<PAGE>
As filed with the Securities and Exchange Commission on January 25, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
HARVARD INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 2522 21-0715310
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation organization Classification Code Number) Identification No.)
---------------
3 Werner Way
Lebanon, New Jersey 08833
(908) 437-4100
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
---------------
Roger G. Pollazzi
Chief Executive Officer
Harvard Industries, Inc.
3 Werner Way
Lebanon, New Jersey 08833
(908) 437-4100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copies to:
Christopher E. Manno, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
---------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / / ______
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / / ______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
<PAGE>
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------- --------------------- ---------------------- ----------------------- ----------------------
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share(1) Price(1) Registration Fee
- ------------------------- --------------------- ---------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 5,372,298 $7.625 $40,963,772 $11,387.93
- ------------------------- --------------------- ---------------------- ----------------------- ----------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933, as amended, based on the
average of the high and low sales prices as reported on the Nasdaq National
Market on January 21, 1999.
---------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until this Registration Statement shall
become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
================================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED JANUARY 25, 1999
PROSPECTUS
HARVARD INDUSTRIES, INC.
5,372,298 Shares of Common Stock
The stockholders identified in this Prospectus (the "Selling
Stockholders") are offering to sell up to 5,372,298 shares of Common Stock of
Harvard Industries, Inc. (the "Company" or "Harvard") See "Selling
Stockholders." The Selling Stockholders acquired the shares on or after
November 24, 1998 in connection with the consummation of Harvard's Amended and
Modified Consolidated Plan under Chapter 11, Title 11 of the United States
Bankruptcy Code (the "Plan of Reorganization"). On November 24, 1998, Harvard
emerged from bankruptcy and pursuant to the Plan of Reorganization reserved
20,000,000 shares of Common Stock for issuance to certain claimholders under
the Plan of Reorganization. Harvard has agreed to register the shares of Common
Stock issued to those claimholders who are otherwise unable to sell their
shares pursuant to an exemption from registration under the Securities Act of
1933, as amended (the "Securities Act").
The Selling Stockholders will receive all of the net proceeds from the
sale of the shares. These stockholders will pay all underwriting discounts and
selling commissions, if any, applicable to the sale of the shares. The Company
will not receive any proceeds from the sale of the shares.
The Selling Stockholders and participating brokers or dealers may be
deemed to be "underwriters" within the meaning of the Securities Act, in which
event any profit on the sale of the shares by those Selling Stockholders and
any commissions or discounts received by those brokers or dealers may be deemed
to be underwriting compensation under the Securities Act.
Harvard's common stock is listed on the Nasdaq National Market under the
symbol "HAVA." On January 21, 1999, the last reported sale price of the common
stock was $7.75 per share.
YOU SHOULD CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 6 OF THIS
PROSPECTUS BEFORE MAKING A DECISION TO PURCHASE OUR STOCK.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this Prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
The date of this Prospectus is _________ __, 1999.
<PAGE>
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS.............................................3
WHERE YOU CAN FIND MORE INFORMATION...............................3
THE COMPANY.......................................................4
RISK FACTORS......................................................6
USE OF PROCEEDS..................................................14
SELLING STOCKHOLDERS.............................................14
PLAN OF DISTRIBUTION.............................................15
DESCRIPTION OF CAPITAL STOCK.....................................15
LEGAL MATTERS....................................................18
EXPERTS..........................................................18
-2-
<PAGE>
ABOUT THIS PROSPECTUS
This Prospectus is a part of a registration statement (the "Registration
Statement") that we have filed with the Securities and Exchange Commission (the
"SEC") using a "shelf registration" process. You should read both this
Prospectus and any supplement together with additional information described
under "Where You Can Find More Information."
You should rely only on the information provided or incorporated by
reference in this Prospectus or any supplement. We have not authorized anyone
else to provide you with additional or different information. The Common Stock
is not being offered in any state where the offer is not permitted. You should
not assume that the information in this Prospectus or any supplement is
accurate as of any date other than the date on the front of such documents.
All references in this Prospectus to "Harvard," the "Company," "we," "us,"
or "our" mean Harvard Industries, Inc. and its subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information required by the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the SEC. You may read and copy any document we file at
the SEC's public reference rooms located at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, and at Seven World Trade Center, Suite
1300, New York, New York 10048. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our filings with the SEC are
also available to the public on the SEC's Internet web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file with the
SEC later will automatically update and supersede this information. The
following documents filed by Harvard and any future filings made by us with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering are incorporated by reference in this Prospectus:
o Harvard's Annual Report on Form 10-K for the fiscal year ended September
30, 1998;
o Harvard's Current Reports on Form 8-K filed on October 7, 1998, October
30, 1998 and December 3, 1998.
You may request a copy of these filings, at no cost, by writing or
telephoning us at: Harvard Industries, Inc., 3 Werner Way, Lebanon, NJ 08833,
Attn: Phyllis Morais, Telephone: (908) 437-4157.
-3-
<PAGE>
THE COMPANY
Because this is a summary, it does not contain all the information about
Harvard that may be important to you. You should read the more detailed
information and the financial statements and related notes which are
incorporated by reference in this Prospectus.
General
Our corporate name is Harvard Industries, Inc. We are headquartered at 3
Werner Way in Lebanon, New Jersey, and are a direct supplier of components for
original equipment manufacturers ("OEMs") producing cars and light trucks in
North America. In the fiscal year 1998, 82% of our sales were made to General
Motors Corporation ("General Motors"), Ford Motor Company ("Ford") and Chrysler
Corporation ("Chrysler").
On May 8, 1997, we filed a petition for relief under Chapter 11 of the
Bankruptcy Code with the United States Bankruptcy Court for the District of
Delaware (the "Bankruptcy Court"). On November 24, 1998 (the "Effective Date"),
we substantially completed our First Amended and Modified Consolidated Plan
Under Chapter 11 of the Bankruptcy Code dated August 19, 1998 and emerged from
bankruptcy.
While we were in bankruptcy proceedings the Bankruptcy Court appointed a
Creditors' Committee. The Creditors' Committee was disbanded on the Effective
Date. The Creditors' Committee retained Roger Pollazzi as an automotive
industry consultant. Mr. Pollazzi acted in this capacity until November 1997,
when, with the support of the Creditors' Committee, the Board of Directors
appointed him as our Chief Operating Officer. Prior to such appointment, Mr.
Pollazzi had served as Chairman of the Board and Chief Executive Officer of The
Pullman Company ('Pullman") from 1992 to 1997.
Shortly after his appointment, Mr. Pollazzi hired approximately fifteen
professionals as employees of Harvard to assist him in analyzing our
operations, eliminating on-going negative cash flows associated with cash
drains at several of our operations and coordinating and implementing our
restructuring efforts. Since the Effective Date, our management team includes,
in addition to Roger Pollazzi, who now serves as Chief Executive Officer:
o James Gray, President of Harvard, an automotive executive who
previously ran Tenneco Automotive's European Operations as well as
the Clevite division of Pullman;
o Theodore Vogtman, Chief Financial Officer of Harvard, who has over
twenty years of industry experience including serving as Chief
Financial Officer of Pullman; and
o Vincent Toscano, Executive Vice President of Strategic Planning of
Harvard, who was formerly the Vice President of Operations at Pullman
and has over 21 years of experience in the automotive industry.
