Contract analysis

I. Introduction and Overview The purpose of this memorandum is to memorialize, summarize, and analyze the deposition testimony of Steven Kapoor, Vice President of Commercial Operations at Penterra Pharmaceuticals Corp. ("Penterra" or "the Company"), taken on November 2, 2021. This memorandum is prepared for the use of the litigation team and is protected by the attorney-client privilege and the work-product doctrine.

II. Witness Background and Role Steven Kapoor has served as Vice President of Commercial Operations at Penterra Pharmaceuticals Corp. since 2015. In that capacity, he reports directly to Dr. Marcus Lindholm, Penterra's Chief Executive Officer. Kapoor testified that his responsibilities encompass oversight of Penterra's entire commercial distribution network, including management of relationships with regional exclusi

III. Pre-Deposition Preparation Notes Preparation sessions for the Kapoor deposition were held on two dates: Thursday, October 28, 2021 (approximately three hours, 10:00 a.m. to 1:00 p.m.), and Monday, November 1, 2021 (approximately two and one-half hours, 2:00 p.m. to 4:30 p.m.), the day before the deposition. Both sessions were conducted at the offices of Calderwood & Harkness LLP and were led by Hannah Brinkley,

1. Extensive questioning on the January 12, 2018 email, including Kapoor's intent, the surrounding context, any prior or subsequent communications with Farnham about the tri-state expansion, and whether the email created a "reasonable expectation" of territorial expansion.

2. Questions about any oral conversations between Kapoor and Farnham — whether during the January 11, 2018 phone call or at other times — regarding tri-state distribution, with the goal of establishing a course of dealing or oral modification theory.

3. Questions about Kapoor's awareness of Vantage's shipments into New York, New Jersey, and Pennsylvania beginning in late 2019, and the delay between such awareness and Penterra's March 8, 2021 cease-and-desist letter, aimed at supporting a waiver or acquiescence defense.

4. Questions regarding Vantage's strong purchase performance and whether that performance was attributable to tri-state sales, designed to support Vantage's argument that Penterra implicitly benefited from and therefore ratified the unauthorized distribution. Review of Farnham Deposition Transcript. We reviewed the complete transcript of the October 18, 2021 Farnham deposition with Kapoor, particularly those portions

IV. Summary of Key Testimony A. Negotiation and Execution of the EDA Kapoor testified that he was Penterra's lead negotiator for the Exclusive Distribution Agreement with Vantage Medical Distribution, LLC. The EDA was executed on July 1, 2017, following approximately four months of negotiations that began in March 2017. Kapoor stated that the initial contact came from Donald Farnham, who approached Penterra about an

V. Defense Notes and Objections Hannah Brinkley's defense of the deposition was effective and well-calibrated. She lodged objections at several points during the examination, principally as follows: Objections to Form. Brinkley objected to the form of compound and leading questions on multiple occasions, particularly during Rourke's examination regarding the Kapoor Email's purported legal effect. Several of Rourke's

VI. Comparison with Farnham Deposition Testimony (October 18, 2021) A critical component of our case strategy involves comparing the testimony of the two principal witnesses — Kapoor and Farnham — on the central factual disputes in this litigation. The following analysis summarizes the key points of convergence and divergence between their respective testimonies. Farnham's Characterization of the Kapoor Email. Farnha

VII. Assessment and Implications for Summary Judgment Kapoor's deposition testimony strongly supports Penterra's anticipated motion for summary judgment, which we plan to file in February 2022 following the close of fact discovery on January 14, 2022. The following analysis identifies the key points from Kapoor's testimony that should be featured in the motion and supporting memorandum:

1. Unambiguous Territory Definition. The plain language of Exhibit A unambiguously limits the Territory to six enumerated New England states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Kapoor's testimony confirms that this limitation was deliberately negotiated, that Vantage requested and was denied a broader territory during the EDA negotiations, and that both parties understood at

