REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT, dated as of November 3, 2009 (the “Agreement”),
is made by and between ASHLAND INC., a Delaware corporation (the “Company”), and
EVERCORE TRUST COMPANY, N.A., solely in its capacity as duly appointed and
acting investment manager (the “Manager”) of a segregated account held in the
Ashland Inc. Defined Benefit Master Trust (the “Trust”) created under the
Ashland Hercules Pension Plan (the “Plan”).
RECITALS
WHEREAS,
the Company has agreed to contribute an aggregate of 2,974,420 shares (the
“Registrable Shares”) of its common stock, par value $.01 per share (“Common
Stock”), to the Trust (the “Contribution”); and
WHEREAS,
the Registrable Shares immediately following such Contribution will be held in a
single segregated account in the Trust (the “Segregated Account”);
and
WHEREAS,
pursuant to the Investment Management Agreement, dated as of November 3,
2009, among the Manager, the Company, Hercules Incorporated, a wholly-owned
subsidiary of the Company (“Hercules”), and the Investment and Administrative
Oversight Committee (the “Committee”) of the Company (the “Investment Management
Agreement”), the Manager has been appointed as a “fiduciary” of the Trust, as
defined in Section 3(21) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), but only to the extent of the assets in the Segregated
Account, with the authority to act on behalf of the Trust with respect to all
assets held in the Segregated Account; and
WHEREAS,
the Company has agreed to grant certain registration rights with respect to the
Registrable Shares held in the Segregated Account, on the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS,
pursuant to the Investment Management Agreement, the Manager has full power and
authority to execute and deliver this Agreement for the benefit of the Trust and
to take any actions required or permitted to be taken in connection with this
Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual promises set forth
herein, the parties hereto hereby agree as follows:
1. Registration; Compliance with the
Securities Act.
1.1 Registration Procedures and
Expenses. The Company hereby agrees that it
shall:
(a) prepare
and file with the Securities and Exchange Commission (the “SEC”), as soon as
reasonably practicable after the date of the Contribution, but in no event more
than 30 days after the Contribution, a shelf registration statement on Form S-3
covering the Registrable Shares, except to the extent it has an
existing
shelf registration statement covering the Common Stock that may be used for the
purposes contemplated herein (such new or existing registration statement and
any successor registration statement filed under the Securities Act of 1933, as
amended (the “Securities Act”), hereinafter referred to as the “Registration
Statement”), to enable the Manager to sell the Registrable Shares from time to
time in the manner contemplated by the plan of distribution set forth in the
Registration Statement, as amended by any prospectus supplement or
post-effective amendment thereto, and use its reasonable commercial efforts to
cause such Registration Statement, if not effective on the date of the
Contribution, to be declared effective as promptly as reasonably possible after
filing and to remain continuously effective until the earlier of (i) the date on
which all Registrable Shares are sold and (ii) the date which is 90 days after
the date on which the number of Registrable Shares held by the Trust is less
than one percent of the shares of Common Stock then outstanding (the
“Registration Period”); provided, however, that the Company shall not be
required to file such Registration Statement or cause such Registration
Statement to be declared effective during the pendency of any suspension period
pursuant to Sections 1.2(c) or (d) below;
(b) prepare
and file with the SEC such amendments (including post-effective amendments) to
the Registration Statement and supplements to the prospectus or any prospectus
supplements filed with the SEC pursuant to Rule 424(b) under the Securities Act,
or if no such filing is required, as included in the Registration Statement (the
“Prospectus”), as may be necessary to keep the Registration Statement effective
at all times until the end of the Registration Period; provided, however, that
it shall not be required to file any such amendment or prospectus supplement
during the pendency of any suspension period pursuant to Sections 1.2(c) or (d)
below;
(c) furnish
the Manager with such reasonable number of copies of the Prospectus in
conformity with the requirements of the Securities Act, and such other documents
as the Manager may reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Registrable Shares by the
Manager;
(d) use
its reasonable commercial efforts to file documents, if any, required of the
Company for normal blue sky clearance relating to the Registrable Shares in such
states as the Manager shall reasonably designate in writing; provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented;
(e) use
its reasonable commercial efforts to cause the Registrable Shares to be listed
on the New York Stock Exchange (the “NYSE”) as soon as reasonably practicable
after the date of the Contribution; and
(f) bear
all expenses in connection with the actions contemplated by paragraphs (a)
through (e) of this Section 1.1 and the registration of the
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Registrable
Shares pursuant to the Registration Statement, including reasonable fees and
expenses of legal counsel to the Manager incurred in connection with the
registration and sale of the Registrable Shares, but excluding underwriting
discounts, brokerage fees and commissions incurred by the Manager, the Trust or
the Plan, if any.
It shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Section 1.1 that the Manager shall provide such reasonable
assistance to the Company and furnish, or cause to be furnished, to the Company
in writing such information regarding the Manager, the Registrable Shares to be
sold, and the intended method or methods of disposition of the Registrable
Shares, as shall be required to effect the registration of the Registrable
Shares and as may be required from time to time under the Securities Act and the
rules and regulations thereunder.
1.2 Transfer of Registrable Shares after
Registration; Suspension.
(a) The
Manager agrees that it will not offer to sell or make any sale, assignment,
pledge, hypothecation or other transfer with respect to the Registrable Shares
that would constitute a sale within the meaning of the Securities Act except
pursuant to either (i) the Registration Statement referred to in Section 1.1, or
(ii) Rule 144 under the Securities Act or any successor rule thereto (as such
rule may be amended from time to time, “Rule 144”), and that it will promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding the Manager or the intended plan of
distribution of the Registrable Shares to the extent required by applicable
securities laws.
(b) The
Manager and the Company agree that the Registrable Shares may be sold in one or
more privately-negotiated block trades; provided, however, that no such block
trade may exceed 300,000 shares and provided further that no more than one
privately-negotiated block sale may be made to a single purchaser or affiliates
of such purchaser within a twelve-month period.
(c) In
addition to any suspension rights under paragraph (d) below, the Company may,
upon the happening of any event that, in the judgment of the Company’s legal
counsel, renders advisable the suspension of the disposition of Registrable
Shares covered by the Registration Statement or use of the Prospectus due to
pending corporate developments, public filings with the SEC or similar events,
suspend the disposition of Registrable Shares covered by the Registration
Statement or use of the Prospectus for a period of not more than ninety (90)
days on written notice to the Manager (which notice will not disclose any
material nonpublic information and will indicate the date of the beginning and
end of the intended suspension, if known), in which case the Manager, upon
receipt of such written notice, shall discontinue (or cause the Trust to
discontinue) disposition of Registrable Shares covered by the Registration
Statement or use of the Prospectus until copies of a supplemented or amended
Prospectus are distributed to the Manager or until the Manager is advised in
writing by the Company that the disposition of Registrable Shares covered by the
Registration Statement or use of
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the
applicable Prospectus may be resumed; provided, that such right to suspend the
disposition of Registrable Shares covered by the Registration Statement or use
of the Prospectus shall not be exercised by the Company for more than one
hundred twenty (120) days in any twelve-month period. The suspension
and notice thereof described in this Section 1.2(c) shall be held in confidence
and not disclosed by the Manager, except as required by law.
(d) In
the event of: (i) any request by the SEC or any other federal or
state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to a Registration Statement
or related Prospectus or for additional information; (ii) the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose; (iii) the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Shares for sale in any jurisdiction
or the initiation of any proceedings for such purpose; or (iv) any event or
circumstance that necessitates the making of any changes in the Registration
Statement or Prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus, it
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, then the Company shall
deliver a certificate in writing to the Manager (the “Suspension Notice”) to the
effect of the foregoing (which notice will not disclose any material nonpublic
information and will indicate the date of the beginning and end of the intended
suspension, if known), and, upon receipt of such Suspension Notice, the Manager
will refrain (or cause the Trust to refrain) from selling any Registrable Shares
pursuant to the Registration Statement (a “Suspension”) until the Manager’s
receipt of copies of a supplemented or amended Prospectus prepared and filed by
the Company, or until it is advised in writing by the Company that the current
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in any such Prospectus. In the event of any Suspension, the Company
will use its reasonable commercial efforts to cause the use of the Prospectus so
suspended to be resumed as soon as possible after delivery of a Suspension
Notice to the Manager. The Suspension and Suspension Notice described
in this Section 1.2(d) shall be held in confidence and not disclosed by the
Manager, except as required by law.
(e) The
Manager may sell Registrable Shares under the Registration Statement provided
that neither a Suspension nor a suspended disposition under Section 1.2(c)
hereof is then in effect, the Manager sells in accordance with the plan of
distribution in the Prospectus, and the Manager arranges for delivery of
a
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current
Prospectus to any transferee receiving such Registrable Shares in compliance
with the Prospectus delivery requirements of the Securities Act.