The Turnaround Business Strategy
In connection with our reorganization, our new management team has
outlined the following turnaround business strategies (together, the
"Turnaround Business Strategy") for restoring our profitability:
o Close and/or Sell Underperforming Facilities: Since taking over in
late 1997, the new management team has closed, sold, or is in the
process of selling manufacturing facilities that had a combined
negative cash flow of $46.7 million in fiscal 1997.
o Exit Unprofitable Lines of Business: We are exiting unprofitable
lines of business that management believes cannot meet their targeted
margins. For example:
- We ceased production at our Harman subsidiary, exiting the
molded plastic and die-cast mirror business,
- We sold the Greeneville, Tennessee plant of Doehler-Jarvis
Greeneville, Inc., and
- We have signed a letter of intent to divest the Tiffin,
Ohio plant of Hayes-Albion Corporation and we are
negotiating an agreement to sell the Toledo, Ohio plant of
Doehler-Jarvis Toledo, Inc.
-4-
<PAGE>
o Diversify Product Mix and Customer Base: We are developing business
in those segments of the automotive aftermarket and industrial
markets where we can take advantage of our core manufacturing
competencies and achieve higher profit margins. We will focus on (1)
OEM automotive components (i.e., seat brackets, door modules,
steering assemblies); (2) the industrial market (i.e., building
components, construction equipment, sealing systems, lawn and garden
maintenance machinery); and (3) the automotive replacement parts
market (i.e., bumper brackets, torque rods and Class-8 truck
components).
o Invest in Management Information Systems: We are in the process of
installing a new software package that will provide increased
flexibility and enhance our management's access to operating data on
a timely basis. Our management has allocated $16.7 million in fiscal
years 1998 and 1999 for this project, which will upgrade our
information systems and achieve Year 2000 compliance. We spent
approximately $7.7 million for Year 2000 compliance in fiscal 1998
and plan to spend approximately $5.8 million in fiscal 1999.
o Reduce Purchased Material Costs: Our management has been
consolidating our purchasing functions and reducing our supplier base
to gain economies of scale and significant discounts from our largest
suppliers.
The Financings
Upon our emergence from bankruptcy, we issued $25.0 million of 14 1/2%
Senior Secured Notes due September 1, 2003 (the "Old Notes") and entered into a
$115.0 million senior secured credit facility with a group of lenders led by
General Electric Capital Corporation (the "Senior Credit Facility" and,
together with the Notes, the "Financings"). The Senior Credit Facility provided
for up to $50.0 million in term loan borrowings and up to $65.0 million of
revolving credit borrowings.
The combined proceeds from the issuance of the Old Notes and term loan
borrowings under the Senior Credit Facility were used to:
o refinance the senior and junior debtor-in-possession credit
facilities that provided financing to the Company while we were in
bankruptcy proceedings (together, the "DIP Credit Facilities"),
o pay administrative expenses due under the Plan of Reorganization and
pay related fees and expenses,
o provide cash for working capital purposes, and
o provide funds for general corporate purposes.
The $65.0 million revolving credit portion of the Senior Credit Facility
will be used to finance working capital and other general corporate purposes.
-5-
<PAGE>
RISK FACTORS
You should carefully consider the following risk factors in addition to
the other information contained and incorporated by reference in this
Prospectus before purchasing our shares. The risks and uncertainties described
below are not the only ones facing our company. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial
may also impair our business operations.
This Prospectus contains "forward-looking statements" within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act. We
consider forward-looking statements to be those statements regarding our
intentions, beliefs or current expectations with respect to our future
operating performance. Forward-looking statements may include, but are not
limited to, projections of capital expenditures, plans for future operations,
financing needs or plans, compliance with covenants in loan agreements, sales
of assets or businesses, plans relating to our products or services,
assessments of materiality, predictions of future events, and the ability to
obtain additional financing, including our ability to meet obligations as they
become due, and pending and possible litigation. Although we believe that the
expectations reflected in such forward-looking statements are reasonable, we
can give no assurance that such expectations will prove to have been correct.
The most significant of such risks, uncertainties and other factors are
discussed below and you are urged to carefully consider such factors.
Additional risks and uncertainties are detailed in our filings with the SEC. We
do not have any obligation to update forward-looking statements.
Important factors that could cause actual results to differ materially
from our expectations ("Cautionary Statements") are disclosed in this
Prospectus including those accompanying the forward-looking statements used in
the "Company" and "Risk Factors" sections. All of our subsequent written and
oral forward-looking statements, or statements of persons acting on our behalf,
are expressly qualified in their entirety by the Cautionary Statements.
Emergence from Bankruptcy
We emerged from bankruptcy on November 24, 1998. Our experience in and
recent emergence from bankruptcy may affect our ability to negotiate favorable
trade terms with manufacturers and other vendors. Our experience in bankruptcy
could also have an adverse impact on our ability to secure new purchase orders
with current and prospective customers. The failure to obtain favorable terms
from suppliers or new business from current and prospective customers could
have a material adverse effect on our operations, business or financial
condition.
In particular, the fact that we have been in bankruptcy has had a negative
impact on our results of operations and may also negatively affect our ability
to win new business in the future. In general, there is a delay of between two
to four years after an OEM supplier is awarded a contract to supply components
for a new OEM platform to the time when they make sales of the components.
During this period of delay, automotive component suppliers must bear
considerable design and development costs associated with the new platform.
Because of these considerable costs and our having been in bankruptcy, OEMs
have been reluctant to award new business to us until we demonstrate that our
reorganization has been successfully completed and that our reorganization
allows for our long term viability. As a result, we have not been awarded
contracts for new platforms that we might otherwise have been able to win had
we not been in bankruptcy.
History of Net Losses
We experienced losses for three of the last five fiscal years. For the
fiscal year 1996 we had net losses of $69 million, for the fiscal year 1997 we
had net losses of $389 million, and for the fiscal year 1998 we had net losses
of $56 million. These losses have been primarily due to operating
inefficiencies and, losses associated with our operations that we had
designated for sale or wind-down. If we continue to experience net losses, we
will be required to find additional sources of financing to fund our operating
deficits, working capital requirements, anticipated capital expenditures and
financing commitments. The additional financing we need may not be available at
the time we require it. In addition, the financing may only be available on
terms that we find unacceptable.
Limitation on Use of Net Operating Losses and Built-in Losses; Cancellation of
Indebtedness Income
Under the Internal Revenue Code of 1986, as amended (the "Code"), our use
of net operating loss ("NOL") carry forwards against future taxable income is
subject to limitation if we experience an "ownership change" as defined in the
Code (the "Section 382 Limitation").
-6-
<PAGE>
As a result of the implementation of the Plan of Reorganization, we expect
to undergo an "ownership change" (generally, a greater than 50 percentage point
change in ownership). As a result, our ability to use all of our NOLs (and
"recognized built-in losses," if any) in taxable years beginning after the
Effective Date (and a portion of the taxable year which includes the Effective
Date) will become subject to the Section 382 Limitation. Under this provision,
the income that may be offset by NOL carryovers that occur prior to the
Effective Date should generally be limited to the product of:
(1) a rate set by the U.S. Treasury Department (5.02% on the Effective
Date) and
(2) the lower of (a) the value of the Company's assets immediately prior
to the ownership change, determined without regard to liabilities, or
(b) the aggregate new stock value immediately after the ownership
change.
