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EXHIBIT 4.7
WARRANT AMENDMENT AGREEMENT
THIS WARRANT AMENDMENT AGREEMENT, dated as of May 24, 2000 (this
"Agreement"), is by and among TITAN MOTORCYCLE CO. OF AMERICA, a Nevada
corporation, with headquarters located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ADVANTAGE FUND II LTD., a British Virgin
Islands corporation ("Advantage") and ▇▇▇▇ INVESTMENT GROUP LIMITED, a Delaware
corporation ("▇▇▇▇") and, collectively with Advantage, the "Holders").
W I T N E S S E T H:
WHEREAS, the Holders purchased shares of Series A Convertible Preferred
Stock, $.001 par value, of the Company and acquired warrants (the "Series A
Warrants") to purchase shares of Common Stock, $.001 par value ("Common Stock"),
of the Company pursuant to separate Subscription Agreements, each dated as of
September 15, 1999 (the "Series A Subscription Agreements"), between the Company
and each Holder;
WHEREAS, the Holders purchased shares of Series B Convertible Preferred
Stock, $.001 par value, of the Company and acquired warrants (the "Series B
Warrants") to purchase shares of Common Stock pursuant to separate Subscription
Agreements, each dated as of March 7, 2000 (together with the Series A
Subscription Agreements, referred to herein collectively as the "Subscription
Agreements"), between the Company and each Holder (capitalized terms used herein
without definition shall have the meanings given them in the Subscription
Agreements); and
WHEREAS, the Company desires to reduce the exercise price of the Series
A Warrants and the Series B Warrants (collectively, the "Warrants") to induce
the Holders to promptly exercise a portion of the Warrants for cash;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AMENDMENT OF WARRANTS
The Company hereby amends, effectively immediately, each of the
following outstanding Warrants issued to each of the Holders to reduce, in each
case, the initial Purchase Price (as such term is defined in the Warrants) to
$1.00 per share, subject to adjustment a provided in the respective Warrants:
(i) The Series A Warrant, dated September 17, 1999, to purchase
279,725 shares of Common Stock issued to Advantage with an
original Purchase Price of $3.21744;
(ii) The Series A Warrant, dated September 17, 1999, to purchase
93,242 shares of Common Stock issued to ▇▇▇▇ with an original
Purchase Price of $3.21744;
(iii) The Series B Warrant, dated March 9, 2000, to purchase 187,500
shares of Common Stock issued to Advantage with an original
Purchase Price of $2.00; and
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(iv) The Series B Warrant, dated March 9, 2000, to purchase 62,500
shares of Common Stock issued to ▇▇▇▇ with an original
Purchase Price of $2.00.
2. EXERCISE OF CERTAIN WARRANTS
(a) With in one Business Day after the satisfaction by the
Company of Conditions (as defined below) each Holder shall exercise for cash
Series A Warrants and/or Series B Warrants to purchase the following respective
number of shares of Common Stock:
Advantage: 225,000
▇▇▇▇: 75,000
The Warrants shall be exercised by the Holders and the Company shall deliver the
shares of Common Stock issuable upon such exercise in accordance with the terms
of the Warrants. For purposes of this Agreement, "Conditions" shall mean:
(i) the filing by the Company with the SEC of a Current Report on
Form 8-K disclosing the material terms of this Agreement; and
(ii) the accuracy at the time of exercise of the Warrants of the
representations and warranties of the Company contained in
this Agreement as if made at such time.
If the Conditions are not satisfied or waived by the Holders on or before May
26, 2000, the Holders shall have no obligation to exercise the Warrants pursuant
to this Section 2(a).
(b) At the request of Advantage or ▇▇▇▇, within five Business Days after
Advantage or ▇▇▇▇ surrenders to the Company their original Warrants for exercise
or exchange, the Company shall issue to such Holders, in exchange for the
unexercised portion of such surrendered Warrants, amended Warrants of like tenor
which reflect the $1.00 initial Purchase Price effected by this Agreement.
However, the failure for any reason to so exchange outstanding Warrants for new
Warrants shall not affect the validity or enforceability of such outstanding
Warrants as amended hereby.
3. COMPANY REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to, and covenants and agrees with,
each Holder that:
(a) WARRANT AMENDMENT AGREEMENT. This Agreement has been duly
and validly authorized by the Company, this Agreement has been duly executed and
delivered on behalf of the Company, and this Agreement is, and the Warrants, as
amended hereby, are valid and binding obligations of the Company enforceable in
accordance with their respective terms, subject to general principles of equity
and to bankruptcy, insolvency, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and limits upon rights to indemnity.
