Pisano, Nick
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`Attachments:
`
`Gray, Justin E.
`Tuesday, January 09, 2018 3:11 PM
`Pisano, Nick; James Gorman
`Timothy Devlin; 'ggardella@gardellagrace.com'
`RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`RESHAPE 0000001-157.pdf
`
`James,
`
`Following up on Nick’s email below, attached are the Disclosure Schedules, produced pursuant to the Protective Order
`agreed to by the parties.
`
`Regards,
`Justin
`
`Justin E. Gray
`
`Foley & Lardner LLP
`3579 Valley Centre Drive | Suite 300
`San Diego, CA 92130
`P 858.847.6764
`
`View My Bio
`Visit Foley.com
`
`
`
`
`From: Pisano, Nick
`Sent: Wednesday, January 03, 2018 9:34 AM
`To: James Gorman
`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'; Gray, Justin E.
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Dear James:
`
`For item (2) as narrowed, our understanding is that there are no additional documents beyond those responsive to
`item (1). However, I will double check. We will get the Disclosure Schedules bates numbered and labeled in
`accordance with the Protective Order and produce them later this week or early next.
`
`Regards,
`
`Nick
`
`From: James Gorman [mailto:jgorman@devlinlawfirm.com]
`Sent: Tuesday, January 02, 2018 5:33 PM
`
`1
`
`RESHAPE 1030
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`

`

`To: Pisano, Nick <NPisano@foley.com>; Gray, Justin E. <JEGray@foley.com>
`Cc: Timothy Devlin <tdevlin@devlinlawfirm.com>; 'ggardella@gardellagrace.com' <ggardella@gardellagrace.com>
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Hi Nick,
`
`Now that we have taken care of the 26(f), we would like to circle back on our request. With respect to Item 1, we
`thank you for providing us with Exhibit 10.2 and will wait for ReShape to provide us with the Disclosure Schedules in the
`very near future.
`
`Regarding Item 2, we understand your objection and rephrase it as follows:
`
`"To the extent that any of the following relate to the Merger: any side agreements, especially between the acquiror and
`any other entity such as the Holder Committee or any of the creditors or shareholders of acquiree, any side agreements
`between any of the creditors and shareholders of the acquiree, any indemnity agreements, and any insurance for reps
`and warranties."
`
`As you noted, this request sufficiently narrows the request to Agreements that concern the Merger only. If rephrased
`Item 2 is still covered by the request in Item 1 as you stated, please let us know as much. Thank you and Happy New
`Year.
`
`Best,
`
`James
`
`James G Gorman III
`Devlin Law Firm LLC
`1306 N Broom Street, Suite 1
`Wilmington, DE 19806
`
`Office: (302) 449-9007
`jgorman@devlinlawfirm.com
`http://www.devlinlawfirm.com/
`
`***********************************************************
`The information contained in this communication is confidential and is intended only for the use of the intended addressee. It is the
`property of Devlin Law Firm LLC, and may contain information subject to attorney-client privilege and/or may constitute inside
`information. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be
`unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail
`to correspondence@devlinlawfirm.com, and destroy this communication and all copies thereof, including all attachments.
`
`From: NPisano@foley.com [NPisano@foley.com]
`Sent: Thursday, December 21, 2017 5:04 PM
`To: James Gorman
`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Dear James:
`
`
`Sorry for the delay, I needed to check with the client regarding the requests set forth in your December 18 e-
`mail below; a lot of people are out for the Christmas holiday. However, I did receive information this
`morning, and respond below:
`
`
`With respect to Fulfillium’s request in item (1) of your December 18 e-mail, we have obtained a copy of the
`Disclosure Schedules, and can produce them assuming a suitable protective order can be agreed upon. To
`our understanding the “complete” merger agreement is contained in the Enteromedics October 3, 2017, 8-K
`attached to my e-mail to you of December 14, 2017. All of the Exhibits to that agreement, identified in the
`
`2
`
`RESHAPE 1030
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`

