INDEMNITY AGREEMENT
Exhibit
10.89
This
Indemnity Agreement (this “Agreement”) dated as of
_____________________, 20__, is made by and between Chordiant
Software, Inc., a Delaware corporation (the “Company”), and ___________________________
(“Indemnitee”).
Recitals
A. The
Company desires to attract and retain the services of highly qualified
individuals as directors, officers, employees and agents.
B. The
Company’s bylaws (the “Bylaws”) require that the
Company indemnify its directors and officers, and shall have the power to
indemnify its employees and agents, as authorized by the Delaware General
Corporation Law, as amended (the “Code”), under which the
Company is organized and such Bylaws expressly provide that the indemnification
provided therein is not exclusive and contemplates that the Company may enter
into separate agreements with its directors, officers and other persons to set
forth specific indemnification provisions.
C. Indemnitee
does not regard the protection currently provided by applicable law, the
Company’s governing documents and available insurance as adequate under the
present circumstances, and the Company has determined that Indemnitee and other
directors, officers, employees and agents of the Company may not be willing to
serve or continue to serve in such capacities without additional
protection.
D. The
Company desires and has requested Indemnitee to serve or continue to serve as a
director, officer, employee or agent of the Company, as the case may be, and has
proffered this Agreement to Indemnitee as an additional inducement to serve in
such capacity.
E. Indemnitee
is willing to serve, or to continue to serve, as a director, officer, employee
or agent of the Company, as the case may be, if Indemnitee is furnished the
indemnity provided for herein by the Company.
Agreement
Now
Therefore, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions.
(a) Agent. For purposes
of this Agreement, the term “agent” of the Company means any person
who: (i) is or was a director, officer, employee or other
fiduciary of the Company or a subsidiary of the Company; or (ii) is or was
serving at the request or for the convenience of, or representing the interests
of, the Company or a subsidiary of the Company, as a director, officer, employee
or other fiduciary of a foreign or domestic corporation,
partnership, joint venture, trust or other enterprise.
(b) Expenses. For
purposes of this Agreement, the term “expenses” shall be broadly construed and
shall include, without limitation, all direct and indirect costs of any type or
nature whatsoever (including, without limitation, all attorneys’, witness or
other professional fees and related disbursements, and other out-of-pocket costs
of whatever nature), actually and reasonably incurred by Indemnitee in
connection with the investigation, defense or appeal of a proceeding, or
establishing or enforcing a right to indemnification under this Agreement, the
Code or otherwise, and amounts paid in settlement by or on behalf of Indemnitee,
but shall not include any judgments, fines or penalties actually levied against
Indemnitee for such individual’s violations of law. The term
“expenses” shall also include reasonable compensation for time spent by
Indemnitee for which he is not compensated by the Company or any subsidiary or
third party (i) for any period during which Indemnitee is not an agent, in the
employment of, or providing services for compensation to, the Company or any
subsidiary; and (ii) if the rate of compensation and estimated time involved is
approved by the directors of the Company who are not parties to any action with
respect to which expenses are incurred, for Indemnitee while an agent of,
employed by, or providing services for compensation to, the Company or any
subsidiary.
(c) Proceedings. For
purposes of this Agreement, the term “proceeding” shall be broadly construed and
shall include, without limitation, any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether brought in the right of the Company or otherwise and whether
of a civil, criminal, administrative or investigative nature, and whether formal
or informal in any case, in which Indemnitee was, is or will be involved as a
party or otherwise by reason of: (i) the fact that Indemnitee is or
was a director or officer of the Company; (ii) the fact that any action was
taken by Indemnitee or on Indemnitee’s part while acting as a director, officer,
employee or agent of the Company; or (iii) the fact that Indemnitee is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, and in any such case described above, whether or not
serving in any such capacity at the time any liability or expense is incurred
for which indemnification, reimbursement or advancement of expenses may be
provided under this Agreement.
(d) Subsidiary. For
purposes of this Agreement, the term “subsidiary” means any corporation or
limited liability company of which more than 50% of the outstanding voting
securities or equity interests are owned, directly or indirectly, by the Company
and one or more of its subsidiaries, and any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the request of the
Company as a director, officer, employee, agent or fiduciary.
(e) Independent
Counsel. For purposes of this Agreement, the term “independent
counsel” means a law firm, or a partner (or, if applicable, member) of such a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five (5) years has been, retained
to represent: (i) the Company or Indemnitee in any matter material to either
such party, or (ii) any other party to the 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 Indemnitee in an action to
determine Indemnitee’s rights under this Agreement.
