<PAGE>
As filed with the Securities and Exchange Commission on October 22, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
(Exact name of Registrant as specified in its charter)
MINNESOTA 41-1771946
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
607 WEST TRAVELERS TRAIL 55337
BURNSVILLE, MINNESOTA (Zip Code)
(Address of principal executive offices)
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
AMENDED AND RESTATED 1995 STOCK PLAN
(Full title of the plan)
Daniel L. Hanlon David P. Hanlon
Co-Founder and Co-Chief Co-Founder and Co-Chief
Executive Officer Executive Officer
Excelsior-Henderson Motorcycle Manufacturing Company
607 West Travelers Trail
Burnsville, Minnesota 55337
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (612) 894-9229
----------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered (1) per share (1) (2) price (1) (2) fee
<S> <C> <C> <C> <C>
Common Stock, 666,667 $5.78 $3,853,335.26 $1,167.68
$.01 par value shares
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) The Registration Statement relates to 666,667 shares of Common Stock to be
offered pursuant to the Registrant's Amended and Restated 1995 Stock Plan.
(2) Estimated solely for the purpose of the registration fee pursuant to
Rule 457(h)(1) based on the average of the high and low sales prices per
share of the Registrant's Common Stock on October 17, 1997, as reported on
the Nasdaq National Market.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), and Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are, as of their respective dates,
incorporated by reference and made a part hereof:
(1) The Company's prospectus dated July 23, 1997 and filed
July 24, 1997, pursuant to Rule 424(b) of the Securities Act, which
contains audited financial statements for the Company's fiscal year
ended December 31, 1996 (File No. 333-27789).
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year ended December
31, 1996 (File No. 000-22765).
(3) The description of the Company's Common Stock which is
contained in the Registration Statement on Form 8-A (Registration No.
000-22765) filed June 27, 1997, (and declared effective on July 23,
1997) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and all amendments and reports filed for the purpose
of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicate that all of the shares of Common Stock
offered have been sold or which deregister all shares of the Common Stock then
remaining unsold shall be deemed to be incorporated by reference in and a part
of this Registration Statement from the date of filing of such documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 4.01 of the Company's By-Laws, the Company indemnifies
its directors and officers and advances litigation expenses to the fullest
extent required or permitted by Minnesota Statutes Section 302A.521. Section
302A.521 requires the Company to indemnify a person made or threatened to be
made a party to a proceeding, by reason of the former or present official
capacity of the person with respect to the
II-1
<PAGE>
Company, against judgments, penalties, fines, including without limitation,
excise taxes assessed against the person with respect to an employee benefit
plan, settlements, and reasonable expenses, including attorneys' fees and
disbursements, if, with respect to the acts or omissions of the person
complained of in the proceeding, such person (1) has not been indemnified by
another organization or employee benefit plan for the same judgments, penalties,
fines, including without limitation, excise taxes assessed against the person
with respect to an employee benefit plan, settlements, and reasonable expenses,
including attorneys' fees and disbursements, incurred by the person in
connection with the proceeding with respect to the same acts or omissions; (2)
acted in good faith; (3) received no improper personal benefit, and statutory
procedure has been followed in the case of any conflict of interest by a
director; (4) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and (5) in the case of acts or omissions
occurring in the person's performance in the official capacity of director or,
for a person not a director, in the official capacity of officer, committee
member, employee or agent, reasonably believed that the conduct was in the best
interests of the Company, or in the case of performance by a director, officer,
employee or agent of the Company as a director, officer, partner, trustee,
employee or agent of another organization or employee benefit plan, reasonably
believed that the conduct was not opposed to the best interests of the Company.
In addition, Section 302A.521, subd. 3, requires payment by the Company upon
written request, of reasonable expenses in advance of final disposition in
certain instances.
The Articles of Incorporation of the Company eliminate the personal
liability of a director to the Company or its shareholders for monetary damages
for breach of fiduciary duty as a director, except under certain circumstances
involving any breach of the director's duty of loyalty to the Company or its
shareholders, acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, for any unlawful acts under Sections
302A.559 or 80A.23 of Minnesota Statutes, or for any transaction from which a
director derives an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Description
------- -----------
4 Excelsior-Henderson Motorcycle Manufacturing Company
Amended and Restated 1995 Stock Plan.
5 Opinion of Faegre & Benson LLP.
23.1 Consent of Faegre & Benson LLP (contained in Exhibit 5
to this Registration Statement).
23.2 Consent of Arthur Andersen LLP.
24 Powers of Attorney.
II-2
<PAGE>
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. 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 twenty 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 (A)(1)(i) and (A)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and 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 Company
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
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling
II-3
<PAGE>
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Burnsville,
State of Minnesota, on October 22, 1997.
EXCELSIOR-HENDERSON MOTORCYCLE
MANUFACTURING COMPANY
By /s/ Daniel L. Hanlon
--------------------------------------
Daniel L. Hanlon
Co-Chief Executive Officer
By /s/ David P. Hanlon
--------------------------------------
David P. Hanlon
Co-Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 22, 1997.
