Contract analysis

I. PURPOSE AND OVERVIEW This memorandum is prepared for your use in preparing for and delivering oral argument on the cross-motions for summary judgment scheduled for Friday, May 6, 2022. The purpose of this memorandum is to provide a comprehensive and organized reference document that you can consult in advance of the hearing and, as needed, during argument itself. As you know, Penterra's motion for summary judgment

II. CONCISE CASE FRAMING FOR ORAL PRESENTATION The following summary is designed to provide a clear, persuasive narrative that can be adapted for use in the opening minutes of oral argument. The objective is to frame the dispute as a straightforward contract-interpretation case that is ideally suited for resolution on summary judgment. The Parties. Penterra Pharmaceuticals Corp. ("Penterra") is a Delaware corporation

Section 2.1 of the EDA granted Vantage the "exclusive right to distribute the Products within the Territory, as defined in Exhibit A." Exhibit A, which was attached to and incorporated into the EDA, defined the Territory as follows: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')." The definition is clear, specific, and leaves no room

Section 2.3 of the EDA imposed a critical limitation on Vantage's distribution rights. It provides: "Distributor shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent." This provision reinforces the territorial limitation of Exhibit A and establishes that any expansion beyond the six New England states requires Penterra's express prior written c

III. THE THREE STRONGEST AUTHORITIES UNDER MASSACHUSETTS LAW The following three authorities represent the strongest foundations for Penterra's position. Each addresses a distinct pillar of our argument — the enforceability of written-modification clauses, the parol evidence rule, and the limitations on promissory estoppel in the face of express contractual provisions. Together, these authorities form a comprehensive

IV. ANTICIPATED QUESTIONS FROM THE BENCH WITH SUGGESTED RESPONSES Based on a review of Judge Costigan's prior opinions in the Business Litigation Session and the arguments raised in Vantage's briefing, the following questions are the most likely to arise during oral argument. Each is accompanied by a suggested response and supporting record citations. Q1: "Didn't the Kapoor Email of January 12, 2018 give Vantage at l

V. KEY RECORD CITATIONS ORGANIZED BY TOPIC The following is a consolidated reference of the key record materials, organized by topic, for use during oral argument. Patrick Gallagher will have tabbed copies of each document and can locate specific citations as needed during the hearing. A. Contract Language B. The Kapoor Email (January 12, 2018) Full Text: "Don — good catching up yesterday. We're definitely open to ex

VI. REBUTTAL POINTS TO VANTAGE'S PRINCIPAL ARGUMENTS Vantage's opposition to Penterra's motion and cross-motion for summary judgment advances four principal theories: (A) the Kapoor Email constitutes written consent under Section 2.3; (B) a course of dealing and implied modification expanded the Territory; (C) promissory estoppel bars Penterra from denying Vantage's territorial rights; and (D) Penterra's conduct cons

1. The email is aspirational and conditional, not operative. The email does not use the language of consent, authorization, or approval. It says Penterra is "open to exploring expansion" — language of future possibility, not present grant. The expansion is expressly conditioned on a future event ("once your New England footprint is fully ramped"), and the email proposes a future discussion to evaluate the situation (

2. The email does not say "consent is hereby granted" or use any language of present authorization. Contrast the email's language with the type of communication that would constitute "prior written consent" under Section 2.3: a formal letter or amendment stating, for example, "Penterra hereby grants Vantage written consent to distribute the Products in New York, New Jersey, and Pennsylvania, effective as of [date]."

3. The email was not executed as a formal amendment. It bears no signatures. It makes no reference to Section 13.1 or any other provision of the EDA. It does not purport to amend Exhibit A. It is, by its form and content, an informal email between business contacts, not a contractual instrument.

4. Kapoor's own deposition testimony confirms the email was not intended as consent. At his November 2, 2021 deposition, Kapoor testified that the email was an expression of willingness to explore future expansion, not a grant of consent or authorization.

5. Farnham admitted that no signed amendment was obtained. At his October 18, 2021 deposition, Vantage's own CEO acknowledged that no signed amendment to Exhibit A was ever executed.

