1018-00007 · Penterra Pharmaceuticals Corp · Discovery

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MEMORANDUM

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

TO: Linda Osei, Priya Anand, Hannah Brinkley

FROM: Patrick Gallagher

DATE: November 5, 2021

RE: Deposition Summary and Analysis — Steven Kapoor (November 2, 2021); Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC, Docket No. 2184-CV-01537-BLS (MA Superior Court, Business Litigation Session, Suffolk County)

MATTER NO.: 1018-00007

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.

Mr. Kapoor was deposed in his capacity as a witness of the plaintiff, Penterra, our client in this matter. We defended the deposition. Examination was conducted by Kenneth M. Rourke, lead litigation partner at Hargrove, Sinclair & Polk LLP ("HSP"), counsel of record for the defendant, Vantage Medical Distribution, LLC ("Vantage"). Alicia Fontaine, an associate at HSP, was also present throughout the deposition and assisted Mr. Rourke with exhibit handling and document management during the examination.

The deposition took place at the offices of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, Massachusetts 02110. The proceedings were stenographically recorded by certified court reporter Diane R. Kelley of Murray & Associates Court Reporting Services, and a videographer from the same firm recorded the testimony on video. The deposition commenced at approximately 9:30 a.m. and concluded at approximately 4:15 p.m., lasting approximately five and one-half hours inclusive of a morning break, a lunch recess, and two additional short breaks. The certified transcript runs approximately 247 pages.

Hannah Brinkley defended the deposition on behalf of Penterra and Calderwood & Harkness LLP. I attended the deposition in a supporting capacity and took contemporaneous notes throughout, which form the basis of this summary in conjunction with the rough draft transcript received from Murray & Associates on November 3, 2021. The certified final transcript is expected by approximately November 12, 2021, and all page-and-line references in this memorandum should be verified against the final certified copy upon receipt.

Key Takeaway: Kapoor was well-prepared and stayed on message throughout the examination. His testimony was clear, consistent, and firmly supports Penterra's central position in this litigation: namely, that the January 12, 2018 email from Kapoor to Donald Farnham (the "Kapoor Email") did not constitute "prior written consent" under Section 2.3 of the Exclusive Distribution Agreement ("EDA"), did not operate as an amendment to Exhibit A (the Territory definition) under Section 13.1 of the EDA, and did not convey any present authorization, approval, or permission for Vantage to distribute Penterra products outside the six New England states. Kapoor was not materially impeached on any point during cross-examination, and the overall tenor of his testimony was favorable to our case. His characterization of the email as a forward-looking, conditional, and non-committal expression of willingness to explore future discussions — rather than a present grant of distribution rights — is well supported by the email's plain language and should withstand scrutiny at the summary judgment stage.

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 exclusive distributors, national specialty pharmacy partners, and direct-to-hospital contracting channels. He has a team of approximately fourteen professionals reporting to him, including the Director of Distribution & Logistics, the Director of National Accounts, and three Regional Commercial Directors.

Kapoor was the primary Penterra contact for Vantage Medical Distribution, LLC during the negotiation and execution of the Exclusive Distribution Agreement dated July 1, 2017. He testified that he personally led the commercial and business-terms negotiations on Penterra's behalf, with support from Rachel Mendez (Director of Distribution & Logistics) on operational and logistics matters and from Jennifer Chao (General Counsel) on legal terms and contract drafting. Kapoor described his working relationship with Donald Farnham, Vantage's founder and Chief Executive Officer, as professional and generally cooperative throughout the life of the EDA, from execution in mid-2017 through the deterioration of the relationship following Penterra's issuance of the March 8, 2021 cease-and-desist letter.

Kapoor's testimony covers the products distributed under the EDA, specifically: Oncalaris® (pegvisomant-axel), available in 20 mg and 40 mg vials, which is Penterra's lead oncology product and the primary commercial driver under the EDA; and Renuvesta® (cilosporin-beta), 5 mg capsules, an immunosuppressive agent included in the EDA portfolio but representing a smaller share of total revenue under the agreement. Kapoor testified that the vast majority of the commercial and financial discussions between the parties centered on Oncalaris®, which accounted for approximately 85% of Vantage's total purchases under the EDA in any given year.

Kapoor holds a B.S. in Biochemistry from Boston University and an M.B.A. from the Tuck School of Business at Dartmouth College. Prior to joining Penterra, he held distribution and commercial operations roles at Astellion Biosciences, Inc. and at Novus Health Partners, a mid-size specialty pharmaceutical company. He has worked in pharmaceutical distribution for approximately seventeen years.

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, with my participation in both sessions.

The following key preparation points were addressed:

Review of the EDA. We reviewed the Exclusive Distribution Agreement in its entirety with Mr. Kapoor, with particular focus on the following provisions:

• Section 2.1 (Grant of Exclusive Territory): Provides that Penterra grants Vantage the exclusive right to distribute the Products (as defined in Exhibit B) within the Territory (as defined in Exhibit A), subject to Vantage's compliance with the terms and conditions of the Agreement.

• Section 2.3 (Limitation on Distribution Outside Territory): Provides that Vantage "shall not, directly or indirectly, distribute, sell, market, promote, or solicit orders for any Product outside the Territory without the prior written consent of Penterra." This is the provision Vantage claims was satisfied by the Kapoor Email.

• Section 5.2 (Minimum Annual Purchase Commitment): Requires Vantage to purchase a minimum of $9.5 million in Products at Wholesale Acquisition Cost ("WAC") during each contract year of the EDA, with failure to meet this threshold constituting a material breach subject to a 90-day cure period under Section 11.2.

• Section 13.1 (Amendments): 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." This is the critical anti-oral-modification clause that bars Vantage's argument.

• Section 14.8 (Entire Agreement / Integration Clause): Provides that the EDA, together with its Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, contracts, and writings, whether oral or written, with respect to such subject matter.

Review of Exhibit A — Territory Definition. We reviewed the operative language of Exhibit A in detail: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')." Kapoor confirmed his familiarity with this language and his understanding that this definition was negotiated, deliberate, and intended to exclude New York, New Jersey, Pennsylvania, and all other states outside the six enumerated New England states.

Review of the January 12, 2018 Email. We walked through the Kapoor Email in granular detail. The exact text of the email, which was sent from Kapoor's Penterra corporate email address (s.kapoor@penterra.com) to Farnham's Vantage email address (dfarnham@vantagemd.com) at 3:17 p.m. on January 12, 2018, is as follows:

"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."

During preparation, we discussed the importance of Kapoor testifying truthfully and precisely about this email. We instructed Kapoor to avoid volunteering information beyond the scope of the questions asked; to listen carefully to each question and answer only the question posed; to distinguish clearly between expressing future willingness to discuss a topic and granting present consent or approval; and to be comfortable stating when he did not recall a specific detail rather than speculating. We also instructed Kapoor that, if a question called for a legal conclusion — such as whether the email constituted "consent" under a particular contract provision — he should answer based on his factual understanding and intent, not attempt to interpret the contract's legal requirements.

Consistency with Farnham Deposition Record. We reviewed Kapoor's anticipated testimony in the context of the deposition outline prepared for the October 18, 2021 Farnham deposition, to ensure that Kapoor's testimony would be consistent with the evidentiary record we are building. In particular, we flagged specific passages of the Farnham transcript where Farnham made admissions favorable to Penterra's position (discussed in Section VI below) and prepared Kapoor to address the anticipated areas where Rourke would attempt to use Farnham's testimony to impeach Kapoor or create inconsistencies.

Anticipated Lines of Cross-Examination. Based on our assessment of Vantage's position and Rourke's approach during the Farnham deposition, we anticipated the following lines of cross-examination:

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 where Farnham described his understanding of the Kapoor Email, his claimed reliance on it, and his concession that he never obtained a signed amendment to Exhibit A. This review was designed to prepare Kapoor for any areas where Rourke might attempt to use Farnham's prior testimony to confront or impeach Kapoor.

Overall, Mr. Kapoor was engaged, responsive, and well-prepared during both sessions. He demonstrated a strong command of the factual record and a clear understanding of the key themes and vulnerabilities in the case.

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 exclusive distribution arrangement for Oncalaris® in the New England region, and that the parties were introduced through a mutual contact at a pharmaceutical industry conference.

Kapoor confirmed the EDA's five-year term, running from July 1, 2017 through June 30, 2022, with two successive one-year automatic renewal options subject to 180 days' written notice of non-renewal by either party in advance of the then-current expiration date. He stated that this term structure was standard for Penterra's exclusive distribution arrangements and reflected the parties' mutual interest in a long-term commercial relationship.

Critically, Kapoor testified that the Territory was specifically and deliberately limited to the six New England states listed in Exhibit A during the negotiation process. He explained that the geographic scope of the distribution territory was one of the most heavily negotiated provisions of the EDA. According to Kapoor, Vantage, through Donald Farnham, had expressed interest during the negotiations in a broader territory that would encompass New York, New Jersey, and Pennsylvania in addition to the six New England states. Penterra declined this request because it intended to reserve the tri-state area for a separate distributor or a national specialty pharmacy partner. Kapoor stated that Penterra's commercial strategy at the time was to segment its distribution network by geographic region, with different partners covering different territories, to maximize market penetration and maintain competitive leverage.

