1018-00007 · Penterra Pharmaceuticals Corp · Discovery

first-set-of-interrogatories-to-vantage.docx DOCUMENT Litigation

12 / 35 ← → ✕

COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION SUFFOLK COUNTY

PENTERRA PHARMACEUTICALS CORP., Plaintiff,

VANTAGE MEDICAL DISTRIBUTION, LLC, Defendant.

Docket No. 2184-CV-01537-BLS

PLAINTIFF PENTERRA PHARMACEUTICALS CORP.'S FIRST SET OF INTERROGATORIES TO DEFENDANT VANTAGE MEDICAL DISTRIBUTION, LLC

Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "Plaintiff"), by and through its attorneys, Calderwood & Harkness LLP, hereby propounds the following First Set of Interrogatories upon Defendant Vantage Medical Distribution, LLC ("Vantage" or "Defendant"), pursuant to Mass. R. Civ. P. 33. Vantage is requested to answer each Interrogatory separately and fully, in writing and under oath, within thirty (30) days of service of these Interrogatories, in accordance with Mass. R. Civ. P. 33(a).

These Interrogatories are continuing in nature. If, after serving its answers, Vantage obtains additional or different information responsive to any of the Interrogatories set forth below, Vantage is required to supplement its responses promptly and seasonably in accordance with Mass. R. Civ. P. 26(e).

DEFINITIONS

As used in these Interrogatories, the following terms shall have the meanings set forth below:

1. "Agreement" or "EDA" means the Exclusive Distribution Agreement dated July 1, 2017 between Penterra Pharmaceuticals Corp. (referred to therein as "Supplier") and Vantage Medical Distribution, LLC (referred to therein as "Distributor"), including all Exhibits, Schedules, Appendices, and Attachments thereto, together with any amendments, modifications, supplements, or addenda thereto.

2. "Territory" means the geographic territory defined in Exhibit A to the Agreement, consisting of the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the "New England States").

3. "Tri-State Area" means the states of New York, New Jersey, and Pennsylvania.

4. "Products" means the pharmaceutical products defined in the Agreement, specifically: (a) Oncalaris® (pegvisomant-axel), 20 mg and 40 mg vials; and (b) Renuvesta® (cilosporin-beta), 5 mg capsules.

5. "Kapoor Email" means the email dated January 12, 2018, from Steven Kapoor, Vice President of Commercial Operations at Penterra, to Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, together with any attachments thereto.

6. "You," "Your," or "Vantage" means Defendant Vantage Medical Distribution, LLC, and includes its officers, directors, members, managers, employees, agents, representatives, accountants (including Cranmer, Hodges & Associates, P.C.), attorneys, subsidiaries, affiliates, predecessors, successors, assigns, and any other Person acting or purporting to act on Vantage's behalf.

7. "Penterra" means Plaintiff Penterra Pharmaceuticals Corp., and includes its officers, directors, employees, agents, representatives, subsidiaries, affiliates, predecessors, successors, and assigns.

8. "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, governmental entity, unincorporated organization, or any other legal entity.

9. "Document" or "Documents" shall be defined as broadly as permitted under Mass. R. Civ. P. 34, and includes all writings of every kind, recordings, photographs, electronically stored information ("ESI") in any format or medium, and tangible items, including but not limited to correspondence, memoranda, notes, emails, text messages, instant messages, calendar entries, reports, analyses, spreadsheets, presentations, contracts, invoices, purchase orders, shipping records, financial statements, ledgers, meeting minutes, board resolutions, and drafts of any of the foregoing, whether in hard copy or electronic form.

10. "Communication" means any oral or written exchange of information between two or more Persons, including but not limited to in-person conversations, telephone calls, video conferences, voicemail messages, emails, text messages, instant messages, letters, memoranda, facsimiles, and any other form of transmission, conveyance, or exchange of information, whether formal or informal.

11. "Identify" shall have the following meanings depending on context:

(a) When used with respect to a Person, "Identify" means to state the Person's full legal name, title or position (both at the time of the relevant events and presently), employer or affiliation, current business address, telephone number, and relationship to Vantage or to the subject matter of the Interrogatory.

(b) When used with respect to a Document, "Identify" means to state the Document's title or heading (if any), author(s), recipient(s) and all persons copied, date of creation or transmission, general subject matter, number of pages or approximate length, and present location or custodian.

(c) When used with respect to a Communication, "Identify" means to state the date of the Communication, the form of the Communication (e.g., oral, written, electronic), the identity of all participants or parties to the Communication, the general subject matter of the Communication, and the substance of the Communication.

12. "Relate to" or "Relating to" means concerning, referring to, describing, evidencing, reflecting, constituting, mentioning, embodying, pertaining to, connected with, commenting on, responsive to, or having any logical or factual connection with the subject matter referenced, in whole or in part, whether directly or indirectly.

INSTRUCTIONS

1. Each Interrogatory shall be answered separately and fully in accordance with Mass. R. Civ. P. 33. If any Interrogatory cannot be answered in full, Vantage shall answer to the fullest extent possible and shall state the specific reason(s) for any inability to provide a more complete answer, including but not limited to any ongoing investigation, unavailability of records, or other impediment to a complete response.

2. If Vantage objects to any Interrogatory or any part thereof, Vantage shall state with specificity the grounds for each objection. If an objection is made to only a part of an Interrogatory, Vantage shall answer the remaining, non-objectionable part of the Interrogatory fully and completely, and shall not use an objection to any portion of an Interrogatory as a basis for declining to respond to the Interrogatory in its entirety.

3. If Vantage withholds any information responsive to any Interrogatory on the basis of a claim of attorney-client privilege, work-product protection, or any other privilege, Vantage shall, for each item of information withheld: (a) identify the privilege or protection claimed; (b) describe the nature of the information withheld in sufficient detail to permit Penterra and the Court to evaluate the claim of privilege, without revealing the privileged or protected content; and (c) provide all information required by Mass. R. Civ. P. 26(b)(5), including the date, author, recipients, general subject matter, and the basis upon which the privilege or protection is asserted.

4. These Interrogatories are deemed continuing obligations pursuant to Mass. R. Civ. P. 26(e). Vantage must seasonably supplement, amend, or correct its responses if it learns at any time that a prior response was incomplete, inaccurate, or incorrect, or if additional responsive information becomes available.

5. Where an Interrogatory calls for information within Vantage's "possession, custody, or control," such phrase shall be construed broadly and includes information known to, held by, or reasonably accessible to Vantage's officers, directors, members, managers, employees, agents, representatives, accountants, and attorneys (to the extent such information is not protected by a recognized privilege). Vantage shall make a reasonable and diligent inquiry of all such Persons and sources in order to provide full and complete answers.

6. All references to time periods in these Interrogatories are inclusive of the dates specified (i.e., references to a period "from" one date "to" another date include both the first and last dates identified).

INTERROGATORIES

INTERROGATORY NO. 1: Identification of Persons with Knowledge of the Territory

Identify each Person who participated in, was present during, or has knowledge of the negotiation, drafting, review, or execution of the Agreement, including but not limited to any discussions, negotiations, or drafting relating to the definition of the Territory in Exhibit A to the Agreement.

