IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE SARISSA CAPITAL DOMESTIC FUND LP, SARISSA OFFSHORE MASTER FUND LP, SARISSA CAPITAL FUND GP LLC, SARISSA CAPITAL FUND GP LP, SARISSA CAPITAL OFFSHORE FUND LP LLC, SARISSA

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DEFENDANT INNOVIVA, INC. S CORRECTED BRIEF IN SUPPORT OF ITS

MOTION TO DISMISS THE VERIFIED COMPLAINT

TABLE OF CASES AND AUTHORITIES

PRELIMINARY STATEMENT

This is a Section 225 action brought by an affiliated group of stockholders ( Sarissa ) based on a purported breach of contract. But Sarissa does not allege facts from which it is reasonably conceivable that it had a contract. Specifically, the Verified Complaint Pursuant to 8 Del. C. 225 and for Specific Performance (the Complaint ) does not allege that it received a manifestation of assent from anyone with authority to bind Innoviva, Inc. ( Innoviva or the Company ) to all material terms of the alleged contract.

What the Complaint alleges is not unusual in hotly contested proxy contests: two parties negotiated to try to reach a contract, got close to agreeing on the terms of a contract, but terminated discussions before any contract was reached.

No contract was formed between the parties for at least these reasons:

First, by its very terms, the draft written agreement the parties were negotiating required execution and delivery to form a binding contract.

Second, Sarissa does not allege that it reached any agreement to all material terms with anyone who had authority to bind Innoviva.

Third, Sarissa s own allegations show that the parties never agreed on at least two material terms of the proposed agreement the identity of the second Sarissa director nominee and the contents of the press release.

As a result, the Complaint should be dismissed.

STATEMENT OF FACTS(1)

Plaintiffs Sarissa Capital Domestic Fund LP, Sarissa Offshore Master Fund LP, Sarissa Capital Fund GP LLC, Sarissa Capital Fund GP LP, Sarissa Capital Offshore Fund LP LLC, Sarissa Capital Management GP LLC, and Sarissa Capital Management LP (previously defined as Sarissa ) allegedly own 3.425 million shares (approximately 3.14%) of Innoviva common stock in the aggregate. (Compl. 9) Before filing the Complaint, Sarissa ran a proxy contest to replace three of Innoviva s seven directors. (Compl. 10-11)

Innoviva is a Delaware corporation headquartered in California. (Compl. 10) Sarissa alleges that Innoviva s sole business is collecting royalties on certain drugs from GlaxoSmithKline ( GSK ). (Compl. 10)

B. The Individuals Mentioned In The Complaint.

Mr. George W. Bickerstaff, III serves as the Managing Director of M.M. Dillon and Co., LLC, an investment banking firm. (Compl. Ex. A) Mr. Bickerstaff was one of three Sarissa nominees for Innoviva s 2017 annual meeting of stockholders (the Annual Meeting ). (Compl. 11, 31) During settlement discussions, the parties discussed appointing Mr. Bickerstaff as one of two

(1) Facts are assumed true only for purposes of this Motion.

additional members of the Board. (Compl. 9, 31-33) His name is reflected in the text and the signature lines of all three exhibits to the Complaint. (Compl. Exs. A-C) Sarissa asks the Court to order that Mr. Bickerstaff be appointed to the Board. (Compl., WHEREFORE)

Mr. Jules Haimovitz is the President of the Haimovitz Consulting Group, a private media consulting firm. (Compl. Ex. A) Mr. Haimovitz was one of three Sarissa nominees for the Annual Meeting. (Compl. 11; Compl. Ex. A) During settlement discussions, the parties discussed appointing Mr. Haimovitz as one of two additional members of the Board as part of a potential settlement. (Compl. Ex. A) Sarissa does not seek to have Mr. Haimovitz appointed to the Board.

Dr. Odysseas Kostas is a senior analyst at Sarissa Capital Management LP. (Bookout Aff. Ex. 1)(2) Dr. Kostas was one of three Sarissa nominees for the Annual Meeting. (Compl. 11, 31) During settlement discussions, Sarissa proposed Dr. Kostas as a replacement for Mr. Haimovitz. (Compl. 9, 19, 31-33) His name does not appear on Exhibit B to the Complaint

(2) Exhibits referenced herein, unless otherwise noted, are attached to the Transmittal Affidavit of Arthur R. Bookout in Support of Defendant Innoviva, Inc. s Brief in Support of its Motion to Dismiss the Verified Complaint and are cited to as Bookout Aff. Ex. , filed herewith.

in either the text or the signature line. (Compl. Ex. B) Sarissa asks the Court to order that Dr. Kostas be appointed to the Board. (Compl., WHEREFORE)