Signature Title
- --------- -----
/s/ Daniel L. Hanlon Co-Founder, Co-Chief Executive Officer and
- ------------------------- Co-Chairman of the Board
Daniel L. Hanlon (Principal Executive Officer)
/s/ David P. Hanlon Co-Founder, Co-Chief Executive Officer and
- ------------------------- Co-Chairman of the Board
David P. Hanlon
/s/ Thomas M. Rootness Senior Vice President of Finance and
- ------------------------- Administration and Chief Financial Officer
Thomas M. Rootness (Principal Financial and Accounting Officer)
John B. Donahue* Director
Wayne M. Fortun* Director
David R. Pomije* Director
* Daniel L. Hanlon, by signing his name hereto, does hereby sign this
document on behalf of each of the above named directors of the Registrant
pursuant to powers of attorney duly executed by each person.
By /s/ Daniel L. Hanlon
-------------------------------------------
Daniel L. Hanlon, Attorney in Fact
II-5
<PAGE>
INDEX TO EXHIBITS
Method
Exhibit Description of Filing
- ------- ----------- ---------
4 Excelsior-Henderson Motorcycle Manufacturing
Company Amended and Restated 1995 Stock Plan . Filed Electronically
5 Opinion of Faegre & Benson LLP . . . . . . . . Filed Electronically
23.1 Consent of Faegre & Benson LLP
(contained in its opinion filed as Exhibit 5
to this Registration Statement)
23.2 Consent of Arthur Andersen LLP . . . . . . . . Filed Electronically
24 Powers of Attorney . . . . . . . . . . . . . . Filed Electronically
II-6
<PAGE>
EXHIBIT 4
REV 97
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
AMENDED AND RESTATED 1995 STOCK PLAN
1. AMENDMENT OF EXISTING PLAN; PURPOSE. This Excelsior-Henderson
Motorcycle Manufacturing Company Amended and Restated 1995 Stock Plan (the
"Plan") amends and restates in its entirety the Hanlon Manufacturing Company
1995 Stock Plan. The purpose of the Plan is to attract, motivate and retain
employees, directors, advisors and officers to produce a superior return to the
shareholders of Excelsior-Henderson Motorcycle Manufacturing Company by offering
such persons an opportunity to realize Stock appreciation, by facilitating Stock
ownership and by rewarding them for achieving a high level of corporate
financial performance. The Plan is also intended to facilitate recruiting and
retaining experienced and knowledgeable advisors and independent contractors by
permitting such persons to acquire a proprietary interest in the Company.
2. DEFINITIONS AND RULES OF CONSTRUCTION. The capitalized terms used in
this Plan have the meanings, and certain rules of construction are, set forth in
the list of defined terms attached to this Plan as EXHIBIT A.
3. ADMINISTRATION.
3.1 AUTHORITY OF COMMITTEE. The Committee shall administer the Plan.
The Committee shall have exclusive power to make Awards, to determine when
and to whom Awards will be granted, the form of each Award, the amount of
each Award, and any other terms or conditions of each Award. Each Award
shall be subject to an Agreement authorized by the Committee. The
Committee's interpretation of the Plan and of any Awards made under the
Plan shall be final and binding on all persons with an interest therein.
The Committee shall have the power to establish regulations to administer
the Plan and to change such regulations. Solely for purposes of
determining and administering Awards to Participants who are not then
subject to the reporting requirements of Section 16 of the Exchange Act,
the Committee may delegate all or any portion of its authority under the
Plan to persons who are not Non-Employee Directors.
3.2 AWARDS TO OUTSIDE DIRECTORS. Notwithstanding any contrary
provisions of the Plan, the granting, terms, conditions and eligibility
requirements of Awards granted to Outside Directors under Section 9.3 of
the Plan are governed solely by the provisions of the Plan pertaining
thereto, and the Committee shall have no discretion with respect to the
granting of such Awards or to alter or amend any terms, conditions or
eligibility requirements of such Awards to Outside Directors. Provided,
however, that the Committee may make Awards to Outside Directors in
addition to
<PAGE>
Awards granted under such Section 9.3 and such other Awards need not be
upon the same terms as Awards granted under such Section 9.3
3.3 INDEMNIFICATION. To the full extent permitted by law, (i) no
member of the Committee or any person to whom the Committee delegates
authority under the Plan shall be liable for any action or determination
taken or made in good faith with respect to the Plan or any Award made
under the Plan, and (ii) the members of the Committee and each person to
whom the Committee delegates authority under the Plan shall be entitled to
indemnification by the Company with regard to such actions and
determinations.
4. SHARES AVAILABLE UNDER THE PLAN.
4.1 SHARES AVAILABLE. The number of Shares available for
distribution under the Plan shall not exceed 666,66* (subject to adjustment
pursuant to Section 15 hereof). Any Shares subject to the terms and
conditions of an Award under this Plan which are not used because the terms
and conditions of the Award are not met may again be used for an Award
under the Plan.
4.2 CONDITIONAL ISSUANCES. If the Plan is amended at any time
subject to shareholder approval, then the Committee may, in accordance with
the terms and conditions of the Plan, grant Awards on a conditional basis,
subject to such approval by the shareholders of the Company not later than
the next annual meeting of the shareholders of the Company following the
date of such conditional grant. Any Award granted on a conditional basis
shall not be exercisable unless and until the amendment to the Plan is
approved by the shareholders of the Company. If such an amendment is not
approved by the shareholders at the next annual meeting of shareholders of
the Company following the conditional grant, then the conditional grant
shall be canceled.
5. ELIGIBILITY. Except as otherwise provided in Section 9 hereof,
the granting of Awards to Participants is solely at the discretion of the
Committee. The Committee shall determine the Participants, and the form,
amount and other terms and conditions of each Award, taking into
consideration such factors, including any recommendations of officers of
the Company, as it deems relevant to select and motivate Participants to
advance the interests of the Company. Participants shall be persons
determined by the Committee as having contributed materially to the success
of the Company or as being in a position to contribute materially to the
future success of the Company.