1.3 Indemnification.
(a) Indemnification by the
Company. The Company agrees to indemnify and hold harmless the
Manager (including, for purposes of this Section 1.3, the officers, directors,
employees and agents of the Manager), and each person, if any, who controls the
Manager within the meaning of either Section 15 of the Securities Act or Section
20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), from
and against any and all losses, claims, damages, liabilities or expenses, joint
or several, to which the Manager or such controlling person may become subject
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company, which consent shall not be unreasonably withheld or
delayed), only to the extent such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or
are based upon (i) any failure on the part of the Company to comply with the
covenants and agreements contained in this Agreement, or (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state in
any of them a material fact required to be stated therein or necessary to make
the statements in any of them, in light of the circumstances under which they
were made, not misleading, and will reimburse the Manager and each such
controlling person for any legal and other expenses as such expenses are
reasonably incurred by the Manager or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement of the
Registration Statement or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Manager, (ii) any untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact required to make such statement not misleading in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to the Manager
before the pertinent sale or sales by the Manager, or (iii) any untrue statement
or alleged untrue statement or omission or alleged omission in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, when used or
distributed by the Manager during a period in which the disposition of
Registrable Shares is properly suspended under Section 1.2(c) or a Suspension is
properly in effect under Section 1.2(d). The Manager hereby agrees
that if the Manager or any of its controlling persons is not entitled to
indemnification for any loss, claim, damage, liability or expense pursuant to
this Section 1.3(a) as a result of Section 1.3(a)(i),
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(ii) or
(iii) above, then neither the Manager nor any of its controlling persons shall
be entitled to indemnification for such loss, claim, damage, liability or
expense pursuant to the terms of the indemnification provisions set forth in the
Investment Management Agreement or that certain engagement letter effective
October 9, 2009 among Evercore Trust Company, N.A., the Company, Hercules and
the Committee.
(b) Indemnification by the
Manager. To the extent permitted by applicable law, the
Manager will indemnify and hold harmless the Company, Hercules, the Committee,
each of the Company’s directors, each of the Company’s officers who signed the
Registration Statement, each of the Company’s employees and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (the “Company Indemnitees”),
from and against any and all losses, claims, damages, liabilities or expenses to
which the Company Indemnitees may become subject under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Manager, which consent
shall not be unreasonably withheld or delayed) only to the extent such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon (i) any failure on the part
of the Manager to comply with the covenants and agreements contained in this
Agreement respecting the sale of the Registrable Shares, or (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state in
any of them a material fact required to be stated therein or necessary to make
the statements in any of them not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of the Manager, and the Manager will reimburse the Company Indemnitees for any
legal and other expenses as such expenses are reasonably incurred by the Company
Indemnitees in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or action; provided,
however, that the Manager shall not be liable for any such untrue statement or
alleged untrue statement or omission or alleged omission with respect to which
the Manager has delivered to the Company in writing a correction before the
occurrence of the transaction from which such loss was incurred. In
no event shall the liability of the Manager under this Section 1.3 be greater
than the aggregate fees received by the Manager pursuant to the Investment
Management Agreement.
(c) Indemnification
Procedure. Promptly after receipt by an indemnified party
under this Section 1.3 of written notice of the assertion of a claim or the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section
1.3,
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promptly
notify the indemnifying party in writing of the claim; provided, however, that
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under the indemnity agreement contained in this Section 1.3 or otherwise, to the
extent it is not prejudiced as a result of such failure. In case any
such action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and to the extent that it may wish,
jointly with all other indemnifying parties similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions of
the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to the indemnified
party or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party or other indemnified parties that are different
from such indemnified party of its election so to assume the defense
of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 1.3 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (other than local
counsel), approved by such indemnifying party representing all of the
indemnified parties who are parties to such action); or (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action.
In each
such case, the reasonable fees and expenses of counsel shall be at the expense
of the indemnifying party.
(d) Contribution. If
the indemnification provided for in this Section 1.3 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any loss, claim, damage, liability or expense referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other hand in connection with the
statements or omissions that resulted in such loss, claim, damage, liability or
expense, as well as any other relevant equitable considerations. The
relative fault
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of the
indemnifying party and of the indemnified 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 the indemnifying party or by the indemnified
party and the parties’ relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 1.3(c) hereof, any legal or other fees
or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 1.3(d) were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 1.3(d), in
no event shall the Manager be required to contribute any amount in excess of the
aggregate fees received by the Manager pursuant to the Investment Management
Agreement. 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 or entity who was not guilty of such fraudulent
misrepresentation.