Mr. Mark DiPaolo is the General Counsel of Sarissa, and participated in settlement discussions with Innoviva on Sarissa s behalf. (Compl. 14, 16, 18-19, 24-25, 29) Mr. DiPaolo was listed as the Authorized Person on the signature lines for all Sarissa entities listed in the draft agreement: Sarissa Capital Domestic Fund LP, Sarissa Capital Offshore Master Fund LP, Sarissa Capital Fund GP LLC, Sarissa Capital Fund GP LP, Sarissa Capital Offshore Master Fund LP LLC, Sarissa Capital Management GP LLC, and Sarissa Capital Management LP. (Compl. Ex. B) Mr. DiPaolo has decades of merger and acquisition experience. (Compl. 14)

Dr. Alexander Denner is the Founding Partner of Sarissa and is alleged to have talked twice with Mr. James Tyree about a possible settlement. (Compl. 15-16, 18)

Mr. James Tyree is the Vice Chairman of the Board, and is alleged to have had two conversations with Dr. Denner in connection with the settlement negotiations. (Compl. 15-16, 18)

Mr. Richard Grossman, Esq. is a lawyer at the New York office of Skadden, Arps, Slate, Meagher & Flom LLP, and is an experienced corporate mergers and acquisitions lawyer. (Compl. 12) Mr. Grossman was Innoviva s

lead lawyer for its proxy contest with Sarissa, and participated in settlement discussions with Sarissa. (See Compl. 12-14, 16, 18-19, 22, 24-25, 29)

Mr. Grossman s associate (the associate ) is alleged to have sent two emails to Sarissa with respect to the settlement discussions. (See Compl. 20, 22; see also Compl. Exs. B-C)

Mr. Michael W. Aguiar is the Chief Executive Officer of Innoviva, and a member of the Board. (Compl. 10-11) Sarissa does not allege that Mr. Aguiar participated in any settlement discussions.

C. Innoviva s Bylaws Require Board Approval To Expand The Board And Add New Members.

The Amended and Restated Bylaws of Innoviva, Inc. (the Bylaws, attached hereto as Bookout Aff. Ex. 2)(3) require approval of a resolution of a majority of the whole Board to expand the size of the Board:

Number, Tenure and Qualifications. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, the number of directors shall be fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the Whole Board .

(3) Innoviva, Inc., Current Report (Form 8-K), Ex. 3.1 (Feb. 8, 2017). See In re Wheelabrator Techs. Inc. S holders Litig., C.A. No. 11495, 1992 WL 212595, at *11 (Del. Ch. Sept. 1, 1992) (finding that the court may take judicial notice of a company s publicly filed corporate governance documents in connection with motion to dismiss under Rule 12(b)(6)). See also D.R.E. 201(b) (a court may take judicial notice of a fact that is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned ).

In addition, vacancies on the Board may be filled by a majority vote of directors then in office :

Vacancies. Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall, unless otherwise provided by law or by resolution of the Board of Directors, be filled in accordance with the Governance Agreement and only by a majority vote of the directors then in office, though less than a quorum .

(Bylaws 3.9) Sarissa does not allege that it or anyone else identified in the Complaint was unaware of the requirements in the Bylaws.

D. Innoviva s Counsel Proposes A Formal Agreement With A Standstill; Sarissa Rejects The Proposal.

Between April 18 and April 19, the parties engaged in substantive discussions to settle the proxy contest brought by Sarissa in which it sought, among other things, to replace three of seven Innoviva directors with Sarissa nominees. (Compl. 11)

At 11:29 p.m. on April 18, 2017, Mr. Grossman sent Sarissa a draft settlement agreement, noting that the Board has not reviewed the draft or approved the Company s entering into a settlement agreement at this time [sic] As I mentioned on our call, our Board is convening early tomorrow morning and will review the status of the agreement then. (Compl. 12-13) (emphasis

added) Sarissa alleges that it rejected the draft settlement agreement out of hand because it contained a standstill. (Compl. 12, 14)(4)

Mr. DiPaolo responded at 3:32 a.m. on April 19, 2017. Sarissa s allegation in paragraph 14 of the Complaint contains a telling ellipse. After thanking Mr. Grossman for sending the draft agreement, Mr. DiPaolo responded in full as follows:

We are not philosophically opposed to having a very simple agreement without a standstill. Unfortunately I don t think there is time to get this done via agreement. Our deal is very simple and shouldn t require any agreement. If the board adds two of our nominees to the board, then this will all be over tomorrow morning. Please convey this to your client.

