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Exhibit 4.5
These securities have not been registered under the Securities Act of 1933 or
any state securities laws. These securities have been acquired for investment
and not with a view to distribution or resale, and may not be sold, mortgaged,
pledged, hypothecated or otherwise transferred without registration under the
Securities Act of 1933 and qualification under state securities laws, or an
opinion of counsel acceptable to the corporation that registration and
qualification is not required.
TITAN MOTORCYCLE CO. OF AMERICA
Common Stock Purchase Warrant
To Subscribe for and Purchase March 7, 2000
2,135 Shares of Common Stock of
TITAN MOTORCYCLE CO. OF AMERICA
THIS CERTIFIES that, for good and valuable consideration, the
sufficiency of which is hereby acknowledged, Mr. Thomas J. Griesel or his
registered assigns (the "Holder") is entitled to subscribe for and purchase from
TITAN MOTORCYCLE CO. OF AMERICA, a Nevada corporation (hereinafter called the
"Company"), up to 2,135 shares (subject to adjustment as hereinafter provided)
of fully paid and non-assessable Common Stock of the Company (the "Common
Stock"), subject to the provisions and upon the terms and conditions hereinafter
set forth at the price of $2.00 per share (such price as may from time to time
be adjusted as provided herein is called the "Warrant Price"), at or prior to
5:00 p.m. Pacific time on March 7, 2005 (the "Exercise Period").
This Warrant and any Warrant subsequently issued upon exchange or transfer
hereof are hereinafter collectively called the "Warrant."
Section 1. EXERCISE OF WARRANT. The rights represented by this Warrant may
be exercised by the Holder, in whole or in part (but not as to fractional
shares) at any time or from time to time during the Exercise Period by the
completion of the purchase form attached hereto and by the surrender of this
Warrant (properly endorsed) at the office of the Company as it may designate by
notice in writing to the Holder hereof at the address of the Holder appearing on
the books of the Company, and by payment to the Company of the Warrant Price in
cash or by certified or official bank check, for each share being purchased. In
the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the shares of Common Stock so purchased,
registered in the name of the Holder or its nominee or other party designated in
the purchase form by the Holder hereof, shall be delivered to the Holder as soon
as practicable after the exercise of this Warrant, and in any event within five
(5) business days after the date on which the rights represented by this Warrant
shall have been so exercised; and, unless this Warrant has expired or has been
exercised in full, a new Warrant representing the number of shares (except a
remaining fractional share), if any, with respect to which this Warrant shall
not then have been exercised shall also be issued to the Holder within such
time. The person in whose name any certificate for shares of Common Stock is
issued upon exercise of this Warrant shall for all purposes be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Warrant is made, except that, if the
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date of such surrender and payment is a date on which the stock transfer books
of the Company are closed, such person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date on which the
stock transfer books are open. No fractional shares shall be issued upon
exercise of this Warrant and no payment or adjustment shall be made upon any
exercise on account of any cash dividends on the Common Stock issued upon such
exercise. If any fractional interest in a share of Common Stock would, except
for the provision of this Section 1, be delivered upon such exercise, the
Company, in lieu of delivery of a fractional share thereof, shall pay to the
Holder an amount in cash equal to the current market price of such fractional
share as determined in good faith by the Board of Directors of the Company.
Current market price means the closing price of the Common Stock on the relevant
date as reported on the Nasdaq SmallCap Market (or any national securities
exchange, national market including the Nasdaq National Market, or other
quotation system on which the Common Stock is then listed) or, if no prices are
reported for that date, such prices on the next preceding date for which closing
prices were reported, or if the Common Stock is not publicly traded, by such
methods or procedures as may be established from time to time by the Board of
Directors of the Company in good faith.
Section 2. STOCK SPLITS, CONSOLIDATION, MERGER, AND SALE. In the event that
before the issuance of the shares of Common Stock into which this Warrant may be
exercised the outstanding shares of Common Stock shall be split, combined, or
consolidated, by dividend, reclassification or otherwise, into a greater or
lesser number of shares of Common Stock or any other class or classes of stock,
as appropriate, the Warrant Price in effect immediately prior to such
combination or consolidation and the number of shares purchasable under this
Warrant shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately adjusted. If there shall be effected any
consolidation or merger of the Company with another corporation, or a sale of
all or substantially all of the Company's assets to another corporation, and if
the holders of Common Stock shall be entitled pursuant to the terms of any such
transaction to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such consolidation, merger or
sale, lawful and adequate provisions shall be made whereby the Holder of this
Warrant shall thereafter have the right to receive, upon the basis and upon the
terms and conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore receivable upon the exercise of such Warrant, such
shares of stock, securities or assets as may be issuable or payable with respect
to or in exchange for a number of outstanding shares of such Common Stock equal
to the number of shares of such Common Stock immediately theretofore so
receivable had such consolidation, merger or sale not taken place, and in any
such case appropriate provisions shall be made with respect to the rights and
interests of the Holder to the end that the provisions hereof shall thereafter
be applicable, as nearly as may be, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise of this Warrant.
