Contract analysis

From: Linda Osei <losei@calderwoodharkness.com> To: Jennifer Chao <jchao@penterra.com> Cc: Priya Anand <panand@calderwoodharkness.com> Date: Mon, 14 Feb 2022 04:47:00 -0000 Subject: Penterra v. Vantage (Docket No. 2184-CV-01537-BLS) — Motion for Summary Judgment Filed

I am writing to confirm that on Friday, February 11, 2022, Calderwood & Harkness LLP filed Penterra's Motion for Summary Judgment in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County, before the Honorable Diane L. Costigan, J., Docket No. 2184-CV-01537-BLS. The filing included (a) a Memorandum of Law in Support of Penterra's Motion for Summary Judgment, (b) Penterra's Statement of Undis

I wanted to provide you with a summary of the motion's key arguments, the supporting evidence, and the expected timeline going forward.

Our Memorandum of Law advances the following principal arguments in support of summary judgment:

First, the plain language of the Exclusive Distribution Agreement dated July 1, 2017 (the "EDA") is unambiguous. Exhibit A to the EDA defines the Territory as the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — collectively, the New England States. New York, New Jersey, and Pennsylvania are simply not included. There is no ambiguity to construe and no gap to fill.

Second, the January 12, 2018 email from Steven Kapoor to Donald Farnham (the "Kapoor Email") does not constitute consent or an amendment to the EDA. While the email expressed a willingness to "explore" future expansion into additional states, it did not constitute "prior written consent" under Section 2.3 of the EDA, nor did it satisfy the requirements for a formal amendment under Section 13.1, which expressly requir

Third, the EDA's integration clause bars Vantage's reliance on extrinsic evidence. Section 14.8 contains an integration and entire-agreement clause establishing that the Agreement and its Exhibits constitute the entire agreement between the parties and supersede all prior negotiations, representations, or agreements. This provision bars Vantage's attempt to introduce extrinsic evidence of an alleged oral or implied m

Fourth, Massachusetts law enforces written-modification clauses. Under well-established Massachusetts precedent, written-modification clauses are generally enforceable. See *Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics*, 433 Mass. 122 (2000). Vantage's course-of-dealing argument — that Penterra's alleged failure to object to certain shipments amounted to a modification of the Territory — fails as a matter

Finally, the motion seeks dismissal of all three of Vantage's counterclaims — breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel — on the grounds that each is premised on the same flawed theory that the Territory was expanded beyond the six New England States. Because there was no valid expansion of the Territory, none of these counterclaims can survive summary

The motion is supported by two affidavits:

The Affidavit of Steven Kapoor, Vice President of Commercial Operations at Penterra, attests that his January 12, 2018 email to Mr. Farnham was intended to express openness to future discussions about potential expansion — not to grant written consent under Section 2.3 or to amend the Territory under Exhibit A. Mr. Kapoor's affidavit testimony is fully consistent with his deposition testimony given on November 2, 202

The Affidavit of Rachel Mendez, Director of Distribution & Logistics at Penterra, attests to Penterra's distribution logistics framework and confirms that Penterra's systems directed Oncalaris® shipments to Vantage only for delivery to New England addresses. Ms. Mendez confirms that Penterra never authorized Vantage to ship to tri-state customers. Her affidavit further notes that Vantage's unauthorized tri-state ship

**Statement of Undisputed Material Facts**

Our Rule 9A(b)(5) statement enumerates the key undisputed facts that entitle Penterra to judgment as a matter of law, including: the execution of the EDA on July 1, 2017; the Exhibit A territory definition limited to the six New England States; the January 12, 2018 Kapoor Email; Vantage's commencement of tri-state shipments on or about September 14, 2020; approximately $6.4 million in unauthorized tri-state revenues;

**Deposition Record Supporting the Motion**

As you know, fact discovery closed on January 14, 2022. The deposition testimony we obtained was favorable to Penterra's position and meaningfully strengthens this motion. In particular:

- Donald Farnham (deposed October 18, 2021) acknowledged that he did not obtain a signed amendment to Exhibit A and that no Penterra officer expressly authorized tri-state shipments in writing. This testimony is highly significant and substantially undermines Vantage's position. - Brian Kopec (deposed December 7, 2021) provided testimony that was similarly favorable on key points. - Steven Kapoor (deposed November 2,

**Expected Briefing Schedule and Timeline**

Under the court's scheduling order and applicable rules, Vantage's opposition brief (and any cross-motion for summary judgment) is due fourteen days after service, which we expect to be on or about February 25, 2022. If Vantage files a cross-motion — which would not be surprising given that the dispute turns largely on questions of contract interpretation and Massachusetts law, issues well-suited for summary disposit

Overall, we estimate that a decision from Judge Costigan could come sometime in the late spring or summer of 2022, well before any trial would need to be scheduled.

I am pleased to report that the matter has progressed efficiently. With fact discovery now complete and the motion filed, the team is well within the estimated budget range of $750,000–$1,200,000 that we discussed in the March 29, 2021 engagement letter. I am happy to provide a more detailed fee status report if you would find that helpful — just let me know.

I also want to flag two items that may be relevant to Penterra's broader business planning. First, a favorable ruling on our motion would clear the path for Penterra to proceed with the Meridian National Distributors arrangement for Oncalaris® distribution in New York, New Jersey, and Pennsylvania, referencing the term sheet executed with Meridian on February 15, 2021, which has been on hold pending resolution of thi

Second, as you and Steven may already have in mind, the EDA's original five-year term expires on June 30, 2022. You may wish to consider the non-renewal notice provisions — which require 180 days' written notice — in connection with any broader distribution strategy decisions Penterra is evaluating. This is, of course, a business decision for the Penterra team, but we are available to discuss the contractual framewor

Our team will monitor for Vantage's response and any cross-motion filing, which we expect around February 25, 2022, and we will promptly begin preparing Penterra's opposition and/or reply once we receive their papers. We will circulate Vantage's filing to you as soon as it is received.

Please let me know if you have any questions about the motion or any of the foregoing, or if you would like to schedule a call to discuss. I am available at any time, and Priya and Hannah are likewise ready to assist.

We feel very good about the strength of this motion and the record supporting it. Thank you for your continued confidence in our team.

**Linda Osei** Partner Calderwood & Harkness LLP 1 Federal Street, 35th Floor Boston, MA 02110 Tel: (617) 555-4200 losei@calderwoodharkness.com

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