Kapoor confirmed that the parties discussed the tri-state question multiple times before signing the EDA, both in person and by phone and email, and that the final version of Exhibit A reflected the agreed-upon territorial scope: the six New England states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — and nothing more. He testified that Farnham understood at the time of execution that the tri-state states were excluded and that the deal Vantage was signing covered only New England.

Kapoor further testified that Jennifer Chao, Penterra's General Counsel, drafted the EDA with input from outside counsel, and that the written-amendment clause (Section 13.1) and the entire-agreement clause (Section 14.8) were included at Penterra's insistence as standard protective provisions in all of Penterra's distribution agreements. Kapoor stated that he was familiar with these provisions and understood their effect at the time the EDA was executed.

B. The January 12, 2018 Email (the "Kapoor Email")

The January 12, 2018 email was the central focus of Kenneth Rourke's examination, consuming approximately 75 to 80 pages of the 247-page transcript. Rourke approached the email from multiple angles over the course of several hours, and his questioning was thorough and at times aggressive, but Kapoor remained composed and consistent throughout.

Kapoor testified that the email was sent in response to a telephone conversation with Donald Farnham that had taken place the previous day, January 11, 2018. According to Kapoor, Farnham called him in the afternoon to discuss how Vantage's Oncalaris® business was developing in New England and to reiterate Vantage's interest in expanding into the tri-state area — a subject Farnham had raised during the original EDA negotiations and had continued to mention periodically. Kapoor described the phone call as a friendly, informal business conversation lasting approximately 15 to 20 minutes.

Kapoor explained the email's language in detail. He testified that the phrase "open to exploring expansion" was intentionally forward-looking and conditional. It expressed a general willingness on Penterra's part to have future discussions about the possibility of territory expansion — not a present grant of any rights, consent, or authorization. Kapoor emphasized that the word "exploring" was deliberate: he was communicating that Penterra might be willing to explore the idea at some future date, not that Penterra was committing to anything in the present.

Regarding the phrase "once your New England footprint is fully ramped," Kapoor testified that this constituted an express condition precedent to even beginning any substantive discussions about expansion. He explained that in January 2018, Vantage's New England business was still in the relatively early stages of development. Vantage's fiscal year 2018 Oncalaris® purchases were $11.2 million at WAC, which, while exceeding the $9.5 million annual minimum under Section 5.2, was only $1.7 million above that floor and was far from what Kapoor considered a "fully ramped" New England operation. Kapoor stated that he did not view Vantage as having a fully established presence in the New England market at that point, and that it would not have been prudent for Penterra to consider granting additional territory to a distributor that had not yet demonstrated its full capabilities in its existing territory.

Regarding the phrase "let's circle back mid-year and see where things stand," Kapoor testified that this language further confirmed the preliminary, non-committal nature of the communication. He stated that the phrase was a common business expression indicating that the topic would be revisited at a later date, with no guarantee of any particular outcome. Kapoor characterized the entire email as a polite way of saying, in essence: "We hear you, we're not ruling it out, but nothing is happening right now — let's revisit the idea later."

Kapoor was firm and unequivocal on the central legal issue: the email did not constitute "prior written consent" under Section 2.3 of the EDA, nor was it intended to serve as an amendment to Exhibit A. He testified that he was aware at the time he sent the email of Section 13.1's requirement that amendments to the EDA be set forth in a "written instrument signed by both parties," and that his email — a brief, informal, three-sentence message — did not satisfy and was not intended to satisfy that requirement. Kapoor stated that if Penterra had intended to expand the Territory, the Company would have prepared a formal written amendment to Exhibit A, had it reviewed and approved by Jennifer Chao, and executed it with appropriate signatures from authorized officers of both parties.

Under cross-examination, Rourke pressed Kapoor on whether the email created a "reasonable expectation" in Farnham that territorial expansion was forthcoming. Kapoor maintained his position, testifying that the email was merely a courtesy expression of Penterra's willingness to continue a dialogue with Vantage about a topic of mutual interest. He stated that a reasonable business person reading the email would understand it as saying "maybe later, let's talk about it," not "yes, you can start shipping into the tri-state area." Kapoor further noted that the email contained no specific terms, no timeline, no pricing, and no reference to any contract provision — all of which would be expected if the email were intended to convey a grant of distribution rights.

Rourke asked whether Kapoor followed up with Farnham "mid-year" as suggested in the email. Kapoor testified that he did not. He stated that the topic of tri-state expansion was not raised again between the parties in any formal, structured, or significant way after the January 12, 2018 email. Kapoor acknowledged that he and Farnham continued to speak periodically about Vantage's business in New England, and that Farnham may have mentioned the tri-state area in passing during one or more of those conversations, but he denied that any such mention resulted in an agreement, commitment, or authorization from Penterra. Kapoor stated that the mid-year follow-up simply did not happen, and that neither party pressed the issue.

Rourke then introduced a passage from Donald Farnham's October 18, 2021 deposition transcript in which Farnham testified that he understood the Kapoor Email as "a green light" to begin planning for tri-state expansion. Kapoor was asked to respond to that characterization. He disagreed clearly and directly, stating: "I can't control how Don interpreted my email, but it says what it says — we were open to exploring, not agreeing." Kapoor added that if Farnham genuinely believed the email was a "green light," he would have expected Farnham to follow up with a request for a formal amendment to the EDA or at least to seek clarification in writing — neither of which occurred.

This line of testimony was among the strongest in the deposition and should translate well to an affidavit and to potential trial testimony.

C. Awareness of Vantage's Tri-State Activity

Kapoor testified that he first became aware of Vantage's shipments of Oncalaris® to customers in New York in approximately late 2019 or early 2020. He stated that the information came to him through informal, unstructured reports from members of Penterra's regional sales team covering the Northeast, who had heard through customer contacts and industry channels that Vantage was making deliveries to hospital pharmacies in the New York metropolitan area. Kapoor characterized these initial reports as anecdotal and unconfirmed, involving what he understood to be small volumes of product.

Kapoor explained that he did not immediately initiate a formal investigation because the reports were secondhand and vague, and because the volumes reported were minimal. He testified that, in his experience, occasional out-of-territory deliveries by distributors sometimes occurred due to customer-initiated transfers, cross-docking arrangements, or shipping errors, and that he did not want to escalate the matter without more concrete evidence.

Kapoor confirmed that the unauthorized tri-state shipments became more systematic and noticeable beginning on or about September 14, 2020, when Penterra's internal logistics data — maintained by Rachel Mendez and her team — began reflecting a pattern of recurring shipments by Vantage to addresses in New York, New Jersey, and Pennsylvania. Kapoor stated that the September 2020 timeframe was when the activity transitioned from sporadic and anecdotal to regular and verifiable.

Rourke pressed extensively on the delay between Kapoor's initial awareness of the unauthorized activity (late 2019 or early 2020) and Penterra's issuance of the March 8, 2021 cease-and-desist letter from Jennifer Chao to Donald Farnham. This line of questioning clearly was designed to establish a factual foundation for Vantage's waiver or acquiescence defense. Kapoor provided a detailed explanation of the delay, testifying as follows:

First, the initial reports were anecdotal and unconfirmed. Kapoor stated that Penterra needed reliable data before accusing a long-standing distribution partner of a material contract breach.

Second, confirming the scope of the unauthorized activity required Penterra to aggregate and analyze shipping and logistics data maintained by Rachel Mendez and her team. Kapoor testified that this data was not organized in a format that made out-of-territory shipments immediately apparent, and that Mendez needed time to pull and cross-reference the relevant records.

Third, once the activity was confirmed at a significant scale in late 2020 and early 2021, Penterra acted promptly. Kapoor testified that he raised the issue internally with Jennifer Chao, Penterra's General Counsel, in approximately January 2021, after reviewing logistics reports that showed substantial Vantage shipments to hospitals in New York, New Jersey, and Pennsylvania. The cease-and-desist letter was issued on March 8, 2021 — approximately six to eight weeks after the matter was escalated to legal, which Kapoor described as a reasonable timeline given the need for legal review and internal deliberation.

Rourke attempted to characterize Penterra's delay as acquiescence or ratification of Vantage's tri-state distribution. Kapoor denied this firmly. He stated: "Penterra never authorized, approved, or ratified Vantage's distribution of our products outside the six New England states. The fact that it took us some time to gather the evidence and escalate the matter does not change the fact that we never gave them permission." This testimony was delivered calmly and with conviction, and Rourke did not succeed in shaking Kapoor's position on this point.

D. Vantage's Purchase History and Performance

Kapoor confirmed Vantage's Oncalaris® purchase history under the EDA, testifying to the following figures at Wholesale Acquisition Cost:

Kapoor acknowledged that Vantage had been a strong-performing distributor in New England. He described the purchase trajectory as reflecting both Vantage's effective sales execution and the broader growth in Oncalaris® demand driven by expanding clinical indications for the product in certain oncology settings.

