Harley-Davidson Performance Groups Bylaws

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HARLEY-DAVIDSON MOTOR COMPANY PERFORMANCE GROUPS

ARTICLE I – PURPOSE

• The purpose of the Harley-Davidson Motor Company 20 Group (the “Group”) is to (a) provide a forum by which the Members (as defined below) may confidentially exchange the experiences, problems, solutions, and ideas of their respective Dealerships (as defined below) at regular meetings, (b) receive from NCM Associates, Inc. (“NCM”) on a periodic basis aggregated operating data from the Dealerships, and (c) receive from NCM other educational materials and services.
• Prohibited Activities. It is expressly not the purpose of the Group to represent Members in any discussions or negotiations with any of their respective employers or with manufacturers, suppliers, service providers or any other third parties. The Group will not engage in lobbying.

ARTICLE II – ANTITRUST COMPLIANCE

• Generally. The Group is committed to complying with all applicable antitrust laws. To that end, membership is the Group limited so that the Dealerships are in different geographic regions and are not competitors with one another. Nonetheless, the Group has adopted the following rules governing Member conduct to help prevent unintentional violations of the antitrust laws. Members shall:

• Avoid any agreement on prices or other terms and conditions of sale that might directly or indirectly affect prices;
• not discuss what your Dealership intends to do about prices, and more importantly, not suggest that others follow your lead;
• avoid any agreement to collectively refuse to deal with or to collectively negotiate with particular customers or suppliers (including manufacturers); and
• not try to induce manufacturers to take actions to disadvantage a particular competitor or a group of competitors.
• No Concerted Action. Each Member desires to enhance the performance of its Dealership through individual dealership decisions and actions and the Members shall not enter into any agreement, express or implied, to take coordinated or cooperative actions, whether in connection with buying or selling either goods or services, including actions against or with respect to vehicle manufacturers.

ARTICLE III – MEMBERS

• Number. The number of members of the Group (individually, a “Member” and collectively, the “Members”) ideally will be between twenty (20) and twenty-four (24).
• Eligibility. To be eligible for membership in the Group, a person must be the dealer principal or GM of a Harley-Davidson Motor Company or equivalent of a Harley-Davidson Motor Company-franchised dealership (individually, a “Dealership” and collectively, the “Dealerships”).
• Duties. Each Member must:
  • Prepare in advance and to contribute ideas and experiences for the benefit of the Group at its scheduled meetings; and
  • maintain regular attendance at the scheduled meetings according to ARTICLE V.
• Termination of Membership. A Member’s membership in the Group shall terminate upon the following events:
  • the termination of Member’s employment with the Dealership;
  • in accordance with Section 4 or ARTICLE X; or
  • the vote of at least two-thirds (2/3rds) of the other Members present at a meeting at which a quorum is present.

In the case of a membership termination pursuant to Sections 3.4(a), the Member (based on his employment with another dealership) may apply for membership in accordance with Section 3.5.

A member may terminate his/her membership in the Group at any time by notifying NCM, in writing, of their desire to do so. Termination will become effective at the close of the month during which such notice was received by NCM. The member shall be responsible for payment of any outstanding billings unless waived or abated by mutual agreement between the member and NCM.

• Admission of Members.
• Any Member may refer the name of a prospective member (a “Prospect”) to the Executive Committee and NCM. The Executive Committee and/or NCM will contact the Prospect to ascertain the Prospect’s interest. If the Prospect is interested, NCM will provide information about the Group and request specific financial statements of the Dealership and other applicable information from the Prospect, which information will be processed by NCM and forwarded to the Executive Committee.
• The Dealership associated with the Prospect should:
  • Be in a market area of like volume to make comparison valid, informative and useful;
  • be in a market that does not compete with any other Member’s Dealership;
  • have a profitable operation commensurate with the area’s performance and, if possible, equal or superior to the Group average; and
  • be situated in such a location that the membership of this Group is geographically distributed so as to obtain broad, non-overlapping representation.

