EXHIBIT 10(O)
DIRECTOR'S AGREEMENT
This INDEMNITY AGREEMENT made and entered into as of the _____ day of
___________ by and between Life Technologies, Inc., a Delaware corporation (the
"Company"), and __________________,(the "Indemnitee");
WHEREAS, highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or in other capacities unless they are
provided with adequate protection through insurance and indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the Company; and
WHEREAS, the current difficulties of obtaining adequate insurance have
increased the difficulty of attracting and retaining such persons; and
WHEREAS, the Board of Directors has determined that the inability to
attract and retain such persons is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve and
take on additional service for or on behalf of the Company on the condition that
he/she be so indemnified;
NOW, THEREFORE, in consideration of the premises, the covenants
contained herein, and for $10 and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Indemnitee do hereby covenant and agree as follows:
SECTION 1. Service by the Indemnitee. The Indemnitee will serve
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and/or continue to serve as a director of the Company faithfully and to the best
of the Indemnitee's ability so long as the Indemnitee is duly elected or
qualified in accordance with the provisions of the By-laws of the Company or
until such time as the Indemnitee tenders his/her resignation in writing. The
Indemnitee may at any time and for any reason resign from such position (subject
to any other contractual obligation or other obligation imposed by operation of
law), in which event the Company shall have no obligation under this Agreement
to continue the Indemnitee in any such position. Nothing in this Agreement
shall confer upon the Indemnitee the right to continue in the employ of the
Company or affect the right of the Company to terminate the Indemnitee's
employment at any time in the sole discretion of the Company, with or without
cause.
SECTION 2. Indemnification. The Company shall indemnify the
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Indemnitee to the fullest extent permitted by applicable law in effect on the
date hereof or as such laws may from time to time be amended. Without
diminishing the scope of the indemnification provided by this Section 2, the
rights of indemnification of the Indemnitee provided hereunder shall include
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but shall not be limited to those rights hereinafter set forth, except that no
indemnification shall be paid to the Indemnitee:
(a) on account of any suit in which judgment is rendered
against the Indemnitee for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of
any federal, state or local statutory law;
(b) on account of the Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest,
or to constitute willful misconduct;
(c) to the extent expressly prohibited by applicable law;
(d) for which payment is actually made to the Indemnitee
under a valid and collectible insurance policy or under a valid and
enforceable indemnity clause, by-law or agreement, except in respect
of any excess beyond payment under such insurance, clause, by-law or
agreement;
(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and,
in this respect, both the Company and the Indemnitee have been
advised that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal securities
laws is against public policy and is, therefore, unenforceable and
that claims for indemnification should be submitted to the
appropriate court for adjudication); or
(f) in connection with any proceeding (or part thereof)
initiated by the Indemnitee, or any proceeding by the Indemnitee
against the Company or its directors, officers, employees or other
Indemnitees, unless (i) such indemnification is expressly required to
be made by law, (ii) the proceeding was authorized by the Board of
Directors of the Company, (iii) such indemnification is provided by
the Company, in its sole discretion, pursuant to the powers vested in
the Company under applicable law, or (iv) except as provided in
Sections 10 and 13 hereof.
SECTION 3. Action or Proceeding Other Than an Action by or in the
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Right of the Company. The Indemnitee shall be entitled to the indemnification
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rights provided in this Section if he/she is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature, other than
an action by or in the right of the Company, by reason of the fact that he/she
is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
or fiduciary of any other entity, including but not limited to, another
corporation, partnership, joint venture, trust, or by reason of anything done or
not done by the Indemnitee in any such capacity. Pursuant to this Section, the
Indemnitee shall be indemnified against all expenses (including attorneys'
fees), costs, judgments, penalties, fines and
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amounts paid in settlement actually and reasonably incurred by the Indemnitee in
connection with such action, suit or proceeding (including, but not limited to,
the investigation, defense or appeal thereof), if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his/her conduct was unlawful.
