Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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HARLEY-DAVIDSON, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1382325
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3700 West Juneau Avenue
Milwaukee, Wisconsin 53208
(Address of principal executive offices) (Zip Code)
Harley-Davidson, Inc. 1998 Non-Exempt Employee Stock Option Plan
(Full title of the plan)
Gail A. Lione
Vice President, General Counsel and Secretary
Harley-Davidson, Inc.
3700 West Juneau Avenue
Milwaukee, Wisconsin 53208
(414) 343-4680
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
- ---------------- ------------- ---------------- ------------------ ------------
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Offering Registration
be Registered Registered(1) Per Share Price Fee
- ---------------- ------------- ---------------- ------------------ ------------
Common Stock,
$.01 par value 30,000 shares $56.40625(2) $1,692,187.5(2) $470.43
Preferred Stock
Purchase Rights 3,750 rights (3) (3) (3)
- ---------------- -------------- --------------- ------------------ ------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate number of additional shares of
Common Stock (and related Preferred Stock Purchase Rights) that may become
issuable as a result of stock splits, stock dividends, or similar
transactions pursuant to the anti-dilution provisions of the 1998
Non-Exempt Employee Stock Option Plan.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purposes of calculating the registration fee based on the average
of the high and low prices of Harley-Davidson, Inc. Common Stock on the New
York Stock Exchange consolidated reporting system on March 24, 1999.
(3) The value attributable to the Preferred Stock Purchase Rights is reflected
in the market price of the Common Stock to which the Rights are attached.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Harley-Davidson, Inc. (the "Company")
with the Commission are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
2. All other reports filed since December 31, 1998 by the Company
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended.
3. The description of the Company's Common Stock and Preferred Stock
Purchase
Rights contained in Item 4 of the Registration of Securities of Certain
Successor Issuers on Form 8-B, dated June 21, 1991 (File No. 1-8193), including
any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Harley-Davidson, Inc. 1998 Non-Exempt Employee Stock Option Plan
(the "Plan") provides that, in addition to such other rights of indemnification
as they may have as members of the Board of Directors of the Company (the
"Board"), or the Human Resources Committee of the Board (the "Committee"), the
members of the Committee and the Board shall be indemnified by the Company
against all costs and expenses reasonably incurred by them in connection with
any action, suit or proceeding to which they or any of them may be party by
reason of any action taken or failure to act in connection with the adoption,
administration, amendment or termination of the Plan, and against all amounts
paid by them in settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except a
judgment based upon a finding of bad faith; provided that upon the institution
of any such action, suit or proceeding a Committee or Board member shall, in
writing, give the Company notice thereof and an opportunity, at its own expense,
to handle and defend the same before such Committee or Board member undertakes
to handle and defend it on such member's own behalf.
Article V of the Company's By-Laws requires that the Company shall, to
the fullest extent permitted or required by Sections 180.0850 to 180.0859,
inclusive, of the Wisconsin Business Corporation Law, including any amendments
thereto (but in the case of any such amendment, only to the extent such
amendment permits or requires the corporation to provide broader indemnification
rights than prior to such amendment), indemnify its Directors and Officers
against any and all liabilities, and advance any and all reasonable expenses,
incurred thereby in any proceedings to which any such Director or Officer is a
party because he or she is or was a Director or Officer of the Company. The
Company shall also indemnify an employee who is not a Director or Officer, to
the extent that the employee has been successful on the merits or otherwise in
defense of a proceeding, for all expenses incurred in the proceeding if the
employee was a party because he or she is or was an employee of the Company. The
rights to indemnification granted under the By-Laws shall not be deemed
exclusive of any other rights to indemnification against liabilities or the
advancement of expenses which a Director, Officer or employee may be entitled
under any written agreement, Board resolution, vote of shareholders, the
Wisconsin Business Corporation Law or otherwise. The Company may, but shall not
be required to, supplement the foregoing rights to indemnification against
liabilities and advancement of expenses under this paragraph by the purchase of
insurance on behalf of any one or more of such Directors, Officers or employees,
whether or not the Company would be obligated to indemnify or advance expenses
to such Director, Officer or employee under this paragraph. All capitalized
terms used in this paragraph and not otherwise defined herein shall have the
meaning set forth in Section 180.0850 of the Wisconsin Business Corporation Law.
The Company maintains a liability insurance policy for its directors
and officers as permitted by Wisconsin law which may extend to, among other
things, liability arising under the Securities Act of 1933, as amended.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed herewith or incorporated herein by reference are set
forth in the attached Exhibit Index.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended;
(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;
(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
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, 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 such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act 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
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this 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 Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant 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
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on February 19, 1999.
