Contract analysis

I. PRELIMINARY NOTES AND EXAMINATION STRATEGY A. Overall Objectives The overarching goal of this deposition is to establish, through Mr. Farnham's own testimony, the following five critical propositions that form the backbone of Penterra's breach-of-contract claim and its opposition to Vantage's counterclaims:

1. The Territory under the Exclusive Distribution Agreement ("EDA") was limited to the six New England states as defined in Exhibit A. Farnham must be compelled to acknowledge that the Territory encompasses only Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, and that no other states — including New York, New Jersey, and Pennsylvania — appear in Exhibit A or elsewhere in the executed EDA.

2. No signed written amendment to Exhibit A was ever executed. Section 13.1 of the EDA requires that any amendment, modification, or waiver be set forth in a written instrument signed by both parties. We anticipate that Farnham will concede that no such instrument exists, which is fatal to Vantage's position that the Territory was expanded to include the tri-state area.

3. The January 12, 2018 email from Steven Kapoor to Farnham (the "Kapoor Email") did not constitute "prior written consent" under Section 2.3 or an "amendment" under Section 13.1. The Kapoor Email is the centerpiece of Vantage's defense and its counterclaims. It must be carefully dissected. The language of the email — "definitely open to exploring expansion," "once your New England footprint is fully ramped," "Let's

4. Vantage knowingly commenced tri-state shipments without formal authorization. Farnham must be examined regarding the decision-making process that led Vantage to begin shipping Oncalaris® to customers in New York, New Jersey, and Pennsylvania beginning on or about September 14, 2020 — more than two and a half years after the Kapoor Email and without any intervening written consent from Penterra. The timeline gap it

5. Vantage's damages theory is speculative and unsupported. The $35 million counterclaim figure first appeared in the March 22, 2021 response letter from Vantage's counsel, Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP. We need to pin Farnham down on the methodology, the assumptions, the time period, and the categories of damages underlying this figure to demonstrate at summary judgment that the figure is specul

II. BACKGROUND AND FOUNDATION A. Personal Background Begin with standard background questions to establish the deponent's identity, qualifications, and role within Vantage. These questions are non-controversial but essential for the record and for setting the stage. Suggested lines of questioning:

1. Please state your full name for the record.

2. What is your current business address? (Expected answer: 75 Cabot Road, Suite 310, Medford, Massachusetts 02155.)

3. What is your current title at Vantage Medical Distribution, LLC? (Expected answer: Managing Member and Chief Executive Officer.)

4. How long have you held that title?

5. Mr. Farnham, could you describe your educational background for me? Where did you attend college? Did you receive any graduate degrees?

6. Before founding Vantage, where were you employed? (Note: Farnham is believed to be a former executive at a national pharmaceutical wholesaler. We need to identify the company — likely Greaves & Co., Northgate Enterprises, or Northpoint & Co. — the specific role he held, and when he departed to found Vantage. This is important to establish his sophistication in the pharmaceutical distribution industry and his famil

7. What was your title at that company?

8. How long were you employed there?

9. What were your principal responsibilities?

10. Why did you leave that position?

11. When did you found Vantage Medical Distribution, LLC? (Expected answer: 2009.)

12. What prompted you to start Vantage?

13. Since founding Vantage, have you served in any other professional capacity outside of Vantage — for example, on any boards of directors, trade association committees, or advisory panels?

14. As CEO of Vantage, what are your day-to-day responsibilities? Do you oversee sales? Operations? Finance? Regulatory compliance?

15. Who reports directly to you? (Expected answer: Lisa Petrangelo, Chief Operating Officer, and Brian Kopec, Outside Sales Director, among others.)

16. What are Ms. Petrangelo's principal responsibilities?

17. What are Mr. Kopec's principal responsibilities? B. Vantage Corporate Overview The purpose of this section is to establish the nature, scale, and scope of Vantage's business, and critically, the significance of the Penterra relationship to Vantage's overall revenue. Suggested lines of questioning:

1. Vantage Medical Distribution, LLC — is that a Massachusetts limited liability company? (Expected answer: Yes.)

2. How would you describe the nature of Vantage's business in general terms?

3. Would it be fair to say that Vantage is a regional specialty pharmaceutical distributor focused on hospital and clinic-based oncology and immunology products in the northeastern United States? (Expected answer: Yes, or substantially similar.)