(a) STOCK TO BE RESERVED. The Company will at all times reserve and
keep available out of its authorized Common Stock, solely for the purpose of
issue upon the exercise of this Warrant as herein provided, such number of
shares of Common Stock as shall then be issuable upon the exercise of this
Warrant.
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(b) ISSUE TAX. The issuance of certificates for shares of Common Stock
upon exercise of this Warrant shall be made without charge to the Holders of
this Warrant for any issuance tax in respect thereof provided that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than that of the Holder of this Warrant, which shall be borne by the
Holder.
(c) CLOSING OF BOOKS. The Company will not close its transfer books to
impair any issuance of the shares of Common Stock upon the exercise of this
Warrant.
Section 3. NOTICES OF RECORD DATES. In the event of:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution (other than cash
dividends out of earned surplus), or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all the assets of the Company to or consolidation or merger of the
Company with or into any other corporation, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company, then and in each such event the Company will give notice to the
Holder of this Warrant specifying (i) the date on which any such record is to be
taken for the purpose of such dividend, distribution or right and stating the
amount and character of such dividend, distribution or right, and (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock will be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up. Such notice shall be given at least ten (10) days and not more than
ninety (90) days prior to the date therein specified, and such notice shall
state that the action in question or the record date is subject to the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") or to a favorable vote of shareholders, if either
is required. Any failure to provide a notice hereunder shall not affect the
corporate action taken.
Section 4. NO SHAREHOLDER RIGHTS OR LIABILITIES. This Warrant shall not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision hereof, in the absence of affirmative action by the
Holder hereof to purchase shares of Common Stock, and no mere enumeration hereon
of the rights or privileges of the Holder hereof, shall give rise to any
liability of such Holder for the Warrant Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
Section 5. REPRESENTATIONS OF HOLDER. The Holder hereby represents and
acknowledges to the Company as of the date hereof and as of each exercise of
this Warrant that:
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(a) this Warrant, the Common Stock issuable upon exercise of this
Warrant and any securities issued with respect to any of them by way of a stock
dividend or stock split or in connection with a recapitalization, merger,
consolidation or other reorganization will be "restricted securities" as such
term is used in the rules and regulations under the Securities Act; such
securities have not been and may not be registered under the Securities Act or
any state securities law; and such securities must be held indefinitely unless
registration is effected or transfer can be made pursuant to appropriate
exemptions;
(b) the Holder has read, and fully understands, the terms of this
Warrant set forth on its face and the attachments hereto, including the
restrictions on transfer contained herein;
(c) the Holder is purchasing for investment for its own account and not
with a view to or for sale in connection with any distribution of this Warrant
or the Common Stock of the Company issuable upon exercise of this Warrant and it
has no intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state securities
laws;
(d) the Holder is an "accredited investor" within the meaning of
paragraph (a) of Rule 501 of Regulation D promulgated by the Securities and
Exchange Commission and an "excluded purchaser" within the meaning of Section
25102(f) of the California Corporate Securities Law of 1968; and
(e) the Company may affix the following legend (in addition to any
other legend(s), if any, required by applicable state corporate and/or
securities laws) to certificates for shares of Common Stock (or other
securities) issued upon exercise of this Warrant:
These securities have not been registered under the Securities Act of
1933 or any state securities laws. These securities have been acquired
for investment and not with a view to distribution or resale, and may
not be sold, mortgaged, pledged, hypothecated or otherwise transferred
without registration under the Securities Act of 1933 and qualification
under state securities laws, or an opinion of counsel acceptable to the
corporation that registration and qualification is not required.
Section 6. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
(a) The Holder may not transfer this Warrant without the written
consent of the Company and an opinion of counsel acceptable to the Company that
the transfer may be effected in compliance with exemptions under the Securities
Act and applicable state securities laws. The Holder may not transfer the Common
Stock underlying the Warrant unless there is an effective registration statement
in effect under the Securities Act and the transfer is qualified under
applicable state securities laws, or the Holder has delivered to the Company an
opinion of counsel acceptable to the Company that registration and qualification
is not required.
(b) The Company is obligated to cause a registration statement to be
filed under the Securities Act on or before April 7, 2000 pursuant to a
Registration Rights Agreement between the Company and Advantage Fund II Ltd. and
a Registration Rights Agreement between the Company and Koch Investment Group
Limited (the "Registration Statement"). The Company
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shall include in such Registration Statement all of the Common Stock issuable
upon conversion of the Warrant.
(c) All fees, disbursements, and out-of-pocket expenses incurred in
connection with the filing of the Registration Statement under Paragraph (a) of
Section 6 and in complying with applicable securities and Blue Sky laws shall be
borne by the Company, provided, however, that any expenses of the individual
Holder or holders of the underlying securities, including but not limited to the
Holder or holders' attorneys' fees and discounts and commissions, shall be borne
by the Holder and holders of the Common Stock. The Company at its expense will
supply the Holder and any holder of Common Stock with copies of the Registration
Statement and the prospectus or offering circular included therein and other
related documents in such quantities as may be reasonably requested by the
Holder or holder of Common Stock.