2. Agreement to
Serve. Indemnitee will serve, or continue to serve, as a
director, officer, employee or agent of the Company or any subsidiary, as the
case may be, faithfully and to the best of his or her ability, at the will of
such corporation (or under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an agent of such corporation, so long as
Indemnitee is duly appointed or elected and qualified in accordance with the
applicable provisions of the bylaws or other applicable charter documents of
such corporation, or until such time as Indemnitee tenders his or her
resignation in writing; provided, however, that nothing contained in this
Agreement is intended as an employment agreement between Indemnitee and the
Company or any of its subsidiaries or to create any right to continued
employment of Indemnitee with the Company or any of its subsidiaries in any
capacity.
The
Company acknowledges that it has entered into this Agreement and assumes the
obligations imposed on it hereby, in addition to and separate from its
obligations to Indemnitee under the Bylaws, to induce Indemnitee to serve, or
continue to serve, as a director, officer, employee or
agent of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer, employee or agent of the
Company.
3. Indemnification.
(a) Indemnification in Third Party
Proceedings. Subject to Section 10 below, the Company
shall indemnify Indemnitee to the fullest extent permitted by the Code, as the
same may be amended from time to time (but, only to the extent that such
amendment permits Indemnitee to broader indemnification rights than the Code
permitted prior to adoption of such amendment), if Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any proceeding, for
any and all expenses, actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of such
proceeding.
(b) Indemnification in Derivative Actions
and Direct Actions by the Company. Subject to Section 10
below, the Company shall indemnify Indemnitee to the fullest extent permitted by
the Code, as the same may be amended from time to time (but, only to the extent
that such amendment permits Indemnitee to broader indemnification rights than
the Code permitted prior to adoption of such amendment), if Indemnitee is a
party to or threatened to be made a party to or otherwise involved in any
proceeding by or in the right of the Company to procure a judgment in its favor,
against any and all expenses actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of such
proceedings.
4. Indemnification of Expenses of
Successful Party. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any proceeding or in defense of any claim, issue or
matter therein, including the dismissal of any action without prejudice, the
Company shall indemnify Indemnitee against all expenses actually and reasonably
incurred in connection with the investigation, defense or appeal of such
proceeding.
5. Partial
Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of any
expenses actually and reasonably incurred by Indemnitee in the investigation,
defense, settlement or appeal of a proceeding, but is precluded by applicable
law or the specific terms of this Agreement to indemnification for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.
6. Advancement of
Expenses. To the extent not prohibited by law, the Company
shall advance the expenses incurred by Indemnitee in connection with
any proceeding, and such advancement shall be made within twenty (20) days after
the receipt by the Company of a statement or statements requesting such advances
(which shall include invoices received by Indemnitee in connection with such
expenses but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that would cause
Indemnitee to waive any privilege accorded by applicable law shall not be
included with the invoice) and upon request of the Company, Indemnitee shall
provide to the Company an undertaking to repay the advancement of expenses if
and to the extent that it is ultimately determined by a court of competent
jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not
entitled to be indemnified by the Company. Advances shall be
unsecured, interest free and without regard to Indemnitee’s ability to repay the
expenses. Advances shall include any and all expenses actually and reasonably
incurred by Indemnitee pursuing an action to enforce Indemnitee’s right to
indemnification under this Agreement, or otherwise, and this right of
advancement. Indemnitee acknowledges that the execution and delivery
of this Agreement shall constitute an undertaking providing that Indemnitee
shall, to the fullest extent required by law, repay the advance if and to the
extent that it is ultimately determined by a court of competent jurisdiction in
a final judgment, not subject to appeal, that Indemnitee is not entitled to be
indemnified by the Company. The right to advances under this Section
shall continue until final disposition of any proceeding, including any appeal
therein. This Section 6 shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to Section
10(b).
7. Notice and Other Indemnification
Procedures.
(a) Notification of
Proceeding. Indemnitee will notify the Company in writing
promptly upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any proceeding or matter
which may be subject to indemnification or advancement of expenses covered
hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to Indemnitee under
this Agreement or otherwise.
(b) Request for Indemnification and
Indemnification Payments. Indemnitee shall notify the Company
promptly in writing upon receiving notice of any demand, judgment or other
requirement for payment that Indemnitee reasonably believes to be subject to
indemnification under the terms of this Agreement, and shall request payment
thereof by the Company. Indemnification payments requested by
Indemnitee under this Section 7(b) or Section 3 hereof shall be made by the
Company no later than sixty (60) days after receipt of the written request of
Indemnitee. Claims for advancement of expenses shall be made under
the provisions of Section 6 herein.
