1018-00007 · Penterra Pharmaceuticals Corp · Discovery

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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.

SUPERIOR COURT BUSINESS LITIGATION SESSION

Docket No. 2184-CV-01537-BLS

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

Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "PPC"), by and through its attorneys, Calderwood & Harkness LLP, hereby responds and objects to Defendant Vantage Medical Distribution, LLC's ("Vantage") First Set of Interrogatories (the "Interrogatories"), which were served on Penterra on September 3, 2021, pursuant to Mass. R. Civ. P. 33. These responses and objections are made in accordance with the Massachusetts Rules of Civil Procedure and are served within the time permitted by those Rules, as extended by the parties' agreement memorialized in the correspondence of counsel dated September 17, 2021.

Penterra's responses are based upon information reasonably available to it as of the date of these responses following a reasonable inquiry. These responses are made without waiving, and expressly preserving, any right to supplement, amend, or correct any response herein as additional information becomes available through continuing investigation and the ongoing discovery process in this action. No response or objection herein shall be construed as a representation that Penterra's investigation into the facts and circumstances underlying this litigation is complete.

Penterra reserves all objections not specifically stated herein, including but not limited to objections to the competency, relevancy, materiality, privilege, and admissibility of any information provided herein. The provision of any response herein shall not constitute a waiver of any objection stated or reserved, nor shall it constitute an admission that the information provided is relevant or admissible. By responding to these Interrogatories, Penterra does not concede the propriety, relevance, or scope of any Interrogatory, in whole or in part.

GENERAL OBJECTIONS

Penterra makes the following General Objections, each of which is incorporated by reference into each specific response below as if fully set forth therein. The assertion of a General Objection with respect to any particular Interrogatory does not constitute a waiver of any other General Objection or specific objection with respect to that Interrogatory.

General Objection No. 1 — Attorney-Client Privilege and Work Product

Penterra objects to each and every Interrogatory to the extent it seeks information or communications protected by the attorney-client privilege, the work-product doctrine (as set forth in Mass. R. Civ. P. 26(b)(3) and Hickman v. Taylor, 329 U.S. 495 (1947)), the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection from discovery recognized under the laws of the Commonwealth of Massachusetts or applicable federal law. No response, partial response, or inadvertent production herein shall be deemed or construed as a waiver, in whole or in part, of any such privilege, immunity, or protection. Penterra expressly reserves all rights with respect to any inadvertent disclosure of privileged or protected information and will supplement these objections with a privilege log to the extent required by Mass. R. Civ. P. 26(b)(5).

General Objection No. 2 — Overbreadth and Undue Burden

Penterra objects to each and every Interrogatory to the extent it is overly broad in scope, unduly burdensome, oppressive, or seeks information that is not relevant to any party's claim or defense in this action and is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. To the extent Penterra provides a response to any such overbroad or unduly burdensome Interrogatory, it does so voluntarily and without waiving this objection.

General Objection No. 3 — Compound and Multi-Part Interrogatories

Penterra objects to any Interrogatory that contains multiple discrete subparts, each of which calls for a separate and independent factual response, as constituting more than one interrogatory for purposes of the applicable interrogatory limits set forth in Mass. R. Civ. P. 33(a) and applicable superior court rules. Penterra reserves the right to count such compound interrogatories as multiple interrogatories and to assert the applicable numerical limits at any appropriate time.

General Objection No. 4 — Vague or Ambiguous Terms

Penterra objects to each and every Interrogatory to the extent it uses terms, phrases, or defined terms that are vague, ambiguous, undefined, or susceptible to more than one reasonable interpretation. Penterra reserves the right to construe such terms reasonably and in a manner consistent with their ordinary usage in the pharmaceutical distribution industry. Where Penterra has construed a term in a specific manner, Penterra will identify the construction used in its specific response.

General Objection No. 5 — Documents Speak for Themselves

Penterra objects to each and every Interrogatory to the extent it calls for a legal conclusion, a characterization of the content of a document, or asks Penterra to interpret, summarize, or paraphrase documents that speak for themselves and are equally available to the propounding party. Where responsive documents have been produced or will be produced in connection with Penterra's responses to Vantage's First Request for Production of Documents, Penterra may refer Vantage to those documents in lieu of a narrative response, to the extent permitted by Mass. R. Civ. P. 33(c).

General Objection No. 6 — Ongoing Investigation and discovery

Penterra's investigation into the facts and circumstances giving rise to this action is ongoing. Discovery in this matter is at an early stage, and Penterra has not yet had the opportunity to depose Vantage's witnesses, complete its review of Vantage's document productions, or obtain discovery from third parties. Accordingly, these responses are necessarily based upon information presently known and available to Penterra and are made without prejudice to Penterra's right to supplement, amend, or correct these responses as additional information becomes available, pursuant to Mass. R. Civ. P. 26(e) and any applicable orders of the Court.

SPECIFIC INTERROGATORY RESPONSES

Subject to the foregoing General Objections, which are incorporated herein by reference as though fully set forth in each specific response below, Penterra responds to each of Vantage's Interrogatories as follows:

INTERROGATORY NO. 1

Identify all persons involved in the negotiation and drafting of the Exclusive Distribution Agreement dated July 1, 2017 ("EDA") between Penterra and Vantage, including each person's role in the negotiations.

Objections:

Penterra objects to this Interrogatory to the extent that the phrase "involved in" is vague and overbroad, as it could be construed to encompass any person who had even the most tangential connection to the EDA, including administrative assistants, receptionists, or persons who were merely copied on a single email. Penterra will construe this Interrogatory to seek the identification of persons who had a substantive role in negotiating, drafting, or approving the material terms of the EDA.

Penterra further objects to the extent this Interrogatory seeks the identification of, and information concerning the role of, outside legal counsel retained to advise Penterra in connection with the negotiation and drafting of the EDA, insofar as such information is protected by the attorney-client privilege and the work-product doctrine.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra identifies the following individuals who had a substantive role in the negotiation, drafting, or approval of the EDA:

(a) Steven Kapoor, Vice President, Commercial Operations, Penterra Pharmaceuticals Corp. — Mr. Kapoor led Penterra's commercial negotiations with Vantage regarding the scope, terms, and geographic territory of the distribution arrangement. Mr. Kapoor was the primary Penterra negotiator and had principal responsibility for the commercial and business terms of the EDA, including the exclusivity provisions, minimum purchase commitments, pricing terms, and performance benchmarks.

(b) Rachel Mendez, Director of Distribution & Logistics, Penterra Pharmaceuticals Corp. — Ms. Mendez participated in negotiations regarding logistics, supply chain, and distribution mechanics, including delivery schedules, order management processes, warehousing requirements, and cold-chain compliance procedures for Oncalaris® (pegvisomant-axel). Ms. Mendez provided input on the operational feasibility of the distribution arrangement.

(c) Jennifer Chao, Esq., General Counsel, Penterra Pharmaceuticals Corp. — Ms. Chao oversaw the legal review and approval of the EDA, including review of the exclusivity provisions, termination and remedy provisions, representations and warranties, and indemnification provisions. Further details regarding the nature and substance of Ms. Chao's involvement in the drafting and legal analysis of the EDA are protected by the attorney-client privilege and are withheld on that basis.

(d) Dr. Marcus Lindholm, Chief Executive Officer, Penterra Pharmaceuticals Corp. — Dr. Lindholm provided executive-level approval of the EDA and authorized Mr. Kapoor to finalize and execute the agreement on Penterra's behalf. Dr. Lindholm did not participate directly in line-by-line negotiations of the EDA's provisions or in drafting sessions.

(e) Outside legal counsel was involved in drafting, reviewing, and providing legal advice in connection with the EDA. The identities of outside counsel and the substance of their involvement are protected by the attorney-client privilege and the work-product doctrine and are withheld on that basis.

Penterra further states that, based on its understanding, the following persons participated in negotiations of the EDA on behalf of Vantage: Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, and Lisa Petrangelo, Chief Operating Officer of Vantage. Penterra defers to Vantage for complete and accurate information regarding the composition of Vantage's negotiating team and the respective roles of Vantage's representatives.

INTERROGATORY NO. 2

Describe in detail the negotiation history of Section 2.1 (Grant of Exclusive Territory) and Exhibit A (Territory Definition) of the EDA, including all proposals and counterproposals regarding the geographic scope of the Territory.

Objections:

Penterra objects to this Interrogatory as overbroad and unduly burdensome to the extent it seeks a comprehensive narrative reconstruction of the entire negotiation history of Section 2.1 and Exhibit A, including the substance of every communication, meeting, or discussion that occurred over a period of several months of negotiations. Penterra further objects to the extent this Interrogatory seeks information regarding the substance of communications between Penterra and its legal counsel, or the mental impressions, conclusions, opinions, or legal theories of counsel, all of which are protected by the attorney-client privilege and/or the work-product doctrine.

Penterra further objects to this Interrogatory to the extent it seeks extrinsic evidence of pre-execution negotiations for the purpose of varying, contradicting, or supplementing the terms of the fully integrated EDA in contravention of the parol evidence rule. Section 14.8 of the EDA provides that the agreement "constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral." The Territory is unambiguously defined in Exhibit A, and parol evidence of pre-execution negotiations is inadmissible to alter or contradict that definition under Massachusetts law.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:

The EDA was executed on July 1, 2017, with an effective date of July 1, 2017. Section 2.1 of the EDA grants Vantage "the exclusive right to distribute the Products within the Territory, as defined in Exhibit A hereto, during the Term of this Agreement, subject to the terms and conditions set forth herein." Exhibit A to the EDA defines the Territory as follows: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')."

During negotiations in early-to-mid 2017, the parties discussed the geographic scope of the distribution arrangement. Penterra's proposal was for an exclusive territory limited to the six New England states, which was consistent with Vantage's then-existing operational footprint, customer base, and warehousing and logistics infrastructure. Penterra proposed this geographic scope because Vantage's demonstrated capabilities and market presence were concentrated in the New England region, and Penterra believed that Vantage was best positioned to serve healthcare providers and institutional customers in those states.

Based on a reasonable search of its records and the recollections of its personnel involved in the negotiations, Penterra is not aware of any formal written counterproposal from Vantage seeking to include the states of New York, New Jersey, or Pennsylvania in the Territory definition in Exhibit A. To the best of Penterra's knowledge, the geographic scope of the Territory as set forth in Exhibit A — limited to the six New England states — was the subject of general agreement between the parties and was not a point of significant contention during the negotiation process.

