest ratio. This process shall be
repeated until the ADP test is satisfied. The excess contribution as so
determined and as defined in Section 1.4(j) is then to be distributed as
provided in subsection (c) unless the election provided in subsection (b) is
made. Under all circumstances, any amount elected to be treated as Employee
Contributions under subsection (b) hereof, remains subject to Section 3.12. In
the case of a Highly Compensated Employee whose ADR is determined under the
family aggregation rules, the determination of the amount of the excess
contributions shall be made in accordance with the leveling method described in
Section 1.401(k)-l(f)(2) of the Treasury Regulations and the excess
contributions shall be allocated among the family members in proportion to the
contributions of each family member that has been combined.
(b) ELECTION TO TREAT AS EMPLOYEE CONTRIBUTIONS. Any amount
required to be distributed to a Participant by paragraph (a) hereof shall at the
election of the Participant and to the extent provided in Treasury Regulations
be retained in the Plan as a Voluntary Employee Contribution and treated as an
amount distributed to the Participant and then contributed as such a Voluntary
Employee Contribution
(c) The amount of Excess Contributions distributed or
recharacterized, if an election is so made pursuant to paragraph (b) above,
shall be reduced by Excess Deferrals previously distributed for the taxable year
ending in the same Plan Year and Excess Deferrals to be distributed for a
taxable year will be reduced by Excess Contributions previously distributed or
recharacterized for the Plan Year beginning in such taxable year.
(d) DISTRIBUTIONS TO INCLUDE INCOME. Any distributions required
under this section will include the income allocable thereto, which includes the
income for the Plan year for which the Excess Contributions were made and for
the period between the end of that year and the date of distribution. The income
allocable of such excess amounts will be equal to the sum of the income
allocable to the Participant's account containing the excess amounts for the
applicable year end and the income allocable to such account for that period
multiplied by a fraction, the numerator of which is the excess amount and the
denominator of which is the closing balance of the Account as of the end of the
applicable year.
3.12 EXCESS AGGREGATE CONTRIBUTIONS.
(a) AMOUNT TO BE DISTRIBUTED. The amount of Excess Aggregate
Contributions with respect to a Highly Compensated Employee shall be determined
as follows: First, the actual contribution ratio ("ACR") for the Highly
Compensated Employee with the highest ACR shall be reduced to the extent
necessary to satisfy the actual contribution percentage test ("ACP") or to cause
such ratio to equal the ACR of the Highly Compensated Employee with the next
highest ratio. This procedure will be repeated until the ACP test is satisfied.
The amount of Excess Aggregate Contributions for a Highly Compensated Employee
is equal to the total of Employer Matching and other contributions taken into
account for the ACP test minus the product of the Employee's contribution ratio
as determined above and the Employee's compensation. In the case of a highly
compensated employee whose ACR ratio is determined under the family aggregation
rules, the determination of the amount of the Excess Aggregate Contributions
shall be made in accordance with the leveling method described in Section
1.401(m)-l(e)(2) of the Treasury Regulations and the Excess Aggregate
Contributions shall be allocated among the family members in proportion to the
contributions of each family member that has been combined.
(b) DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS. The order of
distribution of Excess Aggregate Contributions as required above, shall be
first, from unmatched employee contributions that exceed the highest rate at
which employee contributions are matched, then Matching Contributions and
finally, Employee Contributions subject to matching.
(c) DISTRIBUTIONS TO INCLUDE INCOME. Any distributions required
under this section will include the income allocable thereto, which includes the
income for the Plan year for which the Excess
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Contributions were made and for the period between the end of that year and the
date of distribution. The income allocable to such excess amounts will be equal
to the sum of the income allocable to the Participant's account containing the
excess amounts for the applicable year end and the income allocable to such
account for that period multiplied by a fraction, the numerator of which is the
excess amount and the denominator of which is the closing balance of the account
as of the end of the applicable Year.
3.13 SELF-DIRECTED ACCOUNTS.
(a) DESIGNATION AS ERISA SS.404 (C) PLAN. The Trustee holding or
investing any Plan funds shall invest the Participant's Elective Deferrals,
Voluntary Contributions and Employer Contributions allocated to his accounts in
one of four funds as selected by the Participant in writing and filed with the
Plan Committee: a growth fund comprised of common stocks, a guaranteed
investment fund (GIC), a balanced fund and a fixed income fund comprised of
short term money market instruments. By providing the Participants with the
information necessary to make an informed choice concerning the investments
appropriate for the Participant and requiring a Participant to make an
investment selection and by designating the Plan Committee as the identified
plan fiduciary to accept such investment choices and to distribute such
investment information, it is intended that the Plan qualify as an ERISA ss.404
(c) Plan. This means that to the extent the Plan does so qualify, with respect
to each Participant the Plan fiduciaries may be relieved of liability for any
losses which are the direct and necessary result of investments choices made by
the Participant or the Participant's beneficiary.
(b) CHANGE IN INVESTMENT FUNDS. A Participant may change the
allocation of his contributions and account balances to the Investment Funds
only within the first ten (10) days of each calendar quarter, with the exception
of the GIC Fund which can receive contributions only on the Anniversary Date,
but contributions can be transferred out of the GIC Fund into one or more of the
other Funds within such ten (10) day period of each calendar quarter. The
allocation must be in multiples of 25% and a switch of existing balances must be
in such percentages. The Plan Committee shall furnish to the Participant
information which fully describes these funds, including all current
prospectuses. No person is authorized to distribute to a Participant information
concerning any fund that is not contained in a prospectus.
3.14 EMPLOYEE ROLLOVER CONTRIBUTIONS.
(a) An Employee eligible to participate in the Plan, whether or
not a Participant, may transfer to the Plan within the time period and in the
manner prescribed in paragraph (c) below and pursuant to procedures promulgated
by the Plan Committee, a rollover amount as defined in paragraph (b) below,
provided that such rollover amount shall be subject in all respects to this
section 3.14. The rollover amount shall be credited to a Rollover Account
maintained for that Employee/Participant. That Account shall share in the income
allocations of the trust fund as provided in section 4.4(d) hereof, but it shall
not share in Employer contributions nor any other allocations under section 4.4.
Upon the termination of the Participant's employment with the Employer, for
whatever reason, the total balance in the Rollover Account shall be distributed
in the same manner as the balances in the Participant's other accounts in
accordance with Article V hereof.
(b) For purposes of this section, rollover amount means as to
any Employee, a "qualified total distribution" as defined in Section 402(a)(5)
of the Code.
(c) Rollover amounts must be transferred to this Plan on or
before the sixtieth (60th) day following the Employee's receipt of the rollover
amount. The Employee may authorize the Plan Committee to obtain the rollover
amount from the transferor plan directly. As a condition precedent to being
permitted to transfer a rollover amount to the Plan, the Employee shall comply
with such requirements and complete such forms as the Plan Committee reasonably
believes are necessary to insure that any amount it authorizes the Trustee to
accept constitutes a rollover amount as defined in Section 402(a)(5) of the
Code.
(d) The foregoing notwithstanding, if the Plan Committee
determines at any time that any amount accepted as a rollover amount pursuant to
this section, for whatever reason, was not eligible for such classification or
otherwise did not qualify as a rollover amount, the Committee shall direct the
Trustee to pay to the Employee/Participant or his designated beneficiary the
total amount accepted as a rollover amount plus all earnings and increments in
value thereon from the date of acceptance to the date of such distribution. The
Plan Committee shall authorize the Trustee or other payor to withhold from such
distribution any taxes as required by law and to submit such information
documents to the taxing authorities as required by law.
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(e) Under all circumstances and at all times the
Employee/Participant shall be 100% vested in the balance of the Employee's
Rollover Account.
ARTICLE IV
PARTICIPANTS' ACCOUNTS
4.1 INDIVIDUAL ACCOUNTS. The Plan Committee shall establish and
maintain for each Participant (or Beneficiary of deceased Participant) an
Elective Deferral Account, Employer Matching Contribution Account and Voluntary
Contribution Account. Credits and charges shall be made to each such Account in
the manner hereinafter described. The maintenance of Accounts is for accounting
purposes only, and a segregation of the assets of the Trust to each Account
shall not be required.
4.2 VALUATION OF THE TRUST. The Trust shall be valued by the Trustee
on the Anniversary Date in each Plan Year. Such valuation shall be made on the
basis of the fair market value of all property held in Trust. Any contribution
made on account of a particular Plan Year but received by the Trustee after the
end of such Plan Year shall be treated as having been made on the Anniversary
Date.
4.3 ADJUSTMENTS AND ALLOCATIONS TO ACCOUNTS. At the end of each
quarter in the Plan Year, the Accounts of each Participant (or Beneficiary of a
deceased Participant) shall be adjusted in the following order:
(a) decreased by any amounts distributed to or for the benefit
of the Participant (or Beneficiary of a deceased Participant);
(b) increased by the contributions made by or on behalf of the
Participant to each of his accounts;
(c) increased by the Employer's Matching Contribution which
shall be allocated to each Participant's Employer Matching Contribution Account,
provided that no allocation shall be made to the account of a Participant for
that portion of a calendar quarter in which the Participant is no longer in the
employ of the Employer; and
(d) increased by the income of the Trust in proportion to the
account balances in each such account on the last day of each calendar quarter
in proportion to the balances of all such accounts on the same day prior to the
income allocation provided herein.
4.4 COMBINED LIMITATIONS.
(a) In the event any Participant in this Plan is a participant
under any other Defined Contribution Plan maintained by the Employer (whether or
not terminated), the total amount of Annual Additions to such Participant's
Accounts for any Limitation Year from all such Defined Contribution Plans shall
not exceed the limitations set forth in Section 3.7. Any reduction shall be made
first from the Employer's profit sharing, stock bonus or stock ownership plan or
plans and then from the Employer's other defined contribution plans. If it is
determined that as a result of the limitations set forth in this Section, the
Annual Additions to a Participant's account in this Plan must be reduced, such
reduction shall be accomplished in accordance with the provisions of Section
3.8.
(b) In the event that any Participant under this Plan is a
participant under one or more Defined Benefit Plans maintained by the Employer
(whether or not terminated), then for any Limitation Year the sum of the Defined
Benefit Plan Fraction for such Limitation Year and the Defined Contribution Plan
Fraction for such Limitation Year shall not exceed one (1.0). If it is
determined that, as a result of the limitations set forth in this Section 4.4,
the Annual Additions under this Plan must be reduced, such reduction shall be
accomplished in accordance with the provisions of Section 3.8.
(c) Definitions Relating to Annual Addition Limitations: For
purposes of Section 4.4, the following definitions shall apply:
(1) "RETIREMENT PLAN" means a Plan maintained by the
Employer which is (A) a profit sharing, pension or stock bonus plan described in
Section 401(a) of the Code, (B) an annuity plan or annuity contract described in
Sections 403(a) or 403(b) of the Code, (C) a qualified bond purchase plan
described
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in Section 405(a) of the Code, or (D) an individual retirement account,
individual retirement annuity or retirement bond described in Sections 408(a),
408(b) or 409 of the Code.
(2) "DEFINED CONTRIBUTION PLAN" means a Retirement Plan
which provides for an individual account for each Participant and for benefits
based solely on the amount contributed to the Participant's account, and any
income, expense, gains and losses, and any forfeitures of accounts of other
participants which may be allocated to such participant's account.
(3) "DEFINED BENEFIT PLAN" means any Retirement Plan which
does not meet the definition of a Defined Contribution Plan.
