Exhibit 10.31
INDEMNIFICATION AGREEMENT
This Agreement, dated as of May 22, 2000, is made by and between Integrated
Circuit Systems, Inc., a Pennsylvania corporation (the "Company"), and Xxxxxxx
X. Xxxx who is currently serving as an officer and/or director of the Company
(the "Indemnitee").
WHEREAS, the Indemnitee is currently serving in the capacity or capacities
described above;
WHEREAS, the Company recently completed an initial public offering of its
common stock (the "Offering"), which will likely increase the risk of litigation
and other claims being asserted against the directors and officers of the
Company;
WHEREAS, prior to the Offering the Company determined that it was in the
best interests of the Company to enter into indemnification agreements with its
current officers and/or directors of the Company;
WHEREAS, the Company wishes the Indemnitee to continue to serve in such
capacity or capacities and the Indemnitee is willing, under certain
circumstances, to continue in such capacity or capacities;
WHEREAS, damages sought and sometimes paid in many claims made against
corporate directors and officers and the expenses required to defend such
claims, whether or not the allegations are meritorious, may not bear a
reasonable relationship to the amount of compensation received by and may be
beyond the financial resources of the Indemnitee;
WHEREAS, the Indemnitee is currently entitled to indemnification under
Pennsylvania Business Corporation Law and the Certificate of Incorporation of
the Company, which the Indemnitee does not regard to be adequate protection
against the risks associated with his service to or at the request of the
Company:
WHEREAS, the Indemnitee and the Company have concluded that the exposure to
risk of personal liability and payment of damages out of the Indemnitee*s
personal assets may result in overly conservative direction and supervision of
the Company*s affairs, which is detrimental to the best interests of the Company
and its stockholders; and
WHEREAS, the Company has concluded that additional protection is necessary
for its directors and elected officers.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby:
1. Definitions.
(a) Agent. For the purposes of this Agreement, "agent" of the Company means
any person who is or was a director, officer, employee, agent or fiduciary of
the Company or a subsidiary of the Company, or is or was serving at the request
of, for the convenience of, or to represent the interests of the Company or a
subsidiary of the Company as a director, officer, employee, agent or fiduciary
of another corporation, partnership, joint venture, trust or other enterprise or
entity, including service with respect to an employee benefit plan.
(b) Disinterested Director. For purposes of this Agreement, "Disinterested
Director" of the Company means a director of the Company who is not and was not
a party to the proceeding for which indemnification is being sought by the
claimant.
(c) Expenses. For purposes of this Agreement, "expenses" includes all
direct and indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys* fees and related disbursements, other out-of-pocket
costs and reasonable compensation for time spent by the Indemnitee for which he
is not otherwise compensated by the Company or any third party) actually and
reasonably incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement, Section 1741 of the Business
Corporation Law of Pennsylvania or otherwise; provided, however, that expenses
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shall not include any judgments, fines, excise taxes or penalties under the
Employee Retirement Income Security Act of 1974 ("ERISA"), or amounts paid in
settlement of a proceeding.
(d) Independent Legal Counsel. For purposes of this Agreement,
"Independent Legal Counsel" means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the Company or the Indemnitee in an action to determine the Indemnitee's
rights under this Agreement.
(e) Proceeding. For the purposes of this Agreement, "proceeding" means any
threatened, pending, or completed action, suit or other proceeding, whether
civil, criminal, administrative, investigative or any other type whatsoever.
(f) Subsidiary. For purposes of this Agreement, "subsidiary" means any
corporation, partnership, joint venture or other enterprise, a majority of whose
equity interests are owned by the Company, directly or through one or more other
subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve as an agent of the
Company, at its will (or under separate agreement, if such agreement exists), in
the capacity Indemnitee currently serves as an agent of the Company, so long as
he is duly appointed or elected and qualified in accordance with the applicable
provisions of the By-Laws of the Company or any subsidiary of the Company or
until such time as he tenders his resignation in writing; provided, however,
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that nothing contained in this Agreement is intended to create any right to
continued employment of the Indemnitee.
