AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1999
REGISTRATION STATEMENT NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TITAN MOTORCYCLE CO. OF AMERICA
(Exact name of registrant as specified in its Charter)
NEVADA 86-0776876
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2222 WEST PEORIA AVENUE
PHOENIX, ARIZONA 85029
(602) 861-6977
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
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FRANCIS S. KEERY, CHIEF EXECUTIVE OFFICER
TITAN MOTORCYCLE CO. OF AMERICA
2222 WEST PEORIA AVENUE
PHOENIX, ARIZONA 85029
(602) 861-6977
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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COPY TO:
STEVEN D. PIDGEON, ESQ.
SNELL & WILMER L.L.P.
ONE ARIZONA CENTER
PHOENIX, ARIZONA 85004-0001
(602) 382-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.[ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
===========================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Share Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 3,322,031 Shares(1) $ 2.25(2) $ 7,474,569.70 $ 2,077.93
- -----------------------------------------------------------------------------------------------------------
Total 3,322,031 Shares(1) $ 7,474,569.70 $ 2,077.93
===========================================================================================================
(1) Shares of common stock that may be offered pursuant to this Registration
Statement consist of 2,924,064 shares issuable upon conversion of 4,000 shares
of Series A Convertible Preferred Stock and 397,967 shares issuable upon
exercise of certain warrants. For purposes of estimating the number of shares of
common stock to be included in this Registration Statement, we calculated (i)
175% of the number of shares of common stock issuable in connection with the
conversion of the Series A Convertible Preferred Stock, determined as if the
Series A Convertible Preferred Stock, together with twenty-four months of
accrued and unpaid dividends thereon (Series A Convertible Preferred Stock
holders are entitled to dividends, if declared by the Board, at a rate of $60.00
per year per share), were converted in full at the fixed conversion price of
$2.6812 on the date this Registration Statement is first filed plus (ii) 100% of
the number of shares of common stock issuable upon exercise of the warrants.
Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers such indeterminate additional shares of
common stock as may become issuable as a result of stock splits, stock dividends
or other similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based upon the average of the high and low prices of
the common stock on October 11, 1999, as reported by the Nasdaq National Market.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
SUBJECT TO COMPLETION, DATED OCTOBER 15, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
Titan Motorcycle Co. of America
3,322,031 Common Shares
This prospectus relates to shares of our common stock that may be sold by
the selling stockholders named under the section of this prospectus entitled
"Selling Stockholders." The selling stockholders may sell some or all of the
common stock through ordinary brokerage transactions, directly to market makers
of our shares, or through any of the other means described in the section
entitled "Plan of Distribution" beginning on page 10.
The selling stockholders will receive all of the proceeds from the sale of
the common stock, less any brokerage or other expenses of sale incurred by them.
We are paying for the costs of registering the shares covered by this
prospectus.
Our common stock is traded on the Nasdaq SmallCap Market under the symbol
"TMOT." The closing sales price of our common stock as reported by the Nasdaq
SmallCap Market on October 14, 1999 was $2.25 per share.
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BEFORE PURCHASING ANY OF THE SHARES COVERED BY THIS PROSPECTUS, CAREFULLY
READ AND CONSIDER THE RISK FACTORS INCLUDED IN THE SECTION ENTITLED "RISK
FACTORS" BEGINNING ON PAGE 1. YOU SHOULD BE PREPARED TO ACCEPT ANY AND ALL OF
THE RISKS ASSOCIATED WITH PURCHASING THE SHARES, INCLUDING A LOSS OF ALL OF YOUR
INVESTMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THE SALE OF THE COMMON STOCK OR DETERMINED THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE OR COMPLETE. IT IS ILLEGAL FOR ANY
PERSON TO TELL YOU OTHERWISE.
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The date of this prospectus is ___________, 1999.
TABLE OF CONTENTS
PAGE
----
TITAN MOTORCYCLE CO. OF AMERICA................................................1
RISK FACTORS...................................................................1
FORWARD LOOKING STATEMENTS.....................................................6
USE OF PROCEEDS................................................................7
SELLING STOCKHOLDERS...........................................................7
DESCRIPTION OF SECURITIES......................................................7
PLAN OF DISTRIBUTION..........................................................10
LEGAL OPINIONS................................................................11
EXPERTS.......................................................................11
WHERE YOU CAN FIND MORE INFORMATION...........................................12
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT. NO
ONE HAS BEEN AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION.
THE COMMON STOCK IS NOT BEING OFFERED IN ANY JURISDICTION WHERE THE OFFER
IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF THE DOCUMENTS.
TITAN MOTORCYCLE CO. OF AMERICA
We design and manufacture high-end customized heavyweight motorcycles. We
build both highly customized, individually assembled motorcycles and high-end,
assembly-line produced motorcycles. A heavyweight motorcycle is a motorcycle
with an engine size or displacement of 651 cubic centimeters or greater. Our
products are distributed through a network of 61 domestic dealers and 20 foreign
dealers.
We currently maintain three product lines.
PREMIUM MOTORCYCLES: We manufacture seven premium models with a package of
over 200 custom options. Customers design their motorcycles by choosing colors,
paint design, finish, fenders and various performance and aesthetic
enhancements. Premium models are typically constructed and delivered in six to
ten weeks from the order date. Our premium models represented approximately
97.8% of our fiscal year 1998 revenues. The average retail selling price for our
premium models is approximately $35,000.
"PHOENIX BY TITAN" MOTORCYCLES: Our "Phoenix by Titan" line of motorcycles
was introduced in March 1999. We manufacture four "Phoenix by Titan" models with
six standard customization packages available through our dealerships. The
average retail selling price for the "Phoenix by Titan" models is approximately
$20,000 to $25,000.
APPAREL AND ACCESSORIES: We have recently developed a line of Titan apparel
and accessories. We are also developing a premium line of upgrade parts which
are compatible with Titan and other "V Twin" motorcycles.
We are a Nevada corporation, formed on January 10, 1995. Our principal
executive offices are located at 2222 West Peoria Avenue, Phoenix, Arizona and
our telephone number is (602) 861-6977.
RISK FACTORS
BEFORE PURCHASING ANY OF THE SHARES COVERED BY THIS PROSPECTUS, YOU SHOULD
CAREFULLY READ AND CONSIDER THE RISK FACTORS SET FORTH BELOW. YOU SHOULD BE
PREPARED TO ACCEPT ANY AND ALL OF THE RISKS ASSOCIATED WITH PURCHASING THE
SHARES, INCLUDING A LOSS OF ALL OF YOUR INVESTMENT.
WE HAVE A HISTORY OF LOSSES AND WE MAY LOSE MONEY IN THE FUTURE
Although we earned $237,479 in net income for the fiscal year 1998, we
incurred losses of $257,463 in fiscal year 1995, $95,496 in fiscal year 1996 and
$1.7 million in 1997. Through the twenty-six weeks ended July 3, 1999, we had
incurred net losses of $951,562. We expect to incur further losses through the
end of 1999 and may continue to incur losses after 1999. Given our history of
losses, we cannot assure you that we will ever be profitable.