`

`footnote on page 5 of the 8-K (page 6 of the pdf) are appended to the Merger Agreement set forth in the 8-K,
`except for Exhibit 10.2 (attached) – which was retrieved as Exhibit 10.17 to Amendment No. 1 to the S-1 filed
`July 6, 2007 as recited in the footnote on page 5 There are no other “accompanying documents, ... exhibits,
`etc.” to the Merger Agreement that are not included in the publicly available 8K filing except for the
`Disclosure Schedules.
`
`
`With respect to item (2) of the December 18 e-mail, the request as written is overbroad and seeks
`production of “any side agreements between the acquiror” (Enteromedics, a non-party) and “any other
`entity” – and literally encompasses any third party with which Enteromedics has a “side agreement” about
`any topic, ever. ReShape Medical LLC obviously cannot agree to such a request, as it goes well beyond any
`reasonable or proportional scope of discovery and is directed to documents of ReShape Medical LLC’s new
`parent corporation that have never been in ReShape Medical, LLC’s (or ReShape Medical, Inc.’s) possession,
`custody or control.
`
`In the interests of cooperation, however, we deem the request set forth in item (2) to mean any “side
`agreements or indemnity agreements” between the acquiror (Enteromedics) and the ReShape Holder
`Committee (as defined in the 8-K) or ReShape Medical (Inc. or LLC) specific to the merger. Thusly narrowed,
`there are no such responsive documents not already included in the set of documents responsive to item 1,
`above.
`
`
`With respect to the proposed Rule 26(f) conference of counsel tomorrow, we are available noon Pacific (3:00
`pm Eastern). Alternatively, we could schedule the call for 10:00 am Pacific, 1:00 pm Eastern on any of
`December 26-29, if that would be better for your schedules. Please let us know your preference and we will
`circulate a dial-in number for the call.
`
`
`Regards,
`
`
`Nick
`
`
`Nicola A. Pisano
`Foley & Lardner LLP
`3579 Valley Centre Drive | Suite 300
`San Diego, CA 92130
`P 858.847.6877
`
`View My Bio
`Visit Foley.com
`
`
`From: James Gorman [mailto:jgorman@devlinlawfirm.com]
`Sent: Thursday, December 21, 2017 7:12 AM
`To: Pisano, Nick
`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'; Gray, Justin E.; Patino, Joe
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`
`Nick,
`
`
`Circling back here. Please let us know if you have any availability tomorrow for the 26(f). Thank you.
`
`
`3
`
`RESHAPE 1030
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`

`

`Best,
`
`James
`
`James G Gorman III
`Devlin Law Firm LLC
`1306 N Broom Street, Suite 1
`Wilmington, DE 19806
`
`
`Office: (302) 449-9007
`jgorman@devlinlawfirm.com
`http://www.devlinlawfirm.com/
`
`***********************************************************
`The information contained in this communication is confidential and is intended only for the use of the intended addressee. It is the
`property of Devlin Law Firm LLC, and may contain information subject to attorney-client privilege and/or may constitute inside
`information. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be
`unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail
`to correspondence@devlinlawfirm.com, and destroy this communication and all copies thereof, including all attachments.
`
`From: James Gorman
`Sent: Monday, December 18, 2017 3:07 PM
`To: NPisano@foley.com
`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'; JEGray@foley.com; JPatino@foley.com
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Dear Nick,
`
`
`Our production request is as follows:
`
`
`1. The complete Merger Agreement, including all accompanying documents, disclosure schedules, exhibits, etc. that are
`not included in the publicly available 8K filing;
`2. Any side agreements, especially between the acquiror and any other entity such as the Holder Committee, any
`indemnity agreements, and any insurance for reps and warranties.
`
`
`Please let us know if you see any issues with this request. Also, we are okay with the draft Protective Order that you
`sent us. Regarding the Rule 26(f) conference, does Wednesday at 10am PST (1pm EST) work for you? Thank you.
`
`
`Best regards,
`
`James
`
`James G Gorman III
`Devlin Law Firm LLC
`1306 N Broom Street, Suite 1
`Wilmington, DE 19806
`
`
`Office: (302) 449-9007
`jgorman@devlinlawfirm.com
`http://www.devlinlawfirm.com/
`
`***********************************************************
`The information contained in this communication is confidential and is intended only for the use of the intended addressee. It is the
`property of Devlin Law Firm LLC, and may contain information subject to attorney-client privilege and/or may constitute inside
`information. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be
`unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail
`to correspondence@devlinlawfirm.com, and destroy this communication and all copies thereof, including all attachments.
`
`From: NPisano@foley.com [NPisano@foley.com]
`Sent: Friday, December 15, 2017 8:41 PM
`To: James Gorman
`
`4
`
`RESHAPE 1030
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`

