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EXHIBIT 10.1
MODIFICATION AND PARTIAL PAYMENT AGREEMENT
This Agreement is made this 13th day of April, 2000, by and between Titan
Motorcycle Co. of America, a Nevada corporation ("Titan"), and Oxford
International Management ("Oxford").
1. WHEREAS, on or about December 9, 1996, Titan executed a
promissory note (the "Note") payable to Oxford in the
principal amount of $2,000,000 with interest accruing at the
rate of Eight Percent (8%);
2. WHEREAS, the parties to this Agreement are parties to a
December 16, 1997 Modification of Promissory Note Agreement
relating to the Note;
3. WHEREAS, on the first day of January, 2000, the first of three
annual principal payments under the Note fell due in the
amount of $600,000 and an additional $449,591 dollars of
accrued interest was also due on January 1, 2000; and
4. WHEREAS, the parties hereto agree to satisfy the January 1,
2000 principal payment and all interest accrued to such date.
NOW, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
Titan shall satisfy the January 1, 2000 principal payment and all
interest accrued to January 1, 2000 on the Note, as modified by the
December 16, 1997 Modification Agreement, by issuing to Oxford, a total
of 724,638 shares (the "Shares") of restricted common stock. The Shares
shall be issued pursuant to Regulation S as promulgated by the United
States Securities & Exchange Commission.
Upon the issuance and delivery of the Shares to Oxford, the next
payment due under the Note, as modified, is the January 1, 2001
installment, together with interest accruing thereon. The final
installment is to be paid on January 1, 2002, together with interest
accruing thereon.
This Agreement is executed in reliance upon the transaction exemption
afforded by Regulation S as promulgated by the United States Securities
and Exchange Commission ("SEC"). Oxford warrants and represents as
follows:
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(a) Oxford is not a U.S. person as that term is defined under
Regulation S.
(b) At the time this partial payment agreement was first agreed to, the
Oxford representative negotiating this transaction was outside the
United States and is outside of the United States as of the date of the
execution and delivery of this Agreement.
(c) Oxford is purchasing the Shares for its own account and not on
behalf of any U.S. person; the sale has not been pre-arranged with a
purchaser in the United States; and all offers and resales of the
securities shall only be made in compliance with the provisions of
Regulation S.
(d) This transaction is made in compliance with all of the laws of the
Country of the principal place of business of Oxford, and of any
political subdivision thereof, and the customary practices and
documentation of such jurisdictions.
(e) Oxford is not an entity organized under foreign law by a U.S.
person, as defined in Regulation S Rule 902(o), for the purpose of
investing in unregistered securities, unless Oxford was organized and
is owned by accredited investors, as defined in Regulation D, Rule
501(a), who are not natural persons, estates or trusts.
(f) This transaction is not a purchase pursuant to a fiduciary account
where a U.S. person, as defined in Regulation S Rule 902(o), has
discretion to make investment decisions for the account.
(g) All offers and sales of the Shares by Oxford prior to the
expiration of a one year distribution compliance period shall only be
made pursuant to registration of securities under the Securities Act of
1933 (the "1933 Act"), or pursuant to an exemption from registration.
All offers and sales after the expiration of the distribution
compliance period shall be made only pursuant to such a registration or
to an exemption from registration. The distribution compliance period
referred to herein shall begin on the date of this Agreement.
(h) All offering documents received by Oxford include statements to the
effect that (a) the Shares have not been registered under the 1933 Act
and may not be offered or sold in the United States or to U.S. persons
unless the Shares are registered under the Securities Act of 1933 or an
exemption from the registration requirements is available; and (b)
hedging transactions involving the shares may not be conducted unless
in compliance with the 1933 Act, and Rule 144 promulgated thereunder.
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(i) Oxford acknowledges that the purchase of the Shares involves a high
degree of risk and further acknowledges that it can bear the economic
risk of the purchase of the shares, including the total loss of its
investment.
(j) Oxford understands that the Shares are being offered and sold to it
in reliance on specific exemptions from the registration requirements
of United States Federal and State securities laws and that Titan is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of Oxford set forth
herein in order to determine the applicability of such exemptions and
the suitability of Oxford to acquire the shares.
The Shares, when issued, will bear a restrictive legend and the
Company's transfer agent will be instructed that resales of the Shares
into the United States may only be made by registration or appropriate
exemption from registration after a one year distribution compliance
period beginning on the date of this Agreement.
(a) The principal exemption from registration that may be available for
the resale of the Shares into the markets of the United States is Rule
144, promulgated by the SEC under the Securities Act of 1933. Rule 144
provides, among other things, that a person holding restricted
securities for a period of one year may sell every three months, in
brokers' transactions, an amount equal to one percent of the Company's
outstanding shares of common stock, or the average weekly reported
volume of trading during the four calendar weeks preceding the filing
of a notice of proposed sale, whichever is greater. Rule 144 also
provides that, after holding such securities for a period of two years,
a nonaffiliate of the Company may resell shares of stock freely,
subject to no limitations or conditions.
b) Any resales of the Shares are to be made in compliance with Rule 905
of Regulation S. Rule 905 provides that, unless the Shares are sold
pursuant to paragraph 4(a) above or other applicable exemption, Shares
acquired from the issuer, a distributor, or any of their respective
affiliates in a transaction subject to the conditions of Rule 901 or
Rule 903 are deemed to be "restricted securities" as defined in Rule
144. Resales of any such restricted securities by the offshore
purchaser must be made in accordance with Rule 144, the registration
requirements of the 1933 Act or an exemption therefrom. Any "restricted
securities," as defined in Rule 144 will continue to be deemed to be
restricted securities, notwithstanding that they were acquired in a
resale transaction made pursuant to Rule 901 or Rule 904 of Regulation
S.
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(c) Oxford agrees that the Shares will only be sold in accordance
with the 1933 Act or Regulation S, and will require any
purchaser of the Shares from Oxford to enter into a similar
agreement. Oxford acknowledges that Titan and its transfer
agent will refuse to register any transfer of the Shares
unless made in accordance with the registration or exemptive
provisions of the 1933 Act, or in accordance with Regulation
S. Each distributor selling securities to a distributor, a
dealer (as defined in section 2(a)(12) of the 1933 Act), or a
person receiving a selling concession, fee or other
remuneration, prior to a one-year distribution compliance
period, shall send a confirmation or other notice to the
purchaser stating that the purchaser is subject to the same
restrictions on offers and sales that apply to a distributor.
TITAN MOTORCYCLE CO. OF AMERICA
By: /s/
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Its: CEO
OXFORD INTERNATIONAL MANAGEMENT
By: /s/ Xxxxxx Bajuilat
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Its: Secretary, Director