HARLEY-DAVIDSON, INC.
By: /s/ Jeffrey L. Bleustein
Jeffrey L. Bleustein
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of February 19, 1999, by the
following persons in the capacities indicated. Each person whose signature
appears below constitutes and appoints James M. Brostowitz, James L. Ziemer and
Gail A. Lione, and each of them individually, his or her attorneys-in-fact and
agents, with full power of substitution and resubstitution for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Signatures Title
/s/ Jeffrey L. Bleustein
- --------------------------------- Chairman, Chief Executive Officer and
Jeffrey L. Bleustein Director (Principal Executive Officer)
/s/ James L. Ziemer
- --------------------------------- Vice President and Chief Financial Officer
James L. Ziemer (Principal Financial Officer)
/s/ James M. Brostowitz
- --------------------------------- Vice President, Controller and Treasurer
James M. Brostowitz (Principal Accounting Officer)
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/s/ Barry K. Allen Director
- ---------------------------------
Barry K. Allen
/s/ Richard I. Beattie Director
- ---------------------------------
Richard I. Beattie
/s/ Richard J. Hermon-Taylor Director
- ---------------------------------
Richard J. Hermon-Taylor
/s/ Donald A. James Director
- ---------------------------------
Donald A. James
/s/ Richard G. Le Fauve Director
- ---------------------------------
Richard G. LeFauve
/s/ Sara L. Levinson Director
- ---------------------------------
Sara L. Levinson
/s/ James A. Norling Director
- ---------------------------------
James A. Norling
/s/ Richard F. Teerlink Director
- ---------------------------------
Richard F. Teerlink
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EXHIBIT INDEX
Harley-Davidson, Inc. 1998 Non-Exempt Employee Stock Option Plan
Exhibit No. Exhibit
(4.1) Harley-Davidson, Inc. 1998 Non-Exempt Employee Stock Option Plan.
(4.2) Form of Rights Agreement between the Registrant and Firstar Trust
Company (incorporated by reference herein to Exhibit 4.6 to the
Registrant's Quarterly Report on Form 10-Q for the period ended
September 30, 1990 (File No. 1-9183)).
(4.3) Amendment to Rights Agreement dated as of June 21, 1991 (incorporated
by reference herein to Exhibit 4.8 to the Registrant's Registration
Statement on Form 8-B, dated June 24, 1991 (File No. 1-9183)).
(4.4) Amendment to Rights Agreement dated as of August 23, 1995 (incorporated
by reference herein to Exhibit 4 to the registrant's Quarterly Report
on Form 10-Q for the period ended September 24, 1995 (File No.
1-9183)).
(4.5) Amendment to Rights Agreement dated as of February 19, 1999
(incorporated by reference to Exhibit 4.4 to the Registrant's Current
Report on Form 8-K dated February 18, 1999 (File No. 1-9183)).
(5) Opinion of Foley & Lardner
(23.1) Consent of Ernst & Young LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit (5) hereto)
8
Exhibit 4.1
HARLEY-DAVIDSON, INC.
1998 NON-EXEMPT EMPLOYEE
STOCK OPTION PLAN
ARTICLE I
PURPOSE
The purpose of the Harley-Davidson, Inc. Kansas City Non-Exempt
Employees Stock Option Plan is to provide a one-time stock option grant to
full-time, regular production and maintenance employees of Harley-Davidson Motor
Company ("Harley") employed as of December 9, 1998 and who work at the Kansas
City facility. The stock option grant satisfies the obligations of Harley under
the Labor Agreement covering the Kansas City facility, dated January 31, 1997
between Harley, the International Association of Machinists and the United
Paperworkers International Union (now known as the Paper, Allied-Industrial,
Chemical Energy Workers International Union).
ARTICLE II
DEFINITIONS
The following capitalized terms used in the Plan shall have the
respective meanings set forth in this Article:
2.1. Board: The Board of Directors of Harley-Davidson, Inc.
2.2. Code: The Internal Revenue Code of 1986, as amended.
2.3. Committee: The Human Resources Committee of the Board.
2.4. Common Stock: The common stock of Harley-Davidson, Inc.
2.5. Company: Harley-Davidson, Inc. and any of its Subsidiaries.
2.6. Disability: Disability within the meaning of Section 22(e)(3)
of the Code, as determined by the Committee.
2.7. Employer: Harley-Davidson Motor Company.
2.8. Fair Market Value: The average of the high and low reported sales
prices of Common Stock on the New York Stock Exchange Composite Tape on the
date for which fair market value is being determined.
2.9. Non-ISO: A stock option which is not an incentive stock option
within the meaning of Section 422 of the Code.
