1018-00007 · Penterra Pharmaceuticals Corp · Discovery

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ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL

DEPOSITION OUTLINE

BRIAN KOPEC Outside Sales Director, Vantage Medical Distribution, LLC

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I. BACKGROUND AND OBJECTIVES

A. Purpose of Deposition

Brian Kopec serves as Outside Sales Director at Vantage Medical Distribution, LLC ("Vantage"). In that capacity, he is the person most directly responsible for directing and managing Vantage's sales efforts in the tri-state area encompassing New York, New Jersey, and Pennsylvania. Kopec is a critical fact witness because his day-to-day activities and decision-making are at the heart of Penterra's breach-of-contract claims. His testimony is expected to illuminate both the scope and the intent behind Vantage's unauthorized expansion beyond the contractually defined Territory.

The key objectives of this deposition are as follows:

1. Establish Kopec's knowledge of the EDA Territory. Secure testimony that Kopec either knew or was informed that the Exclusive Distribution Agreement ("EDA") Territory was limited to the six New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont), or alternatively, establish that he never reviewed the operative agreement or Exhibit A — demonstrating a lack of due diligence that undermines Vantage's good-faith defense.

2. Document the scope and timeline of unauthorized tri-state sales. Obtain a detailed factual record of when Vantage's tri-state sales of Penterra products began, how they expanded, and the full extent of Vantage's activities outside the contractual Territory.

3. Identify specific customers and revenue figures in New York, New Jersey, and Pennsylvania. Pin down the identities of hospitals, oncology clinics, and other customers solicited and served in the tri-state area, together with associated revenue figures for each state.

4. Determine what internal instructions Kopec received from Donald Farnham and Lisa Petrangelo regarding tri-state expansion. Ascertain the chain of command and decision-making process that led to Vantage's entry into the tri-state market, including whether formal or informal approvals were given by Vantage's CEO and COO.

5. Probe Kopec's awareness of the Kapoor Email of January 12, 2018 and any other purported authorizations. Explore whether Kopec saw the email, what he understood it to mean, and whether Vantage leadership ever represented to him that the Kapoor Email constituted "written consent" under the EDA.

6. Undermine Vantage's course-of-dealing narrative. By pinning down the specific timeline and circumstances under which tri-state sales began, establish that Vantage's course-of-dealing defense — which rests on the theory that Penterra acquiesced to out-of-territory sales beginning in late 2019 — lacks factual support.

7. Obtain testimony useful for Penterra's anticipated motion for summary judgment. Secure admissions and factual testimony that will be directly cited in Penterra's motion for summary judgment, anticipated to be filed on or before February 11, 2022.

B. Key Documents to Use as Exhibits

The following documents should be pre-marked and organized for use during the examination. Copies should be prepared for the examining attorney, second chair, the witness, opposing counsel, and the court reporter. All documents should be Bates-stamped where applicable and cross-referenced to discovery production logs.

• Exhibit A to the Exclusive Distribution Agreement dated July 1, 2017 — This is the Territory definition, which identifies the Territory as consisting of six states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. This is the single most important document in the examination and should be marked as the first deposition exhibit.

• Sections 2.1, 2.3, 13.1, and 14.8 of the EDA — Section 2.1 contains the Grant of Exclusive Territory. Section 2.3 contains the Limitation on activity outside the Territory, specifically providing that Vantage "shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent." Section 13.1 sets forth the requirement that amendments to the EDA be in writing and signed by both parties. Section 14.8 is the Integration / Entire Agreement clause. Each of these sections should be available for Kopec to read on the record.

• January 12, 2018 email from Steven Kapoor to Donald Farnham (the "Kapoor Email") — This is the central document upon which Vantage relies for its position that Penterra authorized tri-state expansion. The email states: "We're definitely open to exploring expansion into NY/NJ/PA once your New England footprint is fully ramped. Let's circle back mid-year and see where things stand." The language is aspirational and future-oriented and does not constitute the "prior written consent" required by Section 2.3 of the EDA.

• Vantage's tri-state sales records and shipping records (produced in discovery) — These records reflect approximately $6.4 million in tri-state revenues from Penterra products from approximately September 2020 through March 2021. Records should be organized by state, by product, and by customer.

• Internal Vantage emails or communications from Kopec or to Kopec regarding tri-state sales strategy — All responsive communications produced by Vantage in discovery should be reviewed and relevant excerpts flagged for use during examination.

• Penterra's March 8, 2021 cease-and-desist letter from Jennifer Chao (General Counsel, Penterra) to Donald Farnham — This letter formally demanded that Vantage cease all sales and distribution activity outside the contractual Territory.

• Vantage's March 22, 2021 response letter from Kenneth M. Rourke (Hargrove, Sinclair & Polk LLP) — This letter sets forth Vantage's position that the Territory was effectively expanded through the Kapoor Email and course of dealing. It also references Vantage's threatened $35 million counterclaim.

• Organizational chart or reporting structure for Vantage's sales team — To be used in establishing Kopec's role, his reporting relationships, and the personnel under his supervision.

• Cross-reference: Testimony from Donald R. Farnham deposition (October 18, 2021) — Farnham admitted that no signed amendment to Exhibit A existed; he relied primarily on the Kapoor Email; and he acknowledged that no Penterra officer expressly authorized tri-state shipments in a signed writing.

C. Cross-Reference to Prior Deposition Testimony

The following depositions have been taken in this matter and contain testimony relevant to the examination of Kopec. Key points from each are summarized below for reference during the examination.

Donald R. Farnham — Deposed October 18, 2021. Farnham is the founder and CEO of Vantage. During his deposition, Farnham made the following key admissions: (a) no signed amendment to Exhibit A of the EDA existed at any time; (b) he relied on the January 12, 2018 Kapoor Email as the basis for Vantage's belief that tri-state sales were authorized; (c) he acknowledged that no officer or authorized representative of Penterra ever expressly authorized tri-state shipments in a signed writing; and (d) he characterized the Kapoor Email as a "green light" but could not identify any subsequent written communication from Penterra confirming that characterization.

Steven Kapoor — Deposed November 2, 2021. Kapoor is VP, Commercial Operations at Penterra. During his deposition, Kapoor testified that his January 12, 2018 email to Farnham expressed a general willingness to explore future expansion of the Vantage territory but did not constitute consent to sell in the tri-state area and did not purport to amend the EDA. Kapoor testified that the phrase "let's circle back mid-year" was intended to convey that any expansion would require further discussion and formal agreement. Kapoor further testified that no such follow-up meeting or negotiation ever occurred.

Rachel Mendez — Deposed November 19, 2021. Mendez is Director of Distribution & Logistics at Penterra. During her deposition, Mendez testified regarding Penterra's distribution logistics framework, specifically that Penterra's systems directed Oncalaris shipments to Vantage only for delivery addresses located within the six New England states identified in Exhibit A. Mendez testified that shipments to addresses outside New England would not have been processed through Penterra's standard distribution channels for the Vantage account. This testimony is relevant to the question of how Vantage sourced product for tri-state customers (i.e., likely from Vantage's own existing New England inventory rather than through Penterra's directed shipments).

II. EXAMINATION OUTLINE BY TOPIC AREA

Topic 1: Background and Employment at Vantage

A. Personal and Professional Background

This introductory section serves the dual purpose of establishing the deponent's background on the record and building rapport before moving into more contentious subject areas. It is important to lock down Kopec's tenure, title, and responsibilities early, as these will be referenced throughout the deposition.

Questions in this area should cover the following:

• State your full legal name for the record.

• What is your current title at Vantage Medical Distribution, LLC?

• Confirm that his title is Outside Sales Director, or obtain the precise title if different.

• How long have you held the position of Outside Sales Director? When were you promoted to or appointed to this role?

• Describe your employment history prior to joining Vantage. Specifically, what prior experience, if any, do you have in pharmaceutical distribution, specialty pharmaceutical sales, or related fields?

• What is your educational background? Do you hold any degrees, certifications, or professional licenses relevant to pharmaceutical sales or distribution?

• When did you first join Vantage Medical Distribution, LLC? What was your initial role?

• Note: Vantage was founded in 2009 by Donald Farnham. Determine whether Kopec was an early employee or joined later.

• How did you come to join Vantage? Were you recruited? Did you respond to a posting? Were you referred by someone?

• Describe your current reporting structure. Who is your direct supervisor? To whom do you report on a day-to-day basis?

