EXHIBIT 99
RISK FACTORS
Forward-looking statements made by A.S.V., Inc. (the "Company" or "ASV")
constitute the Company's current expectations or beliefs concerning future
events. Any forward-looking statements made by the Company are qualified by
important factors that could cause actual results to differ materially from
those projected in the forward-looking statements. Important factors which may
cause actual results to differ from those projected in forward-looking
statements include the factors set forth herein.
RELATIONSHIP WITH CATERPILLAR INC.
In January 1999, Caterpillar Inc. ("Caterpillar") purchased 1,000,000
shares of the Company's Common Stock and a warrant to purchase an additional
10,267,127 shares of the Company's Common Stock (the "Warrant"). In connection
with the purchase of the Common Stock and the Warrant, the Company and
Caterpillar entered into several agreements, including a Commercial Alliance
Agreement, a Marketing Agreement and a Management Services Agreement. These
agreements contemplate that the Company and Caterpillar will also enter into
several additional agreements, including a Trademark and Trade Dress License
Agreement, Supply Agreements, a Services Agreement, a Technology License
Agreement and a Joint Venture Agreement (these agreements, the Commercial
Alliance Agreement, the Marketing Agreement and the Management Services
Agreement are collectively referred to as the "Commercial Agreements").
In October 2000, Caterpillar Inc. purchased 500,000 newly issued shares of
ASV Common Stock at $18 per share pursuant to the terms of a Securities Purchase
Agreement. Concurrent with the closing of the Securities Purchase Agreement, the
Company cancelled the Warrant and issued in its place, a replacement warrant to
purchase 9,767,127 shares of the Company's Common Stock (the "Replacement
Warrant"). In connection with the purchase of the Common Stock and the issuance
of the Replacement Warrant, the Company and Caterpillar entered into a
Multi-Terrain Rubber-Tracked Loader Alliance Agreement (the "Loader Alliance
Agreement").
In January 2004, Caterpillar exercised the Replacement Warrant with
respect to 1,040,069 shares of the Company's common stock at an exercise price
of $21.00 per share. These shares were subject to an acceleration notice issued
to Caterpillar by the Company in October 2003.
Also in January 2004, the Company repurchased the remaining Replacement
Warrant held by Caterpillar for a cash payment of $7.2 million and the issuance
of 500,000 shares of the Company's common stock.
DEPENDENCE ON LOADER ALLIANCE AGREEMENT WITH CATERPILLAR. Under the terms
of the Loader Alliance Agreement, the Company and Caterpillar agreed to jointly
develop and manufacture a five-model line of Caterpillar branded rubber tracked
skid steer loaders called Multi-Terrain Loaders (the "Alliance Machines"). These
new loaders utilize Caterpillar's skid steer technology and the Company's rubber
track undercarriage technology. All five models have been developed and are
available to all Caterpillar dealers. The Alliance Machines are assembled in
Sanford, North Carolina, at Caterpillar's skid steer loader facility. The
undercarriages are manufactured at ASV's facility in Cohasset, Minnesota.
The successful manufacturing and marketing of the Alliance Machines entail
significant risks as described below:
The development and introduction of the Alliance Machines were scheduled
on an aggressive time table and there exists the possibility this time
table may not have detected all potential issues regarding the production
or function of the machines. For example, in 2002, Caterpillar experienced
production issues which caused them to stop production of the Alliance
Machines. As a result, ASV did not ship its undercarriages to Caterpillar
while the production issues were resolved, resulting in decreased revenue
to ASV. Additional production or other issues may be experienced by
Caterpillar or ASV in the future, which could cause ASV's sales of
undercarriages to Caterpillar to decrease or terminate while the issues
are resolved.
The overall market for rubber track machines is relatively new and the
benefits of rubber track machines are not currently widely known. The
Company and Caterpillar believe the market potential for rubber track
machines justifies the necessary investment in the Alliance Machines.
However, there is no assurance the Alliance Machines will attract
sufficient demand to warrant their continued production and produce the
returns
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anticipated by the Company and Caterpillar.
The Company will be relying significantly on Caterpillar for their
continued interest in manufacturing and marketing the Alliance Machines.
For the six months ended June 30, 2004, sales of MTL undercarriages to
Caterpillar accounted for approximately 29% of the Company's net sales. It
is anticipated that MTL undercarriage sales to Caterpillar could account
for approximately 40% of the Company's net sales for the twelve months
ended December 31, 2004. If Caterpillar stopped manufacturing the Alliance
Machines, or stopped marketing the Alliance Machines to its dealers or
Caterpillar dealers did not adequately promote the sale of the Alliance
Machines, the Company's revenue would be decreased and its business would
be harmed.
