Exhibit 4.12
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is entered into
as of October 31, 2000 between CATERPILLAR INC., a Delaware corporation
(together with its successors and permitted assigns, "Investor"), and A.S.V.,
INC., a Minnesota corporation (together with its successors and permitted
assigns, "Issuer"). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in Section 6.1.
RECITALS
Investor and Issuer are parties to a Securities Purchase Agreement,
dated October 14, 1998, whereby Investor purchased 1,000,000 shares of Issuer's
common stock, par value $0.01 per share (the "Common Stock"), and a Warrant
Certificate dated October 14, 1998 (the "Warrant"), whereby Issuer issued a
warrant to Investor for 10,267,127 shares of Issuer's common stock.
Subject to the terms and conditions of this Agreement, Investor
desires to purchase, and Issuer desires to issue and sell to Investor, 500,000
shares of Common Stock. Concurrent with this purchase, the Warrant will be
amended to reduce the number of shares of Common Stock subject to the Warrant by
500,000 shares to 9,767,127 shares.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
ISSUANCE AND PURCHASE OF COMMON STOCK
1.1. Issuance and Purchase of Common Stock. Subject to the terms and
conditions of this Agreement, Issuer will issue and sell to Investor and
Investor will purchase from Issuer for an aggregate purchase price of $9,000,000
(the "Purchase Price"), 500,000 shares of Common Stock (the "Shares").
1.2. Legend. Any certificate or certificates representing the Shares
shall bear the following legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR UNDER ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT OR AN OPINION OF COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT
AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER
OR UNDER APPLICABLE STATE SECURITIES LAWS.
1.3. Amendment of Warrant Agreement.
(a) Investor hereby agrees that the Warrant shall be and
hereby is amended to read in its entirety as set forth in the form of
Replacement Warrant Certificate attached hereto as Exhibit A (the
"Replacement Warrant Certificate"). At the Closing, Investor shall
surrender the Warrant to Issuer for cancellation, and Issuer shall
deliver to Investor the Replacement Warrant Certificate, which shall
supercede and replace the Warrant in its entirety. Investor
acknowledges and agrees that upon issuance of the Replacement Warrant
Certificate, the Warrant dated January 29, 1999 shall terminate and be
of no further force or effect.
(b) Investor hereby agrees that the purchase price per share
under the Replacement Warrant shall be $21.00 immediately following the
issuance of the Shares without adjustment as a result of such issuance,
notwithstanding the anti-dilution provisions contained in Section 2.6
of the Warrant and the Replacement Warrant Certificate.
1.4. Use of Proceeds. ASV shall use the proceeds received from the sale
of Shares as described in Section 2.8 of the Multi-Terrain Rubber-Tracked Loader
Alliance Agreement between Issuer and Investor (the "Multi-Terrain
Rubber-Tracked Loader Alliance Agreement").
ARTICLE II.
CLOSING
2.1. Closing. The closing of the transactions contemplated herein (the
"Closing") shall take place on the date hereof, at the offices of McDermott,
Will & Emery, 227 West Monroe Street, Chicago, Illinois 60606. At the Closing,
(i) Investor shall pay to Issuer, by wire transfer of immediately available
funds to an account designated in writing by Issuer, the Purchase Price; (ii)
Issuer shall issue to Investor the Shares, and deliver to Investor certificates
for the Shares duly registered in the name of Investor; and (iii) all other
agreements and other documents referred to in this Agreement shall be executed
and delivered (if not done prior to the Closing).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ISSUER
As a material inducement to Investor entering into this
Agreement and purchasing the Shares, Issuer represents and warrants to Investor
as follows:
3.1. Corporate Status. Issuer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Minnesota.
Issuer has all requisite corporate power and authority to own or lease, as the
case may be, its properties and to carry on its business as now conducted.
Issuer and its Subsidiaries are qualified or licensed to conduct business in all
jurisdictions where its or their ownership or lease of property and the conduct
of its or their business requires such qualification or licensing, except to the
extent that failure to so qualify or be licensed would not have a Material
Adverse Effect on Issuer. There is no pending or threatened proceeding for the
dissolution, liquidation, insolvency or rehabilitation of Issuer or any of its
Subsidiaries.
3.2. Corporate Power and Authority. Issuer has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. Issuer has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby.
3.3. Execution, Delivery and Enforceability. This Agreement has been
duly executed and delivered by Issuer and constitutes a legal, valid and binding
obligation of Issuer, enforceable against Issuer in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a
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proceeding at law or in equity.
3.4. No Violation. The execution and delivery by Issuer of this
Agreement, the consummation of the transactions contemplated hereby, and the
compliance by Issuer with the terms and provisions hereof (including, without
limitation, the issuance to Investor of the Shares as contemplated by and in
accordance with this Agreement) will not result in a default under (or give any
other party the right, with the giving of notice or the passage of time (or
both), to declare a default or accelerate any obligation under) or violate the
Articles of Incorporation or bylaws or any Contract to which Issuer or any of
its Subsidiaries is a party or by which Issuer or its properties or assets are
bound (except to the extent such a default would not, in the case of a Contract,
have a Material Adverse Effect on Issuer), or any Requirement of Law applicable
to Issuer or any of its Subsidiaries, or result in the creation or imposition of
any Lien upon any of the capital stock, properties or assets of Issuer or any of
its Subsidiaries (except where such Lien would not have a Material Adverse
Effect on Issuer).
3.5. Consents/Approvals. (a) No consents, filings, authorizations or
other actions of any Governmental Authority are required for Issuer's execution,
delivery and performance of this Agreement and (b) no consent, approval, waiver
or other action by any Person under any Contract to which Issuer or any of its
Subsidiaries is a party or by which Issuer or any of its properties or assets
are bound is required or necessary for the execution, delivery or performance by
Issuer of this Agreement and the consummation of the transactions contemplated
hereby, except where the failure to obtain such consents would not have a
Material Adverse Effect on Issuer.
3.6. Capitalization. The authorized capital stock of Issuer consists of
45,000,000 shares, of which 33,750,000 are shares of Common Stock and 11,250,000
are shares of preferred stock, par value $0.01 per share. As of the date hereof,
9,705,497 shares of Common Stock are validly issued and outstanding, fully paid,
and non-assessable, and no shares of preferred stock are issued or outstanding.
Except with respect to the Shares, and except for options for 286,300 shares of
Common Stock issued and 541,125 shares of Common Stock reserved for issuance
pursuant to the A.S.V., INC. 1994 Long-Term Incentive and Stock Option Plan, as
amended (the "1994 Plan"), options for 1,096,562 shares of Common Stock issued
and 1,083,873 shares of Common Stock reserved for issuance pursuant to the
A.S.V., INC. 1996 Incentive and Stock Option Plan, as amended (the "1996 Plan"),
options for 36,000 shares of Common Stock issued and 414,000 shares of Common
Stock reserved for issuance pursuant to the A.S.V., INC. 1998 Non-Employee
Director Stock Option Plan, as amended (the "1998 Plan"), 10,267,127 shares of
Common Stock issuable pursuant to the Warrant (prior to its amendment as set
forth herein, and 337,500 shares of Common Stock issuable pursuant to that
certain warrant issued to Leo Partners, Inc. on December 1, 1996 (the "Leo
Partners Warrant", together with the 1994 Plan, the 1996 Plan, the 1998 Plan,
and the Warrant, being the "Derivative Equity Documents"), no other shares of
Common Stock and no shares of preferred stock, or any rights, options, warrants,
convertible securities, subscription rights or other agreements or commitments
of any kind obligating Issuer to issue or sell any other shares of Common Stock
or preferred stock, are outstanding or have been authorized. Upon delivery to
Investor of the certificates for the Shares and payment of the Purchase Price,
Investor will acquire good, valid and marketable title to and record ownership
of the Shares, and such Shares will be validly issued, fully paid and
non-assessable.