• Confirm whether Kopec reports to Donald Farnham (CEO) and/or Lisa Petrangelo (COO). Determine whether both have supervisory authority over his activities or whether one is the primary point of contact.

B. Role and Responsibilities

This section establishes the scope of Kopec's duties, which will become critical when examining his involvement in the tri-state expansion. The goal is to establish that Kopec was not a passive order-taker but rather an active participant in directing sales strategy and customer acquisition.

• Please describe your duties and responsibilities as Outside Sales Director at Vantage.

• What is the geographic scope of your sales responsibilities? What territories, regions, or states fall within your purview?

• How many sales representatives or account managers do you supervise? How is the sales team organized (by region, by product, by customer type)?

• What products are you responsible for selling or overseeing the sale of? Specifically probe whether he sells or oversees sales of Oncalaris (pegvisomant-axel, 20 mg and 40 mg vials) and Renuvesta (cilosporin-beta, 5 mg capsules).

• Describe your relationship with the distribution and logistics side of Vantage's business. Do you interact with the operations or warehouse teams? How are orders that your sales team generates fulfilled and shipped?

• What is your role in customer acquisition? Are you personally involved in identifying and contacting new customers, or do you primarily manage the sales team members who perform that function?

• What is your role in account management — that is, in maintaining and servicing existing customer relationships?

• Do you play any role in the order processing workflow? Do you approve orders, review order volumes, or sign off on shipments?

C. Key Contacts and Communication Channels

Understanding Kopec's communication patterns is essential to identifying what he knew and when he knew it, particularly with respect to the Kapoor Email and any internal discussions about the tri-state expansion.

• How frequently do you communicate with Donald Farnham? Daily? Weekly? What is the nature of those communications — strategic direction, operational updates, specific account issues?

• How frequently do you communicate with Lisa Petrangelo? What topics do you typically discuss with her?

• What communication methods do you use internally at Vantage — email, telephone, text messages, Meridian Solutions or other messaging platforms, in-person meetings, video calls?

• Does Vantage maintain written records of internal meetings, such as agendas or minutes?

• In your capacity as Outside Sales Director, have you ever interacted directly with anyone at Penterra Pharmaceuticals Corp.? If so, with whom, and in what context?

• Specifically, have you ever communicated with Steven Kapoor (VP, Commercial Operations at Penterra)?

• Have you ever communicated with Rachel Mendez (Director of Distribution & Logistics at Penterra)?

• Have you ever communicated with Jennifer Chao (General Counsel of Penterra)?

• Have you ever communicated with any other Penterra employee or representative?

• If Kopec identifies any communications with Penterra personnel, follow up on the timing, subject matter, and method of each communication.

Topic 2: Knowledge of the Exclusive Distribution Agreement

A. Familiarity with the EDA

This is the foundational line of questioning for the entire deposition. The objective is to establish Kopec's actual knowledge of the EDA and its terms, or to establish that he failed to review the agreement that governed the products he was responsible for selling.

• Are you familiar with a document referred to as the Exclusive Distribution Agreement between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC?

• Have you ever read the Exclusive Distribution Agreement? If so, when did you first read it?

• When did you first receive a copy of the EDA? How did you receive it — was it provided to you, or did you seek it out?

• Were you involved in the negotiation of the EDA? Did you participate in any discussions leading up to the execution of the agreement on July 1, 2017?

• Note: It is anticipated that Kopec was not involved in the negotiation of the EDA. Confirm this. If he was not involved, this supports the argument that Kopec may not have had firsthand knowledge of the agreement's terms, which in turn undermines any claim that he had a good-faith basis for believing the Territory included the tri-state area.

• What was your understanding of the products covered by the EDA? Specifically, did you understand the EDA to cover Oncalaris (pegvisomant-axel, 20 mg and 40 mg vials) and Renuvesta (cilosporin-beta, 5 mg capsules)?

• Were there any other distribution agreements between Penterra and Vantage, or was the EDA the sole agreement governing the distribution relationship?

B. Understanding of the Territory

This is the most critical line of questioning in the entire deposition. The examining attorney must pin down Kopec's understanding of what the "Territory" meant under the EDA. This is a "box" examination — the questions are designed to eliminate Kopec's ability to claim ambiguity or misunderstanding.

• Mr. Kopec, under the Exclusive Distribution Agreement, what did you understand the word "Territory" to mean?

• Allow the witness to answer fully. Do not interrupt.

• Were you ever told, orally or in writing, by anyone at Vantage, that the Territory under the EDA was limited to the six New England states — that is, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont?

• If yes: Who told you? When? What specifically were you told?

• If no: So no one at Vantage ever told you what the Territory was?

• When you first assumed the role of Outside Sales Director, did you receive any training or onboarding materials that referenced the geographic scope of the Territory?

• Were you provided with any written materials — a territory map, a summary of key contract terms, a sales handbook — that identified the states included in the Territory?

• Have you ever seen Exhibit A to the Exclusive Distribution Agreement?

• At this point, mark Exhibit A as a deposition exhibit. Provide a copy to the witness, to opposing counsel, and to the court reporter.

• Mr. Kopec, I am handing you what has been marked as Exhibit [__]. Do you recognize this document?

• Please read aloud the text of Exhibit A that identifies the Territory.

• The witness should read: "The Territory shall consist of the following states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont."

• Having now read Exhibit A, do you see any reference to the state of New York?

• Do you see any reference to the state of New Jersey?

• Do you see any reference to the state of Pennsylvania?

• At any time prior to September 2020, did you understand the Territory under the EDA to include New York, New Jersey, or Pennsylvania?

• If the witness answers "yes": What was the basis for that understanding? Who told you the Territory included those states? When were you told? Was it in writing?

• If the witness answers "no": So you understood, as of September 2020, that the Territory did not include New York, New Jersey, or Pennsylvania — is that correct?

C. Knowledge of Section 2.3 (Limitation on Activity Outside Territory)

Building on the Territory questions above, this section addresses whether Kopec knew about the specific contractual restriction that prohibited Vantage from soliciting orders or delivering products outside the Territory without Penterra's prior written consent.

• Mr. Kopec, I would like to direct your attention to Section 2.3 of the Exclusive Distribution Agreement. I am handing you a copy of the relevant page.

• Mark the relevant page(s) of the EDA as a deposition exhibit if not previously marked.

• Please read Section 2.3 aloud.

• The witness should read language to the effect: "Distributor shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent."

• Prior to today, were you aware of the restriction set forth in Section 2.3?

• Was this restriction — that Vantage shall not solicit orders or deliver products outside the Territory without Penterra's prior written consent — ever communicated to you by anyone at Vantage?

• Was this restriction ever communicated to the sales team that you supervise?

• Were there any internal policies or guidelines at Vantage regarding geographic boundaries for product sales — for Penterra products or for any other product lines?

• Did you understand, as Outside Sales Director, that there were limits on where you could sell Penterra products?

• What did you understand the phrase "prior written consent" to mean?

D. Knowledge of the Kapoor Email (January 12, 2018)

The Kapoor Email is the linchpin of Vantage's defense. This section probes Kopec's actual knowledge of the email, when he first became aware of it, who showed it to him, and what he understood it to mean. The goal is to establish that (a) Kopec did not see the email at or near the time it was sent, and/or (b) the email does not constitute the "prior written consent" required by Section 2.3.

• Mr. Kopec, have you ever seen a January 12, 2018 email from Steven Kapoor of Penterra to Donald Farnham of Vantage?

• Mark the Kapoor Email as a deposition exhibit. Provide copies.

• I am handing you what has been marked as Exhibit [__]. Do you recognize this email?

• When did you first see this email? What is the earliest date you can recall seeing it?

• Who showed it to you or forwarded it to you?

• In what context was it shown or provided to you?

• Please read aloud the relevant portion of the email.

• The witness should read: "We're definitely open to exploring expansion into NY/NJ/PA once your New England footprint is fully ramped. Let's circle back mid-year and see where things stand."

• What was your understanding of the significance of this email? Did you view it as granting permission to sell Penterra products in the tri-state area?

• Did you understand this email to be the "prior written consent" referenced in Section 2.3 of the EDA?

• Was this email ever circulated to the sales team at Vantage?

• Was this email ever referenced in any sales planning meeting, strategy document, or business plan?