The Section 382 Limitation may also apply to the use of "recognized
built-in losses" to offset other income during the five-year period after the
Effective Date. The built-in loss limitation will apply if the excess of our
tax basis in our assets over the fair market value of such assets as of the
Effective Date exceeds the lesser of $10.0 million or 15% of the fair market
value of the assets before the ownership change. Section 382 also limits our
ability to take depreciation or amortization charges with respect to its
built-in loss assets. The annual limitation on our ability to use our NOLs (and
recognized built-in losses, if any) may be significant.
Cancellation of indebtedness income that arises in a case under the
Bankruptcy Code is not includable in gross income but it does reduce tax
attributes of the taxpayer, including NOLs. The Plan of Reorganization
discharged certain general unsecured claims, in particular the 12% Senior Notes
due 2004 and 11 1/8% Senior Notes Due 2005. This discharge will result in the
realization of cancellation of indebtedness income, which will reduce our tax
attributes by the difference between the fair market value of the consideration
paid and the amount of the discharged indebtedness.
Inability to Compare Financial Information
We will be unable to compare information reflecting our results of
operations and financial condition after the Effective Date to prior periods
due to:
(1) the replacement of the management team and the restructuring of our
core operations and general and administrative activities;
(2) our bankruptcy proceedings, including the costs and expenses of these
proceedings as well as the effect of settlements of certain related
liabilities; and
(3) our application of Fresh Start Reporting in accordance with AICPA
Statement of Position 90-7, "Financial Reporting by Entities in
Reorganization under the Bankruptcy Code" (SOP 90-7).
Under SOP 90-7, our equity will be restated at "reorganization equity
value," a value which was determined by the financial advisors to the
Creditors' Committee under the Plan of Reorganization. In addition, because we
have been in a restructuring phase and have continued to incur costs and
expenses relating to our bankruptcy proceedings, the results of operations
since May 1997 may not indicate our future performance.
Risks Associated with Execution of the Turnaround Business Strategy
The Turnaround Business Strategy includes a substantial restructuring of
our revenue and customer base. As a result, our value and profitability depend
on our ability to successfully implement the Turnaround Business Strategy. Our
success will also depend on our ability to do each of the following in a timely
manner:
o terminate existing unprofitable contracts and purchase orders;
o attract new business or customers;
o produce and sell new products at projected margins and at competitive
prices;
o attract key new personnel for our manufacturing facilities;
o dispose of old customer orders, enabling us to utilize capacity for
new business efficiently;
o develop or acquire a distribution network for after-market and
industrial products; and
o appropriately measure the impact of the Turnaround Business Strategy
on relations with current customers.
-7-
<PAGE>
We cannot assure you that the Turnaround Business Strategy will be
successful. Also, we may be unable to operate profitably even if the Turnaround
Business Strategy is successfully implemented. If the Turnaround Business
Strategy is not successful we may be unable to generate sufficient operating
funds to pay our outstanding obligations, including principal and interest in
respect of the Notes and indebtedness under the Senior Credit Facility. If this
is the case, the alternative financing we need may not be available at the time
we require it. In addition, that financing may only be available on terms that
we find unacceptable.
Substantial Capital Requirements; Capital Expenditure Program
We operate in an industry which requires significant capital investment.
We are also required to make capital expenditures to upgrade our facilities. We
believe that our competition will continue to invest heavily to achieve
increased production efficiencies and to improve product quality. During the
past few years, the Company has put off certain capital expenditures because of
financial constraints.
Our ability to compete in such a competitive environment will depend on
our ability to make major capital expenditures over the next several years.
These expenditures are necessary to service existing business, enter new
markets and remain competitive in existing markets. We had capital expenditures
of approximately $25 million in 1998 and forecast capital spending to be $20
million in 1999. Through 2002 (inclusive of 1998), we expect to spend
approximately $110 million in capital expenditures. Our ability to make
necessary capital expenditures may be adversely affected if (1) we are unable
to produce sufficient cash flows from our operations, or (2) we are unable to
raise sufficient debt or equity capital on terms that we consider acceptable.
Risks in the Automotive Industry
We sell primarily to customers in the North American automobile and light
truck manufacturing industry. Direct sales of our products to the North
American automobile and light truck manufacturing market accounted for
approximately:
o 92% of net sales for the fiscal year ended September 30, 1998;
o 98% of net sales for our fiscal year ended September 30, 1997;
o 96% of net sales for our fiscal year ended September 30, 1996; and
The strength or weakness of the North American automobile and light truck
manufacturing industry and events, such as regulatory requirements, trade
agreements and labor disputes affect demand for some of our products. One such
labor dispute was settled in the third quarter of 1998 after a 54 day strike at
General Motors. The General Motors strike reduced our sales revenue by
approximately $14 million and reduced our operating income by $5.4 million.
In addition, automotive sales and production are cyclical and seasonal and
depend upon general economic conditions. A decline in automotive production and
sales would likely affect the sales of components, tools and services to
vehicle manufacturers and their dealerships, and also the sales of components,
tools and services to aftermarket customers. Our results of operations and our
financial condition may decline if there is a decline in automotive sales and
production. In addition, if we fail to respond when demand in the market
changes our results of operations could be adversely affected in any given
quarter.
Trends that Produce Risk in the Automotive Industry
In the late 1980's and early 1990's, U.S. automakers made a number of
significant changes in their sourcing procedures which have placed greater
business and financial risk on us as automotive component suppliers. These
changes include:
o increasing focus on suppliers' costs and improving quality
performance;
o requiring component suppliers to bear a greater proportion of the
burden of design and development costs; and
o consolidating the number of suppliers with which U.S. automakers
place purchase orders.
Some of our products are sold under agreements that require us to provide
annual cost reductions to OEMs by certain percentages each year. These
reductions come directly through price reductions or indirectly through
-8-
<PAGE>
suggestions for manufacturing efficiencies or other cost savings. If we are
unable to generate sufficient cost savings in the future to offset such price
reductions, our profit margins could be adversely affected.
In addition, OEMs are requiring potential suppliers of components to
become involved earlier in and share a greater proportion of the costs of the
design and development process for new platforms. They are also requiring
suppliers to develop integrated systems or modules rather than merely
manufacturing separate parts. OEMs expect the component supplier to manage the
entire development cycle (a cycle lasting two to four years) of the product or
system, including:
o design and engineering,
o production of prototypes,
o design validation,
o design of tooling and completion of manufactured products and
integrated systems of products
The ability to become involved earlier in the design and development
process for new platforms is an important factor in winning new business from
the OEMs. This trend places greater pressure on automotive component suppliers
and shifts a larger part of the cost of research and development and design and
capital outlays for such new platforms and systems onto component suppliers. In
addition, this trend has had a relatively greater impact on us than on many of
our competitors because of OEMs' reluctance to award new business to the
Company due to its emergence from bankruptcy. We may be unable to become
involved earlier in the design and development process for new platforms. Even
if we are successful in becoming involved earlier in such processes, we may be
unable to generate sufficient cash or have financing available to fund the
greater costs associated with this effort.
As a result of all these trends, the automotive supply industry is
experiencing a period of significant consolidation. As part of OEMs' efforts to
reduce costs and improve quality, U.S. automakers are reducing their supplier
base by awarding contracts to full-service suppliers who are able to provide
design, engineering and program management capabilities as well as meet cost,
quality and delivery requirements. This trend has also resulted in greater
competition from larger companies with greater financial and other resources.
