<PAGE>
As filed with the Securities and Exchange Commission on July 29, 1998
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.)
805 HANLON DRIVE 56011
BELLE PLAINE, MINNESOTA (Zip Code)
(Address of principal executive offices)
EXCELSIOR-HENDERSON MOTORCYCLE MANUFACTURING COMPANY
TEAM STOCK PURCHASE 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
805 Hanlon Drive
Belle Plaine, Minnesota 56011
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (612) 873-7000
----------------------
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, 300,000
$.01 par value shares $8.25 $2,475,000 $730.13
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
</TABLE>
(1) The Registration Statement relates to 300,000 shares of Common Stock
to be offered pursuant to the Registrant's Team Stock Purchase 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 July 22, 1998, 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 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 Annual Report on Form 10-K of Excelsior-Henderson
Motorcycle Manufacturing Company (the "Company") for the fiscal year
ended January 3, 1998 filed pursuant to Section 15(d) of the Exchange
Act (File No. 000-22765).
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (1) above (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 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 indicates that all of the shares of Common
Stock offered have been sold or which deregisters 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 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
II-1
<PAGE>
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.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4.1 Restated Articles of Incorporation of the Registrant, as Amended(1)
4.2 By-Laws of the Registrant(2)
4.3 Specimen of Common Stock(3)
4.4 Team Stock Purchase 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
</TABLE>
_________________________
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 filed with the Commission on May 23, 1997
(No. 333-27789).
(2) Incorporated by reference to Exhibit 3.3 to the Registrant's Amendment No.
1 to Registration Statement on Form SB-2 filed with the Commission on
July 23, 1996 (No. 333-05060C).
(3) Incorporated by reference to Exhibit 4.1 to the Registrant's Amendment No.
1 to Registration Statement on Form S-1 filed with the Commission on
June 27, 1997 (No. 333-27789).
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 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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Belle Plaine, State of Minnesota,
on July 29, 1998.
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 July 29, 1998.
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 A majority of the Board of Directors
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-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
------- ----------- ---------
<S> <C> <C>
4.1 Restated Articles of Incorporation of the Registrant, as Incorporated by
Amended(1) . . . . . . . . . . . . . . . . . . . . . . Reference
Incorporated by
4.2 By-Laws of the Registrant(2) . . . . . . . . . . . . . . Reference
Incorporated by
4.3 Specimen of Common Stock(3). . . . . . . . . . . . . . . Reference
4.4 Team Stock Purchase 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). . . . . . . . . . . . . . . . Filed Electronically
23.2 Consent of Arthur Andersen LLP . . . . . . . . . . . . . Filed Electronically
24 Powers of Attorney . . . . . . . . . . . . . . . . . . . Filed Electronically
</TABLE>
_______________________
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 filed with the Commission on May 23, 1997
(No. 333-27789).
(2) Incorporated by reference to Exhibit 3.3 to the Registrant's Amendment No.
1 to Registration Statement on Form SB-2 filed with the Commission on July
23, 1996 (No. 333-05060C).
(3) Incorporated by reference to Exhibit 4.1 to the Registrant's Amendment No.
1 to Registration Statement on Form S-1 filed with the Commission on June
27, 1997 (No. 333-27789).
II-5
<PAGE>
EXCELSIOR-HENDERSON
TEAM STOCK PURCHASE PLAN
1. PURPOSE AND SCOPE OF PLAN. The purpose of this Excelsior-Henderson
Team Stock Purchase Plan (the "Plan") is to provide the employees of Excelsior-
Henderson Motorcycle Manufacturing Company (the "Company") and its subsidiaries
with an opportunity to acquire a proprietary interest in the Company through the
purchase of its common stock and, thus, to develop a stronger incentive to work
for the continued success of the Company. The Plan is intended to be an
"employee stock purchase plan" within the meaning of Section 423(b) of the
Internal Revenue Code of 1986, as amended, and shall be interpreted and
administered in a manner consistent with such intent.
2. DEFINITIONS.
2.1. The terms defined in this section are used (and capitalized)
elsewhere in this Plan:
(a) "AFFILIATE" means each "subsidiary corporation" of the
Company, as defined in Section 424(f) of the Code or any successor
provision.
(b) "BOARD OF DIRECTORS" means the Board of Directors of the
Company.
(c) "CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
(d) "COMMITTEE" means two or more Disinterested Persons
designated by the Board of Directors to administer the Plan under
Section 13.
(e) "COMMON STOCK" means the common stock, par value $.01 per
share (as such par value may be adjusted from time to time), of the
Company.
(f) "COMPANY" means Excelsior-Henderson Motorcycle Manufacturing
Company.