• Did Donald Farnham ever tell you that the Kapoor Email constituted "written consent" or approval for Vantage to sell in the tri-state area?

• Did Lisa Petrangelo ever tell you that?

• Did any other person at Vantage ever tell you that?

• Key point for the record: The language of the Kapoor Email uses the words "exploring" and "let's circle back mid-year and see where things stand." This language is aspirational and future-oriented. It does not constitute consent, authorization, or an amendment to the EDA. It expressly contemplates further discussion ("circle back") and conditions any expansion on Vantage's New England footprint being "fully ramped." Pin down Kopec's understanding of these phrases.

• Mr. Kopec, focusing on the words "exploring expansion" — did you understand the word "exploring" to mean that an expansion had been agreed to, or that the parties were considering the possibility of an expansion?

• Focusing on the phrase "let's circle back mid-year and see where things stand" — did you understand that to mean that a decision had already been made, or that further discussion was needed?

• Following the January 12, 2018 email, was there ever a "mid-year" follow-up meeting or discussion between Vantage and Penterra regarding tri-state expansion?

• Was there ever any subsequent communication from Penterra confirming, clarifying, or formalizing the suggestion in the Kapoor Email?

Topic 3: Tri-State Sales Activities — Timeline and Scope

A. Commencement of Tri-State Sales

This is the timeline section. The goal is to establish precisely when Vantage began selling Penterra products in the tri-state area, who authorized that activity, and whether Penterra was notified. This testimony is essential both for establishing breach and for undermining Vantage's course-of-dealing defense.

• Mr. Kopec, when did Vantage first begin selling or distributing Penterra products in the state of New York?

• When did Vantage first begin selling or distributing Penterra products in the state of New Jersey?

• When did Vantage first begin selling or distributing Penterra products in the state of Pennsylvania?

• Penterra's records indicate that shipments of Penterra products to tri-state addresses began on or about September 14, 2020. Is that date consistent with your recollection?

• If the witness disputes the date, press for the specific date he contends is correct and the basis for that contention.

• Were there any contacts, solicitations, or preliminary sales activities in the tri-state area prior to September 2020 — for example, in late 2019?

• Note: Vantage has claimed in correspondence and in the Rourke response letter that Penterra failed to object to shipments to New York "beginning in late 2019." Probe this claim carefully. Were there actual shipments in late 2019? To which customers? In what volumes? Were they inadvertent or intentional? Did anyone at Penterra acknowledge or comment on them?

• Were there any shipments of Penterra products to tri-state addresses in 2018 or 2019?

• If yes: How many? To which customers? What was the total dollar value?

• What specifically prompted the decision to begin selling Penterra products in the tri-state area? Was there a triggering event, a market opportunity, a directive from management?

• Was there a formal decision, meeting, or discussion at which the tri-state expansion was approved?

• Who made the decision to expand into the tri-state area? Was it Donald Farnham? Lisa Petrangelo? You? Someone else?

• Was there a written directive, business plan, strategy document, or memorandum authorizing or describing the expansion into the tri-state area?

• If yes: Identify the document and request a Bates number or production reference.

B. Internal Approvals and Communications

• Before you or your sales team began soliciting customers in the tri-state area, did you seek approval from anyone at Vantage?

• If so, from whom? When? In what form — oral, email, written memorandum?

• Before you or your sales team began soliciting customers in the tri-state area, did you seek or receive any approval or communication from anyone at Penterra?

• Were there any internal meetings at Vantage at which the tri-state expansion was discussed? If so, when were those meetings held? Who attended? Were minutes or notes taken?

• Were there any internal emails at Vantage discussing the tri-state expansion? Can you identify any specific emails?

• Request identification of specific emails, memos, or meeting notes. Cross-reference with documents already produced in discovery.

• At any point during the planning or execution of the tri-state expansion, did anyone at Vantage raise concerns about whether the EDA permitted sales outside the six New England states?

• If yes: Who raised concerns? When? What was said? How were those concerns addressed?

• Did Lisa Petrangelo, as COO, approve the logistics arrangements necessary to support tri-state shipments — for example, warehousing, shipping routes, or customer onboarding procedures?

C. Specific Customers and Accounts in the Tri-State Area

This section is designed to build a comprehensive factual record of the scope of Vantage's unauthorized activity. Specific customer names, account opening dates, and product details will be essential for the damages analysis and for Penterra's motion for summary judgment.

• Please identify each hospital, oncology clinic, specialty pharmacy, or other customer that you or your sales team contacted or sold Penterra products to in the state of New York.

• Please identify each such customer in the state of New Jersey.

• Please identify each such customer in the state of Pennsylvania.

• How many total customers in the tri-state area purchased Penterra products through Vantage?

• For each customer you have identified: When was the account opened? What products were sold — Oncalaris 20 mg, Oncalaris 40 mg, Renuvesta 5 mg, or some combination?

• How were these customers identified and targeted? Did the sales team use a customer database, referral network, market research, or some other method?

• Were any of these tri-state customers already purchasing Penterra products through other distribution channels before Vantage began selling to them?

• Were you aware that Penterra maintained other distribution channels for its products, including national specialty pharmacy partners?

• If yes: Did you know that Penterra had existing relationships with distributors serving the tri-state area?

D. Sales Process and Logistics

• How were orders from tri-state customers processed? Were they processed through the same order management systems as orders from New England customers?

• Who fulfilled and shipped orders to tri-state customers? Were shipments made from Vantage's existing warehouse or distribution center?

• Were Penterra's distribution logistics systems involved in the fulfillment of tri-state orders?

• Cross-reference Rachel Mendez testimony (November 19, 2021): Mendez testified that Penterra's systems directed Oncalaris shipments to Vantage only for delivery addresses within New England. If Penterra's systems were not directing product to Vantage for tri-state shipments, where was the product sourced?

• Where was the product sourced for tri-state orders — from Penterra's standard supply chain, from Vantage's existing New England inventory, or from some other source?

• Were there any differences in pricing, payment terms, or commercial processes for tri-state customers as compared to New England customers?

• Did Vantage create any separate account codes, cost centers, or tracking mechanisms for tri-state sales?

Topic 4: Tri-State Revenue and Financial Details

A. Revenue Figures

The revenue questions are designed to confirm and elaborate upon the approximately $6.4 million figure reflected in Penterra's records, to disaggregate that figure by state and product, and to place the tri-state revenues in the context of Vantage's overall financial picture.

• What were the total revenues from sales of Penterra products in the tri-state area from the commencement of tri-state sales through the present?

• Penterra's records indicate approximately $6.4 million in tri-state revenues from approximately September 2020 through March 2021. Is that figure consistent with your records?

• If the witness disputes the figure, press for the specific amount he contends is correct, the source of his information, and the basis for any discrepancy.

• Can you break down the tri-state revenue by state — that is, what were the revenues from New York, from New Jersey, and from Pennsylvania, respectively?

• Can you break down the tri-state revenue by product — that is, how much was attributable to Oncalaris 20 mg, how much to Oncalaris 40 mg, and how much, if any, to Renuvesta 5 mg?

• Can you break down the tri-state revenue by quarter or month?

• What percentage of Vantage's total revenue did the tri-state sales represent?

• Reference: Vantage's total revenue for fiscal year 2021 was approximately $148 million, of which Penterra product revenue was approximately $67 million (approximately 45.3% of Vantage's total). The $6.4 million in tri-state sales represents approximately 9.6% of Vantage's total Penterra product revenue for the period.

• What was Vantage's gross margin on tri-state Penterra product sales?

B. Growth Trajectory

• Were tri-state sales of Penterra products growing on a month-over-month basis?

• Were there any plans to expand further within the tri-state area — for example, by targeting additional customers, increasing order volumes with existing customers, or entering additional geographic sub-markets?

• Were there any sales targets or projections established for the tri-state territory?

• Did you prepare any forecasts, budgets, or sales plans specifically for the tri-state area?

• If yes: When were those prepared? Who reviewed them? Are they documented?

C. Documentation.

• What sales reports, spreadsheets, CRM records, or other documents exist that track tri-state sales of Penterra products?

• Were these documents produced in discovery in this litigation? If so, can you identify the Bates number ranges?

ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL
DEPOSITION OUTLINE
BRIAN KOPEC Outside Sales Director, Vantage Medical Distribution, LLC
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I. BACKGROUND AND OBJECTIVES
A. Purpose of Deposition
Brian Kopec serves as Outside Sales Director at Vantage Medical Distribution, LLC ("Vantage"). In that capacity, he is the person most directly responsible for directing and managing Vantage's sales efforts in the tri-state area encompassing New York, New Jersey, and Pennsylvania. Kopec is a critical fact witness because his day-to-day activities and decision-making are at the heart of Penterra's breach-of-contract claims. His testimony is expected to illuminate both the scope and the intent behind Vantage's unauthorized expansion beyond the contractually defined Territory.
The key objectives of this deposition are as follows:
1.  Establish Kopec's knowledge of the EDA Territory. Secure testimony that Kopec either knew or was informed that the Exclusive Distribution Agreement ("EDA") Territory was limited to the six New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont), or alternatively, establish that he never reviewed the operative agreement or Exhibit A — demonstrating a lack of due diligence that undermines Vantage's good-faith defense.
2.  Document the scope and timeline of unauthorized tri-state sales. Obtain a detailed factual record of when Vantage's tri-state sales of Penterra products began, how they expanded, and the full extent of Vantage's activities outside the contractual Territory.
3.  Identify specific customers and revenue figures in New York, New Jersey, and Pennsylvania. Pin down the identities of hospitals, oncology clinics, and other customers solicited and served in the tri-state area, together with associated revenue figures for each state.
4.  Determine what internal instructions Kopec received from Donald Farnham and Lisa Petrangelo regarding tri-state expansion. Ascertain the chain of command and decision-making process that led to Vantage's entry into the tri-state market, including whether formal or informal approvals were given by Vantage's CEO and COO.
5.  Probe Kopec's awareness of the Kapoor Email of January 12, 2018 and any other purported authorizations. Explore whether Kopec saw the email, what he understood it to mean, and whether Vantage leadership ever represented to him that the Kapoor Email constituted "written consent" under the EDA.
6.  Undermine Vantage's course-of-dealing narrative. By pinning down the specific timeline and circumstances under which tri-state sales began, establish that Vantage's course-of-dealing defense — which rests on the theory that Penterra acquiesced to out-of-territory sales beginning in late 2019 — lacks factual support.
7.  Obtain testimony useful for Penterra's anticipated motion for summary judgment. Secure admissions and factual testimony that will be directly cited in Penterra's motion for summary judgment, anticipated to be filed on or before February 11, 2022.
B. Key Documents to Use as Exhibits
The following documents should be pre-marked and organized for use during the examination. Copies should be prepared for the examining attorney, second chair, the witness, opposing counsel, and the court reporter. All documents should be Bates-stamped where applicable and cross-referenced to discovery production logs.
•  Exhibit A to the Exclusive Distribution Agreement dated July 1, 2017 — This is the Territory definition, which identifies the Territory as consisting of six states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. This is the single most important document in the examination and should be marked as the first deposition exhibit.
•  Sections 2.1, 2.3, 13.1, and 14.8 of the EDA — Section 2.1 contains the Grant of Exclusive Territory. Section 2.3 contains the Limitation on activity outside the Territory, specifically providing that Vantage "shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent." Section 13.1 sets forth the requirement that amendments to the EDA be in writing and signed by both parties. Section 14.8 is the Integration / Entire Agreement clause. Each of these sections should be available for Kopec to read on the record.
•  January 12, 2018 email from Steven Kapoor to Donald Farnham (the "Kapoor Email") — This is the central document upon which Vantage relies for its position that Penterra authorized tri-state expansion. The email states: "We're definitely open to exploring expansion into NY/NJ/PA once your New England footprint is fully ramped. Let's circle back mid-year and see where things stand." The language is aspirational and future-oriented and does not constitute the "prior written consent" required by Section 2.3 of the EDA.
•  Vantage's tri-state sales records and shipping records (produced in discovery) — These records reflect approximately $6.4 million in tri-state revenues from Penterra products from approximately September 2020 through March 2021. Records should be organized by state, by product, and by customer.
•  Internal Vantage emails or communications from Kopec or to Kopec regarding tri-state sales strategy — All responsive communications produced by Vantage in discovery should be reviewed and relevant excerpts flagged for use during examination.
•  Penterra's March 8, 2021 cease-and-desist letter from Jennifer Chao (General Counsel, Penterra) to Donald Farnham — This letter formally demanded that Vantage cease all sales and distribution activity outside the contractual Territory.
•  Vantage's March 22, 2021 response letter from Kenneth M. Rourke (Hargrove, Sinclair & Polk LLP) — This letter sets forth Vantage's position that the Territory was effectively expanded through the Kapoor Email and course of dealing. It also references Vantage's threatened $35 million counterclaim.
•  Organizational chart or reporting structure for Vantage's sales team — To be used in establishing Kopec's role, his reporting relationships, and the personnel under his supervision.
•  Cross-reference: Testimony from Donald R. Farnham deposition (October 18, 2021) — Farnham admitted that no signed amendment to Exhibit A existed; he relied primarily on the Kapoor Email; and he acknowledged that no Penterra officer expressly authorized tri-state shipments in a signed writing.
C. Cross-Reference to Prior Deposition Testimony
The following depositions have been taken in this matter and contain testimony relevant to the examination of Kopec. Key points from each are summarized below for reference during the examination.
Donald R. Farnham — Deposed October 18, 2021. Farnham is the founder and CEO of Vantage. During his deposition, Farnham made the following key admissions: (a) no signed amendment to Exhibit A of the EDA existed at any time; (b) he relied on the January 12, 2018 Kapoor Email as the basis for Vantage's belief that tri-state sales were authorized; (c) he acknowledged that no officer or authorized representative of Penterra ever expressly authorized tri-state shipments in a signed writing; and (d) he characterized the Kapoor Email as a "green light" but could not identify any subsequent written communication from Penterra confirming that characterization.
Steven Kapoor — Deposed November 2, 2021. Kapoor is VP, Commercial Operations at Penterra. During his deposition, Kapoor testified that his January 12, 2018 email to Farnham expressed a general willingness to explore future expansion of the Vantage territory but did not constitute consent to sell in the tri-state area and did not purport to amend the EDA. Kapoor testified that the phrase "let's circle back mid-year" was intended to convey that any expansion would require further discussion and formal agreement. Kapoor further testified that no such follow-up meeting or negotiation ever occurred.
Rachel Mendez — Deposed November 19, 2021. Mendez is Director of Distribution & Logistics at Penterra. During her deposition, Mendez testified regarding Penterra's distribution logistics framework, specifically that Penterra's systems directed Oncalaris shipments to Vantage only for delivery addresses located within the six New England states identified in Exhibit A. Mendez testified that shipments to addresses outside New England would not have been processed through Penterra's standard distribution channels for the Vantage account. This testimony is relevant to the question of how Vantage sourced product for tri-state customers (i.e., likely from Vantage's own existing New England inventory rather than through Penterra's directed shipments).
II. EXAMINATION OUTLINE BY TOPIC AREA
Topic 1: Background and Employment at Vantage
A. Personal and Professional Background
This introductory section serves the dual purpose of establishing the deponent's background on the record and building rapport before moving into more contentious subject areas. It is important to lock down Kopec's tenure, title, and responsibilities early, as these will be referenced throughout the deposition.
Questions in this area should cover the following:
•  State your full legal name for the record.
•  What is your current title at Vantage Medical Distribution, LLC?
•  Confirm that his title is Outside Sales Director, or obtain the precise title if different.
•  How long have you held the position of Outside Sales Director? When were you promoted to or appointed to this role?
•  Describe your employment history prior to joining Vantage. Specifically, what prior experience, if any, do you have in pharmaceutical distribution, specialty pharmaceutical sales, or related fields?
•  What is your educational background? Do you hold any degrees, certifications, or professional licenses relevant to pharmaceutical sales or distribution?
•  When did you first join Vantage Medical Distribution, LLC? What was your initial role?
•  Note: Vantage was founded in 2009 by Donald Farnham. Determine whether Kopec was an early employee or joined later.
•  How did you come to join Vantage? Were you recruited? Did you respond to a posting? Were you referred by someone?