2. The Kapoor Email Is Not "Prior Written Consent." The Kapoor Email is forward-looking and conditional by its express terms. It does not constitute "prior written consent" under Section 2.3 of the EDA. Kapoor's testimony regarding his intent in writing the email — that it was a courtesy expression of future willingness to discuss expansion, not a present grant of any rights — is consistent with the email's plain lan

3. Section 13.1 Written-Amendment Requirement. Even if the January 12, 2018 email could arguably be construed as some form of informal approval or expression of consent (which we do not concede), it plainly does not satisfy Section 13.1's requirement that amendments to the EDA be set forth in a "written instrument signed by both parties." The email is an unsigned, three-sentence, informal communication. It was not dr

4. Integration Clause Bars Extrinsic Evidence. Section 14.8's entire agreement and integration clause precludes the introduction of extrinsic evidence — whether in the form of oral conversations, informal emails, or course-of-dealing evidence — to modify or supplement the written terms of the EDA. Vantage's attempt to rely on the Kapoor Email and alleged oral discussions to expand the contractually defined Territory

5. Massachusetts Law Enforces Written-Modification Clauses. Under Massachusetts law, contractual provisions requiring that modifications be in writing and signed by both parties are generally enforceable and will be given effect. Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122, 131–32 (2000). The Supreme Judicial Court has recognized that such clauses serve the important commercial purpose of p

6. No Waiver or Acquiescence. Penterra's delay in issuing the cease-and-desist letter does not constitute waiver or acquiescence in Vantage's unauthorized tri-state distribution. Kapoor's testimony provides a reasonable and credible explanation for the delay — the initial reports were anecdotal and unconfirmed, Penterra needed time to gather and analyze the relevant logistics data, and once the unauthorized activity

VIII. Remaining Depositions The following depositions remain on the litigation calendar before the close of fact discovery: Rachel Mendez — Deposition scheduled for November 19, 2021. Mendez is the Director of Distribution & Logistics at Penterra and reports to Kapoor. She will testify about the distribution logistics framework under the EDA, including Penterra's internal systems for directing Oncalaris® shipments in

IX. Action Items The following action items arise from the Kapoor deposition and this memorandum:

1. Circulate this memorandum to Linda Osei, Priya Anand, and Hannah Brinkley for review and comment. Please direct any corrections, additions, or questions to me by November 12, 2021.

2. Begin drafting Kapoor affidavit for the anticipated summary judgment filing in February 2022. The affidavit should track the key testimony summarized above and should be prepared in draft form promptly following receipt of the certified transcript.

3. Cross-reference Kapoor transcript with Farnham transcript for any additional inconsistencies, admissions, or points of divergence that can be exploited in the summary judgment briefing. I will prepare a side-by-side comparison chart of key testimony by both witnesses on the central disputed issues.

4. Coordinate with Hannah Brinkley on preparation for the Mendez deposition (November 19, 2021). Mendez's testimony on the logistics data and the timeline of Penterra's awareness of the unauthorized shipments should corroborate Kapoor's account and provide the quantitative foundation for our breach-of-contract claims. A preparation session should be scheduled for the week of November 15.

5. Flag for the Kopec deposition outline: Explore during the Kopec deposition whether Kopec received any direct communication from Penterra — beyond the January 12, 2018 Kapoor Email — that Kopec understood as authorization for tri-state sales. If Kopec did not receive any such communication, this strengthens our position that Penterra never authorized the tri-state expansion. If Kopec identifies any additional commu

6. Retain certified copy of the Kapoor deposition transcript for the court record upon receipt from Murray & Associates. Verify all page-and-line references in this memorandum and in the Appendix below against the certified final transcript and make any necessary corrections.

X. Appendix: Key Transcript Excerpts (Page and Line References) Note: All page and line references are based on the rough draft transcript dated November 3, 2021, and should be verified against the certified final transcript upon receipt. Minor pagination adjustments are expected. The following table identifies the key transcript excerpts from the Kapoor deposition that are most relevant to the issues in this litigat