3.7. SEC Reports and Nasdaq Compliance. Issuer has made all filings
(the "SEC Reports") required to be made by it under the Securities Act, the
Exchange Act and the securities laws of any state, and any rules and regulations
promulgated thereunder and pursuant to any Requirements of Law. The SEC Reports,
when filed, complied in all material respects with all applicable requirements
of the Securities Act, the Exchange Act and other Requirements of Law. None of
the SEC Reports, at the time of filing, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading in light of
the
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circumstances in which they were made. Issuer has taken all necessary actions to
ensure its continued inclusion in, and the continued eligibility of the Common
Stock for trading on the Nasdaq National Market under all currently effective
and currently proposed inclusion requirements.
3.8. Governing Documents. Issuer has delivered or made available to
Investor true, accurate and complete copies of the Articles of Incorporation and
Bylaws in effect as of the date hereof.
3.9. Subsidiaries. Except as set forth on Exhibit 22 to Issuer's Form
10-K for the fiscal year ended December 31, 1999, Issuer does not own, directly
or indirectly, any outstanding voting securities of or other interests in, and
does not control, any corporation, partnership, limited liability company, joint
venture or other business entity.
3.10. Financial Statements. Each of the balance sheets included in the
SEC Reports (including any related notes and schedules) fairly presents in all
material respects the consolidated financial position of Issuer and its
Subsidiaries as of its date, and each of the other financial statements included
in the SEC Reports (including any related notes and schedules) fairly presents
in all material respects the consolidated financial condition, results of
operations, cash flows, or other information therein of Issuer and its
Subsidiaries for the periods or as of the dates therein set forth in accordance
with GAAP consistently applied during the periods involved (except that the
interim reports are subject to normal recurring adjustments which might be
required as a result of year end audit and except as otherwise stated therein).
3.11. Changes Since December 31, 1999. Except as set forth in the SEC
Reports, since December 31, 1999, there has been no Material Adverse Change in
Issuer. Except as set forth in the SEC Reports or on Schedule 3.11 hereto, since
December 31, 1999, (a) there has not been (i) any direct or indirect redemption,
purchase or other acquisition by Issuer of any shares of Issuer's capital stock
or (ii) declaration, setting aside or payment of any dividend or other
distribution by Issuer in respect of its capital stock, or (iii) issuance of any
shares of capital stock of Issuer or any granting to any person of any option to
purchase or other right to acquire shares of capital stock of Issuer other than
pursuant to the Derivative Equity Plans, (b) none of the officers or directors
of Issuer (or any of their spouses or children) has (i) any direct or indirect
investment or equity interest in, or power to control the business affairs of,
any manufacturer, supplier, lender or provider of services or goods to Issuer,
except for their interest in Issuer, (ii) any material contractual relationship
with Issuer, and (iii) has any direct or indirect interest in any material
right, property or asset which is owned or used by Issuer in the conduct of its
business.
3.12. Environmental Matters. Except as set forth in the SEC Reports or
on Schedule 3.12 hereto:
(a) Issuer is and has at all times been in compliance with all
Environmental Laws (as defined below) governing its business,
operations, properties and assets, including, without limitation,
Environmental Laws with respect to discharges into the ground water,
surface water and soil, emissions into the ambient air, and generation,
accumulation, storage, treatment, transportation, labeling or disposal
of solid and hazardous waste materials and substances or process
by-products, in each case, for which failure to comply could have a
Material Adverse Effect on Issuer. Issuer is not currently liable for
any penalties, fines or forfeitures for failure to comply with any of
the foregoing, which penalty, fine or forfeiture could have a Material
Adverse Effect on Issuer. Issuer is in compliance with all notice,
record keeping and reporting requirements of all Environmental Laws,
and has complied with all informational requests or demands arising
under the Environmental Laws, where failure to comply could have a
Material Adverse Effect on Issuer.
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(b) As used in this Agreement, "Environmental Laws" means all
federal, state or local laws, rules, regulations, orders or ordinances
or judicial or administrative interpretations thereof, any of which
govern (or purport to govern) or relate to air emissions, water
discharges, hazardous or toxic substances, solid or hazardous waste and
occupational health and safety, as any of these terms are or may be
defined in such laws, rules, regulations, orders, or ordinances, or
judicial or administrative interpretations thereof, including, without
limitation, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act,
as amended, by the Superfund Amendments and Reauthorization Act, the
Hazardous Materials Transportation Act, the Toxic Substances Control
Act, the Clean Air Act, the Clean Water Act and the Occupational Safety
and Health Act.
