REGISTRATION RIGHTS AGREEMENT
EXHIBIT 4.4
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of June 21,
2007, by and among Titanium Asset Management Corp., a corporation organized under the laws of the
State of Delaware (the “Company”) and the undersigned parties listed on the signature page
hereto (each, an “Investor” and collectively, the “Investors”).
WHEREAS, the Investors currently hold all of the issued and outstanding securities of the
Company; and
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of the Common Shares held by them.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have the following
meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise
modified from time to time.
“Commission” means the United States Securities and Exchange Commission, or any other
federal agency then administering the Securities Act and/or the Exchange Act.
“Common Shares” means the common shares, par value $0.0001 per share, of the Company.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
“Form S-3” is defined in Section 2.3.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Investor” is defined in the preamble to this Agreement.
“Investor Indemnified Party” is defined in Section 4.1.
“Maximum Number of Shares” is defined in Section 2.1.4.
“Notices” is defined in Section 6.3.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Register,” “registered” and “registration” mean a registration effected by
preparing and filing a registration statement or similar document in compliance with the
requirements of the Securities Act, and the applicable rules and regulations promulgated
thereunder, and such registration statement becoming effective.
“Registrable Securities” mean all of the Common Shares owned or held by Investors.
Registrable Securities include any warrants, shares in the share capital or other securities of the
Company issued as a dividend or other distribution with respect to or in exchange for or in
replacement of such Common Shares. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and such securities
shall have been sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred and new certificates for them
not bearing a legend restricting further transfer shall have been delivered by the Company; (c)
such securities shall have ceased to be issued and outstanding, or (d) the Securities and Exchange
Commission makes a definitive determination or US securities counsel to the Company delivers an
opinion to the Company that the Registrable Securities are salable under Rule 144(k).
“Registration Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations promulgated
thereunder for a public offering and sale of the Common Shares (other than a registration
statement on Form S-4 or Form S-8, or their successors, or any registration statement covering
only securities proposed to be issued in exchange for securities or assets of another entity).
“Release Date” means the date on which Common Shares are disbursed from escrow
pursuant to Section 3 of that certain Share Escrow Agreement dated as of June ___, 2007 by and
among the parties hereto and Capita Trust Company (Jersey) Limited, as escrow agent.
“Reporting Date” means the date on which the Company has become obligated to file
reports under the Exchange Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
time.
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“Underwriter” means a securities dealer who purchases any Registrable Securities as
principal in an underwritten offering and not as part of such dealer’s market-making activities.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1. Request for Registration. At any time and from time to time on or after the
later of the Release Date and the Reporting Date, the holders of a majority-in-interest of the
Registrable Securities held by the Investors or the transferees of the Investors may make a
written demand for registration under the Securities Act of all or part of their Registrable
Securities (a “Demand Registration”). Any demand for a Demand Registration shall specify
the number of shares of Registrable Securities proposed to be sold and the intended method(s) of
distribution thereof. The Company will notify all holders of Registrable Securities of the demand,
and each holder of Registrable Securities who wishes to include all or a portion of such holder’s
Registrable Securities in the Demand Registration (each such holder including shares of Registrable
Securities in such registration, a “Demanding Holder”) shall so notify the Company within
fifteen (15) days after the receipt by the holder of the notice from the Company. Upon any such
request, the Demanding Holders shall be entitled to have their Registrable Securities included in
the Demand Registration, subject to Section 2.1.4 and the provisos set forth in Section 3.1.1. The
Company shall not be obligated to effect more than an aggregate of two (2) Demand Registrations
under this Section 2.1.1 in respect of Registrable Securities.