(4) "DEFINED BENEFIT PLAN FRACTION" for any Limitation Year
means a fraction (A) the numerator of which is the projected annual benefit of
the Participant (the annual benefit to which such Participant would be entitled
under the terms of the Defined Benefit Plan on the assumptions that he continues
employment until his normal retirement age as determined under the terms of such
Defined Benefit Plan, that his compensation continues at the same rate as in
effect in the Limitation Year under consideration until the date of his normal
retirement age and that all other relevant factors used to determined benefits
under such Defined Benefit Plan remain constant as of the current Limitation
Year for all future Limitation Years) under all Defined Benefit Plans maintained
by the Employer, determined as of the close of the Limitation Year, and (B) the
denominator of which is the lesser of (i) the product of 1.25 multiplied by the
dollar limitation in effect under subsection (b)(1)(A) of Section 415 of the
Code for such Limitation Year, or (ii) the product of 1.4 multiplied by 100% of
the Participant's average compensation for his high three Limitation Years.
(5) "DEFINED CONTRIBUTION PLAN FRACTION" for any Limitation
Year shall mean a fraction (A) the numerator of which is the sum of the Annual
Additions to the Participant's accounts under all Defined contribution Plans
maintained by the Employer in such Limitation Year, and (B) the denominator of
which is the sum of the lesser of the following amounts determined for such
Limitation Year and for each prior Limitation Year of service with the Employer:
(i) the product of 1.25 multiplied by the dollar limitation in effect under
subsection (c)(l)(A) of Section 415 of the Code for such Limitation Year
(without regard to subsection (c)(6) thereof), or (ii) the product of 1.4
multiplied by 25% of the Participant's Limitation Year Compensation.
(6) "LIMITATION YEAR" shall mean the Plan Year.
(7) "LIMITATION YEAR COMPENSATION" shall mean the wages,
salaries and other amounts paid for personal services actually rendered which
are received by a Participant within a Limitation Year. Limitation Year
Compensation shall not include deferred compensation, stock options and other
payments or benefits which receive special tax benefits or treatment.
(8) "EMPLOYER" means the employer that adopts this Plan,
and all members of a controlled group of corporations (as defined in Section
414(b) of the Code as modified by Section 415(h), all commonly controlled trades
or businesses (as defined in Section 414(c) of the Code as modified by Section
415(h) or affiliated Service groups (as defined in Section 414(m) of the Code)
of which the adopting employer is a part.
ARTICLE V
PAYMENT OF BENEFITS
5.1 VESTING. A Participant shall be 100% vested at all times in the
amounts held in his Elective Deferral Account, Employer Matching Contribution
Account, and Voluntary Contribution Account ("Accounts"). No forfeitures will
occur for any reason, including a Participant's withdrawal of the Participants
Contributions.
5.2 RETIREMENT. A Participant shall reach Normal Retirement Age upon
attainment of age 65 and may retire as of the first day of the month coincident
with or following his attainment of such age, which day shall be called the
Participant's Normal Retirement Date. A Participant shall have a nonforfeitable
right to the balances in his Accounts upon attainment of Normal Retirement Age.
A Participant may remain actively employed by the Employer after his Normal
Retirement Date, subject to any written mandatory retirement policy of the
Employer. He shall continue to be a Participant in the Plan as long he remains
so employed by the Employer, and he may retire or be retired in accordance with
any such written mandatory retirement policy of the Employer, as
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of the first day of any month after his Normal Retirement Date. A Participant
who retires under this section shall be entitled to distribution of his entire
Accounts balance at the time and in the manner provided by Section 5.8.
5.3 AGE 59-1/2. Upon attainment of age 59-1/2, a Participant may
request a distribution of all or any portion of his Accounts attributable to
contributions made pursuant to Sections 3.1, 3.4, and 3.5. Such distribution may
be made even though the Participant has not terminated employment and continues
as a Participant in the Plan thereafter. A Participant requesting a distribution
under this section shall be entitled to distribution at the time and in the
manner provided by Section 5.8.
5.4 DISABILITY. A Participant who is determined by the Employer to be
under a total and permanent disability shall be considered to have taken
disability retirement as of the first day of the month following the month in
which the Employer so determines that the total and permanent disability began.
The Employer may require the Participant to submit to medical examinations for
the purpose of verifying his total and permanent disability. A Participant who
becomes disabled as provided in this section shall have a 100% nonforfeitable
right to the balances in his Accounts and shall be entitled to distribution of
his Accounts at the time and in the manner provided by Section 5.8.
5.5 DEATH. In the event of a Participant's death prior to the
Participant's termination of employment with the Employer, the balances in such
Participant's Accounts shall become payable to the Participant's Beneficiary as
designated under the Plan. Distribution of such balances shall be made at the
time and in the manner provided by Section 5.8. Unless otherwise elected in the
manner prescribed in this Section, the Beneficiary of any death benefit payable
hereunder shall be the Participant's spouse. The Participant may designate a
Beneficiary other than his or her spouse only if:
(a) The Participant's spouse has consented to the Beneficiary
Designation. Such consent must be in writing and must be witnessed by a
representative of the Plan Committee. The consent will be valid only as to the
spouse who signed it: or
(b) The Participant establishes to the satisfaction of the Plan
Committee that he or she has no spouse; or
(c) The Participant's Spouse cannot be located: or
(d) Because of other circumstances under which no spousal
consent is required in accordance with applicable regulations under the Code or
ERISA.
5.6 TERMINATION OF EMPLOYMENT PRIOR TO RETIREMENT, DISABILITY OR
DEATH. A Participant who terminates employment with the Employer and who is not
entitled to distribution of his account balance under any previous section of
this Article V, shall be entitled to distribution of the balances in his
Accounts at the time and in the manner provided by Section 5.8.
5.7 LIMITATION ON DISTRIBUTIONS.
(a) If the value of a Participant's vested Account balances
exceeds $3,500.00 and the Account balances are immediately distributable, the
Participant and the Participant's spouse (or where either the Participant or the
spouse has died, the survivor) must consent to any distribution of such Account
balances. The consent of the Participant and the Participant's spouse shall be
obtained in writing within the ninety day period ending on the annuity starting
date, which is the first day of the first period for which an amount is paid as
an annuity or any other form. The Plan Committee shall notify the Participant
and the Participant's spouse of the right to defer any distribution until the
Participant's Account balances are no longer immediately distributable. Such
notification shall include a general description of the material features and an
explanation of the relative values of the optional forms of benefit available
under the Plan in a manner that would satisfy the notice requirements of IRC
Section 417(a)(3) and shall be provided no less than thirty (30) days and no
more than ninety (90) days prior to the annuity starting date.
(b) Notwithstanding the foregoing, only the Participant need
consent to the distribution of an Account balance that is immediately
distributable. Neither the consent of the Participant nor the Participant's
spouse shall be required to the extent that a distribution is required to
satisfy IRC Sections 401(a)(9) or 415. In addition, upon termination of this
Plan, the Participant's Account balances may, without the Participant's
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consent, be distributed to the Participant or transferred to another defined
contribution plan other than an employee stock ownership plan as defined in IRC
Section 4975(e)(7) within the same controlled group.
(c) An Account balance is immediately distributable if any part
of the Account balance could be distributed to the Participant (or surviving
spouse) before the Participant attains (or would have attained if not deceased)
the later of normal retirement age or age 62.
5.8 DISTRIBUTION UPON RETIREMENT, DISABILITY, DEATH OR OTHER
TERMINATION OF EMPLOYMENT.
(a) TIME AND MANNER OF DISTRIBUTION. Upon a Participant's
retirement, attainment of age 59-1/2 (if a distribution is requested at that
time pursuant to the provisions of Section 5.3), disability, death, or other
termination of employment, there shall be distributed to the Participant, or to
his Beneficiary in the case of death, the balances in the Participant's Accounts
as of the Accounting Date immediately preceding the date of such separation from
employment, plus any contributions credited or to be credited to his Accounts
subsequent to such Accounting Date, in a lump sum, to be distributed as soon as
practicable after such separation from employment. For purposes of this Section
5.8 "Accounting Date" means a date on which the Trustee values the Investment
Funds and makes allocations to Accounts pursuant to Article IV. Notwithstanding
the foregoing, a Participant who has separated from employment may elect,
pursuant to Plan Committee rules, to defer such lump sum distribution to any
subsequent date. The Accounting Date for such deferred lump sum distribution
shall be the Accounting Date which immediately precedes the date of distribution
elected by the Participant. An election to defer a distribution shall be
irrevocable except to the extent that the Plan Committee, in its sole
discretion, shall determine otherwise.
If a Participant (or Beneficiary) entitled to receive a distribution under
this Section 5.8 should die prior to the time he has received the full
distribution to which he is entitled, then the amount credited to his Accounts
as of the Accounting Date for the month in which the death occurs shall be
distributed to the deceased Participant's Beneficiary or to the estate of the
Beneficiary in the case of the Beneficiary's death.
(b) RESTRICTIONS. Distributions are subject to the following
restrictions where applicable:
(1) No Participant (or Beneficiary) may elect a
distribution date which is earlier than 60 days following the date on which the
Participant's Accounts are to be valued.
(2) Each Participant's Accounts balances must be
distributed to him in full no later than the April 1st following the calendar
year in which he attains age 70-1/2; provided however, if Participant dies
before his entire Accounts balances have been distributed, or if distribution
has commenced to the Participant's surviving spouse who dies before the entire
Account balances have been distributed then the entire remaining Account
balances must be distributed to the Participant's designated Beneficiary within
five years of the Participant's death (or the death of his surviving spouse);
(3) Notwithstanding (2) above or any other provision herein
to the contrary, in no event shall distribution of a Participant's Accounts be
made later than the sixtieth (60th) day after the close of the Plan Year in
which occurs the LATEST of the following events:
(a) The attainment by the Participant of age 65;
(b) In the case of a Plan Participant who commences
participation in the Plan within five (5) years before attaining age 65, the
fifth anniversary of the time the Plan Participant commences participation in
the Plan;
(c) In the case of a Plan Participant not described in
paragraph (b) above, the tenth anniversary of the Plan Year in which the
Participant joined the Plan as a Participant;
(d) The termination of the Participant's service with
the Employer; or
(e) The date specified by the Participant in his
election made pursuant to paragraph (a) hereof.
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Notwithstanding the foregoing, the failure of a Participant and spouse to
consent to a distribution while a benefit is immediately distributable, shall be
deemed to be an election to defer commencement of payment of any benefit
sufficient to satisfy this section.
(4) With respect to payments to be made to a Participant's
surviving spouse, the Participant's Accounts must be available to the surviving
spouse within ninety (90) days following the date of death of the Participant
unless because of unusual facts and circumstances the distribution cannot be
made available within that period. Additionally, the benefit payable to the
surviving spouse must be adjusted for gains or losses occurring during the
period since the last Accounting Date to the date of the Participant's death.
5.9 DIRECT ROLLOVERS PERMITTED.
(a) This applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Article, a distributee may
elect, at the time and in the manner prescribed by the Committee, to have any
portion of an eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
(b) DEFINITIONS.
(1) Eligible rollover distributions: An eligible rollover
distribution is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code; and the portion of
any distribution that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to employer
securities).
(2) Eligible retirement plan: An eligible retirement plan
is an individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the distributees eligible
rollover distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(3) Distributee: A distributee includes an Employee or
former Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
5.10 MANDATORY DISTRIBUTIONS OF SMALL ACCOUNTS. Upon the termination
of a Participant's employment with the Employer prior to the time the
Participant is first entitled to payment of a benefit hereunder, the Plan
Committee shall make a total distribution of the account of the Participant
within a reasonable time after such termination, if the present value of such
account is $3,500 or less and at no time prior to the termination of the
Participant's employment ever exceeded $3,500.00. Such amount shall be paid to
the Participant, or if the Participant is then deceased, to the Participant's
designated beneficiary; provided however, if the distribution provided hereunder
is less than the total amount of the Participant's account at the time of the
distribution, Participant shall have repayment rights if Participant becomes
re-employed within the five (5) year period with respect to any portion of his
account that may have been forfeited. Under the provisions of this Plan there
can be no forfeitures.
