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As filed with the Securities and Exchange Commission on September 25, 1998
Registration No. 33-___
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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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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. 1996 Incentive and Stock Option Plan
A.S.V., Inc. 1998 Non-Employee Director 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
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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
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Common Stock 1,575,000 shares (2) $16.751 $26,385,825 $7,782.93
($.01 par value)
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(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
September 21, 1998.
(2) Includes 1,125,000 shares issuable pursuant to the 1996 Incentive and Stock
Option Plan and 450,000 shares issuable pursuant to the 1998 Non-Employee
Director Stock Option Plan.
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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-K for the fiscal year
ended December 31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 1998.
(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)
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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 September 25, 1998.
A.S.V., INC.
By /s/ Gary Lemke
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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 25th day of September, 1998. Each person whose
signature to this Registration Statement on Form S-8 appears below hereby
constitutes and appoints Gary 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
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/s/ Gary Lemke President and Director
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Gary Lemke
/s/ Edgar E. Hetteen Vice President, Secretary and Director
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Edgar E. Hetteen
/s/ Thomas R. Karges Chief Financial Officer
- ------------------------------ (Principal Financial Officer)
Thomas R. Karges
/s/ Philip C. Smaby Chairman and Director
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Philip C. Smaby
/s/ Jerome T. Miner Vice Chairman and Director
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Jerome T. Miner
/s/ James H. Dahl Director
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James H. Dahl
/s/ Leland T. Lynch Director
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Leland T. Lynch
/s/ Karlin S. Symons Director
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Karlin S. Symons
/s/ R. E. Turner, IV Director
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R. E. Turner IV
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EXHIBIT INDEX
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<CAPTION>
Exhibit Method of Filing
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<S> <C> <C>
5 Opinion of Dorsey & Whitney LLP, re: legality.......... Filed herewith electronically
23(a) Consent of Grant Thornton LLP, independent auditors.... Filed herewith electronically
</TABLE>
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Exhibit 5
Dorsey & Whitney, LLP
Pillsbury Center South
220 South Sixth Street
Mineeapolis, Minnesota 55402
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
"Company"), in connection with a Registration Statement on Form S-8 relating to
the sale by the Company from time to time of up to 1,575,000 shares of Common
Stock, $.01 par value, of the Company (the "Shares"), 1,125,000 of which are
initially issuable upon the exercise of stock options granted pursuant to the
Company's 1996 Incentive and Stock Option Plan, as amended (the "1996 Plan") and
450,000 of which are initially issuable upon the exercise of stock options
granted pursuant to the Company's 1998 Non-Employee Director Stock Option Plan
(the "1998 Plan" and together with the 1996 Plan, the "Plans").
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: September 24, 1998
Very truly yours,
Dorsey & Whitney, LLP
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Exhibit 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 19, 1998, accompanying the consolidated
financial statements of A.S.V. Inc. and Subsidiary included in the Annual Report
on Form 10-K for the year ended December 31, 1997, 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
Minneapolis, Minnesota
September 22, 1998