(c) Application for
Enforcement. In the event the Company fails to make timely
payments as set forth in Sections 6 or 7(b) above, Indemnitee shall have the
right to apply to any court of competent jurisdiction for the purpose of
enforcing Indemnitee’s right to indemnification or advancement of expenses
pursuant to this Agreement. In such an enforcement hearing or
proceeding, the burden of proof shall be on the Company to prove that
indemnification or advancement of expenses to Indemnitee is not required under
this Agreement or permitted by applicable law. Any determination by
the Company (including its Board of Directors, stockholders or independent
counsel) that Indemnitee is not entitled to indemnification hereunder shall not
be a defense by the Company to the action nor create any presumption that
Indemnitee is not entitled to indemnification or advancement of expenses
hereunder.
(d) Indemnification of Certain
Expenses. The Company shall indemnify Indemnitee against all
expenses incurred in connection with any hearing or proceeding under this
Section 7 unless the Company prevails in such hearing or proceeding on the
merits in all material respects.
8. Assumption of
Defense. In the event the Company shall be requested by
Indemnitee to pay the expenses of any proceeding, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, or to participate to
the extent permissible in such proceeding, with counsel reasonably acceptable to
Indemnitee. Upon assumption of the defense by the Company and the
retention of such counsel by the Company, the Company shall not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same proceeding, provided that Indemnitee shall
have the right to employ separate counsel in such proceeding at Indemnitee’s
sole cost and expense. Notwithstanding the foregoing, if Indemnitee’s
counsel delivers a written notice to the Company stating that such counsel has
reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense or the Company shall
not, in fact, have employed counsel or otherwise actively pursued the defense of
such proceeding within a reasonable time, then in any such event the fees and
expenses of Indemnitee’s counsel to defend such proceeding shall be subject to
the indemnification and advancement of expenses provisions of this
Agreement.
9. Insurance. To the extent that the
Company maintains an insurance policy or policies providing liability insurance
for directors, officers, employees, or agents of the Company or of any
subsidiary (“D&O Insurance”), Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the
coverage available for any such director, officer, employee or agent under such
policy or policies. If, at the time of the receipt of a notice
of a claim pursuant to the terms hereof, the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of
such policies.
10. Exceptions.
(a) Certain
Matters. Any provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of this Agreement to
indemnify Indemnitee on account of any proceeding with respect to
(i) remuneration paid to Indemnitee if it is determined by final judgment
or other final adjudication that such remuneration was in violation of law (and,
in this respect, both the Company and 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 appropriate courts for adjudication, as indicated in Section 10(d) below);
(ii) a final judgment rendered against Indemnitee for an accounting,
disgorgement or repayment of profits made from the purchase or sale by
Indemnitee of securities of the Company or in connection with a settlement by or
on behalf of Indemnitee to the extent it is acknowledged by Indemnitee and the
Company that such amount paid in settlement resulted from Indemnitee's conduct
from which Indemnitee received monetary personal profit, pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or other provisions of any federal, state or local statute or rules and
regulations thereunder; (iii) a final judgment or other final adjudication
that Indemnitee’s conduct was in bad faith, knowingly fraudulent or deliberately
dishonest or constituted willful misconduct (but only to the extent of such
specific determination); or (iv) on account of conduct that is established by a
final judgment as constituting a breach of Indemnitee’s duty of loyalty to the
Company or resulting in any personal profit or advantage to which Indemnitee is
not legally entitled. For purposes of the foregoing sentence, a final
judgment or other adjudication may be reached in either the underlying
proceeding or action in connection with which indemnification is sought or a
separate proceeding or action to establish rights and liabilities under this
Agreement.
(b) Claims Initiated by
Indemnitee. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated to indemnify or advance
expenses to Indemnitee with respect to proceedings or claims initiated or
brought by Indemnitee against the Company or its directors, officers, employees
or other agents and not by way of defense, except (i) with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or under any other agreement, provision in the Bylaws or
Certificate of
Incorporation or applicable law, or (ii) with respect to any other proceeding
initiated by Indemnitee that is either approved by the Board of Directors or
Indemnitee’s participation is required by applicable law. However,
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Directors determines it to be
appropriate.
(c) Unauthorized
Settlements. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee under this Agreement for any amounts paid
in settlement of a proceeding effected without the Company’s written
consent. Neither the Company nor Indemnitee shall unreasonably
withhold consent to any proposed settlement; provided, however, that the Company
may in any event decline to consent to (or to otherwise admit or agree to any
liability for indemnification hereunder in respect of) any proposed settlement
if the Company is also a party in such proceeding and determines in good faith
that such settlement is not in the best interests of the Company and its
stockholders.