(b) NON-CONTRAVENTION. The execution and delivery of this
Agreement by the Company and the amendment of the Warrants as contemplated
hereby and completion of the
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other transactions contemplated hereby do not and will not conflict with or
result in a breach by the Company of any of the terms or provisions of, or
constitute a default under, the Articles of Incorporation or By-laws of the
Company, or any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it or any of its
properties or assets are bound or any applicable law, rule or regulation or any
applicable decree, judgment or order of any court, United States federal or
state regulatory body, administrative agency or other governmental body having
jurisdiction over the Company or any of its properties or assets.
(c) ABSENCE OF CERTAIN CHANGES. Except as disclosed in the
reports filed by the Company with the SEC under the 1934 Act, since
March 31, 2000, there has been no material adverse change and no material
adverse development in the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company.
(d) SEC FILINGS. The Company has timely filed all required
forms, reports and other documents with the SEC. All of such forms, reports and
other documents complied, when filed, in all material respects, with all
applicable requirements of the 1933 Act and the 1934 Act. The Registration
Statements (as defined in the Subscription Agreements) are effective and
available for use by the selling stockholders named therein for the resale of
the shares of Common Stock covered thereby, including, without limitation, the
resale of the shares issuable upon exercise of the Warrants as amended hereby.
4. CONFIRMATION OF AGREEMENTS; ENTIRE AGREEMENT
Except as amended by this Agreement, the Warrants shall remain in
effect in accordance with their respective terms. The parties acknowledge that
the Registration Rights Agreements (as defined in the Subscription Agreements)
continue to apply with full force and effect to the Warrants as amended hereby.
All references in the Subscription Agreements, the Registration Rights
Agreements, the Certificates of Designation and the Transfer Agents Agreements
to the Warrants shall hereafter be deemed to be references to the Warrants as
amended hereby. This Agreement sets forth the entire agreement between the
parties with respect to the subject matter hereof.
5. MISCELLANEOUS
(a) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Arizona.
(b) COUNTERPARTS. This Agreement may be executed in counterparts
and by the parties hereto on separate counterparts, all of which together shall
constitute one and the same instrument. A telephone line facsimile copy of this
Agreement bearing a signature on behalf of a party hereto shall be legal and
binding on such party.
(c) HEADINGS, ETC. The headings, captions and footers of this
Agreement are for convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement.
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(d) SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
(e) AMENDMENTS. No amendment, modification, waiver, discharge or
termination of any provision of this Agreement nor consent to any departure by
the Holders or the Company therefrom shall in any event be effective unless the
same shall be in writing and signed by the party to be charged with enforcement,
and then shall be effective only in the specific instance and for the purpose
for which given. No course of dealing between the parties hereto shall operate
as an amendment of this Agreement.
(f) WAIVERS. Failure of any party to exercise any right or
remedy under this Agreement or otherwise, or delay by a party in exercising such
right or remedy, or any course of dealings between the parties, shall not
operate as a waiver thereof of an amendment hereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or exercise of any other right or power.
(g) NOTICES. Any notices required or permitted to be given under
the terms of this Agreement shall be delivered in accordance with the notice
provisions of the Warrants.
(h) CERTAIN EXPENSES. The Company shall pay or reimburse the
Holders for all reasonable expenses (including, without limitation, legal fees
and expenses or counsel to the Holders) incurred by the Holders in connection
with this Agreement and the transactions contemplated hereby.
(i) SURVIVAL. The respective representations, warranties,
covenants and agreements of each Holder and the Company contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall survive the completion of the transactions contemplated hereby
and shall remain in full force and effect regardless of any investigation made
by on or behalf of them or any person controlling or advising any of them.
(j) FURTHER ASSURANCES. Each party to this Agreement will
perform any and all acts and execute any and all documents as may be necessary
and proper under the circumstances in order to accomplish the intents and
purposes of this Agreement and to carry out its provisions.
(k) CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
Holders and the Company by their respective officers thereunto duly authorized
as of the date first set forth above.
ADVANTAGE FUND II LTD.
By: Genesee International, Inc.,
as General Manager
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇ INVESTMENT GROUP LIMITED
By:
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Name:
Title:
TITAN MOTORCYCLE CO. OF AMERICA
By:
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Name:
Title:
