Contract analysis

I. Executive Summary On July 15, 2022, the Honorable Diane L. Costigan, J., of the Superior Court of Massachusetts, Business Litigation Session, issued a Memorandum of Decision and Order granting Penterra Pharmaceuticals Corp.'s ("Penterra" or "Plaintiff") motion for summary judgment, denying Vantage Medical Distribution, LLC's ("Vantage" or "Defendant") cross-motion for summary judgment, and dismissing all three of

II. Procedural Background The procedural history of this action is set forth below in chronological order for reference purposes. Penterra commenced this action by filing a Complaint for Declaratory Judgment on April 12, 2021, in the Superior Court of Massachusetts, Suffolk County, Business Litigation Session. The Complaint sought a judicial declaration that the Territory under the EDA is limited to the six New Engla

III. The Court's Analysis — Detailed Discussion The court's Memorandum of Decision and Order runs to twenty-three pages and addresses each of the disputed issues in a structured and methodical fashion. This section summarizes and analyzes the court's reasoning on each major point. A. Plain Language of the EDA and Exhibit A The court began its analysis, as is customary under Massachusetts contract-interpretation princ

Section 2.1 of the EDA provides, in relevant part, that Penterra "hereby grants to Distributor the exclusive right to distribute the Products within the Territory, as defined in Exhibit A." The court reproduced the text of Exhibit A in full. That exhibit defines the Territory as follows: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')

1. Breach of Contract Counterclaim. Vantage's breach-of-contract counterclaim alleged that Penterra breached the EDA by seeking to appoint Meridian National Distributors, Inc. as a distributor of Oncalaris® in the tri-state area — a market that Vantage claimed fell within its exclusive Territory under the EDA. The court dismissed this counterclaim as a straightforward consequence of its holding on the Territory issue

2. Breach of Implied Covenant of Good Faith and Fair Dealing. Vantage's second counterclaim alleged that Penterra breached the implied covenant of good faith and fair dealing by encouraging Vantage's investment in tri-state infrastructure — principally through the Kapoor Email and subsequent informal communications — and then shutting Vantage out of the tri-state market by engaging Meridian. The court dismissed this

3. Promissory Estoppel. Vantage's third counterclaim sounded in promissory estoppel. Vantage alleged that Kapoor's January 12, 2018 email constituted a clear and definite promise of territorial expansion upon which Vantage reasonably relied to its detriment by investing in tri-state sales infrastructure, hiring additional sales personnel, and cultivating customer relationships in New York, New Jersey, and Pennsylvani

IV. Potential Appellate Arguments and Assessment A. Overview of Appellate Standard If Vantage elects to appeal, it may file a notice of appeal with the Massachusetts Appeals Court within thirty days of the entry of Final Judgment. Final Judgment was entered on August 5, 2022, establishing an appeal deadline of September 4, 2022. Vantage could alternatively seek direct appellate review by the Supreme Judicial Court pu

V. Impact on Penterra's Business Operations The court's decision has several significant implications for Penterra's ongoing business operations, which we summarize below. Tri-State Distribution Rights. The declaration confirms that Penterra's grant of exclusive distribution rights to Vantage under the EDA is limited to the six New England states enumerated in Exhibit A. Penterra is therefore free to appoint Meridian

VI. Recommendations A. Appeal Monitoring The most immediate action item is to monitor the thirty-day appeal deadline. Final Judgment was entered on August 5, 2022, establishing an appeal deadline of September 4, 2022. Patrick Gallagher has prepared a separate appeal-tracking memorandum dated August 8, 2022, which includes calendar alerts and a protocol for monitoring the Massachusetts Appeals Court docket for any not

VII. Conclusion The court's Memorandum of Decision and Order is thorough, well-reasoned, and firmly grounded in the plain language of the Exclusive Distribution Agreement and controlling Massachusetts precedent. The risk of reversal on appeal is low. Penterra achieved a complete victory in this action. The court declared that the Territory under the EDA is limited to the six New England states enumerated in Exhibit A

1. Memorandum of Decision and Order, Hon. Diane L. Costigan, J., dated July 15, 2022

2. Final Judgment entered August 5, 2022

3. Exclusive Distribution Agreement dated July 1, 2017 (including Exhibit A — Territory Definition)

4. Email from Steven Kapoor to Donald Farnham, dated January 12, 2018 ("Kapoor Email")

5. Appeal-Period Tracking Memorandum (Patrick Gallagher, dated August 8, 2022)

6. Client Advisory Letter (Linda Osei to Jennifer Chao, dated July 18, 2022) This memorandum is a privileged and confidential attorney work product prepared by Calderwood & Harkness LLP in connection with the representation of Penterra Pharmaceuticals Corp. in the above-referenced matter. It is intended solely for the use of the attorneys and personnel of Calderwood & Harkness LLP working on this matter and is not to