As a result, if we are unable to have the financial flexibility to make the
necessary capital expenditures or to make acquisitions to grow our business, we
may be unable to remain competitive and viable in the component supplier
industry.
Finally, foreign automotive manufacturers have gained a significant share
of the U.S. market, both from export sales as well as the more recent opening
of domestic manufacturing facilities. Between 1985 and 1997, sales of
automobiles from foreign car makers with U.S. manufacturing facilities
increased from 2.0% to 20.5% of the North American market. The growth of such
"transplant" sales has resulted, and will likely continue to result in, a loss
of market share for U.S. automakers. As a result, we, and other component
suppliers, will experience an adverse effect because most of our current
customers are U.S. automakers. Although we plan to solicit additional business
from foreign automakers, we may be unsuccessful in doing so or such additional
business may fail to make up for lost business that we have already
experienced.
Risks Associated with Obtaining Business for New and Redesigned Model
Introductions
We compete for new business at the beginning of the development of new
models and upon the redesign of existing models by our major customers. New
model development begins two to five years prior to the marketing of such
models to the public, with existing business lasting for the model life cycle.
To meet the needs of customers with changing products, we need to implement new
technologies and manufacturing processes when launching our new products.
Moreover, in order to meet our customers' requirements, we may be required to
supply our customers regardless of cost. As a result, we may suffer an adverse
impact to our operating profit margins. Although our management believes it has
implemented manufacturing processes that adapt to the changing needs of our
customers, we still may encounter difficulties which could have an adverse
affect when implementing new technologies in future product launches.
Reliance on Major Customers
Our largest customers are General Motors, Ford and Chrysler Corporation
("Chrysler"). For the fiscal year 1998, General Motors accounted for
approximately 39% of our consolidated net sales, Ford accounted for
-9-
<PAGE>
approximately 34% of our consolidated net sales and Chrysler accounted for
approximately 10% of our consolidated net sales. Our purchase orders from our
customers generally provide for supplying the customer's annual requirements
for a particular model or assembly plant, rather than for manufacturing a
specific quantity of products. These contracts are renewable on a year-to-year
basis. If we lose any one of our major customers or suffer a significant
decrease in demand for certain key models or a group of related models sold by
any of our major customers, it could have a material adverse effect on our
results of operations.
Dependence on Key Personnel
We believe that our future success will depend in large part on the
abilities and continued service of our executive officers and other key
employees. In particular, this means Roger Pollazzi, who serves as Chairman and
Chief Executive Officer and the senior management team. We may be unable to
retain the services of Mr. Pollazzi and other key personnel. The loss of any
key executive officers or employees, including Mr. Pollazzi, could have a
material adverse effect on our business.
Environmental Matters
Our operations are subject to a variety of local, state and federal laws
governing, among other things, emissions to air, discharge to waters and the
generation, handling, storage, transportation, treatment and disposal of
hazardous substances and other materials. Although we have made and will
continue to make significant expenditures relating to our environmental
compliance obligations, there may be times when we are not in compliance with
all these requirements. We spent $1.7 million in cash in fiscal year 1997 and
$0.1 million in cash in fiscal year 1998 on environmental remediation costs and
related expenses.
In connection with historical and current operations involving our use and
disposal of hazardous materials, we have been identified as a defendant or
potentially responsible party in a variety of environmental matters. These
include contractual indemnity and statutory cost recovery litigation involving
current and former operating facilities as well as waste disposal sites. We
have asserted counterclaims and cross-claims relating to the properties
involved and other properties where we believe that the original plaintiffs, as
well as other parties, are liable for certain investigative and remedial costs
that have been or may be incurred. In addition, we believe that all claims for
costs related to off-site disposal or formerly owned properties will be
discharged by the bankruptcy.
We are also conducting remedial activities at certain current and former
facilities under governmental orders and private contractual agreements. We
have granted access to the Michigan Department of Environmental Quality at our
Hayes-Albion Corporation plant in Jackson, Michigan for an investigation of the
plant's use and disposal of chlorinated solvents. The investigation is in
connection with the Department's evaluation of an area-wide groundwater
contamination problem. We may be subject to injunctive orders requiring
remediation of this property. In addition, the State of Ohio has filed a
complaint in state court in Ohio seeking penalties and injunctive relief
arising out of alleged air emission violations at our Tiffin, Ohio facility.
Furthermore, we are aware of certain currently owned facilities that are
not required to be remediated at the present time but that could possibly
require remediation activity in the future. We believe we have provided
adequate reserves (estimated to be approximately $7.7 million) for our share of
potential costs associated with the clean-up of hazardous substances at various
sites. However, we cannot assure you that the reserved amounts will be
sufficient to satisfy our obligations. Changes in existing environmental laws
or their interpretation and more rigorous enforcement by regulatory authorities
may give rise to additional expenditures, compliance requirements or
liabilities that could have a material adverse effect on our business,
financial condition and results of operations.
Finally, the discovery of additional environmental liabilities related to
our historical operations involving the use and disposal of hazardous
substances could have a material adverse effect on our business, results of
operations or financial condition.
Underfunded Pension Plans
As reflected in our audited financial statements, we had aggregate
unfunded pension liabilities as of September 30, 1998 and 1997 of approximately
$17.0 million and $5.7 million, respectively. Approximately $7.4 million of the
increase in 1998 is due to a loss related to the shutdown of the Doehler-Jarvis
Toledo subsidiary.
On July 26, 1994, we entered into a settlement agreement (the "PBGC
Settlement Agreement") with the Pension Benefit Guaranty Corporation ("PBGC"),
under which we were obligated to make contributions to specified
-10-
<PAGE>
underfunded pension plans. All contributions required to be made by the PBGC
Agreement have been made. In connection with the Plan of Reorganization, we
have entered into a new PBGC Settlement Agreement with the PBGC under which the
prior PBGC Settlement Agreement was terminated.
On November 6, 1998, we disclosed a more than 20% reduction in
participation under various pension plans. This was a result of the shut down,
during the pendency of the bankruptcy, of the Doehler-Jarvis Toledo operations,
the St. Louis, Missouri facility of our Harvard Interiors Manufacturing Company
division and the Bolivar, Tennessee facility of Harman Automotive, Inc., as
well as the sale of assets of our Greeneville, Tennessee facility of
Doehler-Jarvis Greeneville, Inc. We have agreed with the PBGC to amend the new
PBGC Settlement Agreement. This amendment says that the PBGC will refrain from
exercising certain remedies in connection with the above-described shutdowns
and sale of assets.
We estimate that upon our emergence from bankruptcy, the unfunded
liabilities related to defined benefit pension plans will be approximately $17
million. If we are unable to meet our contribution obligations under such
plans, the PBGC may seek to terminate the affected plan or plans, thus
accelerating payment obligations. Our long-term objective is to fund our entire
pension obligation with funds that are generated from operations, although we
cannot assure you that this will actually occur.
Liquidity; Absence of a Market for Common Stock
Although our Common Stock has been listed on the Nasdaq National Market
since our emergence from bankruptcy, we cannot assure you that any active
trading market will develop or will be sustained for the Common Stock. Even if
such a market for the Common Stock develops, it may be subject to disruptions
that will make it difficult or impossible for holders of the Common Stock to
sell shares at a time they would like, and they may be unable to sell them at
all.