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ARTICLE VI
PAYMENT OF ACCRUED BENEFITS OF PRIOR PLANS
6.1 PRIOR PLANS DEFINED. This Article provides for payment of
benefits accrued for Participants of plans listed below (hereinafter "Prior Plan
or Prior Plans"):
Harman Deferred Income Plan
Harvard Industries, Inc. ESNA Division Retirement Plan
Harvard Industries, Inc. Anchor Swan Division Retirement Plan
Hayes-Albion Salaried Employees Savings & Profit Sharing Plan
Kooima Machine Works Profit Sharing Plan
6.2 PAYMENT OF BENEFITS ACCRUED TO MARCH 31, 1988 UNDER PRIOR PLANS.
(a) PRIOR PLAN ACCOUNTS. The Committee shall determine the total
balances of the accounts of Participants in Prior Plans who were Prior Plan
Participants and such balances (hereinafter "Prior Plan Balances") shall be
distributed only as follows. The Plan Committee shall establish with respect to
each Participant for whom had been maintained under a Prior Plan an account or
accounts, a 'Prior Plan Account " into which shall be transferred the separate
account balances from such separate accounts maintained for the Participant
under a Prior Plan. To the extent any portion of those accounts were not
completely vested in the Participant as of April 1, 1988, the Plan Committee
shall establish a separate subaccount in the Prior Plan Account which shall be
credited with the unvested portion of the Prior Plan Account and in which the
Participant shall vest at the same rate and under the same conditions as was
provided in the Prior Plan. It shall be the responsibility of the Plan Committee
to monitor such unvested account balances. Any forfeitures arising with respect
to such Prior Plan Accounts shall be reallocated only to the accounts of the
Participants who were participants in that Prior Plan. In no event and under no
circumstances may any portion of a Prior Plan Account be reduced except as a
result of allocation of trust fund income or loss as provided in Section 11.4.
(b) NORMAL FORM OF DISTRIBUTION. If a Prior Plan Participant is
married on March 31, 1988 the normal form of distribution of the Prior Plan
Balances shall be a qualified joint and survivor annuity, but only if:
(1) the Participant is at the time of distribution married
to the same spouse as the Participant was married to on March 31, 1988; and
(2) the Participant and such spouse have not elected
another form of benefit payment.
Otherwise, the Participant's Prior Plan Balances shall be distributed to the
Participant in a lump sum the same as is provided in Article V hereof.
(c) OPTIONAL FORMS OF DISTRIBUTION. A Participant may elect to
have the Participant's Prior Plan Balances distributed other than as provided in
paragraph (b) above, in which event the Plan Committee will direct the Trustee
to purchase a nontransferable annuity from a commercial insurance company to
provide the optional form of benefit elected. The optional forms of benefit
payment are:
(1) Payment of the Prior Plan Balances in a series of
substantially equal annual or more frequent installments over a period not to
exceed the greater of the Participant's life expectancy, or the joint and last
survivor life expectancy of the Participant and his designated beneficiary, all
as selected by the Participant. Payments will be considered substantially equal
if each payment equals the Prior Plan Balances of the Participant at the
beginning of the Plan Year divided by the number of years remaining in the
period as selected by the Participant in the preceding sentence. Notwithstanding
the foregoing, if the Participant's designated beneficiary is not the
Participant's spouse, the present value of the payments made to the Participant
over the Participant's life expectancy must exceed 50% of the Participant's
Prior Plan Balances at the time benefits first become distributable.
(d) A qualified joint and survivor annuity is an annuity for the
life of the Participant with a survivor annuity for the life of the
Participant's spouse which is equal to 50% of the amount of the annuity payable
during their joint lives. Payments under the annuity are to commence within
sixty (60) days following the
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close of the Plan Year in which the Participant retires or would have retired
had he remained employed. The amount of the annuity shall be determined using
the Participant's vested Prior Plan Balance. The Trustee shall purchase a
nontransferable annuity from a commercial insurance company and distribute this
annuity to the Participant within sixty (60) days after the close of the Plan
Year in which he retires. The Trustee shall title the annuity in a form which
will prohibit its surrender or a change of its method of payment, without the
consent of the Participant's spouse.
(e) The Participant shall not be considered married for purposes
of paragraph (a) hereof, if on the date of his death he has been married for
less than one (1) year. For purposes of this Article only, time of distribution
means the first to occur with respect to a Participant of (1) attaining Normal
Retirement Age, (2) qualifying for disability retirement, (3) actual termination
of employment, or (4) death.
(f) The Plan Committee may in its discretion distribute the
Participant's benefits to the Participant or the Participant's spouse, in the
event benefits are payable due to the Participant's death, if such benefits have
never exceeded $3,500. Benefits under this provision must be paid before
periodic payments commence to the Participant or his spouse.
(g) MINIMUM AMOUNTS TO BE DISTRIBUTED. If the Participant's
entire interest is to be distributed in other than a lump sum, then the amount
to be distributed each year must be at least an amount equal to the quotient
obtained by dividing the Participant's entire interest by the life expectancy of
the Participant or joint and last survivor expectancy of the Participant and
Designated Beneficiary. Life expectancy and joint and last survivor expectancy
are to be computed by use of the return multiples contained in Section 1.72-9 of
the Regulations under the Code. For purposes of this computation, a
Participant's life expectancy may be recalculated no more frequently than
annually; however, the life expectancy of a nonspouse Designated Beneficiary may
not be recalculated. If the Participant's spouse is not the Designated
Beneficiary, the method of distribution selected must assure that at least fifty
(50%) percent of the present value of the amount available for distribution is
paid within the life expectancy of the Participant.
(h) DISTRIBUTION ON DEATH. Upon the death of a Participant, the
following distribution provisions shall take effect:
(1) If the Participant dies after distribution of his or
her interest has commenced, the remaining portion of such interest will continue
to be distributed at least as rapidly as under the method of distribution being
used prior to the Participant's death.
(2) If the Participant dies before distribution of his or
her interest commences, the Participant's entire interest will be distributed no
later than five (5) years after the Participant's death, except to the extent
that an election is made to receive distributions in accordance with (A) or (B)
below:
(A) If any portion of the Participant's interest is
payable to a Designated Beneficiary, distributions may be made in substantially
equal installments over the life or life expectancy of a Designated Beneficiary
commencing no later than one (1) year after the Participant's death; or
(B) If the Designated Beneficiary is the Participant's
surviving spouse, the date distributions are required to commence in accordance
with (A) above shall not be earlier than the date on which the Participant would
have attained age 70-1/2, and, if the spouse dies before payments begin,
subsequent distribution shall be made as if the spouse had been the Participant.
(3) For purposes of paragraph (2) above, payments will
be calculated by use of the return multiples specified in Section 1.72-9 of the
Regulations under the Code. Life expectancy of a surviving spouse may be
recalculated annually; however, in the case of another Designated Beneficiary,
such life expectancy will be calculated at the time payment first commences
without further recalculation.
(4) For purposes of this subsection, any amount paid
to a child of the Participant will be treated as if it had been paid to the
surviving spouse if the amount becomes payable to the surviving spouse when the
child reaches the age of majority.
(5) LIMITATION. The provisions of this Section are
subject to Section 6.3 hereof.
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(i) TIMING, COMMENCEMENT AND DETERMINATION OF
BENEFITS.
(1) TIME OF PAYMENT. Subject to the provisions of
Section 6.2(a) and subsections (b) and (c) hereof, the Participant shall elect
the time of payment of any benefit under the Prior Plan. If a Participant elects
to defer the payment of all or any portion of the balance in his Accounts, such
Accounts shall be segregated from the general Prior Plan funds and be invested
in only the fixed income fund (described in Section 3.12) until payment is to
commence to the Participant.
(2) COMMENCEMENT OF BENEFITS. Unless the Participant
elects payment of benefits to commence at a later time, payment of a
Participant's benefits must commence no later than 60 days after the close of
the Prior Plan Year in which the latest of the following events occurs:
(i) The attainment by the Participant of age 65;
(ii) In the case of a Plan Participant who
commences participation in the Prior Plan within five years before attaining age
65, the fifth anniversary of the time the Prior Plan Participant commences
participation in the Prior Plan;
(iii) In the case of a Prior Plan Participant not
described in paragraph (2) above, the tenth anniversary of the Prior Plan Year
in which the Participant joined the Prior Plan as a Participant; or
(iv) The termination of the Participant's service
with the Employer.
(3) COMMENCEMENT OF DISTRIBUTIONS. Each Participant's
benefits must, under any payment option selected under the Prior Plan, be
distributed commencing not later than April 1st following the calendar year in
which he or she attains the age of seventy and one-half (70-1/2).
(4) DETERMINATION DATE. All payments of benefits due
to be made under the Prior Plan shall be made on the basis of the amount of the
Participant's Account as of the Anniversary Date preceding the date of payment
of benefits, except that if such payment occurs after an Anniversary Date but
before allocations have been made to the Participant's Account, pursuant to
Article IV, then the Accounts shall include all amounts allocable to the
Participant's Accounts as of such Anniversary Date.
(5) PREMATURE DISTRIBUTION. Any payment of benefits
for reasons other than disability as defined in Section 72(m)(7) of the Code to
a Participant who is or has been a five (5%) percent owner of the Employer shall
be deemed to be made first from Employer contributions and forfeitures (and
income thereon) attributable to Plan Years of the Prior Plan during which he was
not a five (5%) percent owner.
6.3 ALLOCATIONS. No amount shall be allocated to a Prior Plan Account
other than the gains and losses of the trust as provided in section 4.3(d)
hereof.
ARTICLE VII
FIDUCIARY RESPONSIBILITY
7.1 NAMED FIDUCIARY. The Employer shall be the "named fiduciary"
referred to in Section 402(a) of ERISA with respect to the management, operation
and administration of the Plan and is also responsible for making contributions
provided for under Section 3.1. Harvard Industries is solely responsible for the
amendment or termination, in whole or in part, of this Plan, except that each
Employer shall have the right to terminate this Plan as to its Employees. The
"Plan Administrator" as defined in Section 414(g) of the Code and Section 3(16)
of ERISA is the Plan Committee as established by Article VIII hereof.
7.2 ALLOCATION OF FIDUCIARY RESPONSIBILITY. Each fiduciary, whether
named herein or otherwise, shall only have the individual responsibility for
exercising the functions and responsibilities assigned or allocated to such
fiduciary hereunder. Unless otherwise specifically provided herein, no fiduciary
responsibility shall be shared by two or more fiduciaries. Where one fiduciary
follows the directions of another fiduciary, who has the fiduciary
responsibility for such action, then the fiduciary following such direction
shall not be deemed a fiduciary hereunder in taking such action.
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7.3 SERVICE IN MORE THAN ONE CAPACITY. Any person, or group of
persons, may serve in more than one fiduciary capacity with respect to this
Plan.
7.4 EMPLOYMENT OF ADVISERS. A fiduciary may engage accountants,
attorneys, actuaries or such other advisers as it deems necessary or advisable
to properly carry out its duties under this Plan. The functions of any such
persons designated by the fiduciary shall be limited to the specific services
and duties for which they are engaged, and such persons shall have no other
duties, obligations or responsibilities under the Plan.
7.5 COMPENSATION OF FIDUCIARIES AND ADVISERS. The fees, expenses and
Costs charged or incurred by any fiduciary or any adviser hereunder may be paid
in whole or in part by the Employer, and any such fees, expenses or costs not
paid by the Employer shall be paid out of the Trust; provided that such
compensation or reimbursement is reasonable under the circumstances; and
provided further that no person who already receives full-time pay from an
Employer whose employees are Participants in the Plan shall receive any
compensation from the Trust, except for reimbursement of expenses properly and
actually incurred.