•  Describe your current reporting structure. Who is your direct supervisor? To whom do you report on a day-to-day basis?
•  Confirm whether Kopec reports to Donald Farnham (CEO) and/or Lisa Petrangelo (COO). Determine whether both have supervisory authority over his activities or whether one is the primary point of contact.
B. Role and Responsibilities
This section establishes the scope of Kopec's duties, which will become critical when examining his involvement in the tri-state expansion. The goal is to establish that Kopec was not a passive order-taker but rather an active participant in directing sales strategy and customer acquisition.
•  Please describe your duties and responsibilities as Outside Sales Director at Vantage.
•  What is the geographic scope of your sales responsibilities? What territories, regions, or states fall within your purview?
•  How many sales representatives or account managers do you supervise? How is the sales team organized (by region, by product, by customer type)?
•  What products are you responsible for selling or overseeing the sale of? Specifically probe whether he sells or oversees sales of Oncalaris (pegvisomant-axel, 20 mg and 40 mg vials) and Renuvesta (cilosporin-beta, 5 mg capsules).
•  Describe your relationship with the distribution and logistics side of Vantage's business. Do you interact with the operations or warehouse teams? How are orders that your sales team generates fulfilled and shipped?
•  What is your role in customer acquisition? Are you personally involved in identifying and contacting new customers, or do you primarily manage the sales team members who perform that function?
•  What is your role in account management — that is, in maintaining and servicing existing customer relationships?
•  Do you play any role in the order processing workflow? Do you approve orders, review order volumes, or sign off on shipments?
C. Key Contacts and Communication Channels
Understanding Kopec's communication patterns is essential to identifying what he knew and when he knew it, particularly with respect to the Kapoor Email and any internal discussions about the tri-state expansion.
•  How frequently do you communicate with Donald Farnham? Daily? Weekly? What is the nature of those communications — strategic direction, operational updates, specific account issues?
•  How frequently do you communicate with Lisa Petrangelo? What topics do you typically discuss with her?
•  What communication methods do you use internally at Vantage — email, telephone, text messages, Meridian Solutions or other messaging platforms, in-person meetings, video calls?
•  Does Vantage maintain written records of internal meetings, such as agendas or minutes?
•  In your capacity as Outside Sales Director, have you ever interacted directly with anyone at Penterra Pharmaceuticals Corp.? If so, with whom, and in what context?
•  Specifically, have you ever communicated with Steven Kapoor (VP, Commercial Operations at Penterra)?
•  Have you ever communicated with Rachel Mendez (Director of Distribution & Logistics at Penterra)?
•  Have you ever communicated with Jennifer Chao (General Counsel of Penterra)?
•  Have you ever communicated with any other Penterra employee or representative?
•  If Kopec identifies any communications with Penterra personnel, follow up on the timing, subject matter, and method of each communication.
Topic 2: Knowledge of the Exclusive Distribution Agreement
A. Familiarity with the EDA
This is the foundational line of questioning for the entire deposition. The objective is to establish Kopec's actual knowledge of the EDA and its terms, or to establish that he failed to review the agreement that governed the products he was responsible for selling.
•  Are you familiar with a document referred to as the Exclusive Distribution Agreement between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC?
•  Have you ever read the Exclusive Distribution Agreement? If so, when did you first read it?
•  When did you first receive a copy of the EDA? How did you receive it — was it provided to you, or did you seek it out?
•  Were you involved in the negotiation of the EDA? Did you participate in any discussions leading up to the execution of the agreement on July 1, 2017?
•  Note: It is anticipated that Kopec was not involved in the negotiation of the EDA. Confirm this. If he was not involved, this supports the argument that Kopec may not have had firsthand knowledge of the agreement's terms, which in turn undermines any claim that he had a good-faith basis for believing the Territory included the tri-state area.
•  What was your understanding of the products covered by the EDA? Specifically, did you understand the EDA to cover Oncalaris (pegvisomant-axel, 20 mg and 40 mg vials) and Renuvesta (cilosporin-beta, 5 mg capsules)?
•  Were there any other distribution agreements between Penterra and Vantage, or was the EDA the sole agreement governing the distribution relationship?
B. Understanding of the Territory
This is the most critical line of questioning in the entire deposition. The examining attorney must pin down Kopec's understanding of what the "Territory" meant under the EDA. This is a "box" examination — the questions are designed to eliminate Kopec's ability to claim ambiguity or misunderstanding.
•  Mr. Kopec, under the Exclusive Distribution Agreement, what did you understand the word "Territory" to mean?
•  Allow the witness to answer fully. Do not interrupt.
•  Were you ever told, orally or in writing, by anyone at Vantage, that the Territory under the EDA was limited to the six New England states — that is, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont?
•  If yes: Who told you? When? What specifically were you told?
•  If no: So no one at Vantage ever told you what the Territory was?
•  When you first assumed the role of Outside Sales Director, did you receive any training or onboarding materials that referenced the geographic scope of the Territory?
•  Were you provided with any written materials — a territory map, a summary of key contract terms, a sales handbook — that identified the states included in the Territory?
•  Have you ever seen Exhibit A to the Exclusive Distribution Agreement?
•  At this point, mark Exhibit A as a deposition exhibit. Provide a copy to the witness, to opposing counsel, and to the court reporter.
•  Mr. Kopec, I am handing you what has been marked as Exhibit [__]. Do you recognize this document?
•  Please read aloud the text of Exhibit A that identifies the Territory.
•  The witness should read: "The Territory shall consist of the following states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont."
•  Having now read Exhibit A, do you see any reference to the state of New York?
•  Do you see any reference to the state of New Jersey?
•  Do you see any reference to the state of Pennsylvania?
•  At any time prior to September 2020, did you understand the Territory under the EDA to include New York, New Jersey, or Pennsylvania?
•  If the witness answers "yes": What was the basis for that understanding? Who told you the Territory included those states? When were you told? Was it in writing?
•  If the witness answers "no": So you understood, as of September 2020, that the Territory did not include New York, New Jersey, or Pennsylvania — is that correct?
C. Knowledge of Section 2.3 (Limitation on Activity Outside Territory)
Building on the Territory questions above, this section addresses whether Kopec knew about the specific contractual restriction that prohibited Vantage from soliciting orders or delivering products outside the Territory without Penterra's prior written consent.
•  Mr. Kopec, I would like to direct your attention to Section 2.3 of the Exclusive Distribution Agreement. I am handing you a copy of the relevant page.
•  Mark the relevant page(s) of the EDA as a deposition exhibit if not previously marked.
•  Please read Section 2.3 aloud.
•  The witness should read language to the effect: "Distributor shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent."
•  Prior to today, were you aware of the restriction set forth in Section 2.3?
•  Was this restriction — that Vantage shall not solicit orders or deliver products outside the Territory without Penterra's prior written consent — ever communicated to you by anyone at Vantage?
•  Was this restriction ever communicated to the sales team that you supervise?
•  Were there any internal policies or guidelines at Vantage regarding geographic boundaries for product sales — for Penterra products or for any other product lines?
•  Did you understand, as Outside Sales Director, that there were limits on where you could sell Penterra products?
•  What did you understand the phrase "prior written consent" to mean?
D. Knowledge of the Kapoor Email (January 12, 2018)
The Kapoor Email is the linchpin of Vantage's defense. This section probes Kopec's actual knowledge of the email, when he first became aware of it, who showed it to him, and what he understood it to mean. The goal is to establish that (a) Kopec did not see the email at or near the time it was sent, and/or (b) the email does not constitute the "prior written consent" required by Section 2.3.
•  Mr. Kopec, have you ever seen a January 12, 2018 email from Steven Kapoor of Penterra to Donald Farnham of Vantage?
•  Mark the Kapoor Email as a deposition exhibit. Provide copies.
•  I am handing you what has been marked as Exhibit [__]. Do you recognize this email?
•  When did you first see this email? What is the earliest date you can recall seeing it?
•  Who showed it to you or forwarded it to you?
•  In what context was it shown or provided to you?
•  Please read aloud the relevant portion of the email.
•  The witness should read: "We're definitely open to exploring expansion into NY/NJ/PA once your New England footprint is fully ramped. Let's circle back mid-year and see where things stand."
•  What was your understanding of the significance of this email? Did you view it as granting permission to sell Penterra products in the tri-state area?
