Exhibit 10.1
HARLEY-DAVIDSON,
INC.
DEFERRED COMPENSATION PLAN FOR
NONEMPLOYEE DIRECTORS
(As Amended and Restated
Effective January 1, 2009)
Concept
Harley-Davidson, Inc. (the
“Company”) created this Plan, effective as of
May 1, 1995, to assist nonemployee directors of the Company to
defer income, other than income payable under the Harley-Davidson,
Inc. Director Stock Plan (the “Stock Plan”), until
retirement, death, or other cessation of service as member of the
Board of Directors of the Company. The Plan is amended and restated
effective January 1, 2009, to conform the terms of the Plan
with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”).
Administrator
The Nominating and Corporate
Governance Committee of the Board of Directors of the Company is
the Administrator of the Plan.
Definitions
a. Affiliate : Each
corporation, trade or business that, with the Company, forms part
of a controlled group of corporations or group of trades or
businesses under common control within the meaning of Code Sections
414(b) or (c); provided that for purpose of determining when a
nonemployee director has incurred a Separation from Service, the
phrase “at least fifty percent (50%)” shall be used in
place of “at least eighty percent (80%)” each place it
appears in Code Section 414(b) and (c) and the
regulations thereunder.
b. Board : The Board of
Directors of the Company.
c. Change of Control Event
:
i. For purposes of distribution of
the Pre-2005 Deferred Benefit Account, a change of control event as
defined in Schedule A.
ii. For purposes of distribution of
the Post-2004 Deferred Benefit Account, a change of control event
as defined in regulations promulgated by the Secretary of the
Treasury for purposes of Code Section 409A, with respect to
Harley-Davidson, Inc.
d. Separation from Service :
The date on which a nonemployee director ceases service as a
director of the Company and all Affiliates, provided that such
cessation of service constitutes a separation from service for
purposes of Code Section 409A.
Eligibility
Directors of the Company who are not
employees of the Company (“nonemployee directors”) are
eligible under the Plan.
Participation Requirements
A nonemployee director must complete
a Deferred Compensation Agreement in order to defer compensation
under the Plan. A nonemployee director who executes a Deferred
Compensation Agreement is referred to as a participant until all of
his or her benefits hereunder are paid in full.
Compensation
Deferral
A Deferred Compensation Agreement
under the Plan will not apply to compensation that a nonemployee
director elects to receive in the form of shares of common stock of
the Company under Section 7.1 of the Stock Plan. Each Deferred
Compensation Agreement must specify the percentage of the
participant’s Annual Retainer Fee that would otherwise be
paid in cash and that is to be deferred, which percentage may be
one hundred percent (100%), fifty percent (50%), or none. For
purposes of the Plan, the term “Annual Retainer Fee”
means the annual retainer fee then in effect for service by the
participant as a director, board committee chair and/or committee
member.
a. Initial Deferral Election
. A nonemployee director may make an initial deferral election
within 30 days of the date on which he or she first becomes a
nonemployee director. If a nonemployee director does not make a
deferral election during this period, the director will be deemed
to have made a deferral election to defer none of the cash portion
of the director’s Annual Retainer Fee. A nonemployee
director’s initial deferral election (i) must be in
writing and delivered to the Treasurer of the Company,
(ii) shall apply with respect to the portion of the
director’s Annual Retainer Fee that is to be paid in cash and
that will be earned on and after the date the Treasury of the
Company receives the election, and (iii) shall remain in
effect from year-to-year thereafter unless modified or revoked by a
subsequent deferral election that becomes effective in accordance
with the provisions hereof.
b. Revised Deferral Election
. Except to the extent that the Company is permitted and elects to
give earlier effect to a nonemployee director’s modification
or revocation to his or her deferral election in accordance with
regulations promulgated by the Secretary of the Treasury under Code
Section 409A, a nonemployee director’s deferral
election, once effective with respect to a calendar year, may not
be revoked or modified for that calendar year. A nonemployee
director may revoke or modify his or her then current deferral
election by filing a revised deferral election form, properly
completed and signed, with the Treasurer of the Company. However,
except to the extent that the Company is permitted and elects to
give earlier effect to a nonemployee director’s revised
election in accordance with regulations promulgated by the
Secretary of the Treasury under Code Section 409A, the revised
deferral election will become effective on January 1 of the
calendar year following the calendar year during which the revised
deferral election is received and accepted by the Treasurer of the
Company, or as soon thereafter as is administratively practicable.
A nonemployee director’s revised deferral election, once
effective, shall remain in effect until again modified by the
nonemployee director or otherwise revoked in accordance with the
provisions hereof.
2
Deferred Benefit Account
The Company will establish on its
books a Deferred Benefit Account for each nonemployee director
executing a Deferred Compensation Agreement. Deferred compensation
shall be credited to this account as of the date on which such
compensation is deemed to accrue to the nonemployee director.