6. GENERAL TERMS OF AWARDS.
__________________
* Reflects a 2 for 3 reverse split of the Company's Common Stock on May 21,
1997.
2
<PAGE>
6.1 AMOUNT OF AWARD. Each Agreement shall set forth the number of
Shares of Restricted Stock or other Stock subject to such Agreement, or the
number of Shares to which the Option subject to such Agreement applies, as
the case may be.
6.2 TERM. Each Agreement, other than those relating solely to Awards
of Stock without restrictions, shall set forth the Term of the Option or
Restricted Stock, as the case may be. An Agreement may permit acceleration
of the commencement of the applicable Term and the expiration of any
restrictions on exercisability upon such terms and conditions as shall be
set forth in the Agreement, which may, but need not, include without
limitation acceleration resulting from the occurrence of an Event,
Fundamental Change, the meeting of performance objectives established by
the Committee in an Agreement, or in the event of the Participant's death
or Retirement.
6.3 TRANSFERABILITY. During the lifetime of a Participant to whom an
Award is granted, only such Participant (or such Participant's legal
representative) may exercise an Option. No Award of Restricted Stock
(prior to the expiration of the restrictions) or Options may be sold,
assigned, transferred, exchanged or otherwise encumbered other than
pursuant to a qualified domestic relations order as defined in the Code or
Title 1 of the Employee Retirement Income Security Act ("ERISA") or the
rules thereunder, and any attempt to do so shall be of no effect.
Notwithstanding the immediately preceding sentence, an Agreement may
provide that (i) the Award subject to the Agreement shall be transferable
to a Successor in the event of a Participant's death or (ii) a
Non-Statutory Stock Option shall be transferable to any member of a
Participant's "immediate family" (as such term is defined in Rule 16a-1(e)
promulgated under the Exchange Act, or any successor rule or regulation) or
to one or more trusts whose beneficiaries are members of such
Participant's "immediate family" or partnerships in which such family
members are the only partners; provided, however, that (1) the Agreement
with respect to such Options, which must be approved by the Committee,
expressly so provides either at the time of initial grant or by amendment
to an outstanding Agreement, (2) the Participant receives no consideration
for the transfer and (3) such transferred Non-Statutory Stock Option shall
continue to be subject to the same terms and conditions as were applicable
to such Non-Statutory Stock Option immediately prior to its transfer.
6.4 TERMINATION OF EMPLOYMENT. Except as otherwise provided in the
applicable Agreement with any Participant, for any Participant who is an
employee of the Company, no Option may be exercised by the Participant, and
all Restricted Stock held by the Participant shall be forfeited (i) after
the 45th day following the day the Participant's employment by the Company
ceases if such cessation of employment is for a reason other than death,
Retirement, or Total and Permanent Disability, or (ii) three months after
Participant's employment by the Company ceases if such cessation of
employment is because of death, Retirement, or Total and Permanent
Disability, or (iii) if applicable, the date of breach by a Participant of
any employment or confidentiality agreement by and between the Company and
Participant, except as,
3
<PAGE>
and to the extent, provided in the Agreement applicable to that Award. An
Award may be exercised by, or paid to, the Successor of a Participant
following the death of such Participant to the extent, and during the
period of time, if any, provided in the applicable Agreement.
7. RESTRICTED STOCK AWARDS. An Award of Restricted Stock under the Plan
shall consist of Shares subject to restrictions on transfer and conditions of
forfeiture, which restrictions and conditions shall be included in the
applicable Agreement. Except as otherwise provided in the applicable Agreement,
each Stock certificate issued in respect to an Award of Restricted Stock shall
either be deposited with the Company or its designee, together with an
assignment separate from such certificate, in blank, signed by the Participant,
or bear such legends with respect to the restricted nature of the Restricted
Stock evidenced thereby as shall be provided for in the applicable Agreement.
The Agreement shall describe the terms and conditions by which the restrictions
upon awarded Restricted Stock shall lapse. Upon the lapse of the restrictions,
stock certificates free of restrictive legends, if any, relating to such
restrictions shall be issued to the Participant or his Successor. The Agreement
shall also set forth any required payment for such Restricted Stock, if such
payment is required by the Committee, and any provisions regarding repurchase of
such Restricted Stock in the event of forfeiture. A Participant with a
Restricted Stock Award shall have all the other rights of a shareholder
including, but not limited to, the right to receive dividends and the right to
vote the Shares of Restricted Stock. Unless the issuance of shares pursuant to
a Restricted Stock Award is registered or exempt under federal or state
securities laws, the Participant shall be required to give an investment
representation at the time of the Award, and transfer of the shares shall be
appropriately restricted.
8. STOCK AWARDS. Awards of Stock without restrictions may be made
by the Committee to a Participant in furtherance of the Plan's purposes. A
Participant receiving a Stock Award shall be entitled to all of the rights and
privileges in the Common Stock awarded as of the date on which the Award is
made. Unless the issuance of shares pursuant to a Stock Award is registered or
exempt under federal or state securities laws, the Participant shall be required
to give an investment representation at the time of the Award, and transfer of
the shares shall be appropriately restricted.