Rourke attempted to elicit testimony that the significant growth in Vantage's purchases — particularly from FY 2019 onward — was attributable in part or in whole to Vantage's tri-state expansion. Kapoor stated that he could not confirm the geographic breakdown of Vantage's sales from his position, as that level of granular sales data was maintained by Rachel Mendez's distribution and logistics team and by Vantage internally. Kapoor noted, however, that Oncalaris® demand was growing industry-wide during this period due to new clinical evidence supporting additional treatment indications, and that attributing Vantage's growth solely to tri-state activity was speculative without a geographic breakdown of the data.

Kapoor confirmed that, based on Vantage's own sales records produced during discovery, Vantage's reported tri-state revenues from approximately September 2020 through March 2021 were approximately $6.4 million. He stated that this figure was significant and reinforced Penterra's position that the unauthorized distribution activity was not trivial or de minimis, but rather represented a substantial and deliberate expansion into territory that Vantage had no contractual right to serve.

E. Meridian National Distributors, Inc. and the Tri-State Term Sheet

Kapoor testified regarding Penterra's efforts to engage a separate distributor for the tri-state area, consistent with the Company's long-standing commercial strategy. He stated that Penterra executed a non-binding term sheet with Meridian National Distributors, Inc. on February 15, 2021. Meridian is a New York corporation headquartered at 520 Seventh Avenue, 12th Floor, New York, New York 10018, and is one of the larger regional pharmaceutical distributors operating in the mid-Atlantic corridor.

Under the term sheet, Meridian would have served as the exclusive distributor for Oncalaris® in New York, New Jersey, Pennsylvania, and Maryland, with an initial three-year term and a minimum annual purchase commitment of $12 million at WAC. The deal was led on Penterra's side by Kapoor and on Meridian's side by Thomas Welliver, Meridian's President. Kapoor testified that the negotiations with Meridian had been progressing well and that the parties were moving toward a definitive agreement.

Kapoor confirmed that the Meridian arrangement stalled when Vantage, through Kenneth Rourke at HSP, sent a letter dated March 22, 2021 asserting that Vantage held exclusive distribution rights over the tri-state area and threatening a $35 million breach-of-contract and tortious interference counterclaim against Penterra if it proceeded with the Meridian deal. Kapoor stated that Penterra paused the Meridian negotiations at that point on the advice of counsel, and that the matter remains unresolved pending the outcome of this litigation.

Kapoor testified that the Meridian arrangement was entirely consistent with Penterra's original commercial strategy — the very reason the tri-state states had been excluded from Exhibit A in 2017. He stated: "We always intended to appoint a separate distributor for the tri-state area. That's why we didn't give Vantage those states in the first place. The Meridian deal is exactly what we planned to do." This testimony directly rebuts Vantage's argument that Penterra had informally ceded the tri-state territory to Vantage and corroborates the deliberate nature of the territorial limitation in Exhibit A.

F. The Cease-and-Desist Letter and Subsequent Events

Kapoor confirmed that he was actively involved in the decision to have General Counsel Jennifer Chao send the March 8, 2021 cease-and-desist letter to Donald Farnham. The letter demanded that Vantage immediately cease all distribution, sale, marketing, and promotion of Oncalaris® and Renuvesta® outside the six New England states identified in Exhibit A to the EDA. Kapoor testified that he reviewed a draft of the letter before it was finalized and sent, and that the letter accurately reflected Penterra's position.

Kapoor confirmed his awareness of Vantage's response to the cease-and-desist letter. That response came in the form of a letter dated March 22, 2021 from Kenneth Rourke at HSP, written on Vantage's behalf, asserting that Vantage possessed exclusive rights to distribute Penterra products in New York, New Jersey, and Pennsylvania based on the January 12, 2018 Kapoor Email and the parties' course of dealing, and threatening a counterclaim seeking $35 million in damages for breach of contract and tortious interference with prospective economic advantage.

Kapoor stated that following receipt of the Rourke letter, Penterra retained Calderwood & Harkness LLP to represent it in this matter. The engagement letter was executed on March 29, 2021. Penterra's declaratory-judgment complaint was subsequently filed on April 12, 2021, in the Massachusetts Superior Court, Business Litigation Session, Suffolk County, seeking a judicial declaration that (i) the Territory under the EDA is limited to the six New England states enumerated in Exhibit A, (ii) the January 12, 2018 email did not constitute prior written consent under Section 2.3 or an amendment to Exhibit A under Section 13.1, and (iii) Vantage's distribution of Penterra products in the tri-state area constitutes a material breach of the EDA.

G. Course of Dealing / Oral Modification

Rourke spent considerable time during the deposition exploring whether any oral conversations between Kapoor and Farnham could be construed as having modified or expanded the Territory defined in Exhibit A. This line of questioning was plainly directed at supporting Vantage's alternative theory — that even if the Kapoor Email does not independently constitute consent or amendment, the parties' course of dealing over time effectively modified the territorial restriction.

Kapoor consistently and firmly testified that there were no oral agreements between him and Farnham to expand the Territory beyond the six New England states. He acknowledged that he and Farnham communicated periodically by telephone and in person about Vantage's business generally — including sales performance, product supply issues, pricing discussions, and market developments — but he denied that any such conversation resulted in consent, authorization, or approval from Penterra for Vantage to distribute products outside New England. Kapoor characterized his communications with Farnham as the ordinary, ongoing business dialogue that one would expect between a manufacturer and its distribution partner, not as negotiations over territorial expansion.

Kapoor was directed by Rourke to Section 13.1 of the EDA, which 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." Kapoor confirmed his understanding that this clause precluded oral modifications to the agreement, including oral modifications to the territorial scope defined in Exhibit A. He stated that he was aware of this provision at all relevant times and that he understood it to mean that no conversation, phone call, meeting, or email — short of a formal written amendment signed by authorized representatives of both parties — could alter the terms of the EDA.

Kapoor was also directed to Section 14.8, the Entire Agreement and Integration Clause, and confirmed that the EDA, together with its Exhibits (including Exhibit A), constituted the complete and final expression of the parties' agreement with respect to distribution of Penterra products in the defined Territory. He testified that no prior negotiations, oral representations, or side agreements were intended to supplement, modify, or contradict the written terms of the EDA.

This testimony effectively forecloses Vantage's course-of-dealing and oral-modification theories, particularly when combined with the written-amendment clause and the governing law analysis under Massachusetts contract principles.

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 questions embedded assumptions about the email's meaning or effect that were disputed, and Brinkley appropriately placed these objections on the record to preserve them. Representative examples include Rourke's question: "So when you told Mr. Farnham in writing that Penterra was 'definitely open to exploring expansion into NY/NJ/PA,' you were giving him permission to begin planning for distribution in those states, correct?" Brinkley objected as to form (leading and assuming facts not in evidence), and Kapoor denied the characterization after the objection was lodged.

Objections as to Legal Conclusions. Brinkley objected when Rourke asked Kapoor to characterize, as a legal matter, whether the January 12, 2018 email constituted "consent" under Section 2.3 of the EDA. Brinkley's objection was that the question called for a legal conclusion from a lay witness. The objection was noted for the record, and Kapoor was permitted to answer based on his factual understanding and intent, which he did consistently and favorably.

Instruction Not to Answer — Attorney-Client Privilege. Brinkley instructed Kapoor not to answer one question that called for disclosure of the substance of attorney-client privileged communications between Kapoor and Jennifer Chao regarding the strategy behind the March 8, 2021 cease-and-desist letter. Rourke asked Kapoor to describe what Chao had advised him about the legal consequences of issuing the cease-and-desist while the Meridian negotiations were pending. Brinkley instructed Kapoor not to answer on the grounds of attorney-client privilege, and Rourke did not press the issue further after the instruction was given. No motion to compel was filed, and the matter does not appear to be a lingering dispute.

No Motions to Compel. No motions to compel arose from the deposition. All objections were preserved on the record in the ordinary course, and there were no unresolved discovery disputes requiring judicial intervention.

Overall Assessment. Brinkley's defense was measured and professional. She did not over-object or disrupt the flow of the deposition, but she placed appropriate objections on the record at critical junctures, particularly on the questions most likely to generate testimony that Vantage will attempt to use in opposition to our summary judgment motion. Most importantly, Kapoor was not impeached on any material point during the cross-examination. His testimony was consistent, credible, and aligned with the contemporaneous documentary record.

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. Farnham testified on October 18, 2021 that he interpreted the January 12, 2018 Kapoor Email as Penterra's approval to begin planning for tri-state expansion. He used the phrase "green light" to describe his understanding of the email's import, testifying that he "took Steve's email as the green light to start laying the groundwork for us to move into New York, New Jersey, and Pennsylvania." Kapoor, by contrast, characterized the email as a preliminary, non-committal expression of willingness to discuss the topic at a future date — a "let's talk about it later" message, not an authorization. The plain language of the email supports Kapoor's characterization, and we expect the Court to agree.

Absence of a Signed Amendment. Significantly, Farnham admitted during his deposition that he did not obtain a signed amendment to Exhibit A at any time following the January 12, 2018 email or at any other point during the life of the EDA. He acknowledged that no Penterra officer expressly authorized tri-state shipments in a signed writing. When asked why he did not seek a formal amendment, Farnham testified that he believed the Kapoor Email was sufficient and that a formal amendment was unnecessary given his understanding of Penterra's position. This admission is highly favorable to Penterra and is fatal to Vantage's contract-modification theory under Section 13.1.

