CALDERWOOD & HARKNESS LLP Attorneys at Law
1 Federal Street, 35th Floor Boston, Massachusetts 02110
Telephone: (617) 542-8400 Facsimile: (617) 542-8401 www.calderwoodharkness.com
August 10, 2022
VIA ELECTRONIC MAIL AND FIRST CLASS MAIL
Jennifer Chao, Esq. General Counsel Penterra Pharmaceuticals Corp. 400 Carnegie Center Drive, Suite 600 Princeton, NJ 08540
Re: Final Invoice — Matter No. 1018-00007 Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC Superior Court of Massachusetts, Business Litigation Session, Suffolk County Docket No. 2184-CV-01537-BLS
Dear Jennifer:
This letter accompanies the final invoice for Calderwood & Harkness LLP's representation of Penterra Pharmaceuticals Corp. ("Penterra") in the above-referenced declaratory-judgment action against Vantage Medical Distribution, LLC ("Vantage"). As you are aware, Final Judgment was entered by the Honorable Diane L. Costigan, J., on August 5, 2022, in Penterra's favor. We are pleased to report that, as of the date of this letter, no notice of appeal has been filed by Vantage within the initial days of the thirty (30) day appeal period. The appeal deadline of September 4, 2022 will continue to be monitored separately by our office, and we will promptly alert you should any filing occur.
The enclosed invoice covers all professional services rendered and all costs and disbursements incurred from the inception of the engagement on March 29, 2021 through closure of the matter. No further invoices will be issued in connection with this matter unless additional post-judgment work is requested or circumstances otherwise require our involvement, such as activity relating to the pending appeal period.
Summary of Engagement and Outcome
For purposes of completeness and your records, we briefly summarize the scope of the engagement and the favorable outcome achieved.
Calderwood & Harkness was engaged by Penterra on March 29, 2021 to prosecute a declaratory-judgment action in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County, seeking a judicial declaration that the exclusive distribution territory granted to Vantage under the Exclusive Distribution Agreement dated July 1, 2017 (the "Distribution Agreement") was limited to the six New England states — Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — as expressly defined in Exhibit A to the Distribution Agreement, and that the territory did not encompass the states of New York, New Jersey, or Pennsylvania. This clarification was necessary in light of Vantage's assertion that its exclusive territory extended to include the tri-state region, a position that, if left unresolved, would have materially impeded Penterra's planned expansion of its distribution network in those markets.
We are pleased to confirm that the engagement concluded with a highly favorable result for Penterra. Following extensive discovery, including the completion of four depositions and the exchange of substantial documentary evidence, the Court granted Penterra's Motion for Summary Judgment on July 15, 2022 and simultaneously denied Vantage's Cross-Motion for Summary Judgment. In addition, the Court dismissed each of Vantage's counterclaims in their entirety, including claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel, through which Vantage had sought approximately $35 million in damages. Final Judgment was entered by Judge Costigan on August 5, 2022, resolving all claims and counterclaims in Penterra's favor.
Fee Summary
The following table summarizes the professional fees billed by each timekeeper on the engagement. All hourly rates reflect the seven percent (7%) courtesy discount provided under the terms of the engagement letter dated March 29, 2021, which was extended in recognition of the longstanding relationship between Calderwood & Harkness and Penterra.
The total professional fees for the engagement, after application of the 7% discount across all timekeepers and all billing periods, are $894,320.00. A detailed time-entry ledger reflecting each individual time entry by timekeeper, date, and task description is enclosed with the invoice for your review and records.
Costs and Disbursements
In addition to professional fees, the firm incurred costs and disbursements throughout the engagement in the total amount of $47,615.00. These costs and disbursements fall within the following categories:
• Court Filing Fees: Filing fees associated with the Complaint, various motions (including Penterra's Motion for Summary Judgment and related filings), and other court submissions required during the pendency of the action.
• Deposition Transcript Costs: Costs for certified court reporter services and original transcript production in connection with the depositions of the following witnesses:
• Donald R. Farnham (October 18, 2021)
• Steven Kapoor (November 2, 2021)
• Rachel Mendez (November 19, 2021)
• Brian Kopec (December 7, 2021)
• Travel Expenses: Reasonable travel costs incurred by firm attorneys in connection with the four depositions, oral argument on Penterra's Motion for Summary Judgment held on May 6, 2022, and attendance at case management conferences before Judge Costigan throughout the course of the litigation.
• Copying, Printing, and Electronic discovery / Document Management Expenses: Charges for document reproduction, printing of court filings and motion papers, and fees associated with the electronic discovery platform used for the collection, processing, review, and production of electronically stored information during the discovery phase.
• Courier and Delivery Charges: Costs for overnight courier service, process server fees, and other delivery charges incurred in connection with service of pleadings, filings with the Court, and exchange of documents between the parties.