The final, mutually agreed-upon Territory definition in Exhibit A — limited to the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — was executed by authorized representatives of both parties on July 1, 2017, and constitutes the entire agreement between the parties on the subject of Vantage's exclusive distribution territory, pursuant to the integration clause set forth in Section 14.8 of the EDA.

Penterra further refers Vantage to the fully executed copy of the EDA, including Exhibit A (Territory Definition), which has been produced in this litigation as Bates-stamped documents PENTERRA-000001 through PENTERRA-000047, and which speaks for itself.

INTERROGATORY NO. 3

Identify and describe all communications between Penterra and Vantage regarding any proposed expansion of the Territory beyond the six New England states identified in Exhibit A, including the date, participants, format (written, oral, or electronic), and substance of each such communication.

Objections:

Penterra objects to this Interrogatory as overbroad to the extent it encompasses all communications over the entire duration of the parties' business relationship — from July 1, 2017 to the present — without any reasonable temporal limitation. Penterra further objects to the extent this Interrogatory seeks information protected by the attorney-client privilege and/or the work-product doctrine, including communications between Penterra's personnel and its legal counsel regarding the scope of Vantage's rights under the EDA.

Penterra further objects to this Interrogatory as unduly burdensome to the extent it requires Penterra to identify every informal, passing, or incidental reference to geographic expansion that may have arisen in the course of the parties' ongoing business communications over a period of more than four years. Penterra will respond with respect to communications known to it after a reasonable search of its files and records and reasonable inquiry of its personnel.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra identifies the following communication regarding a proposed expansion of the Territory beyond the six New England states defined in Exhibit A to the EDA:

(a) January 12, 2018 — Email from Steven Kapoor to Donald R. Farnham: On January 12, 2018, Steven Kapoor, Vice President of Commercial Operations at Penterra, sent an email to Donald R. Farnham, Managing Member and CEO of Vantage, which stated in relevant part: "Don — good catching up yesterday. 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." This email, a copy of which has been produced as PENTERRA-000112, expressed a willingness on the part of Mr. Kapoor to explore the possibility of a future expansion of the Territory at some indeterminate future date, contingent on Vantage's operational performance in the existing New England Territory. The email did not constitute "prior written consent" under Section 2.3 of the EDA, nor did it constitute an amendment to Exhibit A, nor was it "a written instrument signed by both parties" as required by Section 13.1 of the EDA for any modification of the agreement. No mid-year follow-up discussion or meeting regarding tri-state expansion occurred in 2018 or at any subsequent time.

After a reasonable search of its files and records and reasonable inquiry of its personnel, Penterra is not aware of any other written, electronic, or documented oral communication from any officer, employee, agent, or representative of Penterra granting Vantage consent to distribute Penterra products outside the six New England states, or proposing a formal amendment to the Territory definition set forth in Exhibit A of the EDA.

Penterra further refers Vantage to the document produced as PENTERRA-000112 (the January 12, 2018 email from Steven Kapoor to Donald R. Farnham), which speaks for itself.

Penterra reserves the right to supplement this response if additional communications are identified during the course of ongoing discovery.

INTERROGATORY NO. 4

State whether Penterra contends that the January 12, 2018 email from Steven Kapoor to Donald R. Farnham does not constitute "prior written consent" under Section 2.3 of the EDA, and if so, state in full the factual and legal basis for that contention.

Objections:

Penterra objects to this Interrogatory to the extent it seeks pure legal conclusions and to the extent it seeks disclosure of attorney work product, mental impressions, legal theories, and litigation strategy developed by Penterra's counsel in anticipation of litigation and in preparation for trial.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra responds as follows:

Yes, Penterra contends that the January 12, 2018 email from Steven Kapoor to Donald R. Farnham (produced as PENTERRA-000112) does not constitute "prior written consent" under Section 2.3 of the EDA, and that the email does not authorize, permit, or otherwise grant Vantage the right to distribute Penterra products in New York, New Jersey, Pennsylvania, or any other state outside the Territory defined in Exhibit A.

Factual basis: The email from Mr. Kapoor to Mr. Farnham dated January 12, 2018 uses exclusively forward-looking, conditional, and exploratory language. The operative phrases include "open to exploring," "once your New England footprint is fully ramped," and "Let's circle back mid-year and see where things stand." The email does not contain any words of present authorization, consent, agreement, or grant. It does not state that Penterra consents to Vantage distributing products in the tri-state area. It does not state that the Territory is expanded or modified. It does not reference Section 2.3 of the EDA, Exhibit A, or any other provision of the EDA. It does not purport to amend, modify, supplement, or waive any provision of the EDA in any respect. No follow-up agreement regarding tri-state expansion was reached at any time following this email. No written amendment to Exhibit A or any other provision of the EDA was executed. No formal mid-year review regarding the possibility of tri-state expansion occurred in 2018 or at any subsequent time. The condition precedent referenced in the email — that Vantage's "New England footprint" be "fully ramped" — was never evaluated, assessed, or determined to have been satisfied.

Legal basis: Section 2.3 of the EDA provides that Vantage "shall not distribute the Products outside the Territory without the prior written consent of [Penterra]." The term "prior written consent" requires an affirmative, present authorization by Penterra, not a speculative expression of willingness to discuss a possible future expansion. The Kapoor email does not satisfy this requirement by its plain language.

Moreover, Section 13.1 of the EDA provides: "No amendment, modification, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by both parties." Even assuming arguendo that the Kapoor email could be read as an expression of consent — which Penterra denies — the email was not "a written instrument signed by both parties." Mr. Kapoor's email was a unilateral, informal communication; it was not signed by both Penterra and Vantage, and it was not intended or structured as an amendment to the EDA.

Section 14.8 of the EDA, the integration clause, provides that the agreement "constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral." The Territory is unambiguously defined in Exhibit A as the six New England states, and this definition controls.

Under Massachusetts law, contractual provisions requiring that modifications be in writing and signed by both parties are generally enforceable. See Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122, 131-32 (2000) (enforcing integration clause and noting that "a merger clause in a fully integrated agreement bars evidence of prior or contemporaneous agreements or negotiations to contradict, vary, or add to the terms of the writing"). Accordingly, Vantage cannot rely on an informal, exploratory email to override the unambiguous written terms of the EDA and Exhibit A.

INTERROGATORY NO. 5

Identify all agreements, term sheets, letters of intent, or other documents or communications between Penterra and Meridian National Distributors, Inc. ("Meridian") regarding the distribution of Oncalaris® or any other Penterra product, including the date, parties, and subject matter of each.

Objections:

Penterra objects to this Interrogatory to the extent it seeks information that is confidential, proprietary, and/or constitutes trade secrets of Penterra and/or Meridian National Distributors, Inc. ("Meridian"), including the specific commercial terms of Penterra's negotiations and potential arrangements with Meridian.

Penterra further objects to this Interrogatory to the extent it is not relevant or proportional to the needs of the case. The central issue in this action is the scope of the Territory defined in Exhibit A of the EDA between Penterra and Vantage, and whether Vantage exceeded the boundaries of that Territory. The details of Penterra's negotiations with third-party distributors are, at most, only marginally relevant to that issue.

Penterra further objects to the extent this Interrogatory is overbroad in seeking "all agreements" and "any other Penterra product," without limitation as to time period, product, or geographic scope.

Response:

Subject to and without waiving the foregoing General and specific objections, and subject to the terms and conditions of the Confidentiality Stipulation and Protective Order entered by the Court on June 15, 2021, Penterra identifies the following:

(a) February 15, 2021 — Non-Binding Term Sheet: On February 15, 2021, Penterra executed a non-binding term sheet with Meridian National Distributors, Inc. for the distribution of Oncalaris® (pegvisomant-axel, 20 mg and 40 mg vials) in the states of New York, New Jersey, Pennsylvania, and Maryland. The term sheet was signed by Steven Kapoor, Vice President of Commercial Operations, on behalf of Penterra, and by Thomas Welliver, President, on behalf of Meridian. The term sheet contemplated exclusive regional distribution rights for Meridian in the four above-referenced states, with a proposed term of three years and an annual minimum purchase commitment. The arrangement contemplated by the term sheet was not finalized, and no definitive distribution agreement was executed between Penterra and Meridian, in part because of Vantage's assertion — communicated through counsel's letter of March 22, 2021 — that its exclusive rights under the EDA encompassed the tri-state area (New York, New Jersey, and Pennsylvania).

After a reasonable search of its records, Penterra is not aware of any other agreements, term sheets, letters of intent, or other similar documents between Penterra and Meridian relating to the distribution of Oncalaris®, Renuvesta®, or any other Penterra product.

Penterra has produced a copy of the February 15, 2021 non-binding term sheet as Bates-stamped documents PENTERRA-000298 through PENTERRA-000304, subject to the Confidentiality Stipulation and Protective Order.

INTERROGATORY NO. 6

State the date on which Penterra first became aware that Vantage was distributing Oncalaris® or any other Penterra product to customers in New York, New Jersey, or Pennsylvania, and describe how Penterra became aware of such distribution.

Objections:

Penterra objects to this Interrogatory to the extent it seeks information protected by the attorney-client privilege, including information regarding when Penterra's legal counsel was informed or consulted about the issue of Vantage's out-of-territory distribution, and the substance of any communications between Penterra's business personnel and legal counsel regarding the same.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:

Rachel Mendez, Director of Distribution & Logistics at Penterra, became aware in approximately late 2019 or early 2020 that certain Penterra product shipments fulfilled by Vantage may have been delivered to ship-to addresses located in the state of New York. At that time, it was not clear whether these shipments represented a systematic pattern of distribution outside the Territory or were isolated instances, such as occasional deliveries to satellite offices or affiliated locations of New England-based customers. Ms. Mendez conducted an internal inquiry at that time, which did not confirm a pattern of unauthorized distribution outside the Territory. Ms. Mendez raised the issue informally with Steven Kapoor, Vice President of Commercial Operations.

By approximately late September or early October 2020, Penterra's distribution and logistics team, led by Ms. Mendez, confirmed that Vantage had commenced systematic and regular shipments of Oncalaris® to hospitals, oncology clinics, and other healthcare facilities in the states of New York, New Jersey, and Pennsylvania, beginning on or about September 14, 2020. This confirmation was made through a comprehensive review of Penterra's order management and distribution tracking systems (the "OMS"), which flagged multiple delivery addresses located outside the six New England states that were associated with Vantage purchase orders. The review revealed that Vantage had placed purchase orders for Oncalaris® at volumes exceeding what would be expected for the New England Territory alone and had arranged for shipment to end customers in the tri-state area.