Key Divergence. The fundamental divergence between the two witnesses is one of characterization. Farnham claims the email was a "green light"; Kapoor insists it was, at most, an expression of future willingness to explore. The email's own language — "open to exploring," "once your New England footprint is fully ramped," "let's circle back mid-year" — is far more consistent with Kapoor's characterization than with Farnham's. No reasonable reading of the email supports the conclusion that Penterra was granting present, unconditional authorization for Vantage to expand into the tri-state area.

Implications. Farnham's admission that no signed amendment was ever obtained is, standing alone, dispositive of Vantage's Section 13.1 argument. Combined with Kapoor's consistent testimony about his intent and the email's meaning, the testimonial record strongly favors Penterra on the central dispute in this case. To the extent Rourke attempts to frame this as a credibility contest between Kapoor and Farnham, the contemporaneous documentary evidence — the email itself — resolves the contest in our favor.

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 the time of execution that the tri-state states were excluded. There is no ambiguity in the contract language that would invite extrinsic evidence or create a triable issue of fact on the territorial scope.

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 language and should be credited on summary judgment.

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 drafted or reviewed by counsel. It contains no reference to the EDA, to Exhibit A, or to any specific contract provision. It does not purport to amend, modify, or waive any term of the agreement. Farnham's own admission that no signed amendment was ever obtained confirms that the Section 13.1 requirement was never satisfied.

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 runs headlong into this provision.

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 protecting contracting parties from informal, ambiguous, or disputed oral modifications, and has declined to allow parties to circumvent them absent extraordinary circumstances not present here. This legal framework strongly supports Penterra's position.

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 was confirmed at scale, the Company acted promptly by escalating to General Counsel and issuing the cease-and-desist letter. Moreover, the written-amendment clause in Section 13.1 independently forecloses any argument that Penterra's silence or inaction constituted an effective waiver or modification of the territorial restriction, as any such waiver would itself need to be in a signed writing.

Kapoor Affidavit. We should prepare a detailed affidavit from Mr. Kapoor in support of the summary judgment motion. The affidavit should address, at a minimum: (i) Kapoor's role in negotiating the EDA and the deliberate exclusion of the tri-state states from Exhibit A; (ii) his intent in writing the January 12, 2018 email, confirming that it was not intended as consent, authorization, or amendment; (iii) his confirmation that no oral or written agreement was reached at any time to expand the Territory beyond the six New England states; and (iv) his explanation of the timeline leading to the March 8, 2021 cease-and-desist letter. The affidavit should be drafted promptly following receipt of the certified transcript so that we can ensure consistency between the deposition testimony and the affidavit.

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 intended for New England addresses through Vantage, and the logistics data that confirms the scope and timeline of Vantage's unauthorized tri-state shipments. Mendez's testimony is expected to corroborate Kapoor's account of the timeline of Penterra's awareness of the unauthorized activity and to provide the granular, data-driven evidence necessary to quantify the scope of Vantage's breach. Mendez is being deposed as a Penterra witness; we will defend.

Brian Kopec — Deposition scheduled for December 7, 2021. Kopec is Vantage's Outside Sales Director and is being deposed as a Vantage witness. He is expected to testify about Vantage's sales operations in the tri-state area, including when and how Vantage began directing sales into New York, New Jersey, and Pennsylvania; his knowledge of the territorial restrictions under the EDA; his communications with Farnham and other Vantage personnel about the scope of Vantage's distribution authority; and his contacts with hospital pharmacy buyers and other customers in the tri-state area. Kopec's testimony may shed light on whether Vantage's tri-state expansion was a deliberate, planned strategy (as we contend) or an inadvertent drift that occurred organically (as Vantage may argue).

Close of Fact discovery: January 14, 2022.

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 communications, we need to know about them before the summary judgment briefing.

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 litigation and to Penterra's anticipated summary judgment motion:

Concessions and Qualifications: Kapoor's testimony contained minimal concessions or qualifications. The most notable concession was his acknowledgment that he did not follow up with Farnham "mid-year" as suggested in the email (Excerpt 8 above), which Rourke attempted to use to argue that Penterra showed indifference to the territorial question. However, this concession is ultimately neutral or favorable: the failure to follow up is equally consistent with the interpretation that the topic was not a priority and no agreement had been reached, and it undercuts any argument that the parties were actively working toward territorial expansion. Kapoor also acknowledged that he could not provide a geographic breakdown of Vantage's sales (Excerpt 14), but he appropriately deferred to Rachel Mendez on that point, preserving the issue for her upcoming deposition.

This memorandum is a privileged and confidential attorney work product prepared in anticipation of litigation. It reflects the mental impressions, conclusions, opinions, and legal theories of the attorneys involved. It should not be disclosed to any person or entity outside the litigation team without prior authorization from Linda Osei.

PREPARED BY:

Patrick Gallagher Associate, Calderwood & Harkness LLP 1 Federal Street, 35th Floor Boston, Massachusetts 02110 (617) 555-4200 p.gallagher@calderwoodharkness.com

Fiscal Year	Oncalaris® Purchases (WAC)	Minimum Threshold	Variance Above Minimum
FY 2018	$11.2 million	$9.5 million	+$1.7 million
FY 2019	$14.8 million	$9.5 million	+$5.3 million
FY 2020	$18.3 million	$9.5 million	+$8.8 million
FY 2021 (through March)	$16.1 million (9 months)	$9.5 million (annualized)	Annualized ~$21.47 million
No.	Topic	Page:Line	Summary of Testimony
1	Deliberate exclusion of tri-state from Exhibit A during EDA negotiations	34:8–36:22	Kapoor testifies that Vantage requested tri-state territory during negotiations; Penterra declined because it intended to reserve the tri-state area for a separate distributor; final Exhibit A was the negotiated, agreed-upon territorial scope.
2	Kapoor's explanation of the phrase "open to exploring expansion"	72:14–75:3	Kapoor testifies the language was forward-looking and conditional, expressing willingness to have future discussions, not a present grant of rights or consent.
3	"Once your New England footprint is fully ramped" as a condition precedent	78:19–81:6	Kapoor testifies this was an express condition to even beginning discussions; Vantage's FY 2018 New England purchases were only $1.7 million above the $9.5 million minimum, far from "fully ramped."
4	"Let's circle back mid-year" — non-committal nature	83:11–84:22	Kapoor testifies this language confirmed the email was preliminary and that no action was expected or authorized in the near term.
5	Email was not "prior written consent" under Section 2.3	91:3–93:17	Kapoor testifies unequivocally that the email did not constitute prior written consent and was not intended as such; states he was aware of Section 13.1's written-amendment requirement.
6	Kapoor's acknowledgment of Section 13.1 and written-amendment requirement	95:1–97:9	Kapoor confirms his understanding that amendments must be "in a written instrument signed by both parties" and that his email did not satisfy this requirement.
7	Denial of any oral agreement to modify the Territory	112:5–115:18	Kapoor testifies there were no oral agreements with Farnham to expand the Territory; periodic conversations about Vantage's business did not result in consent or authorization.
8	Failure to follow up "mid-year" as suggested in the email	103:2–105:11	Kapoor testifies the topic was not raised again in any formal or structured way after January 12, 2018; he did not follow up mid-year.
9	Response to Farnham's "green light" characterization	128:7–130:14	Kapoor disagrees with Farnham's characterization, stating: "I can't control how Don interpreted my email, but it says what it says — we were open to exploring, not agreeing."
10	First awareness of Vantage's tri-state shipments	142:19–146:8	Kapoor testifies he first heard of possible New York shipments in late 2019 or early 2020 through informal sales-team reports; initial reports were anecdotal and unconfirmed.
11	Explanation of delay in issuing cease-and-desist	153:4–158:22	Kapoor explains that Penterra needed to confirm the unauthorized activity through logistics data before escalating; once confirmed at scale, Penterra acted promptly by escalating to General Counsel and issuing the cease-and-desist.
12	Denial of acquiescence or ratification	161:9–163:15	Kapoor denies that Penterra's delay constituted acquiescence or ratification, stating: "Penterra never authorized, approved, or ratified Vantage's distribution of our products outside the six New England states."
13	Meridian term sheet — February 15, 2021	178:3–182:19	Kapoor testifies that Penterra executed a term sheet with Meridian National Distributors for tri-state distribution of Oncalaris®; deal stalled after Vantage threatened a $35 million counterclaim; arrangement was consistent with Penterra's long-standing plan.
14	Vantage's FY 2020 purchases and geographic attribution	168:11–172:6	Kapoor acknowledges Vantage's strong purchase performance but states he cannot confirm the geographic breakdown of sales; notes industry-wide growth in Oncalaris® demand due to new clinical indications.
15	Integration clause (Section 14.8) — complete expression of agreement	119:14–121:3	Kapoor confirms the EDA, including Exhibit A, was the complete expression of the parties' agreement and that no prior oral or written communications were intended to supplement or modify it.