3.13. No Commissions. Issuer has not incurred any obligation for any
finder, broker or agent's fees or commissions in connection with the
transactions contemplated hereby.
3.14. Inapplicability of Section 302A.673 of Minnesota Business
Corporations Act. The Board of Directors of Issuer has approved the execution
and delivery by Issuer of this Agreement and the consummation of the
transactions contemplated by this Agreement and the other transactions
contemplated hereby, and no further action is required to render inapplicable to
Investor and/or any affiliates or associates (as defined in Section 302A.673 of
the Minnesota Business Corporations Act ("MBCA")) of Investor and/or all or any
combination of such persons the provisions of Section 302A.673 of MBCA that
restrict business combinations (as defined in Section 302A.673 of MBCA) between
an interested shareholder and Issuer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INVESTOR
As a material inducement to Issuer entering into this
Agreement and issuing the Shares, Investor represents and warrants to Issuer as
follows:
4.1. Corporate Status; Power and Authority. Investor is a corporation
duly organized, validly existing, and in good standing under the laws of
Delaware. Investor has the corporate power and authority to execute and deliver
and to perform its obligations under this Agreement and consummate the
transactions contemplated hereby. Investor has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement
and the transactions contemplated hereby.
4.2. No Violation. The execution and delivery by Investor of this
Agreement, the consummation of the transactions contemplated hereby, and the
compliance by Investor with the terms and provisions hereof, will not result in
a default under (or give any other party the right, with the giving of notice or
the passage of time (or both), to declare a default or accelerate any obligation
under) or violate the Certificate of Incorporation or Bylaws of Investor or any
Contract to which Investor is a party or by which it or its properties or assets
are bound, or violate any Requirement of Law applicable to Investor, other than
such violations, conflicts, defaults or breaches which, individually and in the
aggregate, do not and will not have a Material Adverse Effect on Investor.
4.3. Consents/Approvals. (a) No consents, filings, authorizations or
actions of any Governmental Authority are required for Investor's execution,
delivery and performance of this Agreement, and (b) no consent, approval, waiver
or other actions by any Person under any Contract to which Investor is a party
or by which Investor or any of his properties or assets are bound is required or
necessary for the execution, delivery and performance by Investor of this
Agreement and the consummation of the transactions contemplated hereby.
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4.4. Enforceability. This Agreement has been duly executed and
delivered by Investor and constitutes a legal, valid and binding obligation of
Investor, enforceable against Investor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditor's rights generally and general equitable principles regardless of
whether enforceability is considered in a proceeding at law or in equity.
4.5. Investment Intent. Investor is acquiring the Shares for its own
account and with no present intention of distributing or selling such Shares in
violation of the Securities Act or any applicable state securities law. Investor
agrees that it will not sell or otherwise dispose of any of the Shares unless
such sale or other disposition has been registered under the Securities Act or,
in the opinion of counsel to Investor satisfactory to Issuer, is exempt from
registration under the Securities Act and has been registered or qualified or,
in the opinion of such counsel, in exempt from registration or qualification
under applicable state securities laws. Investor understands that the sale of
the Shares has not been registered under the Securities Act by reason of their
contemplated issuance in transactions exempt from the registration and
prospectus delivery requirements of the Securities Act pursuant to Section 4(2)
thereof, and that the reliance of Issuer on such exemption from registration is
predicated in part on the representations and warranties of Investor. Investor
acknowledges that pursuant to Section 1.2 a restrictive legend consistent with
the foregoing has been or will be placed on the certificates for the Shares
issued upon exercise thereof.
4.6. No Commissions. Investor has not incurred any obligation for any
finder, broker, or agent's fees or commissions in connection with the
transactions contemplated hereby.
ARTICLE V
COVENANTS
5.1. Filings. Each of Investor and Issuer shall make on a prompt and
timely basis all governmental or regulatory notifications and filings required
to be made by it for the consummation of the transactions contemplated hereby.