• If the Executive Committee desires to proceed further, the Executive Committee will instruct NCM to (i) notify the Members and provide information regarding the Prospect, and (ii) if no objections are received from the Members within three (3) business days, invite the Prospect to the next meeting on a “let’s look each other over” basis (meaning that the Group is not committed to offering membership to the Prospect and the Prospect is not committed to accepting such offer).
• Only the Executive Committee may authorize inviting a Prospect to a Group meeting. No Member shall invite a Prospect to a Group meeting.
• If the Prospect is unanimously approved by the Members, NCM shall convey an offer of membership in the Group to the Prospect and provide a reasonable time for the Prospect to accept or decline the offer. If the Prospect is not unanimously approved by the Members, NCM shall notify the Prospect that the Group declined to offer membership in the Group to the Prospect.
• If the Prospect accepts the offer of membership within the prescribed time, agrees to be bound by these Bylaws and executes such other documents as then required by the Group, the Prospect shall become a Member of the Group and be responsible for all personal expenses and a prorated share of Group expenses for the meeting attended. If the Prospect declines the offer, the offer shall be rescinded.

ARTICLE IV – CO-MEMBERS

• Generally. Member may desire that another person from the Member’s Dealership be admitted as Co-Member of the Group. If such other person is admitted as a Co-Member, the roster will designate a Co-Member with the use of the “/” symbol (e.g., Member name/Co-Member name). Except as set forth in this ARTICLE IV, references to Member in these Bylaws shall include Co-Members.
• Qualifications. To qualify for consideration to election as a Co-Member, a candidate must meet all of the qualifications of a Member.
• Admission.
• Co-Member status may be granted in three separate instances:
  • • At the Group’s organizational meeting;
    • upon original application of membership and request by Prospect; or
    • upon sponsorship from a current Member.

• In the case of a Co-Member candidate being sponsored by a Member, such candidate, must attend (subject to the prior approval of the Executive Committee) three (3) Group meetings accompanied by the sponsoring Member and thereafter, the sponsoring Member may request of the Executive Committee that a vote be taken at the next meeting. If the Executive Committee recommends that a vote be taken, NCM will notify the Members that a vote will be held on the membership of the candidate at the next Group meeting. The membership of the candidate will be granted only by unanimous, affirmative vote of the Members present at that meeting provided a quorum is present.
• A Co-Member shall have all rights of a Member (including the right to attend meetings, hold office and vote); provided, however that a Co-Member may vote and shall be counted for quorum purposes only if the associated Member is not in attendance at the meeting.
• It is strongly suggested that a Co-Member and the associated Member not alternate attendance at meetings.
• Co-Members must inform NCM of the intent to attend by registering on the NCM Client Portal in order that Group functions and meeting rooms may be properly planned.
• Succession. If the Member associated with a Co-Member voluntarily terminates, the Co-Member shall automatically become a Member. If the membership of the Member associated with a Co-Member is involuntarily terminated, the membership of the Co-Member shall automatically terminate.
• Financial Responsibility. When any expense of the Group is to be divided proportionately, each Member shall be allocated a share equal to the number of persons attending on behalf of that Member (including the Member and, if applicable, the Co-Member) divided by the total number of persons attending, unless otherwise agreed by the Members.

ARTICLE V – MEETINGS OF THE MEMBERS

• Eligibility for Attendance.
• Except as set forth in Section 1(b) or otherwise permitted by the unanimous approval of all Members of the Group, only the following will be permitted to attend general sessions of the Group:
  • Members;
  • Representatives of NCM; and
  • A Prospect, after complying with the proper procedure as outlined in Section 5(c) or Co-Member candidate, with the approval of the Executive Committee.