2.10. Option: A stock option granted under the Plan.
2.11 Option Price: The purchase price of a share of Common Stock under
an Option.
2.12 Optionee: A person who has been granted one or more Options.
2.13 Parent Corporation: The parent corporation, as defined in Section
424(e) of the Code.
2.14 Plan: The Harley-Davidson, Inc. Kansas City Non-Exempt Employee
Stock Option Plan.
<PAGE>
2.15 Retirement: Retirement on or after age sixty-two or, with the
consent of the Committee, at an earlier age.
2.16 Subsidiary: A corporation, limited partnership, general
partnership, limited liability company, business trust or other entity of
which more than fifty percent (50%) of the voting power or ownership
interest is directly and/or indirectly held by Harley-Davidson, Inc.
2.17 Termination Date: A date fixed by the Committee but not later than
the day preceding the tenth anniversary of the date on which the Option is
granted.
ARTICLE III
ADMINISTRATION
3.1. The Committee shall administer the Plan and shall have full power
to grant Options, construe and interpret the Plan, establish and amend rules and
regulations for its administration, and perform all other acts relating to the
Plan, including the delegation of administrative responsibilities, which it
believes reasonable and proper.
3.2. Subject to the provisions of the Plan, the Committee shall, in its
discretion, determine who shall be granted Options, the number of shares subject
to option under any such Options, the dates after which Options may be
exercised, in whole or in part, and the terms and conditions of the Options.
3.3. Any decision made, or action taken, by the Committee arising out
of or in connection with the interpretation and administration of the Plan shall
be final and conclusive.
ARTICLE IV
SHARES SUBJECT TO THE PLAN
4.1. The total number of shares of Common Stock available for grants of
Options under the Plan shall be 30,000.
ARTICLE V
ELIGIBILITY
5.1. Options may be granted to all full time, regular, production and
maintenance employees of Harley-Davidson Motor Company covered by the Kansas
City Labor Agreement, dated January 31, 1997 between Harley-Davidson Motor
Company and the International Association of Machinists and the United
Paperworkers International Union.
ARTICLE VI
TERM OF OPTIONS
6.1. Option Agreements: All Options shall be evidenced by written
agreements executed by the Company. Such Options shall be subject to the
applicable provisions of the Plan, and shall contain such provisions as are
required by the Plan and any other provisions the Committee may prescribe. All
agreements evidencing Options shall specify the total number of shares subject
to each grant, the Option Price and the Termination Date. All Options shall be
Non-ISOs.
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6.2. Option Price: The Option Price shall be set by the Committee;
provided, however, that the price per share shall not be less than the Fair
Market Value of a share of Common Stock on the date the Option is granted.
6.3. Period of Exercise: The Committee shall determine the dates after
which Options may be exercised in whole or in part. If Options are exercisable
in installments, installments or portions thereof that are exercisable and not
exercised shall accumulate and remain exercisable. The Committee may also amend
an Option to accelerate the dates after which Options may be exercised in whole
or in part. However, no Option or portion thereof shall be exercisable after the
Termination Date.
6.4. Manner of Exercise and Payment: An Option, or portion thereof,
shall be exercised by delivery of a written notice of exercise to the Company
and payment of the full price of the shares being purchased pursuant to the
Option. An Optionee may exercise an Option with respect to less than the full
number of shares for which the Option may then be exercised, but an Optionee
must exercise the Option in full shares of Common Stock. The price of Common
Stock purchased pursuant to an Option, or portion thereof, may be paid:
a. in United States dollars in cash or by check, bank draft or money
order payable to the order of the Company.
b. through the delivery of shares of Common Stock with an aggregate
Fair Market Value on the date of exercise equal to the Option Price, or
c. by any combination of the above methods of payment.
The Committee shall determine acceptable methods for tendering Common Stock as
payment upon exercise of an Option and may impose such limitations and
prohibitions on the use of Common Stock to exercise an Option as it deems
appropriate, including, without limitation, any limitation or prohibition
designed to avoid certain accounting consequences which may result from the use
of Common Stock as payment upon exercise of an Option.
6.5 Withholding Taxes: The Company may, in its discretion, require an
Optionee to pay to the Company at the time of exercise the amount that the
Company deems necessary to satisfy its obligation to withhold Federal, state or
local income or other taxes incurred by reason of the exercise. Upon or prior to
the exercise of an Option requiring tax withholding, an Optionee may make a
written election to have shares of Common Stock withheld by the Company from the
shares otherwise to be received. The number of shares so withheld shall have an
aggregate Fair Market Value on the date of exercise sufficient to satisfy the
applicable withholding taxes. The acceptance of any such election by an Optionee
shall be at the sole discretion of the Committee.
