<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1997
Registration No. 33-___
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
__________________
A.S.V., INC.
(Exact name of registrant as specified in its charter)
Minnesota
(State or other jurisdiction of incorporation or organization)
41-1459569
(I.R.S. Employer Identification No.)
840 Lily Lane
Grand Rapids, Minnesota 55744
(Address of principal executive offices) (Zip Code)
A.S.V., Inc. 1994 Long-Term Incentive and Stock Option Plan
A.S.V., Inc. 1996 Incentive and Stock Option Plan
(Full title of the plan)
Thomas R. Karges Copy to: Amy E. Ayotte, Esq.
A.S.V., Inc. Dorsey & Whitney, LLP
840 Lily Lane Pillsbury Center South
Grand Rapids, Minnesota 55744 220 South Sixth Street
Minneapolis, Minnesota 55402
(218) 327-3434
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered registered share (1) price (1) fee
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Common Stock 1,155,000 shares $25.6875 $29,669,063 $8,752.37
($.01 par value)
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</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
registration fee, based upon the average of the high and low sale price of
A.S.V., Inc. Common Stock as reported by the Nasdaq National Market on
December 19, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents, which have been filed by A.S.V., Inc. (The
"Company") with the Securities and Exchange Commission, are incorporated by
reference in the Registration Statement, as of their respective dates:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1996.
(b) The Company's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, June 30 and September 30, 1997.
(c) The description of the Company's capital stock contained in a form 8-A
filed by the Company with the Securities and Exchange Commission on
February 21, 1995, under the Securities Exchange Act of 1934, and any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the respective dates of filing of such
documents.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 302A.521, subd. 2, of the Minnesota Statutes requires the Company
to indemnify a person made or threatened to be made a party to a proceeding by
reason of the former or present official capacity of the person with respect to
the Company, against judgments, penalties, fines, including, without limitation,
excise taxes assessed against the person with respect to an employee benefit
plan, settlements, and reasonable expenses, including attorneys' fees and
disbursements, incurred by the person in connection with the proceeding with
respect to the same acts or omissions if such person (1) has not been
indemnified by another organization or employee benefit plan for the same
judgments, penalties or fines; (2) acted in good faith; (3) received no improper
personal benefit, and statutory procedure has been followed in the case of any
conflict of interest by a director; (4) in the case of a criminal proceeding,
had no reasonable cause to believe the conduct was unlawful; and (5) in the case
of acts or omissions occurring in the person's performance in the official
capacity of director or, for a person not a director, in the official capacity
of officer, board committee member or employee, reasonably believed that the
conduct was in the best interests of the Company, or, in the case of performance
by a director, officer or employee of the Company involving service as a
director, officer, partner, trustee, employee or agent of another organization
or employee benefit plan, reasonably believed that the conduct was not opposed
to the best interests of the Company. In addition, Section 302A.521, subd.3,
requires payment by the Company, upon written request, of reasonable expenses in
advance of final disposition of the proceeding in certain instances. A decision
as to required indemnification is made by a disinterested majority of the Board
of Directors present at a meeting at which a disinterested quorum is present, or
by a designated committee of the board, by special legal counsel, by the
shareholders, or by a court.
Provisions regarding indemnification of officers and directors of the
Company are contained in Article 8-"Director Liability" of the Company's
Restated Articles of Incorporation and Article IX "Indemnification of Certain
Persons" of the Company's by-laws.
Item 8. Exhibits
--------
5 Opinion of Dorsey & Whitney, LLP, re: legality
23(a) Consent of Grant Thornton, LLP, independent auditors
23(b) Consent of Dorsey & Whitney, LLP, (included in Exhibit 5 above)
24 Power of Attorney (included in the signature page hereto)
- 2-
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Item 9. Undertakings
------------
A. Post-Effective Amendments
-------------------------
The undersigned issuer hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) 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;
(c) 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 subparagraphs (a) and (b) above will not apply if
the information required to be included in a post-effective amendment by
those subparagraphs is contained in periodic reports filed by the issuer
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the 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. Subsequent Documents Incorporated by Reference
----------------------------------------------
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 of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
C. Claims for Indemnification
--------------------------
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 other 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 Grand Rapids, Minnesota on December 19, 1997.