SECTION 4. Actions by or in the Right of the Company. The Indemnitee
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shall be entitled to the indemnification rights provided in this Section if the
Indemnitee is a person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding brought by or
in the right of the Company to procure a judgment in its favor by reason of the
fact that the Indemnitee is or was a director, officer, employee or agent or
fiduciary of the Company, or is or was serving at the request of the Company as
a director, officer, employee, agent or fiduciary of another entity, including,
but not limited to, another corporation, partnership, joint venture, trust, or
by reason of anything done or not done by the Indemnitee in any such capacity.
Pursuant to this Section, the Indemnitee shall be indemnified against all
expenses (including attorneys' fees), costs and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with such
action, suit or proceeding (including, but not limited to, the investigation,
defense or appeal thereof) if the Indemnitee acted in good faith and in a manner
he/she reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, that no such indemnification shall be made in
respect of any claim, issue, or matter as to which applicable law expressly
prohibits such indemnification by reason of any adjudication of liability of the
Indemnitee to the Company, unless and only to the extent that, the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses and costs which
such court shall deem proper.
SECTION 5. Indemnification for Costs, Charges and Expenses of
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Successful Party. Notwithstanding the other provisions of this Agreement, to
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the extent that the Indemnitee has served as a witness on behalf of the Company
or has been successful, on the merits or otherwise, in defense of any action,
suit or proceeding referred to in Sections 3 and 4 hereof, or in defense of any
claim, issue or matter therein, including, without limitation, the dismissal of
any action without prejudice, the Indemnitee shall be indemnified against all
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him/her in connection therewith.
SECTION 6. Partial Indemnification. If the Indemnitee is entitled
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under any provision of this Agreement to indemnification by the Company for some
or a portion of the expenses (including attorneys' fees), costs, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him/her
in connection with the investigation, defense, appeal or settlement of such
suit, action, investigation or proceeding described in Section 3 or 4 hereof,
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including reasonable attorneys' fees), costs, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him/her to which
the Indemnitee is entitled.
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SECTION 7. Determination of Entitlement to Indemnification. Upon
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written request by the Indemnitee for indemnification pursuant to Section 3 or 4
hereof, the entitlement of the Indemnitee to indemnification pursuant to the
terms of this Agreement shall be determined by the following person or persons
who shall be empowered to make such determination: (a) the Board of Directors
of the Company by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter defined); or (b) if such a quorum is not obtainable
or, even if obtainable, if the Board of Directors by the majority vote of
Disinterested Directors so directs, by Independent Counsel (as hereinafter
defined) in a written opinion to the Board of Directors, a copy of which shall
be delivered to the Indemnitee. Such Independent Counsel shall be selected by
the Board of Directors and approved by the Indemnitee. Upon failure of the Board
to so select such Independent Counsel or upon failure of the Indemnitee to so
approve, such Independent Counsel shall be selected by the Chancellor of the
State of Delaware or such other person as the Chancellor shall designate to make
such selection. Such determination of entitlement to indemnification shall be
made not later than 45 days after receipt by the Company of a written request
for indemnification. Such request shall include documentation or information
which is necessary for such determination and which is reasonably available to
the Indemnitee. Any costs or expenses (including attorneys' fees) incurred by
the Indemnitee in connection with the Indemnitee's request for indemnification
hereunder shall be borne by the Company. The Company hereby indemnifies and
agrees to hold the Indemnitee harmless therefrom irrespective of the outcome of
the determination of the Indemnitee's entitlement to indemnification. If the
person making such determination shall determine that the Indemnitee is entitled
to indemnification as part (but not all) of the application for indemnification,
such person shall reasonably prorate such partial indemnification among such
claims, issues or matters.
SECTION 8. Presumptions and Effect of Certain Proceedings. The
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Secretary of the Company shall, promptly upon receipt of the Indemnitee's
request for indemnification, advise in writing the Board of Directors or such
other person or persons empowered to make the determination as provided in
Section 7 that the Indemnitee has made such request for indemnification. Upon
making such request for indemnification, the Indemnitee shall be presumed to be
entitled to indemnification hereunder and the Company shall have the burden of
proof in making of any determination contrary to such presumption. If the
person or persons so empowered to make such determination shall have failed to
make the requested indemnification within 45 days after receipt by the Company
of such request, the requisite determination of entitlement to indemnification
shall be deemed to have been made and the Indemnitee shall be absolutely
entitled to such indemnification, absent actual and material fraud in the
request for indemnification. The termination of any action, suit, investigation
or proceeding described in Section 3 or 4 hereof by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
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of itself: (a) create a presumption that the Indemnitee did not act in good
faith and in a manner which the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, that the Indemnitee had reasonable cause to believe that
his/her conduct was unlawful; or (b) otherwise adversely affect the rights of
the Indemnitee to indemnification except as may be provided herein.