For each such Person, state:

(a) the Person's full name;

(b) the Person's title or position at the time of the relevant events (including employer or entity affiliation at that time);

(d) the nature and extent of their knowledge of or involvement in the negotiation, drafting, review, or execution of the Agreement (including, without limitation, whether the Person participated in discussions regarding the geographic scope of the Territory, the inclusion or exclusion of any particular states or regions from the Territory, or the selection of the states listed in Exhibit A); and

(e) whether the Person is currently employed by, affiliated with, or otherwise associated with Vantage, and if not, the date on which such employment or affiliation ended and the circumstances of its termination.

INTERROGATORY NO. 2: Vantage's Understanding of the Territory at the Time of Execution

Describe in detail Vantage's understanding, as of the effective date of the Agreement (July 1, 2017), of the geographic scope of the "Territory" as defined in Exhibit A to the Agreement, including:

(a) the specific states, regions, or geographic areas that Vantage understood to be encompassed within the Territory;

(b) whether Vantage understood the Territory to include any states, regions, or geographic areas other than Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, and if so, identify each such state, region, or area and explain the basis for Vantage's understanding;

(c) the basis for Vantage's understanding of the geographic scope of the Territory, including any Documents, Communications, representations, negotiations, drafts, or other information upon which Vantage relies in forming or supporting that understanding; and

(d) the identity of each Person who communicated to Vantage, or to any officer, director, member, manager, employee, or agent of Vantage, the scope, boundaries, or meaning of the Territory, and the substance of each such communication.

INTERROGATORY NO. 3: Basis for Claiming the Kapoor Email Constituted Written Consent

State with specificity the factual and legal basis for Vantage's contention, as set forth in its Answer and Counterclaims, that the January 12, 2018 email from Steven Kapoor, Vice President of Commercial Operations at Penterra, to Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, constituted "prior written consent" within the meaning of Section 2.3 of the Agreement to distribute Products in the Tri-State Area, including:

(a) the specific language, sentences, phrases, or words in the Kapoor Email upon which Vantage relies as constituting or evidencing "prior written consent" to distribute Products outside the Territory;

(b) any prior or subsequent Communications between any Penterra representative and any Vantage representative that Vantage contends provide context for, support, explain, or are otherwise relevant to its interpretation of the Kapoor Email, including the date, participants, form, and substance of each such Communication;

(c) any actions taken by Vantage in reliance on the Kapoor Email, including but not limited to marketing efforts, personnel hiring or reassignment, facility acquisition or lease, customer solicitation, or actual shipment or sale of Products in the Tri-State Area, and the dates on which each such action was taken;

(d) the identity of each Person at Vantage or acting on behalf of Vantage who received, reviewed, forwarded, discussed, or otherwise had knowledge of the Kapoor Email, and for each such Person, state when and how they became aware of the Kapoor Email and the substance of any discussion regarding the Kapoor Email; and

(e) whether Vantage contends that the Kapoor Email, standing alone or in combination with other facts or circumstances, also constituted an amendment to Exhibit A to the Agreement within the meaning of Section 13.1 of the Agreement, and if so, state with specificity the factual and legal basis for that contention, including any argument that the requirements of Section 13.1 were satisfied or excused.

INTERROGATORY NO. 4: Course-of-Dealing Claim

Describe in detail all facts upon which Vantage bases its claim or defense that a course of dealing, course of performance, or pattern of conduct between Penterra and Vantage effected a modification of Exhibit A to the Agreement so as to include the Tri-State Area within the Territory, or otherwise altered, supplemented, or expanded Vantage's rights under the Agreement with respect to the geographic scope of its distribution authority, including:

(a) each specific instance, with precise dates, in which Vantage shipped, delivered, sold, offered to sell, or otherwise distributed Products to any customer, healthcare facility, pharmacy, or other entity located outside the six New England States that comprise the Territory, including the identity of the customer, the Products and quantities involved, and the revenue received;

(b) each specific instance, with precise dates, in which Vantage contends that Penterra or any of its officers, directors, employees, agents, or representatives had actual or constructive knowledge of such out-of-Territory shipments, deliveries, sales, or other distribution activities, and the specific factual basis for Vantage's contention that Penterra had such knowledge (including any Communications, reports, invoices, purchase orders, or other Documents that would have put Penterra on notice of such activities);

(c) each specific instance, with precise dates, in which Vantage contends that Penterra acquiesced in, ratified, consented to, encouraged, or failed to object to such out-of-Territory distribution activity, including any Communications, conduct, or omissions by Penterra that Vantage characterizes as acquiescence, ratification, or consent;

(d) the identity of each Person at Penterra whom Vantage contends had knowledge of, participated in, authorized, acquiesced in, or failed to object to out-of-Territory sales or distribution by Vantage, and for each such Person, state the basis for Vantage's contention that such Person had such knowledge or engaged in such conduct; and

(e) all Documents and Communications upon which Vantage relies in support of its course-of-dealing contention, including but not limited to purchase orders, invoices, shipping records, correspondence, emails, meeting minutes, reports, or any other records.

INTERROGATORY NO. 5: Communications with Penterra Regarding Territory Expansion

Identify each Communication between any representative of Vantage and any representative of Penterra, from July 1, 2017 to the present, Relating to: (a) the expansion of the Territory beyond the six New England States; (b) the distribution, sale, shipment, or delivery of Products in the Tri-State Area; or (c) any modification, amendment, supplement, or waiver of Exhibit A or Section 2.1 of the Agreement.

For each such Communication, state:

(i) the date of the Communication;

(ii) the form of the Communication (e.g., email, telephone call, in-person meeting, video conference, letter, text message, or other);

(iii) the identity of all participants in or parties to the Communication (including any persons copied on written Communications);

(iv) the substance of the Communication, described with sufficient detail to convey its content and meaning; and

(v) whether any written record of the Communication exists (including but not limited to emails, notes, memoranda, or minutes), and if so, Identify each such record.

INTERROGATORY NO. 6: Decision to Commence Tri-State Distribution

Describe in detail the circumstances under which Vantage began distributing Products in the Tri-State Area on or about September 14, 2020, including:

(a) the identity of the Person(s) at Vantage who authorized, directed, approved, or were involved in the decision to commence distribution of Products in the Tri-State Area, including their titles and roles within Vantage;

(b) the date on which the decision to commence distribution of Products in the Tri-State Area was made, and the date on which Vantage first took affirmative steps to implement that decision;

(c) the specific internal discussions, meetings, analyses, memoranda, business plans, financial projections, or other deliberations that preceded or informed the decision to commence tri-state distribution, including for each: the date(s), participants, subject matter, conclusions reached, and any Documents generated;

(d) whether Vantage sought or obtained any legal advice regarding its right to distribute Products in the Tri-State Area prior to commencing such distribution, and if so, identify the attorney(s) or law firm(s) consulted and the date(s) of consultation (without disclosing the substance of any communication protected by the attorney-client privilege or work-product doctrine); and

(e) whether Vantage provided any written or oral notice to Penterra, or to any officer, director, employee, agent, or representative of Penterra, prior to commencing distribution of Products in the Tri-State Area, and if so, Identify each such notice, including the date, form, sender, recipient, and substance thereof.

INTERROGATORY NO. 7: Persons Involved in Tri-State Sales Operations

Identify each Person employed by, retained by, affiliated with, or acting on behalf of Vantage who was involved in the solicitation, sale, distribution, delivery, marketing, promotion, or customer service of Products in the Tri-State Area from September 14, 2020 to the present.