9. STOCK OPTIONS.
9.1 TERMS OF ALL OPTIONS. An Option shall be granted pursuant
to an Agreement as either an Incentive Stock Option or a Non-Statutory
Stock Option. Only Non-Statutory Stock Options may be granted to
Participants who are not employees of the Company or an Affiliate. The
purchase price of each Share subject to an Option shall be determined by
the Committee and set forth in the Agreement, but shall not be less than
85% of the Fair Market Value of a Share as of the date the Option is
granted. The purchase price of the Shares with respect to which an Option
is exercised shall be payable in full at the time of exercise, provided
that to the extent permitted by law, the Agreement may permit Participants
to simultaneously exercise Options and sell the
4
<PAGE>
Shares thereby acquired pursuant to a brokerage or similar relationship and
use the proceeds from such sale as payment of the purchase price of such
Shares or to engage in a Net Exercise. The purchase price may be payable
in cash, in Stock having a Fair Market Value as of the date the Option is
exercised equal to the purchase price of the Stock being purchased pursuant
to the Option, or a combination thereof, as determined by the Committee and
provided in the Agreement; provided, however, that a person exercising an
Option shall not be permitted to pay any portion of the purchase price with
Stock or through a Net Exercise if, in the opinion of the Committee,
payment in such manner could have adverse financial accounting consequences
for the Company. Each Option shall be exercisable in whole or in part on
the terms provided in the Agreement. In no event shall any Option be
exercisable at any time after its expiration date. When an Option is no
longer exercisable, it shall be deemed to have lapsed or terminated.
Unless the issuance of the shares upon the exercise of an Option hereunder
is subject to a registration or exemption under applicable federal and
state securities laws, the Participant shall be required to give an
investment representation at the time of exercise and transfer of the
shares shall be appropriately restricted.
9.2 INCENTIVE STOCK OPTIONS. In addition to the other terms and
conditions applicable to all Options:
(i) the aggregate Fair Market Value (determined as of the
date the Option is granted) of the Shares with respect to which
Incentive Stock Options held by an individual first become exercisable
in any calendar year (under this Plan and all other incentive stock
option plans of the Company and its Affiliates) shall not exceed
$100,000 (or such other limit as may be required by the Code) if such
limitation is necessary to qualify the Option as an Incentive Stock
Option;
(ii) the purchase price of Shares covered by Incentive Stock
Options must not be less than 100% of the Fair Market Value of the
Shares on the date of grant;
(iii) an Incentive Stock Option shall not be exercisable more
than 10 years after the date of grant (or such other limit as may be
required by the Code) if such limitation is necessary to qualify the
Option as an Incentive Stock Option;
(iv) unless otherwise specified by the Committee in the
Agreement, and except as otherwise provided in Section 6.4 or
Section 16, a Participant may exercise an Incentive Stock Option at
any time up to 10 years from the date of grant of the Option, in whole
or in part subject to any vesting schedule determined by the
Committee;
5
<PAGE>
(v) if the Participant owns, or is deemed under Section
424(d) of the Code to own, stock of the Company or of any Affiliate
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock therein at the time the Incentive Stock
Option is granted:
(a) the purchase price of the Shares covered by the
Incentive Stock Option must not be less than 110% of the Fair
Market Value of Shares on the date of grant; and
(b) the Term of the Incentive Stock Option must not be
greater than five years from the date of grant; and
(vi) the Agreement covering an Incentive Stock Option shall
contain such other terms and provisions which the Committee determines
necessary to qualify such Option as an Incentive Stock Option.
9.3 OUTSIDE DIRECTOR OPTIONS.
(i) During the term of this Plan, each person who is
elected to the Board of Directors and who is an Outside Director when
elected shall immediately be granted, by virtue of their election to
the Board of Directors, a Non-Statutory Stock Option. The date of
such election shall be the date of grant for options granted pursuant
to this subsection 9.3(i). The number of shares covered by each such
option shall be 10,000* (subject to adjustment pursuant to Section 15
hereof).
(ii) Beginning with the Annual Meeting of Shareholders to be
held during calendar year 1998 and for every Annual Meeting of
Shareholders thereafter during the term of this Plan, each person
serving as an Outside Director immediately following such Annual
Meeting shall be granted, by virtue of serving as an Outside Director,
a Non-Statutory Stock Option. The date of such Annual Meeting shall
be the date of grant for options granted pursuant to this
subsection 9.3(ii). The number of Shares covered by each such option
shall be 6,667* (subject to adjustment pursuant to Section 15 hereof).
Director Options granted pursuant to this subsection 9.3(ii) shall be
in addition to those granted pursuant to subsection 9.3(i).
Notwithstanding the foregoing, no Outside Director shall receive a
grant of options pursuant to this subsection 9.3(ii) prior to
completing a minimum of six months of service as an Outside Director.
(iii) Director Options granted pursuant to subsection 9.3(i)
shall vest and become exercisable one year following the date of
grant. Director Options
__________________
* Reflects a 2 for 3 reverse split of the Company's Common Stock on May 21,
1997.
6
<PAGE>
granted pursuant to subsection 9.3(ii) shall vest and become
exercisable on the date of the Annual Meeting next following the grant
of Director Options. Notwithstanding the foregoing, Director Options
shall vest and become immediately exercisable in full upon the
occurrence of any Event or upon the death of an Outside Director.
Director Options shall expire at the 10-year anniversary of the date
of grant.