• In addition, the following will be permitted to attend general sessions of the Group with the prior approval of the Chair at least thirty (30) days in advance of the meeting, in which case the Chair shall inform NCM of the approval:
  • A supervisory or managerial-level employee of a Member’s Dealership, if accompanying the Member;
  • A relative of a Member, if accompanying the Member, provided such individual is active in the Dealership;
  • Special guests who have been invited to make a presentation to the Group, but only for such guest’s presentation;
  • An employee of a Member’s Dealership, but only for purposes of assisting the Member during a presentation and only for the presentation;
  • An employee of a Member’s Dealership, but only for purposes of hearing an agenda topic of specific interest to such employee and only for that portion of the meeting; and
  • Any special guest, such as a factory representative, etc., previously approved by the Executive Committee to attend a specific portion of a meeting but only for that portion of the meeting.
  • Only Members shall be entitled to attend business sessions of the Group.
• Meetings will be held [3] times per year as scheduled by the Members and NCM.
• Subject to Section 4.4(a) as it relates to Co-Members, (a) two-thirds (2/3rds) of the Members, shall constitute a quorum at a meeting of the Group, (b) the vote of the majority of the Members present at a meeting at which a quorum is present shall be the act of the Group, unless a larger vote is required by these Bylaws, and (c) in all matters coming before the Group, each Member shall be entitled to cast one (1) vote.
• Required Attendance.
• The success of the Group depends upon consistent attendance at all scheduled meetings, but the Group understands that there will be occasions when a Member cannot attend a meeting.
• Except as set forth in Section 4(e), if a Member fails to attend two meetings during a two-year period, the Member’s attendance record, together with the circumstances causing the absences, will be reviewed by the Executive Committee, and the Executive Committee may recommend action, which may include the termination of the Member’s membership in the Group. The approval of such recommendation shall require the approval of the Members at any meeting of Members held within one (1) year of the second of such two (2) absences.
• Except as set forth in Section 4(e), if a Member fails to attend three consecutive meetings, the Member’s membership shall be terminated unless this provision is waived by a two-thirds vote of the Members.
• A Member shall be deemed to have failed to attend any meeting if such Member is not present for the entire meeting (i.e., until the meeting is adjourned).
• If:
  • A Co-Member attends a Group meeting in the stead of an associated Member, the Member shall not be deemed absent.
  • A Member’s failure to attend a Group meeting as a result of a conflict with a meeting of a manufacturer National Dealer Council or the National Dealers Association that the Member is required to attend shall not be counted, provided that proper advance written notification is made to the Chair.
• Members shall give advance notice to NCM and the Chair should they be unable to attend a meeting (or a part of a meeting) or other Group activity in order to permit proper advance planning of agenda and scheduled activities. The Member should also forward to the Chair those materials, documents and assignments as requested in the meeting agenda.

ARTICLE VI – EXECUTIVE COMMITTEE

• Composition; Succession. The Executive Committee is comprised of a Chairperson (the “Chair”), a senior member and a junior member. Upon the death, resignation or removal of the Chair, the senior member shall succeed to the office of Chair, the junior member shall succeed to the office of senior member and the Members shall elect a new junior member. If the office of senior member shall otherwise become vacant, it shall be filled by the junior member. If the office of junior member shall otherwise become vacant, it shall be filled by vote of the Members.
• Any Executive Committee member can be removed from the Executive Committee by a two-thirds vote of all Members present at a meeting of the Group at which a quorum is present.
• Purpose and Authority. The Executive Committee shall serve as the steering committee of the Group, shall be the liaison between the Group and NCM, and shall have the other duties set forth in these Bylaws. The Executive Committee shall have the authority to investigate and rule on any alleged violations of these Bylaws.
• Duties. The Chair shall preside at all meetings of the Group and the Executive Committee and shall see that all orders and resolutions of the Group and the Executive Committee are carried into effect. In the absence of the Chair, the other members of the Executive Committee, in order of their seniority, may perform the duties and exercise the powers of the Chair with the same force and effect as if performed by the Chair.
• Quorum. A majority of the Executive Committee shall constitute a quorum for the transaction of business. The vote of the majority of the members of the Executive Committee present at a meeting at which a quorum is present shall be the act of the Executive Committee. In all matters coming before the Executive Committee, each member of the Executive Committee shall be entitled to cast one (1) vote.
• Remote Communications. The members of the Executive Committee may participate in a meeting of the Executive Committee by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation in a meeting in this manner shall constitute presence in person at the meeting.
• Written Consent. Any action which is required to be or may be taken at a meeting of the Executive Committee may be taken without a meeting if consents in writing, setting forth the action so taken, are signed by all of the members of the Executive Committee. The consents shall have the same force and effect as a unanimous vote at a meeting duly held, and may be stated as such in any certificate or document.