• Other Miscellaneous Disbursements: Nominal charges including online legal research fees, long-distance communication charges, and other incidental expenses incurred during the engagement.
Detailed backup documentation and receipts for each category of costs and disbursements are included with the enclosed invoice.
Aggregate Total
The aggregate amount billed for the engagement is as follows:
Budget Comparison
As set forth in our engagement letter dated March 29, 2021, the estimated budget range for the representation — encompassing all phases of the litigation from inception through trial — was $750,000 to $1,200,000. We are pleased to report that the aggregate total of $941,935.00 falls below the midpoint of that estimated range ($975,000), reflecting efficient case management and the favorable procedural outcome of resolving the matter at the summary judgment stage without the necessity of proceeding to trial.
The resolution of the case on summary judgment eliminated what would have been significant additional expenditures associated with trial preparation, including witness preparation sessions, the retention and preparation of expert witnesses, preparation of trial exhibits, the trial itself, and potential post-trial motions. The efficient trajectory of this matter is attributable in significant part to the collaborative working relationship between our team and Penterra's in-house legal department. We particularly wish to acknowledge the contributions of you and your team, including Steven Kapoor and Rachel Mendez, whose responsiveness in providing access to key documents, business records, and fact witnesses allowed us to build a compelling summary judgment record and streamline the discovery process. This partnership between outside and in-house counsel was instrumental in achieving both the favorable legal outcome and the cost efficiency reflected in this final invoice.
Payment Terms
Consistent with the payment terms set forth in the engagement letter dated March 29, 2021, payment of the enclosed invoice is due within thirty (30) days of the date of invoice (i.e., on or before September 9, 2022).
Payment may be remitted by either of the following methods:
Wire Transfer: Calderwood & Harkness LLP Client Trust Account Adriatic Savings Bank ABA Routing No.: 026009593 Account No.: 4851-0073-2296 Reference: Matter No. 1018-00007
Check: Payable to "Calderwood & Harkness LLP" Mailed to: Calderwood & Harkness LLP
Attn: Accounts Receivable
1 Federal Street, 35th Floor Boston, MA 02110 Reference: Matter No. 1018-00007
Please reference the Matter Number (1018-00007) and Invoice Number (INV-1007-00008) on all remittances to ensure proper crediting. As noted above, a detailed time-entry ledger and disbursement receipts are enclosed with the invoice for your review. Should you have any questions regarding any individual entry or charge, please do not hesitate to contact me directly.
Closing Remarks
It has been a genuine privilege to represent Penterra in this matter. The successful declaration that Vantage's exclusive distribution territory under the Distribution Agreement is limited to the six New England states clears the path for Penterra to proceed with its planned tri-state distribution arrangement with Meridian National Distributors, Inc. without the cloud of Vantage's disputed territorial claims. We believe the outcome positions Penterra favorably for its continued growth in the Mid-Atlantic region.
We remain available should any post-judgment issues arise in connection with this matter. In particular, our office will continue to monitor the docket for any notice of appeal through the expiration of the appeal deadline on September 4, 2022, and we will notify you promptly of any developments. Should enforcement of the Final Judgment become necessary, or should Vantage undertake any actions inconsistent with the Court's ruling, we are prepared to assist on an expedited basis.
For your records, please note that a separate Matter Closing Memorandum has been prepared by our team and will be maintained in the firm's files in accordance with our standard document retention policies. A copy is available to you upon request.
Once again, thank you for entrusting Calderwood & Harkness with this important matter. We value the relationship between our firms and look forward to continuing to serve Penterra's legal needs.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Priya Anand Partner
Direct Telephone: (617) 542-8437
Email: panand@calderwoodharkness.com
Enclosures:
1. Invoice No. INV-1007-00008, dated August 10, 2022 (Matter No. 1018-00007)
2. Detailed time-entry ledger (by timekeeper, date, and task description)
3. Disbursement receipts and supporting backup documentation
cc: Linda Osei, Esq., Calderwood & Harkness LLP cc: Hannah Brinkley, Esq., Calderwood & Harkness LLP cc: Patrick Gallagher, Esq., Calderwood & Harkness LLP
| Timekeeper | Role | Standard Rate | Discount (7%) | Effective Rate |
| Linda Osei | Responsible Partner | $1,150.00/hr | 7% | $1,069.50/hr |
| Priya Anand | Billing Partner | $1,075.00/hr | 7% | $999.75/hr |
| Hannah Brinkley | Lead Associate | $725.00/hr | 7% | $674.25/hr |
| Patrick Gallagher | Working Associate | $575.00/hr | 7% | $534.75/hr |
| Category | Amount | |||
| Professional Fees (after 7% discount) | $894,320.00 | |||
| Costs and Disbursements | $47,615.00 | |||
| Aggregate Total Billed | $941,935.00 |