2.1.2. Effective Registration. A registration will not count as a Demand Registration
until the Registration Statement filed with the Commission with respect to such Demand
Registration has been declared effective and the Company has complied with all of its obligations
under this Agreement with respect thereto; provided, however, that if, after such
Registration Statement has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration is interfered with by any stop order or injunction of the
Commission or any other governmental agency or court, the Registration Statement with respect to
such Demand Registration will be deemed not to have been declared effective, unless and until, (i)
such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a
majority-in-interest of the Demanding Holders thereafter elect to continue the offering;
provided, further, that the Company shall not be obligated to file a second
Registration Statement until a Registration Statement that has been filed is counted as a Demand
Registration or is terminated.
2.1.3. Underwritten Offering. If a majority-in-interest of the Demanding Holders so
elect and such holders so advise the Company as part of their written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. In such event, the right of any holder to
include its Registrable Securities in such registration shall be conditioned upon such holder’s
participation in such underwriting and the inclusion of such holder’s Registrable Securities in
the underwriting to the extent provided herein. All Demanding Holders proposing to distribute
their securities through such underwriting shall enter into an underwriting agreement in customary
form with the Underwriter or Underwriters selected for such underwriting by a
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majority-in-interest of the holders initiating the Demand Registration.
2.1.4. Reduction of Offering. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Company and the Demanding Holders
in writing that the dollar amount or number of shares of Registrable Securities which the Demanding
Holders desire to sell, taken together with all other Common Shares or other securities which the
Company desires to sell and the Common Shares, if any, as to which registration has been requested
pursuant to written contractual piggy-back registration rights held by other shareholders of the
Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can
be sold in such offering without adversely affecting the proposed offering price, the timing, the
distribution method, or the probability of success of such offering (such maximum dollar amount or
maximum number of shares, as applicable, the “Maximum Number of Shares”), then the Company
shall include in such registration: (i) first, the Registrable Securities as to which Demand
Registration has been requested by the Demanding Holders (pro rata in accordance with the
number of shares of Registrable Securities which such Demanding Holder has requested be included in
such registration, regardless of the number of shares of Registrable Securities held by each
Demanding Holder) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to
the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i),
the Common Shares or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (i) and (ii), the Common Shares for the
account of other persons that the Company is obligated to register pursuant to written contractual
arrangements with such persons and that can be sold without exceeding the Maximum Number of Shares;
and (iv) fourth, to the extent that the Maximum Number of Shares have not been reached under the
foregoing clauses (i), (ii), and (iii), the Common Shares that other shareholders desire to sell
that can be sold without exceeding the Maximum Number of Shares.
2.1.5. Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of
the terms of any underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from
such offering by giving written notice to the Company and the Underwriter or Underwriters of their
request to withdraw prior to the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding
Holders withdraws from a proposed offering relating to a Demand Registration, then such
registration shall not count as a Demand Registration provided for in Section 2.1.1.
2.2 Piggy-Back Registration.
2.2.1. Piggy-Back Rights. If at any time on or after the later of the Release Date
and the Reporting Date the Company proposes to file a Registration Statement under the Securities
Act with respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the Company for its
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own account or for shareholders of the Company for their account (or by the Company and by
shareholders of the Company including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option or other benefit
plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing
shareholders, (iii) for an offering of debt that is convertible into equity securities of the
Company or (iv) for a dividend reinvestment plan, then the Company shall (x) give written notice of
such proposed filing to the holders of Registrable Securities as soon as practicable but in no
event less than ten (10) days before the anticipated filing date, which notice shall describe the
amount and type of securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the
offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to
register the sale of such number of shares of Registrable Securities as such holders may request in
writing within fifteen (15) days following receipt of such notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable Securities to be included in such
registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a
proposed underwritten offering to permit the Registrable Securities requested to be included in a
Piggy-Back Registration to be included on the same terms and conditions as any similar securities
of the Company and to permit the sale or other disposition of such Registrable Securities in
accordance with the intended method(s) of distribution thereof. All holders of Registrable
Securities proposing to sell or otherwise dispose of their securities through a Piggy-Back
Registration that involves an Underwriter or Underwriters shall enter into an underwriting
agreement in customary form (with respect to selling shareholders) with the Underwriter or
Underwriters selected for such Piggy-Back Registration.