Shares Eligible for Future Sale; Registration Rights
Future sales of Common Stock or the availability of Common Stock for
future sale could adversely affect the market price of the Common Stock. For
example, sales of substantial amounts of Common Stock or the perception that
such sales may occur, could adversely affect prevailing market prices for the
Common Stock.
An aggregate of 20,000,000 shares of Common Stock were reserved for
issuance under the Plan of Reorganization. Pursuant to Section 1145 of the
Bankruptcy Code, all these shares of Common Stock are freely tradeable without
registration under the Securities Act, except for shares that are issued to an
"underwriter" (as defined in Section 1145(b) of the Bankruptcy Code) or that
are acquired by an "affiliate" of the Company. The Selling Stockholders may be
deemed to be "underwriters." These Selling Stockholders have entered into a
Registration Rights Agreement with us which requires us to use our reasonable
best efforts to file, cause to be declared effective and keep effective for
three years or until all their shares of Common Stock are sold, a "shelf"
registration statement (the "Shelf Registration"). This Prospectus is a part of
the Registration Statement that is the Shelf Registration. Future sales of
Common Stock by the Selling Stockholders could adversely affect the market
price of the Common Stock. See "Description of Capital Stock--Registration
Rights."
Year 2000 Issues
We are addressing the Year 2000 problem and certain of our information
systems are not presently Year 2000 compliant. The Year 2000 issue results from
computer programs written with date fields of two digits, rather than four
digits, resulting in the inability of the program to distinguish between the
year 1900 and 2000. Many of our computer programs that have date-sensitive
software may recognize a date using "00" as the year 1900 rather than the year
2000.
If not addressed and completed on a timely basis, failure of our computer
systems to process Year 2000 related data correctly could have a material
adverse effect on our financial condition and results of operations. Failures
of this kind could, for example, lead to: 1) incomplete or inaccurate
accounting, 2) inaccurate supplier and customer order processing 3) recording
errors in inventories or other assets and 4) disruption of our manufacturing
process as well as transactions with third parties. If not addressed, we face
the potential risks of financial loss, legal liability and interruption to
business.
We are currently installing a new management information system that will
allow our critical information systems and technology infrastructure to be Year
2000 compliant before transactions for the year 2000 are expected.
-11-
<PAGE>
Many of our systems include new hardware and packaged software recently
purchased from large vendors who have represented that these systems are
already Year 2000 compliant. We are in the process of obtaining assurances from
vendors that timely updates will be made available to make all remaining
purchased software Year 2000 compliant. We expect to use both internal and
external resources to reprogram or replace and test all of our software for
Year 2000 compliance. We commenced the testing of our Year 2000 compliant
systems at pilot locations, with an expected Company-wide rollout to occur in
the Spring of 1999. The estimated cost for this project is $14 million. We
spent approximately $7.7 million for Year 2000 compliance in fiscal 1998 and
plan to spend approximately $5.8 million in fiscal 1999.
We have surveyed our key utilities and suppliers to determine the extent
to which we are vulnerable to the failure by these parties to fix Year 2000
compliance issues. We are still in the process of assessing the information
they have provided. Failure by such key utilities or suppliers to complete Year
2000 compliance work in a timely manner could have a material adverse effect on
certain of our operations. Examples of problems that could result from the
failure of these utilities and suppliers to remediate Year 2000 problems
include, in the case of utilities, service failures such as power,
telecommunications, elevator operations and loss of security access control
and, in the case of suppliers, failures to satisfy orders on a timely basis and
to process orders correctly.
Additionally, general uncertainty regarding the success of remediation may
cause many suppliers to reduce their activities temporarily as they assess and
address their Year 2000 efforts in 1999. This could result in a general
reduction in available supplies in late 1999 and early 2000. Our management
cannot predict the magnitude of any such reduction or its impact on our
financial results. We can give no assurance that the systems of other companies
on which our systems rely will be converted in a timely fashion, or that the
noncompliance of these systems would not have a material adverse effect on our
business, financial condition, competitive position and results of operations.
Competition
Our industry - manufacturing and supplying components to OEMs - is highly
competitive. Our products compete with those of a substantial number of
companies, many of which are larger and have greater resources, financial or
otherwise. These companies also have not and will not likely suffer the
negative effects of having been in bankruptcy. Competitive factors in the
market include:
o product quality;
o customer service;
o product mix;
o new product design capabilities;
o cost;
o reliability of supply;and
o supplier ratings.
There can be no assurance that we will be able to compete effectively with
these companies in the future or that significant new competitors will not
enter the market.
Collective Bargaining Agreements
As of September 30, 1998, we had approximately 4400 employees.
Approximately 42% of our employees are covered by collective bargaining
agreements negotiated with 16 locals of 9 unions. These contracts expire at
various times through the year 2000. Discussions with various unions regarding
new labor agreements or an extension of existing contracts are presently
underway. While we believe that our relations with our employees are good, we
could experience a material adverse effect on our financial position or
operating results as a result of a prolonged dispute with our employees.
Prices and Availability of Raw Materials
Our major raw materials include aluminum, energy, steel, glass, rubber and
paint. We obtain these raw materials from regular commercial sources of supply
and, in most cases, from multiple sources. Under normal conditions, we have no
difficulty obtaining adequate raw material requirements at competitive prices,
and we have not experienced
-12-
<PAGE>
any shortages. Nevertheless, significant increases in raw material prices could
have a material adverse effect on our financial condition or results of
operations. Historically, we have, and in the future we may, enter into hedging
arrangements designed to protect against up and down movement in raw material
prices. We also may attempt to offset raw material cost increases by increasing
our selling prices. We cannot assure you, however, that we will be successful
in using these hedging strategies or that we will be able to obtain selling
price increases in the future.
-13-
<PAGE>
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
shares of Common Stock offered hereby, all of which will be received by the
Selling Stockholders.
SELLING STOCKHOLDERS
The following table provides certain information with respect to the
Common Stock held by each Selling Stockholder, which information has been
furnished to the Company by the Selling Stockholders and other sources and
which the Company has not verified. Because the Selling Stockholders may sell
all or some part of the Common Stock which they hold pursuant to this
Prospectus and the fact that this offering is not being underwritten on a firm
commitment basis, no estimate can be given as to the amount of Common Stock
that will be held by the Selling Stockholders upon termination of this
Offering. See "Plan of Distribution." The Common Stock offered by this
Prospectus may be offered from time to time in whole or in part by the persons
named below or by their transferees, as to whom applicable information will, to
the extent required, be set forth in a Prospectus Supplement.
Amount of Common Stock Amount to be offered for
Name owned prior to Offering Stockholder's Account
---- ----------------------- ---------------------
[To be provided by amendment.]
-14-
<PAGE>
PLAN OF DISTRIBUTION
The Company is registering the Common Stock on behalf of the Selling
Shareholders. As used herein, "Selling Shareholders" includes donees and
pledgees selling shares received from a named Selling Shareholder after the
date of this prospectus. The Company will receive no proceeds from this
offering. The Common Stock may be sold from time to time to purchasers directly
by any of the Selling Stockholders. Alternatively, any of the Selling
Stockholders may from time to time, offer the Common Stock through
underwriters, dealers or agents, who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling
Stockholders and/or the purchasers of Common Stock for whom they may act as
agent. The Selling Stockholders and any underwriters, dealers or agents that
participate in the distribution of Common Stock may be deemed to be
underwriters, and any profit on the sale of Common Stock by them and any
discounts, commissions or concessions received by any such underwriters,
dealers or agents might be deemed to be underwriting discounts and commissions
under the Securities Act. If the Company is advised that an underwriter has
been engaged with respect to the sale of any Common Stock offered hereby, or in
the event of any other material change in the plan of distribution, the Company
will cause appropriate amendments to the Registration Statement of which this
Prospectus forms a part to be filed with the Commission reflecting such
engagement or other change. See "Where You Can Find More Information."