WE MAY BE UNABLE TO REGAIN PROFITABILITY IF WE DO NOT INCREASE CONSUMER DEMAND
FOR OUR PRODUCTS
To regain profitability, we need to generate an increased level of market
acceptance for our products. Our success depends on our ability to meet the
following objectives, none of which we may achieve:
* increase consumer awareness of our products;
* establish a reputation for high quality;
* increase sales through our independent third party dealers; and
* expand our dealer network.
We cannot assure you that we will meet these objectives.
COMPLICATIONS IN THE ESTABLISHMENT AND INTEGRATION OF OUR NEW "PHOENIX BY TITAN"
LINE OF MOTORCYCLES COULD MATERIALLY ADVERSELY AFFECT OUR EXPENSES, GROSS
MARGINS AND OPERATING RESULTS
We recently introduced our "Phoenix by Titan" line of heavyweight
motorcycles. Unlike our custom motorcycles, we manufacture these motorcycles in
four models through an assembly line process. Six standard customization
packages are available through the dealerships for each of the four models.
1
While initial orders have been substantial, there can be no assurance that we
will be able to accomplish the following goals:
* effectively manage any start up difficulties that we may experience;
* successfully adapt to an assembly line manufacturing process; and
* gain or maintain consumer acceptance of this product line.
Also, we cannot assure you that this line, which is less expensive, will
not take sales away from our higher end custom motorcycles or that we will not
face other difficulties in introducing this line. Any of these issues could
materially adversely affect our expenses, gross margins and operating results.
WE CANNOT ASSURE YOU THAT WE WILL BE ABLE TO SUCCESSFULLY IMPLEMENT OUR NEW
MANAGEMENT INFORMATION SYSTEM WHICH COULD RESULT IN A DISRUPTION OF OUR BUSINESS
AND COULD HAVE A NEGATIVE AFFECT ON OUR OPERATIONS
We recently installed a new management information system. This system will
monitor our inventory, production, billing and other operational aspects of our
business. We cannot assure you that we will be able to successfully operate and
utilize this new system which could result in a disruption of our business and
could have a negative affect on our operations.
WE SELL A DISCRETIONARY PRODUCT AND A DOWNTURN IN THE ECONOMY COULD NEGATIVELY
AFFECT OUR GROWTH AND PROFITABILITY
Motorcycles in the high-end customized heavyweight market are discretionary
purchase items. A recession or economic downturn may reduce consumer spending
and negatively affect our growth and profitability. An economic downturn could
result from a number of factors outside of our control, including:
* employment levels;
* business conditions;
* interest rates;
* inflation levels; and
* taxation rates.
COMPETITION IN OUR MARKET HAS INCREASED AND MAY RESULT IN PRICE REDUCTIONS,
REDUCED GROSS MARGINS AND A LOSS OF OUR MARKET SHARE
We operate in the high-end segment of the heavyweight cruiser market. The
overall heavyweight cruiser market has recently experienced an increase in
production capacity and new entrants. Some of our competitors have technical,
production, personnel and financial resources that exceed ours and we cannot
assure you that the competition will not materially adversely affect our
business, financial condition or results of operations. The increased
competition could result in price reductions, reduced gross margins and a loss
of our market share.
Major competitors in the heavyweight cruiser market are:
* Harley-Davidson(TM), the heavyweight cruiser market leader, which is
reportedly increasing its capacity to over 160,000 units from
approximately 148,000 units;
* BMW which entered the segment in 1997 with their "R1200C" model;
* Excelsior-Henderson, which recently entered the market with their
"Super X" model; and
* Polaris, which recently entered the market with their "Victory V92C"
model.
OUR PRODUCTS COULD CONTAIN DEFECTS CREATING PRODUCT RECALLS AND WARRANTY CLAIMS
WHICH COULD MATERIALLY ADVERSELY AFFECT OUR FUTURE SALES AND PROFITABILITY
Our products could contain unforeseen defects. These defects could create
product recalls or warranty claims that could increase our costs and affect
profitability. Significant and continuous defects could negatively impact the
goodwill and quality associated with our name. Defects could also give rise to
litigation which could result in our liability for judgments which could have a
significant impact on our business, operations and financial condition. Product
recalls resulting from unforeseen defects could subject us to a significant
financial commitment and have a significant impact on our business, operations
and financial condition.
2
WE ARE SUBJECT TO CONTINGENT LIABILITIES UNDER A DEALER FLOOR PLAN FINANCING
PROGRAM WHICH COULD EXPOSE US TO SIGNIFICANT FINANCIAL OBLIGATIONS
Approximately 48 of our dealers receive floor plan financing for our
products through TransAmerica Commercial Finance Corporation. The dealers are
the obligors under these floor plan agreements and are responsible for all
principal and interest payments. However, we are subject to a standard
repurchase agreement which requires us to buy back any of our motorcycles at the
wholesale price if the dealer defaults and the motorcycles are repossessed by
TransAmerica. While we have only had to repurchase less than $500,000 worth of
our motorcycles since August of 1997, as of May 28, 1999, total outstanding
obligations of all 48 dealers was approximately $9,500,000. Our profitability
would be significantly negatively impacted if we were forced to repurchase a
large number of these motorcycles.
WE MAY NOT BE ABLE TO RAISE THE ADDITIONAL CAPITAL REQUIRED TO EXECUTE OUR
BUSINESS PLAN
We expect to continue to incur significant capital expenses in continuing
to expand our production lines, introduce new product lines and increase unit
capacity. Our current line of credit expires in April, 2000. Additional
financing may not be available on terms favorable to us, or at all. If adequate
funds are not available or are not available on acceptable terms, we may not be
able to execute our business plan or take advantage of our business
opportunities. In addition, if we elect to raise capital by issuing additional
shares of stock, existing stockholders may incur dilution.
A LARGE PORTION OF OUR REVENUE COMES FROM A SMALL NUMBER OF CUSTOMERS, THE LOSS
OF WHICH COULD MATERIALLY AND ADVERSELY AFFECT OUR OPERATING RESULTS
Francis S. Keery, our Chairman and Chief Executive Officer, and Patrick
Keery, our President, each own 33% of BPF Holdings, LLC, which currently owns
four motorcycle retail stores which are Titan dealers and carry our products.
The four stores are: Titan of Phoenix, Titan of Los Angeles, Titan of Las Vegas
and, most recently, Titan of Houston. In 1998, not including Titan of Houston
(which was then under different ownership), approximately 22.4% of the Company's
sales were to BPF-owned stores. The loss of the BPF dealerships would have a
material adverse affect on our operating results.