SECTION 9. Advancement of Expenses and Costs. All reasonable
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expenses and costs incurred by the Indemnitee (including attorneys' fees,
retainers and advances of disbursements required of the Indemnitee) shall be
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paid by the Company in advance of the final disposition of such action, suit or
proceeding at the request of the Indemnitee within twenty days after the receipt
by the Company of a statement or statements from the Indemnitee requesting such
advance or advances from time to time. The Indemnitee's entitlement to such
expenses shall include those incurred in connection with any proceeding by the
Indemnitee seeking an adjudication or award in arbitration pursuant to this
Agreement. Such statement or statements shall reasonably evidence the expenses
and costs incurred by the Indemnitee in connection therewith and shall include
or be accompanied by an undertaking by or on behalf of the Indemnitee to repay
such amount if it is ultimately determined that the Indemnitee is not entitled
to be indemnified against such expenses and costs by the Company as provided by
this Agreement or otherwise.
SECTION 10. Remedies of the Indemnitee in Cases of Determination not
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to Indemnify or to Advance Expenses. In the event that a determination is made
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that the Indemnitee is not entitled to indemnification hereunder or if payment
has not been timely made following a determination of entitlement to
indemnification pursuant to Sections 7 and 8, or if expenses are not advanced
pursuant to Section 9, the Indemnitee shall be entitled to a final adjudication
in any appropriate court of the State of Delaware or any other court of
competent jurisdiction of his/her entitlement to such indemnification or
advance. Alternatively, the Indemnitee at his/her option may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association, such award to be made within sixty days
following the filing of the demand for arbitration. The Company shall not
oppose the Indemnitee's right to seek any such adjudication or award in
arbitration or any other claim. Such judicial proceeding or arbitration shall
be made de novo and the Indemnitee shall not be prejudiced by reason of a
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determination (if so made) that he/she is not entitled to indemnification. If a
determination is made or deemed to have been made pursuant to the terms of
Section 7 or Section 8 hereof that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination and is
precluded from asserting that such determination has not been made or that the
procedure by which such determination was made is not valid, binding and
enforceable. The company further agrees to stipulate in any such court or
before any such arbitrator that the Company is bound by all the provisions of
this Agreement and is precluded from making any assertions to the contrary. If
the court or arbitrator shall determine that the Indemnitee is entitled to any
indemnification hereunder, the Company shall pay all reasonable expenses
(including attorneys' fees) and costs actually incurred by the Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellant proceedings).
SECTION 11. Notification and Defense of Claim. Promptly after
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receipt by the Indemnitee of notice of the commencement of any action, suit or
proceeding, the Indemnitee will, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company in writing of the
commencement thereof; but the omission to so notify the Company will not relieve
it from any liability that it may have to the Indemnitee otherwise than under
this Agreement. Notwithstanding any other provision of this Agreement, with
respect to any such action, suit or proceeding as to which the Indemnitee
notifies the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at
its own expense; and
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(b) Except as otherwise provided in this Section 11(b), to
the extent that it may wish, the Company, jointly with any other
indemnifying party similarly notified, shall be entitled to assume
the defense thereof, with counsel satisfactory to the Indemnitee.
After notice from the Company to the Indemnitee of its election to so
assume the defense thereof, the Company shall not be liable to the
Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by the Indemnitee in connection with the
defense thereof other than reasonable costs of investigation or as
otherwise provided below. The Indemnitee shall have the right to
employ his/her own counsel in such action, suit or proceeding, but
the fees and expense of such counsel incurred after notice from the
Company of its assumption of the defense thereof shall be at the
expense of the Indemnitee unless (i) the employment of counsel by the
Indemnitee has been authorized by the Company, (ii) the Indemnitee
shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of the
defense of such action or (iii) the Company shall not in fact have
employed counsel to assume the defense of the action, in each of
which cases the fees and expenses of counsel shall be at the expense
of the Company. The Company shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of
the Company or as to which the Indemnitee shall have made the
conclusion provided for in (ii) above.