MEMORANDUM
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
TO: Linda Osei, Priya Anand, Hannah Brinkley
FROM: Patrick Gallagher
DATE: November 5, 2021
RE: Deposition Summary and Analysis — Steven Kapoor (November 2, 2021); Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC, Docket No. 2184-CV-01537-BLS (MA Superior Court, Business Litigation Session, Suffolk County)
MATTER NO.: 1018-00007
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.
Mr. Kapoor was deposed in his capacity as a witness of the plaintiff, Penterra, our client in this matter. We defended the deposition. Examination was conducted by Kenneth M. Rourke, lead litigation partner at Hargrove, Sinclair & Polk LLP ("HSP"), counsel of record for the defendant, Vantage Medical Distribution, LLC ("Vantage"). Alicia Fontaine, an associate at HSP, was also present throughout the deposition and assisted Mr. Rourke with exhibit handling and document management during the examination.
The deposition took place at the offices of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, Massachusetts 02110. The proceedings were stenographically recorded by certified court reporter Diane R. Kelley of Murray & Associates Court Reporting Services, and a videographer from the same firm recorded the testimony on video. The deposition commenced at approximately 9:30 a.m. and concluded at approximately 4:15 p.m., lasting approximately five and one-half hours inclusive of a morning break, a lunch recess, and two additional short breaks. The certified transcript runs approximately 247 pages.
Hannah Brinkley defended the deposition on behalf of Penterra and Calderwood & Harkness LLP. I attended the deposition in a supporting capacity and took contemporaneous notes throughout, which form the basis of this summary in conjunction with the rough draft transcript received from Murray & Associates on November 3, 2021. The certified final transcript is expected by approximately November 12, 2021, and all page-and-line references in this memorandum should be verified against the final certified copy upon receipt.
Key Takeaway: Kapoor was well-prepared and stayed on message throughout the examination. His testimony was clear, consistent, and firmly supports Penterra's central position in this litigation: namely, that the January 12, 2018 email from Kapoor to Donald Farnham (the "Kapoor Email") did not constitute "prior written consent" under Section 2.3 of the Exclusive Distribution Agreement ("EDA"), did not operate as an amendment to Exhibit A (the Territory definition) under Section 13.1 of the EDA, and did not convey any present authorization, approval, or permission for Vantage to distribute Penterra products outside the six New England states. Kapoor was not materially impeached on any point during cross-examination, and the overall tenor of his testimony was favorable to our case. His characterization of the email as a forward-looking, conditional, and non-committal expression of willingness to explore future discussions — rather than a present grant of distribution rights — is well supported by the email's plain language and should withstand scrutiny at the summary judgment stage.
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 exclusive distributors, national specialty pharmacy partners, and direct-to-hospital contracting channels. He has a team of approximately fourteen professionals reporting to him, including the Director of Distribution & Logistics, the Director of National Accounts, and three Regional Commercial Directors.
Kapoor was the primary Penterra contact for Vantage Medical Distribution, LLC during the negotiation and execution of the Exclusive Distribution Agreement dated July 1, 2017. He testified that he personally led the commercial and business-terms negotiations on Penterra's behalf, with support from Rachel Mendez (Director of Distribution & Logistics) on operational and logistics matters and from Jennifer Chao (General Counsel) on legal terms and contract drafting. Kapoor described his working relationship with Donald Farnham, Vantage's founder and Chief Executive Officer, as professional and generally cooperative throughout the life of the EDA, from execution in mid-2017 through the deterioration of the relationship following Penterra's issuance of the March 8, 2021 cease-and-desist letter.
Kapoor's testimony covers the products distributed under the EDA, specifically: Oncalaris® (pegvisomant-axel), available in 20 mg and 40 mg vials, which is Penterra's lead oncology product and the primary commercial driver under the EDA; and Renuvesta® (cilosporin-beta), 5 mg capsules, an immunosuppressive agent included in the EDA portfolio but representing a smaller share of total revenue under the agreement. Kapoor testified that the vast majority of the commercial and financial discussions between the parties centered on Oncalaris®, which accounted for approximately 85% of Vantage's total purchases under the EDA in any given year.
Kapoor holds a B.S. in Biochemistry from Boston University and an M.B.A. from the Tuck School of Business at Dartmouth College. Prior to joining Penterra, he held distribution and commercial operations roles at Astellion Biosciences, Inc. and at Novus Health Partners, a mid-size specialty pharmaceutical company. He has worked in pharmaceutical distribution for approximately seventeen years.
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, with my participation in both sessions.
The following key preparation points were addressed:
Review of the EDA. We reviewed the Exclusive Distribution Agreement in its entirety with Mr. Kapoor, with particular focus on the following provisions:
• Section 2.1 (Grant of Exclusive Territory): Provides that Penterra grants Vantage the exclusive right to distribute the Products (as defined in Exhibit B) within the Territory (as defined in Exhibit A), subject to Vantage's compliance with the terms and conditions of the Agreement.
• Section 2.3 (Limitation on Distribution Outside Territory): Provides that Vantage "shall not, directly or indirectly, distribute, sell, market, promote, or solicit orders for any Product outside the Territory without the prior written consent of Penterra." This is the provision Vantage claims was satisfied by the Kapoor Email.
• Section 5.2 (Minimum Annual Purchase Commitment): Requires Vantage to purchase a minimum of $9.5 million in Products at Wholesale Acquisition Cost ("WAC") during each contract year of the EDA, with failure to meet this threshold constituting a material breach subject to a 90-day cure period under Section 11.2.
• Section 13.1 (Amendments): 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." This is the critical anti-oral-modification clause that bars Vantage's argument.
• Section 14.8 (Entire Agreement / Integration Clause): Provides that the EDA, together with its Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, contracts, and writings, whether oral or written, with respect to such subject matter.
Review of Exhibit A — Territory Definition. We reviewed the operative language of Exhibit A in detail: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')." Kapoor confirmed his familiarity with this language and his understanding that this definition was negotiated, deliberate, and intended to exclude New York, New Jersey, Pennsylvania, and all other states outside the six enumerated New England states.
Review of the January 12, 2018 Email. We walked through the Kapoor Email in granular detail. The exact text of the email, which was sent from Kapoor's Penterra corporate email address (s.kapoor@penterra.com) to Farnham's Vantage email address (dfarnham@vantagemd.com) at 3:17 p.m. on January 12, 2018, is as follows:
"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."
During preparation, we discussed the importance of Kapoor testifying truthfully and precisely about this email. We instructed Kapoor to avoid volunteering information beyond the scope of the questions asked; to listen carefully to each question and answer only the question posed; to distinguish clearly between expressing future willingness to discuss a topic and granting present consent or approval; and to be comfortable stating when he did not recall a specific detail rather than speculating. We also instructed Kapoor that, if a question called for a legal conclusion — such as whether the email constituted "consent" under a particular contract provision — he should answer based on his factual understanding and intent, not attempt to interpret the contract's legal requirements.
Consistency with Farnham Deposition Record. We reviewed Kapoor's anticipated testimony in the context of the deposition outline prepared for the October 18, 2021 Farnham deposition, to ensure that Kapoor's testimony would be consistent with the evidentiary record we are building. In particular, we flagged specific passages of the Farnham transcript where Farnham made admissions favorable to Penterra's position (discussed in Section VI below) and prepared Kapoor to address the anticipated areas where Rourke would attempt to use Farnham's testimony to impeach Kapoor or create inconsistencies.
Anticipated Lines of Cross-Examination. Based on our assessment of Vantage's position and Rourke's approach during the Farnham deposition, we anticipated the following lines of cross-examination:
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 where Farnham described his understanding of the Kapoor Email, his claimed reliance on it, and his concession that he never obtained a signed amendment to Exhibit A. This review was designed to prepare Kapoor for any areas where Rourke might attempt to use Farnham's prior testimony to confront or impeach Kapoor.
Overall, Mr. Kapoor was engaged, responsive, and well-prepared during both sessions. He demonstrated a strong command of the factual record and a clear understanding of the key themes and vulnerabilities in the case.
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 exclusive distribution arrangement for Oncalaris® in the New England region, and that the parties were introduced through a mutual contact at a pharmaceutical industry conference.
Kapoor confirmed the EDA's five-year term, running from July 1, 2017 through June 30, 2022, with two successive one-year automatic renewal options subject to 180 days' written notice of non-renewal by either party in advance of the then-current expiration date. He stated that this term structure was standard for Penterra's exclusive distribution arrangements and reflected the parties' mutual interest in a long-term commercial relationship.
Critically, Kapoor testified that the Territory was specifically and deliberately limited to the six New England states listed in Exhibit A during the negotiation process. He explained that the geographic scope of the distribution territory was one of the most heavily negotiated provisions of the EDA. According to Kapoor, Vantage, through Donald Farnham, had expressed interest during the negotiations in a broader territory that would encompass New York, New Jersey, and Pennsylvania in addition to the six New England states. Penterra declined this request because it intended to reserve the tri-state area for a separate distributor or a national specialty pharmacy partner. Kapoor stated that Penterra's commercial strategy at the time was to segment its distribution network by geographic region, with different partners covering different territories, to maximize market penetration and maintain competitive leverage.