2.2.2. Reduction of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders
of Registrable Securities in writing that the dollar amount or number of Common Shares which the
Company desires to sell, taken together with Common Shares, if any, as to which registration has
been demanded pursuant to written contractual arrangements with persons other than the holders of
Registrable Securities hereunder, the Registrable Securities as to which registration has been
requested under this Section 2.2, and the Common Shares, if any, as to which registration has been
requested pursuant to the written contractual piggy-back registration rights of other shareholders
of the Company, exceeds the Maximum Number of Shares, then the Company shall include in any such
registration:
(i) if the registration is undertaken for the Company’s account: (A) first, the Common Shares
or other securities that the Company desires to sell that can be sold without exceeding the
Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (A), the Common Shares, if any, including the Registrable
Securities, as to which registration has been requested pursuant to written contractual piggy-back
registration rights of security holders (pro rata in accordance with the number of Common Shares
which each such person has actually requested to be included in such registration, regardless of
the number of Common Shares with respect to which such persons have the right to request such
inclusion) that can be sold without exceeding the Maximum Number of Shares; and
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(ii) if the registration is a “demand” registration undertaken at the demand of persons other
than the holders of Registrable Securities pursuant to written contractual arrangements with such
persons, (A) first, the Common Shares for the account of the demanding persons that can be sold
without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clause (A), the Common Shares or other
securities that the Company desires to sell that can be sold without exceeding the Maximum Number
of Shares; and (C) third, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A) and (B), the Registrable Securities as to which registration has
been requested under this Section 2.2 (pro rata in accordance with the number of shares of
Registrable Securities held by each such holder); and (D) fourth, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Common
Shares, if any, as to which registration has been requested pursuant to written contractual
piggy-back registration rights which other shareholders desire to sell that can be sold without
exceeding the Maximum Number of Shares.
2.2.3. Withdrawal. Any holder of Registrable Securities may elect to withdraw such
holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company may also elect to withdraw a registration statement at any time
prior to the effectiveness of the Registration Statement. Notwithstanding any such withdrawal, the
Company shall pay all expenses incurred by the holders of Registrable Securities in connection with
such Piggy-Back Registration as provided in Section 3.3.
2.3 Registrations on Form S-3. The holders of Registrable Securities may at any time
and from time to time, request in writing that the Company register the resale of any or all of
such Registrable Securities on Form S-3 or any similar short-form registration which may be
available at such time (“Form S-3”);
provided, however, that the Company is
eligible to use such form and provided further that the Company shall not be obligated to effect
such request through an underwritten offering. Upon receipt of such written request, the Company
will promptly give written notice of the proposed registration to all other holders of Registrable
Securities, and, as soon as practicable thereafter, effect the registration of all or such portion
of such holder’s or holders’ Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other holder or holders joining in such
request as are specified in a written request given within fifteen (15) days after receipt of such
written notice from the Company; provided, however, that the Company shall not be obligated
to effect any such registration pursuant to this Section 2.3: (i) if Form S-3 is not available for
such offering; or (ii) if the holders of the Registrable Securities, together with the holders of
any other securities of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at any aggregate price to the public of
less than $2,000,000. Registrations effected pursuant to this Section 2.3 shall not be counted as
Demand Registrations effected pursuant to Section 2.1.