For each such Person, state:

(a) full name;

(b) title or position at Vantage (or, if not an employee, the nature of the Person's relationship with Vantage);

(c) specific role in tri-state sales, distribution, or marketing operations, including a description of the Person's duties and responsibilities with respect to the Tri-State Area;

(d) the geographic area(s) in which the Person operated, including whether the Person also operated within the Territory; and

(e) the dates of the Person's involvement in tri-state operations, including the start date and, if applicable, end date.

INTERROGATORY NO. 8: Tri-State Customers

Identify each customer (including, without limitation, hospitals, oncology clinics, physician practices, infusion centers, specialty pharmacies, retail pharmacies, group purchasing organizations, and any other healthcare facility, provider, or entity) to whom Vantage shipped, delivered, sold, or offered to sell Products in the Tri-State Area from September 14, 2020 to the present.

For each such customer, state:

(a) the customer's full legal name and business address;

(b) the date(s) of each shipment, delivery, sale, or offer to sell;

(c) the Product(s) shipped, delivered, sold, or offered, including the specific product name, dosage form, strength (i.e., Oncalaris® 20 mg, Oncalaris® 40 mg, or Renuvesta® 5 mg), and quantity for each transaction; and

(d) the revenue received by Vantage for each such transaction, including the unit price and total amount billed or collected.

INTERROGATORY NO. 9: Tri-State Shipments and Revenues

State the total quantity (in units) and total dollar value (in revenue received or billed) of Products shipped, delivered, or sold by Vantage in the Tri-State Area from September 14, 2020 to the present, broken down by:

(a) month (stating separately the figures for each calendar month from September 2020 through the most recent month for which data is available);

(b) state (New York, New Jersey, and Pennsylvania, stated separately);

(d) total aggregate revenue and total aggregate units across all months, states, and Products.

In addition, state whether the approximately $6.4 million in tri-state revenues reflected in Vantage's internal sales records and reports for the period September 2020 through March 2021 is accurate, and if Vantage contends that figure is not accurate, state the correct figure and the factual basis for any discrepancy, and Identify all Documents supporting Vantage's position.

INTERROGATORY NO. 10: Vantage's Minimum Purchase Commitment

For each fiscal year from FY 2018 through FY 2021, state the total dollar value (at wholesale acquisition cost, or "WAC") of Oncalaris® purchased by Vantage from Penterra, broken down by:

(a) purchases of Oncalaris® attributable to distribution within the Territory (i.e., the six New England States); and

(b) purchases of Oncalaris® attributable to distribution within the Tri-State Area (i.e., New York, New Jersey, and Pennsylvania).

Confirm whether the following purchase figures, as reflected in Penterra's records, are accurate:

• FY 2018: $11.2 million in total Oncalaris® purchases;

• FY 2019: $14.8 million in total Oncalaris® purchases;

• FY 2020: $18.3 million in total Oncalaris® purchases; and

• FY 2021 (through March 31, 2021): $16.1 million in total Oncalaris® purchases.

If Vantage contends that any of the foregoing figures is inaccurate, provide the correct figure for each fiscal year and Identify all Documents supporting Vantage's position.

Further, state whether Vantage contends that its purchases of Products for distribution in the Tri-State Area were credited toward, or should have been credited toward, its $9.5 million annual minimum purchase commitment under Section 5.2 of the Agreement. If so, state the factual and legal basis for that contention, including the specific language of the Agreement or other basis upon which Vantage relies.

INTERROGATORY NO. 11: Damages Claimed in Counterclaims

State with specificity the factual and financial basis for the $35 million in damages asserted in Vantage's counterclaims for breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel, including:

(a) the methodology used to calculate the $35 million damages figure, including whether the figure was derived from a discounted cash flow analysis, a lost profits model, a market comparison, a multiples-based approach, or any other methodology, and if a combination of methodologies was used, state the amount attributable to each;

(b) each category of damages claimed (e.g., lost profits, lost revenues, expectation damages, reliance damages, restitution, consequential damages, incidental damages, or other categories), with the specific dollar amount attributed to each category;

(c) the time period over which lost profits, lost revenues, or other forward-looking damages are calculated, including the projected start date and end date of the damages period and the basis for selecting that time period;

(d) the assumptions underlying the damages calculation, including but not limited to projected revenues, anticipated costs of goods sold, operating expenses, profit margins, growth rates, discount rates, market share assumptions, customer retention rates, and any other material assumptions;

(e) the identity of each Person who participated in the preparation, review, or approval of the damages calculation, including such Person's role in the process;

(f) all Documents, financial models, spreadsheets, expert analyses, reports, or other materials supporting, reflecting, or used in connection with the damages calculation; and

(g) whether Vantage retained or consulted with any expert, consultant, economist, accountant, or other professional to assist in calculating damages, and if so, Identify each such expert or consultant, state the date of retention, the subject matter and scope of the engagement, and the conclusions of any report, analysis, or opinion prepared.

INTERROGATORY NO. 12: Reliance and Investments in Tri-State Operations

Describe in detail all investments, expenditures, commitments, and obligations made or incurred by Vantage in reliance on its claim of a right to distribute Products in the Tri-State Area, including:

(a) the nature and amount of each expenditure, investment, or commitment (including but not limited to warehouse or office space leases, facility construction or build-out costs, equipment purchases or leases, personnel hiring or relocation costs, salaries and benefits for tri-state personnel, marketing and advertising expenditures, regulatory or licensing costs, insurance costs, and any other capital or operating expenditures);

(b) the date(s) on which each expenditure, investment, or commitment was made or incurred;

(c) whether each such expenditure, investment, or commitment was made before or after the Kapoor Email of January 12, 2018, and, if after, whether Vantage contends the expenditure was made in reliance on the Kapoor Email;

(d) whether each such expenditure, investment, or commitment was made before or after September 14, 2020 (the date on which Vantage commenced distribution of Products in the Tri-State Area); and

(e) all Documents evidencing, reflecting, or Relating to each expenditure, investment, or commitment, including but not limited to contracts, lease agreements, invoices, receipts, purchase orders, payroll records, budgets, and financial statements.

INTERROGATORY NO. 13: Knowledge of Meridian Term Sheet

State whether Vantage, or any of its officers, directors, members, managers, employees, agents, or representatives, had knowledge, prior to the commencement of this action, of Penterra's execution of a term sheet with Meridian National Distributors, Inc. on or about February 15, 2021 for the distribution of Oncalaris® in the Tri-State Area.

If so, state:

(a) the date on which Vantage or any representative of Vantage first learned of the existence of the Meridian term sheet or of Penterra's negotiations or dealings with Meridian National Distributors, Inc.;

(b) the source of that information, including the identity of the Person(s) who provided or communicated such information to Vantage;

(c) the substance of what Vantage learned regarding the Meridian term sheet, including any details about the terms, scope, territory, products, or timing of Penterra's arrangement with Meridian; and

(d) a description of any actions taken by Vantage in response to learning of the Meridian term sheet, including but not limited to any Communications with Penterra or Meridian, any changes to Vantage's distribution activities or business plans, any legal actions or demands, or any other responsive measures.

INTERROGATORY NO. 14: Other Agreements or Understandings Regarding Territory

Identify all agreements, understandings, side letters, memoranda of understanding, term sheets, letters of intent, or other documents or instruments (other than the Agreement itself and the Kapoor Email) between Penterra and Vantage, or between any representatives, officers, directors, employees, or agents thereof, that Vantage contends relate to, bear upon, modify, supplement, or otherwise affect the scope of the Territory or Vantage's right to distribute Products outside the six New England States.