(Bookout Aff. Ex. 3) (portion removed by ellipses emphasized) So as of 3:32 a.m. on April 19, 2017, Sarissa did not want a written agreement at all the opposite of what Innoviva was proposing. Mr. Grossman replied that he would convey Sarissa s position to the Company. (Compl. 14)

E. Innoviva Proposes A Simple Written Agreement To Appoint Two Nominees, With No Standstill.

At a meeting on the morning of April 19, 2017, the Board agreed to enter [sic] a simple agreement with no standstill, which was communicated

(4) Typically, a standstill agreement will prohibit a hostile bid in any form, including a hostile tender offer to acquire stock control of the other contracting party and/or a proxy contest to replace all or some of its directors. Martin Marietta Materials, Inc. v. Vulcan Materials Co., 68 A.3d 1208, 1219 (Del. 2012). Sarissa does not allege that the standstill operated atypically.

shortly before 2:00 pm [sic] on April 19 to Sarissa s founder, Dr. Denner, by Mr. Tyree. (Compl. 15)(5) Sarissa does not allege any additional approval by the Board.

Sarissa alleges that on the phone call between Mr. Tyree and Dr. Denner, the Vice Chairman and Dr. Denner agreed to a settlement in which two Sarissa nominees would be placed on the board. (Compl. 15) Notably, Sarissa does not allege any agreement on whom the nominees were supposed to be, just that there had been an agreement between Dr. Denner and Mr. Tyree on the concept that there would be two.

F. Innoviva s Counsel Sends A Draft Settlement Agreement With Messrs. Bickerstaff And Haimovitz As The Proposed Nominees.

Mr. Grossman thereafter sent Mr. DiPaolo a two-page draft agreement for him to review that contemplated expanding the Board to nine members (from seven) and adding two Sarissa nominees, identified as George W. Bickerstaff, III and Jules Haimovitz. (Compl. 16; Compl. Ex. A) The draft agreement was conditioned on the issuance of an attached press release. The draft agreement also required Sarissa to agree, among other things, to (i) irrevocably withdraw the notice of stockholder nomination for individuals for election ; (ii) terminate its solicitation of proxies in connection with the 2017 Annual Meeting ; and

(5) Mr. Grossman later told Mr. DiPaolo that the Board had cried uncle and agreed that an agreement would not need to require a standstill. (Compl. 16)

(iii) within two (2) business days from the date hereof, cause a stipulation of dismissal with prejudice to be filed with respect to the [Section 220 action filed in the Court of Chancery]. (Compl. Ex. A) Mr. Grossman allegedly told Mr. DiPaolo that the Board had agreed to add two nominees to the Board as part of the settlement. (Compl. 16)

G. Sarissa Rejects Innoviva s Draft Agreement And Changes One Of The Nominees To Dr. Kostas.

At 2:55 p.m., Sarissa sent Innoviva s counsel a revised proposed agreement that changed the identity of one of the nominees from the draft agreement that Innoviva s counsel sent. (Compl. 18) Sarissa alleges that Mr. Tyree and Dr. Denner had spoken,(6) and that Dr. Denner s comments were reflected in Sarissa s mark-up of the draft agreement. (Compl. 18) Notably, Sarissa does not allege that Mr. Tyree and Dr. Denner agreed on the identity of the two nominees Sarissa was now proposing. Nor does Sarissa allege that Innoviva s counsel was privy to the discussions or was authorized to agree to the revised nominees.

At 3:30 p.m., Messrs. DiPaolo and Grossman spoke, and Mr. Grossman conveyed that all of the comments were acceptable, but that he would need to run it by his co-counsel not the board. (Compl. 19) Mr. Grossman

(6) Sarissa does not allege any additional conversations between Mr. Tyree and Dr. Denner after this second conversation.

also asked for Mr. DiPaolo s comments to the draft press release. (Compl. 19) Mr. DiPaolo indicated they would include Dr. Denner providing a quote ; Innoviva s counsel responded he hoped Dr. Denner would be nice in his quote. (Compl. 19) Mr. DiPaolo responded that [Dr. Denner] always is [nice] and the two allegedly chuckled over this remark by Mr. DiPaolo about his boss. (Compl. 19)

At 4:19 p.m., another round of comments, which are contained in Exhibits B and C to the Complaint, came from the associate. (Compl. 20) As Sarissa concedes, it had yet to provide its comments to the press release. (Compl. 20)

While Sarissa alleges that the changes in the agreement were very minor and consisted primarily of the elimination of the press release contingency, the text and signature block of Exhibit B to the Complaint only name one Sarissa nominee. (Compl. 21; Compl. Ex. B at 1, 5) Moreover, the press release requirement remained in the draft agreement. The description of the timing of the issuance of the press release was merely changed from being a condition precedent to the agreement to instead being an action that would take place (along with other effects of the proposed agreement) only after execution. The draft reflects that the parties understood that the final contract would have to be executed by someone with a Title at Innoviva and that if executed in two or more counterparts

