Exhibit 99
RISK FACTORS
Forward-looking statements made by A.S.V., Inc. (the "Company") 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").
Dependence on Caterpillar Dealer Network. In connection with the
transaction with Caterpillar, the Company intends to shift from an independent
dealer network to selling its products primarily through the Caterpillar dealer
network. As a result, the Company is in the process of terminating its
relationship with certain of its non-Caterpillar dealers and is meeting with new
Caterpillar dealers in an effort to sign these dealers up as dealers for the
Company's products. The Company expects that the vast majority of its sales in
the future will be to Caterpillar dealers. Therefore, the Company will be
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
the transactions with Caterpillar, including the transaction contemplated by the
Commercial Agreements, 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 10% of the outstanding shares of Common Stock (approximately
8% assuming the exercise of all outstanding options and warrants), and has the
right to acquire up to approximately 51% of the Company's Common Stock (assuming
the exercise of all outstanding options and warrants) upon exercise in full of
the Warrant. As a result, Caterpillar has the ability to influence the business
and operations of the Company to a significant extent, and has the ability to
greatly influence any vote of the shareholders, including votes concerning the
election of directors and changes in control. In addition, to the extent
Caterpillar acquires a controlling interest in the Company through the exercise
of the Warrant, other purchases of Common Stock, or otherwise, Caterpillar will
have the ability to control the outcome of any such shareholder votes regardless
of the votes of any other shareholder, including any such vote relating to the
acquisition of the remaining interest in the Company by Caterpillar. Therefore,
Caterpillar may be in a position to control the timing and the terms upon which
any such acquisition or other business combination involving the Company may
occur, subject to the fiduciary duties it might have as a majority shareholder
to the remaining shareholders. In addition to its rights as a shareholder to
influence or control the Company, Caterpillar has certain rights under the
Securities Purchase Agreement
18
between the Company and Caterpillar dated October 14, 1998, including the right
to designate directors for election to the Board of Directors and a right of
first offer with respect to future financings by the Company, which increase
Caterpillar's ability to influence and control 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 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.
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.
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.
Future Capital Needs; Uncertainty of Additional Funding
The Company anticipates that it will require additional financing in order
to expand its business, including capital to expand its current marketing
efforts, expand its production facilities, purchase capital equipment, increase
inventory and accounts receivable and add to its dealer network. Such financing
may be obtained through the exercise of the Warrant held by Caterpillar or
through additional equity or debt financings. Such financing may not be
available when needed or on terms acceptable to the Company. Moreover, any
additional equity financings may be dilutive to existing shareholders, and any
debt financing may involve restrictive covenants. An inability to raise
expansion funds when needed will likely require the Company to delay or scale
back some of its planned market expansion activities.
Competition
Companies whose products compete in the same markets as the Posi-Track and
Track Truck 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.
Dependence on Certain Supplies
Certain of the components included in the Company's products are obtained
from a single supplier or a limited number of suppliers. The rubber track
component of the Company's products is manufactured in Canada by a single
supplier. 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
19
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.
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.
Dependence on Key Personnel
The Company's future success depends to a significant extent upon the
continued service of certain key personnel, including its President, Gary D.
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 one patent on certain aspects of the steering
mechanism used in certain of the Company's products and has filed an additional
patent application. There can be no assurance that the patent 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 Sole Manufacturing Facility
The Company's products are manufactured exclusively at its sole
manufacturing facility in Grand Rapids, Minnesota. In the event that the
manufacturing facility were to be damaged or destroyed or become otherwise
inoperable, the Company would be unable to manufacture its products for sale
until the facility were 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 facility 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.
20
Year 2000 Risks
Year 2000 issues exist when computer systems and applications fail to
recognize date information correctly when the year changes to 2000. If those
computer programs are not corrected, many computer systems could fail or create
erroneous results. The Company's most significant year 2000 risk relates to
year 2000 compliance of the Company's suppliers and customers, particularly
because the Company is dependent on third party suppliers for certain components
of its products. The Company is in the process of identifying year 2000 issues
of key third parties which could impact it. There can be no assurance that the
year 2000 issue will be properly addressed by customers, vendors and other third
parties. The efforts of third parties are not within the Company's control, and
their failure to remedy year 2000 issues successfully could result in business
disruption, loss of revenue and increased operating cost.
21