Distributions shall be charged to this account as they are made. A
nonemployee director’s Deferred Benefit Account shall consist
of the following subaccounts, if applicable:
a. Pre-2005 Deferred Benefit
Account . The portion of a nonemployee director’s
Deferred Benefit Account that is attributable to the cash portion
of the Annual Retainer Fee that would have been paid to the
nonemployee director prior to January 1, 2005 except for the
nonemployee director’s deferral election, together with any
deemed investment gain or loss thereon.
b. Post-2004 Deferred Benefit
Account . The portion of a nonemployee director’s
Deferred Benefit Account that is attributable to the cash portion
of the Annual Retainer Fee that would otherwise be paid to the
nonemployee director after December 31, 2004 except for the
nonemployee director’s deferral election, together with any
deemed investment gain or loss thereon.
Participant Investment
Directions
Prior to July 1, 2001, interest
at the Plan’s interest rate was credited to the account of
each nonemployee director as of the last day of each month.
Interest was calculated by applying the Plan’s interest rate
to the balances of the account on such date including distributions
to be deducted on that date. The Plan’s interest rate meant,
for each 12 consecutive calendar months ending after
September 1, the Moody’s Long Term Bond Rate in effect
on such September 1 (or the last business day immediately
preceding such date if it is a Saturday, Sunday, or holiday)
divided by 12.
Effective July 1, 2001, each
nonemployee director’s Deferred Benefit Account shall be
deemed to be invested in investment options made available by the
Administrator and selected by the nonemployee director, in
accordance with Administrator rules and procedures uniformly
applied.
The Administrator shall select and
may prospectively change the investment options to be available for
participant investment direction under the Plan and the number of
times each year (not less than one) that participants may change
investment directions. Any new or revised participant investment
direction, completed in accordance with Administrator rules, shall
apply to a participant’s entire Deferred Benefit Account. The
authorized representative of a deceased participant’s estate
may provide investment directions after the death of the
participant and in accordance with the provisions of the
Plan.
No Trust Fund
Created
A participant’s Deferred
Benefit Account is a means of measuring the value of the
participant’s deferred compensation. The account does not
create a trust fund of any kind. Any assets earmarked by the
Company to pay benefits under the Plan do at all times remain with
the Company. A participant has no property interest in specific
assets of the Company because of the Plan. The rights of the
participant, or an estate, to benefits under the Plan shall be
solely those of an unsecured creditor of the Company.
Statement of
Account
Following the close of each year the
Company will provide statements of account to each
participant.
3
Distribution of Pre-2005 Deferred Benefit
Account
Upon cessation of a nonemployee
director’s service as a director of the Company for any
reason, or upon the occurrence of a Change of Control Event, the
Company will make payments to the nonemployee director (or, in case
of the death of the nonemployee director, to his or her beneficiary
designated in accordance with the Plan or, if no such beneficiary
is designated, to his or her estate), as compensation for prior
service as a director, in respect of the nonemployee
director’s Pre-2005 Deferred Benefit Account.
a. Form of Payments: A
nonemployee director may elect to have payments in respect of the
Pre-2005 Deferred Benefit Account made either in (i) a single
payment, or (ii) annual installments; provided, however, that
if a nonemployee director making a deferral election under the Plan
has elected to defer stock compensation under the Harley Davidson,
Inc. Director Stock Plan (the “Stock Plan”), then that
nonemployee director must elect a payment option with respect to
the nonemployee director’s Pre-2005 Deferred Benefit Account
under the Plan that provides the same timing of deferred payments
as the payment option elected with respect to the nonemployee
director’s Pre-2005 Deferral Share Account under the Stock
Plan. Under the installment payment option, at the time a
nonemployee director makes his or her initial deferral election, or
thereafter in accordance with Plan rules, the nonemployee director
may select (subject to the proviso in the immediately preceding
sentence) the number of years over which benefits are to be paid to
the nonemployee director, up to a maximum of 5 years. The payment
option elected shall apply to the nonemployee director’s
entire Pre-2005 Deferred Benefit Account. The installment payment
option does not apply upon the occurrence of a Change of Control
Event. A nonemployee director who fails to make any payment
election with respect to his or her Pre-2005 Deferred Benefit
Account under the Plan and has not made a payment election with
respect to the nonemployee director’s Pre-2005 Deferral Share
Account under the Stock Plan shall be deemed to have elected the
single payment option. A nonemployee director who fails to make any
payment election with respect to his or her Pre-2005 Deferred
Benefit Account under the Plan but has made a payment election with
respect to the nonemployee director’s Pre-2005 Deferral Share
Account under the Stock Plan will be deemed to have elected under
the Plan the same payment option with respect to the nonemployee
direct
