Exhibit 10.3
HARLEY-DAVIDSON, INC.
1995 STOCK OPTION PLAN
(as amended through April 28, 2007)
ARTICLE I
PURPOSE
The purpose of the Harley-Davidson, Inc. 1995 Stock Option Plan is to provide favorable opportunities for certain selected employees of Harley-Davidson, Inc. and its subsidiaries to purchase or receive shares of Common Stock of Harley-Davidson, Inc., or to benefit from the appreciation thereof. Such opportunities should provide an increased incentive for these employees to contribute to the future success and prosperity of Harley-Davidson, Inc., thus enhancing the value of the stock for the benefit of the shareholders, and increase the ability of Harley-Davidson, Inc. to attract and retain individuals of exceptional skill upon whom, in large measure, its sustained progress, growth and profitability depend.
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 CAUSE: (i) the Optionee’s conviction of a felony or a plea by the Optionee of no contest to a felony, (ii) willful misconduct on the part of the Optionee that is materially and demonstrably detrimental to the Company, (iii) the Optionee’s willful refusal to perform requested duties consistent with his or her office, position or status with the Company (other than as a result of his or her physical or mental disability) or (iv) other conduct or inaction that the Company determines in its discretion constitutes Cause. With respect to clauses (ii), (iii) and (iv) of this definition, Cause shall be determined by the senior human resources officer of the Company. All determinations of such officer under this definition shall be final. |
| 2.3 CODE: The Internal Revenue Code of 1986, as amended. |
| 2.4. COMMITTEE: The Human Resources Committee of the Board; provided that if any member of the Human Resources Committee is not both a Disinterested Person and Outside Director, the Committee shall be comprised of only those members of the Human Resources Committee who are both Disinterested Persons and Outside Directors. |
| 2.5. COMMON STOCK: The common stock of Harley-Davidson, Inc. |
| 2.6. COMPANY: Harley-Davidson, Inc. and any of its Subsidiaries. |
| 2.7. DISABILITY: Disability within the meaning of Section 22(e)(3) of the Code, as determined by the Committee. |
| 2.8. DISINTERESTED PERSONS: Non-employee directors within the meaning of Rule 16b-3 as promulgated under the Securities Exchange Act of1934, as amended. |
| 2.9. EMPLOYER: The entity that employs the employee or Optionee. |
| 2.10. FAIR MARKET VALUE: (From and after February 14, 2007) Per share of Common Stock on the date as of which Fair Market Value is being determined, if the Common Stock is listed for trading on the New York Stock Exchange, the closing sales price on the date in question as reported in The Wall Street Journal, or if no sales of Common Stock occur on the date in question, on the last preceding date on which there was a sale on such exchange. |
| 2.11. ISO: An incentive stock option within the meaning of Section 422 of the Code and which is designated as an incentive option by the Committee. |
| 2.12. NON-ISO: A stock option which is not an ISO. |
| 2.13. OPTION: A stock option granted under the Plan. Options include both ISOs and Non-ISOs. |
| 2.14. OPTION PRICE: The purchase price of a share of Common Stock under an Option. |
| 2.15. OPTIONEE: A person who has been granted one or more Options. |
| 2.16. OUTSIDE DIRECTORS: Outside Directors within the meaning of Section 162(m) of the Code and the regulations promulgated thereunder. |
| 2.17. PARENT CORPORATION: The parent corporation, as defined in Section 424(e) of the Code. |
| 2.18. PLAN: The Harley-Davidson, Inc. 1990 Stock Option Plan. |
| 2.19. RETIREMENT: Termination of employment from the Company (i) on or after age sixty-two (62); (ii) for reasons other than Cause, on or after age fifty-five (55) if the Optionee has completed five (5) years of service with the Company at the time of such termination; or (iii) with the consent of the Committee, under other circumstances. For purposes of this definition, an Optionee’s years of service with the Company shall be determined in the same manner as is specified in the Retirement Annuity Plan for Salaried Employees of Harley-Davidson (as it may be amended), whether or not the Optionee is covered under such plan. |
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| 2.20. 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 the Harley-Davidson, Inc. |
| 2.21. 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, the dates after which Options may be exercise, in whole or in part, whether Options shall be ISOs, 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. |
| 3.4 To the extent permitted by applicable law, the Committee may, in its discretion, delegate to the Chief Executive Officer of the Company any or all of the authority and responsibility of the Committee under the Plan to grant Options to employees of the Company or its affiliates and/or persons who have been engaged to become employees of the Company or its affiliates, in each case other than employees who are, or persons engaged to become employees who upon employment will be, subject to the provisions of Section 16 of the Securities and Exchange Act of 1934, as amended, at the time any such delegated authority or responsibility is exercised. To the extent that the committee has delegated to the Chief Executive Officer the authority and responsibility of the Committee, all references to the Committee in the Plan other than in this Section 3.4 shall include the Chief Executive Officer with respect to the matters delegated. No such delegation shall preclude the Committee from exercising the authority and responsibility delegated. |