A.S.V., INC.
By /s/ Gary Lemke
------------------------------------
Gary Lemke, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 19th day of December, 1997. Each person whose
signature to this Registration Statement on Form S-8 appears below hereby
constitutes and appoints Gary D. Lemke and Thomas R. Karges, and each of them,
as his or her true and lawful attorney-in-fact and agent, with full power of
substitution, to sign on his or her behalf individually and in the capacity
stated below and to perform any acts necessary to be done in order to file all
amendments to this Registration Statement on Form S-8, and any and all
instruments or documents filed as part of or in connection with this
Registration Statement on Form S-8 or the amendments thereto and each of the
undersigned does hereby ratify and confirm all that said attorney-in-fact and
agent, or his substitutes, shall do or cause to be done by virtue hereof.
Signatures Title
---------- -----
/s/ Gary Lemke
- ------------------------------- President and Director
Gary Lemke (Principal Executive Officer)
/s/ Edgar E. Hetteen
- ------------------------------- Vice President, Secretary and Director
Edgar E. Hetteen
/s/ Thomas R. Karges
- ------------------------------- Chief Financial Officer
Thomas R. Karges (Principal Financial Officer)
/s/ Philip C. Smaby
- ------------------------------- Chairman and Director
Philip C. Smaby
/s/ Jerome T. Miner
- ------------------------------- Vice Chairman and Director
Jerome T. Miner
/s/ James H. Dahl
- ------------------------------- Director
James H. Dahl
/s/ Leland T. Lynch
- ------------------------------- Director
Leland T. Lynch
/s/ Karlin S. Symons
- ------------------------------- Director
Karlin S. Symons
/s/ R. E. Turner, IV
- ------------------------------- Director
R. E. Turner IV
- 4-
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EXHIBIT INDEX
Exhibit Method of Filing
- ------- ----------------
5 Opinion of Dorsey & Whitney, LLP, re:
legality.............................. Filed herewith electronically
23(a) Consent of Grant Thornton, LLP,
independent auditors................. Filed herewith electronically
- 5-
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Exhibit 5
Letterhead of Dorsey & Whitney LLP
220 South Sixth Street
Pillsbury Center South
Minneapolis, Minnesota 55402
Amy E. Ayotte
(612) 340-6323
fax (612) 340-8738
[email protected]
A.S.V., Inc.
840 Lily Lane
Grand Rapids, Minnesota 55744
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to A.S.V., Inc., a Minnesota corporation (the
OCompanyO), in connection with a Registration Statement on Form S-8 relating to
the sale by the Company from time to time of up to 1,155,000 shares of Common
Stock, $.01 par value, of the Company (the OSharesO), initially issuable upon
the exercise of stock options granted pursuant to the CompanyOs 1994 Long-Term
Incentive and Stock Option Plan and the Company's 1996 Incentive and Stock
Option Plan (together, the OPlansO).
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of the
opinion set forth below.
In rendering our opinion set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Plans under which such Shares are issued, will
be validly issued, fully paid and nonassessable.
Our opinion expressed above is limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Dated: December 22, 1997
Very truly yours,
/s/ Dorsey & Whitney LLP
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Exhibit 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 14, 1997, accompanying the
consolidated financial statements of A.S.V. Inc. included in the Annual Report
on Form 10-KSB for the year ended December 31, 1996, which is incorporated by
reference in this Registration Statement. We consent to the incorporation by
reference in the Registration Statement of the aforementioned report.
GRANT THORNTON LLP
/s/ GRANT THORNTON LLP
Minneapolis, Minnesota
December 22, 1997