(g) "COMPENSATION" means the base compensation, plus commissions
and overtime paid by the Company or any Affiliate to a Participant in
accordance with the terms of employment, but excluding any bonus
payments.
(h) "DISINTERESTED PERSONS" means a member of the Board of
Directors who is considered a disinterested person within the meaning
of Exchange Act Rule 16b-3 or any successor definition.
(i) "ELIGIBLE EMPLOYEE" means any employee of the Company or an
Affiliate whose customary employment is at least 20 hours per week;
provided, however, that
<PAGE>
"Eligible Employee" shall not include any person who would be deemed,
for purposes of Section 423(b)(3) of the Code, to own stock
possessing 5% or more of the total combined voting power or value of
all classes of stock of the Company.
(j) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
(k) "FAIR MARKET VALUE" of a share of Common Stock as of any
date means, if the Company's Common Stock is listed on a national
securities exchange or traded in the national market system, the
closing price for such Common Stock on such exchange or market on said
date, or, if no sale has been made on such exchange or market on said
date, on the last preceding day on which any sale shall have been
made. If such determination of Fair Market Value is not consistent
with the then current regulations of the Secretary of the Treasury
applicable to plans intended to qualify as an "employee stock purchase
plan" within the meaning of Section 423(b) of the Code, however, Fair
Market Value shall be determined in accordance with such regulations.
The determination of Fair Market Value shall be subject to adjustment
as provided in Section 14.
(l) "PARTICIPANT" means an Eligible Employee who has elected to
participate in the Plan in the manner set forth in Section 4.
(m) "PLAN" means this Excelsior-Henderson Team Stock Purchase
Plan, as amended from time to time.
(n) "PURCHASE PERIOD" means the period from August 1, 1998,
through January 2, 1999, and thereafter each period from the first day
of the fiscal year of the Company through the last day of the second
quarter of the fiscal year of the Company, and each period from the
first day of the third quarter of the fiscal year of the Company
through the last day of the fiscal year of the Company.
(o) "RECORDKEEPING ACCOUNT" means the account maintained in the
books and records of the Company recording the amount withheld from
each Participant through payroll deductions made under the Plan.
3. SCOPE OF THE PLAN. Shares of Common Stock may be sold by the Company
to Eligible Employees commencing August 1, 1998, as hereinafter provided, but
not more than 300,000 shares of Common Stock (subject to adjustment as provided
in Section 14) shall be sold to Eligible Employees pursuant to this Plan. All
sales of Common Stock pursuant to this Plan shall be subject to the same terms,
conditions, rights and privileges. The shares of Common Stock delivered by the
Company pursuant to this Plan may be acquired shares having the status of any
combination of authorized but unissued shares, newly issued shares, or treasury
shares.
2
<PAGE>
4. ELIGIBILITY AND PARTICIPATION. To be eligible to participate in the
Plan for a given Purchase Period, an employee must be an Eligible Employee on
the first day of such Purchase Period. An Eligible Employee may elect to
participate in the Plan by filing an enrollment form with the Company before the
first day of such Purchase Period that authorizes regular payroll deductions
from Compensation beginning with the first payday in such Purchase Period and
continuing until the Eligible Employee withdraws from the Plan or ceases to be
an Eligible Employee, as hereinafter provided.
5. AMOUNT OF COMMON STOCK EACH ELIGIBLE EMPLOYEE MAY PURCHASE.
5.1. Subject to the provisions of this Plan, each Eligible Employee
shall be offered the right to purchase on the last day of the Purchase
Period the number of shares of Common Stock (excluding fractional shares)
that can be purchased at the price specified in Section 5.2 with the entire
credit balance in the Participant's Recordkeeping Account; provided,
however, that the Fair Market Value (determined on the first day of any
Purchase Period) of shares of Common Stock that may be purchased by a
Participant during such Purchase Period shall not exceed the excess, if
any, of (i) $25,000 over (ii) the Fair Market Value (determined on the
first day of the relevant Purchase Period) of shares of Common Stock
previously acquired by the Participant in any prior Purchase Period ending
during such calendar year. Notwithstanding the foregoing, no Eligible
Employee shall be granted an option to acquire shares of Common Stock under
this Plan which permits the Eligible Employee's rights to purchase shares
of Common Stock under this Plan and all employee stock purchase plans of
the Company and the Affiliates to accrue at a rate which exceeds $25,000 of
Fair Market Value (determined at the time such option is granted) for each
calendar year in which such option is outstanding at any time. If the
purchases by all Participants would otherwise cause the aggregate number of
shares of Common Stock to be sold under the Plan to exceed the number
specified in Section 3, however, each Participant shall be allocated at a
ratable portion of the maximum number of shares of Common Stock which may
be sold.