3. REGISTRATION PROCEDURES.
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3.1 Filings; Information. Whenever the Company is required to effect the registration
of any Registrable Securities pursuant to Section 2, the Company shall use commercially reasonable
efforts to effect the registration and sale of such Registrable Securities in accordance with the
intended method(s) of distribution thereof as expeditiously as practicable, and in connection with
any such request:
3.1.1. Filing Registration Statement. The Company shall, as expeditiously as possible
and in any event within sixty (60) days after receipt of a request for a Demand Registration
pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form
for which the Company then qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution thereof, and shall use
commercially reasonable efforts to cause such Registration Statement to become and remain
effective for the period required by Section 3.1.3;
provided, however, that the Company
shall have the right to defer any Demand Registration for up to sixty (60) days, and any
Piggy-Back Registration for such period as may be applicable to deferment of any demand
registration to which such Piggy-Back Registration relates, in each case if the Company shall
furnish to the holders a certificate signed by the Chief Executive Officer of the Company stating
that, in the good faith judgment of the Board of Directors of the Company, it would be materially
detrimental to the Company and its shareholders for such Registration Statement to be effected at
such time; provided further, however, that the Company shall not have the right to
exercise the right set forth in the immediately preceding proviso more than once in any 365-day
period in respect of a Demand Registration hereunder.
3.1.2. Copies. The Company shall, prior to filing a Registration Statement or
prospectus, or any amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration that have so requested in writing, and such
holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement, the prospectus included in such
Registration Statement (including each preliminary prospectus), and such other documents as the
holders of Registrable Securities included in such registration or legal counsel for any such
holders may request in order to facilitate the disposition of the Registrable Securities owned by
such holders.
3.1.3. Amendments and Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective and in compliance with the provisions of the Securities Act
until all Registrable Securities and other securities covered by such Registration Statement have
been disposed of in accordance with the intended method(s) of distribution set forth in such
Registration Statement (which period shall not exceed the sum of one hundred twenty (120) days
plus any period during which any such disposition is interfered with by any stop order or
injunction of the Commission or any governmental agency or court) or such securities have been
withdrawn.
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3.1.4. Notification. After the filing of a Registration Statement, the Company shall
promptly, and in no event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing, and shall further
notify such holders promptly and confirm such advice in writing in all events within two (2)
business days of the occurrence of any of the following: (i) when such Registration Statement
becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes
effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the
Company shall take all actions required to prevent the entry of such stop order or to remove it if
entered); and (iv) any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional information or of the
occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of the securities covered by such Registration
Statement, such prospectus will not contain an untrue statement of material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not
misleading, and promptly make available to the holders of Registrable Securities included in such
Registration Statement any such supplement or amendment; except that before filing a Registration
Statement or prospectus or any amendment or supplement thereto with the Commission, the Company
shall furnish to those holders of Registrable Securities included in such Registration Statement
who have so requested in writing and to the legal counsel for any such holders copies of all such
documents proposed to be filed sufficiently in advance of filing to provide such holders and legal
counsel with a reasonable opportunity to review such documents and comment thereon, and the Company
shall not file any Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their legal counsel shall
reasonably object.
3.1.5. State Securities Laws Compliance. The Company shall use commercially
reasonable efforts to (i) register or qualify the Registrable Securities covered by the
Registration Statement under such securities or “blue sky” laws of such jurisdictions in the
United States as the holders of Registrable Securities included in such Registration Statement (in
light of their intended plan of distribution) may request and (ii) take such action necessary to
cause such Registrable Securities covered by the Registration Statement to be registered with or
approved by such other governmental authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be necessary or
advisable to enable the holders of Registrable Securities included in such Registration Statement
to consummate the disposition of such Registrable Securities in such
jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.1.5 or
subject itself to taxation in any such jurisdiction.
3.1.6. Agreements for Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities. The representations, warranties and covenants of the Company in any
underwriting agreement which are made to or for the benefit of any Underwriters, to the
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extent applicable, shall also be made to and for the benefit of the holders of Registrable
Securities included in such registration statement. No holder of Registrable Securities included
in such registration statement shall be required to make any representations or warranties in the
underwriting agreement except, if applicable, with respect to such holder’s organization, good
standing, authority, title to Registrable Securities, lack of conflict of such sale with such
holder’s material agreements and organizational documents, and with respect to written information
relating to such holder that such holder has furnished in writing expressly for inclusion in such
Registration Statement.