Following confirmation of Vantage's unauthorized tri-state distribution, Penterra's General Counsel, Jennifer Chao, Esq., issued a cease-and-desist letter to Donald R. Farnham at Vantage on March 8, 2021, demanding that Vantage immediately cease all distribution of Oncalaris® and any other Penterra product to customers located outside the six New England states defined in Exhibit A of the EDA. A copy of this letter has been produced as PENTERRA-000215 through PENTERRA-000218.

INTERROGATORY NO. 7

Describe in detail all actions Penterra took, or failed to take, in response to learning that Vantage was distributing Penterra products to customers outside the Territory defined in Exhibit A, including the dates and persons involved.

Objections:

Penterra objects to this Interrogatory to the extent the phrase "failed to take" is argumentative, assumes facts not in evidence, and is designed to elicit admissions regarding alleged inaction or delay by Penterra, rather than to seek neutral factual information. Penterra construes this Interrogatory as seeking a description of the steps Penterra took in response to its discovery of Vantage's unauthorized tri-state distribution.

Penterra further objects to this Interrogatory to the extent it seeks information protected by the attorney-client privilege and/or the work-product doctrine, including communications between Penterra's business personnel and its in-house and outside legal counsel, and internal deliberations, legal assessments, and strategy discussions conducted in anticipation of litigation and in preparation for the filing of this action.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:

(a) Upon confirmation of Vantage's unauthorized tri-state shipments in late September or early October 2020, Penterra's commercial and legal teams evaluated the situation internally. Steven Kapoor, Vice President of Commercial Operations, and Rachel Mendez, Director of Distribution & Logistics, conferred regarding the scope, volume, and duration of Vantage's out-of-territory shipments and the potential impact on Penterra's distribution network and third-party distributor relationships.

(b) Jennifer Chao, Esq., General Counsel of Penterra, was consulted regarding the matter. The substance of internal deliberations between Penterra's business personnel and Ms. Chao regarding legal strategy, risk assessment, and the determination of an appropriate course of action are protected by the attorney-client privilege and are withheld on that basis.

(c) On March 8, 2021, Jennifer Chao, in her capacity as General Counsel of Penterra, sent a written cease-and-desist letter to Donald R. Farnham, Managing Member and CEO of Vantage, at Vantage's principal offices. The letter demanded that Vantage immediately cease all distribution of Penterra products — including but not limited to Oncalaris® and Renuvesta® — to customers located outside the six New England states defined in Exhibit A of the EDA. The letter identified the specific EDA provisions that Penterra contended Vantage had breached, including Sections 2.1, 2.3, and the Territory definition in Exhibit A, and reserved all of Penterra's rights and remedies under the EDA and applicable law.

(d) On March 22, 2021, Penterra received a written response from Kenneth M. Rourke, Esq., of Hargrove, Sinclair & Polk LLP, on behalf of Vantage. Mr. Rourke's letter asserted that Vantage had a contractual right to distribute Penterra products in the tri-state area based on, inter alia, the January 12, 2018 Kapoor email and an alleged course of dealing between the parties. The letter further threatened a $35 million breach-of-contract and tortious interference counterclaim against Penterra in the event that Penterra attempted to terminate the EDA or appoint an alternative distributor for the tri-state area.

(e) Following receipt of Vantage's counsel's letter, Penterra retained Calderwood & Harkness LLP as outside litigation counsel. The engagement letter between Penterra and Calderwood & Harkness LLP is dated March 29, 2021.

(f) On April 12, 2021, Penterra, through Calderwood & Harkness LLP, filed the Complaint for Declaratory Judgment in this action in the Suffolk Superior Court, Business Litigation Session, seeking a declaration that the Territory under the EDA is limited to the six New England states as defined in Exhibit A and that Vantage's distribution of Penterra products in New York, New Jersey, and Pennsylvania constitutes a material breach of the EDA.

INTERROGATORY NO. 8

Identify all revenues Penterra received or expects to receive from the distribution of Oncalaris® and Renuvesta® in the tri-state area (New York, New Jersey, and Pennsylvania) from any distributor other than Vantage during the period from July 1, 2017 to the present.

Objections:

Penterra objects to this Interrogatory as overbroad and not proportional to the needs of the case insofar as it encompasses revenues from all distribution channels — including national specialty pharmacy partners and direct-to-institution sales channels — that operate independently from Penterra's regional exclusive distribution arrangements and are unrelated to the dispute over the scope of Vantage's Territory under the EDA. The revenues generated through Penterra's national specialty pharmacy network are not attributable to any regional exclusive distribution agreement and are not relevant to the claims or defenses in this action.

Penterra further objects to the extent the phrase "expects to receive" calls for speculation and conjecture regarding future revenues that have not yet been earned or recognized and that depend upon numerous contingencies, market conditions, and business decisions.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:

During the relevant period of July 1, 2017 to the present, Penterra distributed Oncalaris® and Renuvesta® in the tri-state area (New York, New Jersey, and Pennsylvania) through its national specialty pharmacy partners, which operate independently from Penterra's regional exclusive distribution arrangements. Penterra's national specialty pharmacy partners distribute Penterra products on a nationwide basis pursuant to separate agreements that are not geographically exclusive and that are structured differently from Penterra's regional exclusive distribution model, of which the EDA with Vantage is one example.

Penterra did not appoint any regional exclusive distributor for the tri-state area during the period from July 1, 2017 to the present. As stated in Penterra's response to Interrogatory No. 5 above, the non-binding term sheet with Meridian National Distributors, Inc. dated February 15, 2021 was never consummated, and no definitive distribution agreement was executed between Penterra and Meridian.

Penterra's national distribution revenues in the tri-state area are tracked in the ordinary course of business but are maintained and reported at the national level and are not directly comparable to, or severable from, the revenues generated through Penterra's regional exclusive distribution model. To the extent such information is relevant and responsive, Penterra refers Vantage to the financial documents produced as Bates-stamped documents PENTERRA-000350 through PENTERRA-000412, which contain revenue data by geographic region and distribution channel, subject to the terms and conditions of the Confidentiality Stipulation and Protective Order.

INTERROGATORY NO. 9

State whether Penterra contends that the EDA's integration clause (Section 14.8) and amendment provision (Section 13.1) preclude any oral or implied modification of the Territory, and set forth the complete factual and legal basis for such contention.

Objections:

Penterra objects to this Interrogatory to the extent it calls for a pure legal conclusion and to the extent it seeks disclosure of attorney work product, mental impressions, legal analysis, and litigation strategy developed by Penterra's counsel in anticipation of litigation and in preparation for trial.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra responds as follows:

Yes, Penterra contends that Section 14.8 (the integration clause) and Section 13.1 (the written-amendment requirement) of the EDA, individually and in combination, preclude any oral or implied modification of the Territory as defined in Exhibit A of the EDA.

Section 14.8 of the EDA provides, in full:

"This Agreement, including all Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral."

Section 13.1 of the EDA provides, in relevant part:

"No amendment, modification, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by both parties."

These provisions, taken together, establish that the EDA is a fully integrated agreement and that no modification of any provision — including the Territory definition in Exhibit A — may be accomplished except through a written instrument signed by both Penterra and Vantage. No such written instrument has ever been executed. The Kapoor email of January 12, 2018 was not "a written instrument signed by both parties," and no other document exists that purports to amend, modify, or expand the Territory definition in Exhibit A.

Under Massachusetts law, integration clauses and written-amendment provisions are generally enforceable and serve to preclude claims of oral or implied modification. See Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122, 131-32 (2000) (holding that "a merger clause in a fully integrated agreement bars evidence of prior or contemporaneous agreements or negotiations to contradict, vary, or add to the terms of the writing"); see also Starr v. Fordham, 420 Mass. 178, 189 (1995) (recognizing the enforceability of contract provisions requiring that amendments be made in writing). The parties to a commercial agreement are entitled to rely on the stability and predictability provided by such provisions, particularly in the context of a sophisticated distribution arrangement between commercial entities represented by counsel.

Penterra further notes that Vantage's anticipated course-of-dealing and course-of-performance arguments are unavailing because: (a) no course of dealing or course of performance can override an express written-amendment requirement contained in the EDA, particularly where the integration clause expressly supersedes all prior negotiations, representations, and agreements; (b) Penterra did not acquiesce in or consent to Vantage's unauthorized tri-state distribution, but rather promptly demanded cessation of such activity upon confirmation of the same; and (c) the January 12, 2018 Kapoor email, upon which Vantage relies, does not constitute a course of dealing or course of performance, but rather a single, forward-looking, conditional expression of willingness to explore future possibilities, which by its own terms was never acted upon.

INTERROGATORY NO. 10

Describe Penterra's distribution network for Oncalaris® and Renuvesta®, including the identity of all distributors, the geographic territories assigned to each, and the terms and duration of any distribution agreements.

Objections:

Penterra objects to this Interrogatory as overbroad, unduly burdensome, and not proportional to the needs of the case insofar as it seeks detailed information about the entirety of Penterra's distribution network, including distribution arrangements with third parties that are wholly unrelated to the dispute over the scope of Vantage's exclusive Territory under the EDA. The composition, structure, and terms of Penterra's distribution arrangements in geographic regions other than the Territory at issue provide no relevant information regarding whether Vantage exceeded the boundaries of its Territory or whether the Kapoor email constitutes "prior written consent" under Section 2.3.

Penterra further objects to the extent this Interrogatory seeks confidential and proprietary trade secret information regarding Penterra's commercial distribution strategy, pricing, and relationships with third-party distributors. Public disclosure of the identities of Penterra's distribution partners, the specific geographic territories assigned to each, and the financial and operational terms of those relationships would cause competitive harm to Penterra and would violate confidentiality obligations owed by Penterra to its non-party distribution partners.

Penterra further objects to the extent the disclosure of the terms of Penterra's agreements with non-party distributors is restricted by confidentiality provisions contained in those agreements, the breach of which could expose Penterra to liability to those third parties.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:

Penterra distributes its products, including Oncalaris® (pegvisomant-axel, 20 mg and 40 mg vials) and Renuvesta® (cilosporin-beta, 5 mg capsules), through a multi-channel distribution network consisting of regional exclusive distributors and two national specialty pharmacy partners. The EDA with Vantage covers the six New England states — Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — for the distribution of Oncalaris® and Renuvesta®.