5.2. The purchase price of each share of Common Stock sold pursuant to
this Plan will be the lesser of (a) or (b) below:
(a) 85% of the Fair Market Value of such share on the first day of
the Purchase Period.
(b) 85% of the Fair Market Value of such share on the last day of the
Purchase Period.
3
<PAGE>
6. METHOD OF PARTICIPATION.
6.1. The Company shall give notice to each Eligible Employee of the
opportunity to purchase shares of Common Stock pursuant to this Plan and
the terms and conditions for such offering. Such notice is subject to
revision by the Company at any time prior to the date of purchase of such
shares. The Company contemplates that for tax purposes the first day of a
Purchase Period will be the date of the offering of such shares.
6.2. Each Eligible Employee who desires to participate in the Plan for
a Purchase Period shall signify his or her election to do so by signing an
election form developed by the Committee. An Eligible Employee may elect
to have any whole percent of Compensation withheld, but not exceeding such
percentage as may be established for the Purchase Period by the Committee.
An election to participate in the Plan and to authorize payroll deductions
as described herein must be made before the first day of the Purchase
Period to which it relates and shall remain in effect unless and until such
Participant withdraws from the Plan, or ceases to be an Eligible Employee,
as hereinafter provided.
6.3. Any Eligible Employee who does not make a timely election as
provided in Section 6.2, shall be deemed to have elected not to participate
in the Plan. Such election shall be irrevocable for such Purchase Period.
7. RECORDKEEPING ACCOUNT.
7.1. The Company shall maintain a Recordkeeping Account for each
Participant. Payroll deductions pursuant to Section 6 will be credited to
such Recordkeeping Accounts on each payday.
7.2. No interest will be credited to a Participant's Recordkeeping
Account.
7.3. The Recordkeeping Account is established solely for accounting
purposes, and all amounts credited to the Recordkeeping Account will remain
part of the general assets of the Company.
7.4. A Participant may not make any separate cash payment into the
Recordkeeping Account.
8. RIGHT TO WITHDRAW.
8.1. At any time before the end of a Purchase Period, any Participant
may withdraw from the Plan. In such event, all future payroll deductions shall
cease and the entire credit balance in the Participant's Recordkeeping Account
will be paid to the Participant, without interest, as soon as administratively
practicable following the withdrawal. A Participant who withdraws from the Plan
will not be eligible to reenter the Plan until the next succeeding Purchase
Period.
4
<PAGE>
8.2. Notification of a Participant's election to withdraw from the
Plan shall be made by filing an appropriate form with the Company.
9. DISCONTINUATION OF EMPLOYMENT. If the employment of a Participant is
discontinued for any reason, including death, disability or retirement during
any Purchase Period, the Company shall refund in cash all amounts credited to
his or her Recordkeeping Account as soon as administratively practicable
following discontinuation of employment.
10. PURCHASE OF SHARES.
10.1. As of the last day of the Purchase Period, the entire credit
balance in each Participant's Recordkeeping Account will be used to
purchase shares (excluding fractional shares) of Common Stock (subject to
the limitations of Section 5).
10.2. Certificates for the number of whole shares of Common Stock,
determined as aforesaid, purchased by each Participant shall be issued and
delivered to him or her as soon as administratively practicable after the
end of each Purchase Period. No Certificates for fractional shares will be
issued. Instead, Participants will receive a cash distribution
representing any fractional shares.
11. RIGHTS AS A STOCKHOLDER. A Participant shall not be entitled to any
of the rights or privileges of a stockholder of the Company with respect to such
shares, including the right to receive any dividends which may be declared by
the Company, until (i) he or she actually has paid the purchase price for such
shares and (ii) certificates have been issued to him or her, both as provided in
Section 10.
12. RIGHTS NOT TRANSFERABLE. A Participant's rights under this Plan are
exercisable only by the Participant during his or her lifetime, and may not be
sold, pledged, assigned or transferred in any manner other than by will or the
laws of descent and distribution. Any attempt to sell, pledge, assign or
transfer the same shall be null and void and without effect. The amounts
credited to a Recordkeeping Account may not be assigned, transferred, pledged or
hypothecated in any way, and any attempted assignment, transfer, pledge,
hypothecation or other disposition of such amounts will be null and void and
without effect.
13. ADMINISTRATION OF THE PLAN. This Plan shall be administered by the
Committee, which is authorized to make such uniform rules as may be necessary to
carry out its provisions. The Committee shall determine any questions arising
in the administration, interpretation and application of this Plan, and all such
determinations shall be conclusive and binding on all parties.
14. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of any change
in the Common Stock of the Company by reason of stock dividends, split-ups,
corporate separations, recapitalizations, mergers, consolidations, combinations,
exchanges of shares and the like, the aggregate number and class
5
<PAGE>
of shares available under this Plan and the number, class and purchase price
of shares available but not yet purchased under this Plan, shall be adjusted
appropriately by the Committee.
15. REGISTRATION OF CERTIFICATES. Stock certificates will be registered
in the name of the Participant, or jointly in the name of the Participant and
another person, as the Participant may direct on an appropriate form filed with
the Company.
16. AMENDMENT OF PLAN. The Board of Directors may at any time amend this
Plan in any respect which shall not adversely affect the rights of Participants
pursuant to shares previously acquired under the Plan, except that, without
stockholder approval on the same basis, no amendment shall be made (i) to
increase the number of shares to be reserved under this Plan, (ii) to decrease
the minimum purchase price, or (iii) to change the definition of employees
eligible to participate in the Plan.
17. EFFECTIVE DATE OF PLAN. The Plan shall be effective August 1, 1998,
for the offering commencing August 1, 1998, and ending January 2, 1999, and
continuing on a semi-annual basis thereafter. All rights of Participants in any
offering hereunder shall terminate at the earlier of (i) the day that
Participants become entitled to purchase a number of shares of Common Stock
equal to or greater than the number of shares remaining available for purchase
or (ii) at any time, at the discretion of the Board of Directors, after 30 days'
notice has been given to all Participants. Upon termination of this Plan,
shares of Common Stock shall be purchased and issued to Participants in
accordance with Section 10, and cash, if any, remaining in the Participants'
Recordkeeping Accounts shall be refunded to them, as if the Plan were terminated
at the end of a Purchase Period.
18. GOVERNMENTAL REGULATIONS AND LISTING. All rights granted or to be
granted to Eligible Employees under this Plan are expressly subject to all
applicable laws and regulations and to the approval of all governmental
authorities required in connection with the authorization, issuance, sale or
transfer of the shares of Common Stock reserved for this Plan, including,
without limitation, there being a current registration statement of the Company
under the Securities Act of 1933, as amended, covering the shares of Common
Stock purchasable on the last day of the Purchase Period applicable to such
shares, and if such a registration statement shall not then be effective, the
term of such Purchase Period shall be extended until the first business day
after the effective date of such a registration statement, or post-effective
amendment thereto. If applicable, all such rights hereunder are also similarly
subject to effectiveness of an appropriate listing application to a national
securities exchange or a national market system, covering the shares of Common
Stock under the Plan upon official notice of issuance.
19. MISCELLANEOUS.
19.1. This Plan has been approved by the stockholders of the
Company on July 25, 1998.
19.2. This Plan shall not be deemed to constitute a contract of
employment between the Company and any Participant, nor shall it interfere
with the right of the Company to discontinue
6
<PAGE>
the employment of any Participant and treat him or her without regard to
the effect which such treatment might have upon him or her under this Plan.
19.3. Wherever appropriate as used herein, the masculine gender
may be read as the feminine gender, the feminine gender may be read as the
masculine gender, the singular may be read as the plural and the plural may
be read as the singular.
19.4. The Plan, and all agreements hereunder, shall be construed
in accordance with and governed by the laws of the State of Minnesota.
19.5. Delivery of shares of Common Stock or of cash pursuant to
the Plan shall be subject to required withholding taxes, if any. A person
entitled to receive shares of Common Stock may, as a condition precedent to
receiving such shares, be required to pay the Company a cash amount equal
to the amount of any required withholdings.
7
<PAGE>
FAEGRE & BENSON LLP
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
612-336-3000
July 29, 1998
Board of Directors
Excelsior-Henderson Motorcycle Manufacturing Company
805 Hanlon Drive
Belle Plaine, Minnesota 56011
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 Team Stock Purchase Plan (the "Plan"), we have examined
the Company's Restated Articles of Incorporation, as amended, 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,
FAEGRE & BENSON LLP
<PAGE>
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 February 19, 1998
included in Excelsior-Henderson Motorcycle Manufacturing Company's Form 10-K for
the year ended January 3, 1998 and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
July 29, 1998
<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 29th day of July, 1998.
/s/ Daniel L. Hanlon
--------------------------------
Daniel L. Hanlon
<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 29th day of July, 1998.
/s/ David P. Hanlon
--------------------------------
David P. Hanlon
<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 29th day of July, 1998.
/s/ John B. Donahue
-----------------------------
John B. Donahue
<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 29th day of July, 1998.
/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 29th day of July, 1998.
/s/ David R. Pomije
----------------------------
David R. Pomije