6.6 Nontransferability of Options: Each Option shall, during the
Optionee's lifetime, be exercisable only by the Optionee and neither it nor any
right hereunder shall be transferable otherwise than by will or the laws of
descent and distribution or be subject to attachment, execution or other similar
process. In the event of any attempt by the Optionee to alienate, assign,
pledge, hypothecate or otherwise dispose of an Option or of any right hereunder,
except as provided for herein, or in the event of any levy or any attachment,
execution or similar process upon the rights or interest hereby conferred, the
Company may terminate the Option by notice to the Optionee and the Option shall
thereupon become null and void.
6.7 Cessation of Employment of Optionee:
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a. Cessation of Employment other than by Reason of Retirement,
Disability or Death. Except as maybe otherwise provided by the
Committee, if an Optionee shall cease to be employed by the Company
otherwise than by reason of Retirement, Disability, or death, then (i)
each Option held by the Optionee that is not vested shall terminate on
the date of cessation of employment, and (ii) the Optionee shall have a
period of two months from the date of cessation of employment to
exercise each Option held by the Optionee that is vested, to the extent
not previously exercised. At the end of such two-month period, each
such Option that has not been exercised shall terminate.
b. Cessation of Employment by Reason of Retirement or Disability. If an
Optionee shall cease to be employed by the Company by reason of
Retirement or Disability, each Option held by the Optionee shall remain
exercisable, to the extent it was exercisable at the time of cessation
of employment, until the earliest of:
i. the Termination Date,
ii. the death of the Optionee, or such later date not more
than one year after the death of the Optionee as the Committee, in its
discretion, may provide pursuant to Section 6.9(c) of the Plan,
iii. the third anniversary of the date of the cessation of the
Optionee's employment, if employment ceased by reason of Retirement, or
iv. the first anniversary of the date of the cessation of the
Optionee's employment by reason of Disability;
and thereafter all such Options shall terminate together with all
rights hereunder, to the extent not previously exercised.
c. Cessation of Employment by Reason of Death. In the event of the
death of the Optionee while employed by the Company, an Option may be
exercised at any time or from time to time prior to the earlier of the
Termination Date or the first anniversary of the date of the Optionee's
death, by the person or persons to whom the Optionee's rights under
each Option shall pass by will or by the applicable laws of descent and
distribution, to the extent that the Optionee was entitled to exercise
such Option on the Optionee's date of death. In the event of the death
of the Optionee while entitled to exercise an Option pursuant to
Section 6.9(b), the Committee, in its discretion, may permit such
Option to be exercised at any time or from time to time prior to the
Termination Date during a period of up to one year from the death of
the Optionee, as determined by the Committee, by the person or persons
to whom the Optionee's rights under each Option shall pass by will or
by the applicable laws of descent and distribution, to the extent that
the Option was exercisable at the time of cessation of the Optionee's
employment. Any person or persons to whom an Optionee's rights under an
Option have passed by will or by the applicable laws of descent and
distribution shall be subject to all terms and conditions of the Plan
and the Option applicable to the Optionee.
ARTICLE VII
ADJUSTMENTS
7.1 If (a) the Company shall at any time be involved in a transaction
to which Section 424(a) of the Code is applicable; (b) the Company shall declare
a dividend payable in, or shall subdivide or combine, its Common Stock; or (c)
any other event shall occur which in the judgment of the Committee necessitates
an adjustment to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan, then the Committee may,
in such manner as it may deem equitable, adjust any or all of (i) the number and
type of securities subject to the Plan and which thereafter may be the subject
of Options; (ii) the number and type of securities subject to outstanding
Options; (iii) the
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Option Price with respect to any Option; and (iv) the number of shares of Common
Stock that may be issued pursuant to Options granted to an Optionee in any
calendar year. The judgment of the Committee with respect to any matter referred
to in this Article shall be conclusive and binding upon each Optionee.
ARTICLE VIII
AMENDMENT AND TERMINATION OF PLAN
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8.1. The Board may at any time, or from time to time, suspend or
terminate the Plan in whole or in part or amend it in such respects as the Board
may deem appropriate.
8.2. No amendment, suspension or termination of this Plan shall,
without the Optionee's consent, alter or impair any of the rights or obligations
under any Option theretofore granted to an Optionee under the Plan.
8.3. The Board may amend this Plan, without the limitation, in such
manner as it deems necessary to permit the granting of Options meeting the
requirements of future amendments or issued regulations, if any, to the Code.