•  Did you understand this email to be the "prior written consent" referenced in Section 2.3 of the EDA?
•  Was this email ever circulated to the sales team at Vantage?
•  Was this email ever referenced in any sales planning meeting, strategy document, or business plan?
•  Did Donald Farnham ever tell you that the Kapoor Email constituted "written consent" or approval for Vantage to sell in the tri-state area?
•  Did Lisa Petrangelo ever tell you that?
•  Did any other person at Vantage ever tell you that?
•  Key point for the record: The language of the Kapoor Email uses the words "exploring" and "let's circle back mid-year and see where things stand." This language is aspirational and future-oriented. It does not constitute consent, authorization, or an amendment to the EDA. It expressly contemplates further discussion ("circle back") and conditions any expansion on Vantage's New England footprint being "fully ramped." Pin down Kopec's understanding of these phrases.
•  Mr. Kopec, focusing on the words "exploring expansion" — did you understand the word "exploring" to mean that an expansion had been agreed to, or that the parties were considering the possibility of an expansion?
•  Focusing on the phrase "let's circle back mid-year and see where things stand" — did you understand that to mean that a decision had already been made, or that further discussion was needed?
•  Following the January 12, 2018 email, was there ever a "mid-year" follow-up meeting or discussion between Vantage and Penterra regarding tri-state expansion?
•  Was there ever any subsequent communication from Penterra confirming, clarifying, or formalizing the suggestion in the Kapoor Email?
Topic 3: Tri-State Sales Activities — Timeline and Scope
A. Commencement of Tri-State Sales
This is the timeline section. The goal is to establish precisely when Vantage began selling Penterra products in the tri-state area, who authorized that activity, and whether Penterra was notified. This testimony is essential both for establishing breach and for undermining Vantage's course-of-dealing defense.
•  Mr. Kopec, when did Vantage first begin selling or distributing Penterra products in the state of New York?
•  When did Vantage first begin selling or distributing Penterra products in the state of New Jersey?
•  When did Vantage first begin selling or distributing Penterra products in the state of Pennsylvania?
•  Penterra's records indicate that shipments of Penterra products to tri-state addresses began on or about September 14, 2020. Is that date consistent with your recollection?
•  If the witness disputes the date, press for the specific date he contends is correct and the basis for that contention.
•  Were there any contacts, solicitations, or preliminary sales activities in the tri-state area prior to September 2020 — for example, in late 2019?
•  Note: Vantage has claimed in correspondence and in the Rourke response letter that Penterra failed to object to shipments to New York "beginning in late 2019." Probe this claim carefully. Were there actual shipments in late 2019? To which customers? In what volumes? Were they inadvertent or intentional? Did anyone at Penterra acknowledge or comment on them?
•  Were there any shipments of Penterra products to tri-state addresses in 2018 or 2019?
•  If yes: How many? To which customers? What was the total dollar value?
•  What specifically prompted the decision to begin selling Penterra products in the tri-state area? Was there a triggering event, a market opportunity, a directive from management?
•  Was there a formal decision, meeting, or discussion at which the tri-state expansion was approved?
•  Who made the decision to expand into the tri-state area? Was it Donald Farnham? Lisa Petrangelo? You? Someone else?
•  Was there a written directive, business plan, strategy document, or memorandum authorizing or describing the expansion into the tri-state area?
•  If yes: Identify the document and request a Bates number or production reference.
B. Internal Approvals and Communications
•  Before you or your sales team began soliciting customers in the tri-state area, did you seek approval from anyone at Vantage?
•  If so, from whom? When? In what form — oral, email, written memorandum?
•  Before you or your sales team began soliciting customers in the tri-state area, did you seek or receive any approval or communication from anyone at Penterra?
•  Were there any internal meetings at Vantage at which the tri-state expansion was discussed? If so, when were those meetings held? Who attended? Were minutes or notes taken?
•  Were there any internal emails at Vantage discussing the tri-state expansion? Can you identify any specific emails?
•  Request identification of specific emails, memos, or meeting notes. Cross-reference with documents already produced in discovery.
•  At any point during the planning or execution of the tri-state expansion, did anyone at Vantage raise concerns about whether the EDA permitted sales outside the six New England states?
•  If yes: Who raised concerns? When? What was said? How were those concerns addressed?
•  Did Lisa Petrangelo, as COO, approve the logistics arrangements necessary to support tri-state shipments — for example, warehousing, shipping routes, or customer onboarding procedures?
C. Specific Customers and Accounts in the Tri-State Area
This section is designed to build a comprehensive factual record of the scope of Vantage's unauthorized activity. Specific customer names, account opening dates, and product details will be essential for the damages analysis and for Penterra's motion for summary judgment.
•  Please identify each hospital, oncology clinic, specialty pharmacy, or other customer that you or your sales team contacted or sold Penterra products to in the state of New York.
•  Please identify each such customer in the state of New Jersey.
•  Please identify each such customer in the state of Pennsylvania.
•  How many total customers in the tri-state area purchased Penterra products through Vantage?
•  For each customer you have identified: When was the account opened? What products were sold — Oncalaris 20 mg, Oncalaris 40 mg, Renuvesta 5 mg, or some combination?
•  How were these customers identified and targeted? Did the sales team use a customer database, referral network, market research, or some other method?
•  Were any of these tri-state customers already purchasing Penterra products through other distribution channels before Vantage began selling to them?
•  Were you aware that Penterra maintained other distribution channels for its products, including national specialty pharmacy partners?
•  If yes: Did you know that Penterra had existing relationships with distributors serving the tri-state area?
D. Sales Process and Logistics
•  How were orders from tri-state customers processed? Were they processed through the same order management systems as orders from New England customers?
•  Who fulfilled and shipped orders to tri-state customers? Were shipments made from Vantage's existing warehouse or distribution center?
•  Were Penterra's distribution logistics systems involved in the fulfillment of tri-state orders?
•  Cross-reference Rachel Mendez testimony (November 19, 2021): Mendez testified that Penterra's systems directed Oncalaris shipments to Vantage only for delivery addresses within New England. If Penterra's systems were not directing product to Vantage for tri-state shipments, where was the product sourced?
•  Where was the product sourced for tri-state orders — from Penterra's standard supply chain, from Vantage's existing New England inventory, or from some other source?
•  Were there any differences in pricing, payment terms, or commercial processes for tri-state customers as compared to New England customers?
•  Did Vantage create any separate account codes, cost centers, or tracking mechanisms for tri-state sales?
Topic 4: Tri-State Revenue and Financial Details
A. Revenue Figures
The revenue questions are designed to confirm and elaborate upon the approximately $6.4 million figure reflected in Penterra's records, to disaggregate that figure by state and product, and to place the tri-state revenues in the context of Vantage's overall financial picture.
•  What were the total revenues from sales of Penterra products in the tri-state area from the commencement of tri-state sales through the present?
•  Penterra's records indicate approximately $6.4 million in tri-state revenues from approximately September 2020 through March 2021. Is that figure consistent with your records?
•  If the witness disputes the figure, press for the specific amount he contends is correct, the source of his information, and the basis for any discrepancy.
•  Can you break down the tri-state revenue by state — that is, what were the revenues from New York, from New Jersey, and from Pennsylvania, respectively?
•  Can you break down the tri-state revenue by product — that is, how much was attributable to Oncalaris 20 mg, how much to Oncalaris 40 mg, and how much, if any, to Renuvesta 5 mg?
•  Can you break down the tri-state revenue by quarter or month?
•  What percentage of Vantage's total revenue did the tri-state sales represent?
•  Reference: Vantage's total revenue for fiscal year 2021 was approximately $148 million, of which Penterra product revenue was approximately $67 million (approximately 45.3% of Vantage's total). The $6.4 million in tri-state sales represents approximately 9.6% of Vantage's total Penterra product revenue for the period.
•  What was Vantage's gross margin on tri-state Penterra product sales?
B. Growth Trajectory
•  Were tri-state sales of Penterra products growing on a month-over-month basis?
•  Were there any plans to expand further within the tri-state area — for example, by targeting additional customers, increasing order volumes with existing customers, or entering additional geographic sub-markets?
•  Were there any sales targets or projections established for the tri-state territory?
•  Did you prepare any forecasts, budgets, or sales plans specifically for the tri-state area?