Penterra's distribution arrangements with non-party distributors, including the identities of those distributors, the geographic territories assigned to them, and the specific terms and duration of their respective agreements, are not relevant to the determination of the scope of Vantage's Territory under the EDA and involve confidential commercial terms that are proprietary to Penterra and, in many cases, subject to reciprocal confidentiality obligations. To the extent the Court orders further disclosure of such information, Penterra will comply with any such order, subject to any applicable protective order provisions designed to safeguard Penterra's and its distribution partners' confidential business information.

INTERROGATORY NO. 11

Identify all persons with knowledge of the facts and circumstances relevant to this action, and for each such person state the subject matter of his or her knowledge.

Objections:

Penterra objects to this Interrogatory as compound and overbroad to the extent it seeks the identification of every person in the world who may possess any information of any kind that could conceivably be deemed "relevant" to any issue in this action. Penterra further objects to the extent this Interrogatory seeks information protected by the attorney-client privilege and/or the work-product doctrine, including the identification of consultants, experts, or other persons retained by Penterra or its counsel in anticipation of litigation or in preparation for trial, and the substance of communications between such persons and counsel.

Response:

Subject to and without waiving the foregoing General and specific objections, Penterra identifies the following persons who are known to Penterra to have knowledge of facts and circumstances relevant to this action:

(a) Steven Kapoor, Vice President, Commercial Operations, Penterra Pharmaceuticals Corp. — Mr. Kapoor has knowledge regarding: the negotiation and execution of the EDA; the intended scope of the Territory; the authorship, context, and intent of the January 12, 2018 email to Donald R. Farnham; Penterra's commercial distribution strategy for Oncalaris® and Renuvesta®; Penterra's dealings with Meridian National Distributors, Inc. regarding the February 15, 2021 non-binding term sheet; communications with Donald R. Farnham and other Vantage personnel regarding the EDA and distribution matters; and Penterra's response to Vantage's unauthorized tri-state distribution.

(b) Rachel Mendez, Director of Distribution & Logistics, Penterra Pharmaceuticals Corp. — Ms. Mendez has knowledge regarding: distribution logistics and operations under the EDA; Penterra's order management systems and distribution tracking systems; the identification and confirmation of Vantage's unauthorized shipments to customers in New York, New Jersey, and Pennsylvania; Penterra's shipment tracking and order fulfillment records for Oncalaris® and Renuvesta®; and the logistics and supply chain provisions of the EDA.

(c) Jennifer Chao, Esq., General Counsel, Penterra Pharmaceuticals Corp. — Ms. Chao has knowledge regarding: the legal review and approval of the EDA; the issuance of the March 8, 2021 cease-and-desist letter to Vantage; and Penterra's legal assessment of Vantage's out-of-territory distribution. Penterra notes that significant portions of Ms. Chao's knowledge are protected by the attorney-client privilege and are withheld on that basis.

(d) Dr. Marcus Lindholm, Chief Executive Officer, Penterra Pharmaceuticals Corp. — Dr. Lindholm has knowledge regarding: executive-level approval of the EDA; Penterra's general distribution strategy for its pharmaceutical products; and general awareness of the dispute with Vantage.

(e) Donald R. Farnham, Managing Member and Chief Executive Officer, Vantage Medical Distribution, LLC — Mr. Farnham has knowledge regarding: the negotiation and execution of the EDA on behalf of Vantage; receipt of and response to the January 12, 2018 email from Steven Kapoor; Vantage's decision to commence distribution of Penterra products in the tri-state area; communications with Penterra personnel regarding distribution matters; and receipt of the March 8, 2021 cease-and-desist letter.

(f) Lisa Petrangelo, Chief Operating Officer, Vantage Medical Distribution, LLC — Ms. Petrangelo has knowledge regarding: Vantage's operational activities, including logistics, warehousing, and distribution; Vantage's expansion of distribution operations into the tri-state area; and Vantage's internal planning and decision-making regarding tri-state distribution.

(g) Brian Kopec, Outside Sales Director, Vantage Medical Distribution, LLC — Mr. Kopec has knowledge regarding: Vantage's sales activities in the tri-state area; customer contacts, solicitation, and account development in New York, New Jersey, and Pennsylvania; and the scope and volume of Vantage's tri-state distribution operations.

(h) Thomas Welliver, President, Meridian National Distributors, Inc. — Mr. Welliver has knowledge regarding: the negotiation and execution of the February 15, 2021 non-binding term sheet between Penterra and Meridian for the distribution of Oncalaris® in the tri-state area and Maryland; and the circumstances under which the term sheet was not consummated.

Penterra reserves the right to supplement this response as additional persons with knowledge of relevant facts and circumstances are identified during the course of ongoing discovery, including through depositions and document review.

INTERROGATORY NO. 12

State the total dollar amount of all purchases of Oncalaris® and Renuvesta® by Vantage under the EDA for each fiscal year from 2017 through 2021 (year to date), broken down by product.

Objections:

Penterra objects to this Interrogatory to the extent that the information sought is equally available to Vantage from Vantage's own business records, purchase orders, invoices, and accounting systems. Vantage, as the purchaser, maintains its own records of purchases under the EDA and is in at least an equal, if not superior, position to compile this information from its own files.

Response:

Subject to and without waiving the foregoing General and specific objection, Penterra states the following based on its records regarding purchases of Oncalaris® by Vantage under the EDA at wholesale acquisition cost ("WAC"):

• Fiscal Year 2017 (July 1, 2017 through June 30, 2018): Penterra's records for this period reflect a partial year of operations under the EDA (effective July 1, 2017). Precise revenue figures for this initial partial period are being compiled and will be supplemented.

• Fiscal Year 2018 (July 1, 2018 through June 30, 2019): Approximately $11.2 million in Oncalaris® purchases by Vantage at WAC.

• Fiscal Year 2019 (July 1, 2019 through June 30, 2020): Approximately $14.8 million in Oncalaris® purchases by Vantage at WAC.

• Fiscal Year 2020 (July 1, 2020 through June 30, 2021): Approximately $18.3 million in Oncalaris® purchases by Vantage at WAC. Penterra notes that this figure includes the period during which Vantage was engaged in unauthorized distribution of Oncalaris® in the tri-state area, and the volume of purchases associated with tri-state distribution contributed to the increase in total purchase volume during this period.

• Fiscal Year 2021 (July 1, 2021 through approximately September 30, 2021, i.e., year to date at the time of these responses): Approximately $16.1 million in Oncalaris® purchases by Vantage at WAC for the first approximately nine months, which annualizes to approximately $21.47 million.

The minimum annual purchase commitment for Oncalaris® under Section 5.2 of the EDA is $9.5 million per year at WAC. Based on the foregoing figures, Vantage exceeded this minimum annual purchase commitment in each full fiscal year of the EDA. Penterra notes, however, that the fact that Vantage met or exceeded minimum purchase commitments does not excuse, ratify, or otherwise legitimize Vantage's unauthorized distribution of Penterra products outside the Territory.

Penterra's records regarding Renuvesta® (cilosporin-beta, 5 mg capsules) purchases by Vantage are maintained in the ordinary course of business. Penterra is in the process of compiling this information and will supplement this response upon reasonable request or as required by the Court's scheduling orders.

Penterra further refers Vantage to the financial documents produced in this action as Bates-stamped documents PENTERRA-000420 through PENTERRA-000468, which contain detailed purchase and revenue data relevant to this Interrogatory.

VERIFICATION

I, Steven Kapoor, state as follows:

I am the Vice President, Commercial Operations, of Penterra Pharmaceuticals Corp., the Plaintiff in the above-captioned action. I am the person with the most direct personal knowledge of the commercial matters addressed in the foregoing Responses and Objections to Defendant Vantage Medical Distribution, LLC's First Set of Interrogatories. I have reviewed the foregoing Responses and Objections and the factual statements contained therein. I verify under the penalties of perjury that the factual statements set forth in the foregoing Responses are true and correct to the best of my knowledge, information, and belief, based upon a reasonable inquiry.

________________________________________

Steven Kapoor Vice President, Commercial Operations Penterra Pharmaceuticals Corp. 400 Carnegie Center Drive, Suite 600 Princeton, New Jersey 08540

Date: ________

COMMONWEALTH OF NEW JERSEY COUNTY OF MERCER

On this __ day of October, 2021, before me, the undersigned notary public, personally appeared Steven Kapoor, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.

WITNESS my hand and official seal.

________________________________________

Notary Public My Commission Expires: _____

CERTIFICATE OF SERVICE

I, Hannah Brinkley, hereby certify that on this 4th day of October, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s Responses and Objections to Defendant Vantage Medical Distribution, LLC's First Set of Interrogatories was served upon counsel for Defendant by electronic service and first-class mail, postage prepaid, to:

Kenneth M. Rourke, Esq. Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, Massachusetts 02109 Telephone: (617) 555-4200

Email: krourke@hsplaw.com; afontaine@hsplaw.com

CALDERWOOD & HARKNESS LLP

By: ________

Hannah Brinkley (BBO No. 694217) Patrick Gallagher (BBO No. 701843) 1 Federal Street, 35th Floor Boston, Massachusetts 02110 Telephone: (617) 555-7100 Facsimile: (617) 555-7101

Email: hbrinkley@calderwoodharkness.com

Email: pgallagher@calderwoodharkness.com

Attorneys for Plaintiff Penterra Pharmaceuticals Corp.

Date: October 4, 2021

PENTERRA PHARMACEUTICALS CORP.,

Plaintiff,

VANTAGE MEDICAL DISTRIBUTION, LLC,

Defendant.