At the time a particular offer of Common Stock is made, to the extent
required, a Prospectus Supplement will be provided by the Company and
distributed by the relevant Selling Stockholder which will set forth the
aggregate amount of Common Stock being offered and the terms of the offering,
including the name or names of any underwriters, dealers or agents, any
discounts, commissions and other items constituting compensation from the
Selling Stockholders and any discount, commissions or concessions allowed or
reallowed or paid to dealers.
The Common Stock may be sold from time to time in one or more transactions
at a fixed offering price, which may be changed, or at varying prices
determined at the time of sale or at negotiated prices. Such prices will be
determined by the Selling Stockholders or by agreement between the Selling
Stockholders and underwriters or dealers.
Under applicable rules and regulations under the Exchange Act any person
engaged in a distribution of Common Stock may not simultaneously engage in
market-making activities with respect to such Common Stock for a period of nine
business days prior to the commencement of such distribution and ending upon
the completion of such distribution. In addition to and without limiting the
foregoing, each Selling Stockholder will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder, including without
limitation Regulation M, which provisions may limit the timing of purchases and
sales of any of the Common Stock by the Selling Stockholders. All of the
foregoing may affect the marketability of the Common Stock and the ability of
any person or entity to engage in market-making activities with respect to the
Common Stock.
Pursuant to the Registration Rights Agreement, the Company is obligated to
pay substantially all of the expenses incident to the registration, offering
and sale of the Common Stock of the Selling Stockholders to the public other
than commissions and discounts of underwriters, dealers or agents. The Selling
Stockholders, and any underwriter they may utilize, and their respective
controlling person are entitled to be indemnified by the Company against
certain liabilities, including liabilities under the Securities Act. See
"Description of Capital Stock--Registration Rights Agreement."
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 50,000,000 shares
of Common Stock, par value $.01 per share, and 50,000,000 shares of Preferred
Stock, par value $.01 per share (the "Preferred Stock"). Pursuant to the Plan
of Reorganization, the Company reserved 20,000,000 shares of Common Stock for
issuance to certain holders of allowed claims under the Plan of Reorganization.
Common Stock
Holders of Common Stock are entitled to one vote for each share held on
all matters submitted to a vote of stockholders and do not have cumulative
voting rights. Accordingly, holders of a majority of the shares of Common Stock
entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared by the Board of Directors
-15-
<PAGE>
out of funds legally available therefor, subject to any preferential dividend
rights of outstanding Preferred Stock. Upon the liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to receive
ratably the net assets of the Company available after the payment of all debts
and other liabilities and subject to the prior rights of any outstanding
Preferred Stock. Holders of Common Stock have no preemptive, subscription,
redemption or conversion rights. All the outstanding shares of Common Stock
are, and the shares of Common Stock to be issued by the Company pursuant to the
Plan of Reorganization when issued and paid for will be, fully paid and
non-assessable. The rights, preferences and privileges of holders of Common
Stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of Preferred Stock that the Company may
designate and issue in the future.
Preferred Stock
The Board of Directors is authorized, subject to any limitations
prescribed by law and without stockholder approval, to issue shares of
Preferred Stock in one or more series. Each such series of Preferred Stock
shall have such rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and
liquidation privileges as shall be determined by the Board of Directors.
The purpose of authorizing the Board of Directors to issue Preferred Stock
and to determine its rights and preferences is to eliminate delays associated
with a stockholder vote on specific issuances and to provide desirable
flexibility in connection with possible acquisitions and other corporate
purposes. The issuance of any such series may have an adverse effect on the
rights of holders of Common Stock. The issuance of Preferred Stock could
decrease the amount of earnings and assets available for distribution to
holders of Common Stock. In addition, any such issuance could have the effect
of delaying, deferring or preventing a change of control of the Company. The
Company has no present plans to issue shares of Preferred Stock.
Certain Charter Provisions
The Company's Certificate of Incorporation contains provisions to
indemnify the Company's directors and officers to the fullest extent permitted
by the Delaware General Corporation Law (the "DGCL"), including payment in
advance of a final disposition of a director's or officer's expenses and
attorneys' fees incurred in defending any action, suit or proceeding. The
Company believes that these provisions will assist the Company in attracting
and retaining qualified individuals to serve as directors.
Section 203 of the Delaware Law
Generally, Section 203 of the DGCL prohibits certain Delaware corporations
from engaging in a "business combination" with an "interested stockholder" for
a period of three years after the time of the transaction in which the person
became an interested stockholder, unless (i) prior to the time of the business
combination, the transaction is approved by the board of directors of the
corporation, (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owns
at least 85% of the outstanding voting stock, or (iii) at or after such time
the business combination is approved by the board of directors and by the
affirmative vote of at least 66 2/3% of the outstanding voting stock which is
not owned by the interested stockholder. A "business combination" includes
mergers, asset sales and other transactions resulting in a financial benefit to
the interested stockholder. Subject to certain exceptions, an "interested
stockholder" is a person who, together with affiliates and associates, owns (or
within three years, did own) 15% or more of the corporation's voting stock. A
Delaware corporation may "opt out" from the application of Section 203 of the
DGCL through a provision in its certificate of incorporation or by-laws. The
Company has opted out of Section 203 of the DGCL.
Warrants
Pursuant to the Plan of Reorganization, holders of shares of Common Stock
and Pay-In-Kind Preferred Stock of Harvard prior to its emergence from
bankruptcy received warrants (the "Warrants") to purchase up to 631,578 shares
of Common Stock of the Company at an exercise price of $41.67 per share of
Common Stock. The Warrants are currently exercisable and will remain
outstanding until November 23, 2003.
The exercise price and the number of shares of Common Stock into which the
Warrants may be exercisable may, under certain circumstances, be subject to
adjustment pursuant to anti-dilution provisions contained in the Warrants.
Registration Rights
-16-
<PAGE>
The Company entered into a Registration Rights Agreement, dated as of the
Effective Date, with the Selling Stockholders pursuant to which the Company
agreed to use its reasonable best efforts to file after the Effective Date a
"shelf" registration statement covering shares of Common Stock owned by the
Selling Stockholders (the "Shelf Registration"), use its reasonable best
efforts to cause the Shelf Registration to be declared effective and to keep
such Shelf Registration continuously effective until the earlier of the
disposition of all Registrable Securities (as defined in the Registration
Rights Agreement) and three (3) years after the initial date of the Shelf
Registration; provided, however, that the Company will be permitted to suspend
the availability of the Shelf Registration for up to 30 days during any
twelve-month period.
The Company will also effect up to two registrations (the "Demand
Registrations") at the request of the Initiating Holders (as defined in the
Registration Rights Agreement) or, in the event the Shelf Registration is
unavailable, four registrations; provided, however, that no such Demand
Registration is required to be effected earlier than 90 days after the
effective date of any registration statement (other than the Shelf Registration
or a Registration Statement on Form S-4 or Form S-8 (or any successor form
thereto)) of the Company, under the Securities Act, covering securities of the
same class as any Registrable Securities.