•  If yes: When were those prepared? Who reviewed them? Are they documented?
C. Documentation.  
•  What sales reports, spreadsheets, CRM records, or other documents exist that track tri-state sales of Penterra products?
•  Were these documents produced in discovery in this litigation? If so, can you identify the Bates number ranges?
•  Who maintained these records — you, a member of your sales team, or someone in Vantage's finance or operations department?
•  Are there any documents that track tri-state sales that have not been produced in this litigation?
Topic 5: Communications with Penterra Personnel
A. Direct Communications with Penterra
This section explores whether Kopec had any direct contact with anyone at Penterra regarding the tri-state expansion. Any such communications — or the absence thereof — will be relevant to both the breach-of-contract claim and the course-of-dealing defense.
•  Mr. Kopec, did you have any direct communications — by email, telephone, text message, in person, or otherwise — with any employee or representative of Penterra Pharmaceuticals Corp. regarding Vantage's sales of Penterra products in the tri-state area?
•  Specifically, did you communicate with Steven Kapoor (VP, Commercial Operations at Penterra) about tri-state sales?
•  Did you communicate with Rachel Mendez (Director of Distribution & Logistics at Penterra) about tri-state sales?
•  Did you communicate with Jennifer Chao (General Counsel of Penterra) about tri-state sales?
•  Did you communicate with any other Penterra employee about tri-state sales?
•  If the witness identifies any communications: When did the communication occur? What was the method (email, phone, in-person)? What specifically was discussed? Did the Penterra employee express approval, disapproval, awareness, or anything else regarding Vantage's tri-state activities?
•  If the witness denies any such communications: So, to be clear, you never personally communicated with anyone at Penterra about the fact that Vantage was selling Penterra products in New York, New Jersey, or Pennsylvania?
B. Penterra's Cease-and-Desist Letter
•  Mr. Kopec, on March 8, 2021, Jennifer Chao, General Counsel of Penterra, sent a cease-and-desist letter to Donald Farnham at Vantage demanding that Vantage cease all sales and distribution of Penterra products outside the six New England states identified in Exhibit A to the EDA. Are you aware of that letter?
•  Mark the March 8, 2021 cease-and-desist letter as a deposition exhibit.
•  When did you first learn of the cease-and-desist letter? What is the earliest date on which you became aware of it?
•  Who informed you of the letter? Was it Farnham? Petrangelo? Counsel?
•  What was your reaction upon learning of the letter?
•  Following receipt of the cease-and-desist letter, did Vantage cease tri-state sales of Penterra products?
•  If yes: When? On what date did tri-state sales cease?
•  If no: Why not? On whose instructions?
•  What instructions, if any, did you receive from Donald Farnham or Lisa Petrangelo after the cease-and-desist letter was received?
•  After March 8, 2021, did you personally continue to solicit orders from, or service, customers in the tri-state area?
•  After March 8, 2021, did any member of your sales team continue to solicit orders from, or service, customers in the tri-state area?
•  Mark Vantage's March 22, 2021 response letter from Kenneth M. Rourke as a deposition exhibit.
•  Have you seen the March 22, 2021 letter from Vantage's counsel, Kenneth M. Rourke, responding to the cease-and-desist letter? Were you consulted in the preparation of that response?
Topic 6: Knowledge of Meridian National Distributors, Inc.
This topic addresses Kopec's awareness that Penterra was separately developing a distribution relationship with Meridian National Distributors, Inc. for the tri-state territory — a fact that is relevant both to Penterra's damages theory and to Vantage's understanding that it was not the authorized distributor in those states.
•  Mr. Kopec, are you aware of a company called Meridian National Distributors, Inc.?
•  Are you aware that Penterra Pharmaceuticals Corp. executed a term sheet with Meridian National Distributors, Inc. on or about February 15, 2021 for the distribution of Oncalaris in the tri-state area — specifically New York, New Jersey, and Pennsylvania?
•  When did you first learn about the Meridian relationship? What was the source of that information?
•  Did the knowledge that Penterra was developing a distribution relationship with Meridian affect Vantage's tri-state sales strategy in any way?
•  Was the Meridian relationship discussed internally at Vantage? If so, when, with whom, and what was said?
•  Did you understand that Penterra's engagement of Meridian for the tri-state area was inconsistent with Vantage's claim to have distribution rights in those states?
Topic 7: Vantage's Course-of-Dealing Argument
A. Probing the Narrative
Vantage's primary defense — apart from the Kapoor Email — is a course-of-dealing argument. Vantage claims that Penterra's "failure to object" to tri-state shipments beginning in late 2019 constituted acquiescence, effectively expanding the Territory through the parties' conduct. This section is designed to probe the factual foundation of that argument and expose its weaknesses.
•  Mr. Kopec, is it your understanding that Penterra knew about and approved Vantage's tri-state sales?
•  What is the basis for that understanding? Can you identify any specific communication from Penterra expressing awareness or approval?
•  Did you personally ever ask anyone at Penterra whether Vantage's tri-state sales were permissible under the EDA?
•  Did you ever receive any written confirmation from any person at Penterra that tri-state sales were authorized?
•  Did you ever receive any oral confirmation from any person at Penterra that tri-state sales were authorized?
•  Is it your position that Penterra's silence — its failure to object — constituted approval?
•  Were you aware that Section 13.1 of the EDA requires that any amendment to the agreement be in writing and signed by both parties?
•  Mark the relevant page of the EDA and have the witness read Section 13.1 on the record.
•  In light of Section 13.1, was there ever a written amendment to the EDA, signed by both Penterra and Vantage, expanding the Territory to include New York, New Jersey, or Pennsylvania?
•  Were you aware that Section 14.8 of the EDA is an integration clause, providing that the EDA constitutes the entire agreement between the parties and supersedes all prior discussions, negotiations, and agreements?
•  Mark the relevant page and have the witness read Section 14.8 on the record.
•  In light of Section 14.8, did you understand that informal discussions or emails could not modify the terms of the EDA?
B. Prior Conduct
•  Before September 2020, had Vantage ever sold or shipped Penterra products outside the six New England states identified in Exhibit A?
•  Were there any de minimis, inadvertent, or accidental out-of-territory shipments at any time? If so, when, and to what addresses?
•  Were there any conversations in 2018 or 2019 between Vantage and Penterra about expanding the Territory — that is, any follow-up to the Kapoor Email's suggestion to "circle back mid-year"?
•  If yes: When did those conversations occur? Who participated? What was discussed? What was the outcome?
•  If no: So the "circle back mid-year" follow-up suggested in the Kapoor Email never occurred?
•  Was there ever a formal follow-up meeting, negotiation session, or written exchange between Vantage and Penterra regarding tri-state expansion?
•  Between January 12, 2018 (the date of the Kapoor Email) and September 2020 (the approximate commencement of tri-state sales), did Penterra ever provide any further communication — written or oral — indicating that the Territory had been or would be expanded?
Topic 8: Damages and Counterclaim Basis
A. Vantage's Threatened $35 Million Counterclaim
Vantage, through its counsel's March 22, 2021 letter, has threatened a counterclaim of $35 million. This section explores Kopec's knowledge of the factual and financial basis for that figure.
•  Mr. Kopec, are you aware that Vantage has threatened a counterclaim in this litigation in the amount of approximately $35 million?
•  What is your understanding of the basis for the $35 million figure?
•  Did you personally provide any information, data, projections, or calculations that were used in determining or supporting the $35 million damages figure?
•  Were there any lost-profits analyses, customer projections, revenue forecasts, or financial models that you contributed to, reviewed, or approved in connection with the threatened counterclaim?
•  If yes: Identify those documents. When were they prepared? By whom? What assumptions did they rely on?
B. Investment and Reliance
Vantage may argue that it made substantial investments in the tri-state area in reliance on the purported expanded territory. This section probes the nature and extent of those investments.
•  Did Vantage make any specific investments in infrastructure, personnel, or customer relationships in the tri-state area in reliance on the alleged expanded territory?
•  Were new sales representatives hired specifically for the tri-state area? If so, how many? When? At what cost?
•  Were new warehousing or logistics arrangements made to support tri-state distribution? If so, describe those arrangements and their cost.
•  Were marketing materials — brochures, promotional materials, presentation decks, or similar items — developed specifically for tri-state customers? If so, at what cost?
•  Were there any lease agreements, equipment purchases, or other capital expenditures associated with the tri-state expansion?
•  Can you quantify the total investment that Vantage made in connection with the tri-state expansion?
•  When were these investments made? Were they made before or after the January 12, 2018 Kapoor Email? Before or after September 2020?
Topic 9: Cleanup and Catch-All Questions