(iv) The purchase price of each Share subject to a Director
Option pursuant to this Section 9.3 shall be 100% of the Fair Market
Value of a Share as of the date of grant. Notwithstanding anything to
the contrary stated in this Plan, for purposes of this Section 9.3 and
the definition of Fair Market Value in Exhibit A attached hereto, each
Director Option shall be deemed conclusively to have been granted
prior to close of the applicable securities exchange or system on the
date of grant. An Outside Director may exercise a Director Option
using as payment any form of consideration provided for in Section
9.1.
(v) Director Options shall be evidenced by an agreement
signed on behalf of the Company by an officer thereof which only
incorporates by reference the terms of this Plan.
(vi) Unless the Director Option shall have expired, in the
event of an Outside Director's death, the Director Option granted to
such Outside Director shall be transferable to the beneficiary, if
any, designated by the Outside Director in writing to the Company
prior to the Outside Director's death and such beneficiary shall
succeed to the rights of the Outside Director to the extent permitted
by law. If no such designation of a beneficiary has been made, the
Outside Director's legal representative shall succeed to the Director
Option, which shall be transferable by will or pursuant to the laws of
descent and distribution.
10. SUBSTITUTION OPTIONS. Options may be granted under this Plan
from time to time in substitution for stock options held by employees of other
corporations who are about to become Employees of the Company or a subsidiary of
the Company, or whose employer is about to become a subsidiary of the Company,
as the result of a merger or consolidation of the Company or a subsidiary of the
Company with another corporation, the acquisition by the Company or a subsidiary
of the Company of all or substantially all the assets of another corporation or
the acquisition by the Company or a subsidiary of the Company of at least 50% of
the issued and outstanding stock of another corporation. The terms and
conditions of the substitute Options so granted may vary from the terms and
conditions set forth in this Plan to such extent as the Board (or the Committee)
at the time of the grant may deem appropriate to conform, in whole or in part,
to the provisions of the stock options in substitution for which they are
granted, but with respect to stock options which are Incentive Stock Options, no
such variation shall be permitted which affects the status of any such
substitute Option as an "incentive stock option" under Section 422 of the Code.
7
<PAGE>
11. EFFECTIVE DATE OF THE PLAN.
11.1 EFFECTIVE DATE. The Plan shall become effective as of
December 15, 1995, provided that the Plan is approved and ratified by the
affirmative vote of the holders of a majority of the outstanding Shares of
Stock present or represented and entitled to vote in person or by proxy at
a meeting of the shareholders of the Company no later than June 30, 1996.
11.2 DURATION OF THE PLAN. The Plan shall remain in effect until
all Stock subject to it shall be distributed or until all Awards have
expired or lapsed, or the Plan is terminated pursuant to Section 14. No
Award of an Incentive Stock Option shall be made more than 10 years after
the Effective Date (or such other limit as may be required by the Code) if
such limitation is necessary to qualify the Option as an Incentive Stock
Option. The date and time of approval by the Committee of the granting of
an Award shall be considered the date and time at which such Award is made
or granted.
12. RIGHT TO TERMINATE EMPLOYMENT. Nothing in the Plan shall confer
upon any Participant the right to continue in the employment of the Company or
any Affiliate or affect any right which the Company or any Affiliate may have to
terminate the employment of the Participant with or without cause.
13. TAX WITHHOLDING. The Company shall have the right to withhold
from any cash payment under the Plan to a Participant or other person an amount
sufficient to cover any required withholding taxes. The Company shall have the
right to require a Participant or other person receiving Stock under the Plan to
pay the Company a cash amount sufficient to cover any required withholding
taxes. In lieu of all or any part of such a cash payment from a person
receiving Stock under the Plan, the Committee may permit the individual to elect
to cover all or any part of the required withholdings, and to cover any
additional withholdings up to the amount needed to cover the individual's full
FICA and Medicare, and federal, state and local income tax with respect to
income arising from payment of the Award, through a reduction of the number of
Shares delivered to him or a subsequent return to the Company of Shares held by
the Participant or other person, in each case valued in the same manner as used
in computing the withholding taxes under the applicable laws.
14. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board
may at any time terminate, suspend or modify the Plan. Amendments are subject
to approval of the shareholders of the Company only if such approval is
necessary to maintain the Plan in compliance with the requirements of Exchange
Act Rule 16b-3, Code Section 422, their successor provisions or any other
applicable law or regulation. No termination, suspension, or modification of
the Plan may materially and adversely affect any right acquired by any
Participant (or his legal representative) or any Successor under an Award
granted before the date of termination, suspension, or modification, unless
otherwise agreed to by the Participant in the Agreement or otherwise or required
as a matter of law; but it will be conclusively
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presumed that any adjustment for changes in capitalization provided for in
Section 15 does not adversely affect any right.
15. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. Appropriate
adjustments in the aggregate number and type of Shares available for Awards
under the Plan, in the number and type of Shares subject to Options thereafter
issued and in the number and type of Shares subject to Awards then outstanding,
and in the Option price as to any outstanding Options, may be made by the
Committee in its sole discretion to give effect to adjustments made in the
number or type of Shares of the Company through a Fundamental Change (subject to
Section 16), recapitalization, reclassification, stock dividend, stock split,
stock combination or other relevant change, provided that fractional Shares
shall be rounded to the nearest whole share.