3.1.7. Cooperation. The principal executive officer of the Company, the principal
financial officer of the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in any offering of
Registrable Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and all other offering
materials and related documents, and participation in meetings with Underwriters, attorneys,
accountants and potential investors.
3.1.8. Records. The Company shall make available for inspection by the holders of
Registrable Securities included in such Registration Statement, any Underwriter participating in
any disposition pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such Registration
Statement or any Underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to supply all
information requested by any of them in connection with such Registration Statement.
3.1.9. Opinions and Comfort Letters. The Company shall furnish to each holder of
Registrable Securities included in any Registration Statement a signed counterpart, addressed to
such holder, of (i) any opinion of counsel to the Company delivered to any Underwriter and (ii)
provided that such holder has furnished customary representations and certifications, any comfort
letter from the Company’s independent public accountants delivered to any Underwriter.
3.1.10. Listing. The Company shall use its best efforts to cause all Registrable
Securities included in any registration to be listed on such exchanges, admitted to trading or
otherwise designated for trading in the same manner as similar securities issued by the Company
are then listed, admitted to trading or designated.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale
registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by the Company,
pursuant to a written xxxxxxx xxxxxxx compliance program adopted by the Company’s Board of
Directors, of the ability of all “insiders” covered by such program to transact in the Company’s
securities because of the existence of material non-public information, each holder of Registrable
Securities included in any registration shall immediately discontinue disposition of such
Registrable Securities pursuant to the Registration Statement covering such Registrable
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Securities until such holder receives the supplemented or amended prospectus contemplated by
Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s
securities is removed, as applicable, and, if so directed by the Company, each such holder will
deliver to the Company all copies, other than permanent file copies then in such holder’s
possession, of the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice.
3.3 Registration Expenses. The Company shall bear all costs and expenses incurred in
connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration
pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, and
all expenses incurred in performing or complying with its other obligations under this Agreement,
whether or not the Registration Statement becomes effective, including, without limitation: (i)
all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue
sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications
of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and employees); (v) the
fees and expenses incurred in connection with the listing of the Registrable Securities as
required by Section 3.1.10; (vi) National Association of Securities Dealers, Inc. fees; (vii) fees
and disbursements of counsel for the Company and fees and expenses for independent certified
public accountants retained by the Company (including the expenses or costs associated with the
delivery of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii)the fees
and expenses of any special experts retained by the Company in connection with such registration;
and (ix) the fees and expenses of one legal counsel selected by the holders of a
majority-in-interest of the Registrable Securities included in such registration. The Company
shall have no obligation to pay any underwriting discounts or selling commissions attributable to
the Registrable Securities being sold by the holders thereof, which underwriting discounts or
selling commissions shall be borne by such holders. Additionally, in an underwritten offering, all
selling shareholders and the Company shall bear the expenses of the underwriter pro rata in
proportion to the respective amount of shares each is selling in such offering.