For each such document or instrument, state:

(a) the date of the document or instrument;

(b) the parties or signatories thereto;

(c) the subject matter and substance of the document or instrument, including its relevance to the scope of the Territory; and

(d) the present location or custodian of the document or instrument.

INTERROGATORY NO. 15: Section 13.1 — Signed Written Amendments

Identify each written instrument signed by both Penterra (or an authorized representative of Penterra) and Vantage (or an authorized representative of Vantage) that Vantage contends constitutes an amendment, modification, supplement, or waiver of any provision of the Agreement within the meaning of Section 13.1 of the Agreement.

For each such instrument, state:

(a) the date of the instrument;

(b) the specific provision(s) of the Agreement that were amended, modified, supplemented, or waived;

(d) the identity of the signatories on behalf of each party.

If Vantage contends that no written instrument signed by both parties exists that constitutes an amendment, modification, or waiver under Section 13.1, but that the Agreement was nevertheless modified, amended, supplemented, or waived through other means (including but not limited to oral agreement, course of dealing, course of performance, waiver by conduct, estoppel, or otherwise), describe those means in detail and Identify all facts, Documents, and Communications upon which Vantage relies in support of such contention.

INTERROGATORY NO. 16: Vantage's Response to Penterra's Cease-and-Desist Letter

Describe in detail the circumstances surrounding Vantage's receipt of and response to Penterra's cease-and-desist letter dated March 8, 2021, including:

(a) the date on which Vantage received the cease-and-desist letter and the manner in which it was received (e.g., by mail, courier, email, or other means);

(b) the identity of each Person at Vantage who reviewed, was informed of, or discussed the cease-and-desist letter, and the dates on which each such Person reviewed or was informed of the letter;

(c) any internal discussions, meetings, analyses, or deliberations conducted by Vantage or its representatives in response to the cease-and-desist letter, including the date(s), participants, subject matter, and conclusions of each such discussion, meeting, or analysis;

(d) the decision-making process that led to the preparation and issuance of the March 22, 2021 response letter from Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP on behalf of Vantage, including the identity of each Person who participated in or approved the decision to respond as stated in that letter; and

(e) whether Vantage continued to distribute, ship, sell, or deliver Products in the Tri-State Area after receiving the cease-and-desist letter dated March 8, 2021, and if so, state the dates, Products, quantities, customers, and revenues of all such distributions or sales occurring on or after March 8, 2021.

INTERROGATORY NO. 17: Vantage's Pre-2020 Out-of-Territory Activity

State whether, at any time between July 1, 2017 and September 13, 2020, Vantage shipped, delivered, sold, offered to sell, or otherwise distributed any Products to any customer, healthcare facility, pharmacy, or other entity located outside the six New England States that comprise the Territory.

If so, for each such instance, state:

(a) the date of the shipment, delivery, sale, offer, or other distribution;

(b) the customer's full name and address;

(d) the revenue received by Vantage from the transaction;

(e) whether Penterra was notified of the out-of-Territory activity, and if so, the date, form, and substance of such notification and the identity of the Person(s) at Penterra who received such notification; and

(f) whether Vantage obtained Penterra's "prior written consent" as required by Section 2.3 of the Agreement before engaging in such out-of-Territory activity, and if so, Identify the Document constituting such written consent.

INTERROGATORY NO. 18: Promissory Estoppel Factual Basis

State with specificity all facts upon which Vantage bases its counterclaim for promissory estoppel, including:

(a) each specific promise that Vantage contends Penterra or any representative of Penterra made regarding the Tri-State Area, Vantage's right to distribute Products in the Tri-State Area, or the expansion of the Territory to include the Tri-State Area;

(b) the identity of the Person(s) who made each such promise, including their title and position at Penterra at the time the promise was made, and the identity of the Person(s) at Vantage to whom each promise was made;

(c) the date and circumstances of each such promise, including where the promise was made and the context in which it arose;

(d) the form of each such promise (i.e., whether the promise was made in writing, orally, or implied by conduct), and if in writing, Identify the Document containing the promise;

(e) the specific action(s) Vantage took in reliance on each such promise, including the date(s), nature, and cost of each such action; and

(f) the specific detriment, harm, or injury Vantage suffered as a result of its reliance on each such promise, including the dollar amount of such detriment and the basis for calculating that amount.

INTERROGATORY NO. 19: Vantage's Organizational Information

State the following regarding Vantage Medical Distribution, LLC:

(a) the date of formation and the state of organization of Vantage;

(b) the identity of all members, managers, and officers of Vantage as of the date of these Interrogatories, including their respective titles, ownership percentages (for members), and dates on which they assumed their current positions;

(c) Vantage's total revenues for fiscal years FY 2019, FY 2020, and FY 2021 (or, if FY 2021 is not yet complete, for the portion of FY 2021 through the most recent date for which data is available);

(d) the percentage of Vantage's total revenues attributable to the distribution of Penterra Products (Oncalaris® and Renuvesta®) for each of FY 2019, FY 2020, and FY 2021;

(e) the identity of Vantage's accountants, auditors, or accounting firm(s), including the firm name, contact person, and address; and

(f) whether Vantage holds exclusive distribution agreements, authorized distributor agreements, or other similar arrangements with any pharmaceutical manufacturer other than Penterra for territory that includes any of the states within the Tri-State Area (New York, New Jersey, or Pennsylvania), and if so, Identify each such manufacturer, the product(s) covered by the agreement, the territory, and the term of the agreement.

INTERROGATORY NO. 20: Witnesses and Evidence Supporting Counterclaims

Identify each Person whom Vantage may call as a witness at trial or in any pretrial hearing, deposition, or other proceeding in this action, and for each such Person, state:

(a) the Person's full name, current title or position, and current employer or affiliation;

(b) the subject matter of their anticipated testimony, described with sufficient specificity to convey the general scope and nature of the testimony expected; and

In addition, Identify all Documents or categories of Documents that Vantage intends to offer in evidence, or that Vantage reasonably anticipates offering in evidence, in support of its counterclaims (for breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel) or in opposition to Penterra's declaratory-judgment claim.

Respectfully submitted,

PENTERRA PHARMACEUTICALS CORP. By its attorneys,

CALDERWOOD & HARKNESS LLP

________________________________________

Linda Osei, Esq. (BBO No. 658214) losei@calderwoodharkness.com

________________________________________

Hannah Brinkley, Esq. (BBO No. 691847) hbrinkley@calderwoodharkness.com

CALDERWOOD & HARKNESS LLP 1 Federal Street, 35th Floor Boston, MA 02110 Telephone: (617) 555-4200 Facsimile: (617) 555-4201

Dated: August 9, 2021

CERTIFICATE OF SERVICE

I, Hannah Brinkley, hereby certify that on August 9, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s First Set of Interrogatories to Defendant Vantage Medical Distribution, LLC was served upon counsel for Defendant by first-class mail, postage prepaid, and by electronic mail, addressed to:

Kenneth M. Rourke, Esq. Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, MA 02109 krourke@hsplaw.com afontaine@hsplaw.com

________________________________________

Hannah Brinkley, Esq.

COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION SUFFOLK COUNTY
PENTERRA PHARMACEUTICALS CORP., Plaintiff,
v.
VANTAGE MEDICAL DISTRIBUTION, LLC, Defendant.
Docket No. 2184-CV-01537-BLS
PLAINTIFF PENTERRA PHARMACEUTICALS CORP.'S FIRST SET OF INTERROGATORIES TO DEFENDANT VANTAGE MEDICAL DISTRIBUTION, LLC
Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "Plaintiff"), by and through its attorneys, Calderwood & Harkness LLP, hereby propounds the following First Set of Interrogatories upon Defendant Vantage Medical Distribution, LLC ("Vantage" or "Defendant"), pursuant to Mass. R. Civ. P. 33. Vantage is requested to answer each Interrogatory separately and fully, in writing and under oath, within thirty (30) days of service of these Interrogatories, in accordance with Mass. R. Civ. P. 33(a).
These Interrogatories are continuing in nature. If, after serving its answers, Vantage obtains additional or different information responsive to any of the Interrogatories set forth below, Vantage is required to supplement its responses promptly and seasonably in accordance with Mass. R. Civ. P. 26(e).
DEFINITIONS
As used in these Interrogatories, the following terms shall have the meanings set forth below:
1.  "Agreement" or "EDA" means the Exclusive Distribution Agreement dated July 1, 2017 between Penterra Pharmaceuticals Corp. (referred to therein as "Supplier") and Vantage Medical Distribution, LLC (referred to therein as "Distributor"), including all Exhibits, Schedules, Appendices, and Attachments thereto, together with any amendments, modifications, supplements, or addenda thereto.
2.  "Territory" means the geographic territory defined in Exhibit A to the Agreement, consisting of the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the "New England States").
3.  "Tri-State Area" means the states of New York, New Jersey, and Pennsylvania.
4.  "Products" means the pharmaceutical products defined in the Agreement, specifically: (a) Oncalaris® (pegvisomant-axel), 20 mg and 40 mg vials; and (b) Renuvesta® (cilosporin-beta), 5 mg capsules.
5.  "Kapoor Email" means the email dated January 12, 2018, from Steven Kapoor, Vice President of Commercial Operations at Penterra, to Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, together with any attachments thereto.
6.  "You," "Your," or "Vantage" means Defendant Vantage Medical Distribution, LLC, and includes its officers, directors, members, managers, employees, agents, representatives, accountants (including Cranmer, Hodges & Associates, P.C.), attorneys, subsidiaries, affiliates, predecessors, successors, assigns, and any other Person acting or purporting to act on Vantage's behalf.
7.  "Penterra" means Plaintiff Penterra Pharmaceuticals Corp., and includes its officers, directors, employees, agents, representatives, subsidiaries, affiliates, predecessors, successors, and assigns.
8.  "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, governmental entity, unincorporated organization, or any other legal entity.
9.  "Document" or "Documents" shall be defined as broadly as permitted under Mass. R. Civ. P. 34, and includes all writings of every kind, recordings, photographs, electronically stored information ("ESI") in any format or medium, and tangible items, including but not limited to correspondence, memoranda, notes, emails, text messages, instant messages, calendar entries, reports, analyses, spreadsheets, presentations, contracts, invoices, purchase orders, shipping records, financial statements, ledgers, meeting minutes, board resolutions, and drafts of any of the foregoing, whether in hard copy or electronic form.
10.  "Communication" means any oral or written exchange of information between two or more Persons, including but not limited to in-person conversations, telephone calls, video conferences, voicemail messages, emails, text messages, instant messages, letters, memoranda, facsimiles, and any other form of transmission, conveyance, or exchange of information, whether formal or informal.
11.  "Identify" shall have the following meanings depending on context:
(a) When used with respect to a Person, "Identify" means to state the Person's full legal name, title or position (both at the time of the relevant events and presently), employer or affiliation, current business address, telephone number, and relationship to Vantage or to the subject matter of the Interrogatory.
(b) When used with respect to a Document, "Identify" means to state the Document's title or heading (if any), author(s), recipient(s) and all persons copied, date of creation or transmission, general subject matter, number of pages or approximate length, and present location or custodian.
(c) When used with respect to a Communication, "Identify" means to state the date of the Communication, the form of the Communication (e.g., oral, written, electronic), the identity of all participants or parties to the Communication, the general subject matter of the Communication, and the substance of the Communication.
12.  "Relate to" or "Relating to" means concerning, referring to, describing, evidencing, reflecting, constituting, mentioning, embodying, pertaining to, connected with, commenting on, responsive to, or having any logical or factual connection with the subject matter referenced, in whole or in part, whether directly or indirectly.
INSTRUCTIONS
1.  Each Interrogatory shall be answered separately and fully in accordance with Mass. R. Civ. P. 33. If any Interrogatory cannot be answered in full, Vantage shall answer to the fullest extent possible and shall state the specific reason(s) for any inability to provide a more complete answer, including but not limited to any ongoing investigation, unavailability of records, or other impediment to a complete response.
2.  If Vantage objects to any Interrogatory or any part thereof, Vantage shall state with specificity the grounds for each objection. If an objection is made to only a part of an Interrogatory, Vantage shall answer the remaining, non-objectionable part of the Interrogatory fully and completely, and shall not use an objection to any portion of an Interrogatory as a basis for declining to respond to the Interrogatory in its entirety.
3.  If Vantage withholds any information responsive to any Interrogatory on the basis of a claim of attorney-client privilege, work-product protection, or any other privilege, Vantage shall, for each item of information withheld: (a) identify the privilege or protection claimed; (b) describe the nature of the information withheld in sufficient detail to permit Penterra and the Court to evaluate the claim of privilege, without revealing the privileged or protected content; and (c) provide all information required by Mass. R. Civ. P. 26(b)(5), including the date, author, recipients, general subject matter, and the basis upon which the privilege or protection is asserted.
4.  These Interrogatories are deemed continuing obligations pursuant to Mass. R. Civ. P. 26(e). Vantage must seasonably supplement, amend, or correct its responses if it learns at any time that a prior response was incomplete, inaccurate, or incorrect, or if additional responsive information becomes available.
5.  Where an Interrogatory calls for information within Vantage's "possession, custody, or control," such phrase shall be construed broadly and includes information known to, held by, or reasonably accessible to Vantage's officers, directors, members, managers, employees, agents, representatives, accountants, and attorneys (to the extent such information is not protected by a recognized privilege). Vantage shall make a reasonable and diligent inquiry of all such Persons and sources in order to provide full and complete answers.
6.  All references to time periods in these Interrogatories are inclusive of the dates specified (i.e., references to a period "from" one date "to" another date include both the first and last dates identified).
INTERROGATORIES
INTERROGATORY NO. 1: Identification of Persons with Knowledge of the Territory
Identify each Person who participated in, was present during, or has knowledge of the negotiation, drafting, review, or execution of the Agreement, including but not limited to any discussions, negotiations, or drafting relating to the definition of the Territory in Exhibit A to the Agreement.
For each such Person, state:
(a) the Person's full name;
(b) the Person's title or position at the time of the relevant events (including employer or entity affiliation at that time);
(c) the Person's current employer and title or position;
(d) the nature and extent of their knowledge of or involvement in the negotiation, drafting, review, or execution of the Agreement (including, without limitation, whether the Person participated in discussions regarding the geographic scope of the Territory, the inclusion or exclusion of any particular states or regions from the Territory, or the selection of the states listed in Exhibit A); and
