Exhibit 10.2


 


INDEMNIFICATION AGREEMENT


 


This Agreement made and entered into this 22nd day of July, 2008 (the “Agreement”),
by and between NeuroMetrix, Inc., a Delaware corporation (the “Company,”
which term shall include, where appropriate, any Entity (as hereinafter
defined) controlled directly or indirectly by the Company) and Joseph A. Calo
(the “Indemnitee”):


 


WHEREAS, the Company desires to retain the Indemnitee to serve as a
consultant to the Company in the role of principal financial officer and principal
accounting officer;


 


WHEREAS, increased corporate litigation has subjected persons serving
in such roles to litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have made it
increasingly difficult for the Company to attract and retain such persons;


 


WHEREAS, the Company’s By-laws
(the “By-laws”) require it to indemnify certain persons associated with
the Company and permit it to make other indemnification arrangements and
agreements;


 


WHEREAS, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any amendment
to or revocation of the By-laws
or any change in the ownership of the Company);


 


WHEREAS, the Company intends that this Agreement provide Indemnitee
with greater protection than that which is provided by the Company’s By-laws; and


 


WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in  becoming  a
consultant to the Company in the role of principal financial officer and
principal accounting officer.


 


NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:


 


1.                                       Definitions.


 


(a)                                  “Corporate Status” describes the status
of a person who is serving or has served (i) as a consultant to the
Company in the role of principal financial officer and principal accounting
officer,  (ii) in any capacity
with respect to any employee benefit plan of the Company, or (iii) as a
director, partner, trustee, officer, employee, or agent of any other Entity at
the request of the Company.  For purposes
of subsection (iii) of this Section 1(a), if Indemnitee  is serving or has served as a director,
partner, trustee, officer, employee or agent of a Subsidiary, Indemnitee shall
be deemed to be serving at the request of the Company.


 





















 


(b)                                 “Entity” shall mean any corporation,
partnership, limited liability company, joint venture, trust, foundation,
association, organization or other legal entity.


 


(c)                                  “Expenses” shall mean all fees, costs and
expenses incurred by Indemnitee in connection with any Proceeding (as defined
below), including, without limitation, attorneys’ fees, disbursements and
retainers (including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 10 and 11(c) of
this Agreement), fees and disbursements of expert witnesses, private investigators
and professional advisors (including, without limitation, accountants and
investment bankers), court costs, transcript costs, fees of experts, travel
expenses, duplicating, printing and binding costs, telephone and fax
transmission charges, postage, delivery services, secretarial services, and
other disbursements and expenses.


 


(d)                                 “Indemnifiable Expenses,” “Indemnifiable
Liabilities” and “Indemnifiable Amounts” shall have the meanings ascribed to
those terms in Section 3(a) below.


 


(e)                                  “Liabilities” shall mean judgments,
damages, liabilities, losses, penalties, excise taxes, fines and amounts paid
in settlement.


 


(f)                                    “Proceeding” shall mean any threatened,
pending or completed claim, action, suit, arbitration, alternate dispute
resolution process, investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding initiated by
Indemnitee pursuant to Section 10 of this Agreement to enforce Indemnitee’s
rights hereunder.


 


(g)                                 “Subsidiary” shall mean any corporation,
partnership, limited liability company, joint venture, trust or other Entity of
which the Company owns (either directly or through or together with another
Subsidiary of the Company) either (i) a general partner, managing member
or other similar interest or (ii) (A) 50% or more of the voting power
of the voting capital equity interests of such corporation, partnership,
limited liability company, joint venture or other Entity, or (B) 50% or
more of the outstanding voting capital stock or other voting equity interests
of such corporation, partnership, limited liability company, joint venture or
other Entity.


 


2.                                       Services of
Indemnitee.  In
consideration of the Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a consultant to the Company in the role of principal financial
officer and principal accounting officer.  However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee’s service to the
Company beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.


 


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3.                                       Agreement to
Indemnify.  The
Company agrees to indemnify Indemnitee as follows:


 


(a)                                  Proceedings Other Than By or In the Right
of the Company.  Subject to the exceptions contained in Section 4(a) below,
if Indemnitee was or is a party or is threatened to be made a party to any Proceeding
(other than an action by or in the right of the Company) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company
against all Expenses and Liabilities incurred or paid by Indemnitee in
connection with such Proceeding (referred to herein as “Indemnifiable Expenses”
and “Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable
Amounts”).


 


(b)                                 Proceedings By or In the Right of the
Company.  Subject to the exceptions contained in Section 4(b) below,
if Indemnitee was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Company by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.


 


(c)                                  Conclusive Presumption Regarding Standard
of Care.  In making any determination required to be
made under Delaware law with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination shall
presume that Indemnitee is entitled to indemnification under this Agreement if
Indemnitee submitted a request therefor in accordance with Section 5 of
this Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.