7.6 LIABILITY OF FIDUCIARIES. Each fiduciary, and each adviser to any
fiduciary, shall be free from all liability for any act or conduct in carrying
out its responsibilities under this Plan, except for acts of willful misconduct
or gross negligence; provided, however, that the foregoing shall not relieve any
such fiduciary or adviser from any responsibility or liability that it may have
pursuant to ERISA.
ARTICLE VIII
PLAN ADMINISTRATION
8.1 PLAN COMMITTEE. A Plan Committee consisting of three individuals
appointed by the president of the Employer shall be the Plan Administrator. The
Plan Committee shall appoint one member authorized to sign any reports required
by ERISA in representation of all members. All members of the Plan Committee
shall serve until their resignation or dismissal by the president of the
Employer appointing them and vacancies shall be filled in the same manner as the
original appointments. The president may dismiss any member of the Plan
Committee at any time with or without cause. The term "Plan Committee" or
"Committee" as to each Employer maintaining or adopting this Plan means only the
committee appointed by the president of that Employer.
8.2 DUTIES AND POWERS OF THE PLAN COMMITTEE. The Plan Committee shall
have such duties and powers as may be necessary to discharge its duties
hereunder, including, but not limited to, the following:
(a) To construe and interpret the Plan and Trust.
(b) To decide all questions of the eligibility of Employees to
become Participants under the Plan.
(c) To determine the amount, manner and time of payment of
benefits under the Plan.
(d) To authorize and direct all disbursements by the Trustee
from the Trust.
(e) To prescribe procedures to be followed by Participants or
Beneficiaries for filing applications for benefits.
(f) To prepare and distribute to Participants information
explaining the Plan.
(g) To make and publish rules for the regulation of the Plan
which are not inconsistent with the terms of the Plan or with ERISA.
(h) To designate one or more of its members to assume
responsibility for any of its functions or to delegate to individuals not
members of the Committee any administrative, clerical or other nondiscretionary
duties provided always in such delegation, the Committee shall alone remain
responsible for decisions affecting the rights of Participants and their
beneficiaries.
The Plan Committee shall have no power to add to, subtract from or modify
any of the terms of the Plan, or to modify any benefits provided by the Plan, or
to waive or fail to apply any requirements for eligibility for a
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benefit under the Plan. All policies, rules, interpretations and decisions of
the Plan Committee shall be uniformly and consistently applied in a
nondiscriminatory manner to all Participants in similar circumstances. The Plan
Committee shall be entitled to rely upon information furnished by a Participant
or Beneficiary in carrying out its duties hereunder.
8.3 CLAIMS PROCEDURE. The Plan Committee shall make all
determinations as to the right of any person to a benefit under this Plan. If a
claim is denied by the Plan Committee, it shall give written notice to the
claimant setting forth (a) the specific reason or reasons for the denial, (b)
the specific reference to pertinent Plan provisions on which the denial is
based, (c) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such material or
information is necessary, and (d) an explanation of the claim review procedure,
in accordance with this Section.
Within sixty days after the receipt by the claimant of a written notice of
denial of a claim, or such later time as may be deemed reasonable taking into
account the nature of the benefit subject to the claim and any other attendant
circumstances, the claimant may file a written request with the Plan Committee
that it conduct a full and fair review of the denial of the claim for benefits.
If such review is requested, the claimant or his duly authorized representative
may (a) request a review upon written application, (b) review pertinent
documents, and (c) submit issues and comments in writing.
The Plan Committee shall issue a written decision on the claim within
sixty days after the receipt of the aforesaid request for review, except that if
there are special circumstances (such as the need to hold a hearing) which
require an extension of time for processing the claim, the aforesaid sixty day
period shall be extended to one hundred twenty days. In the event of such
extension, written notice of the extension shall be furnished to the claimant
prior to the commencement of the extension. Any decision on review shall be in
writing, and shall be written in a manner calculated to be understood by the
claimant, shall include the specific reason or reasons for the decision, and
shall contain specific reference to pertinent Plan provisions upon which the
decision is based.
8.4 RECORDS AND REPORTS. The Plan Committee shall be responsible for
maintaining records of Participants' service, account balances, vesting and
other matters relating to amount of benefits under the Plan. The Plan Committee
shall also be responsible for filing such reports, and making such disclosures
to Participants as may be required by ERISA and the Code.
8.5 APPLICATION AND FORMS FOR BENEFITS. The Plan Committee may
require a Participant to complete and file with the Committee an application for
a benefit, or any other forms approved by the Committee, and to furnish all
pertinent information requested by the Plan Committee. The Plan Committee may
rely on all such information so furnished.
ARTICLE IX
AMENDMENT, MERGER AND TERMINATION OF THE PLAN
9.1 RIGHT TO AMEND OR TERMINATE. The Employer intends to continue
this Plan and the payment of contributions hereunder indefinitely, but such
continuance is not assumed as a contractual obligation, and the Employer by
action of its Board of Directors expressly reserves the right to discontinue
contributions to the Plan or to terminate the Plan at any time, as to its
Employees without the consent of any other party. Any amendment may be made
retroactive by its terms, but no such amendment shall cause any part of the
Trust to be used for, or diverted to, any purpose other than the exclusive
benefit of Participants or their Beneficiaries, provided, however, that Harvard
Industries, Inc. may make any amendment it determines necessary or desirable,
with or without retroactive effect, to qualify or maintain the Plan as a
qualified plan within the meaning of Section 401(a) of the Code, and to qualify
or maintain the Trust as tax exempt under Section 501(a) of the Code, and the
regulations issued thereunder.
9.2 ACTION BY EMPLOYER. Any action permitted by the Employer under
this Plan shall be taken by means of a resolution of its Board of Directors, or
by any person or persons duly authorized by resolution of said Board to take
such action. Any action taken by an Employer hereunder shall be with respect
only to Participants who are its Employees at the time of such action.
9.3 EFFECT OF TERMINATION. Upon termination of the Plan, the accounts
of all Participants or Beneficiaries affected thereby shall become fully vested
and nonforfeitable, and the Plan Committee shall, after payment of expenses
properly chargeable to the Fund, allocate any unallocated assets in the Fund to
the accounts
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of such Participants or Beneficiaries pursuant to the rules set forth in Article
IV hereof. In making such final allocation, the Plan Committee may, if it
determines that a termination of the Plan has occurred prior to the date of
formal action by the Employer, reverse any forfeitures of accounts of
Participants which have occurred in the interim.
9.4 PARTIAL TERMINATION. Upon termination of the Plan with respect to
a group of Participants which constitutes a partial termination of the Plan
under the Code, the accounts of such group of Participants shall become fully
vested and nonforfeitable. The accounts shall be segregated and allocated
pursuant to Section 9.3 hereof, and distribution shall be governed by the
provisions of Section 9.5 hereof.
9.5 MANNER OF DISTRIBUTION. In the event of termination or partial
termination of the Plan, the Plan Committee shall direct the Trustee either (a)
to make distribution of benefits to Participants or their Beneficiaries affected
by such termination or partial termination pursuant to Section 5.8, or (b) to
retain such benefits for distribution upon the occurrence of one of the events
set forth in Article V hereof.
To the extent that no discrimination in value results, any distribution
after termination or partial termination of the Plan may be made, in whole or in
part, in cash, in securities or other assets in kind, or in nontransferable
annuity contracts, as the Plan Committee and the Trustee may determine. All
non-cash distributions shall be valued at fair market value at the date of
distribution.
9.6 MERGER. In the event of any merger or consolidation of the Plan
with, or transfer in whole or in part of the assets and liabilities of the Fund
to another trust fund held under any other plan of deferred compensation
maintained or to be established for the benefit of all or some of the
Participants in this Plan, the assets of the Fund applicable to such
Participants shall be transferred to the other trust fund only if:
(a) Each Participant would (if either this Plan or the other
plan then terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he would
have been entitled to receive immediately before the merger, consolidation or
transfer (if this Plan had then terminated).
(b) Resolutions of the Board of Directors of the Employer under
this Plan, or of any new or successor employer of the affected Participants,
shall authorize such transfer of assets, and, in the case of the new or
successor employer of the affected Participants, its resolutions shall include
an assumption of liabilities with respect to such Participants' inclusion in the
new employer's plan, and
(c) Such other plan and trust are qualified under Sections
401(a) and 501(a) of the Internal Revenue Code.
9.7 SUCCESSOR EMPLOYER. In the event of the dissolution, merger,
consolidation or reorganization of the Employer, provision may be made by which
the Plan and Trust will be continued by the successor; and, in that event, such
successor shall be substituted for the Employer under the Plan. The substitution
of the successor shall constitute an assumption of Plan liabilities by the
successor and the successor shall have all of the powers, duties and
responsibilities of the Employer under the Plan.
9.8 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS. In the event of a
permanent discontinuance of contributions to the Plan by the Employer, the
accounts of all Participants and Beneficiaries shall become fully vested and
non-forfeitable. The Plan Committee shall have the same authority to determine
the effective date of such discontinuance and to reverse and reallocate
forfeitures as set forth in Section 9.3, relating to termination of the Plan.
9.9 PROSPECTIVE AMENDMENT OF VESTING SCHEDULE. If the Plan's vesting
schedule is amended or the Plan is amended in any way that directly or
indirectly affects the computation of the Participant's nonforfeitable
percentage or if the Plan is deemed amended by an automatic change to or from a
top-heavy vesting schedule, each Participant with at least three years of
service with the Employer may elect, within a reasonable period, after the
adoption of the amendment or change, to have the nonforfeitable percentage
computed under the Plan without regard to such amendment or change. The period
during which the election may be made shall commence with the date the amendment
is adopted or deemed to be made and shall end on the latest of:
(1) Sixty (60) days after the amendment is adopted
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(2) Sixty (60) days after the amendment becomes effective
or
(3) Sixty (60) days after the Participant is issued written
notice of the amendment By the Plan Committee.
9.10 AMENDMENT AFFECTING VESTED BENEFITS. No amendment to the Plan
shall be effective to the extent that it has the effect of decreasing a
Participant's accrued benefit. Notwithstanding the preceding sentence, a
Participant's Account balance may be reduced to the extent permitted under IRC
Section 412(c)(8). For purposes of this section, a Plan amendment which has the
effect of decreasing a Participant's Account balance or eliminating an optional
form of benefit with respect to benefits attributable to service before the
amendment shall be treated as reducing an accrued benefit. Furthermore, no
amendment of the Plan shall have the affect of decreasing a Participant's vested
interest determined without regard to such amendment as of the later of the date
such amendment is adopted or the date it becomes effective.
ARTICLE X
TOP-HEAVY AND OWNER-EMPLOYEE
PROVISIONS AND DEFINITIONS
10.1 TOP-HEAVY PLAN DEFINITIONS.
(a) "TOP-HEAVY PLAN" means a plan which, as of the Determination
Date (1) the Present Value of Accrued Benefits of Key Employees and (2) the
aggregate of the Accounts of Key Employees under the plan exceeds sixty percent
(60%) of the Present Value of Accrued Benefits and the aggregate of the Accounts
of all employees under such plan. The determination of whether a plan is
top-heavy shall be made after aggregating all other plans of the Employer or any
of its affiliates which are part of a Required Aggregation Group and after
aggregating any other plan of the Employer or any of its affiliates which is
part of the Permissive Aggregation Group, if such permissive aggregation thereby
eliminates the top-heavy status of any plan within such Permissive Aggregation
Group. A plan is a "Super Top-Heavy Plan" if, as of the Determination Date, the
plan would meet the test specified above for being a Top-Heavy Plan if ninety
percent (90%) were substituted for sixty percent (60%) in each place it appears
in this subsection.