The Company has the right, in the case of a Demand Registration, to
postpone the filing or effectiveness of, or to withdraw, any Registration
Statement if in its reasonable judgment, such registration would materially
interfere with any material financing, acquisition, corporate reorganization or
merger or other transaction involving the Company or any subsidiary thereof;
provided, however, that such postponement or withdrawal will last only for so
long as such material interference would exist, but in no event for more than
45 days.
The Company will indemnify and hold harmless each holder ("Holder") of
Registrable Securities, its directors, officers, partners, employees, advisors
and agents, and each Person who controls (within the meaning of the Securities
Act or the Exchange Act) such Holder, to the extent permitted by law, from and
against any and all losses, claims, damages, expenses (including, without
limitation, reasonable costs of investigation and fees, disbursements and other
charges of counsel) or other liabilities resulting from or arising out of or
based upon any untrue, or alleged untrue, statement of a material fact
contained in any Registration Statement, Prospectus, preliminary Prospectus,
notification or offering circular (as amended or supplemented if the Company
has furnished any amendments or supplements thereto) or other disclosure
document, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by or on
behalf of such the Company expressly for use therein. The Company will also
indemnify any underwriters of the Registrable Securities, their officers,
directors and employees, and each Person who controls any such underwriter
(within the meaning of the Securities Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Holders of
Registrable Securities.
Each Holder has agreed to indemnify and hold harmless the Company, any
underwriter retained by the Company and their respective directors, officers,
employees, advisors, agents and each person who controls (within the meaning of
the Securities Act and the Exchange Act) the Company or such underwriter to the
same extent as the foregoing indemnity from the Company to the Holders (subject
to the proviso to this sentence and applicable law), but only with respect to
any information furnished in writing by or on behalf of such Holder expressly
for use therein; provided, however, that the liability of any Holder will be
limited to the amount of the net proceeds received by such Holder in the
offering giving rise to such liability.
Transfer Agent and Registrar; Warrant Agent
The Transfer Agent and Registrar for the Common Stock is State Street Bank
and Trust Company. The Warrant Agent for the Warrants is State Street Bank and
Trust Company.
-17-
<PAGE>
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby and certain
legal matters will be passed upon for the Company by Willkie Farr & Gallagher,
New York, New York.
EXPERTS
The audited consolidated financial statements of the Company for the year
ended September 30, 1998 included in the Company's Form 10-K for the year ended
September 30, 1998, incorporated by reference herein, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said report.
Reference is made to said report, which includes an explanatory paragraph with
respect to the Company's ability to continue as a going concern as discussed in
Note 1 to such consolidated financial statements.
-18-
<PAGE>
Part II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate of the expenses that will be
incurred by the Registrant in connection with the distribution of the
securities being registered hereby:
SEC registration fee...............................................$
NASD filing fees...................................................$
Legal fees and expenses............................................$
Accounting fees and expenses.......................................$
Miscellaneous......................................................$
--------
Total..............................................................$
========
Item 15. Indemnification of Directors and Officers.
Generally, Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") permits a corporation to indemnify certain persons made a
party to an action, by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise. In the case of an action by or in the right
of the corporation, no indemnification may be made in respect of any matter as
to which such person was adjudged liable for negligence or misconduct in the
performance of such person's duty to the corporation unless the Delaware Court
of Chancery or the court in which such action was brought determines that
despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for proper expenses. To the extent such person has been
successful in the defense of any matter, such person shall be indemnified
against expenses actually and reasonably incurred by him.
Section 102(b)(7) of the DGCL enables a Delaware corporation to include a
provision in its certificate of incorporation limiting a director's liability
to the corporation or its stockholders for monetary damages for breaches of
fiduciary duty as a director. Harvard's Amended and Restated Certificate of
Incorporation and By-laws that were adopted pursuant to the Plan of
Reorganization provide for indemnification of its officers and directors to the
full extent permitted under Delaware law.
Item 16. Exhibits.
Exhibit No. Description
2.1 Plan of Reorganization and related Disclosure Statement,
filed with the U.S. Bankruptcy Court for the District of
Delaware on July 10, 1998 (incorporated by reference to
Exhibits 99.1 and 99.2 to the Registrant's Form 8-K filed
with the Commission on July 24, 1998 (Commission File
No.001-01044)).
2.2 First Amended and Modified Consolidated Plan of
Reorganization dated August 19, 1998, filed with the U.S.
Bankruptcy Court for the District of Delaware on August 25,
1998 (incorporated by reference to Exhibit 2.1 to the
Registrant's Form 8-K filed with the Commission on October
30, 1998 (Commission File No. 001-01044)).
3.1(a) Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1(a) to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No.0-21362)).
3.1(b) Certificate of Merger of the Registrant (incorporated by
reference to Exhibit 3.1(b) to the Registrant's Form 10-K
filed with the Commission on January 13, 1999 (Commission
File No. 0-21362)).
II-1
<PAGE>
3.2 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Form 10-K filed with the
Commission on January 13, 1999 (Commission File
No.0-21362)).
4.1 Form of Common Stock Certificate of the Registrant
(incorporated by reference to Exhibit 4.1 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
4.2 Indenture (including the Form of 14 1/2% Senior Secured
Note due September 1, 2003), dated as of November 24, 1998
between the Registrant, the Subsidiary Guarantors and
Norwest Minnesota Bank, National Association, as Trustee
(incorporated by reference to Exhibit 4.2 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
5.1* Opinion of Willkie Farr and Gallagher.
10.1 Settlement Agreement dated as of October 15, 1998, by and
among the Registrant, certain of its subsidiaries and the
PBGC (incorporated by reference to Exhibit 10.1 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No.0-21362)).
10.2 Registration Rights Agreement, dated as of November 24,
1998, between the Registrant and the signatories listed
therein (incorporated by reference to Exhibit 10.2 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No.0-21362)).
10.3 Credit Agreement, dated as of November 24, 1998, between
the Registrant, its subsidiaries, General Electric Capital
Corporation, as Administrative Agent and the lenders party
thereto (incorporated by reference to Exhibit 10.4 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.4 Loan Collateral Agreement, dated as of November 24, 1998 by
the Registrant anad its subsidiaries in favor of General
Electric Capital Corporation, as Administrative Agent
(incorporated by reference to Exhibit 10.5 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.5 Collateral Agreement, dated as of November 24, 1998, by the
Registrant and its subsidiaries in favor of Norwest Bank
Minnesota, National Association, as Collateral Agent
(incorporated by reference to Exhibit 10.6 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.6 Warrant Agreement, dated as of November 24, 1998, between
the Registrant and State Street Bank and Trust Company
(incorporated by reference to Exhibit 10.7 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.7 Harvard Industries, Inc. Nonqualified ERISA Excess Benefit
Plan (incorporated by reference to Exhibit 10.20 to the
Registrant's Registration Statement on Form S-1 filed with
the Commission on August 24, 1995 (File No. 33-96376)).
10.8 Harvard Industries, Inc. Nonqualified Additional Credited
Service Plan (incorporated by reference to Exhibit 10.21 to
the Registrant's Registration Statement on Form S-1 filed
with the Commission on August 24, 1995 (File No.
33-96376)).