 


4.                                       Exceptions to
Indemnification.  Indemnitee
shall be entitled to indemnification under Sections 3(a) and 3(b) above
in all circumstances other than with respect to any specific claim, issue or
matter involved in the Proceeding out of which Indemnitee’s claim for
indemnification has arisen, as follows:


 


(a)                                  Proceedings Other Than By or In the Right
of the Company.  If indemnification is requested under Section 3(a) and
it has been finally adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee failed to act (i) in
good faith and (ii) in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, or, with respect to any
criminal Proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder.


 


(b)                                 Proceedings By or In the Right of the
Company.  If indemnification is requested under Section 3(b) and


 


(i)                                     it has been finally adjudicated by a
court of competent jurisdiction that, in connection with such specific claim,
issue or matter, Indemnitee failed to act (A) in good faith and (B) in
a manner Indemnitee reasonably 


 


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believed to be in or not opposed to the best interests
of the Company, Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder; or


 


(ii)                                  it has been finally adjudicated by a
court of competent jurisdiction that Indemnitee is liable to the Company with
respect to such specific claim, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder with respect to such claim, issue or matter
unless the Court of Chancery or another court in which such Proceeding was
brought shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such Indemnifiable Expenses
which such court shall deem proper; or


 


(iii)                               it has been finally adjudicated by a court of
competent jurisdiction that Indemnitee is liable to the Company 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, the rules and regulations promulgated
thereunder and amendments thereto or similar provisions of any federal, state
or local statutory law, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder.


 


(c)                                  Insurance Proceeds. 
To the extent payment is actually made to the Indemnitee under a valid
and collectible insurance policy in respect of Indemnifiable Amounts in
connection with such specific claim, issue or matter, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder except in respect of any
excess beyond the amount of payment under such insurance.


 


5.                                       Procedure for Payment of Indemnifiable
Amounts.  Indemnitee shall submit to the Company a
written request specifying the Indemnifiable Amounts for which Indemnitee seeks
payment under Section 3 of this Agreement and the basis for the
claim.  The Company shall pay such
Indemnifiable Amounts to Indemnitee within sixty (60) calendar days of receipt
of the request.  At the request of the
Company, Indemnitee shall furnish such documentation and information as are
reasonably available to Indemnitee and necessary to establish that Indemnitee
is entitled to indemnification hereunder.


 


6.                                       Indemnification for Expenses of a Party
Who is Wholly or Partly Successful.  Notwithstanding any other
provision of this Agreement, and without limiting any such provision, to the
extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party
to and is successful, on the merits or otherwise, in any Proceeding, Indemnitee
shall be indemnified against all Expenses reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection therewith. 
If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with each successfully resolved claim, 


 


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issue or matter.  For purposes of
this Agreement, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, by reason of settlement,
judgment, order or otherwise, shall be deemed to be a successful result as to
such claim, issue or matter.


 


7.                                       Effect of Certain Resolutions. 
Neither the settlement or termination of any Proceeding nor the failure
of the Company to award indemnification or to determine that indemnification is
payable shall create a presumption that Indemnitee is not entitled to
indemnification hereunder.  In addition,
the termination of any proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent shall not create a
presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company or, with respect to any criminal Proceeding, had reasonable cause
to believe that Indemnitee’s action was unlawful.


 


8.                                       Agreement to Advance Expenses;
Undertaking.  The Company shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding,
including a Proceeding by or in the right of the Company, in which Indemnitee
is involved by reason of such Indemnitee’s Corporate Status within ten (10) calendar
days after the receipt by the Company of a written statement from Indemnitee
requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. 
To the extent required by Delaware law, Indemnitee hereby undertakes to
repay any and all of the amount of Indemnifiable Expenses paid to Indemnitee if
it is finally determined by a court of competent jurisdiction that Indemnitee
is not entitled under this Agreement to indemnification with respect to such
Expenses.  This  undertaking is an unlimited general
obligation of Indemnitee.


 


9.                                       Procedure for Advance Payment of Expenses. 
Indemnitee shall submit to the Company a written request specifying the
Indemnifiable Expenses for which Indemnitee seeks an advancement under Section 8
of this Agreement, together with documentation evidencing that Indemnitee has
incurred such Indemnifiable Expenses. 
Payment of Indemnifiable Expenses under Section 8 shall be made no
later than ten (10) calendar days after the Company’s receipt of such
request.


 


10.                                 Remedies of Indemnitee.


 


(a)                                  Right to Petition Court. 
In the event that Indemnitee makes a request for payment of
Indemnifiable Amounts under Sections 3 and 5 above or a request for an
advancement of Indemnifiable Expenses under Sections 8 and 9 above and the
Company fails to make such payment or advancement in a timely manner pursuant
to the terms of this Agreement, Indemnitee may petition the Court of Chancery
to enforce the Company’s obligations under this Agreement.