16. FUNDAMENTAL CHANGE. In the event of a proposed Fundamental
Change, the Committee may, but shall not be obligated to:
a. if the Fundamental Change is a merger or consolidation or
statutory share exchange, make appropriate provision for the protection of
the outstanding Options by the substitution of options and appropriate
voting common stock of the corporation surviving any merger or
consolidation or, if appropriate, the parent corporation of the Company or
such surviving corporation to be issuable upon the exercise of Options, in
lieu of options and capital stock of the Company; or
b. at least 30 days prior to the occurrence of the Fundamental
Change, declare, and provide written notice to each holder of an Option of
the declaration, that each outstanding Option, whether or not then
exercisable, shall be canceled at the time of, or immediately prior to the
occurrence of the Fundamental Change in exchange for payment to each holder
of an Option, within ten days after the Fundamental Change, of cash equal
to, for each Share covered by the canceled Option, the amount, if any, by
which the Fair Market Value (as hereinafter defined in this Section) per
Share exceeds the exercise price per Share covered by such Option. At the
time of the declaration provided for in the immediately preceding sentence,
each Option shall immediately become exercisable in full and each person
holding an Option shall have the right, during the period preceding the
time of cancellation of the Option, to exercise his Option as to all or any
part of the Shares covered thereby in whole or in part, as the case may be.
In the event of a declaration pursuant to this Section 16(b), each
outstanding Option granted pursuant to the Plan that shall not have been
exercised prior to the Fundamental Change shall be canceled at the time of,
or immediately prior to, the Fundamental Change, as provided in the
declaration. Notwithstanding the foregoing, no person holding an Option
shall be entitled to the payment provided for in this Section 16(b) if such
Option shall have expired pursuant to the Agreement. For purposes of this
Section only, "Fair Market Value" per Share shall mean the cash plus the
fair market value, as determined in good faith by the Committee, of the
non-cash consideration to be received per Share by the shareholders of the
Company upon the
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occurrence of the Fundamental Change, notwithstanding anything to the
contrary provided in the Plan.
17. UNFUNDED PLAN. The Plan shall be unfunded and the Company shall not
be required to segregate any assets that may at any time be represented by
Awards under the Plan.
18. OTHER BENEFIT AND COMPENSATION PROGRAMS. Payments and other
benefits received by a Participant under an Award made pursuant to the Plan
shall not be deemed a part of a Participant's regular, recurring compensation
for purposes of the termination, indemnity or severance pay law of any
country and shall not be included in, nor have any effect on, the
determination of benefits under any other employee benefit plan, contract or
similar arrangement provided by the Company or an Affiliate unless expressly
so provided by such other plan, contract or arrangement, or unless the
Committee expressly determines that an Award or portion of an Award should be
included to accurately reflect competitive compensation practices or to
recognize that an Award has been made in lieu of a portion of competitive
cash compensation.
19. BENEFICIARY UPON PARTICIPANT'S DEATH. To the extent that the
transfer of a Participant's Award at his death is permitted under an
Agreement, (i) a Participant's Award shall be transferable at his death to
the beneficiary, if any, designated on forms prescribed by and filed with the
Committee and (ii) upon the death of the Participant, such beneficiary shall
succeed to the rights of the Participant to the extent permitted by law. If
no such designation of a beneficiary has been made, the Participant's legal
representative shall succeed to the Awards which shall be transferable by
will or pursuant to laws of descent and distribution to the extent permitted
under an Agreement.
20. GOVERNING LAW. To the extent that Federal laws do not otherwise
control, the Plan and all determinations made and actions taken pursuant to
the Plan shall be governed by the laws of Minnesota and construed accordingly.
10
<PAGE>
EXHIBIT A
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
AMENDED AND RESTATED 1995 STOCK PLAN
DEFINED TERMS AND RULES OF CONSTRUCTION
1. DEFINITIONS.
Set forth below are the meanings of certain terms used in this Plan.
a. "AFFILIATE" means any corporation that is a "parent corporation"
or "subsidiary corporation" of the Company, as those terms are defined in
Section 424(e) and (f) of the Code, or any successor provision.
b. "AGREEMENT" means a written contract entered into between the
Company or an Affiliate and a Participant containing the terms and
conditions of an Award in such form and not inconsistent with this Plan as
the Committee shall approve from time to time, together with all amendments
thereto, which amendments may be unilaterally made by the Company (with the
approval of the Committee) unless such amendments are deemed by the
Committee to be materially adverse to the Participant and are not required
as a matter of law.
c. "AWARD" means a grant made under this Plan in the form of
Restricted Stock, Options or Stock.
d. "BOARD" means the Board of Directors of the Company.
e. "CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
f. "COMMITTEE" means such committee appointed by the Board from time
to time to administer the Plan or, if no such committee is appointed, the
Board itself; provided, however that the Board shall appoint a committee of
three or more Non-Employee Directors to determine and administer Awards to
any Participants who are then subject to the reporting requirements of
Section 16 of the Exchange Act.
g. "COMPANY" means Excelsior-Henderson Motorcycle Manufacturing
Company, a Minnesota corporation, or any successor to substantially all of
its businesses.
h. "DIRECTOR" means a director of the Company.
i. "DIRECTOR OPTION" means a Non-Statutory Stock Option granted to
an Outside Director under Section 9.3 hereof.