ARTICLE IX
GOVERNMENT AND OTHER REGULATIONS
9.1. The obligation of the Company to issue or transfer and deliver
shares for Options exercised under the Plan shall be subject to all applicable
laws, regulations, rules, orders and approvals which shall then be in effect and
required by governmental entities and the stock exchanges on which Common Stock
is traded.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Plan Does Not Confer Employment or Shareholder Rights: The right
of the Employer to terminate (whether by dismissal, discharge, retirement or
otherwise) the Optionee's employment with it at any time at will, or as
otherwise provided by any agreement between the Company and the Optionee, is
specifically reserved. Neither the Optionee nor any person entitled to exercise
the Optionee's rights in the event of the Optionee's death shall have any rights
of a shareholder with respect to the shares subject to each Option, except to
the extent that, and until, such shares shall have been issued upon the exercise
of each Option.
10.2 Plan Expenses: Any expenses of administering this Plan shall be
borne by the Company.
10.3 Use of Exercise Proceeds: Payments received from Optionees upon
the exercise of Options shall be used for the general corporate purposes of the
Company, except that any stock received in payment may be retired, or retained
in the Company's treasury and reissued.
10.4 Indemnification: In addition to such other rights of
indemnification as they may have as members of the Board or the Committee of the
Company, the members of the Board and the Committee shall be indemnified by the
Company against all costs and expenses reasonably incurred by them in connection
with any action, suit or proceeding to which they or any of them may be party by
reason of any action taken or failure to act under or in connection with the
Plan or any Option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except a judgment based upon a finding
of bad faith; provided that upon the institution of any such action, suit or
proceeding a Board member or the Committee shall, in writing, give the Company
notice thereof and an opportunity, at its own expense, to handle and defend the
same before such Board member or Committee undertakes to handle and defend it on
such member's own behalf.
ARTICLE XI
EFFECTIVE DATE
11.1. The Plan shall become effective when it is approved by the
Board.
Exhibit 5
FOLEY & LARDNER
ATTORNEYS AT LAW
CHICAGO FIRSTAR CENTER SACRAMENTO
DENVER 777 EAST WISCONSIN AVENUE SAN DIEGO
JACKSONVILLE MILWAUKEE, WISCONSIN 53202-5367 SAN FRANCISCO
LOS ANGELES TELEPHONE (414) 271-2400 TALLAHASSEE
MADISON FACSIMILE (414) 297-4900 TAMPA
MILWAUKEE WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
CLIENT/MATTER NUMBER
037166/0172
March 26, 1999
Harley-Davidson, Inc.
3700 West Juneau Avenue
Milwaukee, Wisconsin 53208
Ladies and Gentlemen:
We have acted as counsel for Harley-Davidson, Inc., a Wisconsin
corporation (the "Company"), in conjunction with the preparation of a Form S-8
Registration Statement (the "Registration Statement") to be filed by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), relating to 30,000 shares of the Company's
common stock, $0.01 par value (the "Common Stock"), and related Preferred Stock
Purchase Rights (the "Rights"), which may be issued pursuant to the
Harley-Davidson, Inc. 1998 Non-Exempt Employee Stock Option Plan. The terms of
the Rights are as set forth in that certain Form of Rights Agreement, dated as
of August 6, 1990, as amended, by and between the Company and Firstar Bank, N.A.
(as successor to Firstar Trust Company) (the "Rights Agreement").
We have examined: (i) the Plan; (ii) the Registration Statement; (iii)
the Rights Agreement; (iv) the Company's Restated Articles of Incorporation and
Bylaws, as amended to date; (v) resolutions of the Company's Board of Directors
relating to the Plan; and (vi) such other documents and records as we have
deemed necessary to enable us to render this Opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of the
State of Wisconsin.
2. The Common Stock, when delivered from treasury and paid for in the
manner set forth in the Plan, will be validly issued, fully paid and
nonassessable and no personal liability will attach to the ownership thereof,
except with respect to wage claims of employees of the Company for services
performed not to exceed six (6) months service in any one case, as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law.
3. The Rights to be issued with the Common Stock when issued pursuant
to the terms of the Rights Agreement will be validly issued.
<PAGE>
Harley-Davidson, Inc.
March 26, 1999
Page 2
We consent to the use of this opinion as an Exhibit to the Registration
Statement. In giving our consent, we do not admit that we are "experts" within
the meaning of Section 11 of the Securities Act or within the category of
persons whose consent is required by Section 7 of said Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8, pertaining to the Harley-Davidson, Inc. 1998 Non-Exempt Employee Stock
Option Plan, of our report dated January 16, 1999, with respect to the
consolidated financial statements and schedules of Harley-Davidson, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Milwaukee, Wisconsin
March 26, 1999