5.2. Public Announcements. Except as required by law or the policies or
rules of any stock exchange (or the Nasdaq National Market) on which Issuer's
securities are listed or quoted as of the date hereof, the form and content of
all press releases or other public communications of any sort relating to the
subject matter of this Agreement, and the method of their release, or
publication thereof, shall be subject to the prior approval of the parties
hereto, which approval shall not be unreasonably withheld or delayed.
5.3. Further Assurances. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated hereby.
5.4. Cooperation. Issuer and Investor each agree to cooperate with the
other in the preparation and filing of all forms, notifications, reports and
information, if any, required or reasonably deemed advisable pursuant to any
Requirement of Law or the rules of any exchange on which the Common Stock is
traded or the Nasdaq National Market in connection with the transactions
contemplated by this Agreement and to use their respective reasonable best
efforts to agree jointly on a method to overcome any objections by any
Governmental Authority to any such transactions. Except as may be specifically
required hereunder, neither of the parties hereto or their respective Affiliates
shall be required to agree to take any action that in the reasonable opinion of
such party would result in or produce a Material Adverse
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Effect on such party.
5.5. Other Actions. Each of the parties hereto shall use its reasonable
best efforts to take, or cause to be taken, all appropriate actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated herein, including, without limitation, using its reasonable best
efforts to obtain all licenses, permits, consents, approvals, authorizations,
qualifications and orders of Governmental Authorities and parties to contracts
with Issuer and its Subsidiaries as are necessary for the consummation of the
transactions contemplated hereby. The parties also agree to use their reasonable
best efforts to defend all lawsuits or other legal proceedings challenging this
Agreement, or the consummation of the transactions contemplated hereby, and to
lift or rescind any injunction or restraining order or other order adversely
affecting the ability of the parties to consummate the transactions
contemplated.
ARTICLE VI
DEFINITIONS
6.1. Defined Terms. As used herein the following terms shall have the
following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in effect
on the date hereof.
"Articles of Incorporation" means Issuer's Second Restated
Articles of Incorporation, as the same may be or have been supplemented, amended
or restated from time to time.
"Bylaws" means Issuer's Bylaws, as the same may be or have
been supplemented, amended or restated from time to time.
"Closing" has the meaning specified in Section 2.1 of this
Agreement.
"Common Stock" has the meaning specified in the Recitals to
this Agreement.
"Contract" means any indenture, lease, sublease, loan
agreement, mortgage, note, restriction, commitment, obligation or other
contract, agreement or instrument.
"Derivative Equity Documents" has the meaning specified in
Section 3.6 of this Agreement.
"Environmental Laws" has the meaning specified in Section
3.12(b) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity or official
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indemnified Party" has the meaning specified in Section 7.2
of this Agreement.
"Indemnifying Party" has the meaning specified in Section 7.1
of this Agreement.
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"Issuer" means A.S.V., INC., a Minnesota corporation.
"Investor" means Caterpillar Inc., a Delaware corporation.
"Leo Partners Warrant" has the meaning specified in Section
3.6 of this Agreement.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and the filing of or
agreement to give an financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in connection with such mortgage, pledge,
security interest, encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change (or
effect), in the condition (financial or otherwise), properties, assets,
liabilities, rights, obligations, operations, business or prospects which change
(or effect) individually or in the aggregate with other such changes (or
effects) is materially adverse to such condition, properties, assets,
liabilities, rights, obligations, operations, business or prospects.
"MBCA" has the meaning specified in Section 3.14 of this
Agreement.
"1994 Plan" has the meaning specified in Section 3.6 of this
Agreement.
"1996 Plan" has the meaning specified in Section 3.6 of this
Agreement.
"1998 Plan" has the meaning specified in Section 3.6 of this
Agreement.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, estate, trust,
unincorporated association, joint venture, Governmental Authority or other
entity, of whatever nature.
"Purchase Price" has the meaning specified in Section 1.1 of
this Agreement.
"Replacement Warrant Certificate" has the meaning specified in
Section 1.3 of this Agreement.