(b) "DETERMINATION DATE" means, for purposes of determining
whether a plan is a Top-Heavy Plan for a particular Plan Year, the last day of
the preceding Plan Year (or, in the case of the first Plan Year of a plan, the
last day of the first Plan Year).
(c) "VALUATION DATE" means, for purposes of determining the
value of Accounts under this Section, the same date as the Determination Date.
(d) "KEY EMPLOYEE" means any Employee or former Employee who at
any time during the Plan Year of Determination, or any of the four (4) preceding
Plan Years, is or was:
(1) An officer of the Employer having annual compensation
for such Plan Year which is in excess of 50 percent of the dollar limit in
effect under Section 415(b)(1)(A) for the calendar eear in which such Plan Year
end;
(2) An owner of (or considered as owning within the meaning
of Section 318) both more than an 1/2 percent interest as well as one of the ten
largest interests in the Employer and having annual compensation greater than
the dollar limit in effect under Section 415(c)(1)(A) for the year;
(3) A five percent owner of the Employer; or
(4) A one percent owner of the Employer who has annual
compensation of more than $150,000.00. For purposes of determining five-percent
and one-percent owners, neither the aggregation rules nor the rule of
subsections (b), (c) and (m) of Section 414 apply. Beneficiaries of an Employee
acquire the character of the Employee who performed service for the Employer.
Also, inherited benefits will retain the character of the benefits of the
Employee who performed services for the Employer.
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(e) "NON-KEY EMPLOYEE" means any Employee or former Employee
(including a Beneficiary of such Employee) who is not a Key Employee.
(f) "ACCOUNT" means the value of an Account (as defined in
Section 4.1(b) under the Plan as of the Valuation Date, including all employer
contributions paid or payable to such Account and all employee contributions
actually paid to such Account, except as follows:
(1) The value of each Account shall be increased by the
aggregate distributions made with respect to an Employee under the Plan during
the five (5) year period ending on the Determination Date.
(2) In the case of a profit sharing plan, the value of each
Account shall not include any employer contribution actually made after the
Determination Date, except in the case of the first Plan Year of such plan.
(3) The value of an Account maintained for voluntary
deductible Employee contributions (if any) shall not be included.
(4) The value of an Account maintained for rollover
contributions (if any) shall not be included if the rollover contribution was
initiated by the Employee and was not made from a plan maintained by the
Employer (or by an employer required to be aggregated with the Employer under
Sections 414(b), (c) or (m) of the Code).
(5) The value of an Account maintained for an Employee who
is a Non-Key Employee with respect to a plan for any Plan Year who was a Key
Employee with respect to a plan for any prior Plan Year shall not be included.
(6) If an individual has not received any Compensation from
any employer maintaining the Plan (other than benefits under the Plan) at any
time during the five (5) year period ending on the Determination Date, the value
of the Account of such individual shall not be included.
(g) "REQUIRED AGGREGATION GROUP" means (1) each qualified plan
of the Employer or any of its affiliates in which at least one Key Employee
participates, and (2) any other qualified plan of the Employer or any of its
affiliates which enables a plan described in (1) to meet the requirements of
Sections 401(a)(4) or 410 of the Code.
(h) "PERMISSIVE AGGREGATION GROUP" means the Required
Aggregation Group of plans plus any other plan or plans of the Employer or any
of its affiliates which, when considered as a group with the Required
Aggregation Group would continue to satisfy the requirements of Sections
401(a)(4) and 410 of the Code.
(i) "PRESENT VALUE OF ACCRUED BENEFIT" means, in the case of a
defined benefit plan, the present value of a Participant's accrued benefit as
determined under the provisions of the applicable defined benefit plan.
(j) "EMPLOYER OR ANY OF ITS AFFILIATES" means the Employer
maintaining the Plan, and all members of a controlled group of corporations (as
defined in Section 414(b) of the Code), all commonly controlled trades or
businesses (as defined in Section 414(c) of the Code), and affiliated service
groups (as defined in Section 414(m) of the Code) of which the Employer is a
part.
10.2 EFFECTIVE DATE. In any Plan Year in which the Plan is a
Top-Heavy Plan, the Plan shall meet the requirements set forth in Section 10.3.
10.3 MINIMUM CONTRIBUTION REQUIREMENTS.
(a) DEFINITION OF COMPENSATION. For purposes of this Section,
Compensation for any Plan Year shall mean Compensation shown on the
Participant's W-2 Form for that Plan Year.
(b) ALLOCATION. The total allocable amount under Section 4.3(c)
shall be allocated as follows:
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(1) The total allocable amount shall first be allocated
among the accounts of Participants who have completed a Year of Service (except
that such requirement that the Participant complete 1,000 Hours of Service in
the Plan Year shall not apply to any Participant) in the same proportion that
each such Participant's Compensation bears to the aggregate Compensation of all
such Participants for such Plan Year, provided that the amount so allocated to
the account of any Participant who is not a Key Employee shall not be less than
the lesser of 3% or the highest rate allocated to any Key Employee for the Plan
Year (such rate determined by calculating the largest percentage of Compensation
not in excess of $200,000.00). If the highest rate allocated to a Key Employee
for such Plan Year is less than 3%, amounts contributed attributable to a salary
reduction arrangement shall be included in determining contributions made on
behalf of Key Employees.
(2) The remainder of the total allocable amount, if any,
shall be allocated as set forth in Section 4.3(c).
(c) EXCEPTIONS TO THE MINIMUM CONTRIBUTION REQUIREMENT. The
minimum contribution required under subsection (b) shall be reduced or
eliminated, as the case may be, in the following circumstances:
(1) If the allocation in any Plan Year of the total
allocable amount under Section 4.3(c) (determined without regard to this
Section) results in an allocation to each Participant who is eligible to receive
an allocation under Section 10 3(b)(1) of at least 3% of such Participant's
Compensation for the Plan Year, then the provisions of Section 10.3(b) shall not
apply for such Plan Year.
(2) No minimum contribution will be required (or the
minimum contribution percentage will be reduced, as the case may be) for any
Plan Year for a Participant who is eligible to receive an allocation under
Section 10.3(b)(1) if the employer maintains another qualified plan under which
a minimum benefit or contribution is being accrued or made for such Plan Year in
whole or in part for the Participant in accordance with Section 416(c) of the
Code.
(d) EFFECT OF DEFINED BENEFIT PLAN. The 3% minimum contribution
requirement in subsections (b) and (c) shall be increased to 5% for any Plan
Year in which the Employer also maintains a defined benefit pension plan to the
extent necessary to avoid the application of Section 416(f) of the Code and
regulations thereunder.
10.4 MAXIMUM COMPENSATION LIMITATION. The Compensation (as defined in
both Section 10.3(a) and Section 1.3(d)) of each Participant in the Plan for any
Plan Year shall not exceed the first $200,000 of such Participant's
Compensation; provided that such dollar limitation shall be adjusted to take
into account any adjustments prescribed by the Secretary of the Treasury or his
delegate under Section 416(d)(2) of the Code.
10.5 ADJUSTMENT TO SECTION 415 LIMITS. If the Plan is a Super
Top-Heavy Plan or if the Plan is a Top-Heavy Plan, and the minimum benefits
required by Section 416(h) of the Code are not provided, then the 1.25 factor
used in the denominators of the Defined Contribution Plan Fraction (under
Section 4.4(c)(5)) and Defined Benefit Plan Fraction (under Section 4.4(c)(4))
shall be changed to 1.0.
10.6 REMEDIAL PROVISIONS. In addition to the other powers granted
hereunder, the Plan Committee shall have the power to take such action as it
deems necessary or appropriate to determine whether the Plan is a Top-Heavy
Plan, and in such event, to apply the provisions of this Article to the Plan,
including, but not limited to the power to reallocate employer contributions,
forfeitures and income, to reverse all or part of any forfeitures which may have
been improperly recognized, and to direct the Trustee to make required
distributions hereunder.
ARTICLE XI
MISCELLANEOUS
11.1 NON-GUARANTEE OF EMPLOYMENT. Nothing contained herein shall be
construed as a contract of employment between the Employer and any Employee, or
as a right of any Employee to be continued in the employment of the Employer, or
as a limitation of the right of the Employer to discharge any Employee, with or
without cause.
26
<PAGE>
11.2 NON-ALIENATION OF BENEFITS. To the extent permitted by law, none
of the benefits payable hereunder shall be subject to the claims of any creditor
of any Participant or Beneficiary nor shall the same be subject to attachment,
garnishment or other legal or equitable process by any creditor of a Participant
or a Beneficiary, nor shall any Participant or Beneficiary have any right to
alienate, anticipate, commute, pledge, encumber or assign any of such benefits.
The foregoing provision shall not apply to a qualified domestic relations order
as defined in Section 414(p) of the Code.
11.3 FACILITY OF PAYMENT. If any Participant or Beneficiary shall be
physically or mentally incapable of receiving or acknowledging receipt of any
payment due under the terms of the Plan, and no legal representative shall have
been appointed for him, the Plan Administrator may direct the Trustee to make
such payment to the person or institution maintaining such Participant or
Beneficiary, and the payment to such person or institution in good faith shall
constitute a valid and complete discharge for such payment.
11.4 EXCLUSIVE BENEFIT. This Plan is established for the exclusive
benefit of the Employees of the Employer.
11.5 NO REVERSION. Except as otherwise expressly permitted hereunder,
no assets of the Plan or the Trust shall ever revert to or be used or enjoyed by
the Employer, nor, prior to the satisfaction of all liabilities under this Plan
to Participants and their Beneficiaries, shall any of the assets of the Plan or
Trust ever be used other than for the benefit of the Employees of the Employer
and their Beneficiaries and defraying reasonable expenses of administering the
Plan.
11.6 EFFECT OF SOCIAL SECURITY BENEFITS. Benefits paid to or on
behalf of a retired or terminated Participant hereunder shall not be reduced or
otherwise affected by increases or other adjustments in Social Security benefits
such Participants may receive.
11.7 TITLES. Titles of Articles and Sections are inserted for
convenience only and shall not affect the meaning or construction of the Plan.
11.8 SEVERABILITY. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof, and this Plan shall be constructed and enforced as
if such provision had not been included herein.
11.9 APPLICABLE LAW. This Plan shall be construed in accordance with
the laws of the State of New Jersey.
11.10 INITIAL QUALIFICATION. This Plan has been adopted and is based
upon the condition precedent that the Internal Revenue Service issue its
determination that it meets the requirements of the Code and regulations issued
hereunder with respect to qualified plans. Notwithstanding any other provision
herein, if the Internal Revenue Service determines that the Plan does not
initially qualify under the Code, any assets attributable to Employer
contributions which have been made prior to notice of such adverse determination
shall be returned to the Employer, and this Plan shall terminate.
IN WITNESS WHEREOF, Harvard Industries, Inc. has caused this Plan,
restated and amended effective January 1, 1989, to be made, executed and
delivered by its Vice-President and its seal to be affixed hereto as of this
28th day of June, 1994 (the date the restated plan was signed).
Dated: February 1, 1995.
HARVARD INDUSTRIES, INC.