4. What was Vantage's approximate total revenue for fiscal year 2021? (Expected answer: Approximately $148 million.)

5. Of that approximately $148 million, how much revenue derived from the distribution of Penterra products? (Expected answer: Approximately $67 million.)

6. So, approximately 45.3% of Vantage's total revenue comes from Penterra products — is that roughly correct?

7. Would you agree that the Penterra relationship is Vantage's single largest source of revenue?

8. Does Vantage hold exclusive distribution agreements with other pharmaceutical manufacturers? (This question is important to establish that Farnham is familiar with the concept of exclusive territory provisions and the contractual mechanics that govern them.)

9. Without asking you to breach any confidentiality obligations, can you identify the other manufacturers with whom Vantage has exclusive distribution agreements?

10. In those other agreements, is the distribution territory typically defined in an exhibit or schedule attached to the agreement?

11. Have any of those other agreements been amended to expand the territory? If so, how was the amendment effected — by a signed written amendment?

12. How many employees does Vantage currently have?

13. Could you briefly describe the organizational structure of the company? C. Prior Deposition and Litigation Experience This section establishes the deponent's familiarity with the deposition process and his preparation for this particular deposition. Suggested lines of questioning:

1. Mr. Farnham, have you ever been deposed before?

2. Have you ever been a party to litigation before this case — either as a plaintiff or a defendant?

3. If so, what was the nature of that litigation, and in what court?

4. In preparation for today's deposition, have you consulted with your attorney, Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP?

5. When did you meet with Mr. Rourke to prepare?

6. How long did you spend preparing?

7. Did you review any documents in preparation for today's deposition? If so, which ones?

8. Did anyone other than Mr. Rourke assist you in preparing for this deposition?

9. Do you understand the ground rules that we went over at the beginning of this deposition — that you are under oath, that you should wait for the entire question before answering, and that if you do not understand a question, you should ask me to rephrase it?

III. NEGOTIATION AND EXECUTION OF THE EXCLUSIVE DISTRIBUTION AGREEMENT A. Pre-Agreement Discussions This section is designed to establish the genesis of the Penterra-Vantage relationship and, critically, what territory was discussed during negotiations. If Farnham acknowledges that the tri-state area was discussed but not included in the final agreement, that is powerful evidence that the exclusion was intentional. I

1. Mr. Farnham, when did you first have discussions with Penterra Pharmaceuticals about a potential distribution relationship?

2. Who at Penterra did you speak with during those initial discussions? (Expected: Steven Kapoor, VP Commercial Operations, and/or Rachel Mendez, Director of Distribution & Logistics.)

3. Did you speak with anyone else at Penterra during the negotiation period?

4. How many conversations or meetings did you have with Penterra personnel before the Exclusive Distribution Agreement was signed?

5. During those negotiations, what territory was discussed?

6. Were the states of New York, New Jersey, or Pennsylvania ever discussed as potential components of the distribution territory during the pre-execution negotiations?

7. If yes: What was said? Who raised it? What was Penterra's response?

8. If no: So the only territory that was discussed and ultimately agreed upon was the six New England states — Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont?

9. Were you aware at the time of negotiations that Penterra had other regional distributors covering other parts of the United States?

10. Were you aware that Penterra also maintained relationships with two national specialty pharmacy partners?

11. Did Vantage propose a larger territory than the six New England states at any point during negotiations? If so, what was Penterra's response to that proposal?

12. Who drafted the Exclusive Distribution Agreement? Was it drafted by Penterra's counsel or by Vantage's counsel? (This is relevant to any future dispute over contra proferentem.)

13. Were there multiple drafts exchanged between the parties before the final version was executed?