WE DEPEND HEAVILY ON THIRD PARTY PARTS SUPPLIERS AND ANY SIGNIFICANT ADVERSE
VARIATION IN QUANTITY, QUALITY OR COST WOULD NEGATIVELY AFFECT OUR OPERATIONS
We operate primarily as an assembler and rely heavily on a number of major
component manufacturers to supply us with almost all of our parts. Any
significant adverse variation in quantity, quality or cost would adversely
affect our volume and cost of production until we could identify alternative
sources of supply.
WE DEPEND ON FOREIGN VENDORS FOR CERTAIN COMPONENT PARTS WHICH EXPOSES US TO
RISKS THAT COULD MATERIALLY AND ADVERSELY AFFECT OUR OPERATING RESULTS
We depend on foreign vendors for certain component parts which exposes us
to additional risks. Our reliance on foreign vendors exposes us to risks such
as:
* currency fluctuations which may adversely affect the value of goods
purchased;
* trade restrictions;
* changes in tariffs; and
* difficulties in enforcing supply arrangements.
The occurrence of any of these risks could materially and adversely affect
our operating results.
WE DEPEND HEAVILY ON INDEPENDENT THIRD PARTY DEALERS AND OUR RESULTS OF
OPERATIONS COULD BE NEGATIVELY IMPACTED IF THE DEALERS FAIL TO ADEQUATELY
PROMOTE OUR PRODUCTS, IMAGE AND NAME
Failures by independent third party dealers to adequately promote our
products could negatively affect our results of operations. Our products are
sold primarily through independent dealers. As a result, we are unable to fully
3
control the presentation, delivery and service of our products to the final
customer. We depend heavily on our dealers' willingness and ability to promote
our products, image and name.
OUR GROWTH DEPENDS ON OUR ABILITY TO EXPAND OUR DISTRIBUTION NETWORK AND SUPPORT
DEALERS AND WE CANNOT ASSURE YOU THAT THIS STRATEGY WILL BE SUCCESSFUL
We plan to expand our dealer network to implement our growth strategy. We
cannot assure you that we will be able to attract additional dealers or that
these dealers will be successful in selling our products.
We plan to support our dealers in the following ways:
* facilitating floor plan financing and incentives;
* providing continuing education about our products;
* supplying parts and accessories; and
* providing training to sales and service personnel.
Any difficulties in the continued execution of this plan may cause us to
lose dealers or experience difficulties in attracting new dealers and could
cause the distribution of our products to be adversely affected.
WE ARE ATTEMPTING TO ESTABLISH SALES OPERATIONS IN FOREIGN MARKETS WHICH
REQUIRES SIGNIFICANT MANAGEMENT ATTENTION AND FINANCIAL RESOURCES AND THIS
STRATEGY MAY NOT BE SUCCESSFUL
We are attempting to establish sales operations in foreign markets, and we
cannot assure you that we will be able to successfully manage the inherent risks
and complications associated with operating in foreign markets. These risks and
complications of operating in foreign markets include the following:
* selecting and monitoring dealers;
* establishing effective dealer training;
* transporting inventory;
* parts availability;
* changes in diplomatic and trade relationships;
* tariffs;
* currency exchange rates; and
* unexpected changes in regulatory requirements.
WE RELY ON COMPUTER HARDWARE AND SOFTWARE THAT COULD HAVE YEAR 2000 PROBLEMS AND
ADVERSELY AFFECT THE RESULTS OF OUR OPERATIONS
We rely on computer hardware, software and related technology, together
with data, in the operation of our business. This technology and data are used
in manufacturing and delivering our products and services, and in our internal
operations, such as billing and accounting. We completed an analysis of our
internal systems and the potential for issues associated with the year 2000
problem. We cannot assure you that this analysis completely identified, or that
we will successfully eliminate, all failures associated with the year 2000 which
could negatively impact our operations. Also, we cannot assure you that third
party customers, suppliers and dealers have successfully resolved their own year
2000 issues over which we have no control.
OUR BUSINESS WILL SUFFER IF WE ARE UNABLE TO KEEP OUR SENIOR EXECUTIVE OFFICERS
AND KEY EMPLOYEES
We rely considerably on the abilities of Francis S. Keery, our Chairman and
Chief Executive Officer and Patrick Keery, our President. We also depend to a
significant extent upon the performance of our executive management team. The
unavailability or loss of services of any of these individuals, or the failure
to attract and retain qualified personnel to replace them, could have a material
adverse affect on our business. We only have a non-competition agreement with
our Chief Financial Officer and we cannot assure you that his agreement will be
enforceable or effective in retaining him. Also, we cannot assure you that our
other executive officers will not leave us.
OUR FINANCIAL CONDITION AND OUR ABILITY TO FULLY IMPLEMENT OUR EXPANSION PLANS
COULD BE NEGATIVELY IMPACTED IF WE FAIL TO EFFECTIVELY MANAGE OUR GROWTH
Our rapid growth has placed, and is expected to continue to place, a
significant strain on our managerial and operational resources. Our failure to
4
effectively manage our growth could negatively impact our operations. Our
ability to support future growth will depend on our ability to find qualified
employees and suitable expansion space for our manufacturing operations and
improving our managerial and production capabilities. We cannot assure you that
we will be able to continue to manage future growth successfully.
WE ARE SUBJECT TO VARIOUS ENVIRONMENTAL REGULATIONS AND OUR FAILURE TO COMPLY
COULD NEGATIVELY IMPACT OUR OPERATIONS
We are subject to various federal, state and local environmental
regulations. Our failure to comply with these regulations could result in any
one or more of the following:
* restrictions on our ability to expand or modify our current operations
or facilities;
* significant expenditures in achieving compliance with the regulations;
* significant liabilities exceeding our available resources; and
* cessation of our operations.
Our business and assets could be materially adversely affected if
environmental regulations require that we modify our facilities or otherwise
limit our ability to conduct our operations. Any significant expenses incurred
as a result of environmental liabilities could have a material adverse affect on
our business, operating results and financial condition.
OUR FAILURE TO COMPLY WITH VARIOUS REGULATORY APPROVALS AND GOVERNMENTAL
REGULATIONS COULD NEGATIVELY IMPACT OUR OPERATIONS
Our motorcycles must comply with certain governmental approvals and
certifications regarding noise, emissions and safety characteristics. Our
failure to comply with these requirements could prevent us or delay us from
selling our products which would have a significant negative impact on our
operations.
OUR QUARTERLY RESULTS MAY FLUCTUATE SIGNIFICANTLY WHICH MAY RESULT IN THE
VOLATILITY OF OUR STOCK PRICE
Our quarterly operating results may fluctuate significantly as a result of
a variety of factors, many of which are outside of our control. These factors
include:
* manufacturing delays;
* the amount and timing of orders from dealers;
* disruptions in the supply of key components and parts;
* seasonal variations in the sale of our products; and
* general economic conditions.