<PAGE>
j. "EFFECTIVE DATE" means the effective date of the Plan specified
in Section 11.1 hereof.
k. "EVENT" means any of the following; provided, however, that no
Event shall be deemed to have occurred unless and until a majority of the
directors constituting the Incumbent Board (as defined below) shall have
declared that an Event has occurred and further provided that an Event
shall not be deemed to occur prior to the date that the Stock becomes
registered under the Exchange Act:
(1) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Exchange Act Rule 13d-3)
of 20% (except for acquisitions by any individual, entity or group
that, prior to the effectiveness of this Plan, owns 20% or more of any
class of capital stock of the Company) or more of either (i) the then
outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of the Board (the "Outstanding Company
Voting Securities"); provided, however, that the following
acquisitions shall not constitute an Event:
(A) any acquisition of voting securities of the Company
directly from the Company,
(B) any acquisition of voting securities of the Company by
the Company or any of its wholly owned Subsidiaries,
(C) any acquisition of voting securities of the Company by
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Subsidiaries, or
(D) any acquisition by any corporation with respect to
which, immediately following such acquisition, more than 60% of
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such acquisition in substantially
the same proportions as was their ownership, immediately prior to
such acquisition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be;
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(2) Individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director of the Board subsequent to the Effective Date
whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest which was (or, if
threatened, would have been) subject to Exchange Act Rule 14a-11;
(3) Approval by the shareholders of the Company of a
reorganization, merger, consolidation or statutory exchange of
Outstanding Company Voting Securities, unless immediately following
such reorganization, merger, consolidation or exchange, all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such reorganization, merger, consolidation or exchange beneficially
own, directly or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from such reorganization, merger, consolidation or exchange
in substantially the same proportions as was their ownership,
immediately prior to such reorganization, merger, consolidation or
exchange, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be; or
(4) Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of the
Company, other than to a corporation with respect to which,
immediately following such sale or other disposition, more than 60%
of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other disposition in
substantially the same proportion as was their ownership, immediately
prior to such sale or other disposition, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case
may be.
Notwithstanding the above, an Event shall not be deemed to occur with
respect to a recipient of an Award if the acquisition of the 20% or greater
interest referred to in
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paragraph (1) is by a group, acting in concert, that includes that
recipient or if at least 40% of the then outstanding common stock or
combined voting power of the then outstanding voting securities (or voting
equity interests) of the surviving corporation or of any corporation (or
other entity) acquiring all or substantially all of the assets of the
Company shall be beneficially owned, directly or indirectly, immediately
after a reorganization, merger, consolidation, statutory share exchange or
sale or other disposition of assets referred to in paragraphs (3) or (4) by
a group, acting in concert, that includes that recipient.
l. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
m. "FAIR MARKET VALUE" as of any date means, unless otherwise
expressly provided in the Plan:
(i) the closing price of a Share on the date immediately
preceding that date or, if no sale of Shares shall have occurred on
that date, on the next preceding day on which a sale of Shares
occurred,
(A) on the composite tape for New York Stock Exchange
listed shares, or
(B) if the Shares are not quoted on the composite tape for
New York Stock Exchange listed shares, on the principal United
States Securities Exchange registered under the Exchange Act on
which the Shares are listed, or
(C) if the Shares are not listed on any such exchange, on
the Nasdaq National Market, or
(ii) if clause (i) is inapplicable, the mean between the closing
"bid" and the closing "asked" quotation of a Share on the date
immediately preceding that date, or, if no closing bid or asked
quotation is made on that date, on the next preceding day on which a
quotation is made, on any system maintained by the National
Association of Securities Dealers, Inc. or any system then in use, or
(iii) if clauses (i) and (ii) are inapplicable, what the
Committee determines in good faith to be 100% of the fair market value
of a Share on that date.
However, if the applicable securities exchange or system has closed for the
day at the time the event occurs that triggers a determination of Fair
Market Value, whether the grant of an Award, the exercise of an Option or
otherwise, all references in this paragraph to the "date immediately
preceding that date" shall be deemed to be references to "that date". In
the case of an Incentive Stock Option, if such
A-4
<PAGE>
determination of Fair Market Value is not consistent with the then current
regulations of the Secretary of the Treasury, Fair Market Value shall be
determined in accordance with said regulations. The determination of Fair
Market Value shall be subject to adjustment as provided in Section 15.
n. "FUNDAMENTAL CHANGE" shall mean a dissolution or liquidation of
the Company, a sale of substantially all of the assets of the Company, a
merger or consolidation of the Company with or into any other corporation,
regardless of whether the Company is the surviving corporation, or a
statutory share exchange involving capital stock of the Company.
o. "INCENTIVE STOCK OPTION" means any Option designated as such and
granted in accordance with the requirements of Code Section 422 or any
successor to said section.
p. "NET EXERCISE" means the right of a Participant (the "Conversion
Right") to convert an Option or any portion thereof into Shares as provided
in this paragraph at any time or from time to time prior to its expiration,
subject to the restrictions set forth in this Plan. Upon exercise of the
Conversion Right with respect to a particular number of Shares subject to
an Option (the "Converted Option Shares"), the Company shall deliver to the
holder of the Option, without payment by the holder of any exercise price
or any cash or other consideration, that number of Shares equal to the
quotient obtained by dividing the Net Value (as hereinafter defined) of the
Converted Option Shares by the Fair Market Value of a single Share,
determined in each case as of the close of business on the Conversion Date
(as hereinafter defined). The "Net Value" of the Converted Option Shares
shall be determined by subtracting the aggregate purchase price of the
Converted Option Shares from the aggregate Fair Market Value of the
Converted Option Shares. Notwithstanding anything in this paragraph to the
contrary, the Conversion Right cannot be exercised with respect to a number
of Converted Option Shares having a Net Value below $100. No fractional
shares shall be issuable upon exercise of the Conversion Right, and if the
number of shares to be issued in accordance with the foregoing formula is
other than a whole number, the Company shall pay to the holder of the
Option an amount in cash equal to the Fair Market Value of the resulting
fractional share.
q. "NON-EMPLOYEE DIRECTOR" means a member of the Board who is
considered a non-employee director within the meaning of Exchange Act Rule
16b-3(i) or any successor definition.
r. "NON-STATUTORY STOCK OPTION" means an Option other than an
Incentive Stock Option.
s. "OPTION" means a right to purchase Stock, including both
Non-Statutory Stock Options and Incentive Stock Options.