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3. Mandatory Indemnification. Subject to the limitations set forth in
Section 7, if the Indemnitee is a person who was or is a party or is threatened
to be made a party to or is involved, including involvement as a witness, in any
proceeding, including any action by or in the right of the Company, by reason of
the fact that he is or was or has agreed to become an agent, or by reason of any
action alleged to have been taken or omitted by him in any such capacity, the
Company shall indemnify the Indemnitee against all expense, liability and loss
(including but not limited to judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement), actually and reasonably incurred
by him in connection with the investigation, defense, settlement or appeal of
such proceeding; provided, however, that except as provided in Section 7(c) of
this Agreement with respect to proceedings seeking to enforce rights to
indemnification, the Company shall indemnify the Indemnitee in connection with a
proceeding (or part thereof) initiated by the Indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Company.
4. Mandatory Advancement of Expenses. The Company shall advance all
expenses incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of any proceeding referred to in Section 3 to
which the Indemnitee is a party or is threatened to be made a party or with
respect to which the Indemnitee is otherwise involved (including involvement as
a witness) as an agent of the Company. The Indemnitee hereby undertakes to repay
such amounts advanced if, but only if and to the extent that, it shall
ultimately be determined pursuant to the provisions hereof that the Indemnitee
is not entitled to be indemnified by the Company as authorized hereby. The
advances to be made hereunder shall be paid by the Company to the Indemnitee
within twenty (20) days following delivery of a written request therefor by the
Indemnitee to the Company; provided, however, that, if and to the extent that
the Pennsylvania Business Corporation Law requires, an advancement of expenses
incurred by the Indemnitee in his capacity as a director or officer shall be
made only upon delivery of an undertaking by or on behalf of the Indemnitee to
repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal that the
Indemnitee is not entitled to be indemnified for such expenses under this
Agreement or otherwise.
5. Maintenance of D&O Insurance.
(a) So long as the Indemnitee shall continue to serve in any capacity
described in Section 2 and thereafter so long as there is any reasonable
possibility that the Indemnitee shall be subject to any proceeding by reason of
the fact that the Indemnitee served in any of such capacities, the Company will
use reasonable efforts to purchase and maintain in effect for the benefit of the
Indemnitee one or more valid, binding and enforceable policies of directors* and
officers* liability insurance ("D&O Insurance") providing, in all respects,
coverage and amounts as reasonably determined by the Board of Directors.
(b) Notwithstanding Section 5(a), the Company shall not be required to
maintain D&O Insurance if such is not reasonably available or if, in the
reasonable business judgment of the Board of Directors of the Company as it may
exist from time to time, either (i) the premium cost for
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such insurance is substantially disproportionate to the amount of insurance or
(ii) the coverage is so limited by exclusions that there is insufficient benefit
provided by such insurance.
6. Notice and Other Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of notice of the commencement
of or the threat of commencement of any proceeding, the Indemnitee shall, if the
Indemnitee believes that the indemnification with respect thereto properly may
be sought from the Company under this Agreement, notify the Company of the
commencement or threat of commencement thereof. The failure to notify or
promptly notify the Company shall not relieve the Company from any liability
which it may have to the Indemnitee otherwise than under this Agreement, and
shall relieve the Company from liability hereunder only to the extent the
Company has been prejudiced.
(b) If, at the time of the receipt of a notice of the commencement of a
proceeding pursuant to Section 6(a), 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 D&O Insurance
policy. The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, to or on behalf of the Indemnitee, all amounts
payable as a result of such proceeding in accordance with the terms of such
policy.