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.
SUPERIOR COURT BUSINESS LITIGATION SESSION
Docket No. 2184-CV-01537-BLS
PLAINTIFF PENTERRA PHARMACEUTICALS CORP.'S RESPONSES AND OBJECTIONS TO DEFENDANT VANTAGE MEDICAL DISTRIBUTION, LLC'S FIRST SET OF INTERROGATORIES
Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "PPC"), by and through its attorneys, Calderwood & Harkness LLP, hereby responds and objects to Defendant Vantage Medical Distribution, LLC's ("Vantage") First Set of Interrogatories (the "Interrogatories"), which were served on Penterra on September 3, 2021, pursuant to Mass. R. Civ. P. 33. These responses and objections are made in accordance with the Massachusetts Rules of Civil Procedure and are served within the time permitted by those Rules, as extended by the parties' agreement memorialized in the correspondence of counsel dated September 17, 2021.
Penterra's responses are based upon information reasonably available to it as of the date of these responses following a reasonable inquiry. These responses are made without waiving, and expressly preserving, any right to supplement, amend, or correct any response herein as additional information becomes available through continuing investigation and the ongoing discovery process in this action. No response or objection herein shall be construed as a representation that Penterra's investigation into the facts and circumstances underlying this litigation is complete.
Penterra reserves all objections not specifically stated herein, including but not limited to objections to the competency, relevancy, materiality, privilege, and admissibility of any information provided herein. The provision of any response herein shall not constitute a waiver of any objection stated or reserved, nor shall it constitute an admission that the information provided is relevant or admissible. By responding to these Interrogatories, Penterra does not concede the propriety, relevance, or scope of any Interrogatory, in whole or in part.
GENERAL OBJECTIONS
Penterra makes the following General Objections, each of which is incorporated by reference into each specific response below as if fully set forth therein. The assertion of a General Objection with respect to any particular Interrogatory does not constitute a waiver of any other General Objection or specific objection with respect to that Interrogatory.
General Objection No. 1 — Attorney-Client Privilege and Work Product
Penterra objects to each and every Interrogatory to the extent it seeks information or communications protected by the attorney-client privilege, the work-product doctrine (as set forth in Mass. R. Civ. P. 26(b)(3) and Hickman v. Taylor, 329 U.S. 495 (1947)), the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection from discovery recognized under the laws of the Commonwealth of Massachusetts or applicable federal law. No response, partial response, or inadvertent production herein shall be deemed or construed as a waiver, in whole or in part, of any such privilege, immunity, or protection. Penterra expressly reserves all rights with respect to any inadvertent disclosure of privileged or protected information and will supplement these objections with a privilege log to the extent required by Mass. R. Civ. P. 26(b)(5).
General Objection No. 2 — Overbreadth and Undue Burden
Penterra objects to each and every Interrogatory to the extent it is overly broad in scope, unduly burdensome, oppressive, or seeks information that is not relevant to any party's claim or defense in this action and is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. To the extent Penterra provides a response to any such overbroad or unduly burdensome Interrogatory, it does so voluntarily and without waiving this objection.
General Objection No. 3 — Compound and Multi-Part Interrogatories
Penterra objects to any Interrogatory that contains multiple discrete subparts, each of which calls for a separate and independent factual response, as constituting more than one interrogatory for purposes of the applicable interrogatory limits set forth in Mass. R. Civ. P. 33(a) and applicable superior court rules. Penterra reserves the right to count such compound interrogatories as multiple interrogatories and to assert the applicable numerical limits at any appropriate time.
General Objection No. 4 — Vague or Ambiguous Terms
Penterra objects to each and every Interrogatory to the extent it uses terms, phrases, or defined terms that are vague, ambiguous, undefined, or susceptible to more than one reasonable interpretation. Penterra reserves the right to construe such terms reasonably and in a manner consistent with their ordinary usage in the pharmaceutical distribution industry. Where Penterra has construed a term in a specific manner, Penterra will identify the construction used in its specific response.
General Objection No. 5 — Documents Speak for Themselves
Penterra objects to each and every Interrogatory to the extent it calls for a legal conclusion, a characterization of the content of a document, or asks Penterra to interpret, summarize, or paraphrase documents that speak for themselves and are equally available to the propounding party. Where responsive documents have been produced or will be produced in connection with Penterra's responses to Vantage's First Request for Production of Documents, Penterra may refer Vantage to those documents in lieu of a narrative response, to the extent permitted by Mass. R. Civ. P. 33(c).
General Objection No. 6 — Ongoing Investigation and discovery
Penterra's investigation into the facts and circumstances giving rise to this action is ongoing. Discovery in this matter is at an early stage, and Penterra has not yet had the opportunity to depose Vantage's witnesses, complete its review of Vantage's document productions, or obtain discovery from third parties. Accordingly, these responses are necessarily based upon information presently known and available to Penterra and are made without prejudice to Penterra's right to supplement, amend, or correct these responses as additional information becomes available, pursuant to Mass. R. Civ. P. 26(e) and any applicable orders of the Court.
SPECIFIC INTERROGATORY RESPONSES
Subject to the foregoing General Objections, which are incorporated herein by reference as though fully set forth in each specific response below, Penterra responds to each of Vantage's Interrogatories as follows:
INTERROGATORY NO. 1
Identify all persons involved in the negotiation and drafting of the Exclusive Distribution Agreement dated July 1, 2017 ("EDA") between Penterra and Vantage, including each person's role in the negotiations.
Objections:
Penterra objects to this Interrogatory to the extent that the phrase "involved in" is vague and overbroad, as it could be construed to encompass any person who had even the most tangential connection to the EDA, including administrative assistants, receptionists, or persons who were merely copied on a single email. Penterra will construe this Interrogatory to seek the identification of persons who had a substantive role in negotiating, drafting, or approving the material terms of the EDA.
Penterra further objects to the extent this Interrogatory seeks the identification of, and information concerning the role of, outside legal counsel retained to advise Penterra in connection with the negotiation and drafting of the EDA, insofar as such information is protected by the attorney-client privilege and the work-product doctrine.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra identifies the following individuals who had a substantive role in the negotiation, drafting, or approval of the EDA:
(a) Steven Kapoor, Vice President, Commercial Operations, Penterra Pharmaceuticals Corp. — Mr. Kapoor led Penterra's commercial negotiations with Vantage regarding the scope, terms, and geographic territory of the distribution arrangement. Mr. Kapoor was the primary Penterra negotiator and had principal responsibility for the commercial and business terms of the EDA, including the exclusivity provisions, minimum purchase commitments, pricing terms, and performance benchmarks.
(b) Rachel Mendez, Director of Distribution & Logistics, Penterra Pharmaceuticals Corp. — Ms. Mendez participated in negotiations regarding logistics, supply chain, and distribution mechanics, including delivery schedules, order management processes, warehousing requirements, and cold-chain compliance procedures for Oncalaris® (pegvisomant-axel). Ms. Mendez provided input on the operational feasibility of the distribution arrangement.
(c) Jennifer Chao, Esq., General Counsel, Penterra Pharmaceuticals Corp. — Ms. Chao oversaw the legal review and approval of the EDA, including review of the exclusivity provisions, termination and remedy provisions, representations and warranties, and indemnification provisions. Further details regarding the nature and substance of Ms. Chao's involvement in the drafting and legal analysis of the EDA are protected by the attorney-client privilege and are withheld on that basis.
(d) Dr. Marcus Lindholm, Chief Executive Officer, Penterra Pharmaceuticals Corp. — Dr. Lindholm provided executive-level approval of the EDA and authorized Mr. Kapoor to finalize and execute the agreement on Penterra's behalf. Dr. Lindholm did not participate directly in line-by-line negotiations of the EDA's provisions or in drafting sessions.
(e) Outside legal counsel was involved in drafting, reviewing, and providing legal advice in connection with the EDA. The identities of outside counsel and the substance of their involvement are protected by the attorney-client privilege and the work-product doctrine and are withheld on that basis.
Penterra further states that, based on its understanding, the following persons participated in negotiations of the EDA on behalf of Vantage: Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, and Lisa Petrangelo, Chief Operating Officer of Vantage. Penterra defers to Vantage for complete and accurate information regarding the composition of Vantage's negotiating team and the respective roles of Vantage's representatives.
INTERROGATORY NO. 2
Describe in detail the negotiation history of Section 2.1 (Grant of Exclusive Territory) and Exhibit A (Territory Definition) of the EDA, including all proposals and counterproposals regarding the geographic scope of the Territory.
Objections:
Penterra objects to this Interrogatory as overbroad and unduly burdensome to the extent it seeks a comprehensive narrative reconstruction of the entire negotiation history of Section 2.1 and Exhibit A, including the substance of every communication, meeting, or discussion that occurred over a period of several months of negotiations. Penterra further objects to the extent this Interrogatory seeks information regarding the substance of communications between Penterra and its legal counsel, or the mental impressions, conclusions, opinions, or legal theories of counsel, all of which are protected by the attorney-client privilege and/or the work-product doctrine.
Penterra further objects to this Interrogatory to the extent it seeks extrinsic evidence of pre-execution negotiations for the purpose of varying, contradicting, or supplementing the terms of the fully integrated EDA in contravention of the parol evidence rule. Section 14.8 of the EDA provides that the agreement "constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral." The Territory is unambiguously defined in Exhibit A, and parol evidence of pre-execution negotiations is inadmissible to alter or contradict that definition under Massachusetts law.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:
The EDA was executed on July 1, 2017, with an effective date of July 1, 2017. Section 2.1 of the EDA grants Vantage "the exclusive right to distribute the Products within the Territory, as defined in Exhibit A hereto, during the Term of this Agreement, subject to the terms and conditions set forth herein." Exhibit A to the EDA defines the Territory as follows: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')."
During negotiations in early-to-mid 2017, the parties discussed the geographic scope of the distribution arrangement. Penterra's proposal was for an exclusive territory limited to the six New England states, which was consistent with Vantage's then-existing operational footprint, customer base, and warehousing and logistics infrastructure. Penterra proposed this geographic scope because Vantage's demonstrated capabilities and market presence were concentrated in the New England region, and Penterra believed that Vantage was best positioned to serve healthcare providers and institutional customers in those states.