By: /s/ JOSEPH J. GAGLIARDI
------------------------
Joseph J. Gagliardi
ATTEST:
/s/ RICHARD T. DAWSON
---------------------
Richard T. Dawson
Secretary
[Corporate Seal]
27
<PAGE>
FIRST AMENDMENT TO THE
HARVARD CAPITAL ACCUMULATION PLAN AND TRUST
Harvard Industries, Inc. (the "Company") has retained the authority to
amend the Harvard Capital Accumulation Plan (the "Plan') from time to time. The
Company now wishes to amend the Plan to authorize immediate distributions from
the Plan to Participants transferred to employment of other specified employers
in connection with certain sales of business by the Company. Accordingly, the
Company hereby adopts the following amendment to the Plan, effective February 1,
1995:
1. Section 3.6 shall be amended by adding new subsection (d) at the end of
the Section to read as follows:
(d) DISTRIBUTION EXCEPTION FOR CERTAIN SALES OF BUSINESS. Effective
December 23, 1994, the Employer sold substantially all of the assets
(within the meaning of Code ss.409(d)(2)) used in the trade or business
which the Employer conducted at the Pocahontas, Arkansas plant to
MacLean-Fogg Company. In connection with that asset sale, any Participant
who continues employment with MacLean-Fogg Company following the sale is
eligible for distribution from all Accounts under the Plan as if he has
incurred a separation from service, provided such distribution constitutes
a lump sum distribution, and is determined in a manner consistent with
Code ss.401(k)(10) and the applicable Treasury regulations.
2. Section 5.6 is amended by adding the following language at the end of the
Section:
Effective December 23, 1994, the Employer sold substantially all of the
assets (within the meaning of Code ss.409(d)(2)) used in the trade or
business which the Employer conducted at the Pocahontas, Arkansas plant to
MacLean-Fogg Company. In connection with that asset sale, any Participant
who continues employment with MacLean-Fogg Company following the sale is
entitled to distribution of the balances in all his Accounts under the
Plan as if he has incurred a termination of employment from the Employer,
provided such distribution constitutes a lump sum distribution, and is
determined in a manner consistent with Code ss.401(k)(10) and the
applicable Treasury regulations.
3. In all other respects, the Plan is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
on the 20th day of January, 1995.
HARVARD INDUSTRIES, INC.
By: /s/ RICHARD T. DAWSON
---------------------
Richard T. Dawson
"EMPLOYER"
<PAGE>
SECOND AMENDMENT TO THE
HARVARD CAPITAL ACCUMULATION PLAN
Harvard Industries, Inc. (the "Company") has retained the authority to
amend the Harvard Capital Accumulation Plan (the "Plan") from time to time. The
Company now wishes to amend the Plan to authorize investment in company stock as
well as to make certain other changes to the operation of the Plan. Accordingly,
the Company hereby adopts the following amendment to the Plan. effective April
1, 1995:
1. Section 1.3(d)(1) is amended in its entirety to read as follows:
(1) For Employees who are paid on an hourly basis, the total taxable
compensation paid to such Employee by the Employer during the Plan Year
increased for elective contributions. For this purpose, "elective
contributions" are amounts excludible from the Employee's gross income
under Code ss.ss.125, 402(a)(8) or 402(h), and contributed by the
Employer, at the Employee's election, to a Code ss.401(k) arrangement, a
Simplified Employee Pension or a cafeteria plan.
2. Section 1.3(d)(2) is amended in its entirety to read as follows:
(2) For Employees who are paid on a salaried basis, the Employee's
base salary increased by any overtime and shift premium pay received by
the Employee during the Plan Year increased by elective contributions but
excluding any bonus or other additional compensation; and excluding
amounts paid prior to an Employee becoming a Participant hereunder and
amounts paid after an Employee ceases to be eligible to be a Participant
in accordance with Section 2.2 hereof. For this purpose, "elective
contributions" are amounts excludible from the Employee's gross income
under Code ss.ss.125, 402(a)(8) or 402(h), and contributed by the
Employer, at the Employee's election, to a Code ss.401(k) arrangement, a
Simplified Employee Pension or a cafeteria plan. Effective as of January
1, 1989, no Employee shall be permitted to have Elective Deferrals or any
other contribution made by Employer under this Plan during any calendar
year based on compensation in excess of $200,000 multiplied by the
Adjustment Factor as provided by the Secretary of the Treasury.
3. Section 1.4(g) is amended in its entirety to read as follows:
(g) "HARDSHIP"
(1) "HARDSHIP" means an immediate and heavy financial need
of a Participant that cannot reasonably be met from other resources of the
Participant. Any distribution made based on the existence of hardship
shall not exceed the amount needed to meet the need created by the
hardship. All determinations of hardship shall be made by the Plan
Committee or its designee pursuant to rules uniformly applied to all
Participants similarly situated. Commencing April 1, 1995, a hardship
distribution must be on account of one or more of the following immediate
and heavy financial needs: (1) medical expenses described in Code
ss.213(d) incurred by the Participant, by the Participant's spouse, or by
any of the Participant's dependents; (2) the purchase (excluding mortgage
payments) of a principal residence for the Participant; (3) the payment of
post-secondary education tuition and related educational fees, room and
board, for the next 12-month period, for the Participant, for the
Participant's spouse, or for any of the Participant's dependents; (4) to
prevent the eviction of the Participant from his principal residence or
the foreclosure on the mortgage of the Participant's principal residence;
or (5) any other event designated by Treasury regulations for the safe
harbor definition of hardship.
(2) EMPLOYEE REPRESENTATION. The Plan Committee will treat the
distribution as the amount necessary to satisfy the immediate and heavy
financial need, without further determination of other available
resources, if the Participant represents, and the Plan Committee
determines under the facts and circumstances it is reasonable to rely on
that representation, he is not able to relieve his immediate and heavy
financial need: (a) through reimbursement or compensation by insurance or
otherwise; (b) by reasonable liquidation of the Participant's assets
(including the assets of the Participant's spouse or of the Participant's
minor children, if those assets are reasonably available to the
Participant); (c) by cessation of elective deferrals or of employee
contributions under the Plan; (d) by other distributions or nontaxable
loans from this Plan or from any other qualified Plan maintained by the
Employer or by any other Employer; or (e) by borrowing from commercial
sources on reasonable commercial terms.
4. Section 2.2 is amended in its entirety to read as follows:
<PAGE>
2.2 ELIGIBILITY FOR PARTICIPATION. Each Employee other than an
individual whose terms and conditions of employment are determined by a
collective bargaining agreement to which the Employer is a party (unless
the collective bargaining agreement specifically provides for the
inclusion of its members in this Plan), shall be eligible to become a
Participant upon completion of one Year of Service, except that
/bullet/ an individual who becomes an Employee by September 1, 1988,
shall become a Participant as of September 1, 1988,
/bullet/ an individual who becomes an Employee of Trim Trends, Inc. or
any of its subsidiaries by October 1. 1988, shall become a
Participant as of October 1, 1988, and
/bullet/ beginning April 1, 1995, an Employee eligible to participate in
the Plan shall become a Participant as of the first day of the
month following completion of 30 days of employment with the
Employer. Such Participant shall be eligible to make Elective
Contributions described in Section 3.4(a) commencing on the date
participation commences and shall be eligible to share in
Matching Contributions described in Section 3.1 upon completion
of one Year of Service.
5. Section 2.3 is amended in its entirety to read as follows:
2.3 PARTICIPATION. Each Employee who is employed by the Employer as
of April 1, 1988, and who is not excluded under Sections 2.1 and 2.2 shall
be a Participant effective as of that date. Each other Employee eligible
to participate in accordance with Section 2.2 shall become a Participant
as of the first day of the month immediately succeeding the month in which
he completes the eligibility requirements described in Section 2.2.
6. Section 3. l(a) is amended in its entirety to read as follows:
(a) AMOUNT. The amount of the Employer's Matching Contribution shall
be equal to 50% of that portion of a Participant's Elective Deferral which
does not exceed two (2%) percent of the Participant's Compensation and 25%
of a Participant's Elective Deferral which exceeds two (2%) percent, but
not in excess of six (6%) percent, of the Participant's Compensation. For
this purpose, the Matching Contribution will consider only Compensation
earned and Elective Deferrals deposited on behalf of Compensation earned
after the first day of the month that follows the Participant's completion
of one Year of Service.
7. Section 3.5(a) is amended by adding the following language at the end of
that subsection:
Notwithstanding the above, effective April 1, 1995, the Plan has ceased
accepting Participant Voluntary Contributions. Accordingly, the will not
accept any Participant Voluntary Contributions on or after April 1, 1995.
8. Section 3.6(a) is amended in its entirety to read as follows:
(a) PARTICIPANT'S ELECTIVE DEFERRAL ACCOUNT.
(1) A Participant may not withdraw any amount attributable to
his Elective Deferrals prior to the Participant's retirement, death,
disability, separation from service or attainment of age 59 1/2 except in
the case of hardship as defined in Section 1.4(g). Upon application to the
Plan Committee for a withdrawal based on hardship, the Plan Committee
shall make a determination of the existence of hardship. If the Plan
Committee determines that a hardship exists with respect to the
Participant, the Participant may withdraw up to 100 percent of his vested
interest in the Participant's Elective Deferral Account, but not in excess
of the amount requested by the Participant in his initial application.
Withdrawal of amounts less than the total amount in the Participant's
Elective Deferral Account shall be in units of $1,000 with a minimum
withdrawal of $1,000. The Plan Committee shall implement the foregoing by
such rules, regulations, forms and procedures as to which the Plan
Committee seems appropriate, provided always that participants similarly
situated be treated uniformly. After December 31, 1988, hardship
withdrawals may be made from Participant's Elective Deferrals only,
excluding withdrawal of ny income earned by Participant's Elective
Deferrals after December 31, 1988.
2
<PAGE>
(2) RESTRICTIONS. Effective April 1, 1995, the following restrictions
apply to a Participant who receives a hardship distribution: (a) the
Participant may not make Elective Deferrals to the Plan for the 12-month
period following the date of his hardship distribution; and (b) the
Participant agrees to limit elective deferrals under this Plan and under
any other qualified Plan maintained by the Employer, for the Participant's
taxable year immediately following the taxable year of the hardship
distribution, to the limitation of Code Section 402(g), reduced by the
amount of the Participant's Elective Deferrals made in the taxable year of
the hardship distribution. The suspension of elective deferrals and
employee contributions described in clause (a) also must apply to all
other qualified plans and to all nonqualified plans of deferred
compensation maintained by the Employer, other than any mandatory employee
contribution portion of a defined benefit plan, including stock option,
stock purchase and other similar plans, but not including health or
welfare benefit plans (other than the cash or deferred arrangement portion
of a cafeteria plan).
(3) An Employee continues to be an eligible Employee during a period
the Plan suspends the Employee's right to make Elective Deferrals
following a hardship distribution.
9. Section 3.13 is amended by adding the following new subsection (c) at the
end of the Section:
(c) INVESTMENT IN HARVARD SHARES.
(1) Effective April 1, 1995, the Plan will offer a fifth
investment option to Participants for investment in accordance with the
procedures of subsections (a) and (b) above except that allocations (and
switches) between any of the funds may be made in multiples of 20%. The
fifth investment option that is available to Participants in the Plan is
investment in whole shares of Class B common stock, $.01 par value, of
Harvard Industries, Inc., a Delaware corporation ("Harvard Shares").
(2) A purchase or sale of Harvard Shares pursuant to this
subsection shall be made in whole shares as soon as practicable after
receipt of the Participant's direction. Funds designated for investment in
Harvard Shares that are insufficient to purchase a whole share shall be
held by the Plan in the fixed income fund.
(3) Purchase and sale of Harvard Shares shall be made at the
fair market value of the shares as determined by the Plan Committee in its
sole discretion; provided, however, that (A) if the shares are admitted to
trading on a national securities exchange, fair market value on any date
shall be the last sale price reported for the shares on such exchange on
such date or on the last date preceding such date on which a sale was
reported, (B) if the shares are admitted to quotation on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") or
other comparable quotation system and have been designated as a National
Market System ("NMS") security, fair market value on any date shall be the
last sale price reported for the shares on such system on such date or on
the last day preceding such date on which a sale was reported, or (C) if
the shares are admitted to quotation on NASDAQ and have not been
designated a NMS security, fair market value on any date shall be the
average of the highest bid and lowest asked prices of the shares on such
system on such date.