This final section ensures that no relevant facts are left unexplored and that the record is complete.
•  Mr. Kopec, are there any other documents, communications, or facts that you believe are relevant to Vantage's claim that the Territory under the EDA includes the tri-state area — New York, New Jersey, and Pennsylvania — that we have not discussed today?
•  Are there any documents or communications that you are aware of that support the position that Penterra authorized Vantage to sell or distribute Penterra products in the tri-state area, beyond those we have already discussed?
•  Prior to today's deposition, have you discussed your anticipated testimony with anyone other than your attorneys?
•  If yes: With whom? When? What was discussed?
•  In preparation for this deposition, did you review any documents?
•  If yes: What documents did you review? When did you review them? Who provided them to you?
•  Is there anything that you have testified to today that you wish to correct or clarify?
•  Is there anything you wish to add to your testimony?
•  Reserve the right to recall the witness if necessary, subject to the close of fact discovery on January 14, 2022.
III. STRATEGIC NOTES AND EXAMINATION TIPS
The following section contains internal strategic guidance for the examining attorney and second chair. This section is attorney work product and should not be shared with opposing counsel or the witness under any circumstances.
A. Key Admissions to Secure
The following five admissions are the primary targets of this deposition. Every line of questioning above should be oriented toward securing one or more of these admissions:
1.  Kopec understood or was told that the EDA Territory was limited to New England. Alternatively, if Kopec claims he never reviewed the EDA or Exhibit A, that itself is a powerful admission — it demonstrates that Vantage's Outside Sales Director proceeded to sell products in states outside the contractual Territory without ever confirming that such sales were authorized.
2.  No one at Penterra ever provided Kopec with written authorization to sell in the tri-state area. This admission, combined with the "prior written consent" requirement in Section 2.3, is dispositive on the breach-of-contract claim as applied to Kopec's activities.
3.  The decision to sell in the tri-state area was made internally at Vantage without Penterra's express written approval. This is critical for establishing willfulness and for defeating Vantage's reliance and good-faith defenses.
4.  Kopec was aware of, or should have been aware of, the territorial restriction in Section 2.3. This admission supports Penterra's position that Vantage knowingly exceeded the scope of its distribution rights.
5.  Tri-state revenues were approximately $6.4 million from September 2020 through March 2021. Confirming this figure on the record through Vantage's own sales director strengthens the damages foundation for both Penterra's breach claim and any disgorgement arguments.
B. Anticipated Objections and Difficulties
•  Attorney-client privilege. Opposing counsel (Rourke or Fontaine) is likely to instruct the witness not to answer questions regarding communications with counsel that occurred after the dispute arose — particularly communications following the March 8, 2021 cease-and-desist letter. Do not press on post-dispute privilege communications, but ensure that pre-dispute factual communications (as opposed to legal advice) are explored thoroughly. If opposing counsel instructs the witness not to answer on grounds of privilege for pre-dispute business communications, note the instruction on the record and flag for potential motion to compel.
•  Deference to Farnham. Kopec may attempt to deflect substantive questions by stating that Farnham or Petrangelo would be better positioned to answer. While some deference may be appropriate for questions about the negotiation of the EDA (in which Kopec likely did not participate), Kopec should not be permitted to avoid answering questions about his own knowledge, his own actions, his own understanding of the Territory, or communications in which he participated. Press for Kopec's personal knowledge and firsthand involvement. Use formulations such as: "I'm not asking what Mr. Farnham knew — I'm asking what you knew."
•  "Just following orders" defense. Kopec may claim that he was simply following instructions from Farnham regarding the tri-state expansion. This testimony is useful regardless of which direction it goes: if Kopec acted on his own initiative, it demonstrates his independent knowledge and decision-making; if he was directed by Farnham, it further implicates Farnham's intent and knowledge, reinforcing the testimony already obtained in the October 18, 2021 Farnham deposition.
•  Vague or evasive answers. If Kopec provides vague, non-responsive, or evasive answers, the examining attorney should: (a) repeat the question; (b) ask the witness to answer "yes" or "no" where appropriate; (c) note on the record that the witness has not answered the question; and (d) if necessary, ask the court reporter to read back the question.
C. Coordination with MSJ Strategy
This deposition is being taken with the specific objective of generating testimony that will support Penterra's anticipated motion for summary judgment, which is to be filed on or before February 11, 2022. The following categories of testimony are expected to be most useful in the MSJ briefing:
•  Admissions regarding the absence of any written authorization from Penterra for tri-state sales.
•  Testimony confirming the scope of Exhibit A and the territorial limitation to the six New England states.
•  Testimony regarding the timing of the commencement of tri-state sales (September 2020 or later), which undermines the course-of-dealing argument.
•  Confirmation of the approximately $6.4 million in tri-state revenue.
•  Testimony regarding the Kapoor Email — specifically, any admission that the email did not constitute a formal amendment or written consent, or any testimony that Kopec never saw the email until after the dispute arose.
The close of fact discovery is January 14, 2022. This is the last currently scheduled deposition. It is essential that all factual gaps are closed during this examination, as there will be no opportunity for a follow-up deposition absent leave of court.
D. Document Handling
•  All exhibits should be pre-marked before the deposition begins. Coordinate numbering with the court reporter.
•  Bring a minimum of five copies of each exhibit: one for the examining attorney (Brinkley), one for second chair (Gallagher), one for the witness, one for opposing counsel, and one for the court reporter.
•  The following documents must be available and pre-marked:
•  Exhibit A to the EDA (Territory definition)
•  Sections 2.1, 2.3, 13.1, and 14.8 of the EDA (individual pages or relevant excerpts)
•  Kapoor Email (January 12, 2018)
•  Penterra's cease-and-desist letter (March 8, 2021)
•  Vantage's response letter from Rourke (March 22, 2021)
•  Relevant tri-state sales records and shipping records (with Bates numbers)
•  Vantage organizational chart
•  Selected internal Vantage emails regarding tri-state strategy (with Bates numbers)
•  Patrick Gallagher (second chair) will manage real-time document retrieval and organization during the examination. Coordinate seating arrangement so that Gallagher is positioned next to Brinkley with immediate access to the document binders.
•  If previously unidentified documents are referenced by the witness during testimony, note the description and request production if not already in the discovery record.
IV. ESTIMATED DURATION AND LOGISTICS
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This document was prepared in anticipation of litigation by and at the direction of counsel for Penterra Pharmaceuticals Corp. and is protected by the attorney work product doctrine and/or the attorney-client privilege. This document should not be disclosed to any person outside the litigation team without the express written consent of Calderwood & Harkness LLP.
Prepared by:
________________________________________
Patrick Gallagher Associate Calderwood & Harkness LLP 1 Federal Street, 35th Floor Boston, MA 02110
Date: December 1, 2021
Reviewed and Approved by:
________________________________________
Hannah Brinkley Lead Associate Calderwood & Harkness LLP 1 Federal Street, 35th Floor Boston, MA 02110
Date: ________
Prepared by: | Patrick Gallagher, Associate, Calderwood & Harkness LLP
Reviewed by: | Hannah Brinkley, Lead Associate, Calderwood & Harkness LLP
Date prepared: | December 1, 2021
Matter: | Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC
Docket No.: | 2184-CV-01537-BLS (MA Superior Court, Business Litigation Session, Suffolk County)
C&H Matter No.: | 1018-00007
Client: | Penterra Pharmaceuticals Corp.
Deponent: | Brian Kopec, Outside Sales Director, Vantage Medical Distribution, LLC
Deposition date: | December 7, 2021
Deposition location: | Offices of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, MA 02110 (or as agreed with opposing counsel)
Opposing counsel anticipated: | Kenneth M. Rourke and/or Alicia Fontaine, Hargrove, Sinclair & Polk LLP, 200 Ashbury Asset Advisors, Suite 1800, Boston, MA 02109
Examining attorney: | Hannah Brinkley (primary); Patrick Gallagher (second chair / documents)
Item | Detail
Estimated deposition length | 4–5 hours (full day reserved through 5:00 p.m.)
Court reporter | Confirmed — Beacon Court Reporting Services
Videographer | To be determined; confirm with Hannah Brinkley by December 3, 2021
Location | Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, MA 02110
Conference room | Conference Room 35A (reserved)
Close of fact discovery | January 14, 2022
Note | This is the last currently scheduled deposition. No opportunity for follow-up deposition absent leave of court.

ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL

DEPOSITION OUTLINE

I. BACKGROUND AND OBJECTIVES

II. EXAMINATION OUTLINE BY TOPIC AREA

Record

Parties

Dates

Amounts