WE COULD BE REQUIRED TO REDEEM OUR SERIES A CONVERTIBLE PREFERRED STOCK AT A
PREMIUM WHICH WOULD REQUIRE A LARGE EXPENDITURE OF CAPITAL AND COULD HAVE A
MATERIAL ADVERSE AFFECT ON OUR FINANCIAL CONDITION
The holders of our Series A Convertible Preferred Stock have the right to
force us to redeem their Series A Convertible Preferred Stock at a premium upon
the occurrence of certain events. The redemption of our Series A Convertible
Preferred Stock would require a large expenditure of capital and we may not have
sufficient funds to satisfy the redemption. In addition, you could face further
dilution of your ownership percentage as a result of a decline in the market
price of our common stock or in the event of certain defaults which would result
in an increase in the number of shares of common stock issuable upon conversion
of the Series A Convertible Preferred Stock. Any such event could adversely
affect the price of our stock and ability to raise additional capital.
WE MAY ISSUE ADDITIONAL STOCK AND DILUTE YOUR OWNERSHIP PERCENTAGE
Certain events over which you have no control could result in the issuance
of additional shares of our common stock, which would dilute your ownership
percentage. We may issue additional shares of common stock or preferred stock:
5
* to raise additional capital or finance acquisitions;
* upon the exercise or conversion of outstanding options, warrants and
shares of convertible preferred stock; or
* in lieu of cash payment of dividends.
There are currently outstanding convertible preferred stock, warrants, and
options to acquire up to 4,970,367 additional shares of common stock. If
converted or exercised, these securities will dilute your percentage ownership
of common stock. These securities, unlike common stock, provide for antidilution
protection upon the occurrence of stock dividends, combinations, capital
reorganizations and other events. If one or more of these events occurs, the
number of shares of common stock that may be acquired upon conversion or
exercise would increase.
OUR GOVERNING DOCUMENTS AND NEVADA LAW CONTAIN PROVISIONS THAT COULD PREVENT
TRANSACTIONS IN WHICH YOU WOULD RECEIVE A PREMIUM FOR YOUR STOCK
Our Articles of Incorporation and the Nevada Revised Statutes contain
provisions that could have the affect of delaying, deferring, or preventing a
change in control and the opportunity to sell your shares at a premium over
current market prices. Although these provisions are intended to protect us and
our stockholders from unwanted takeovers, their effect could hinder or prevent
transactions in which you might otherwise receive a premium for your common
stock over then-current market prices, and may limit your ability to approve
transactions which may be in your best interests. As a result, the mere
existence of these provisions could adversely affect the price of our common
stock.
FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates forward-looking statements
including statements regarding, among other items, our business strategy, growth
strategy, and anticipated trends in our business. We may make additional written
or oral forward-looking statements from time to time in filings with the
Securities and Exchange Commission or otherwise. When we use the words
"believe," "expect," "anticipate," "project" and similar expressions, this
should alert you that this is a forward-looking statement. Forward-looking
statements speak only as of the date the statement is made. These
forward-looking statements are based largely on our expectations. They are
subject to a number of risks and uncertainties, some of which cannot be
predicted or quantified and are beyond our control. Future events and actual
results could differ materially from those set forth in, contemplated by, or
underlying the forward-looking statements. Statements in this prospectus, and in
documents incorporated into this prospectus, including those set forth in "Risk
Factors" describe factors, among others, that could contribute to or cause these
differences. In light of these risks and uncertainties, there can be no
assurance that the forward-looking information contained in this prospectus will
in fact transpire or prove to be accurate. All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by this section.
USE OF PROCEEDS
We will not receive any proceeds from the sale of any shares offered by
this prospectus.
SELLING STOCKHOLDERS
The following table provides information about the selling stockholders.
The shares offered by this prospectus will be offered from time to time by the
selling stockholders named below, or by pledgees, donees, transferees or other
successors in interest to them.
The shares shown as owned and offered by Advantage Fund II Ltd. and Koch
Investment Group Limited under this prospectus may be issued upon conversion of
Series A Convertible Preferred Stock and exercise of warrants acquired by these
selling stockholders from us in a private placement on September 17, 1999. Under
the terms of the Series A Convertible Preferred Stock and the warrants, no
6
selling stockholder can convert Series A Convertible Preferred Stock or exercise
warrants to the extent such conversion or exercise would cause the selling
stockholder's beneficial ownership of our common stock (excluding shares
underlying unconverted Series A Convertible Preferred Stock and unexercised
warrants) to exceed 4.9% of the outstanding shares of common stock.
Shares Percentage of
Maximum Owned After Common Stock Owned
Number of Offering After Offering
Shares Owned Shares to be (Assuming All (Assuming All
Name of Selling Prior to the Sold in the Shares Offered Shares Offered
Stockholders Offering Offering are Sold) are Sold)
--------------- ------------ ------------ -------------- ------------------
Advantage Fund II Ltd. 1,532,895(1) 2,472,773(2) 0 0%
Koch Investment Group
Limited 510,965(1) 824,258(2) 0 0%
Reedland Capital 20,000 20,000 0 0%
Partners
Richard Cohn 2,500 2,500 0 0%
Intellect Capital Corp. 2,500 2,500 0 0%
- ----------
(1) Represents the number of shares issuable upon the conversion of Series A
Convertible Preferred Stock at the initial fixed conversion price of
$2.6812, including conversion of two years of accrued dividends thereon,
and exercise of warrants.
(2) In accordance with the registration rights agreements between us and these
selling stockholders, the number of shares shown as offered by this
prospectus represents 175% of the number of shares issuable upon conversion
of the Series A Convertible Preferred Stock as described in note (1) plus
the shares issuable upon exercise of the warrants.
As of the date of this prospectus, the selling stockholders do not hold any
other securities in Titan other than the shares being offered under this
prospectus and the Series A Convertible Preferred Stock and warrants described
in this prospectus. None of the selling stockholders has had any material
relationship with us within the past three years.
DESCRIPTION OF SECURITIES
We are authorized to issue up to 90,000,000 shares of common stock and
10,000,000 shares of preferred stock. As of October 15, 1999, 17,163,097 shares
of common stock were issued and outstanding. Additionally, as of October 15,
1999, we have outstanding options to purchase 1,143,000 shares of our common
stock, warrants to purchase 397,967 of our common stock and 4,000 shares of our
Series A Convertible Preferred Stock.
Our Board of Directors has the authority, without further action by the
stockholders, to issue a total of up to 10,000,000 preferred shares in one or
more series and to fix the rights, preferences, privileges and restrictions
granted to or imposed upon any series of unissued preferred shares and to
determine the number of shares constituting any series and the designation of
the series, without any further vote or action by the stockholders.
The following summary of certain provisions of the common stock and
preferred shares does not purport to be complete and is subject to, and is
qualified in its entirety by, our amended Articles of Incorporation, Restated
Bylaws, our Certificate of Designations with respect to our Series A Convertible
Preferred Stock, and by the provisions of applicable law.