(e) Surviving
Obligations. The obligations of the Company and the Manager
under this Section 1.3 shall survive the completion of the disposition of the
Registrable Shares under this Section 1.
1.4 Rule 144
Information. For such period as the Trust or the Plan holds
any Registrable Shares received pursuant to the Contribution, the Company shall
use its reasonable commercial efforts to file all reports required to be filed
by it under the Securities Act, the Exchange Act and the rules and regulations
thereunder and shall use its reasonable commercial efforts to take such further
action to the extent required to enable the Manager to sell the Registrable
Shares pursuant to Rule 144.
1.5 Rights of the
Trust. All of the rights and benefits conferred on the Manager
pursuant to this Agreement (other than the right to indemnification provided in
Section 1.3) are intended to inure to the benefit of the Trust.
2. Miscellaneous.
2.1 Governing
Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York, irrespective
of the choice of laws principles of the State of New York, as to all matters,
including matters of validity, construction, effect, enforceability, performance
and remedies.
2.2 Force
Majeure. Neither party will have any liability for damages or
delay due to fire, explosion, lightning, pest damage, power failure or surges,
strikes or labor disputes, water or flood, acts of God, the elements, war, civil
disturbances, acts of civil or military
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authorities
or the public enemy, acts or omissions of communications or other carriers or
any other cause beyond a party’s reasonable control (other than that which
arises from the gross negligence or willful misconduct of such party), whether
or not similar to the foregoing, that prevent such party from materially
performing its obligations hereunder.
2.3 Entire Agreement; Modification;
Waivers. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all previous negotiation, commitments and writings with respect to the
matters discussed herein. This Agreement may not be altered, modified
or amended except by a written instrument signed by all parties. The
failure of any party to require the performance or satisfaction of any term or
obligation of this Agreement, or the waiver by any party of any breach of this
Agreement, shall not prevent subsequent enforcement of such term of obligation
or be deemed a waiver of any subsequent breach.
2.4 Severability. The
provisions of this Agreement are severable, and in the event that any one or
more provisions are deemed illegal or unenforceable the remaining provisions
shall remain in full force and effect unless the deletion of such provision
shall cause this Agreement to become materially adverse to either party, in
which event the parties shall use reasonable commercial efforts to arrive at an
accommodation that best preserves for the parties the benefits and obligations
of the offending provision.
2.5 Notices. Except as
otherwise expressly provided, any notice, request, demand or other communication
permitted or required to be given under this Agreement shall be in writing,
shall be sent by one of the following means to the Company or the Manager at the
addresses set forth below (or to such other address as shall be designated
hereunder by notice to the other parties and persons receiving copies, effective
upon actual receipt), and shall be deemed conclusively to have been
given: (a) on the first business day following the day timely
deposited with Federal Express (or other equivalent national overnight courier)
or United States Express Mail, with the cost of delivery prepaid or for the
account of the sender; (b) on the fifth business day following the day duly sent
by certified or registered United States mail, postage prepaid and return
receipt requested; or (c) when otherwise actually received by the addressee on a
business day (or on the next business day if received after the close of normal
business hours or on any nonbusiness day).
If to the
Company:
00 X.
XxxxxXxxxxx Xxxx.
Xxxxxxxxx,
Xxxxxxxx 00000
Attn: Xxxxx
X. Xxxxxxxx
Fax:
(000) 000-0000
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If to the
Manager:
Evercore
Trust Company, N. A.
0000 Xxx
Xxxx Xxxxxx
0xx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxx
X. Xxxxxxxx
Fax: (000)
000-0000
2.6 Title and
Headings. Titles and headings to sections herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
2.7 Execution in
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.8 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the Company and the Manager and their respective successors and
permitted assigns. None of the rights or obligations under this
Agreement shall be assigned by the Manager without the prior written consent of
the Company and the Trust in their sole discretion.
IN
WITNESS WHEREOF, each of the Company and the Manager has caused this Agreement
to be duly executed on its behalf by its duly authorized officer as of the date
first written above.
| ASHLAND INC. | |||
|
|
By:
|
/s/ J. Xxxxx Xxxxxx | |
| Name: | J. Xxxxx Xxxxxx | ||
| Title: | Vice President & Treasurer | ||
|
EVERCORE
TRUST COMPANY, N.A.,
as Investment Manager of a Segregated
Account in the Ashland Inc. Defined Benefit Master
Trust
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxx | ||
| Title: | Managing Director | ||