(4) Harvard Shares purchased by the Plan on behalf of a
Participant's accounts shall be owned by the Trust and the Participant
will not have rights as a stockholder with respect to such shares. The
Participant shall not have any right to distribution of such shares. All
rights of ownership related to such shares, including the right to vote
such shares, shall be exercised by the Plan Committee, in its sole
discretion. Any dividends received in connection with such shares shall be
allocated to the accounts of the Participant on whose behalf the shares
are held.
10. In all other respects, the Plan is hereby ratified and confirmed.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
on the 10th day of March, 1995.
HARVARD INDUSTRIES, INC.
By: /s/ RICHARD T. DAWSON
---------------------
Richard T. Dawson
"EMPLOYER"
4
<PAGE>
THIRD AMENDMENT TO THE
HARVARD CAPITAL ACCUMULATION PLAN
Harvard Industries, Inc. (the "Company") has retained the authority to
amend the Harvard Capital Accumulation Plan (the "Plan") from time to time. The
Company now wishes to amend the Plan to revise the Plan provisions addressing
investment in company stock and to authorize distributions in the form of
company stock. Accordingly, the Company hereby adopts the following amendment to
the Plan, effective July 1, 1995:
1. Section 3.13(b) is amended by adding the following sentence to the end of
that subsection:
Notwithstanding the above, effective July 1, 1995, the allocations between
Investment Funds may be made in multiples of 5%.
2. The language added to the Plan as part of the Second Amendment adding new
subsection 3.13(c) describing the new Company Stock Fund is hereby revoked
and eliminated retroactively to April 1, 1995. Such language is replaced,
effective July 1, 1995 with the language described at number 3 of this
amendment as described below.
3. Section 3.13 is amended by adding the following new subsection (c) at the
end of the Section:
(c) INVESTMENT IN COMPANY STOCK FUND.
(1) Effective July 1, 1995, the Plan will offer a fifth
investment option to Participants for investment in accordance with the
procedures of subsections (a) and (b) above except that allocations (and
switches) between any of the funds may be made in multiples of 5%. The
fifth investment option that is available to Participants in the Plan is
investment in the Company Stock Fund, an investment fund that will be
invested primarily in shares of Class B common stock, $.01 par value, of
Harvard Industries, Inc., a Delaware corporation ("Harvard Shares").
(2) The Company Stock Fund described in this subsection shall be
invested primarily in whole shares of Harvard Shares. Funds in the Company
Stock Fund that are not invested in Harvard Shares shall be held in short
term money market fund investments.
(3) Purchase and sale of Harvard Shares shall be made at the
fair market value of the shares. If the shares are admitted to trading on
a national securities exchange, fair market value on any date shall be the
last sale price reported for the shares on such exchange on such date or
on the last date preceding such date on which a sale was reported. If the
shares are admitted to quotation on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") or other comparable
quotation system and have been designated as a National Market System
("NMS") security, fair market value on any date shall be the last sale
price reported for the shares on such system on such date or on the last
day preceding such date on which a sale was reported. If the shares are
admitted to quotation on NASDAQ and have not been designated a NMS
security, fair market value on any date shall be the average of the
highest bid and lowest asked prices of the shares on such system on such
date. If none of the above apply, fair market value on any date shall be
determined by the Plan Committee in its.sole discretion.
(4) Harvard Shares held in the Company Stock Fund shall be owned
by the Trust and the Participant will not have rights as a stockholder
with respect to such shares except as provided in this subsection 3.13(c).
(5) The Participant shall have the right to vote shares held by
the Company Stock Fund to the extent such shares are attributable to the
Participant's accounts on a voting record date. The Trustee shall
determine on each voting record date the number of shares (both whole and
fractional shares) attributable to each Participant's accounts that are
invested in the Company Stock Fund on such date and shall contact the
respective Participants for voting instructions with respect to such
shares. Any shares for which the Trustee does not receive voting
instructions from a Participant shall be voted by the Trustee in its sole
discretion. Any voting power exercised by the Trustee shall be voted after
consideration by the Trustee of the issues involved and determination by
the Trustee as to how the shares should be voted considering the best
interests of the Plan and its Participants and Beneficiaries. The Trustee
may receive a statement of voting preference for the unvoted shares from
the Plan Committee and may follow that Committee direction if it
determines that the manner of voting directed by the Committee will result
in a vote that is in the best interests of the Plan and its Participants
and Beneficiaries.
<PAGE>
(6) Each Participant who has a portion of his accounts invested
in the Company Stock Fund at the date he/she becomes entitled to a
distribution from the Plan shall be entitled to receive a distribution
from the Plan in the form of Harvard Shares, to the extent of such
Participant's Company Stock Fund investment. As of any such distribution
date, the Trustee shall determine the portion of the Company Stock Fund
attributable to the Participant's accounts and shall make available for
distribution to the Participant that number of whole shares. The portion
of the Participant's account attributable to a fractional share shall be
distributed in cash. A Participant who does not elect to receive a
distribution of Harvard Shares shall receive a cash distribution.
Notwithstanding the above, a Participant whose distribution is subject to
mandatory distribution under the provisions of Section 5.10 (accounts
valued at $3,500 or less) shall not be entitled to elect a stock
distribution under this subsection.
(7) All other rights of ownership related to such shares, shall
be exercised by the Trustee, in its sole discretion. Any dividends
received in connection with such shares shall be held as a part of the
Company Stock Fund resulting in increase in value to the accounts of all
Participant who have funds invested in the Company Stock Fund.
4. In all other respects, the Plan is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
on the 15th day of March, 1995.
HARVARD INDUSTRIES, INC.
By: /s/ RICHARD T. DAWSON
---------------------
Richard T. Dawson
"EMPLOYER"
2
<PAGE>
FOURTH AMENDMENT TO THE
HARVARD CAPITAL ACCUMULATION PLAN
Harvard Industries, Inc. (the "Company") has retained the authority to
amend the Harvard Capital Accumulation Plan (the 'Plan") from time to time. The
Company now wishes to clarify the Plan's provisions addressing investment funds
available under the Plan and to clarify the availability of hardship
distributions and age 59-1/2 distributions from prior plan balances.
Accordingly, the Company hereby adopts the following amendment to the Plan,
effective April 1, 1988, or such other date as provided below:
1. Section 3.6(a)(1) is amended by adding the following sentence to the end
of that subsection:
The Participant's Elective Deferrals for purposes of this subsection
include Elective Deferrals held as a part of the Participant's Prior Plan
Account balance.
2. Effective January 1, 1989, Section 3.13(b) is amended to reflect the
replacement of the GIC Fund in the plan with the Vanguard Investment Fund.
The revised Section 3.13(b) shall read as follows:
(b) CHANGE IN INVESTMENT FUNDS. A Participant may change the
allocation of his contributions and account balances to the Investment
Funds only within the first ten (10) days of each calendar quarter, with
the exception of the Vanguard Investment Contract which is subject to
additional restrictions on transfers into and out of the fund as required
by the Investment Contract. The allocation must be in multiples of 25%
(59% on or after July 1, 1995) and a switch of existing balances must be
in such percentages. The Plan Committee shall furnish to the Participant
information which fully describes these funds, including all current
prospectuses. No person is authorized to distribute to a Participant
information concerning any fund that is not contained in a prospectus.
3. Section 6.2(b) is amended in its entirety to read as follows:
(b) NORMAL FORM AND TUNE OF DISTRIBUTION. The normal form of
distribution of the Prior Plan Balances shall be a qualified joint and
survivor annuity, unless the Participant (and, if the Participant is
married at the date of distribution, the Participant's spouse) have
consented to receive payment of the benefit in another form of benefit
payment. Otherwise, the Participant's Prior Plan Balances shall be
distributed to the Participant in a lump sum the same as is provided in
Article V hereof. Distribution of Prior Plan Balances shall be available
at the same times as is provided in Article V hereof and Section 3.6
hereof. Distributions made pursuant to this Section shall be deemed to be
made as of the last day of the preceding accounting quarter and the
Participant's Prior Plan Balance Account shall be reduced accordingly.
4. Section 6.2(d) is amended by replacing the first sentence of that
subsection in its entirety to read as follows:
A qualified joint and survivor annuity is an annuity for the life of the
Participant with, if the Participant is married, a survivor annuity for
the life of the Participant's spouse which is equal to 50% of the amount
of the annuity payable during their joint lives.
5. Section 6.2(e) is amended in its entirety to read as follows:
(e) The Participant shall not be considered married for purposes
of paragraph (d) and (h) hereof, if on the date as of which
distribution begins (or the date of death) he has been married for
less than one (1) year.
6. Section 6.2(h)(2) is amended in its entirety to read as follows:
(2) If the Participant dies before distribution of his or
her interest commences, the Participant's entire Prior Plan Account
interest will be distributed no later than five (5) years after the
Participant's death, except to the extent that an election is made to
receive distributions in accordance with (A) or (B) below but subject in
all events to (C) below:
(A) If any portion of the Participant's interest is
payable to a Designated Beneficiary, distributions may be made in
substantially equal installments over the life or life expectancy of a
Designated Beneficiary commencing no later than one (1) year after the
Participant's death; or
<PAGE>
(B) If the Designated Beneficiary is the Participant's
surviving spouse, the date distributions are required to commence in
accordance with (A) above shall not be earlier than the date on which the
Participant would have attained age 70-1/2, and, if the spouse dies before
payments begin, subsequent distribution shall be made as if the spouse had
been the Participant.
(C) If the Participant is married on the date of his
death, a portion of the Participant's Prior Plan Balance shall be
distributed to the Participant's surviving spouse in the form of a
preretirement survivor annuity, unless the Participant has a valid waiver
election (as described in subsection 6.2(i) below) in effect, or unless
the Participant and his spouse were not married throughout the one year
period ending on the date of his death. A preretirement survivor annuity
is an annuity which is purchasable with 100% of the Participant's Prior
Plan Balance (determined as of the date of the Participant's death) and
which is payable for the life of the surviving spouse. If the present
value of the preretirement survivor annuity exceeds $3,500, the
Participant's surviving spouse may elect to commence payment of the
preretirement survivor annuity at any time following the date of the
Participant's death, but not later than the mandatory distribution periods
described in (A) and (B) above, and may elect any of the forms of payment
described in Section 6.2(c), in lieu of the preretirement survivor
annuity. In the absence of an election by the surviving spouse. the
preretirement survivor annuity must begin distribution on the first
distribution date following the close of the Plan Year in which the latest
of the following events occurs: (i) the Participant's death: (ii) the date
the Plan Committee receives notification or otherwise confirms the
Participant's death; (iii) the dare the Participant would have attained
Normal Retirement Age; or (iv) the date the Participant would have
attained age 62.
7. Section 6.2 is amended by adding the following new subsection (i) at the
end of the Section:
(i) WAIVER ELECTIONS.