7
COMMON STOCK
The holders of our common stock are entitled to one vote per share on all
matters on which stockholders are entitled to vote. Subject to the rights of
holders of any class or series of shares, including preferred shares, having a
preference over the common stock as to dividends or upon liquidation, the
holders of our common stock are also entitled to dividends as may be declared by
our Board of Directors out of funds that are lawfully available, and are
entitled upon liquidation to receive pro rata the assets that are available for
distribution to holders of common stock. Holders of the common stock have no
preemptive, subscription, or conversion rights. The common stock is not subject
to assessment and has no redemption provisions.
SERIES A CONVERTIBLE PREFERRED STOCK
We have 4,000 shares of Series A Convertible Preferred Stock authorized,
issued and outstanding. The Series A Convertible Preferred Stock is currently
convertible at any time into a maximum of 3,429,400 shares of our common stock
at a fixed conversion price of $2.6812 which represents the average market price
of our common stock for the ten days prior to the issuance of the Series A
Convertible Preferred Stock on September 17, 1999, the date we sold the Series A
Convertible Preferred Stock. Commencing September 17, 2000, the conversion price
is adjusted every six months to be the lesser of (a) 130% of the prior
conversion price or (b) 90% of the average market price for the ten days prior
to such adjustment date. The conversion price is subject to further adjustment
under certain other circumstances, including our inability to provide the Series
A Convertible Preferred Stockholders with common stock certificates on a timely
basis after receiving notice of their conversion, and our failure to pay any
applicable redemption price when due. Upon an adjustment of the conversion
price, the number of shares into which the Series A Convertible Preferred Stock
may be converted is correspondingly adjusted. The conversion price and number of
shares of common stock underlying the Series A Convertible Preferred Stock is
also subject to adjustment for stock splits, stock dividends, combinations,
capital reorganizations and similar events relating to our common stock.
Dividends at the rate of $60 per annum per share are payable in cash or, at
our option, may be added to the value of the Series A Convertible Preferred
Stock subject to conversion and to the $1,000 per share liquidation preference
of the Series A Convertible Preferred Stock.
If we are in compliance with various provisions, we have the right at any
time to redeem the Series A Convertible Preferred Stock at a premium (generally,
120% of its $1,000 per share liquidation value plus accrued and unpaid
dividends), and under certain circumstances, at the market value of the common
stock into which the Series A Convertible Preferred Stock would otherwise be
convertible. Assuming we are in compliance with various provisions, after the
third anniversary of issuance, we may redeem the Series A Convertible Preferred
Stock at its liquidation value plus accrued and unpaid dividends.
The holders of the Series A Convertible Preferred Stock have the right to
force us to redeem all or some of their Series A Convertible Preferred Stock at
the greater of the premium or converted market value described above under the
following circumstances:
* there is no closing bid price reported for our common stock for five
consecutive trading days;
* our common stock ceases to be listed for trading on the Nasdaq
SmallCap Market;
* the holders of our Series A Convertible Preferred Stock are unable,
for 30 or more days (whether or not consecutive) to sell their common
stock issuable upon conversion of the Series A Convertible Preferred
Stock pursuant to an effective registration statement;
* we default under any of the agreements relating to our sale of the
Series A Convertible Preferred Stock, including our failure to timely
deliver certificates for common stock upon conversion;
* certain business combination events;
* the adoption of any amendment to our Articles of Incorporation
materially adverse to the holders of the Series A Convertible
Preferred Stock without the consent of the holders of a majority of
the Series A Convertible Preferred Stock; and
8
* the holders of the Series A Convertible Preferred Stock are unable to
convert all of their shares because of limitations under exchange or
market rules that require stockholder approval of certain stock
issuances and we fail to obtain such approval.
Upon liquidation, the holders of the Series A Convertible Preferred Stock
will be entitled to receive, before any distribution to holders of our common
stock or any other class or series of our capital stock ranking junior to the
Series A Convertible Preferred Stock, liquidation distributions equal to $1,000
per share, plus any accrued and unpaid dividends.
The Series A Convertible Preferred Stock has no general voting rights.
However, holders of the Series A Convertible Preferred Stock have the right to
consent to the issuance of any capital stock that is senior to the Series A
Convertible Preferred Stock, and to any amendment to the terms of the Series A
Convertible Preferred Stock. In addition, pursuant to the purchase agreements
entered into in connection with the issuance of the Series A Convertible
Preferred Stock, without the consent of the holders of the Series A Convertible
Preferred Stock, we may not issue for approximately 12 months after issuance of
the Preferred Stock, any common stock (or securities convertible into common
stock), at a price below the market price of the common stock on the date of
issuance, except in certain specified instances. For approximately 18 months
after issuance, the holders of the Series A Convertible Preferred Stock also
have a right of first refusal to acquire any such equity securities except in
specified instances set forth in the purchase agreements.
WARRANTS
We also issued warrants in connection with the offering of our Series A
Convertible Preferred Stock. We issued warrants to purchase 372,967 shares of
common stock to the Series A Convertible Preferred Stockholders. We also issued
warrants to purchase 25,000 shares of common stock to Reedland Capital Partners
and its designees as partial compensation for their assistance in placing the
Series A Convertible Preferred Stock. The exercise price of the warrants is
$3.21744 per share. These warrants are the only warrants we currently have
outstanding. They warrants expire on September 17, 2004.
The exercise price and number of shares of common stock issuable upon
exercise of the warrants held by the Series A Convertible Preferred Stockholders
are subject to adjustment in certain events, including the issuance of common
stock (or securities convertible into common stock) at a price below the market
price.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for our common stock is Signature Stock
Transfer, Inc.
CHARTER PROVISIONS AND EFFECTS OF NEVADA LAW
Our Articles of Incorporation authorize our Board of Directors to issue up
to 10,0000,000 shares of preferred stock from time to time in one or more
designated series. Our Board of Directors, without approval of the stockholders,
is authorized to establish the voting powers, designations, preferences,
limitations, restrictions and relative rights of each series of preferred stock,
including voting powers, preferences and relative rights that may be superior to
our common stock. As of October 15, 1999, 4,000 shares of preferred stock have
been designated Series A Convertible Preferred Stock and 4,000 shares of Series
A Convertible Preferred Stock were outstanding.
Sections 78.3791 through 78.3793 of the Nevada Revised Statutes generally
apply to any acquisition of outstanding voting securities of an issuing
corporation which results in the acquiror owning more than 20% of the issuing
corporation's then outstanding voting securities. An issuing corporation is any
Nevada corporation with at least 200 stockholders, at least 100 of which are
stockholders of record and Nevada residents, and which conducts business in
Nevada.