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 15,200,000; provided that Options for not more than 800,000 shares of Common Stock shall be granted to an Optionee in any calendar year under the Plan, which amount shall be reduced by the amount of Common Stock subject to options granted to such Optionee in such calendar year under any other stock option plan of the Company. The foregoing amounts shall be subject to adjustment in accordance with Article VIII of the Plan. If an Option or portion thereof shall expire, be canceled or terminate for any reason without having been exercised in full, the unpurchased shares covered by such Option shall be available for future grants of Options. An Option, or portion thereof, exercised through the exercise of a stock appreciation right pursuant to Section 6.7 of the Plan shall be treated, for the purposes of this Article, as though the Option, or portion thereof, had been exercised through the purchase, that was so exercised shall not be available for future grants of Options. |
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ARTICLE V
ELIGIBILITY
| 5.1. Options may be granted to key employees of the Company or to persons who have been engaged to become key employees of the Company. Key employees will comprise, in general, those who contribute to the management, direction and overall success of the Company, including those who are members of the Board. Members of the Board who are not employees of the Company shall not be eligible for Option grants. |
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. Those Options that comply with the requirements for an ISO set forth in Section 422 of the Code and are designated ISOs by the Committee shall be ISOs and all other Options shall be Non-ISOs. |
| 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. |
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| 6.4. SPECIAL RULES REGARDING ISOS GRANTED TO CERTAIN EMPLOYEES: Notwithstanding any contrary provisions of Sections 6.2 and 6.3 of the Plan, no ISO shall be granted to any employee who, at the time the Option is granted, owns (directly or indirectly, within the meaning of Section 424(d) of the Code) more than ten percent of the total combined voting power of all classes of stock of the Employer or of any Subsidiary or Parent Corporation thereof, unless (a) the Option Price under such Option is at least 110 percent of the Fair Market Value of a share of Common Stock on the date the Option is granted and (b) the Termination Date of such Option is a date not later than the day preceding the fifth anniversary of the date on which the Option is granted. |
| 6.5. 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 provision (in a manner acceptable to the Committee) for payment of the full price of the shares being purchased pursuant to the Option and any withholding taxes due thereon. |
| 6.6. TAXES: |
| a. | WITHHOLDING TAXES. The Company is entitled to withhold the amount of any tax attributable to any amount payable or Common Stock delivered or deliverable under this Plan, and the Company may defer making payment or delivery if any such tax may be pending unless and until indemnified to its satisfaction. An Optionee shall satisfy the federal, state and local withholding tax obligations arising in connection with an Option in a manner acceptable to the Committee. |
| b. | NO GUARANTEE OF TAX TREATMENT. The Company does not guarantee to any Optionee or any other person with an interest in an Option that any Option intended to be exempt from Code Section 409A shall be so exempt, or that any Option intended to comply with Code Section 409A shall so comply, and nothing in this Plan obligates the Company or any affiliate to indemnify, defend or hold harmless any individual with respect to the tax consequences of any such failure |
| 6.7. STOCK APPRECIATION RIGHTS: At or after the grant of an Option, the Committee, in its discretion, may provide an Optionee with an alternate means of exercising an Option, or a designated portion thereof, by granting the Optionee a stock appreciation right. A “stock appreciation right”: is a right to receive, upon exercise of an Option or any portion thereof, in the Committee’s sole discretion, an amount of cash equal to, and/or shares of Common Stock having a Fair Market Value on the date of exercise equal to, the excess of the Fair Market Value of a share of Common Stock on the date of exercise over the Option Price, multiplied by the number of shares of Common Stock that the Optionee would have received had the Option or portion thereof been exercised through the purchase of shares of Common Stock at the Option Price, provided that (a) such Option or portion thereof has been designated as exercisable in this alternative manner, (s) such Option or portion thereof is otherwise exercisable, and (c) the Fair Market Value of a share of Common Stock on the date of exercise exceeds the Option Price. |