10.9 Harvard Industries, Inc. 1998 Stock Incentive Plan
(incorporated by reference to Exhibit 10.10 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
21 List of subsidiaries of the Company (incorporated by
reference to Exhibit 21 to the Registrant's Form 10-K filed
with the Commission on January 13, 1999 (Commission File
No. 0-21362)).
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3 Consent of Willkie Farr & Gallagher (included in their
opinion filed as Exhibit 5.1).
24 Powers of Attorney (contained in the signature pages
hereto).
- ---------
* To be filed by amendment.
Item 17. Undertakings.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of Harvard pursuant to the provisions in Item 15 above, or otherwise,
Harvard has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in such act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by Harvard of expenses incurred or
paid by a director or officer or controlling person of Harvard in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, Harvard 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 of whether such indemnification by it is against
public policy as expressed in such act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Securities
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.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the Plan of
Distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
II-3
<PAGE>
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-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in Lebanon, State of New Jersey, on January 25, 1999.
HARVARD INDUSTRIES, INC.
By: /s/ Roger G. Pollazzi
---------------------------
Name: Roger G. Pollazzi
Title: Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Harvard Industries Inc.,
do hereby severally and individually constitute and appoint Roger G. Pollazzi
and D. Craig Bowman, and each of them, as our true and lawful attorneys and
agents, to do any and all things and acts in our names in the capacities
indicated below and to execute any and all instruments for us and in our names
in the capacities indicated below which said persons may deem necessary or
advisable to enable Harvard Industries, Inc. to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the offering
contemplated by this Registration Statement on Form S-3, including
specifically, but not limited to, power and authority to sign for us or any of
us in our names in the capacities indicated below and any and all amendments,
including post-effective amendments to this Registration Statement and any Rule
462(b) registration statement or amendments thereto; and we hereby ratify and
confirm all that said persons shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Roger G. Pollazzi Chairman of the Board and Chief January 25, 1999
- -------------------------------- Executive Officer
Roger G. Pollazzi (Principal Executive Officer)
/s/ Theodore W. Vogtman Executive Vice Presient and January 25, 1999
- -------------------------------- Chief Financial Officer
Theodore W. Vogtman (Principal Financial Officer and
Principal Accounting Officer)
/s/ Jon R. Bauer Director January 25, 1999
- --------------------------------
Jon R. Bauer
/s/ Thomas R. Cochill Director January 25, 1999
- --------------------------------
Thomas R. Cochill
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C> <C>
- -------------------------------- Director January __, 1999
Raymond Garfield, Jr.
/s/ Donald P. Hilty Director January 25, 1999
- --------------------------------
Donald P. Hilty
/s/ George A. Poole, Jr. Director January 25, 1999
- --------------------------------
George A. Poole, Jr.
/s/ James P. Shanahan, Jr. Director January 25, 1999
- --------------------------------
James P. Shanahan, Jr.
- -------------------------------- Director January __, 1999
Richard W. Vieser
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
2.1 Plan of Reorganization and related Disclosure Statement,
filed with the U.S. Bankruptcy Court for the District of
Delaware on July 10, 1998 (incorporated by reference to
Exhibits 99.1 and 99.2 to the Registrant's Form 8-K filed
with the Commission on July 24, 1998 (Commission File
No.001-01044)).
2.2 First Amended and Modified Consolidated Plan of
Reorganization dated August 19, 1998, filed with the U.S.
Bankruptcy Court for the District of Delaware on August 25,
1998 (incorporated by reference to Exhibit 2.1 to the
Registrant's Form 8-K filed with the Commission on October
30, 1998 (Commission File No. 001-01044)).
3.1(a) Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1(a) to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No.0-21362)).
3.1(b) Certificate of Merger of the Registrant (incorporated by
reference to Exhibit 3.1(b) to the Registrant's Form 10-K
filed with the Commission on January 13, 1999 (Commission
File No. 0-21362)).
3.2 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Form 10-K filed with the
Commission on January 13, 1999 (Commission File
No.0-21362)).
4.1 Form of Common Stock Certificate of the Registrant
(incorporated by reference to Exhibit 4.1 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
4.2 Indenture (including the Form of 14 1/2% Senior Secured
Note due September 1, 2003), dated as of November 24, 1998
between the Registrant, the Subsidiary Guarantors and
Norwest Minnesota Bank, National Association, as Trustee
(incorporated by reference to Exhibit 4.2 to the
Registrant's Form 10-K filed with the Commission on
January 13, 1999 (Commission File No. 0-21362)).
5.1* Opinion of Willkie Farr and Gallagher.
10.1 Settlement Agreement dated as of October 15, 1998, by and
among the Registrant, certain of its subsidiaries and the
PBGC (incorporated by reference to Exhibit 10.1 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No.0-21362)).
10.2 Registration Rights Agreement, dated as of November 24,
1998, between the Registrant and the signatories listed
therein (incorporated by reference to Exhibit 10.2 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No.0-21362)).
10.3 Credit Agreement, dated as of November 24, 1998, between
the Registrant, its subsidiaries, General Electric Capital
Corporation, as Administrative Agent and the lenders party
thereto (incorporated by reference to Exhibit 10.4 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.4 Loan Collateral Agreement, dated as of November 24, 1998 by
the Registrant anad its subsidiaries in favor of General
Electric Capital Corporation, as Administrative Agent
(incorporated by reference to Exhibit 10.5 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.5 Collateral Agreement, dated as of November 24, 1998, by the
Registrant and its subsidiaries in favor of Norwest Bank
Minnesota, National Association, as Collateral Agent
(incorporated by reference to Exhibit 10.6 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.6 Warrant Agreement, dated as of November 24, 1998, between
the Registrant and State Street Bank and Trust Company
(incorporated by reference to Exhibit 10.7 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
10.7 Harvard Industries, Inc. Nonqualified ERISA Excess Benefit
Plan (incorporated by reference to Exhibit 10.20 to the
Registrant's Registration Statement on Form S-1 filed with
the Commission on August 24, 1995 (File No. 33-96376)).
10.8 Harvard Industries, Inc. Nonqualified Additional Credited
Service Plan (incorporated by reference to Exhibit 10.21 to
the Registrant's Registration Statement on Form S-1 filed
with the Commission on August 24, 1995 (File No.
33-96376)).
<PAGE>
10.9 Harvard Industries, Inc. 1998 Stock Incentive Plan
(incorporated by reference to Exhibit 10.10 to the
Registrant's Form 10-K filed with the Commission on January
13, 1999 (Commission File No. 0-21362)).
21 List of subsidiaries of the Company (incorporated by
reference to Exhibit 21 to the Registrant's Form 10-K filed
with the Commission on January 13, 1999 (Commission File
No. 0-21362)).
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3 Consent of Willkie Farr & Gallagher (included in their
opinion filed as Exhibit 5.1).
24 Powers of Attorney (contained in the signature pages
hereto).
- ---------
* To be filed by amendment.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 12, 1999
included in Harvard Industries, Inc.'s Form 10-K for the year ended September
30, 1998 and to all references to our firm included in this registration
statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Roseland, New Jersey
January 25, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
November 14, 1997, except for Note 9 (which contains an explanatory paragraph
relating to the ability of Harvard Industries, Inc. to continue as a going
concern) as to which the date is December 29, 1997, appearing on page 47 of the
Annual Report on Form 10-K of Harvard Industries, Inc. for the year ended
September 30, 1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
1177 Avenue of the Americas
New York, NY
January 25, 1999