Based on a reasonable search of its records and the recollections of its personnel involved in the negotiations, Penterra is not aware of any formal written counterproposal from Vantage seeking to include the states of New York, New Jersey, or Pennsylvania in the Territory definition in Exhibit A. To the best of Penterra's knowledge, the geographic scope of the Territory as set forth in Exhibit A — limited to the six New England states — was the subject of general agreement between the parties and was not a point of significant contention during the negotiation process.
The final, mutually agreed-upon Territory definition in Exhibit A — limited to the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — was executed by authorized representatives of both parties on July 1, 2017, and constitutes the entire agreement between the parties on the subject of Vantage's exclusive distribution territory, pursuant to the integration clause set forth in Section 14.8 of the EDA.
Penterra further refers Vantage to the fully executed copy of the EDA, including Exhibit A (Territory Definition), which has been produced in this litigation as Bates-stamped documents PENTERRA-000001 through PENTERRA-000047, and which speaks for itself.
INTERROGATORY NO. 3
Identify and describe all communications between Penterra and Vantage regarding any proposed expansion of the Territory beyond the six New England states identified in Exhibit A, including the date, participants, format (written, oral, or electronic), and substance of each such communication.
Objections:
Penterra objects to this Interrogatory as overbroad to the extent it encompasses all communications over the entire duration of the parties' business relationship — from July 1, 2017 to the present — without any reasonable temporal limitation. Penterra further objects to the extent this Interrogatory seeks information protected by the attorney-client privilege and/or the work-product doctrine, including communications between Penterra's personnel and its legal counsel regarding the scope of Vantage's rights under the EDA.
Penterra further objects to this Interrogatory as unduly burdensome to the extent it requires Penterra to identify every informal, passing, or incidental reference to geographic expansion that may have arisen in the course of the parties' ongoing business communications over a period of more than four years. Penterra will respond with respect to communications known to it after a reasonable search of its files and records and reasonable inquiry of its personnel.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra identifies the following communication regarding a proposed expansion of the Territory beyond the six New England states defined in Exhibit A to the EDA:
(a) January 12, 2018 — Email from Steven Kapoor to Donald R. Farnham: On January 12, 2018, Steven Kapoor, Vice President of Commercial Operations at Penterra, sent an email to Donald R. Farnham, Managing Member and CEO of Vantage, which stated in relevant part: "Don — good catching up yesterday. 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." This email, a copy of which has been produced as PENTERRA-000112, expressed a willingness on the part of Mr. Kapoor to explore the possibility of a future expansion of the Territory at some indeterminate future date, contingent on Vantage's operational performance in the existing New England Territory. The email did not constitute "prior written consent" under Section 2.3 of the EDA, nor did it constitute an amendment to Exhibit A, nor was it "a written instrument signed by both parties" as required by Section 13.1 of the EDA for any modification of the agreement. No mid-year follow-up discussion or meeting regarding tri-state expansion occurred in 2018 or at any subsequent time.
After a reasonable search of its files and records and reasonable inquiry of its personnel, Penterra is not aware of any other written, electronic, or documented oral communication from any officer, employee, agent, or representative of Penterra granting Vantage consent to distribute Penterra products outside the six New England states, or proposing a formal amendment to the Territory definition set forth in Exhibit A of the EDA.
Penterra further refers Vantage to the document produced as PENTERRA-000112 (the January 12, 2018 email from Steven Kapoor to Donald R. Farnham), which speaks for itself.
Penterra reserves the right to supplement this response if additional communications are identified during the course of ongoing discovery.
INTERROGATORY NO. 4
State whether Penterra contends that the January 12, 2018 email from Steven Kapoor to Donald R. Farnham does not constitute "prior written consent" under Section 2.3 of the EDA, and if so, state in full the factual and legal basis for that contention.
Objections:
Penterra objects to this Interrogatory to the extent it seeks pure legal conclusions and to the extent it seeks disclosure of attorney work product, mental impressions, legal theories, and litigation strategy developed by Penterra's counsel in anticipation of litigation and in preparation for trial.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra responds as follows:
Yes, Penterra contends that the January 12, 2018 email from Steven Kapoor to Donald R. Farnham (produced as PENTERRA-000112) does not constitute "prior written consent" under Section 2.3 of the EDA, and that the email does not authorize, permit, or otherwise grant Vantage the right to distribute Penterra products in New York, New Jersey, Pennsylvania, or any other state outside the Territory defined in Exhibit A.
Factual basis: The email from Mr. Kapoor to Mr. Farnham dated January 12, 2018 uses exclusively forward-looking, conditional, and exploratory language. The operative phrases include "open to exploring," "once your New England footprint is fully ramped," and "Let's circle back mid-year and see where things stand." The email does not contain any words of present authorization, consent, agreement, or grant. It does not state that Penterra consents to Vantage distributing products in the tri-state area. It does not state that the Territory is expanded or modified. It does not reference Section 2.3 of the EDA, Exhibit A, or any other provision of the EDA. It does not purport to amend, modify, supplement, or waive any provision of the EDA in any respect. No follow-up agreement regarding tri-state expansion was reached at any time following this email. No written amendment to Exhibit A or any other provision of the EDA was executed. No formal mid-year review regarding the possibility of tri-state expansion occurred in 2018 or at any subsequent time. The condition precedent referenced in the email — that Vantage's "New England footprint" be "fully ramped" — was never evaluated, assessed, or determined to have been satisfied.
Legal basis: Section 2.3 of the EDA provides that Vantage "shall not distribute the Products outside the Territory without the prior written consent of [Penterra]." The term "prior written consent" requires an affirmative, present authorization by Penterra, not a speculative expression of willingness to discuss a possible future expansion. The Kapoor email does not satisfy this requirement by its plain language.
Moreover, Section 13.1 of the EDA provides: "No amendment, modification, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by both parties." Even assuming arguendo that the Kapoor email could be read as an expression of consent — which Penterra denies — the email was not "a written instrument signed by both parties." Mr. Kapoor's email was a unilateral, informal communication; it was not signed by both Penterra and Vantage, and it was not intended or structured as an amendment to the EDA.
Section 14.8 of the EDA, the integration clause, provides that the agreement "constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral." The Territory is unambiguously defined in Exhibit A as the six New England states, and this definition controls.
Under Massachusetts law, contractual provisions requiring that modifications be in writing and signed by both parties are generally enforceable. See Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122, 131-32 (2000) (enforcing integration clause and noting that "a merger clause in a fully integrated agreement bars evidence of prior or contemporaneous agreements or negotiations to contradict, vary, or add to the terms of the writing"). Accordingly, Vantage cannot rely on an informal, exploratory email to override the unambiguous written terms of the EDA and Exhibit A.
INTERROGATORY NO. 5
Identify all agreements, term sheets, letters of intent, or other documents or communications between Penterra and Meridian National Distributors, Inc. ("Meridian") regarding the distribution of Oncalaris® or any other Penterra product, including the date, parties, and subject matter of each.
Objections:
Penterra objects to this Interrogatory to the extent it seeks information that is confidential, proprietary, and/or constitutes trade secrets of Penterra and/or Meridian National Distributors, Inc. ("Meridian"), including the specific commercial terms of Penterra's negotiations and potential arrangements with Meridian.
Penterra further objects to this Interrogatory to the extent it is not relevant or proportional to the needs of the case. The central issue in this action is the scope of the Territory defined in Exhibit A of the EDA between Penterra and Vantage, and whether Vantage exceeded the boundaries of that Territory. The details of Penterra's negotiations with third-party distributors are, at most, only marginally relevant to that issue.
Penterra further objects to the extent this Interrogatory is overbroad in seeking "all agreements" and "any other Penterra product," without limitation as to time period, product, or geographic scope.
Response:
Subject to and without waiving the foregoing General and specific objections, and subject to the terms and conditions of the Confidentiality Stipulation and Protective Order entered by the Court on June 15, 2021, Penterra identifies the following:
(a) February 15, 2021 — Non-Binding Term Sheet: On February 15, 2021, Penterra executed a non-binding term sheet with Meridian National Distributors, Inc. for the distribution of Oncalaris® (pegvisomant-axel, 20 mg and 40 mg vials) in the states of New York, New Jersey, Pennsylvania, and Maryland. The term sheet was signed by Steven Kapoor, Vice President of Commercial Operations, on behalf of Penterra, and by Thomas Welliver, President, on behalf of Meridian. The term sheet contemplated exclusive regional distribution rights for Meridian in the four above-referenced states, with a proposed term of three years and an annual minimum purchase commitment. The arrangement contemplated by the term sheet was not finalized, and no definitive distribution agreement was executed between Penterra and Meridian, in part because of Vantage's assertion — communicated through counsel's letter of March 22, 2021 — that its exclusive rights under the EDA encompassed the tri-state area (New York, New Jersey, and Pennsylvania).
After a reasonable search of its records, Penterra is not aware of any other agreements, term sheets, letters of intent, or other similar documents between Penterra and Meridian relating to the distribution of Oncalaris®, Renuvesta®, or any other Penterra product.
Penterra has produced a copy of the February 15, 2021 non-binding term sheet as Bates-stamped documents PENTERRA-000298 through PENTERRA-000304, subject to the Confidentiality Stipulation and Protective Order.
INTERROGATORY NO. 6
State the date on which Penterra first became aware that Vantage was distributing Oncalaris® or any other Penterra product to customers in New York, New Jersey, or Pennsylvania, and describe how Penterra became aware of such distribution.
Objections:
Penterra objects to this Interrogatory to the extent it seeks information protected by the attorney-client privilege, including information regarding when Penterra's legal counsel was informed or consulted about the issue of Vantage's out-of-territory distribution, and the substance of any communications between Penterra's business personnel and legal counsel regarding the same.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:
Rachel Mendez, Director of Distribution & Logistics at Penterra, became aware in approximately late 2019 or early 2020 that certain Penterra product shipments fulfilled by Vantage may have been delivered to ship-to addresses located in the state of New York. At that time, it was not clear whether these shipments represented a systematic pattern of distribution outside the Territory or were isolated instances, such as occasional deliveries to satellite offices or affiliated locations of New England-based customers. Ms. Mendez conducted an internal inquiry at that time, which did not confirm a pattern of unauthorized distribution outside the Territory. Ms. Mendez raised the issue informally with Steven Kapoor, Vice President of Commercial Operations.