(c) In the event the Company shall be obligated to pay the expenses of the
Indemnitee in connection with any proceeding, the Company shall be entitled to
assume the defense of such proceeding, with counsel approved by the Indemnitee,
upon the delivery to the Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by the Indemnitee and
the retention of such counsel by the Company, the Company will not be liable to
the Indemnitee under this Agreement for any fees of counsel or other expenses
subsequently incurred by the Indemnitee with respect to the same proceeding;
provided that (i) the Indemnitee shall have the right to employ his own counsel
in any such proceeding at the Indemnitee*s expense and (ii) if (A) the
employment of counsel by the Indemnitee has been previously authorized by the
Company, or (B) the Indemnitee shall have reasonably concluded that there is a
conflict of interest between the Company and the Indemnitee in the conduct of
any such defense, or (C) the Company shall not, in fact, have employed counsel
to assume the defense of such proceeding, the fees and expenses of the
Indemnitee*s counsel shall be paid by the Company; and provided further that the
Company shall not be required to pay the expenses of more than one such separate
counsel for persons it is indemnifying in any one proceeding.
7. Determination of Right to Indemnification.
(a) To the extent the Indemnitee has been successful on the merits or
otherwise in defense of any proceeding referred to in Section 3 or in the
defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee pursuant to Section 3 against expenses actually and
reasonably incurred by him in connection with the investigation, defense, or
appeal of such proceeding. If the Indemnitee has not been successful on the
merits or otherwise in
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any such defense, the Company also shall indemnify the Indemnitee pursuant to
Section 3 unless, and only to the extent that, the Indemnitee has not met the
applicable standard of conduct under the Pennsylvania Business Corporation Law
as it now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than said law permitted the Company to provide
prior to such amendment).
(b) Subject to the provisions of Section 8 relating to a Change in Control
(as defined therein), the determination as to whether the Indemnitee is entitled
to indemnification shall be made as follows: (1) if requested by the Indemnitee,
by Independent Legal Counsel selected by the Indemnitee with the consent of the
Company (which consent shall not be unreasonably withheld) or (2) if no request
is made by the Indemnitee for a determination by Independent Legal Counsel, (i)
by a quorum of the Board of Directors consisting of Disinterested Directors or
(ii) if such quorum is not obtainable or, even if obtainable, if a quorum of
Disinterested Directors so directs, by Independent Legal Counsel in a written
opinion. If Independent Legal Counsel shall make such determination, the Company
agrees to pay the reasonable fees of such counsel and to indemnify such counsel
fully against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or
counsel's engagement pursuant hereto.
(c) Notwithstanding a determination that the Indemnitee is not entitled to
indemnification with respect to a specific proceeding, the Indemnitee shall have
the right to apply to the court of Chancery of Pennsylvania, the court in which
that proceeding is or was pending or any other court of competent jurisdiction,
for the purpose of enforcing the Indemnitee's right to indemnification or the
advance payment of expenses pursuant to this Agreement. The burden of proof
shall be on the Company in any such suit to demonstrate by the weight of the
evidence that the Indemnitee is not entitled to indemnification or advance
payment of expenses. The Indemnitee's expenses incurred in successfully
establishing his right to indemnification or advancement of expenses, in whole
or in part, in any such action (or settlement thereof) shall be paid by the
Company.
(d) Notwithstanding anything in Sections 3 or 4 to the contrary, the
Company shall not be liable under this Agreement to make any indemnity payment
or advancement of expenses in connection with any proceeding (i) to the extent
that payment is actually made, or for which payment is available, to or on
behalf of the Indemnitee under an insurance policy, except in respect of any
amount in excess of the limits of liability of such policy or any applicable
deductible under such policy; (ii) to the extent that payment has been or will
be made to the Indemnitee by the Company otherwise than pursuant to this
Agreement; or (iii) to the extent that there was a final adjunction by a court
of competent jurisdiction that the Indemnitee has not met the applicable
standard of conduct required to entitle the Indemnitee to indemnification under
the Pennsylvania Business Corporation Law as it now exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
said law permitted the Company to provide prior to such amendment).
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8. Change In Control.