As part of the Loader Alliance Agreement, the Company has agreed not to
manufacture machines that are similar to and would compete with the
Alliance Machines. Also, the Company may not knowingly sell its
undercarriages to any party who shall manufacture, or resell an
undercarriage to a party who shall manufacture, a machine that
substantially competes with the Alliance Machines. The Company may,
however, continue to manufacture its own models that do not substantially
compete with the Alliance Machines.
The Loader Alliance Agreement calls for the Company to receive a portion
of the gross profit on the sale of the Alliance Machines to Caterpillar
dealers. Therefore, a portion of the Company's future revenue will be
dependent on the success of Caterpillar in selling the Alliance Machines
to Caterpillar dealers. In addition, the portion of the gross profit that
the Company is expected to receive for two of the undercarriages sold to
Caterpillar will be reduced by 33% effective January 1, 2005. The portion
of the gross profit that the Company is expected to receive for the third
undercarriages sold to Caterpillar will be reduced by 33% effective
January 1, 2006. Both of these reductions will reduce the amount of gross
profit the Company will recognize on the sale of these undercarriages to
Caterpillar.
DEPENDENCE ON CATERPILLAR DEALER NETWORK. The Company relies on the
Caterpillar dealer network to sell certain of its products. Therefore, the
Company is dependent upon the cooperation of Caterpillar and the Caterpillar
dealers to sell its products. There can be no assurance that the Caterpillar
dealers will dedicate adequate resources or attention to the sale of the
Company's products or that Caterpillar will continue to encourage its dealers to
promote the Company's products. If Caterpillar stopped promoting the Company's
products to its dealers or Caterpillar dealers did not adequately promote the
sale of the Company's products, the Company's revenue would be decreased and its
business would be harmed.
DEPENDENCE UPON SUCCESS OF RELATIONSHIP WITH CATERPILLAR. As a result of
its transactions with Caterpillar, the Company intends to increasingly rely on
services provided by or through Caterpillar for the operation of its business,
including marketing, management, financing, development, warranty and parts
services. As a result, the Company will become increasingly dependent upon the
cooperation of Caterpillar for the operation of its business. Although
Caterpillar is obligated under the terms of the Commercial Agreements to provide
certain services to the Company, the specific obligations of Caterpillar under
those agreements are not explicitly defined. Therefore, if Caterpillar chose not
to cooperate with the Company in providing those services, it may be impractical
for the Company to require Caterpillar to provide any such services to the
extent necessary to be beneficial to the Company. If Caterpillar were to decide
not to actively support the Company and to cooperate with the Company to provide
it services, the Company's business would be materially harmed.
ABILITY OF CATERPILLAR TO INFLUENCE OR CONTROL THE COMPANY. Caterpillar
owns approximately 25% of the outstanding shares of Common Stock. Accordingly,
Caterpillar has the ability to influence the business and operations of the
Company to a certain extent. In addition to its rights as a shareholder to
influence the Company, Caterpillar has certain rights under the Securities
Purchase Agreement between the Company and Caterpillar dated October 14, 1998,
including the right to designate directors for election to the Board of
Directors, which increases Caterpillar's ability to influence the Company.
MANAGEMENT OF GROWTH
The Company's management has had limited experience in managing companies
experiencing growth like that of the Company. Further growth and expansion of
the Company's business will place additional demands upon the Company's current
management and other resources. The Company believes that future growth and
success depends to a
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significant extent on the Company's ability to be able to effectively manage
growth of the Company in several areas, including, but not limited to: (i)
production facility expansion/construction; (ii) entrance to new geographic and
use markets; (iii) international sales, service and production; and (iv)
employee and management development. No assurance can be given that the
Company's business will grow in the future and that the Company will be able to
effectively manage such growth. If the Company is unable to manage growth
effectively, the Company's business, results of operations and financial
condition would be materially adversely affected.
DEPENDENCE ON CERTAIN SUPPLIERS
Certain of the components included in the Company's products are obtained
from a limited number of suppliers, including the rubber track component used on
the Company's products. Disruption or termination of supplier relationships
could have a material adverse effect on the Company's operations. The Company
believes that alternative sources could be obtained, if necessary, but the
inability to obtain sufficient quantities of the components or the need to
develop alternative sources, if and as required in the future, could result in
delays or reductions in product shipments which in turn may have an adverse
effect on the Company's operating results and customer relationships.
COMPETITION
Companies whose products compete in the same markets as the Posi-Track
have substantially more financial, production and other resources than the
Company, as well as established reputations within the industry and more
extensive dealer networks. Also, the growth potential of the markets being
pursued by the Company could attract more competitors. There can be no assurance
that the Company will be able to compete effectively in the marketplace or that
it will be able to establish a significantly dominant position in the
marketplace before its potential competitors are able to develop similar
products.