ARTICLE VII – INFORMATION REPORTING PROCEDURES

• Submission of Financial Statements. Each month, each Member shall submit to NCM true and correct financial statements of such Member’s Dealership in the agreed upon form. The Members understand and agree that it is the responsibility of the Member, and not NCM, to make any adjustments necessary in the Member’s financial statements so that they are in the agreed upon form.
• Supplemental Information. In order for the Composite to be more meaningful and more valuable to the Members, it may include certain statistical data and computations based upon information not available from the standard financial statement. In those cases, each Member will properly prepare and submit to NCM the appropriate supplemental information.
• Timing of Submission; Late Fee. To be assured of inclusion in the monthly Composite, a Member’s financial statement or approved reporting form and any required supplemental information must be received in NCM’s office no later than noon (Central time) 48 hours prior to the group’s scheduled run date. If the submissions are not received in NCM’s office by the required date, the delinquent Member shall be assessed the costs of reprinting and distributing any requested updated Composite.
• Repeated Failure. If a Member repeatedly fails to submit financial information in a timely manner, such failures will be reviewed by the Executive Committee, and the Executive Committee may recommend action, which may include the termination of the Member’s membership in the Group in accordance with Section 4(c).

ARTICLE VIII – INFORMATION SECURITY

• NCM uses a variety of security technologies and procedures, including the use of encryption tools such as the Secure Socket Layer (SSL) protocol, to help protect the financial and other Dealership data provided to NCM by Members from unauthorized access, use or disclosure. While no method of safeguarding is 100 percent secure, NCM will use reasonable commercial efforts to secure such information, with reasonable and customary protections against unauthorized access, use or disclosure. All information provided to NCM shall be subject to NCM’s Data Privacy Policy, as amended from time to time.
• Confidential Information.
• All entity-identifying information furnished by, to, or about a Member, or Prospect or Dealership and all entity-identifiable meeting statistics and monthly Composites are considered and acknowledged to be of a confidential nature (“Confidential Information”) and Members shall disclose such Confidential Information only to Members and authorized persons in attendance at a meeting (“Authorized Persons”). Specifically (without limiting the generality of the foregoing), Members shall not disclosure any entity-identifying information to any non-employee or any manufacturer, vendor, or factory personnel; to any trade association; or in or to any publication.
• If a Member chooses to make use of Confidential Information, the Member bears full responsibility for maintaining information security. Upon termination from membership (regardless of the reason), all Confidential Information must be either returned to NCM or destroyed, and each such terminated Member, upon request, will certify to such return or destruction.
• For purposes hereof, “entity-identifying” information is any information which directly, or through reasonable inference, allows a recipient of the information to identify the reporting entity that furnished the information.

ARTICLE IX – NCM SERVICES

• Monthly Composites. NCM will prepare a comparative financial composite (a “Composite”), from the financial information submitted monthly by each Member with respect to the Member’s Dealership.
• Financial Statistics. NCM shall present pertinent financial data and related statistics revealing and indicating trends of strength and weakness in certain areas of operation of the Members.
• Special Studies. From time to time, NCM will conduct and provide the Members special studies regarding one aspect or department of operations.
• Inter-Group Communications. From time to time, NCM will share ideas or programs (other than advertising and promotional ideas and programs) generated within another group (without disclosing the identity of the source).
• Meeting Arrangements. NCM will schedule dates and work directly with the facility hosting the event with respect to the arrangements for that meeting. Blanket reservations will be made by NCM and will include all specific arrangements for food/beverage, meeting room, and a block of individual rooms. Members will be responsible for securing a room and paying any required deposits.
• Fees to NCM. The fees for NCM’s services are based upon a monthly or quarterly rate. Members will be invoiced at the beginning of each month or calendar quarter for the services provided during that timeframe. This invoice requires immediate payment. The billing is based upon the number of Members (but not including Co-Members) listed on the Group’s roster as of the last business day of the month or quarter immediately preceding the period being billed, increasing in amount if the membership falls below 8.