9
The securities acquired in a covered acquisition are denied voting rights
unless a majority of the security holders of the issuing corporation approve the
granting of voting rights. If permitted by the issuing corporation's Articles of
Incorporation or bylaws then in effect, voting securities acquired in the
covered acquisition are redeemable by the issuing corporation at the average
price paid for the securities by the acquiror if the acquiring person has not
given timely notice to the issuing corporation or if the stockholders of the
issuing corporation vote not to grant voting rights to the acquiring person's
securities.
Unless the issuing corporation's Articles of Incorporation or bylaws then
in effect provide otherwise, if the acquiring person acquired securities having
50% or more of the voting power of the issuing corporation's outstanding
securities and the stockholders of the issuing corporation grant voting rights
to the acquiring person, then any stockholders of the issuing corporation who
voted against granting voting rights to the acquiring person may demand that the
issuing corporation purchase, for fair value, all or any portion of his
securities.
Our Articles of Incorporation and bylaws do not limit the effect of these
provisions.
PLAN OF DISTRIBUTION
The selling stockholders, their pledgees, donees, transferees or other
successors in interest may from time to time offer and sell all or a portion of
the shares in transactions on the Nasdaq SmallCap Market, or on any other
securities exchange or market on which the common stock is listed or traded, in
negotiated transactions or otherwise, at prices then prevailing or related to
the then-current market price or at negotiated prices. The selling stockholders
or their pledgees, donees, transferees or other successors in interest may sell
their shares directly or through agents or broker-dealers acting as principal or
agent, or in block trades or pursuant to a distribution by one or more
underwriters on a firm commitment or best-efforts basis. To the extent required,
the names of any agent or broker-dealer and applicable commissions or discounts
and any other required information with respect to any particular offer will be
set forth in an accompanying prospectus supplement. Each of the selling
stockholders and their pledgees, donees, transferees or other successors in
interest reserves the right to accept or reject, in whole or in part, any
proposed purchase of the shares to be made directly or through agents.
In connection with distributions of the shares, any selling stockholder may
enter into hedging transactions with broker-dealers and the broker-dealers may
engage in short sales of the shares in the course of hedging the positions they
assume with the selling stockholder. Any selling stockholder also may sell the
shares short and deliver the shares to close out such short positions. Any
selling stockholder also may enter into option or other transactions with
broker-dealers that involve the delivery of the shares to the broker-dealers,
which may then resell or otherwise transfer such shares. Any selling stockholder
also may loan or pledge the shares to a broker-dealer and the broker-dealer may
sell the shares so loaned or upon a default may sell or otherwise transfer the
pledged shares. These activities are limited by the purchase agreements between
us and the Series A Convertible Preferred Stockholders during periods when the
conversion price is subject to periodic adjustment.
The selling stockholders, any agents, dealers or underwriters that
participate with the selling stockholders in the resale of the shares of common
stock and the pledgees, donees, transferees or other successors in interest of
the selling stockholders may be deemed to be "underwriters" within the meaning
of the Securities Act, in which case any commissions received by such agents,
dealers or underwriters and a profit on the resale of the shares of common stock
purchased by them may be deemed underwriting commissions or discounts under the
Securities Act.
10
In order to comply with the securities laws of particular states, if
applicable, the shares may be sold only through registered or licensed brokers
or dealers.
There is no assurance that the selling stockholders will sell any or all of
the shares.
Pursuant to registration rights agreements between us and the selling
stockholders, we have agreed to pay all expenses incurred in the registration of
the shares other than selling commissions and discounts, brokerage fees and
transfer taxes or any legal, accounting and other expenses incurred by the
selling stockholders.
In addition to selling their common stock under this prospectus, the
selling stockholders may:
* transfer their common stock in other ways not involving market makers
or established trading markets, including by gift, distribution, or
other transfer; or
* sell their common stock under Rule 144 of the Securities Act.
LEGAL OPINIONS
James, Driggs, Walch, Santoro, Kearney, Johnson & Thompson will pass upon
the validity of the common stock offered under this prospectus.
EXPERTS
The financial statements incorporated in this Registration Statement by
reference to the Annual Report on Form 10-KSB for the year ended January 2,
1999, have been so incorporated in reliance on the report of
PriceWaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting. The financial statements of
Titan Motorcycle Co. of America for the year ended December 31, 1997 appearing
in our Annual Report on Form 10-KSB for the fiscal year ended January 2, 1999
have been audited by Jones, Jensen & Company, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
These consolidated financial statements are incorporated herein by reference in
reliance upon the report given upon the authority of PriceWaterhouseCoopers LLP
and Jones, Jensen & Company, as experts in accounting and auditing.
11
WHERE YOU CAN FIND MORE INFORMATION
GOVERNMENT FILINGS: We file annual, quarterly and special reports and other
information with the Securities and Exchange Commission. You may read and copy
any document that we file at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at its regional offices
located at 7 World Trade Center, 13th Floor, New York, New York 10048, and at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Please call the Commission at 1-800-SEC-0330 for more
information about the Public Reference Rooms. Most of our filings are also
available to you free of charge at the Commission's web site at
http://www.sec.gov.
STOCK MARKET: Our common stock is listed on the Nasdaq SmallCap Market and
similar information can be inspected and copied at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
REGISTRATION STATEMENT: We have filed a registration statement under the
Securities Act with the Commission with respect to the common stock offered
under this prospectus. This prospectus is a part of the registration statement.
However, it does not contain all of the information contained in the
registration statement and its exhibits. You should refer to the registration
statement and its exhibits for further information about us and the common stock
offered under this prospectus.
INFORMATION INCORPORATED BY REFERENCE: The Commission allows us to
"incorporate by reference" the information we file with it, which means that we
can disclose important information to you by referring you to those documents.
The information incorporated by reference is an important part of this
prospectus, and information that we file later with the Commission will
automatically update and supersede this information. We have filed the following
documents with the Commission and they are incorporated by reference into this
prospectus:
* our Annual Report on Form 10-KSB for the fiscal year ended January 2,
1999, as amended by Amendment No. 1 thereto on Form 10-KSB/A;
* our Proxy Statement for the 1999 Annual Meeting of Stockholders, dated
April 12, 1999;
* our Quarterly Reports on Form 10-QSB for the fiscal quarters ended
April 3, 1999 and July 3, 1999;
* our Current Reports on Form 8-K, including Exhibits, filed January 8,
1999 and October 1, 1999; and
* the description of our capital stock contained in our registration
statement on Form 10-SB, including all amendments or reports filed for
the purpose of updating the description of our capital stock.
Please note that all other documents and reports filed under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act following the date of this prospectus and
prior to the termination of this offering will be deemed to be incorporated by
reference into this prospectus and to be made a part of it from the date of the
filing of our reports and documents.