(d) The Company shall have no obligation to register the Warrant but
shall be obligated to register the Common Stock issuable upon exercise of the
Warrant in accordance with Paragraph (b) of Section 6.
(e) The Company agrees that it will use its best efforts to keep such
Registration Statement effective until March 7, 2005 or such earlier date as all
Common Stock covered by such Registration Statement have been disposed of
pursuant thereto.
(f) The Holder agrees to cooperate with the Company and to provide the
Company on its request with all information concerning the Holder, the Warrant
issued hereunder, any Common Stock acquired upon exercise of the Warrant and the
means or methods of intended disposition of the Common Stock pursuant to the
Registration Statement that may reasonably be requested by the Company in order
for the Company to perform its obligation under this Section 6.
Section 7. LOST, STOLEN, MUTILATED, OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated, or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may in its discretion reasonably impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated, or destroyed.
Section 8. PRESENTMENT. Prior to due presentment of this Warrant, together
with a completed assignment form attached hereto for registration of transfer,
the Company may deem and treat the Holder as the absolute owner of the Warrant,
notwithstanding any notation of ownership or other writing thereon, for the
purpose of any exercise thereof and for all other purposes, and the Company
shall not be affected by any notice to the contrary.
Section 9. NOTICE. Notice or demand pursuant to this Warrant shall be
sufficiently given or made, if sent by first-class mail, postage prepaid,
addressed, if to the Holder of this Warrant, to the Holder at its last known
address as it shall appear in the records of the Company, and if to the Company,
at 2222 West Peoria Avenue, Phoenix, Arizona 85029, Attention: Chief Financial
Officer. The Company may alter the address to which communications are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 9 for the giving of notice.
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Section 10. GOVERNING LAW. The validity, interpretation, and performance
of this Warrant shall be governed by the laws of the State of Arizona without
regard to principles of conflicts of laws.
Section 11. SUCCESSORS, ASSIGNS. Subject to the restrictions on transfer by
Holder set forth in Section 6 hereof, all the terms and provisions of the
Warrant shall be binding upon and inure to the benefit of and be enforceable by
the respective successors and assigns of the parties hereto.
Section 12. AMENDMENT. This Warrant may be modified, amended, or terminated
by a writing signed by the Company and the Holder.
Section 13. SEVERABILITY. Should any part but not the whole of this Warrant
for any reason be declared invalid, such decision shall not affect the validity
of any remaining portion, which remaining portion shall remain in force and
effect as if this Warrant had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties hereto that
they would have executed the remaining portion of this Warrant without including
therein any such part which may, for any reason, be hereafter declared invalid.
Section 14. NO IMPAIRMENT. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Warrant and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant against impairment.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
and delivered on and as of the day and year first above written by one of its
officers thereunto duly authorized.
TITAN MOTORCYCLE CO. OF AMERICA,
a Nevada corporation
Dated: ________________________
By: ________________________________
Title: _______________________________
The undersigned Holder agrees and accepts this Warrant and acknowledges
that it has read and confirms each of the representations contained in Section
5.
THOMAS J. GRIESEL
____________________________________
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PURCHASE FORM
(To be executed by the Warrant Holder if he desires to exercise the Warrant in
whole or in part)
To: TITAN MOTORCYCLE CO. OF AMERICA
The undersigned, whose Social Security or other identifying number is
_______________, hereby irrevocably exercises the attached Warrant, agrees to
purchase ______________ shares of Common Stock, and tenders payment herewith to
the order of TITAN MOTORCYCLE CO. OF AMERICA in the amount of $________________.
The undersigned requests that certificates for such shares be issued as
follows:
Name: ___________________________________
Address: ________________________________
________________________________
________________________________
Deliver to: _____________________________
Address: ________________________________
________________________________
________________________________
and, if the number of shares shall not be all the shares purchasable under the
Warrant, that a new Warrant for the balance remaining of the shares purchasable
under the attached Warrant be registered in the name of, and delivered to, the
undersigned at the address stated below:
Address: ________________________________
________________________________
________________________________
By this exercise,
The undersigned hereby reaffirms its representations and warrants set
forth in Section 5 of the Warrant as of the date hereof.
Dated:______________, _____ Signature: _________________________________
(Signature must conform in all respects to
the name of the Warrant Holder as specified
on the face of the Warrant, without
alteration, enlargement or any change
whatsoever)
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ASSIGNMENT
(To be executed by the Warrant Holder if he desires to effect a transfer of the
Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________________________, whose Social Security or other
identification number is _________________ [residing/located] at ______________
_________________________________________________ the attached Warrant, and
appoints _____________________________ residing at _____________________________
_____________________________________________ the undersigned's attorney-in-fact
to transfer said Warrant on the books of the Company, with full power of
substitution in the premises.
Dated:_______________, _____
In the presence of:
_________________________________ ______________________________________
(Signature must conform in all respects to
the name of the Warrant Holder as specified
on the face of the Warrant, without
alteration, enlargement or any change
whatsoever).