(a) The Company agrees that if there is a Change in Control, as defined
below, of the Company (other than a Change in Control which has been approved by
a majority of the members of the Board of Directors who were directors
immediately prior to such Change in Control), then with respect to all matters
thereafter arising concerning the rights of the Indemnitee to indemnity payments
and advance payments of expenses under this Agreement, the Company shall seek
legal advice only from Independent Legal Counsel selected by the Indemnitee with
the consent of the Company (which shall not be unreasonably withheld). Such
counsel, among other things, shall render a written opinion to the Company and
the Indemnitee as to whether and to what extent the Indemnitee would be
permitted to be indemnified under this Agreement and applicable law. The Company
agrees to pay the reasonable fees of the Independent Legal Counsel and to
indemnify such counsel fully against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or counsel's engagement pursuant hereto.
(b) Alternatively, the Indemnitee may choose to submit all matters arising
concerning his rights to indemnity payments and advance payments of expenses
under this Agreement to a panel of three arbitrators, one of whom is selected by
the Company, another of whom is selected by the Indemnitee and the third of whom
is selected by the first two arbitrators so selected. Any such submission shall
be governed by the Commercial Arbitration Rules of the American Arbitration
Association and shall be deemed to be a submission within the meaning of the
Federal Arbitration Act or any statutory modification or re-enactments thereof.
Arbitration proceedings shall take place in Pennsylvania, unless otherwise
agreed to by the parties.
(c) "Change in Control" for purposes of this Agreement shall be deemed to
have occurred if (a) any "person" (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more of the total
voting power represented by the Company's then outstanding voting securities,
except that a person who as of the date of this Agreement owns 20% or more of
the total voting power represented by the Company*s outstanding voting
securities shall not be deemed to have caused a Change in Control, or (b) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors and any new director whose election by
the Board of Directors or nomination for election by the Company*s stockholders
was approved by a vote of at least two-third (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (c) the stockholders of the Company
approve a merger, plan of complete liquidation of the Company, an agreement for
the sale or disposition by the Company of all or any substantial part of the
Company*s assets, or other business combination of the Company with any other
corporation, other than a
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business combination which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the total voting power represented by the
voting securities of the Company or such surviving entity outstanding
immediately after such business combination.
9. Limitation of Actions and Release of Claims. No proceeding shall be
brought and no cause of action shall be asserted by the Company or any
subsidiary or by any stockholder on behalf of the Company or any subsidiary
against the Indemnitee, his spouse, heirs, estate, executors or administrators
after the expiration of one year from the act or omission of the Indemnitee upon
which such proceeding is based; provided, however, that in the event that the
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Indemnitee has fraudulently concealed the facts underlying such cause of action,
no proceeding shall be brought and no cause of action shall be asserted after
the expiration of one year from the earlier of (i) the date the Company or any
subsidiary of the Company discovers such facts or (ii) the date the Company or
any subsidiary of the Company could have discovered such facts by the exercise
of reasonable diligence. Any claim or cause of action of the Company or any
subsidiary of the Company, including claims predicated upon the negligent act or
omission of the Indemnitee, shall be extinguished and deemed released unless
asserted by filing of a legal action within such period. This Section 9 shall
not apply to any cause of action which has accrued on the date hereof and of
which the Indemnitee is aware on the date hereof but as to which the Company has
no actual knowledge apart from the Indemnitee*s knowledge.
10. Non-exclusivity. The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company*s
Certificate of Incorporation or By-Laws, the vote of the Company*s stockholders
or Disinterested Directors, other agreements, or otherwise, both as to
administrators in his official capacity and to action in another capacity while
occupying his position as an agent of the Company, and the Indemnitee*s rights
hereunder shall continue after the Indemnitee has ceased acting as an agent of
the Company and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.
11. Settlement. The Company shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any proceeding
without its written consent, which consent shall not be unreasonably withheld.