You may request free copies of these filings by writing or telephoning us
at the following address:
Investor Relations
Titan Motorcycle Co. of America
2222 West Peoria Avenue
Phoenix, Arizona 85029
(602) 861-6977
12
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF INSURANCE AND DISTRIBUTION
The following are the estimated expenses in connection with the issuance
and distribution of the securities being registered, all of which will be paid
by Titan:
Securities and Exchange Commission Registration Fee $ 2,261
Nasdaq Listing Fee $ 7,500
Legal Fees and Expenses $ 10,000
Accounting Fees and Expenses $ 10,000
Transfer Agent Fees and Expenses $ 2,000
Miscellaneous $ 10,000
--------
TOTAL $ 41,761
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection 2 of Section 78.7502 of Chapter 78 of the Nevada Revised
Statutes (the "NRS") empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction or upon
a plea of nolo contendere or its equivalent does not, of itself, create a
presumption that the person did not act in good faith or in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation or that, with respect to any criminal action or proceeding, he had
reasonable cause to believe his actions were unlawful.
Subsection 2 of Section 78.7502 of the NRS empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted under similar
standards to those described above expect that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation or for amounts paid in settlement to
the corporation unless and only to the extent that the court in which such
action or suit was brought determines that, despite the adjudication of
liability, such person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
II-1
Section 78.7502 of the NRS further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (1) and (2) or in the defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith. Section 78.751 of the NRS provides that any
indemnification provided for by Section 78.7502 of the NRS (by court order or
otherwise) shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled and that the scope of indemnification shall
continue as to directors, officers, employees or agents who have ceased to hold
such positions, and to their heirs, executors and administrators. Section 78.752
empowers the corporation to purchase and maintain insurance on behalf of a
director, officer, employee or agent of the corporation against any liability
asserted against him or incurred by him in any such capacity or arising out of
his status as such whether or not the corporation would have the power to
indemnify him against such liabilities under Section 78.7502.
Article 4.2 of our Articles of Incorporation provide that no director or
officer of ours shall be personally liable to us or any of our stockholders for
damages for breach of their fiduciary duty as a director or officer. This
provision, however, does not eliminate or limit the liability of our directors
or officers for:
* acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law, or
* the payment of distributions in violation of Nevada Revised Statutes
Section 78.300.
Article VI of our bylaws provides for the indemnification of our directors,
officers, employees and agents in a manner substantially identical in scope to
that permitted under Section 78.7502 of the Nevada Revised Statutes. The Bylaws
provide that the expenses of officers and directors incurred in defending any
civil or criminal action, suit or proceeding shall be paid by us as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
3.1 Restated Articles of Incorporation (incorporated by reference to
Exhibit 3.(I) to the Company's Registration Statement on Form
10-SB filed on June 16, 1998).
3.2 Bylaws, as amended and restated on September 10, 1999
(incorporated by reference to Exhibit 3 to the Company's Current
Report on Form 8-K filed October 1, 1999).
4.1 Certificate of Designations of the Series A Convertible Preferred
Stock (incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K filed October 1, 1999).
4.2 Warrant issued to Advantage Fund II Ltd., dated September 17,
1999 (incorporated by reference to Exhibit 4.2 to the Company's
Current Report on Form 8-K filed October 1, 1999).
4.3 Warrant issued to Koch Investment Group Limited, dated September
17, 1999 (incorporated by reference to Exhibit 4.3 to the
Company's Current Report on Form 8-K filed October 1, 1999).
4.4 Warrant issued to Reedland Capital Partners, dated September 17,
1999
4.5 Warrant issued to Mr. Richard Cohn, dated September 17, 1999
4.6 Warrant issued to Intellect Capital Corp., dated September 17,
1999
II-2
4.7 Registration Rights Agreement with Advantage Fund II Ltd., dated
September 15, 1999 (incorporated by reference to Exhibit 4.5 to
the Company's Current Report on Form 8-K filed October 1, 1999).
4.8 Registration Rights Agreement with Koch Investment Group Limited,
dated September 15, 1999 (incorporated by reference to Exhibit
4.6 to the Company's Current Report on Form 8-K filed October 1,
1999).
5 Opinion of James, Driggs, Walch, Santoro, Kearney, Johnson &
Thompson regarding legality.
10.1 Subscription Agreement with Advantage Fund II Ltd., dated as of
September 15, 1999 (incorporated by reference to Exhibit 10.1 to
the Company's Current Report on Form 8-K filed October 1, 1999).
10.2 Subscription Agreement with Koch Investment Group Limited, dated
as of September 15, 1999 (incorporated by reference to Exhibit
10.2 to the Company's Current Report on Form 8-K filed October 1,
1999).
10.3 Loan Agreement with Wells Fargo Bank dated April 10, 1998.
10.4 First Amendment to Loan Agreement with Wells Fargo Bank dated
July 17, 1998.
10.5 Second Amendment to Loan Agreement with Wells Fargo Bank dated
August 21, 1998.
10.6 Third Amendment to Loan Agreement with Wells Fargo Bank dated
November 10, 1998.
10.7 Fourth Amendment to Loan Agreement with Wells Fargo Bank dated
January 22, 1999.
10.8 Fifth Amendment to Loan Agreement with Wells Fargo Bank dated
July 28, 1999.
10.9 Promissory Note with Oxford International Management dated
December 9, 1996.
10.10 Modification of Promissory Note with Oxford International
Management dated December 16, 1997.
10.11 Promissory Note with Oxford International Management dated July
22, 1999.
10.12 Authorized Dealer Sales and Service Agreement with Paragon Custom
Cycles, Inc. dated January 4, 1999.
10.13 Authorized Dealer Sales and Service Agreement with Pujol
Motorcycle Company, LLC dated January 4, 1999.
10.14 Authorized Dealer Sales and Service Agreement with Vegas
Motorcycle Company, LLC dated January 4, 1999.
10.15 Authorized Dealer Sales and Service Agreement with Titan
Motorcycle of Houston, LLC dated May 14, 1999.
10.16 Purchase Sale and Assignment Agreement with TransAmerica
Commercial Finance Corporation dated August 1, 1997.
10.17 Manufacturers/Distributors Financing Agreement with TransAmerica
Commercial Finance Corporation dated April 25, 1997.
10.18 Standard Commercial Industrial Triple Net Lease with Holualoa,
Peoria Avenue Industrial, LLC dated August 7, 1997.
10.19 First Amendment to Standard Industrial Triple Net Lease with
Holualoa, Peoria Avenue Industrial, LLC dated August 7, 1999.
II-3
10.20 Lease for Term with Rough Ice, L.L.C. dated October 1, 1998
10.21 Floorplan Repurchase Agreement with Bombardier Capital, Inc.
dated August 5, 1998.
10.22 Letter Agreement with Thomas & Perkins dated August 1, 1998.
10.23 Letter Agreement with Thomas & Perkins dated February 5, 1999.
10.24 Promotional Agreement with Paisano Publications, Inc. dated
January 21, 1998.
10.25 Letter Agreement with Playboy Enterprises, Inc. dated June 17,
1998.