ARTICLE X – NO HIRE

• The Members desire that the Group should provide a forum for the free exchange of ideas, but the Members recognize that if Members are free to solicit and hire employees of other Members, such exchange will be limited. Accordingly, it is the policy of the Group that no employee of a Member’s Dealership will be hired by another Member’s Dealership while he/she is employed by such other member or within a six-month period following termination of employment. There may be an exception to this policy if both members are in agreement prior to any phone or personal interview, and only if a letter or release is given to the employee by the first member, with copies mailed to the second (hiring) member and to the Executive Committee, stating this exception beforehand.
• Violation of this no-hire policy, if it is determined by the Executive Committee to have occurred, will be a basis for termination of the violating member’s membership. The determination of whether the no-hire policy has been violated and the consequences for the violating member shall be within the discretion of the Executive Committee.

ARTICLE XI – AMENDMENTS

These Bylaws may be amended only by the unanimous vote of the Members.

ARTICLE XII – FINANCIAL RESPONSIBILITY TO NCM

• Each Member’s acceptance of membership in the Group constitutes such Member’s agreement to reimburse NCM for such Member’s proportionate fees and expenses of the Group and if a Member or former Member defaults in such obligation, the other Members agree to contribute their proportionate share of the delinquent amount, in which case NCM shall assign to such remaining Members NCM’s claims for recovery of such amounts from the defaulting Member or former Member.
• Cash Advances and Pro Rata Billings. Monies for meeting room expenses, Group meals, related Group activities, and other designated expenses are ordinarily advanced by NCM and each Member agrees to pay its proportionate share of such expenses immediately upon billing by NCM. Each Member shall be billed for, and pay, an equal portion of specified expenses pertinent to meetings and the welfare of the entire Group, whether or not they are in attendance at a particular meeting. Such specified expenses may include: (a) the costs incident to any hospitality reception / dinner the evening prior to the first day’s meeting; (b) the cost of transportation relating to group events; (c) meeting room expenses, including food/beverage, audio/visual and rentals; (d) fees and expenses paid to or on behalf of a special speaker; (e) the cost for the representative of NCM to attend meetings; (f) reimbursement of approved expenses to Executive Committee members in fulfilling their duties. Furthermore, the Members agree that (i) they shall be liable for a proportionate share of any deposits or other advance payments made by NCM if they were Members at the time the deposit or advance was made; (ii) they shall be liable for a proportionate share of any attrition, room block, cancellation or other fees or penalties assessed in connection with the meeting, and (iii) when Members make reservations for a specific activity and NCM makes a guarantee based on those reservations, those reservations constitute a commitment to pay, regardless of whether the persons for whom the reservations were made attend the activity.

ARTICLE XIII – NCM DISCLAIMER

• Member Data. NCM shall collate, promulgate and distribute as a monthly Composite of comparative statistics, the operational data information received from the Members, but disclaims any representation or warranty with respect to the accuracy, authenticity, or completeness of any data furnished by the Members.
• No Representations or Warranties. NCM shall use commercially reasonable efforts to accurately process and report data obtained from the Members; however, NCM shall not be responsible or liable for (and each member hereby releases NCM from) any damages, cost, loss, expense, or other liability resulting from any action or decision taken as a result of the furnishing of data by NCM. NCM FURNISHES DATA TO THE GROUP AS IS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
• Third Party Speakers. All speakers addressing Groups are intended to give up-to-date and practical information to Group members for their consideration, evaluation, and use as they deem advisable. The statements of fact, opinions, and accompanying materials are those of the speaker or author only, and as such, NCM assumes no responsibility for any such statements of fact, opinions or recommendations.