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| 6.8. NONTRANSFERABILITY OF OPTIONS: Except as may otherwise be provided by the Committee, 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 other wise 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. Transfers of Options under the Plan pursuant to any judgment, decree, or order (including approval of a property settlement agreement) which relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and is made pursuant to a State domestic relations law (including a community property law) and satisfies, to the extent applicable, the provisions of Internal Revenue Code Section 414(p) are allowed. |
| 6.9. CESSATION OF EMPLOYMENT OF OPTIONEE: |
| a. | CESSATION OF EMPLOYMENT OTHER THAN BY REASON OF RETIREMENT, DISABILITY OR DEATH. Except as may be 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, (i) each Option held by the Optionee, together with all rights thereunder, that is not vested shall terminate on the date of cessation of employment, to the extent not previously exercised and (ii) the Optionee shall have a period of 90 days from the date of cessation of employment to exercise each Option held by the Optionee that is vested on the date of cessation of employment. At the end of such 90-day period, each such Option that has not been exercised, together with all rights thereunder, shall terminate, to the extent not previously exercised. |
| 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, |
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| 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; |
| v. | 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 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 shall pass by will of 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 person 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 condition of the plan and the Option applicable to the Optionee. |
| 6.10. NOTIFICATION OF SALES OF COMMON STOCK: Any Optionee who disposes of shares of Common Stock acquired upon the exercise of an ISO either (a) within two years after the date of the grant of the ISO under which the stock was acquired or (b) within one year after the transfer of such shares to the Optionee, shall notify the Company of such disposition and of the amount realized upon such disposition. |
ARTICLE VII
LIMITATIONS AND ACCELERATIONS ON EXERCISABILITY
| 7.1. Notwithstanding any other provision of this Plan, in the case of an ISO, the aggregate Fair Market Value (determined at the time the ISO is granted) of the shares of Common Stock with respect to which all “incentive stock options” (within the meaning of Section 422 of the Code) are first exercisable by the Optionee during any calendar year (under this Plan and under all other incentive stock option plans of the Employer, any Subsidiary and any Parent Corporation) shall not exceed $100,000. |
| 7.2. Each Option granted under the Plan shall become vested and immediately exercisable upon a Change of Control Event, whether or not the Option was theretofore exercisable. For purposes of this Section 7.2: |
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| (a) | “Change of Control Event” means any one of the following: |
| (i) Continuing Directors no longer constitute at least two-thirds of the Directors constituting the Board; |
| (ii) any person or groups (as defined in Rule 13d-5 under the Securities Exchange Act of 1934, as amended (“Exchange Act”)), together with its affiliates, becomes the beneficial owner, directly or indirectly, of 20% or more of Harley-Davidson, Inc.‘s then outstanding Common Stock or 20% or more of the voting power of Harley-Davidson, Inc.‘s Directors; |
| (iii) the approval by Harley-Davidson, Inc.‘s stockholders of the merger or consolidation of Harley-Davidson, Inc. with any other corporation, the sale of substantially all of Harley-Davidson, Inc.‘s assets or the liquidation or dissolution of Harley-Davidson, inc., unless, in the case of a merger or consolidation, the Continuing Directors in office immediately prior to such merger or consolidation constitute at least two-thirds of the directors constituting the board of directors of the surviving corporation of such merger or consolidation and any parent (as defined in Rule 12b-2 under the Exchange Act) of such corporation; or |
| (iv) at least two-thirds of the Continuing Directors who are Disinterested Persons in office immediately prior to any other action proposed to be taken by Harley-Davidson, Inc.‘s stockholders or by the Board determine that such proposed action, if taken, would constitute a change of control of Harley-Davidson, Inc. and such action is taken. |
| Notwithstanding the foregoing, with respect to a grant of an Option that is deferred compensation subject to Code Section 409A, the term “Change of Control Event” as defined above shall be deemed amended to conform to the definition provided in guidance, rules or regulations promulgated by the Internal Revenue Service in construing Code Section 409A; and |
| (b) | “Continuing Director” means any individual who is either: |
| (i) a member of the Board on the date hereof or |
| (ii) a member of the Board whose election or nomination to the Board was approved by a Vote of at least two-thirds (2/3) of the Continuing Directors (other than a person whose election was as a result of an actual or threatened proxy or other control contest). |