"Requirement of Law" means as to any Person, the articles of
incorporation, by-laws or other organizational or governing documents of such
person, and any domestic or foreign and federal, state or local law, rule,
regulation, statute or ordinance or determination of any arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its properties or to which such Person or any of its property
is subject.
"SEC" means the Securities and Exchange Commission.
"SEC Reports" has the meaning specified in Section 3.7 of this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning specified in Section 1.1 of this
Agreement.
"Subsidiary" means as to any Person, a corporation of which
more than 50% of the outstanding capital stock having full voting power is at
the time directly or indirectly owned or controlled by such Person.
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"Warrant" has the meaning specified in the recitals to this
Agreement.
6.2. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificates, reports or other documents made
or delivered pursuant hereto or thereto, unless the context otherwise
requires.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection with
this Agreement and the transactions contemplated hereby shall be
determined in accordance with GAAP applied on a basis consistent with
prior periods, where applicable.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
6.3. The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement shall refer to this Agreement as a whole
(including any Exhibits or Schedules hereto) and not to any particular provision
of this Agreement.
ARTICLE VII
INDEMNIFICATION
7.1. Indemnification Generally. Issuer, on the one hand, and Investor,
on the other hand (each an "Indemnifying Party"), shall indemnify the other from
and against any and all losses, damages, liabilities, claims, charges, actions,
proceedings, demands, judgments, settlement costs and expenses of any nature
whatsoever (including, without limitation, attorneys' fees and expenses) or
deficiencies resulting from any breach of a representation, warranty or covenant
by the Indemnifying Party and all claims, charges, actions or proceedings
incident to or arising out of the foregoing.
7.2. Indemnification Procedures. Each person entitled to
indemnification under this Section (an "Indemnified Party") shall give notice as
promptly as reasonably practicable to each Indemnifying Party required to
provide indemnification under this Article VII of any action commenced against
or by it in respect of which indemnity may be sought hereunder, but failure to
so notify an Indemnifying Party shall not relieve such Indemnifying Party from
any liability that it may have otherwise than on account of this indemnity
agreement so long as such failure shall not have materially prejudiced the
position of the Indemnifying Party. Upon such notification, the Indemnifying
Party shall assume the defense of such action if it is a claim brought by a
third party. If and after such assumption the Indemnified Party shall not be
entitled to reimbursement of any expenses incurred by it in connection with such
action except as described below. In any such action, any Indemnified Party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
contrary or (ii) the named parties in any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing or conflicting interests between them. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which shall not be unreasonably withheld
or delayed by such Indemnifying Party), but if settled with such consent or if
there
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be final judgment for the plaintiff, the Indemnifying Party shall indemnify the
Indemnified Party from and against any loss, damage or liability by reason of
such settlement or judgment.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1. Conditions to the Obligations of Investor and Issuer. The
obligation of Investor and Issuer to proceed with the Closing is also subject to
the following conditions, any and all of which may be waived, in whole or in
part, to the extent permitted by applicable law:
(a) Alliance Agreement. Issuer and Investor shall have
executed the Multi-Terrain Rubber-Tracked Loader Alliance Agreement
substantially in the form attached.
(b) Replacement Warrant. Issuer shall have issued to Investor
the Replacement Warrant.
(c) Warrant. Investor shall have delivered the Warrant to
Issuer for cancellation.
ARTICLE IX
MISCELLANEOUS
9.1. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission to the following addresses and facsimile
numbers (or to such other addresses or facsimile numbers which such party shall
designate in writing to the other party):
(a) if to Issuer to:
A.S.V., INC.
840 Lily Lane
Grand Rapids, Minnesota 55744
Attention: Mr. Gary D. Lemke
Fax: (218) 326-5579
Telephone: (281) 327-3434
with a copy to:
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402-1498
Attention: Amy E. Ayotte
Fax: (612) 340-8738
Telephone: (612) 340-2600
(b) if to Investor to:
CATERPILLAR INC.
Building Construction Products Division
Suite 300
100 Regency Forest Drive
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Cary, North Carolina 27511
Attention: Donald M. Ings, Vice President
Fax: (919) 465-2868
Telephone: (919) 465-2777
with a copy to:
CATERPILLAR INC.