(e) whether the Person is currently employed by, affiliated with, or otherwise associated with Vantage, and if not, the date on which such employment or affiliation ended and the circumstances of its termination.
INTERROGATORY NO. 2: Vantage's Understanding of the Territory at the Time of Execution
Describe in detail Vantage's understanding, as of the effective date of the Agreement (July 1, 2017), of the geographic scope of the "Territory" as defined in Exhibit A to the Agreement, including:
(a) the specific states, regions, or geographic areas that Vantage understood to be encompassed within the Territory;
(b) whether Vantage understood the Territory to include any states, regions, or geographic areas other than Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, and if so, identify each such state, region, or area and explain the basis for Vantage's understanding;
(c) the basis for Vantage's understanding of the geographic scope of the Territory, including any Documents, Communications, representations, negotiations, drafts, or other information upon which Vantage relies in forming or supporting that understanding; and
(d) the identity of each Person who communicated to Vantage, or to any officer, director, member, manager, employee, or agent of Vantage, the scope, boundaries, or meaning of the Territory, and the substance of each such communication.
INTERROGATORY NO. 3: Basis for Claiming the Kapoor Email Constituted Written Consent
State with specificity the factual and legal basis for Vantage's contention, as set forth in its Answer and Counterclaims, that the January 12, 2018 email from Steven Kapoor, Vice President of Commercial Operations at Penterra, to Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, constituted "prior written consent" within the meaning of Section 2.3 of the Agreement to distribute Products in the Tri-State Area, including:
(a) the specific language, sentences, phrases, or words in the Kapoor Email upon which Vantage relies as constituting or evidencing "prior written consent" to distribute Products outside the Territory;
(b) any prior or subsequent Communications between any Penterra representative and any Vantage representative that Vantage contends provide context for, support, explain, or are otherwise relevant to its interpretation of the Kapoor Email, including the date, participants, form, and substance of each such Communication;
(c) any actions taken by Vantage in reliance on the Kapoor Email, including but not limited to marketing efforts, personnel hiring or reassignment, facility acquisition or lease, customer solicitation, or actual shipment or sale of Products in the Tri-State Area, and the dates on which each such action was taken;
(d) the identity of each Person at Vantage or acting on behalf of Vantage who received, reviewed, forwarded, discussed, or otherwise had knowledge of the Kapoor Email, and for each such Person, state when and how they became aware of the Kapoor Email and the substance of any discussion regarding the Kapoor Email; and
(e) whether Vantage contends that the Kapoor Email, standing alone or in combination with other facts or circumstances, also constituted an amendment to Exhibit A to the Agreement within the meaning of Section 13.1 of the Agreement, and if so, state with specificity the factual and legal basis for that contention, including any argument that the requirements of Section 13.1 were satisfied or excused.
INTERROGATORY NO. 4: Course-of-Dealing Claim
Describe in detail all facts upon which Vantage bases its claim or defense that a course of dealing, course of performance, or pattern of conduct between Penterra and Vantage effected a modification of Exhibit A to the Agreement so as to include the Tri-State Area within the Territory, or otherwise altered, supplemented, or expanded Vantage's rights under the Agreement with respect to the geographic scope of its distribution authority, including:
(a) each specific instance, with precise dates, in which Vantage shipped, delivered, sold, offered to sell, or otherwise distributed Products to any customer, healthcare facility, pharmacy, or other entity located outside the six New England States that comprise the Territory, including the identity of the customer, the Products and quantities involved, and the revenue received;
(b) each specific instance, with precise dates, in which Vantage contends that Penterra or any of its officers, directors, employees, agents, or representatives had actual or constructive knowledge of such out-of-Territory shipments, deliveries, sales, or other distribution activities, and the specific factual basis for Vantage's contention that Penterra had such knowledge (including any Communications, reports, invoices, purchase orders, or other Documents that would have put Penterra on notice of such activities);
(c) each specific instance, with precise dates, in which Vantage contends that Penterra acquiesced in, ratified, consented to, encouraged, or failed to object to such out-of-Territory distribution activity, including any Communications, conduct, or omissions by Penterra that Vantage characterizes as acquiescence, ratification, or consent;
(d) the identity of each Person at Penterra whom Vantage contends had knowledge of, participated in, authorized, acquiesced in, or failed to object to out-of-Territory sales or distribution by Vantage, and for each such Person, state the basis for Vantage's contention that such Person had such knowledge or engaged in such conduct; and
(e) all Documents and Communications upon which Vantage relies in support of its course-of-dealing contention, including but not limited to purchase orders, invoices, shipping records, correspondence, emails, meeting minutes, reports, or any other records.
INTERROGATORY NO. 5: Communications with Penterra Regarding Territory Expansion
Identify each Communication between any representative of Vantage and any representative of Penterra, from July 1, 2017 to the present, Relating to: (a) the expansion of the Territory beyond the six New England States; (b) the distribution, sale, shipment, or delivery of Products in the Tri-State Area; or (c) any modification, amendment, supplement, or waiver of Exhibit A or Section 2.1 of the Agreement.
For each such Communication, state:
(i) the date of the Communication;
(ii) the form of the Communication (e.g., email, telephone call, in-person meeting, video conference, letter, text message, or other);
(iii) the identity of all participants in or parties to the Communication (including any persons copied on written Communications);
(iv) the substance of the Communication, described with sufficient detail to convey its content and meaning; and
(v) whether any written record of the Communication exists (including but not limited to emails, notes, memoranda, or minutes), and if so, Identify each such record.
INTERROGATORY NO. 6: Decision to Commence Tri-State Distribution
Describe in detail the circumstances under which Vantage began distributing Products in the Tri-State Area on or about September 14, 2020, including:
(a) the identity of the Person(s) at Vantage who authorized, directed, approved, or were involved in the decision to commence distribution of Products in the Tri-State Area, including their titles and roles within Vantage;
(b) the date on which the decision to commence distribution of Products in the Tri-State Area was made, and the date on which Vantage first took affirmative steps to implement that decision;
(c) the specific internal discussions, meetings, analyses, memoranda, business plans, financial projections, or other deliberations that preceded or informed the decision to commence tri-state distribution, including for each: the date(s), participants, subject matter, conclusions reached, and any Documents generated;
(d) whether Vantage sought or obtained any legal advice regarding its right to distribute Products in the Tri-State Area prior to commencing such distribution, and if so, identify the attorney(s) or law firm(s) consulted and the date(s) of consultation (without disclosing the substance of any communication protected by the attorney-client privilege or work-product doctrine); and
(e) whether Vantage provided any written or oral notice to Penterra, or to any officer, director, employee, agent, or representative of Penterra, prior to commencing distribution of Products in the Tri-State Area, and if so, Identify each such notice, including the date, form, sender, recipient, and substance thereof.
INTERROGATORY NO. 7: Persons Involved in Tri-State Sales Operations
Identify each Person employed by, retained by, affiliated with, or acting on behalf of Vantage who was involved in the solicitation, sale, distribution, delivery, marketing, promotion, or customer service of Products in the Tri-State Area from September 14, 2020 to the present.
For each such Person, state:
(a) full name;
(b) title or position at Vantage (or, if not an employee, the nature of the Person's relationship with Vantage);