6. Under *Cambridge Biotech*, the written-modification clause controls. Section 13.1 requires a "written instrument signed by both parties" for any amendment, modification, or waiver. The Kapoor Email does not satisfy this requirement. Cambridge Biotech holds that such clauses are generally enforceable, and this court should enforce Section 13.1 according to its terms. B. Rebuttal to "Course of Dealing / Implied Modi

1. Section 13.1 expressly requires a written instrument signed by both parties for any amendment. A course of dealing — no matter how extensive — cannot satisfy this requirement. The parties specifically bargained for a written-amendment provision to ensure that any changes to the EDA would be deliberate, mutual, and documented. Allowing a course of dealing to override this provision would render Section 13.1 a nulli

2. Section 14.8 bars reliance on extrinsic evidence to modify the four corners of the agreement. The integration clause establishes that the EDA is the complete and final expression of the parties' agreement. Extrinsic evidence — including conduct, conversations, and informal communications — cannot be used to contradict or supplement the written terms. 3. *Cambridge Biotech* holds that written-modification clauses a

4. Penterra's distribution systems did not authorize or facilitate tri-state shipments through Vantage. Rachel Mendez testified that Penterra's systems directed Oncalaris® shipments to Vantage only for New England-addressed orders. The record does not support a finding that Penterra participated in, facilitated, or acquiesced to tri-state distribution.

5. Vantage cannot demonstrate Penterra's knowledge and acquiescence sufficient to override the express contract terms. Mendez testified that Penterra did not become aware of the scope of Vantage's tri-state activity until early 2021. The record does not support a finding of actual knowledge prior to that time, let alone the deliberate acquiescence that would be required — under any theory — to override a written-modi

6. Vantage's own sales director admitted awareness of the territorial restriction. Brian Kopec testified at his December 7, 2021 deposition that he was aware of the territorial restriction in the EDA and that he did not see a written amendment authorizing tri-state sales. This testimony undermines Vantage's claim that it reasonably understood the Territory to include the tri-state area. C. Rebuttal to Promissory Esto

1. Promissory estoppel requires a clear and definite promise; the Kapoor Email is neither. The email's language is conditional, aspirational, and forward-looking. It proposes a future discussion, not a present commitment. Under Massachusetts law, a promise must be "clear and definite" to support a promissory estoppel claim. An expression of willingness to explore future possibilities does not meet this standard.

2. Reliance was not reasonable given the existence of Sections 2.3, 13.1, and 14.8. Section 2.3 requires "prior written consent" for out-of-territory distribution. Section 13.1 requires a "written instrument signed by both parties" for any amendment. Section 14.8 establishes the EDA as the complete and final agreement. No reasonable party — particularly a sophisticated commercial actor with experienced counsel — coul

3. Donald Farnham's experience and sophistication defeat the reliance element. Farnham is not a naïve consumer who was misled by a powerful corporation. He is a former national wholesaler executive who founded Vantage in 2009 and has decades of experience in pharmaceutical distribution. He knew — or, at a minimum, should have known — that an informal email did not constitute a valid modification of the EDA.

4. The implied covenant and estoppel theories cannot override express contractual provisions under Massachusetts law. Under Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793 (2014), promissory estoppel cannot be used to override an express contractual provision where the parties have a governing written agreement with an integration clause. This holding directly controls and requires dismissal of the estoppel counterc

1. The counterclaim is premised on the assumption that the Territory includes the tri-state area. Once the court declares that the Territory is limited to the six New England states — as the plain language of Exhibit A provides — the counterclaim fails as a matter of law. Vantage has no contractual right to distribute in New York, New Jersey, or Pennsylvania, and therefore has no basis for a breach claim based on Pen

2. The $35 million damages figure lacks evidentiary support. The $35 million figure was first asserted in a March 22, 2021 letter from Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP, Vantage's counsel. Vantage has not provided a detailed damages calculation or supporting expert report. Given that Vantage's total revenue in FY 2021 was approximately $148 million — of which approximately $67 million (45.3%) was der

3. The counterclaim should be dismissed on the merits. Because the counterclaim depends entirely on Vantage's erroneous territorial claim, it should be dismissed for the same reasons that support Penterra's motion for summary judgment and the entry of a declaratory judgment confirming the Territory is limited to the six New England states.

VII. RECOMMENDED OPENING STATEMENT FRAMEWORK The following is a suggested structure for oral argument, based on a fifteen-minute allocation. This structure is designed to be clear, efficient, and persuasive, and to allow sufficient time for the court's questions while ensuring that all critical points are covered. Suggested Structure (15-Minute Allocation)

1. Opening (approximately 2 minutes) Begin by framing the case as a straightforward contract-interpretation dispute. This is not a complicated case. It is a case about what a contract says and whether the parties are bound by what they wrote. Suggested opening lines: "Your Honor, this case comes down to a simple proposition. The parties signed a contract that defines the Territory as the six New England states. The c