MARKET ACCEPTANCE OF RUBBER TRACK VEHICLES
The success of the Company is dependent upon increasing market acceptance
of rubber track vehicles in the markets in which the Company's products compete.
Most small to medium sized tractor-type vehicles in competition with the
Posi-Track are wheeled vehicles and most track-driven vehicles are designed for
specific limited tasks. The market for rubber track vehicles is relatively new
and there can be no assurance that the Company's products will gain sufficient
market acceptance to enable the Company to sustain profitable operations.
ACQUISITION OF LOEGERING MFG. INC.
On July 20, 2004, the Company announced it had signed a non-binding letter
of intent to acquire all the outstanding common stock of Loegering Mfg. Inc.
(Loegering) of Casselton, North Dakota for a combination of cash and ASV common
stock. Loegering is a manufacturer of over-the-tire steel tracks for wheeled
skid-steers and also provides attachments for the skid-steer market. The
transaction is subject to due diligence by ASV, negotiation of a definitive
acquisition agreement and satisfaction of other customary conditions to closing.
There can be no assurance that a definitive acquisition agreement can be
reached, or that all conditions necessary to closing can be satisfied. In
addition, the Company has not been involved in an acquisition of this nature,
and there can be no assurance that the Company can successfully manage and
integrate the operations of Loegering subsequent to closing.
DEVELOPMENT OF NEW PRODUCTS
The Company intends to increase its market penetration by developing and
marketing new rubber-tracked vehicles. There can be no assurance that the
Company will be able to successfully develop the new products, or that any new
products developed by the Company will gain market acceptance.
INDUSTRY CONDITIONS; CYCLICALITY; SEASONALITY
The construction and farm equipment industries, in which the Posi-Track
competes, have historically been cyclical. Sales of construction and
agricultural equipment are generally affected by the level of activity in the
construction and agricultural industries including farm production and demand,
weather conditions, interest rates and construction levels (especially housing
starts). In addition, the demand for the Company's products may be affected by
the seasonal nature of the activities in which they are used and by overall
economic conditions in general.
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DEPENDENCE ON KEY PERSONNEL
The Company's future success depends to a significant extent upon the
continued service of certain key personnel, including its CEO, Gary Lemke. The
loss of the services of any key member of the Company's management could have a
material adverse effect on the Company's ability to achieve its objectives. The
Company has key-person life insurance on the life of Mr. Lemke.
RISK OF PRODUCT LIABILITY; PRODUCT LIABILITY INSURANCE
Like most manufacturing companies, the Company may be subject to
significant claims for product liability and may have difficulty in obtaining
product liability insurance or be forced to pay high premiums. The Company
currently has product liability insurance and has not been subject to material
claims for product liability. There can be no assurance that the Company will be
able to obtain adequate insurance in the future or that the Company's present or
future insurance would prove adequate to cover potential product claims.
INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
The Company currently holds two patents, one on certain aspects of the
steering mechanism used in certain of the Company's products and the other on
the certain aspects of the suspension and drive mechanism used in certain of the
Company's products. The Company has also filed additional patent applications.
There can be no assurance that the patents will be granted or that patents under
any future applications will be issued, or that the scope of the current or any
future patent will exclude competitors or provide competitive advantages to the
Company, that any of the Company's patents will be held valid if subsequently
challenged or that others will not claim rights in or ownership to the patents
and other proprietary rights held by the Company. Furthermore, there can be no
assurance that others have not developed or will not develop similar products,
duplicate any of the Company's products or design around such patents.
Litigation, which could result in substantial cost to and diversion of effort by
the Company, may be necessary to enforce patents issued to the Company, to
defend the Company against claimed infringement of the rights of others or to
determine the ownership, scope or validity of the proprietary rights of the
Company and others.
DEPENDENCE ON LIMITED NUMBER OF MANUFACTURING FACILITIES
The Company's products are manufactured exclusively at its two
manufacturing facilities in Grand Rapids and Cohasset, Minnesota. In the event
that either of these manufacturing facilities were to be damaged or destroyed or
become otherwise inoperable, the Company may be unable to manufacture its
products for sale until the facility is either repaired or replaced, either of
which could take a considerable period of time. Although the Company maintains
business interruption insurance, there can be no assurance that such insurance
would adequately compensate the Company for the losses it would sustain in the
event that its manufacturing facilities were unavailable for any reason.
REGULATION
The operations, products and properties of the Company are subject to
environmental and safety regulations by governmental authorities. The Company
may be liable under environmental laws for waste disposal and releases into the
environment. In addition, the Company's products are subject to regulations
regarding emissions and other environmental and safety requirements. While the
Company believes that compliance with existing and proposed environmental and
safety regulations will not have a material adverse effect on the financial
condition or results of operations of the Company, there can be no assurance
that future regulations or the cost of complying with existing regulations will
not exceed current estimates.
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