Kapoor confirmed that the parties discussed the tri-state question multiple times before signing the EDA, both in person and by phone and email, and that the final version of Exhibit A reflected the agreed-upon territorial scope: the six New England states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — and nothing more. He testified that Farnham understood at the time of execution that the tri-state states were excluded and that the deal Vantage was signing covered only New England.
Kapoor further testified that Jennifer Chao, Penterra's General Counsel, drafted the EDA with input from outside counsel, and that the written-amendment clause (Section 13.1) and the entire-agreement clause (Section 14.8) were included at Penterra's insistence as standard protective provisions in all of Penterra's distribution agreements. Kapoor stated that he was familiar with these provisions and understood their effect at the time the EDA was executed.
B. The January 12, 2018 Email (the "Kapoor Email")
The January 12, 2018 email was the central focus of Kenneth Rourke's examination, consuming approximately 75 to 80 pages of the 247-page transcript. Rourke approached the email from multiple angles over the course of several hours, and his questioning was thorough and at times aggressive, but Kapoor remained composed and consistent throughout.
Kapoor testified that the email was sent in response to a telephone conversation with Donald Farnham that had taken place the previous day, January 11, 2018. According to Kapoor, Farnham called him in the afternoon to discuss how Vantage's Oncalaris® business was developing in New England and to reiterate Vantage's interest in expanding into the tri-state area — a subject Farnham had raised during the original EDA negotiations and had continued to mention periodically. Kapoor described the phone call as a friendly, informal business conversation lasting approximately 15 to 20 minutes.
Kapoor explained the email's language in detail. He testified that the phrase "open to exploring expansion" was intentionally forward-looking and conditional. It expressed a general willingness on Penterra's part to have future discussions about the possibility of territory expansion — not a present grant of any rights, consent, or authorization. Kapoor emphasized that the word "exploring" was deliberate: he was communicating that Penterra might be willing to explore the idea at some future date, not that Penterra was committing to anything in the present.
Regarding the phrase "once your New England footprint is fully ramped," Kapoor testified that this constituted an express condition precedent to even beginning any substantive discussions about expansion. He explained that in January 2018, Vantage's New England business was still in the relatively early stages of development. Vantage's fiscal year 2018 Oncalaris® purchases were $11.2 million at WAC, which, while exceeding the $9.5 million annual minimum under Section 5.2, was only $1.7 million above that floor and was far from what Kapoor considered a "fully ramped" New England operation. Kapoor stated that he did not view Vantage as having a fully established presence in the New England market at that point, and that it would not have been prudent for Penterra to consider granting additional territory to a distributor that had not yet demonstrated its full capabilities in its existing territory.
Regarding the phrase "let's circle back mid-year and see where things stand," Kapoor testified that this language further confirmed the preliminary, non-committal nature of the communication. He stated that the phrase was a common business expression indicating that the topic would be revisited at a later date, with no guarantee of any particular outcome. Kapoor characterized the entire email as a polite way of saying, in essence: "We hear you, we're not ruling it out, but nothing is happening right now — let's revisit the idea later."
Kapoor was firm and unequivocal on the central legal issue: the email did not constitute "prior written consent" under Section 2.3 of the EDA, nor was it intended to serve as an amendment to Exhibit A. He testified that he was aware at the time he sent the email of Section 13.1's requirement that amendments to the EDA be set forth in a "written instrument signed by both parties," and that his email — a brief, informal, three-sentence message — did not satisfy and was not intended to satisfy that requirement. Kapoor stated that if Penterra had intended to expand the Territory, the Company would have prepared a formal written amendment to Exhibit A, had it reviewed and approved by Jennifer Chao, and executed it with appropriate signatures from authorized officers of both parties.
Under cross-examination, Rourke pressed Kapoor on whether the email created a "reasonable expectation" in Farnham that territorial expansion was forthcoming. Kapoor maintained his position, testifying that the email was merely a courtesy expression of Penterra's willingness to continue a dialogue with Vantage about a topic of mutual interest. He stated that a reasonable business person reading the email would understand it as saying "maybe later, let's talk about it," not "yes, you can start shipping into the tri-state area." Kapoor further noted that the email contained no specific terms, no timeline, no pricing, and no reference to any contract provision — all of which would be expected if the email were intended to convey a grant of distribution rights.
Rourke asked whether Kapoor followed up with Farnham "mid-year" as suggested in the email. Kapoor testified that he did not. He stated that the topic of tri-state expansion was not raised again between the parties in any formal, structured, or significant way after the January 12, 2018 email. Kapoor acknowledged that he and Farnham continued to speak periodically about Vantage's business in New England, and that Farnham may have mentioned the tri-state area in passing during one or more of those conversations, but he denied that any such mention resulted in an agreement, commitment, or authorization from Penterra. Kapoor stated that the mid-year follow-up simply did not happen, and that neither party pressed the issue.
Rourke then introduced a passage from Donald Farnham's October 18, 2021 deposition transcript in which Farnham testified that he understood the Kapoor Email as "a green light" to begin planning for tri-state expansion. Kapoor was asked to respond to that characterization. He disagreed clearly and directly, stating: "I can't control how Don interpreted my email, but it says what it says — we were open to exploring, not agreeing." Kapoor added that if Farnham genuinely believed the email was a "green light," he would have expected Farnham to follow up with a request for a formal amendment to the EDA or at least to seek clarification in writing — neither of which occurred.
This line of testimony was among the strongest in the deposition and should translate well to an affidavit and to potential trial testimony.
C. Awareness of Vantage's Tri-State Activity
Kapoor testified that he first became aware of Vantage's shipments of Oncalaris® to customers in New York in approximately late 2019 or early 2020. He stated that the information came to him through informal, unstructured reports from members of Penterra's regional sales team covering the Northeast, who had heard through customer contacts and industry channels that Vantage was making deliveries to hospital pharmacies in the New York metropolitan area. Kapoor characterized these initial reports as anecdotal and unconfirmed, involving what he understood to be small volumes of product.
Kapoor explained that he did not immediately initiate a formal investigation because the reports were secondhand and vague, and because the volumes reported were minimal. He testified that, in his experience, occasional out-of-territory deliveries by distributors sometimes occurred due to customer-initiated transfers, cross-docking arrangements, or shipping errors, and that he did not want to escalate the matter without more concrete evidence.
Kapoor confirmed that the unauthorized tri-state shipments became more systematic and noticeable beginning on or about September 14, 2020, when Penterra's internal logistics data — maintained by Rachel Mendez and her team — began reflecting a pattern of recurring shipments by Vantage to addresses in New York, New Jersey, and Pennsylvania. Kapoor stated that the September 2020 timeframe was when the activity transitioned from sporadic and anecdotal to regular and verifiable.
Rourke pressed extensively on the delay between Kapoor's initial awareness of the unauthorized activity (late 2019 or early 2020) and Penterra's issuance of the March 8, 2021 cease-and-desist letter from Jennifer Chao to Donald Farnham. This line of questioning clearly was designed to establish a factual foundation for Vantage's waiver or acquiescence defense. Kapoor provided a detailed explanation of the delay, testifying as follows:
First, the initial reports were anecdotal and unconfirmed. Kapoor stated that Penterra needed reliable data before accusing a long-standing distribution partner of a material contract breach.
Second, confirming the scope of the unauthorized activity required Penterra to aggregate and analyze shipping and logistics data maintained by Rachel Mendez and her team. Kapoor testified that this data was not organized in a format that made out-of-territory shipments immediately apparent, and that Mendez needed time to pull and cross-reference the relevant records.
Third, once the activity was confirmed at a significant scale in late 2020 and early 2021, Penterra acted promptly. Kapoor testified that he raised the issue internally with Jennifer Chao, Penterra's General Counsel, in approximately January 2021, after reviewing logistics reports that showed substantial Vantage shipments to hospitals in New York, New Jersey, and Pennsylvania. The cease-and-desist letter was issued on March 8, 2021 — approximately six to eight weeks after the matter was escalated to legal, which Kapoor described as a reasonable timeline given the need for legal review and internal deliberation.
Rourke attempted to characterize Penterra's delay as acquiescence or ratification of Vantage's tri-state distribution. Kapoor denied this firmly. He stated: "Penterra never authorized, approved, or ratified Vantage's distribution of our products outside the six New England states. The fact that it took us some time to gather the evidence and escalate the matter does not change the fact that we never gave them permission." This testimony was delivered calmly and with conviction, and Rourke did not succeed in shaking Kapoor's position on this point.
D. Vantage's Purchase History and Performance
Kapoor confirmed Vantage's Oncalaris® purchase history under the EDA, testifying to the following figures at Wholesale Acquisition Cost:
Kapoor acknowledged that Vantage had been a strong-performing distributor in New England. He described the purchase trajectory as reflecting both Vantage's effective sales execution and the broader growth in Oncalaris® demand driven by expanding clinical indications for the product in certain oncology settings.
