Exhibit 2(d)
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into and delivered
as of October 13, 1998 by James H. Dahl, Gary D. Lemke, JoAnn Lemke, Philip C.
Smaby, Jerome T. Miner, Edgar E. Hetteen, Hannah Hetteen, Leland T. Lynch,
Karlin S. Symons, R.E. "Teddy" Turner, IV, and Thomas R. Karges (individually, a
"Shareholder", and collectively, the "Shareholders"), and Caterpillar Inc., a
Delaware corporation ("Investor").
RECITALS
As of the date of this Agreement, each Shareholder owns of record or
otherwise controls the voting power of the shares of common stock, par value
$0.01 per share ("Common Stock"), of A.S.V., Inc., a Minnesota corporation
("ASV") set forth under his or her name on the signature page hereto. All such
shares, together with any shares of ASV Common Stock acquired by a Shareholder
or as to which a Shareholder acquires the control of voting power prior to the
termination of this Agreement, are sometimes referred to herein as the "Shares"
and the Shares owned or controlled by an individual Shareholder are sometimes
referred to herein as "his or her Shares."
ASV and Investor propose to enter into a Securities Purchase Agreement
within one day of the date hereof (as the same may be amended from time to time,
the "Purchase Agreement"), which is to provide for Investor to purchase, and ASV
to issue to Investor, 1,000,000 shares of Common Stock and a warrant to purchase
an additional 10,267,127 shares of Common Stock (the "Investment"), on the terms
set forth in the Purchase Agreement.
Investor has required, as a condition to its willingness to enter into
the Purchase Agreement, that each Shareholder enter into this Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants,
and agreements set forth in the Purchase Agreement and in order to induce
Investor to enter into the Purchase Agreement, and to consummate the
transactions contemplated thereby, each Shareholder hereby agrees as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby represent and warrant to Investor as follows:
1.1 Authority, Etc. Each Shareholder is an individual with competence
and authority under applicable law to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. Each Shareholder has all
necessary authority to execute, deliver, and perform this Agreement and the
grant of the rights covered hereby. This Agreement has been duly executed and
delivered by each Shareholder and constitutes a legal, valid, and binding
obligation of each such Shareholder, enforceable against such Shareholder in
accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general equitable principles, regardless of
whether such enforceability is considered in a proceeding at law or in equity.
1.2 Title to Shares. Each Shareholder is the record and beneficial
owner of or otherwise controls the voting power of the number of Shares set
forth under his or her name on the signature page hereto and owns or controls
such Shares free and clear of liens, claims, charges or encumbrances of any kind
or any proxy or voting restriction.
ARTICLE II
TRANSFER AND VOTING OF SHARES
2.1 Restriction on Transfer of Shares. During the Term (as defined
below), except as set forth in the following sentence, each Shareholder shall
not (a) sell, transfer, pledge, grant a security interest in or lien on or
otherwise dispose of or encumber any of his or her Shares or relinquish control
of the voting power with respect to any of his or her Shares, (b) deposit any of
his or her Shares into a voting trust, enter into a voting agreement or
arrangement or grant any proxy (except a proxy under the Proxy Statement voted
in accordance with this Agreement) with respect to any of his or her Shares, or
(c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect acquisition or sale, assignment, transfer,
pledge, grant of a security interest in or lien on or other disposition of or
encumbrance on his or her Shares. Notwithstanding the foregoing, it shall not
constitute a breach of this Agreement if (i) any Shareholder delivers Shares in
payment of the exercise price of options to purchase Common Stock or (ii) the
following Shareholders sell or transfer up to the amount of Shares indicated
after their names in connection with gift or charitable contributions or sales
made for the purpose of paying income taxes incurred by them in 1998: Edgar E.
Hetteen - 50,000 Shares; Philip C. Smaby - 50,000 Shares; Karlin S. Symons -
1,500 Shares; and Thomas R. Karges - 1,000 Shares.
2.2 Voting of Shares. Each Shareholder does hereby irrevocably agree to
vote each of his or her Shares at every annual, special or adjourned meeting of
the shareholders (including any consent in lieu of a meeting) of ASV during the
term of this Agreement (i) in favor of the approval of the Purchase Agreement
and the Investment by Investor and its permitted assigns pursuant to the
Purchase Agreement and consummation of all other transactions contemplated by
the Purchase Agreement, (ii) against any Competing Transaction (as defined in
the Purchase Agreement) involving ASV, or any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of ASV under the Purchase Agreement or which could
result in any of the conditions to ASV's obligations under the Purchase
Agreement not being fulfilled, and (iii) in favor of any other matter relating
to the consummation of the transactions contemplated by the Purchase Agreement.
For the purposes of this Agreement, "Term" shall mean the period from the date
of execution of this Agreement until
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the earlier of the date of termination of the Purchase Agreement or the date of
the closing of the transactions contemplated thereby.
2.3 Further Assurances. Each Shareholder shall take such further
actions and execute such further documents and instruments as may reasonably be
requested by Investor to carry out the provisions of this Agreement.
ARTICLE III
GENERAL PROVISIONS
3.1 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, each Shareholder
agrees to negotiate with Investor in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
3.2 Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes all prior agreements and undertakings, both
written and oral, between each Shareholder and Investor, with respect to the
subject matter hereof.
3.3 Assignment. Except as provided herein, this Agreement shall not be
assigned by operation of law or otherwise. This Agreement shall be binding upon
each Shareholder and his or her successors and assigns.
3.4 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of Investor, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
3.5 Specific Performance. Each Shareholder agrees that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that Investor shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
3.6 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Minnesota applicable to contracts
executed and to be performed entirely within that State. Any and all service of
process and any other notice in any such action, suit or proceeding shall be
effective against each Shareholder if given by mail, postage prepaid, mailed to
such Shareholder at his or her address as currently reflected on the records of
ASV.
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3.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each Shareholder has caused this Agreement to be
duly executed and delivered as of the day and year first written above.
THE SHAREHOLDERS:
/s/ James H. Dahl
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James H. Dahl
788,550 shares of Common Stock
/s/ Gary D. Lemke
-----------------------------------
Gary D. Lemke
65,678 shares of Common Stock
/s/ Gary Lemke
-----------------------------------
Gary and JoAnn Lemke by Gary Lemke
143,209 shares of Common Stock
/s/ JoAnn Lemke
-----------------------------------
JoAnn Lemke
61,363 shares of Common Stock
/s/ Philip C. Smaby
-----------------------------------
Philip C. Smaby
374,006 shares of Common Stock
/s/ Jerome T. Miner
-----------------------------------
Jerome T. Miner
359,850 shares of Common Stock
/s/ Edgar E. Hetteen
-----------------------------------
Edgar E. Hetteen
120,877 shares of Common Stock
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/s/ Hannah Hetteen
-----------------------------------
Hannah Hetteen
113,100 shares of Common
/s/ Leland T. Lynch
-----------------------------------
Leland T. Lynch
16,500 shares of Common Stock
/s/ Karlin S. Symons
-----------------------------------
Karlin S. Symons
13,103 shares of Common Stock
/s/ R. E. Turner, IV
-----------------------------------
R.E. "Teddy" Turner, IV
750 shares of Common Stock
/s/ Thomas R. Karges
-----------------------------------
Thomas R. Karges
4,366 shares of Common Stock
ACCEPTED AND AGREED:
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CATERPILLAR INC.
By:
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Its:
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