(d) Securities Act
Liabilities. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee or otherwise act in violation of any
undertaking appearing in and required by the rules and regulations promulgated
under the Securities Act of 1933, as amended (the “Act”), or in any registration
statement filed with the SEC under the Act. Indemnitee acknowledges
that paragraph (h) of Item 512 of Regulation S-K currently generally
requires the Company to undertake in connection with any registration statement
filed under the Act to submit the issue of the enforceability of Indemnitee’s
rights under this Agreement in connection with any liability under the Act on
public policy grounds to a court of appropriate jurisdiction and to be governed
by any final adjudication of such issue. Indemnitee specifically
agrees that any such undertaking shall supersede the provisions of this
Agreement and to be bound by any such undertaking.
11. Nonexclusivity and Survival of
Rights. The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which Indemnitee may at any time be entitled under any provision of
applicable law, the Company’s Certificate of Incorporation, Bylaws or other
agreements, both as to action in Indemnitee’s official capacity and Indemnitee’s
action as an agent of the Company, in any court in which a proceeding is
brought, and Indemnitee’s rights hereunder shall continue after Indemnitee has
ceased acting as an agent of the Company and shall inure to the benefit of the
heirs, executors, administrators and assigns of Indemnitee. The
obligations and duties of the Company to Indemnitee under this Agreement shall
be binding on the Company and its successors and assigns until terminated in
accordance with its terms. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place.
No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his or her corporate status
prior to such amendment, alteration or repeal. To the extent that a
change in the Code, whether by statute or judicial decision, permits greater
indemnification or advancement of expenses than would be afforded currently
under the Company’s Certificate of Incorporation, Bylaws and this Agreement, it
is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, by Indemnitee shall not prevent the
concurrent assertion or employment of any other right or remedy by
Indemnitee.
12. Term. This
Agreement shall continue until and terminate upon the later of: (a) five (5)
years after the date that Indemnitee shall have ceased to serve as a director
and/or officer, employee or agent of the Company; or (b) one (1) year after the
final termination of any proceeding, including any appeal then pending, in
respect to which Indemnitee was granted rights of indemnification or advancement
of expenses hereunder.
No
legal action shall be brought and no cause of action shall be asserted by or in
the right of the Company against an Indemnitee or an Indemnitee's estate,
spouse, heirs, executors or personal or legal representatives after the
expiration of five (5) years from the date of accrual of such cause of action,
and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
five-year period; provided, however, that if any shorter period of limitations
is otherwise applicable to such cause of action, such shorter period shall
govern.
13. Subrogation. In the
event of payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who, at
the request and expense of the Company, shall execute all papers required and
shall do everything that may be reasonably necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
14. Interpretation of
Agreement. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification
to Indemnitee to the fullest extent now or hereafter permitted by
law.
15. Severability. If
any provision of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever, (a) the validity, legality and
enforceability of the remaining provisions of the 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 manifested by the provision held
invalid, illegal or unenforceable and to give effect to Section 14
hereof.
16. Amendment and
Waiver. No supplement, modification, amendment, or
cancellation of this Agreement shall be binding unless executed in writing by
the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
17. Notice. Except as
otherwise provided herein, any notice or demand which, by the provisions hereof,
is required or which may be given to or served upon the parties hereto shall be
in writing and, if by telegram, telecopy or telex, shall be deemed to have been
validly served, given or delivered when sent, if by overnight delivery, courier
or personal delivery, shall be deemed to have been validly served, given or
delivered upon actual delivery and, if mailed, shall be deemed to have been
validly served, given or delivered three (3) business days after deposit in the
United States mail, as registered or certified mail, with proper postage prepaid
and addressed to the party or parties to be notified at the addresses set forth
on the signature page of this Agreement (or such other address(es) as a party
may designate for itself by like notice). If to the Company, notices
and demands shall be delivered to the attention of the Secretary of the
Company.
18. Governing Law. This
Agreement shall be governed exclusively by and construed according to the laws
of the State of Delaware, as applied to contracts between Delaware residents entered into
and to be performed entirely within Delaware.
19. Counterparts. This
Agreement may be executed 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 but one and the same Agreement. Only one such counterpart
need be produced to evidence the existence of this Agreement.
20. Headings. The
headings of the sections of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect the
construction hereof.
21. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings and negotiations, written and oral, between the
parties with respect to the subject matter of this Agreement; provided, however,
that this Agreement is a supplement to and in furtherance of the Company’s
Certificate of Incorporation, Bylaws, the Code and any other applicable law, and
shall not be deemed a substitute therefor, and does not diminish or abrogate any
rights of Indemnitee thereunder.
.
In Witness
Whereof, the parties hereto have entered into this Agreement effective as
of the date first written above.
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CHORDIANT
SOFTWARE, INC.
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Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxxxxxx,
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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Title:
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Address:
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