3.4 Information. The holders of Registrable Securities shall provide such information
as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection
with the preparation of any Registration Statement, including amendments and supplements thereto,
in order to effect the registration of any Registrable Securities under the Securities Act
pursuant to Section 2 and in connection with the Company’s obligation to comply with federal and
applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless
each Investor and each other holder of Registrable Securities, and each of their respective
officers, employees, affiliates, directors, partners, members, attorneys and agents, and each
person, if any, who controls an Investor and each other holder of Registrable Securities (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
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(each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments,
claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue
statement (or allegedly untrue statement) of a material fact contained in any Registration
Statement under which the sale of such Registrable Securities was registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration Statement, or arising
out of or based upon any omission (or alleged omission) to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the
Company and relating to action or inaction required of the Company in connection with any such
registration; and the Company shall promptly reimburse the Investor Indemnified Party for any
legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection
with investigating and defending any such expense, loss, judgment, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case to the
extent that any such expense, loss, claim, damage or liability arises out of or is based upon any
untrue statement or allegedly untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any
such amendment or supplement, in reliance upon and in conformity with information furnished to the
Company, in writing, by such selling holder expressly for use therein. The Company also shall
indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors,
partners, members and agents and each person who controls such Underwriter on substantially the
same basis as that of the indemnification provided above in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each selling holder of
Registrable Securities will, in the event that any registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by such selling
holder, indemnify and hold harmless the Company, each of its directors and officers and each
underwriter (if any), and each other person, if any, who controls such selling holder or such
underwriter within the meaning of the Securities Act, against any losses, claims, judgments,
damages or liabilities, whether joint or several, insofar as such losses, claims, judgments,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or allegedly untrue statement of a material fact contained in any Registration Statement
under which the sale of such Registrable Securities was registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or the alleged omission to state a material fact required to be stated
therein or necessary to make the statement therein not misleading, if the statement or omission was
made in reliance upon and in conformity with information furnished in writing to the Company by
such selling holder expressly for use therein, and shall reimburse the Company, its directors and
officers, and each such controlling person for any legal or other expenses reasonably incurred by
any of them in connection with investigation or defending any such loss, claim, damage, liability
or action. Each selling holder’s indemnification obligations hereunder shall be several and not
joint and shall be limited to the amount of any net proceeds actually received by such selling
holder.
11
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any person of
any notice of any loss, claim, damage or liability or any action in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a
claim in respect thereof is to be made against any other person for indemnification hereunder,
notify such other person (the “Indemnifying Party”) in writing of the loss, claim,
judgment, damage, liability or action; provided, however, that the failure by the
Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from
any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and
solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or action brought against
the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim
or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to
assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After
notice from the Indemnifying Party to the Indemnified Party of its election to assume control of
the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified
Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection
with the defense thereof other than reasonable costs of
investigation; provided, however,
that in any action in which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than
one such separate counsel) to represent the Indemnified Party and its controlling persons who may
be subject to liability arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be
paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified
Party, representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect any settlement of any
claim or pending or threatened proceeding in respect of which the Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such Indemnified Party from all
liability arising out of such claim or proceeding.
4.4 Contribution.
4.4.1. If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action
referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of
such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the
relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the
actions or omissions which resulted in such loss, claim, damage, liability or action, as well as
any other relevant equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such Indemnified Party or such Indemnifying
12
Party and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations referred to in the
immediately preceding Section 4.4.1. The amount paid or payable by an Indemnified Party as a result
of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities
shall be required to contribute any amount in excess of the dollar amount of the net proceeds
(after payment of any underwriting fees, discounts, commissions or taxes) actually received by such
holder from the sale of Registrable Securities which gave rise to such contribution obligation. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any reports required to be
filed by it under the Securities Act and the Exchange Act and shall take such further action as
the holders of Registrable Securities may reasonably request, all to the extent required from time
to time to enable such holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities
Act, as such Rules may be amended from time to time, or any similar Rule or regulation hereafter
adopted by the Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and warrants that, except as
disclosed in the Admission Document relating to the Company’s admission for trading on AIM, a
market operated by the London Stock Exchange plc, no person, other than a holder of the
Registrable Securities, has any right to require the Company to register any shares of the
Company’s share capital for sale or to include shares of the Company’s share capital in any
registration filed by the Company for the sale of shares of share capital for its own account or
for the account of any other person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties
and obligations of the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement and the rights, duties and obligations of the holders of Registrable
Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities
in conjunction with and to the extent of any transfer of Registrable Securities by any such
holder. This Agreement and the provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties and their respective successors and the
13
permitted assigns of the Investor or holder of Registrable Securities or of any assignee of the
Investor or holder of Registrable Securities. This Agreement is not intended to confer any rights
or benefits on any persons that are not party hereto other than as expressly set forth in Article
4 and this Section 6.2.