By approximately late September or early October 2020, Penterra's distribution and logistics team, led by Ms. Mendez, confirmed that Vantage had commenced systematic and regular shipments of Oncalaris® to hospitals, oncology clinics, and other healthcare facilities in the states of New York, New Jersey, and Pennsylvania, beginning on or about September 14, 2020. This confirmation was made through a comprehensive review of Penterra's order management and distribution tracking systems (the "OMS"), which flagged multiple delivery addresses located outside the six New England states that were associated with Vantage purchase orders. The review revealed that Vantage had placed purchase orders for Oncalaris® at volumes exceeding what would be expected for the New England Territory alone and had arranged for shipment to end customers in the tri-state area.
Following confirmation of Vantage's unauthorized tri-state distribution, Penterra's General Counsel, Jennifer Chao, Esq., issued a cease-and-desist letter to Donald R. Farnham at Vantage on March 8, 2021, demanding that Vantage immediately cease all distribution of Oncalaris® and any other Penterra product to customers located outside the six New England states defined in Exhibit A of the EDA. A copy of this letter has been produced as PENTERRA-000215 through PENTERRA-000218.
INTERROGATORY NO. 7
Describe in detail all actions Penterra took, or failed to take, in response to learning that Vantage was distributing Penterra products to customers outside the Territory defined in Exhibit A, including the dates and persons involved.
Objections:
Penterra objects to this Interrogatory to the extent the phrase "failed to take" is argumentative, assumes facts not in evidence, and is designed to elicit admissions regarding alleged inaction or delay by Penterra, rather than to seek neutral factual information. Penterra construes this Interrogatory as seeking a description of the steps Penterra took in response to its discovery of Vantage's unauthorized tri-state distribution.
Penterra further objects to this Interrogatory to the extent it seeks information protected by the attorney-client privilege and/or the work-product doctrine, including communications between Penterra's business personnel and its in-house and outside legal counsel, and internal deliberations, legal assessments, and strategy discussions conducted in anticipation of litigation and in preparation for the filing of this action.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:
(a) Upon confirmation of Vantage's unauthorized tri-state shipments in late September or early October 2020, Penterra's commercial and legal teams evaluated the situation internally. Steven Kapoor, Vice President of Commercial Operations, and Rachel Mendez, Director of Distribution & Logistics, conferred regarding the scope, volume, and duration of Vantage's out-of-territory shipments and the potential impact on Penterra's distribution network and third-party distributor relationships.
(b) Jennifer Chao, Esq., General Counsel of Penterra, was consulted regarding the matter. The substance of internal deliberations between Penterra's business personnel and Ms. Chao regarding legal strategy, risk assessment, and the determination of an appropriate course of action are protected by the attorney-client privilege and are withheld on that basis.
(c) On March 8, 2021, Jennifer Chao, in her capacity as General Counsel of Penterra, sent a written cease-and-desist letter to Donald R. Farnham, Managing Member and CEO of Vantage, at Vantage's principal offices. The letter demanded that Vantage immediately cease all distribution of Penterra products — including but not limited to Oncalaris® and Renuvesta® — to customers located outside the six New England states defined in Exhibit A of the EDA. The letter identified the specific EDA provisions that Penterra contended Vantage had breached, including Sections 2.1, 2.3, and the Territory definition in Exhibit A, and reserved all of Penterra's rights and remedies under the EDA and applicable law.
(d) On March 22, 2021, Penterra received a written response from Kenneth M. Rourke, Esq., of Hargrove, Sinclair & Polk LLP, on behalf of Vantage. Mr. Rourke's letter asserted that Vantage had a contractual right to distribute Penterra products in the tri-state area based on, inter alia, the January 12, 2018 Kapoor email and an alleged course of dealing between the parties. The letter further threatened a $35 million breach-of-contract and tortious interference counterclaim against Penterra in the event that Penterra attempted to terminate the EDA or appoint an alternative distributor for the tri-state area.
(e) Following receipt of Vantage's counsel's letter, Penterra retained Calderwood & Harkness LLP as outside litigation counsel. The engagement letter between Penterra and Calderwood & Harkness LLP is dated March 29, 2021.
(f) On April 12, 2021, Penterra, through Calderwood & Harkness LLP, filed the Complaint for Declaratory Judgment in this action in the Suffolk Superior Court, Business Litigation Session, seeking a declaration that the Territory under the EDA is limited to the six New England states as defined in Exhibit A and that Vantage's distribution of Penterra products in New York, New Jersey, and Pennsylvania constitutes a material breach of the EDA.
INTERROGATORY NO. 8
Identify all revenues Penterra received or expects to receive from the distribution of Oncalaris® and Renuvesta® in the tri-state area (New York, New Jersey, and Pennsylvania) from any distributor other than Vantage during the period from July 1, 2017 to the present.
Objections:
Penterra objects to this Interrogatory as overbroad and not proportional to the needs of the case insofar as it encompasses revenues from all distribution channels — including national specialty pharmacy partners and direct-to-institution sales channels — that operate independently from Penterra's regional exclusive distribution arrangements and are unrelated to the dispute over the scope of Vantage's Territory under the EDA. The revenues generated through Penterra's national specialty pharmacy network are not attributable to any regional exclusive distribution agreement and are not relevant to the claims or defenses in this action.
Penterra further objects to the extent the phrase "expects to receive" calls for speculation and conjecture regarding future revenues that have not yet been earned or recognized and that depend upon numerous contingencies, market conditions, and business decisions.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:
During the relevant period of July 1, 2017 to the present, Penterra distributed Oncalaris® and Renuvesta® in the tri-state area (New York, New Jersey, and Pennsylvania) through its national specialty pharmacy partners, which operate independently from Penterra's regional exclusive distribution arrangements. Penterra's national specialty pharmacy partners distribute Penterra products on a nationwide basis pursuant to separate agreements that are not geographically exclusive and that are structured differently from Penterra's regional exclusive distribution model, of which the EDA with Vantage is one example.
Penterra did not appoint any regional exclusive distributor for the tri-state area during the period from July 1, 2017 to the present. As stated in Penterra's response to Interrogatory No. 5 above, the non-binding term sheet with Meridian National Distributors, Inc. dated February 15, 2021 was never consummated, and no definitive distribution agreement was executed between Penterra and Meridian.
Penterra's national distribution revenues in the tri-state area are tracked in the ordinary course of business but are maintained and reported at the national level and are not directly comparable to, or severable from, the revenues generated through Penterra's regional exclusive distribution model. To the extent such information is relevant and responsive, Penterra refers Vantage to the financial documents produced as Bates-stamped documents PENTERRA-000350 through PENTERRA-000412, which contain revenue data by geographic region and distribution channel, subject to the terms and conditions of the Confidentiality Stipulation and Protective Order.
INTERROGATORY NO. 9
State whether Penterra contends that the EDA's integration clause (Section 14.8) and amendment provision (Section 13.1) preclude any oral or implied modification of the Territory, and set forth the complete factual and legal basis for such contention.
Objections:
Penterra objects to this Interrogatory to the extent it calls for a pure legal conclusion and to the extent it seeks disclosure of attorney work product, mental impressions, legal analysis, and litigation strategy developed by Penterra's counsel in anticipation of litigation and in preparation for trial.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra responds as follows:
Yes, Penterra contends that Section 14.8 (the integration clause) and Section 13.1 (the written-amendment requirement) of the EDA, individually and in combination, preclude any oral or implied modification of the Territory as defined in Exhibit A of the EDA.
Section 14.8 of the EDA provides, in full:
"This Agreement, including all Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral."
Section 13.1 of the EDA provides, in relevant part:
"No amendment, modification, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by both parties."
These provisions, taken together, establish that the EDA is a fully integrated agreement and that no modification of any provision — including the Territory definition in Exhibit A — may be accomplished except through a written instrument signed by both Penterra and Vantage. No such written instrument has ever been executed. The Kapoor email of January 12, 2018 was not "a written instrument signed by both parties," and no other document exists that purports to amend, modify, or expand the Territory definition in Exhibit A.
Under Massachusetts law, integration clauses and written-amendment provisions are generally enforceable and serve to preclude claims of oral or implied modification. See Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122, 131-32 (2000) (holding that "a merger clause in a fully integrated agreement bars evidence of prior or contemporaneous agreements or negotiations to contradict, vary, or add to the terms of the writing"); see also Starr v. Fordham, 420 Mass. 178, 189 (1995) (recognizing the enforceability of contract provisions requiring that amendments be made in writing). The parties to a commercial agreement are entitled to rely on the stability and predictability provided by such provisions, particularly in the context of a sophisticated distribution arrangement between commercial entities represented by counsel.
Penterra further notes that Vantage's anticipated course-of-dealing and course-of-performance arguments are unavailing because: (a) no course of dealing or course of performance can override an express written-amendment requirement contained in the EDA, particularly where the integration clause expressly supersedes all prior negotiations, representations, and agreements; (b) Penterra did not acquiesce in or consent to Vantage's unauthorized tri-state distribution, but rather promptly demanded cessation of such activity upon confirmation of the same; and (c) the January 12, 2018 Kapoor email, upon which Vantage relies, does not constitute a course of dealing or course of performance, but rather a single, forward-looking, conditional expression of willingness to explore future possibilities, which by its own terms was never acted upon.
INTERROGATORY NO. 10
Describe Penterra's distribution network for Oncalaris® and Renuvesta®, including the identity of all distributors, the geographic territories assigned to each, and the terms and duration of any distribution agreements.
Objections:
Penterra objects to this Interrogatory as overbroad, unduly burdensome, and not proportional to the needs of the case insofar as it seeks detailed information about the entirety of Penterra's distribution network, including distribution arrangements with third parties that are wholly unrelated to the dispute over the scope of Vantage's exclusive Territory under the EDA. The composition, structure, and terms of Penterra's distribution arrangements in geographic regions other than the Territory at issue provide no relevant information regarding whether Vantage exceeded the boundaries of its Territory or whether the Kapoor email constitutes "prior written consent" under Section 2.3.