(1) QUALIFIED JOINT AND SURVIVOR ANNUITY. Not earlier than
90 days, but not later than 30 days, before the Participant's annuity
starting date, the Plan Committee must provide the Participant a written
explanation of the terms and conditions of the qualified joint and
survivor annuity, the Participant's right to make, and the effect of, an
election to waive the joint and survivor form of benefit, the rights of
the Participant's spouse regarding the waiver election and the
Participant's right to make, and the effect of, a revocation of a waiver
election. The Plan does not limit the number of times the Participant may
revoke a waiver of the qualified joint and survivor annuity or make a new
waiver during the election period. A married Participant's waiver election
is not valid unless (a) the Participant's spouse (to whom the survivor
annuity is payable under the qualified joint and survivor annuity), after
the Participant has received the written explanation described in this
subsection, has consented in writing to the waiver election, the spouse's
consent acknowledges the effect of the election, and a notary public or
the Plan Administrator (or his representative) witnesses the spouse's
consent, (b) the spouse consents to the alternate form of payment
designated by the Participant or to any change in that designated form of
payment, and (c) unless the spouse is the Participant's sole primary
Beneficiary, the spouse consents to the Participant's Beneficiary
designation or to any change in the Participant's Beneficiary designation.
The spouse's consent to a waiver of the qualified joint and survivor
annuity is irrevocable, unless the Participant revokes the waiver
election. The spouse may execute a blanket consent to any form of payment
designation or to any Beneficiary designation made by the Participant, if
the spouse acknowledges the right to limit that consent to a specific
designation but, in writing, waives that right. The consent requirements
of this subsection apply to a former spouse of the Participant, to the
extent required under a qualified domestic relations order.
The Plan Committee will accept as valid a waiver election which does
not satisfy the spousal consent requirements if the Plan Committee
establishes the Participant does not have a spouse, the Plan Committee is
not able to locate the Participant's spouse, the Participant is legally
separated or has been abandoned (within the meaning of State law) and the
Participant has a court order to that effect, or other circumstances exist
under which the Secretary of the Treasury will excuse the consent
requirement. If the Participant's spouse is legally incompetent to give
consent, the spouse's legal guardian (even if the guardian is the
Participant) may give consent.
(2) PRERETIREMENT SURVIVOR ANNUITY. The Plan Committee must
provide a written explanation of the preretirement survivor annuity to
each married Participant and will allow the Participant, with the consent
of his or her spouse to waive the preretirement survivor annuity in favor
of designating a different Designated Beneficiary for death benefits under
the Plan. A Participant's waiver
2
<PAGE>
election of the preretirement survivor annuity is not valid unless (a) the
Participant makes the waiver election no earlier than the first day of the
Plan Year in which he attains age 35 and (b) the Participant's spouse (to
whom the preretirement survivor annuity is payable) satisfies the consent
requirements described in paragraph 6.2(i)(1) above, except the spouse
need not consent to the form of benefit payable to the designated
Beneficiary. The spouse's consent to the waiver of the preretirement
survivor annuity is "irrevocable, unless the Participant revokes the
waiver election. Irrespective of the time of election requirement
described in clause (a), if the Participant separates from Service prior
to the first day of the Plan Year in which he attains age 35, the Plan
Committee will accept a waiver election as respects the Participant's
Accrued Benefit attributable to his Service prior to his Separation from
Service. Furthermore, if a Participant who has not separated from Service
makes a valid waiver election, except for the timing requirement of clause
(a), the Plan Administrator will accept that election as valid, but only
until the first day of the Plan Year in which the Participant attains age
35. A waiver election described in this paragraph is not valid unless made
after the Participant has received the written explanation described in
this paragraph.
8. In all other respects, the Plan is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment
on the 4th day of August, 1995.
HARVARD INDUSTRIES, INC.
By: /s/ RICHARD T. DAWSON
---------------------
Richard T. Dawson
"EMPLOYER"
3
<PAGE>
FIFTH AMENDMENT TO THE
HARVARD CAPITAL ACCUMULATION PLAN
Harvard Industries, Inc. (the "Company") has retained the authority to
amend the Harvard Capital Accumulation Plan (the "Plan") from time to time. The
Company now wishes to clarify the Plan's provisions addressing the identity of a
Participant's beneficiary at death, to clarify the ability of a participant to
withdraw earnings on after tax contributions, to clarify the replacement of the
old GIC investment fund with the Vanguard Investment Contract, to clarify the
Plan's application to temporary employees, to authorize distributions as early
as 7 days after delivery of the benefit explanation to a Participant and to
exclude from the Plan employees transferring to the Company from Doehler-Jarvis,
Inc. during the period that they remain eligible to share in contributions under
the Doehler-Jarvis Profit Sharing and Savings Plan. Accordingly, the Company
hereby adopts the following amendment to the Plan, effective March 18, 1996,
except as otherwise provided below:
1. Section 2.2 is amended by adding the following language to the end of that
subsection:
/bullet/ an individual employed on a temporary basis, probationary basis
or special contract basis or in any other job position other
than as a regular Employee is not eligible to participate in the
Plan.
/bullet/ any individual who becomes an Employee as a result of a transfer
from Doehler-Jarvis, Inc. on or after July 31, 1995, and who, on
his date of transfer is eligible to participate in the Doehler-
Jarvis, Inc. Profit Sharing and Savings plan (the
"Doehler-Jarvis Plan") shall not be eligible to participate in
this Plan during the period that he remains eligible to share in
contributions made under the Doehler-Jarvis Plan and shall be
eligible to participate in this Plan no earlier than the first
day of the Plan Year which commences after the transfer occurs.
2. Effective January 1, 1995, Section 3.6(c) is amended in its entirety to
read as follows:
(c) PARTICIPANT'S VOLUNTARY CONTRIBUTION. A Participant may
withdraw up to 100% of his accumulated contributions in his
Participant's Voluntary Contribution Account. If the Plan
Administrator maintains sub-accounts with respect to Voluntary
Contributions (and earnings thereon) which were made on or before a
specified date, a Participant may designate which sub-- account shall
be the source for his withdrawal. A Participant shall file a written
request for withdrawal from the Participant's Voluntary Contribution
Account with the Plan Committee at least thirty (30) days prior to
the date of withdrawal. Withdrawal of amounts less than the total
amount in the Participant's Voluntary Contribution Account shall be
in units of $1,000 with a minimum withdrawal of $1,000. Once a
Participant has made a withdrawal from his Voluntary Contribution
Account, he shall be suspended from making any such Voluntary
Contribution until the next calendar year.
3. Effective January 1, 1995, Section 3.13(a) is amended in its entirety to
read as follows:
(a) DESIGNATION AS ERISA SS.404(C) PLAN. The Trustee holding or
investing any Plan funds shall invest the Participant's Elective
Deferrals, Voluntary Contributions and Employer Contributions
allocated to his accounts in one of four funds as selected by the
Participant in writing and filed with the Plan Committee: a growth
fund comprised of common stocks, the Vanguard Investment Contract, a
balanced fund and a fixed income fund comprised of short term money
market instruments. By providing the Participants with the
information necessary to make an informed choice concerning the
investments appropriate for the Participant and requiring a
Participant to make an investment selection and by designating the
Plan Committee as the identified plan fiduciary to accept such
investment choices and to distribute such investment information, it
is intended that the Plan qualify as an ERISA ss.404(c) Plan. This
means that to the extent the Plan does so qualify, with respect to
each Participant the Plan fiduciaries may be relieved of liability
for any losses which are the direct and necessary result of
investments choices made by the Participant or the Participant's
beneficiary.
4. Effective January 1, 1995, Section 5.5 is amended by replacing the first
three sentences of that section in their entirety with the following:
In the event of a Participant's death prior to the Participant's
termination of employment with the Employer, the balances in such
Participant's accounts shall become payable to the Participant's
Beneficiary as designated under the Plan. In the event of a
Participant's death after the
<PAGE>
Participant's termination of employment with the Employer, the vested
balances in such Participant's Accounts shall become payable to the
Participant's Beneficiary as designated under the Plan. Distribution
of such balances shall be made at the time and in the manner provided
by Section 5.8. Unless otherwise elected in the manner prescribed in
this Section, the Beneficiary of any death benefit payable under the
Plan shall be the Participant's spouse.
5. Section 5.7 is amended by adding new subsection (d) at the end of that
section reading as follows:
(d) Notwithstanding anything to the contrary in this Section
5.7, the annuity starting date may be amended after the Participant
has received the written explanation of benefits described in
subsection (a) above.
6. Section 6.2(i)(1) is amended by adding the following new paragraph to the
end of that subsection reading as follows:
The annuity starting date described in the written explanation
of benefits that is given to the Participant shall be a proposed
annuity starting date that may be changed by the Plan Committee at
the request of the Participant to an earlier date provided (i) the
revised date is after the date that the Participant received the
written explanation and (ii) distribution does not commence before at
least seven days have passed following the date that the written
explanation of benefits is delivered to the Participant. In addition,
distribution may not begin prior to the date that the Participant
returns his or her written election to the Plan Committee requesting
the change in the annuity staring date. Any change that the Plan
Committee makes to the annuity starting date pursuant to this
paragraph shall be used when determining the time of any distribution
to the Participant under any other Section of this Plan.
7. In all other respects, the Plan is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment
on the 18th day of March, 1996.
HARVARD INDUSTRIES, INC.
By:_____________________
"EMPLOYER"
2
<PAGE>
SIXTH AMENDMENT TO THE
HARVARD CAPITAL ACCUMULATION PLAN
Harvard Industries, Inc. (the "Company") has retained the authority to
amend the Harvard Capital Accumulation Plan (the "Plan") from time to time. The
company now wishes to amend the Plan to authorize the withdrawal of rollover
contributions in the event of a participant hardship. Accordingly, the Company
hereby adopts the following amendment to the Plan, effective September 1, 1996,
except as otherwise provided below:
1. Section 3.6 is amended by adding the following new subsection (e) at the
end of that subsection:
(e) Participant's Rollover Contribution. A Participant may
withdraw up to 100% of his Participant Rollover Account (including
earnings) in the case of hardship as defined in Section 1.4(g). A
Participant requesting a hardship distribution from his Rollover
Account shall be subject to the same standards, suspensions and
restrictions in connection with the distribution as would apply to a
hardship distribution from the Participant's Elective Deferral
Account as described in Section 3.6(a) except for the restriction on
distribution of earnings in the Account.
2. Section 3.14(a) shall be amended by adding the following new language at
the end of the subsection:
In addition, the total balance in the Rollover Account shall be
available for hardship distribution in the same manner as the
balances in the Participant's Elective Deferral Account in accordance
with Section 3.6(e)
3. In all other respects, the Plan is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Sixth Amendment
on the ________ day of _________________, 1996.
HARVARD INDUSTRIES, INC.
By: /s/ RICHARD T. DAWSON
---------------------
Richard T. Dawson
"EMPLOYER"
3
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
<PAGE>
The Board of Directors
Harvard Industries, Inc.
We consent to incorporation by reference in the Post-Effective Amendments No. 1
to registration statements (Nos. 33-90166 and 33-98748) on Form S-8 of Harvard
Industries, Inc. of our report dated November 11, 1994, relating to the
consolidated balance sheets of Harvard Industries, Inc. and subsidiaries as of
September 30, 1994, and the related consolidated statement of operations,
stockholders' equity (deficiency), and cash flows for each of the years in the
two-year period ended September 30, 1994, which report appears in the September
30, 1995 annual report on Form 10-K of Harvard Industries, Inc.
KPMG PEAT MARWICK LLP
Tampa, Florida
October 31, 1996
EXHIBIT 23.2
CONSENT OF PRICE WATERHOUSE LLP
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration (No.
33-98748) on Form S-8 of our report dated December 20, 1995, appearing on page
F-2 of Harvard Industries, Inc.'s Annual Report on Form 10-K of Harvard
Industries, Inc. for the year ended September 30, 1995. We also consent to the
incorporation by reference in the Registration Statement of our report dated
June 20, 1996 appearing on page 3 of the Annual Report of the Harvard Capital
Accumulation Plan on Form 11-K for the year ended December 31, 1995.
PRICE WATERHOUSE LLP
Tampa, Florida
October 31, 1996