A-5
<PAGE>
t. "OUTSIDE DIRECTOR" means a Director who is not an employee of the
Company or any affiliate.
u. "PARTICIPANT" means any salaried employee, and any officer,
director (including any director who is not an employee of the Company),
contractor or advisor to or representative of the Company or any Affiliate
thereof, whether or not such person is an employee of the Company within
the meaning of the Code; PROVIDED, HOWEVER, that salaried employees of the
Company or its Affiliates within the meaning of the Code (including any
such employee who is also an officer or director of the Company or any
Affiliate thereof) shall be the only persons eligible to receive Options
intended to constitute Incentive Stock Options.
v. "PLAN" means this Excelsior-Henderson Motorcycle Manufacturing
Company Amended and Restated 1995 Stock Plan, as amended from time to time.
w. "RESTRICTED STOCK" means Stock granted under Section 7 so long as
such Stock remains subject to such restrictions.
x. "RETIREMENT" as applied to a Participant, means (i) until such
time as the Company adopts an employee pension benefit plan (as that term
is defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974), termination of employment with the Company at any time upon or
after attaining age 65; or (ii) after adoption by the Company of an
employee pension benefit plan, termination of employment with the Company
at a time when the Participant is eligible for normal retirement under such
a plan, as amended from time to time, or any successor plan thereto.
y. "SHARE" means a share of Stock.
z. "STOCK" means the Common Stock, $.01 par value per share (as such
par value may be adjusted from time to time), of the Company.
aa. "SUBSIDIARY" means a "subsidiary corporation", as that term is
defined in Code Section 424(f) or any successor provision.
bb. "SUCCESSOR" means the legal representative of the estate of a
deceased Participant or the person or persons who may, by bequest or
inheritance, or pursuant to the terms of an Award or of forms submitted by
the Participant to the Committee pursuant to Section 19, acquire the right
to exercise an Option or Stock Appreciation Right or to receive cash or
Shares issuable in satisfaction of an Award in the event of a Participant's
death.
cc. "TERM" means the period during which an Option may be exercised
or the period during which the restrictions placed on Restricted Stock are
in effect.
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<PAGE>
dd. "TOTAL AND PERMANENT DISABILITY" as applied to a Participant,
means total and permanent disability within the meaning of Section 22(e)(3)
of the Code or any successor provision.
2. GENDER AND NUMBER.
Except when otherwise indicated by context, reference to the masculine
gender shall include, when used, the feminine gender and any term used in
the singular shall also include the plural.
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EXHIBIT 5
October 22, 1997
Board of Directors
Excelsior-Henderson Motorcycle Manufacturing Company
2675 Long Lake Road
Roseville, Minnesota 55113
In connection with the proposed registration under the Securities Act
of 1933, as amended, of shares of Common Stock of Excelsior-Henderson Motorcycle
Manufacturing Company, a Minnesota corporation (the "Company"), offered and to
be offered pursuant to the Excelsior-Henderson Motorcycle Manufacturing Company
Amended and Restated 1995 Stock Plan (the "Plan"), we have examined the
Company's Restated Certificate of Incorporation, its Amended and Restated
By-Laws, and such other documents, including the Registration Statement on Form
S-8, dated the date hereof, to be filed with the Securities and Exchange
Commission relating to such shares (the "Registration Statement"), and have
reviewed such matters of law as we have deemed necessary for this opinion.
Accordingly, based upon the foregoing, we are of the opinion that:
1. The Company is duly and validly organized and existing and in
good standing under the laws of the State of Minnesota.
2. The Company has duly authorized the issuance of the shares of
Common Stock which may be issued pursuant to the Plan.
3. The shares which may be issued pursuant to the Plan will be, upon
issuance, validly issued and outstanding and fully paid and nonassessable.
4. All necessary corporate action has been taken by the Company to
adopt the Plan, and the Plan is a validly existing plan of the Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Faegre & Benson LLP
FAEGRE & BENSON LLP
<PAGE>
EXHIBIT 23.2
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 17,
1997, (except with respect to Notes 4 and 6, as to which the date is May 22,
1997) included in Excelsior-Henderson Motorcycle Manufacturing Company's Form
S-1 Registration Statement No. 333-27789 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
October 22, 1997
<PAGE>
EXHIBIT 24
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Excelsior-Henderson
Motorcycle Manufacturing Company, a Minnesota corporation, does hereby make,
constitute and appoint Daniel L. Hanlon and David P. Hanlon, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's Amended and Restated 1995 Stock
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 17th day of October, 1997.
/s/ Wayne M. Fortun
-------------------------
Wayne M. Fortun
<PAGE>
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Excelsior-Henderson
Motorcycle Manufacturing Company, a Minnesota corporation, does hereby make,
constitute and appoint Daniel L. Hanlon and David P. Hanlon, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's Amended and Restated 1995 Stock
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 17th day of October, 1997.
/s/ David R. Pomije
-------------------------
David R. Pomije