The Company shall not settle any proceeding which would impose any penalty or
limitation on the Indemnitee without the Indemnitee*s written consent, which
consent shall not be unreasonably withheld. In the event that consent is not
given and the parties hereto are unable to agree on a proposed settlement,
Independent Legal Counsel shall be retained by the Company, at its expense, with
the consent of the Indemnitee, which consent shall not be unreasonably withheld,
for the purpose of determining whether or not the proposed settlement is
reasonable under all the circumstances; and if Independent Legal Counsel
determines the proposed settlement is reasonable under all the circumstances,
the settlement may be consummated without the consent of the other party.
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12. Subrogation Rights. In the event of any payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee against any person or organization and the
Indemnitee shall execute all papers required and shall do everything that may be
reasonably necessary to secure such rights.
13. Allowance for Compliance with Commission Requirements. Indemnitee
acknowledges that the Securities and Exchange Commission (the "Commission") has
expressed the opinion that indemnification of directors and officers from
liabilities under the Securities Act of 1933 (the "Act") is against public
policy as expressed in the Act and is, therefore, unenforceable. Indemnitee
hereby acknowledges and agrees that it will not be a breach of this Agreement
for the Company to undertake with the Commission in connection with the
registration for sale of any shares or other securities of the Company from time
to time that, in the event a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director or officer of the Company in the successful defense of any action, suit
or proceeding) is asserted in connection with such shares or other securities
being registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of competent
jurisdiction the question of whether or not such indemnification by the Company
is against public policy as expressed in the Act and the Company will be
governed by the final adjudication of such issue. Indemnitee further agrees that
such submission to a court of competent jurisdiction shall not be a breach of
this Agreement.
14. Interpretation of Agreement. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide
indemnification and payments for Expenses to the Indemnitee to the fullest
extent permitted by applicable law and to waive or render inapplicable to the
fullest extent permitted by applicable law which would impose any condition or
limitation upon, or otherwise impair or prohibit the enforcement of, any
provision in this Agreement. Indemnitee*s rights hereunder shall apply to claims
made against Indemnitee arising out of acts or omissions which occurred prior to
the date hereof as well as those which occur after the date hereof.
15. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, (i) the
validity, legality and enforceability of the remaining 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
not in any way be affected or impaired thereby and (ii) 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) 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.
16. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of
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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. Successors and Assigns. The terms of this Agreement shall bind, and
shall inure to the benefit of, the successors and assigns of the parties hereto.
18. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) on the
date of delivery if delivered by hand or via telecopy or (ii) on the second
business day after being deposited in the U.S. mail (registered or express),
postage prepaid. Addresses for notice to either parry are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
Each party agrees to receipt for any notice received promptly upon request.
19. Governing Law. This Agreement shall be governed exclusively by and
construed according to the laws of the State of Pennsylvania, as applied to
contracts between Pennsylvania residents entered into and to be performed
entirely within Pennsylvania.
20. Consent to Jurisdiction. The Company and the Indemnitee each hereby
irrevocably consents to the jurisdiction of the courts of the State of
Pennsylvania and the Company irrevocably consents to the jurisdiction of any
court in which an Indemnitee brings action pursuant to Section 7(c), for all
purposes in connection with any proceeding which arises out of or relates to
this Agreement. The Company agrees not to initiate any such action or proceeding
in any state other than Pennsylvania.
21. Effectiveness. This Agreement shall be deemed effective as of: (i) May
22, 2000, in the event that the Indemnitee was serving as an officer and/or
director of the Company as of that date or (ii) if the Indemnitee was not
serving as an officer and/or director of the Company on May 22, 2000, the date
the Indemnitee was first elected or appointed, as the case may be, to serve as
an officer and/or director of the Company.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have entered into this
Indemnification Agreement effective as of the date first above written.
Integrated Circuit Systems, Inc.
2435 Boulevard of the Generals
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
By: /s/ Xxxxxxx X. Xxxx
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Its: Chief Financial Officer
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INDEMNITEE:
/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Chief Financial Officer
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Address: 2435 Boulevard of the Generals
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Norristown, PA
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Telecopy No.: 000-000-0000
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