(c) specific role in tri-state sales, distribution, or marketing operations, including a description of the Person's duties and responsibilities with respect to the Tri-State Area;
(d) the geographic area(s) in which the Person operated, including whether the Person also operated within the Territory; and
(e) the dates of the Person's involvement in tri-state operations, including the start date and, if applicable, end date.
INTERROGATORY NO. 8: Tri-State Customers
Identify each customer (including, without limitation, hospitals, oncology clinics, physician practices, infusion centers, specialty pharmacies, retail pharmacies, group purchasing organizations, and any other healthcare facility, provider, or entity) to whom Vantage shipped, delivered, sold, or offered to sell Products in the Tri-State Area from September 14, 2020 to the present.
For each such customer, state:
(a) the customer's full legal name and business address;
(b) the date(s) of each shipment, delivery, sale, or offer to sell;
(c) the Product(s) shipped, delivered, sold, or offered, including the specific product name, dosage form, strength (i.e., Oncalaris® 20 mg, Oncalaris® 40 mg, or Renuvesta® 5 mg), and quantity for each transaction; and
(d) the revenue received by Vantage for each such transaction, including the unit price and total amount billed or collected.
INTERROGATORY NO. 9: Tri-State Shipments and Revenues
State the total quantity (in units) and total dollar value (in revenue received or billed) of Products shipped, delivered, or sold by Vantage in the Tri-State Area from September 14, 2020 to the present, broken down by:
(a) month (stating separately the figures for each calendar month from September 2020 through the most recent month for which data is available);
(b) state (New York, New Jersey, and Pennsylvania, stated separately);
(c) Product (Oncalaris® 20 mg vials, Oncalaris® 40 mg vials, and Renuvesta® 5 mg capsules, stated separately); and
(d) total aggregate revenue and total aggregate units across all months, states, and Products.
In addition, state whether the approximately $6.4 million in tri-state revenues reflected in Vantage's internal sales records and reports for the period September 2020 through March 2021 is accurate, and if Vantage contends that figure is not accurate, state the correct figure and the factual basis for any discrepancy, and Identify all Documents supporting Vantage's position.
INTERROGATORY NO. 10: Vantage's Minimum Purchase Commitment
For each fiscal year from FY 2018 through FY 2021, state the total dollar value (at wholesale acquisition cost, or "WAC") of Oncalaris® purchased by Vantage from Penterra, broken down by:
(a) purchases of Oncalaris® attributable to distribution within the Territory (i.e., the six New England States); and
(b) purchases of Oncalaris® attributable to distribution within the Tri-State Area (i.e., New York, New Jersey, and Pennsylvania).
Confirm whether the following purchase figures, as reflected in Penterra's records, are accurate:
•  FY 2018: $11.2 million in total Oncalaris® purchases;
•  FY 2019: $14.8 million in total Oncalaris® purchases;
•  FY 2020: $18.3 million in total Oncalaris® purchases; and
•  FY 2021 (through March 31, 2021): $16.1 million in total Oncalaris® purchases.
If Vantage contends that any of the foregoing figures is inaccurate, provide the correct figure for each fiscal year and Identify all Documents supporting Vantage's position.
Further, state whether Vantage contends that its purchases of Products for distribution in the Tri-State Area were credited toward, or should have been credited toward, its $9.5 million annual minimum purchase commitment under Section 5.2 of the Agreement. If so, state the factual and legal basis for that contention, including the specific language of the Agreement or other basis upon which Vantage relies.
INTERROGATORY NO. 11: Damages Claimed in Counterclaims
State with specificity the factual and financial basis for the $35 million in damages asserted in Vantage's counterclaims for breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel, including:
(a) the methodology used to calculate the $35 million damages figure, including whether the figure was derived from a discounted cash flow analysis, a lost profits model, a market comparison, a multiples-based approach, or any other methodology, and if a combination of methodologies was used, state the amount attributable to each;
(b) each category of damages claimed (e.g., lost profits, lost revenues, expectation damages, reliance damages, restitution, consequential damages, incidental damages, or other categories), with the specific dollar amount attributed to each category;
(c) the time period over which lost profits, lost revenues, or other forward-looking damages are calculated, including the projected start date and end date of the damages period and the basis for selecting that time period;
(d) the assumptions underlying the damages calculation, including but not limited to projected revenues, anticipated costs of goods sold, operating expenses, profit margins, growth rates, discount rates, market share assumptions, customer retention rates, and any other material assumptions;
(e) the identity of each Person who participated in the preparation, review, or approval of the damages calculation, including such Person's role in the process;
(f) all Documents, financial models, spreadsheets, expert analyses, reports, or other materials supporting, reflecting, or used in connection with the damages calculation; and
(g) whether Vantage retained or consulted with any expert, consultant, economist, accountant, or other professional to assist in calculating damages, and if so, Identify each such expert or consultant, state the date of retention, the subject matter and scope of the engagement, and the conclusions of any report, analysis, or opinion prepared.
INTERROGATORY NO. 12: Reliance and Investments in Tri-State Operations
Describe in detail all investments, expenditures, commitments, and obligations made or incurred by Vantage in reliance on its claim of a right to distribute Products in the Tri-State Area, including:
(a) the nature and amount of each expenditure, investment, or commitment (including but not limited to warehouse or office space leases, facility construction or build-out costs, equipment purchases or leases, personnel hiring or relocation costs, salaries and benefits for tri-state personnel, marketing and advertising expenditures, regulatory or licensing costs, insurance costs, and any other capital or operating expenditures);
(b) the date(s) on which each expenditure, investment, or commitment was made or incurred;
(c) whether each such expenditure, investment, or commitment was made before or after the Kapoor Email of January 12, 2018, and, if after, whether Vantage contends the expenditure was made in reliance on the Kapoor Email;
(d) whether each such expenditure, investment, or commitment was made before or after September 14, 2020 (the date on which Vantage commenced distribution of Products in the Tri-State Area); and
(e) all Documents evidencing, reflecting, or Relating to each expenditure, investment, or commitment, including but not limited to contracts, lease agreements, invoices, receipts, purchase orders, payroll records, budgets, and financial statements.
INTERROGATORY NO. 13: Knowledge of Meridian Term Sheet
State whether Vantage, or any of its officers, directors, members, managers, employees, agents, or representatives, had knowledge, prior to the commencement of this action, of Penterra's execution of a term sheet with Meridian National Distributors, Inc. on or about February 15, 2021 for the distribution of Oncalaris® in the Tri-State Area.
If so, state:
(a) the date on which Vantage or any representative of Vantage first learned of the existence of the Meridian term sheet or of Penterra's negotiations or dealings with Meridian National Distributors, Inc.;
(b) the source of that information, including the identity of the Person(s) who provided or communicated such information to Vantage;
(c) the substance of what Vantage learned regarding the Meridian term sheet, including any details about the terms, scope, territory, products, or timing of Penterra's arrangement with Meridian; and
(d) a description of any actions taken by Vantage in response to learning of the Meridian term sheet, including but not limited to any Communications with Penterra or Meridian, any changes to Vantage's distribution activities or business plans, any legal actions or demands, or any other responsive measures.
INTERROGATORY NO. 14: Other Agreements or Understandings Regarding Territory
Identify all agreements, understandings, side letters, memoranda of understanding, term sheets, letters of intent, or other documents or instruments (other than the Agreement itself and the Kapoor Email) between Penterra and Vantage, or between any representatives, officers, directors, employees, or agents thereof, that Vantage contends relate to, bear upon, modify, supplement, or otherwise affect the scope of the Territory or Vantage's right to distribute Products outside the six New England States.