 


(b)                                 Burden of Proof. 
In any judicial proceeding brought under Section 10(a) above,
the Company shall have the burden of proving that Indemnitee is not entitled to
payment of Indemnifiable Amounts hereunder.


 


(c)                                  Expenses.  The Company
agrees to reimburse Indemnitee in full for any Expenses incurred by Indemnitee
in connection with investigating, preparing for, 


 


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litigating, defending or
settling any action brought by Indemnitee under Section 10(a) above,
or in connection with any claim or counterclaim brought by the Company in
connection therewith, whether or not Indemnitee is successful in whole or in
part in connection with any such action.


 


(d)                                 Failure to Act Not a Defense. 
The failure of the Company (including its Board of Directors or any
committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of Indemnifiable
Amounts or the advancement of Indemnifiable Expenses under this Agreement shall
not be a defense in any action brought under Section 10(a) above, and
shall not create a presumption that such payment or advancement is not
permissible.


 


11.                                 Defense of the Underlying Proceeding.


 


(a)                                  Notice by Indemnitee. 
Indemnitee agrees to notify the Company promptly upon being served with
any summons, citation, subpoena, complaint, indictment, information, or other
document relating to any Proceeding which may result in the payment of
Indemnifiable Amounts or the advancement of Indemnifiable Expenses hereunder;
provided, however, that the failure to give any such notice shall not
disqualify Indemnitee from the right, or otherwise affect in any manner any
right of Indemnitee, to receive payments of Indemnifiable Amounts or
advancements of Indemnifiable Expenses unless the Company’s ability to defend
in such Proceeding is materially and adversely prejudiced thereby.


 


(b)                                 Defense by Company. 
Subject to the provisions of the last sentence of this Section 11(b) and
of Section 11(c) below, the Company shall have the right to defend Indemnitee
in any Proceeding which may give rise to the payment of Indemnifiable Amounts
hereunder; provided, however that the Company shall notify Indemnitee of any
such decision to defend within ten (10) calendar days of receipt of notice
of any such Proceeding under Section 11(a) above.  The Company shall not, without the prior
written consent of Indemnitee, consent to the entry of any judgment against
Indemnitee or enter into any settlement or compromise which (i) includes
an admission of fault of Indemnitee or (ii) does not include, as an
unconditional term thereof, the full release of Indemnitee from all liability
in respect of such Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee. 
This Section 11(b) shall not apply to a Proceeding brought by
Indemnitee under Section 10(a) above or pursuant to Section 19
below.


 


(c)                                  Indemnitee’s Right to Counsel. 
Notwithstanding the provisions of Section 11(b) above, if in a
Proceeding to which Indemnitee is a party by reason of Indemnitee’s Corporate
Status, (i) Indemnitee reasonably concludes that he or she may have
separate defenses or counterclaims to assert with respect to any issue which
may not be consistent with the position of other defendants in such Proceeding,
(ii) a conflict of interest or potential conflict of interest exists
between Indemnitee and the Company, or (iii) if the Company fails to
assume the 


 


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defense of such
proceeding in a timely manner, Indemnitee shall be entitled to be represented
by separate legal counsel of Indemnitee’s choice at the expense of the
Company.  In addition, if the Company
fails to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any action, suit or proceeding
to deny or to recover from Indemnitee the benefits intended to be provided to
Indemnitee hereunder, Indemnitee shall have the right to retain counsel of
Indemnitee’s choice, at the expense of the Company, to represent Indemnitee in
connection with any such matter.


 


12.                                 Representations and Warranties of the
Company.  The Company hereby represents and warrants to
Indemnitee as follows:


 


(a)                                  Authority.  The Company
has all necessary power and authority to enter into, and be bound by the terms
of, this Agreement, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly authorized by the
Company.


 


(b)                                 Enforceability. 
This Agreement, when executed and delivered by the Company in accordance
with the provisions hereof, shall be a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting the
enforcement of creditors’ rights generally.


 


13.                                 Insurance.  The Company
shall, from time to time, make the good faith determination whether or not it
is practicable for the Company to obtain and maintain a policy or policies of
insurance with a reputable insurance company providing the Indemnitee with
coverage for losses from wrongful acts. 
For so long as Indemnitee shall remain a consultant to the Company in
the role of principal financial officer and principal accounting officer and
with respect to any such prior service, in all policies of director and officer
liability insurance, Indemnitee shall be named as an insured in such a manner
as to provide Indemnitee the same rights and benefits as are accorded to the
most favorably insured of the Company’s officers and directors.  Notwithstanding the foregoing, the Company
shall have no obligation to obtain or maintain such insurance if the Company
determines in good faith that such insurance is not reasonably available, if
the premium costs for such insurance are disproportionate to the amount of
coverage provided, or if the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit. The Company shall promptly
notify Indemnitee of any good faith determination not to provide such coverage.