Penterra further objects to the extent this Interrogatory seeks confidential and proprietary trade secret information regarding Penterra's commercial distribution strategy, pricing, and relationships with third-party distributors. Public disclosure of the identities of Penterra's distribution partners, the specific geographic territories assigned to each, and the financial and operational terms of those relationships would cause competitive harm to Penterra and would violate confidentiality obligations owed by Penterra to its non-party distribution partners.
Penterra further objects to the extent the disclosure of the terms of Penterra's agreements with non-party distributors is restricted by confidentiality provisions contained in those agreements, the breach of which could expose Penterra to liability to those third parties.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra states as follows:
Penterra distributes its products, including Oncalaris® (pegvisomant-axel, 20 mg and 40 mg vials) and Renuvesta® (cilosporin-beta, 5 mg capsules), through a multi-channel distribution network consisting of regional exclusive distributors and two national specialty pharmacy partners. The EDA with Vantage covers the six New England states — Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — for the distribution of Oncalaris® and Renuvesta®.
Penterra's distribution arrangements with non-party distributors, including the identities of those distributors, the geographic territories assigned to them, and the specific terms and duration of their respective agreements, are not relevant to the determination of the scope of Vantage's Territory under the EDA and involve confidential commercial terms that are proprietary to Penterra and, in many cases, subject to reciprocal confidentiality obligations. To the extent the Court orders further disclosure of such information, Penterra will comply with any such order, subject to any applicable protective order provisions designed to safeguard Penterra's and its distribution partners' confidential business information.
INTERROGATORY NO. 11
Identify all persons with knowledge of the facts and circumstances relevant to this action, and for each such person state the subject matter of his or her knowledge.
Objections:
Penterra objects to this Interrogatory as compound and overbroad to the extent it seeks the identification of every person in the world who may possess any information of any kind that could conceivably be deemed "relevant" to any issue in this action. Penterra further objects to the extent this Interrogatory seeks information protected by the attorney-client privilege and/or the work-product doctrine, including the identification of consultants, experts, or other persons retained by Penterra or its counsel in anticipation of litigation or in preparation for trial, and the substance of communications between such persons and counsel.
Response:
Subject to and without waiving the foregoing General and specific objections, Penterra identifies the following persons who are known to Penterra to have knowledge of facts and circumstances relevant to this action:
(a) Steven Kapoor, Vice President, Commercial Operations, Penterra Pharmaceuticals Corp. — Mr. Kapoor has knowledge regarding: the negotiation and execution of the EDA; the intended scope of the Territory; the authorship, context, and intent of the January 12, 2018 email to Donald R. Farnham; Penterra's commercial distribution strategy for Oncalaris® and Renuvesta®; Penterra's dealings with Meridian National Distributors, Inc. regarding the February 15, 2021 non-binding term sheet; communications with Donald R. Farnham and other Vantage personnel regarding the EDA and distribution matters; and Penterra's response to Vantage's unauthorized tri-state distribution.
(b) Rachel Mendez, Director of Distribution & Logistics, Penterra Pharmaceuticals Corp. — Ms. Mendez has knowledge regarding: distribution logistics and operations under the EDA; Penterra's order management systems and distribution tracking systems; the identification and confirmation of Vantage's unauthorized shipments to customers in New York, New Jersey, and Pennsylvania; Penterra's shipment tracking and order fulfillment records for Oncalaris® and Renuvesta®; and the logistics and supply chain provisions of the EDA.
(c) Jennifer Chao, Esq., General Counsel, Penterra Pharmaceuticals Corp. — Ms. Chao has knowledge regarding: the legal review and approval of the EDA; the issuance of the March 8, 2021 cease-and-desist letter to Vantage; and Penterra's legal assessment of Vantage's out-of-territory distribution. Penterra notes that significant portions of Ms. Chao's knowledge are protected by the attorney-client privilege and are withheld on that basis.
(d) Dr. Marcus Lindholm, Chief Executive Officer, Penterra Pharmaceuticals Corp. — Dr. Lindholm has knowledge regarding: executive-level approval of the EDA; Penterra's general distribution strategy for its pharmaceutical products; and general awareness of the dispute with Vantage.
(e) Donald R. Farnham, Managing Member and Chief Executive Officer, Vantage Medical Distribution, LLC — Mr. Farnham has knowledge regarding: the negotiation and execution of the EDA on behalf of Vantage; receipt of and response to the January 12, 2018 email from Steven Kapoor; Vantage's decision to commence distribution of Penterra products in the tri-state area; communications with Penterra personnel regarding distribution matters; and receipt of the March 8, 2021 cease-and-desist letter.
(f) Lisa Petrangelo, Chief Operating Officer, Vantage Medical Distribution, LLC — Ms. Petrangelo has knowledge regarding: Vantage's operational activities, including logistics, warehousing, and distribution; Vantage's expansion of distribution operations into the tri-state area; and Vantage's internal planning and decision-making regarding tri-state distribution.
(g) Brian Kopec, Outside Sales Director, Vantage Medical Distribution, LLC — Mr. Kopec has knowledge regarding: Vantage's sales activities in the tri-state area; customer contacts, solicitation, and account development in New York, New Jersey, and Pennsylvania; and the scope and volume of Vantage's tri-state distribution operations.
(h) Thomas Welliver, President, Meridian National Distributors, Inc. — Mr. Welliver has knowledge regarding: the negotiation and execution of the February 15, 2021 non-binding term sheet between Penterra and Meridian for the distribution of Oncalaris® in the tri-state area and Maryland; and the circumstances under which the term sheet was not consummated.
Penterra reserves the right to supplement this response as additional persons with knowledge of relevant facts and circumstances are identified during the course of ongoing discovery, including through depositions and document review.
INTERROGATORY NO. 12
State the total dollar amount of all purchases of Oncalaris® and Renuvesta® by Vantage under the EDA for each fiscal year from 2017 through 2021 (year to date), broken down by product.
Objections:
Penterra objects to this Interrogatory to the extent that the information sought is equally available to Vantage from Vantage's own business records, purchase orders, invoices, and accounting systems. Vantage, as the purchaser, maintains its own records of purchases under the EDA and is in at least an equal, if not superior, position to compile this information from its own files.
Response:
Subject to and without waiving the foregoing General and specific objection, Penterra states the following based on its records regarding purchases of Oncalaris® by Vantage under the EDA at wholesale acquisition cost ("WAC"):
•  Fiscal Year 2017 (July 1, 2017 through June 30, 2018): Penterra's records for this period reflect a partial year of operations under the EDA (effective July 1, 2017). Precise revenue figures for this initial partial period are being compiled and will be supplemented.
•  Fiscal Year 2018 (July 1, 2018 through June 30, 2019): Approximately $11.2 million in Oncalaris® purchases by Vantage at WAC.
•  Fiscal Year 2019 (July 1, 2019 through June 30, 2020): Approximately $14.8 million in Oncalaris® purchases by Vantage at WAC.
•  Fiscal Year 2020 (July 1, 2020 through June 30, 2021): Approximately $18.3 million in Oncalaris® purchases by Vantage at WAC. Penterra notes that this figure includes the period during which Vantage was engaged in unauthorized distribution of Oncalaris® in the tri-state area, and the volume of purchases associated with tri-state distribution contributed to the increase in total purchase volume during this period.
•  Fiscal Year 2021 (July 1, 2021 through approximately September 30, 2021, i.e., year to date at the time of these responses): Approximately $16.1 million in Oncalaris® purchases by Vantage at WAC for the first approximately nine months, which annualizes to approximately $21.47 million.
The minimum annual purchase commitment for Oncalaris® under Section 5.2 of the EDA is $9.5 million per year at WAC. Based on the foregoing figures, Vantage exceeded this minimum annual purchase commitment in each full fiscal year of the EDA. Penterra notes, however, that the fact that Vantage met or exceeded minimum purchase commitments does not excuse, ratify, or otherwise legitimize Vantage's unauthorized distribution of Penterra products outside the Territory.
Penterra's records regarding Renuvesta® (cilosporin-beta, 5 mg capsules) purchases by Vantage are maintained in the ordinary course of business. Penterra is in the process of compiling this information and will supplement this response upon reasonable request or as required by the Court's scheduling orders.
Penterra further refers Vantage to the financial documents produced in this action as Bates-stamped documents PENTERRA-000420 through PENTERRA-000468, which contain detailed purchase and revenue data relevant to this Interrogatory.
VERIFICATION
VERIFICATION
I, Steven Kapoor, state as follows:
I am the Vice President, Commercial Operations, of Penterra Pharmaceuticals Corp., the Plaintiff in the above-captioned action. I am the person with the most direct personal knowledge of the commercial matters addressed in the foregoing Responses and Objections to Defendant Vantage Medical Distribution, LLC's First Set of Interrogatories. I have reviewed the foregoing Responses and Objections and the factual statements contained therein. I verify under the penalties of perjury that the factual statements set forth in the foregoing Responses are true and correct to the best of my knowledge, information, and belief, based upon a reasonable inquiry.
________________________________________
Steven Kapoor Vice President, Commercial Operations Penterra Pharmaceuticals Corp. 400 Carnegie Center Drive, Suite 600 Princeton, New Jersey 08540
Date: ________
COMMONWEALTH OF NEW JERSEY COUNTY OF MERCER
On this __ day of October, 2021, before me, the undersigned notary public, personally appeared Steven Kapoor, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public My Commission Expires: _____
CERTIFICATE OF SERVICE
I, Hannah Brinkley, hereby certify that on this 4th day of October, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s Responses and Objections to Defendant Vantage Medical Distribution, LLC's First Set of Interrogatories was served upon counsel for Defendant by electronic service and first-class mail, postage prepaid, to:
Kenneth M. Rourke, Esq. Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, Massachusetts 02109 Telephone: (617) 555-4200
Email: krourke@hsplaw.com; afontaine@hsplaw.com
CALDERWOOD & HARKNESS LLP
By: ________
Hannah Brinkley (BBO No. 694217) Patrick Gallagher (BBO No. 701843) 1 Federal Street, 35th Floor Boston, Massachusetts 02110 Telephone: (617) 555-7100 Facsimile: (617) 555-7101
Email: hbrinkley@calderwoodharkness.com
Email: pgallagher@calderwoodharkness.com
Attorneys for Plaintiff Penterra Pharmaceuticals Corp.
Date: October 4, 2021
PENTERRA PHARMACEUTICALS CORP.,
Plaintiff,
v.
VANTAGE MEDICAL DISTRIBUTION, LLC,
Defendant.

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT BUSINESS LITIGATION SESSION

GENERAL OBJECTIONS

SPECIFIC INTERROGATORY RESPONSES

INTERROGATORY NO. 1

INTERROGATORY NO. 2

INTERROGATORY NO. 3

INTERROGATORY NO. 4

INTERROGATORY NO. 5

INTERROGATORY NO. 6

INTERROGATORY NO. 7

INTERROGATORY NO. 8

INTERROGATORY NO. 9

INTERROGATORY NO. 10

INTERROGATORY NO. 11

INTERROGATORY NO. 12

VERIFICATION

VERIFICATION

COMMONWEALTH OF NEW JERSEY COUNTY OF MERCER

CERTIFICATE OF SERVICE

CALDERWOOD & HARKNESS LLP

PENTERRA PHARMACEUTICALS CORP.,

VANTAGE MEDICAL DISTRIBUTION, LLC,

Record

Parties

Dates

Amounts