Rourke attempted to elicit testimony that the significant growth in Vantage's purchases — particularly from FY 2019 onward — was attributable in part or in whole to Vantage's tri-state expansion. Kapoor stated that he could not confirm the geographic breakdown of Vantage's sales from his position, as that level of granular sales data was maintained by Rachel Mendez's distribution and logistics team and by Vantage internally. Kapoor noted, however, that Oncalaris® demand was growing industry-wide during this period due to new clinical evidence supporting additional treatment indications, and that attributing Vantage's growth solely to tri-state activity was speculative without a geographic breakdown of the data.
Kapoor confirmed that, based on Vantage's own sales records produced during discovery, Vantage's reported tri-state revenues from approximately September 2020 through March 2021 were approximately $6.4 million. He stated that this figure was significant and reinforced Penterra's position that the unauthorized distribution activity was not trivial or de minimis, but rather represented a substantial and deliberate expansion into territory that Vantage had no contractual right to serve.
E. Meridian National Distributors, Inc. and the Tri-State Term Sheet
Kapoor testified regarding Penterra's efforts to engage a separate distributor for the tri-state area, consistent with the Company's long-standing commercial strategy. He stated that Penterra executed a non-binding term sheet with Meridian National Distributors, Inc. on February 15, 2021. Meridian is a New York corporation headquartered at 520 Seventh Avenue, 12th Floor, New York, New York 10018, and is one of the larger regional pharmaceutical distributors operating in the mid-Atlantic corridor.
Under the term sheet, Meridian would have served as the exclusive distributor for Oncalaris® in New York, New Jersey, Pennsylvania, and Maryland, with an initial three-year term and a minimum annual purchase commitment of $12 million at WAC. The deal was led on Penterra's side by Kapoor and on Meridian's side by Thomas Welliver, Meridian's President. Kapoor testified that the negotiations with Meridian had been progressing well and that the parties were moving toward a definitive agreement.
Kapoor confirmed that the Meridian arrangement stalled when Vantage, through Kenneth Rourke at HSP, sent a letter dated March 22, 2021 asserting that Vantage held exclusive distribution rights over the tri-state area and threatening a $35 million breach-of-contract and tortious interference counterclaim against Penterra if it proceeded with the Meridian deal. Kapoor stated that Penterra paused the Meridian negotiations at that point on the advice of counsel, and that the matter remains unresolved pending the outcome of this litigation.
Kapoor testified that the Meridian arrangement was entirely consistent with Penterra's original commercial strategy — the very reason the tri-state states had been excluded from Exhibit A in 2017. He stated: "We always intended to appoint a separate distributor for the tri-state area. That's why we didn't give Vantage those states in the first place. The Meridian deal is exactly what we planned to do." This testimony directly rebuts Vantage's argument that Penterra had informally ceded the tri-state territory to Vantage and corroborates the deliberate nature of the territorial limitation in Exhibit A.
F. The Cease-and-Desist Letter and Subsequent Events
Kapoor confirmed that he was actively involved in the decision to have General Counsel Jennifer Chao send the March 8, 2021 cease-and-desist letter to Donald Farnham. The letter demanded that Vantage immediately cease all distribution, sale, marketing, and promotion of Oncalaris® and Renuvesta® outside the six New England states identified in Exhibit A to the EDA. Kapoor testified that he reviewed a draft of the letter before it was finalized and sent, and that the letter accurately reflected Penterra's position.
Kapoor confirmed his awareness of Vantage's response to the cease-and-desist letter. That response came in the form of a letter dated March 22, 2021 from Kenneth Rourke at HSP, written on Vantage's behalf, asserting that Vantage possessed exclusive rights to distribute Penterra products in New York, New Jersey, and Pennsylvania based on the January 12, 2018 Kapoor Email and the parties' course of dealing, and threatening a counterclaim seeking $35 million in damages for breach of contract and tortious interference with prospective economic advantage.
Kapoor stated that following receipt of the Rourke letter, Penterra retained Calderwood & Harkness LLP to represent it in this matter. The engagement letter was executed on March 29, 2021. Penterra's declaratory-judgment complaint was subsequently filed on April 12, 2021, in the Massachusetts Superior Court, Business Litigation Session, Suffolk County, seeking a judicial declaration that (i) the Territory under the EDA is limited to the six New England states enumerated in Exhibit A, (ii) the January 12, 2018 email did not constitute prior written consent under Section 2.3 or an amendment to Exhibit A under Section 13.1, and (iii) Vantage's distribution of Penterra products in the tri-state area constitutes a material breach of the EDA.
G. Course of Dealing / Oral Modification
Rourke spent considerable time during the deposition exploring whether any oral conversations between Kapoor and Farnham could be construed as having modified or expanded the Territory defined in Exhibit A. This line of questioning was plainly directed at supporting Vantage's alternative theory — that even if the Kapoor Email does not independently constitute consent or amendment, the parties' course of dealing over time effectively modified the territorial restriction.
Kapoor consistently and firmly testified that there were no oral agreements between him and Farnham to expand the Territory beyond the six New England states. He acknowledged that he and Farnham communicated periodically by telephone and in person about Vantage's business generally — including sales performance, product supply issues, pricing discussions, and market developments — but he denied that any such conversation resulted in consent, authorization, or approval from Penterra for Vantage to distribute products outside New England. Kapoor characterized his communications with Farnham as the ordinary, ongoing business dialogue that one would expect between a manufacturer and its distribution partner, not as negotiations over territorial expansion.
Kapoor was directed by Rourke to Section 13.1 of the EDA, which 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." Kapoor confirmed his understanding that this clause precluded oral modifications to the agreement, including oral modifications to the territorial scope defined in Exhibit A. He stated that he was aware of this provision at all relevant times and that he understood it to mean that no conversation, phone call, meeting, or email — short of a formal written amendment signed by authorized representatives of both parties — could alter the terms of the EDA.
Kapoor was also directed to Section 14.8, the Entire Agreement and Integration Clause, and confirmed that the EDA, together with its Exhibits (including Exhibit A), constituted the complete and final expression of the parties' agreement with respect to distribution of Penterra products in the defined Territory. He testified that no prior negotiations, oral representations, or side agreements were intended to supplement, modify, or contradict the written terms of the EDA.
This testimony effectively forecloses Vantage's course-of-dealing and oral-modification theories, particularly when combined with the written-amendment clause and the governing law analysis under Massachusetts contract principles.
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 questions embedded assumptions about the email's meaning or effect that were disputed, and Brinkley appropriately placed these objections on the record to preserve them. Representative examples include Rourke's question: "So when you told Mr. Farnham in writing that Penterra was 'definitely open to exploring expansion into NY/NJ/PA,' you were giving him permission to begin planning for distribution in those states, correct?" Brinkley objected as to form (leading and assuming facts not in evidence), and Kapoor denied the characterization after the objection was lodged.
Objections as to Legal Conclusions. Brinkley objected when Rourke asked Kapoor to characterize, as a legal matter, whether the January 12, 2018 email constituted "consent" under Section 2.3 of the EDA. Brinkley's objection was that the question called for a legal conclusion from a lay witness. The objection was noted for the record, and Kapoor was permitted to answer based on his factual understanding and intent, which he did consistently and favorably.
Instruction Not to Answer — Attorney-Client Privilege. Brinkley instructed Kapoor not to answer one question that called for disclosure of the substance of attorney-client privileged communications between Kapoor and Jennifer Chao regarding the strategy behind the March 8, 2021 cease-and-desist letter. Rourke asked Kapoor to describe what Chao had advised him about the legal consequences of issuing the cease-and-desist while the Meridian negotiations were pending. Brinkley instructed Kapoor not to answer on the grounds of attorney-client privilege, and Rourke did not press the issue further after the instruction was given. No motion to compel was filed, and the matter does not appear to be a lingering dispute.
No Motions to Compel. No motions to compel arose from the deposition. All objections were preserved on the record in the ordinary course, and there were no unresolved discovery disputes requiring judicial intervention.
Overall Assessment. Brinkley's defense was measured and professional. She did not over-object or disrupt the flow of the deposition, but she placed appropriate objections on the record at critical junctures, particularly on the questions most likely to generate testimony that Vantage will attempt to use in opposition to our summary judgment motion. Most importantly, Kapoor was not impeached on any material point during the cross-examination. His testimony was consistent, credible, and aligned with the contemporaneous documentary record.
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. Farnham testified on October 18, 2021 that he interpreted the January 12, 2018 Kapoor Email as Penterra's approval to begin planning for tri-state expansion. He used the phrase "green light" to describe his understanding of the email's import, testifying that he "took Steve's email as the green light to start laying the groundwork for us to move into New York, New Jersey, and Pennsylvania." Kapoor, by contrast, characterized the email as a preliminary, non-committal expression of willingness to discuss the topic at a future date — a "let's talk about it later" message, not an authorization. The plain language of the email supports Kapoor's characterization, and we expect the Court to agree.