2. Contract Language (approximately 3 minutes) Walk the court through the key provisions in logical sequence: • Section 2.1: Grants Vantage the exclusive right to distribute within the Territory "as defined in Exhibit A." • Exhibit A: Defines the Territory as six named states — Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. No other states are listed. • Section 2.3: Prohibits out-of-terr

3. The Kapoor Email (approximately 3 minutes) Read the email aloud, slowly and carefully. Let the court hear the actual words: "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." Then contrast this language with what a valid written consent or amendment would look like. Hi

4. Massachusetts Law (approximately 4 minutes) Walk through the three principal authorities: • *Cambridge Biotech*: Written-modification clauses are enforceable. Section 13.1 controls. • *Starr v. Fordham*: The parol evidence rule bars extrinsic evidence to contradict or supplement the written terms of an integrated agreement. • *Licata*: Promissory estoppel cannot override express contractual provisions. Emphasize t

5. Counterclaims (approximately 2 minutes) Explain briefly that all three counterclaims — breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel — are derivative of Vantage's erroneous territorial claim. Each counterclaim depends on the premise that Vantage's territory includes the tri-state area. Once the court declares that the Territory is limited to the six New

6. Close (approximately 1 minute) Conclude with a clear, direct request: "Your Honor, the contract is unambiguous. The modification clause was never satisfied. The law is clear. We respectfully request that the court grant Penterra's motion for summary judgment, deny Vantage's cross-motion, dismiss Vantage's counterclaims, and enter a declaratory judgment confirming that the Territory under the Exclusive Distribution

VIII. LOGISTICS AND PROCEDURAL NOTES The following logistical details should be confirmed and addressed in advance of the hearing. Hearing Details: • Date: Friday, May 6, 2022 • Time: 10:00 a.m. • Location: Superior Court of Massachusetts, Business Litigation Session, Suffolk County • Presiding Judge: Hon. Diane L. Costigan, J. Counsel: • Penterra (presenting): Linda Osei, Responsible Partner • Penterra (second chair

IX. POST-ARGUMENT NEXT STEPS The following steps should be taken following the conclusion of oral argument on May 6, 2022:

1. Court Ruling Timeline. Depending on the court's practices and calendar, we should anticipate a decision within approximately 30 to 90 days following the hearing. Judge Costigan's Business Litigation Session opinions have generally been issued within this window, though there is no firm deadline.

2. Supplemental Briefing. If the court issues an order to show cause or requests supplemental briefing on any issue raised during argument, we should be prepared to respond promptly. Hannah Brinkley will monitor the docket and coordinate any supplemental submission.

3. EDA Term Monitoring. The EDA's original five-year term is set to expire on June 30, 2022. The auto-renewal provisions under Section 3.2 require 180 days' written notice of non-renewal. We should continue to monitor the renewal status and advise the client on any implications for the litigation.

4. Client Communication. Jennifer Chao, Penterra's General Counsel and our principal client contact, should be advised of the outcome of the hearing promptly after argument concludes. Linda Osei will call Ms. Chao directly following the hearing, and Hannah Brinkley will follow up with a written summary by the end of the day on May 6.

5. Appeal Preparation. If the court rules favorably for Penterra, we should immediately begin tracking the 30-day appeal period from the date of entry of final judgment. We should anticipate that Vantage may seek to appeal and should begin identifying any issues that might arise on appeal. If the court rules unfavorably — in whole or in part — we will confer with Ms. Chao regarding Penterra's appellate options and pr

6. Settlement Considerations. Depending on the outcome of the hearing and the court's comments from the bench, it may be appropriate to revisit settlement discussions with Vantage. Any such discussions should be coordinated with Ms. Chao and undertaken only with her express authorization. This memorandum is protected by the attorney-client privilege and the work product doctrine. It is prepared in anticipation of lit

Section 2.3 (Limitation) | "Distributor shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent."

Section 5.2 (Minimum Purchase Commitment) | $9.5 million per year at wholesale acquisition cost (WAC).

Section 13.1 (Amendments) | "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."

Section 14.8 (Entire Agreement / Integration Clause) | "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 3.1 (Term) | Five-year term, effective July 1, 2017, expiring June 30, 2022.

Section 3.2 (Renewal) | Two successive one-year auto-renewal options unless 180 days' written notice of non-renewal is given.

Section 14.2 (Governing Law) | Laws of the Commonwealth of Massachusetts, without regard to conflicts of law principles. Period | Vantage Oncalaris® Purchases FY 2018 | $11.2 million FY 2019 | $14.8 million FY 2020 | $18.3 million FY 2021 (through March) | $16.1 million (annualized ~$21.47 million)