100 N.E. Adams Street
Peoria, Illinois 61615
Attention: Sean P. Leuba
Fax: (309) 675-1795
Telephone: (312) 675-5654
9.2. Survival. Notwithstanding any knowledge of facts determined or
determinable by Investor or Issuer by investigation, Investor and Issuer shall
have the right to fully rely on the representations, warranties, covenants and
agreements of Issuer contained in this Agreement or in any other documents or
papers delivered in connection herewith. Each representation, warranty, covenant
and agreement of the parties set forth in this Agreement is independent of each
other representation, warranty, covenant and agreement. Each representation and
warranty made by any party in this Agreement shall survive the Closing for a
period of two years.
9.3. Remedies.
(a) Each of Investor and Issuer acknowledge that the other
party would not have an adequate remedy at law for money damages in the
event that any of the covenants or agreements of such party in this
Agreement was not performed in accordance with its terms, and it is
therefore agreed that each of Investor and Issuer in addition to and
without limiting any other remedy or right such party may have, shall
have the right to an injunction or other equitable relief in any court
of competent jurisdiction, enjoining any such breach and enforcing
specifically the terms and provisions hereof, and each of Investor and
Issuer hereby waive any and all defenses such party may have on the
ground of lack of jurisdiction or competence of the court to grant such
an injunction or other equitable relief.
(b) All rights, powers and remedies under this Agreement or
otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy
by such party.
9.4. Entire Agreement. This Agreement (including the Exhibits and
Schedules attached hereto), and other documents delivered at the Closing
pursuant hereto, contain the entire understanding of the parties in respect of
its subject matter and supersede all prior agreements and understandings between
or among the parties with respect to such subject matter. The Exhibits and
Schedules hereto constitute a part hereof as though set forth in full above.
9.5. Expenses; Taxes. Except as otherwise provided in this Agreement,
the parties shall pay their own fees and expenses, including their own counsel
fees, incurred in connection with this Agreement or any transaction contemplated
hereby. Any sales tax, stamp duty, deed transfer or other tax (except taxes
based on the income of Investor) arising out of the sale of the Shares by Issuer
to Investor, and the consummation of the transactions contemplated by this
Agreement shall be paid by Issuer.
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9.6. Amendment; Waiver. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
both parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under each of this Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right, power or privilege hereunder
or thereunder preclude the exercise of any other right, power or privilege. No
waiver of any breach of any provision hereunder or thereunder shall be deemed to
be a waiver of any preceding or succeeding breach of the same or any other
provision, nor shall any waiver be implied from any course of dealing between
the parties. No extension of time for performance of any obligations or other
acts hereunder, thereunder, or under any other agreement shall be deemed to be
an extension of the time for performance of any other obligations or any other
acts.
9.7. Binding Effect; Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and legal assigns. The rights and obligations of this
Agreement may not be assigned by any party without the prior written consent of
the other party.
9.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
9.9. Headings. The headings contained in this Agreement are for
convenience of reference only and are not to be given any legal effect and shall
not affect the meaning or interpretation of this Agreement.
9.10. Governing Law; Interpretation. This Agreement shall be construed
in accordance with and governed for all purposes by the laws of the State of
Minnesota applicable to contracts executed and to be wholly performed within
such State.
9.11. Severability. The parties stipulate that the terms and provisions
of this Agreement are fair and reasonable as of the date hereof. However, any
provision of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement, as applicable, shall
remain in full force and effect and shall in, no way be affected, impaired or
invalidated. If, moreover, any of those provisions shall for any reason be
determined by a court of competent jurisdiction to be unenforceable because
excessively broad or vague as to duration, geographical scope, activity or
subject, it shall be construed by limiting, reducing or defining it, so as to be
enforceable.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed and delivered as of the day and year
first above written.
A.S.V., INC.
By: /s/ Gary Lemke
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Name: Gary D. Lemke
Title: President
CATERPILLAR INC.
By: /s/ Donald M. Ings
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Name: Donald M. Ings
Title: Vice President
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