 


14.                                 Contract Rights Not Exclusive. 
The rights to payment of Indemnifiable Amounts and advancement of
Indemnifiable Expenses provided by this Agreement shall be in addition to, but
not exclusive of, any other rights which Indemnitee may have at any time under
applicable law, the Company’s Certificate of Incorporation or By-laws, or any
other agreement, vote of stockholders or directors (or a committee of
directors), or otherwise, both as to action in Indemnitee’s official capacity
and as to action in any other capacity as a result of Indemnitee’s 


 


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serving as a  consultant to
the Company in the role of principal financial officer and principal accounting
officer.


 


15.                                 Successors.  This
Agreement shall be (a) binding upon all successors and assigns of the
Company (including any transferee of all or a substantial portion of the
business, stock and/or assets of the Company and any direct or indirect
successor by merger or consolidation or otherwise by operation of law) and (b) binding
on and shall inure to the benefit of the heirs, personal representatives,
executors and administrators of Indemnitee. 
This Agreement shall continue for the benefit of Indemnitee and such
heirs, personal representatives, executors and administrators after Indemnitee
has ceased to have Corporate Status.


 


16.                                 Subrogation. 
In the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of contribution or recovery of Indemnitee against other persons,
and Indemnitee shall take, at the request of the Company, all reasonable action
necessary to secure such rights, including the execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.


 


17.                                 Change in Law. 
To the extent that a change in Delaware law (whether by statute or
judicial decision) shall permit broader indemnification or advancement of
expenses  than is provided under the
terms of the By-laws and this Agreement, Indemnitee shall be entitled to such broader
indemnification and advancements, and this Agreement shall be deemed to be
amended to such extent.


 


18.                                 Severability. 
Whenever possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement, or any clause thereof, shall be determined by a
court of competent jurisdiction to be illegal, invalid or unenforceable, in
whole or in part, such provision or clause shall be limited or modified in its application
to the minimum extent necessary to make such provision or clause valid, legal
and enforceable, and the remaining provisions and clauses of this Agreement
shall remain fully enforceable and binding on the parties.


 


19.                                 Indemnitee as Plaintiff. 
Except as provided in Section 10(c) of this Agreement and in
the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable
Amounts or advancement of Indemnifiable Expenses with respect to any Proceeding
brought by Indemnitee against the Company, any Entity which it controls, any
director or officer thereof, or any third party, unless the Board of Directors
of the Company has consented to the initiation of such Proceeding.  This Section shall not apply to
counterclaims or affirmative defenses asserted by Indemnitee in an action
brought against Indemnitee.


 


20.                                 Modifications and Waiver. 
Except as provided in Section 17 above with respect to changes in
Delaware law which broaden the right of Indemnitee to be indemnified by the
Company, no supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by each of the parties hereto.  No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
of this Agreement (whether or not similar), nor shall such waiver constitute a
continuing waiver.


 


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21.                                 General Notices. 
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given (a) when
delivered by hand, (b) when transmitted by facsimile and receipt is
acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:


 


(i)            If to Indemnitee, to:


 


Joseph A. Calo

97 Green Street


Medfield, MA 02052


 


(ii)           If to the Company, to:


 


NeuroMetrix, Inc.

62 Fourth Avenue

Waltham, MA  02451

Attention:  President


 


or to
such other address as may have been furnished in the same manner by any party
to the others.


 


22.                                 Governing Law; Consent to Jurisdiction;
Service of Process.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to its rules of conflict of laws. 
Each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Court
of Chancery of the State of Delaware and the courts of the United States of
America located in the State of Delaware (the “Delaware Courts”) for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in an
inconvenient forum.  Each of the parties
hereto agrees, (a) to the extent such party is not otherwise subject to
service of process in the State of Delaware, to appoint and maintain an agent
in the State of Delaware as such party’s agent for acceptance of legal process,
and (b) that service of process may also be made on such party by prepaid
certified mail with a proof of mailing receipt validated by the United States
Postal Service constituting evidence of valid service.  Service made pursuant to (a) or (b) above
shall have the same legal force and effect as if served upon such party
personally within the State of Delaware. 
For purposes of implementing the parties’ agreement to appoint and
maintain an agent for service of process in the State of Delaware, each such
party does hereby appoint Corporation Service Company, 2711 Centerville Road Suite 400,
Wilmington, New Castle County, Delaware 19808, as such agent and each such
party hereby agrees to complete all actions necessary for such appointment.


 


[signature page follows]


 


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.


 


	
   

  	
  NEUROMETRIX, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Shai N. Gozani, M.D., Ph.D.

  
	
   

  	
  Name:

  	
  Shai N. Gozani, M.D., Ph.D.

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Joseph A. Calo

  
	
   

  	
  Joseph A. Calo

  
				



 


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