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ARTICLE VIII
ADJUSTMENTS
| 8.1. If (a) the Company shall at any time be involved in a merger or other transaction in which the Common Stock is changed or exchanged; or (b) the Company shall subdivide or combine its Common Stock or the Company shall declare a dividend payable in its Common Stock, other securities (other than any associated preferred stock purchase rights issued pursuant to that certain Rights Agreement, dated February 17, 2000, between the Company and ComputerShare Investor Services, LLC, as successor rights agent, or similar stock purchase rights that the Company might authorize and issue in the future) or other property; or (c) the Company shall effect a cash dividend the amount of which exceeds 15% of the trading price of the Common Stock at the time the dividend is declared or any other dividend or other distribution on the Common Stock in the form of cash, or a repurchase of Common Stock, that the Board determines by resolution is special or extraordinary in nature or that is in connection with a transaction that the Company characterizes publicly as a recapitalization or reorganization involving the Common Stock; or (d) any other event shall occur which, in the case of this clause (d), 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 or an Award, then the Committee shall, 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 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; provided, however, that each such adjustment, in the case of ISOs, shall be made in such manner as not to constitute a “modification” within the meaning of Section 424(h)(3) of the Code. Unless the Committee determines otherwise, any such adjustment to an Option that is exempt from Code Section 409A shall be made in manner that permits the Option to continue to be so exempt, and any adjustment to an Option that is subject to Code Section 409A shall be made in a manner that complies with the provisions thereof. The judgment of the Committee with respect to any matter referred to in this Article shall be conclusive and binding upon each Optionee. |
ARTICLE IX
AMENDMENT AND TERMINATION OF PLAN
| 9.1. 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, provided, however, that no such amendment shall be made, which would, without approval of the shareholders: |
| a. | materially modify the eligibility requirements for receiving Options; |
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| b. | increase the aggregate number of Shares of Common Stock which may be issued pursuant to Options granted under the Plan, except as is provided for in accordance with Article VIII of the Plan; |
| c. | increase the number of shares of Common Stock which may be issued pursuant to Options granted to an Optionee in any calendar year, except as is provided for in accordance with Article VIII of the plan; |
| d. | reduce the minimum Option Price, except as is provided for in accordance with Article VIII of the Plan; |
| e. | extend the period of granting Options; or |
| f. | materially increase in any other way the benefits accruing to Optionees. |
| 9.2. 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, but the Committee need not obtain Optionee (or other interested party) consent for the cancellation of an Award pursuant to the provisions of Section 8.1, the modification of an Option to the extent deemed necessary to comply with any applicable law or the listing requirements of any principal securities exchange or market on which the Common Stock is then traded, to preserve favorable accounting treatment of any Option for the Company, or the adoption, amendment or rescission of rules and regulations relating to this Plan that do not materially and adversely affect the Optionee in respect of any Option then outstanding |
| 9.3. The Board may amend this Plan, subject to the limitations cited above, 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. |
| 9.4. The provisions of Code Section 409A are incorporated herein by reference to the extent necessary for any Option that is subject to Code Section 409A to comply therewith. |
ARTICLE X
GOVERNMENT AND OTHER REGULATIONS
| 10.1. 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. |
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ARTICLE XI
MISCELLANEOUS PROVISIONS
| 11.1. 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. |
| 11.2. PLAN EXPENSES: Any expenses of administering this Plan shall be borne by the Company. |
| 11.3. 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. |
| 11.4. INDEMNIFICATION: In addition to such other rights of indemnification as they may have as members of the Board, or 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 nay 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 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 XII
SHAREHOLDER APPROVAL AND EFFECTIVE DATES
| 12.1. The Plan shall become effective when it is approved by the shareholders of Harley-Davidson, Inc. at a shareholders meeting by the requisite vote under New York Stock Exchange Rules, Internal Revenue Code Section 162(m) and Rule 16b-3 under the Securities Exchange Act of 1934. Options may not be granted under the Plan after April 26, 2005. |
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