For each such document or instrument, state:
(a) the date of the document or instrument;
(b) the parties or signatories thereto;
(c) the subject matter and substance of the document or instrument, including its relevance to the scope of the Territory; and
(d) the present location or custodian of the document or instrument.
INTERROGATORY NO. 15: Section 13.1 — Signed Written Amendments
Identify each written instrument signed by both Penterra (or an authorized representative of Penterra) and Vantage (or an authorized representative of Vantage) that Vantage contends constitutes an amendment, modification, supplement, or waiver of any provision of the Agreement within the meaning of Section 13.1 of the Agreement.
For each such instrument, state:
(a) the date of the instrument;
(b) the specific provision(s) of the Agreement that were amended, modified, supplemented, or waived;
(c) the substance of the amendment, modification, supplement, or waiver; and
(d) the identity of the signatories on behalf of each party.
If Vantage contends that no written instrument signed by both parties exists that constitutes an amendment, modification, or waiver under Section 13.1, but that the Agreement was nevertheless modified, amended, supplemented, or waived through other means (including but not limited to oral agreement, course of dealing, course of performance, waiver by conduct, estoppel, or otherwise), describe those means in detail and Identify all facts, Documents, and Communications upon which Vantage relies in support of such contention.
INTERROGATORY NO. 16: Vantage's Response to Penterra's Cease-and-Desist Letter
Describe in detail the circumstances surrounding Vantage's receipt of and response to Penterra's cease-and-desist letter dated March 8, 2021, including:
(a) the date on which Vantage received the cease-and-desist letter and the manner in which it was received (e.g., by mail, courier, email, or other means);
(b) the identity of each Person at Vantage who reviewed, was informed of, or discussed the cease-and-desist letter, and the dates on which each such Person reviewed or was informed of the letter;
(c) any internal discussions, meetings, analyses, or deliberations conducted by Vantage or its representatives in response to the cease-and-desist letter, including the date(s), participants, subject matter, and conclusions of each such discussion, meeting, or analysis;
(d) the decision-making process that led to the preparation and issuance of the March 22, 2021 response letter from Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP on behalf of Vantage, including the identity of each Person who participated in or approved the decision to respond as stated in that letter; and
(e) whether Vantage continued to distribute, ship, sell, or deliver Products in the Tri-State Area after receiving the cease-and-desist letter dated March 8, 2021, and if so, state the dates, Products, quantities, customers, and revenues of all such distributions or sales occurring on or after March 8, 2021.
INTERROGATORY NO. 17: Vantage's Pre-2020 Out-of-Territory Activity
State whether, at any time between July 1, 2017 and September 13, 2020, Vantage shipped, delivered, sold, offered to sell, or otherwise distributed any Products to any customer, healthcare facility, pharmacy, or other entity located outside the six New England States that comprise the Territory.
If so, for each such instance, state:
(a) the date of the shipment, delivery, sale, offer, or other distribution;
(b) the customer's full name and address;
(c) the Product(s) and quantities involved in the transaction;
(d) the revenue received by Vantage from the transaction;
(e) whether Penterra was notified of the out-of-Territory activity, and if so, the date, form, and substance of such notification and the identity of the Person(s) at Penterra who received such notification; and
(f) whether Vantage obtained Penterra's "prior written consent" as required by Section 2.3 of the Agreement before engaging in such out-of-Territory activity, and if so, Identify the Document constituting such written consent.
INTERROGATORY NO. 18: Promissory Estoppel Factual Basis
State with specificity all facts upon which Vantage bases its counterclaim for promissory estoppel, including:
(a) each specific promise that Vantage contends Penterra or any representative of Penterra made regarding the Tri-State Area, Vantage's right to distribute Products in the Tri-State Area, or the expansion of the Territory to include the Tri-State Area;
(b) the identity of the Person(s) who made each such promise, including their title and position at Penterra at the time the promise was made, and the identity of the Person(s) at Vantage to whom each promise was made;
(c) the date and circumstances of each such promise, including where the promise was made and the context in which it arose;
(d) the form of each such promise (i.e., whether the promise was made in writing, orally, or implied by conduct), and if in writing, Identify the Document containing the promise;
(e) the specific action(s) Vantage took in reliance on each such promise, including the date(s), nature, and cost of each such action; and
(f) the specific detriment, harm, or injury Vantage suffered as a result of its reliance on each such promise, including the dollar amount of such detriment and the basis for calculating that amount.
INTERROGATORY NO. 19: Vantage's Organizational Information
State the following regarding Vantage Medical Distribution, LLC:
(a) the date of formation and the state of organization of Vantage;
(b) the identity of all members, managers, and officers of Vantage as of the date of these Interrogatories, including their respective titles, ownership percentages (for members), and dates on which they assumed their current positions;
(c) Vantage's total revenues for fiscal years FY 2019, FY 2020, and FY 2021 (or, if FY 2021 is not yet complete, for the portion of FY 2021 through the most recent date for which data is available);
(d) the percentage of Vantage's total revenues attributable to the distribution of Penterra Products (Oncalaris® and Renuvesta®) for each of FY 2019, FY 2020, and FY 2021;
(e) the identity of Vantage's accountants, auditors, or accounting firm(s), including the firm name, contact person, and address; and
(f) whether Vantage holds exclusive distribution agreements, authorized distributor agreements, or other similar arrangements with any pharmaceutical manufacturer other than Penterra for territory that includes any of the states within the Tri-State Area (New York, New Jersey, or Pennsylvania), and if so, Identify each such manufacturer, the product(s) covered by the agreement, the territory, and the term of the agreement.
INTERROGATORY NO. 20: Witnesses and Evidence Supporting Counterclaims
Identify each Person whom Vantage may call as a witness at trial or in any pretrial hearing, deposition, or other proceeding in this action, and for each such Person, state:
(a) the Person's full name, current title or position, and current employer or affiliation;
(b) the subject matter of their anticipated testimony, described with sufficient specificity to convey the general scope and nature of the testimony expected; and
(c) whether the Person is anticipated to serve as a fact witness, an expert witness, or both.
In addition, Identify all Documents or categories of Documents that Vantage intends to offer in evidence, or that Vantage reasonably anticipates offering in evidence, in support of its counterclaims (for breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel) or in opposition to Penterra's declaratory-judgment claim.
Respectfully submitted,
PENTERRA PHARMACEUTICALS CORP. By its attorneys,
CALDERWOOD & HARKNESS LLP
________________________________________
Linda Osei, Esq. (BBO No. 658214) losei@calderwoodharkness.com
________________________________________
Hannah Brinkley, Esq. (BBO No. 691847) hbrinkley@calderwoodharkness.com
CALDERWOOD & HARKNESS LLP 1 Federal Street, 35th Floor Boston, MA 02110 Telephone: (617) 555-4200 Facsimile: (617) 555-4201
Dated: August 9, 2021
CERTIFICATE OF SERVICE
I, Hannah Brinkley, hereby certify that on August 9, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s First Set of Interrogatories to Defendant Vantage Medical Distribution, LLC was served upon counsel for Defendant by first-class mail, postage prepaid, and by electronic mail, addressed to:
Kenneth M. Rourke, Esq. Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, MA 02109 krourke@hsplaw.com afontaine@hsplaw.com
________________________________________
Hannah Brinkley, Esq.

COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION SUFFOLK COUNTY

DEFINITIONS

INSTRUCTIONS

INTERROGATORIES

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

Record

Parties

Dates

Amounts