(c) The Company shall not be liable to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent. The
Company shall not settle any action or claim in any manner that would
impose any penalty or limitation on the Indemnitee without the
Indemnitee's written consent. Neither the Company nor the Indemnitee
will unreasonably withhold their consent to any proposed settlement.
SECTION 12. Other Rights to Indemnification. The indemnification and
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advancement of expenses (including attorneys' fees) and costs provided by this
Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may now or in the future be entitled under any provision of the By-
laws, agreement, provision of the Certificate of Incorporation of the Company,
vote of stockholders or Disinterested Directors, provision of law or otherwise.
SECTION 13. Attorneys' Fees and Other Expenses to Enforce Agreement.
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In the event that the Indemnitee is subject to or intervenes in any proceeding
in which the validity or enforceability of this Agreement is at issue or seeks
an adjudication or award in arbitration to enforce his/her rights under, or to
recover damages for breach of, this Agreement, the Indemnitee, if he/she
prevails in whole or in part in such action, shall be entitled to recover from
the Company and shall be indemnified by the Company against, any actual expenses
for attorneys' fees and disbursements reasonably incurred by the Indemnitee.
SECTION 14. Duration of Agreement. This Agreement shall continue
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until and terminate upon the later of: (a) ten years after the Indemnitee has
ceased to occupy any of the positions or have any relationships
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described in Sections 3 and 4 of this Agreement; and (b) the final termination
of all pending or threatened actions, suits, proceedings or investigations to
which the Indemnitee may be subject by reason of the fact that the Indemnitee is
or was a director, officer, employee, agent or fiduciary of the Company or is or
was serving at the request of the Company as a director, officer, employee,
agent or fiduciary of any other entity, including, but not limited to, another
corporation, partnership, joint venture or trust, or by reason of anything done
or not done by the Indemnitee in any such capacity. The indemnification provided
under this Agreement shall continue as to the Indemnitee even though he/she may
have ceased to be a director or officer of the Company. This Agreement shall be
binding upon the Company and its successors and assigns and shall inure to the
benefit of the Indemnitee and the Indemnitee's spouse, assigns, heirs, devises,
executors, administrators or other legal representatives.
SECTION 15. Severability. If any provision or provisions of this
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Agreement shall be held invalid, illegal or unenforceable for any reason
whatsoever (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby, and (b) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifest by the provision held invalid, illegal or
unenforceable.
SECTION 16. Identical Counterparts. This Agreement may be executed
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in one or more counterparts, each of which shall for all purposes be deemed to
be an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
SECTION 17. Headings. The headings of the paragraphs of this
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Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
SECTION 18. Definitions. For purposes of this Agreement:
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(a) "Disinterested Director" shall mean a director of the
Company who is not or was not a party to the action, suit,
investigation or proceeding in respect of which indemnification is
being sought by the Indemnitee.
(b) "Independent Counsel" shall mean a law firm or a member
of a law firm that neither is presently nor in the past five years has
been retained to represent: (i) the Company or the Indemnitee in any
matter material to either such party, or (ii) any other party to the
action, suit, investigation or proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or the
Indemnitee
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in an action to determine the Indemnitee's right to indemnification
under this Agreement.
SECTION 19. Modification and Waiver. No supplement, modification or
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amendment of this Agreement shall be binding unless executed in writing by both
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
SECTION 20. Notices. All notices, requests, demand or other
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communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or if (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to the Indemnitee, to:
______________________________
c/o Life Technologies, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(b) If to the Company, to:
Life Technologies, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
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with a copy to:
Xxxx Xxxxxx, Esq.
Fulbright & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
SECTION 21. Governing Law. The parties hereto agree that this
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Agreement shall be governed by, construed and enforced in accordance with, the
Laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first written above.
LIFE TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
Senior Vice President &
Chief Financial Officer
___________________________________
Indemnitee
Address: c/o Life Technologies, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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