Absence of a Signed Amendment. Significantly, Farnham admitted during his deposition that he did not obtain a signed amendment to Exhibit A at any time following the January 12, 2018 email or at any other point during the life of the EDA. He acknowledged that no Penterra officer expressly authorized tri-state shipments in a signed writing. When asked why he did not seek a formal amendment, Farnham testified that he believed the Kapoor Email was sufficient and that a formal amendment was unnecessary given his understanding of Penterra's position. This admission is highly favorable to Penterra and is fatal to Vantage's contract-modification theory under Section 13.1.
Key Divergence. The fundamental divergence between the two witnesses is one of characterization. Farnham claims the email was a "green light"; Kapoor insists it was, at most, an expression of future willingness to explore. The email's own language — "open to exploring," "once your New England footprint is fully ramped," "let's circle back mid-year" — is far more consistent with Kapoor's characterization than with Farnham's. No reasonable reading of the email supports the conclusion that Penterra was granting present, unconditional authorization for Vantage to expand into the tri-state area.
Implications. Farnham's admission that no signed amendment was ever obtained is, standing alone, dispositive of Vantage's Section 13.1 argument. Combined with Kapoor's consistent testimony about his intent and the email's meaning, the testimonial record strongly favors Penterra on the central dispute in this case. To the extent Rourke attempts to frame this as a credibility contest between Kapoor and Farnham, the contemporaneous documentary evidence — the email itself — resolves the contest in our favor.
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 the time of execution that the tri-state states were excluded. There is no ambiguity in the contract language that would invite extrinsic evidence or create a triable issue of fact on the territorial scope.
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 language and should be credited on summary judgment.
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 drafted or reviewed by counsel. It contains no reference to the EDA, to Exhibit A, or to any specific contract provision. It does not purport to amend, modify, or waive any term of the agreement. Farnham's own admission that no signed amendment was ever obtained confirms that the Section 13.1 requirement was never satisfied.
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 runs headlong into this provision.
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 protecting contracting parties from informal, ambiguous, or disputed oral modifications, and has declined to allow parties to circumvent them absent extraordinary circumstances not present here. This legal framework strongly supports Penterra's position.
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 was confirmed at scale, the Company acted promptly by escalating to General Counsel and issuing the cease-and-desist letter. Moreover, the written-amendment clause in Section 13.1 independently forecloses any argument that Penterra's silence or inaction constituted an effective waiver or modification of the territorial restriction, as any such waiver would itself need to be in a signed writing.
Kapoor Affidavit. We should prepare a detailed affidavit from Mr. Kapoor in support of the summary judgment motion. The affidavit should address, at a minimum: (i) Kapoor's role in negotiating the EDA and the deliberate exclusion of the tri-state states from Exhibit A; (ii) his intent in writing the January 12, 2018 email, confirming that it was not intended as consent, authorization, or amendment; (iii) his confirmation that no oral or written agreement was reached at any time to expand the Territory beyond the six New England states; and (iv) his explanation of the timeline leading to the March 8, 2021 cease-and-desist letter. The affidavit should be drafted promptly following receipt of the certified transcript so that we can ensure consistency between the deposition testimony and the affidavit.
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 intended for New England addresses through Vantage, and the logistics data that confirms the scope and timeline of Vantage's unauthorized tri-state shipments. Mendez's testimony is expected to corroborate Kapoor's account of the timeline of Penterra's awareness of the unauthorized activity and to provide the granular, data-driven evidence necessary to quantify the scope of Vantage's breach. Mendez is being deposed as a Penterra witness; we will defend.
Brian Kopec — Deposition scheduled for December 7, 2021. Kopec is Vantage's Outside Sales Director and is being deposed as a Vantage witness. He is expected to testify about Vantage's sales operations in the tri-state area, including when and how Vantage began directing sales into New York, New Jersey, and Pennsylvania; his knowledge of the territorial restrictions under the EDA; his communications with Farnham and other Vantage personnel about the scope of Vantage's distribution authority; and his contacts with hospital pharmacy buyers and other customers in the tri-state area. Kopec's testimony may shed light on whether Vantage's tri-state expansion was a deliberate, planned strategy (as we contend) or an inadvertent drift that occurred organically (as Vantage may argue).
Close of Fact discovery: January 14, 2022.
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 communications, we need to know about them before the summary judgment briefing.
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 litigation and to Penterra's anticipated summary judgment motion:
Concessions and Qualifications: Kapoor's testimony contained minimal concessions or qualifications. The most notable concession was his acknowledgment that he did not follow up with Farnham "mid-year" as suggested in the email (Excerpt 8 above), which Rourke attempted to use to argue that Penterra showed indifference to the territorial question. However, this concession is ultimately neutral or favorable: the failure to follow up is equally consistent with the interpretation that the topic was not a priority and no agreement had been reached, and it undercuts any argument that the parties were actively working toward territorial expansion. Kapoor also acknowledged that he could not provide a geographic breakdown of Vantage's sales (Excerpt 14), but he appropriately deferred to Rachel Mendez on that point, preserving the issue for her upcoming deposition.
This memorandum is a privileged and confidential attorney work product prepared in anticipation of litigation. It reflects the mental impressions, conclusions, opinions, and legal theories of the attorneys involved. It should not be disclosed to any person or entity outside the litigation team without prior authorization from Linda Osei.
PREPARED BY:
Patrick Gallagher Associate, Calderwood & Harkness LLP 1 Federal Street, 35th Floor Boston, Massachusetts 02110 (617) 555-4200 p.gallagher@calderwoodharkness.com
Fiscal Year | Oncalaris® Purchases (WAC) | Minimum Threshold | Variance Above Minimum
FY 2018 | $11.2 million | $9.5 million | +$1.7 million
FY 2019 | $14.8 million | $9.5 million | +$5.3 million
FY 2020 | $18.3 million | $9.5 million | +$8.8 million
FY 2021 (through March) | $16.1 million (9 months) | $9.5 million (annualized) | Annualized ~$21.47 million
No. | Topic | Page:Line | Summary of Testimony
1 | Deliberate exclusion of tri-state from Exhibit A during EDA negotiations | 34:8–36:22 | Kapoor testifies that Vantage requested tri-state territory during negotiations; Penterra declined because it intended to reserve the tri-state area for a separate distributor; final Exhibit A was the negotiated, agreed-upon territorial scope.
2 | Kapoor's explanation of the phrase "open to exploring expansion" | 72:14–75:3 | Kapoor testifies the language was forward-looking and conditional, expressing willingness to have future discussions, not a present grant of rights or consent.
3 | "Once your New England footprint is fully ramped" as a condition precedent | 78:19–81:6 | Kapoor testifies this was an express condition to even beginning discussions; Vantage's FY 2018 New England purchases were only $1.7 million above the $9.5 million minimum, far from "fully ramped."
4 | "Let's circle back mid-year" — non-committal nature | 83:11–84:22 | Kapoor testifies this language confirmed the email was preliminary and that no action was expected or authorized in the near term.
5 | Email was not "prior written consent" under Section 2.3 | 91:3–93:17 | Kapoor testifies unequivocally that the email did not constitute prior written consent and was not intended as such; states he was aware of Section 13.1's written-amendment requirement.
6 | Kapoor's acknowledgment of Section 13.1 and written-amendment requirement | 95:1–97:9 | Kapoor confirms his understanding that amendments must be "in a written instrument signed by both parties" and that his email did not satisfy this requirement.
7 | Denial of any oral agreement to modify the Territory | 112:5–115:18 | Kapoor testifies there were no oral agreements with Farnham to expand the Territory; periodic conversations about Vantage's business did not result in consent or authorization.
8 | Failure to follow up "mid-year" as suggested in the email | 103:2–105:11 | Kapoor testifies the topic was not raised again in any formal or structured way after January 12, 2018; he did not follow up mid-year.
9 | Response to Farnham's "green light" characterization | 128:7–130:14 | Kapoor disagrees with Farnham's characterization, stating: "I can't control how Don interpreted my email, but it says what it says — we were open to exploring, not agreeing."
10 | First awareness of Vantage's tri-state shipments | 142:19–146:8 | Kapoor testifies he first heard of possible New York shipments in late 2019 or early 2020 through informal sales-team reports; initial reports were anecdotal and unconfirmed.
11 | Explanation of delay in issuing cease-and-desist | 153:4–158:22 | Kapoor explains that Penterra needed to confirm the unauthorized activity through logistics data before escalating; once confirmed at scale, Penterra acted promptly by escalating to General Counsel and issuing the cease-and-desist.
12 | Denial of acquiescence or ratification | 161:9–163:15 | Kapoor denies that Penterra's delay constituted acquiescence or ratification, stating: "Penterra never authorized, approved, or ratified Vantage's distribution of our products outside the six New England states."
13 | Meridian term sheet — February 15, 2021 | 178:3–182:19 | Kapoor testifies that Penterra executed a term sheet with Meridian National Distributors for tri-state distribution of Oncalaris®; deal stalled after Vantage threatened a $35 million counterclaim; arrangement was consistent with Penterra's long-standing plan.
14 | Vantage's FY 2020 purchases and geographic attribution | 168:11–172:6 | Kapoor acknowledges Vantage's strong purchase performance but states he cannot confirm the geographic breakdown of sales; notes industry-wide growth in Oncalaris® demand due to new clinical indications.
15 | Integration clause (Section 14.8) — complete expression of agreement | 119:14–121:3 | Kapoor confirms the EDA, including Exhibit A, was the complete expression of the parties' agreement and that no prior oral or written communications were intended to supplement or modify it.

MEMORANDUM

MATTER NO.: 1018-00007

PREPARED BY:

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