10.26 Non-Competition Agreement between Titan and Bob Lobban.
23.1 Consent of PriceWaterhouseCoopers LLP
23.2 Consent of Jones, Jensen & Company
23.3 Consent of James, Driggs, Walch, Santoro, Kearney, Johnson &
Thompson (included in Exhibit 5).
24 Power of Attorney (included on signature page of registration
statement).
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement 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;
(2) That, for the purpose of determining any liability under the
Securities Act, 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 that 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report under Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report under Section 15(d) of the Securities
Exchange Act 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.
Insofar as indemnification for liabilities arising under the Securities Act
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 Securities 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 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 Securities Act and will be governed by the final
adjudication of such issue.
II-4
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on October 15, 1999.
TITAN MOTORCYCLE CO. OF AMERICA
/s/ Francis S. Keery
----------------------------------------
Francis S. Keery, Chairman of the Board
of Directors and Chief Executive Officer
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Francis S. Keery, Robert P. Lobban, Patrick
Keery, and Barbara S. Keery, and each of them, his true and lawful
attorneys-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all amendments to this registration statement on
Form S-3 and to sign any registration statement for the same offering that is to
be effective upon filing pursuant to Rule 462(b) of the Securities Act of 1933,
and to file the same, with all exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting under
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully and to all intents and purposes as he might
or could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Francis S. Keery Chairman of the Board of Directors October 15, 1999
- ------------------------ and Chief Executive Officer
Francis S. Keery (Principal Executive Officer)
/s/ Robert P. Lobban Chief Financial Officer (Principal October 15, 1999
- ------------------------ Financial Officer and Principal
Robert P. Lobban Accounting Officer)
/s/ Patrick Keery President and Director October 15, 1999
- ------------------------
Patrick Keery
/s/ Barbara S. Keery Vice President, Secretary and October 15, 1999
- ------------------------
Barbara S. Keery Director
/s/ Harry H. Birkenruth Director October 15, 1999
- ------------------------
Harry H. Birkenruth
/s/ H.B. Tony Turner Director October 15, 1999
- ------------------------
H.B. Tony Turner
II-5
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
3.1 Restated Articles of Incorporation (incorporated by reference to
Exhibit 3.(I) to the Company's Registration Statement on Form
10-SB filed on June 16, 1998).
3.2 Bylaws, as amended and restated on September 10, 1999
(incorporated by reference to Exhibit 3 to the Company's Current
Report on Form 8-K filed October 1, 1999).
4.1 Certificate of Designations of the Series A Convertible Preferred
Stock (incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K filed October 1, 1999).
4.2 Warrant issued to Advantage Fund II Ltd., dated September 17,
1999 (incorporated by reference to Exhibit 4.2 to the Company's
Current Report on Form 8-K filed October 1, 1999).
4.3 Warrant issued to Koch Investment Group Limited, dated September
17, 1999 (incorporated by reference to Exhibit 4.3 to the
Company's Current Report on Form 8-K filed October 1, 1999).
4.4 Warrant issued to Reedland Capital Partners, dated September 17,
1999
4.5 Warrant issued to Mr. Richard Cohn, dated September 17, 1999
4.6 Warrant issued to Intellect Capital Corp., dated September 17,
1999
4.7 Registration Rights Agreement with Advantage Fund II Ltd., dated
September 15, 1999 (incorporated by reference to Exhibit 4.5 to
the Company's Current Report on Form 8-K filed October 1, 1999).
4.8 Registration Rights Agreement with Koch Investment Group Limited,
dated September 15, 1999 (incorporated by reference to Exhibit
4.6 to the Company's Current Report on Form 8-K filed October 1,
1999).
5 Opinion of James, Driggs, Walch, Santoro, Kearney, Johnson &
Thompson regarding legality.
10.1 Subscription Agreement with Advantage Fund II Ltd., dated as of
September 15, 1999 (incorporated by reference to Exhibit 10.1 to
the Company's Current Report on Form 8-K filed October 1, 1999).
10.2 Subscription Agreement with Koch Investment Group Limited, dated
as of September 15, 1999 (incorporated by reference to Exhibit
10.2 to the Company's Current Report on Form 8-K filed October 1,
1999).
10.3 Loan Agreement with Wells Fargo Bank dated April 10, 1998.
10.4 First Amendment to Loan Agreement with Wells Fargo Bank dated
July 17, 1998.
10.5 Second Amendment to Loan Agreement with Wells Fargo Bank dated
August 21, 1998.
10.6 Third Amendment to Loan Agreement with Wells Fargo Bank dated
November 10, 1998.
10.7 Fourth Amendment to Loan Agreement with Wells Fargo Bank dated
January 22, 1999.
10.8 Fifth Amendment to Loan Agreement with Wells Fargo Bank dated
July 28, 1999.
10.9 Promissory Note with Oxford International Management dated
December 9, 1996.
10.10 Modification of Promissory Note with Oxford International
Management dated December 16, 1997.
10.11 Promissory Note with Oxford International Management dated July
22, 1999.
10.12 Authorized Dealer Sales and Service Agreement with Paragon Custom
Cycles, Inc. dated January 4, 1999.
10.13 Authorized Dealer Sales and Service Agreement with Pujol
Motorcycle Company, LLC dated January 4, 1999.
10.14 Authorized Dealer Sales and Service Agreement with Vegas
Motorcycle Company, LLC dated January 4, 1999.
10.15 Authorized Dealer Sales and Service Agreement with Titan
Motorcycle of Houston, LLC dated May 14, 1999.
10.16 Purchase Sale and Assignment Agreement with TransAmerica
Commercial Finance Corporation dated August 1, 1997.
10.17 Manufacturers/Distributors Financing Agreement with TransAmerica
Commercial Finance Corporation dated April 25, 1997.
10.18 Standard Commercial Industrial Triple Net Lease with Holualoa,
Peoria Avenue Industrial, LLC dated August 7, 1997.
10.19 First Amendment to Standard Industrial Triple Net Lease with
Holualoa, Peoria Avenue Industrial, LLC dated August 7, 1999.
10.20 Lease for Term with Rough Ice, L.L.C. dated October 1, 1998
10.21 Floorplan Repurchase Agreement with Bombardier Capital, Inc.
dated August 5, 1998.
10.22 Letter Agreement with Thomas & Perkins dated August 1, 1998.
10.23 Letter Agreement with Thomas & Perkins dated February 5, 1999.
10.24 Promotional Agreement with Paisano Publications, Inc. dated
January 21, 1998.
10.25 Letter Agreement with Playboy Enterprises, Inc. dated June 17,
1998.
10.26 Non-Competition Agreement between Titan and Bob Lobban.
23.1 Consent of PriceWaterhouseCoopers LLP
23.2 Consent of Jones, Jensen & Company
23.3 Consent of James, Driggs, Walch, Santoro, Kearney, Johnson &
Thompson (included in Exhibit 5).
24 Power of Attorney (included on signature page of registration
statement).