`Cc: Timothy Devlin; 'ggardella@gardellagrace.com'; JEGray@foley.com; JPatino@foley.com
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`Dear James:
`
`
`Further to my e-mail below, we have determined that we should be able produce the Disclosure Schedules
`referenced in the Merger Agreement shortly after the parties agree to a suitable protective order for the
`case. The full text of the Merger Agreement is set out in the attached 8-K.
`
`
`To that end, attached is a draft Protective Order modeled after Magistrate Judge Abram’s preferred order,
`which is available at: http://www.cacd.uscourts.gov/honorable-paul-l-abrams Please let us have your
`comments on the attached draft at your earliest convenience.
`
`
`We are available for a Rule 26(f) conference next week, any time Wednesday through Friday (December 20-
`22) after 10:00 am Pacific. Please let us know which day/time works for your schedule.
`
`
`Regards,
`
`
`Nick
`
`
`Nicola A. Pisano
`Foley & Lardner LLP
`3579 Valley Centre Drive | Suite 300
`San Diego, CA 92130
`P 858.847.6877
`
`View My Bio
`Visit Foley.com
`
`
`From: Pisano, Nick
`Sent: Thursday, December 14, 2017 10:31 AM
`To: 'James Gorman'
`Cc: Timothy Devlin; ggardella@gardellagrace.com; Gray, Justin E.; Patino, Joe
`Subject: RE: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`
`Dear James:
`
`I am looking into availability of what I understand to be the requested documents (i.e., non-privileged
`disclosure schedules mentioned on page 3 of the Enteromedics 8-K of October 3, 2017) in the near-term,
`subject to agreement on a Protective Order. If there are other documents that Fulfillium will be seeking to
`determine whether it will agree to the proposed substitution of ReShape Medical LLC for merged-out
`ReShape Medical, Inc., please let me know. Obviously, the more voluminous the request, the more difficulty
`there will be in promptly accommodating that request as we head into the holidays.
`
`I will get back to you later today regarding the disclosure schedules mentioned above, and we can then
`jointly decide on a day/time for a Rule 26(f) call next week.
`
`
`Regards,
`
`5
`
`RESHAPE 1030
`
`

`

`
`
`Nick
`
`
`Nicola A. Pisano
`Foley & Lardner LLP
`3579 Valley Centre Drive | Suite 300
`San Diego, CA 92130
`P 858.847.6877
`
`View My Bio
`Visit Foley.com
`
`
`From: James Gorman [mailto:jgorman@devlinlawfirm.com]
`Sent: Thursday, December 14, 2017 5:32 AM
`To: Pisano, Nick
`Cc: Timothy Devlin; ggardella@gardellagrace.com; Gray, Justin E.; Patino, Joe
`Subject: Fulfillium v. ReShape - Follow Up Regarding Monday's Conversation
`
`
`Hi Nick,
`
`
`We have some follow up questions regarding the possibility of a 26f. Would your side be able to do a 26f in the next
`week? Also, would your side produce the relevant documents right away with a discovery request or would you take the
`30 days? Thank you.
`
`
`Best,
`
`James
`
`James G Gorman III
`Devlin Law Firm LLC
`1306 N Broom Street, Suite 1
`Wilmington, DE 19806
`
`
`Office: (302) 449-9007
`jgorman@devlinlawfirm.com
`http://www.devlinlawfirm.com/
`
`***********************************************************
`The information contained in this communication is confidential and is intended only for the use of the intended addressee. It is the
`property of Devlin Law Firm LLC, and may contain information subject to attorney-client privilege and/or may constitute inside
`information. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be
`unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail
`to correspondence@devlinlawfirm.com, and destroy this communication and all copies thereof, including all attachments.
`
`The preceding email message may be confidential or protected by the attorney-client privilege. It is not
`intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in
`error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or
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`Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and
`may not be relied upon by any other party.
`
`The preceding email message may be confidential or protected by the attorney-client privilege. It is not
`intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in
`
`6
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`

`error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or
`destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley &
`Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and
`may not be relied upon by any other party.
`
`7
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`