6.3 Notices. All notices, demands, requests, consents, approvals or other
communications (collectively, “Notices”) required or permitted to be given hereunder or
which are given with respect to this Agreement shall be in writing and shall be personally served,
delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery,
telegram, telex or facsimile, addressed as set forth below, or to such other address as such party
shall have specified most recently by written notice. Notice shall be deemed given on the date of
service or transmission if personally served or transmitted by telegram, telex or facsimile;
provided, that if such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business day. Notice otherwise
sent as provided herein shall be deemed given on the next business day following timely delivery of
such notice to a reputable air courier service with an order for next-day delivery.
To the Company:
Titanium Asset Management Corp.
ComCenter at Lakewood Ranch
0000 Xxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
ComCenter at Lakewood Ranch
0000 Xxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
with a copy to:
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
To an Investor, to the address of such investor on the books of the Company,
with a copy to:
Sunrise Securities Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxxxxxx
6.4 Severability. This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part
of
14
this Agreement a provision as similar in terms to such invalid or unenforceable provision as may
be possible and be valid and enforceable.
6.5 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which taken together shall constitute one and the
same instrument.
6.6 Entire Agreement. This Agreement (including all agreements entered into pursuant
hereto and all certificates and instruments delivered pursuant hereto and thereto) constitute the
entire agreement of the parties with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
6.7 Modifications and Amendments. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such party.
6.8 Titles and Headings. Titles and headings of sections of this Agreement are for
convenience only and shall not affect the construction of any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may waive any right, breach
or default which such party has the right to waive, provided that such waiver will not be
effective against the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or after the right waived
has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision herein contained.
No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver
or extension of the time for performance of any other obligations or acts.
6.10 Remedies Cumulative. In the event that the Company fails to observe or perform
any covenant or agreement to be observed or performed under this Agreement, the Investor or any
other holder of Registrable Securities may proceed to protect and enforce its rights by suit in
equity or action at law, whether for specific performance of any term contained in this Agreement
or for an injunction against the breach of any such term or in aid of the exercise of any power
granted in this Agreement or to enforce any other legal or equitable right, or to take any one or
more of such actions, without being required to post a bond. None of the rights, powers or
remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or
remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred
by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
6.11 Governing Law. This Agreement shall be governed by, interpreted under, and
construed in accordance with the internal laws of the State of New York applicable to agreements
made and to be performed within the State of New York, without giving effect to any choice-of-law
provisions thereof that would compel the application of the substantive laws of
15
any other jurisdiction.
6.12 Waiver of Trial by Jury. Each party hereby irrevocably and unconditionally waives
the right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based
on contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the
transactions contemplated hereby, or the actions of the Investor in the negotiation,
administration, performance or enforcement hereof.
[Remainder of page intentionally left blank]
16
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and
delivered by their duly authorized representatives as of the date first written above.
| TITANIUM ASSET MANAGEMENT CORP. |
||||
| By: | /s/ XXXXX XXXXXXXX | |||
| Name: | XXXXX XXXXXXXX | |||
| Title: | DIRECTOR | |||
| INVESTORS: |
||||
| /s/ Xxxxxx Xxxxxx Xxxxxxxx | ||||
| Xxxxxx Xxxxxx Xxxxxxxx | ||||
| NAZUK, LLC |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chairman | |||
| /s/ Xxxx Xxxx Xxxxxx | ||||
| Xxxx Xxxx Xxxxxx | ||||
| /s/ Nigel Xxxxx Xxxxxxxx | ||||
| Nigel Xxxxx Xxxxxxxx | ||||
| /s/ Xxxxxx XxXxxxxx | ||||
| Xxxxxx XxXxxxxx | ||||
| WHITEWATER PLACE, LLC |
||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Managing Partner | |||
| SKC TRUST SHARES, LLC |
||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Managing Partner | |||
| TITANIUM INCENTIVE PLAN, LLC |
||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Managing Partner | |||