(delivery of which together shall constitute a single agreement . ). (Compl. Ex. B at 2-3)

H. Sarissa Changes A Material Point Related To The Press Release.

At 4:24 p.m., Sarissa proposed a further change to the draft settlement agreement regarding the timing of the issuance of the press release, proposing that it would go out immediately. (Compl. 22) At 4:29 p.m., the associate responded: That change is OK with us. (Compl. 22)

Sarissa alleges that this communication from the associate about Sarissa s change to the timing of the issuance of the press release marked resolution of the last material point[] to which Sarissa and Innoviva needed to agree, and, at that moment, the parties agreement became binding under the law. (Compl. 23)

I. Sarissa Rejects Innoviva s Counsel s Draft Press Release And Proposes A Materially Different Press Release.

However, at 4:42 p.m., Sarissa responded to Innoviva s counsel s draft press release. (Compl. 24) Sarissa did not accept Innoviva s counsel s draft, but instead proposed a materially different press release. Sarissa glosses over the actual comments it provided, alleging now that they were just loose ends and that these suggestions were previously orally provided to [Innoviva s counsel] as indicated above and that some of its proposals were just our advice. (Compl. 24) Sarissa s selective quotation of its email does not

accurately describe what was said in the email or included in the press release. There was also nothing nice about the comments. (Compl. 19) Sarissa s changes sought to highlight the reluctance of Innoviva s critical business partner and largest stockholder GSK to provide support for what Sarissa called necessary change, and to do so in contrast to independent shareholders. (Bookout Aff. Ex. 1)

Sarissa does not allege that Innoviva ever accepted Sarissa s revised version of the press release. In addition to the revised proposed press release, Sarissa continued to send emails to Innoviva s counsel without response, including attaching signature pages.(7) (Compl. 24-25)

At approximately 7:00 p.m. on April 19, 2017, Mr. Grossman informed Sarissa that the Board had determined not to continue with settlement discussions. (Compl. 29)(8)

(7) Perhaps tellingly, Sarissa does not allege that it sent any documents with the signature pages. What s worse for Sarissa, the actual signature pages Sarissa sent match neither Exhibit B nor C. Compare Compl. Ex. B at 5 (bottom signature line reflecting By: Name: and Compl. Ex. C at 5 (bottom signature line reflecting By: Name: Odysseas Kostas footer: Redline Innoviva - Letter Agreement Settlement - Sarissa 1442349v3 and Innoviva Letter Agreement Settlement - Sarissa 1442349v4A 4/19/2017 4:07:33 PM with Bookout Aff. Ex. 4 at 5 (bottom signature line reflecting By: /s/ Odysseas Kostas Name: Odysseas Kostas, M.D.) (emphasis added to M.D. ).

(8) Just prior to paragraph 29, the Complaint takes a multi-paragraph detour through actions Sarissa imagines Mr. Aguiar took on the afternoon of April 19. (Compl. 26-28) Sarissa alleges, solely upon information and belief, that Mr. Aguiar quietly kept soliciting proxies after an agreement was reached, caused the board to hold another meeting after a stockholder declared it would vote in favor of Innoviva s slate, and was substantially responsible for the Board s decision to refuse to proceed further with discussions. (Compl. 26-28) Sarissa does not and cannot allege any facts to support its conclusions.

On April 20, 2017, the Annual Meeting was held. Sarissa s three nominees were defeated. (Compl. 32) Sarissa does not allege otherwise. (9) To the contrary, it alleges that a large stockholder decided to vote against Sarissa, which decided the vote. (Compl. 28)

(9) On April 28, 2017, Innoviva publicly filed the certified results demonstrating that Innoviva s seven nominees were elected as directors to the Board. (Innoviva, Inc., Current Report (Form 8-K) (Apr. 28, 2017), attached hereto as Bookout Aff. Ex.5)

A motion under Court of Chancery Rule 12(b)(6) to dismiss for failure to state a claim will be granted if it appears with reasonable certainty that the plaintiff could not prevail upon any set of facts that can be inferred from the pleadings. See Ct. Ch. R. 12(b)(6). In applying Rule 12(b)(6), the Court must accept well pleaded allegations as true and draw reasonable inferences in favor of the plaintiff. Pfeffer v. Redstone, 965 A.2d 676, 683 (Del. 2009). However, conclusory allegations should never be accepted as true. Id. See also In re Gen. Motors (Hughes) S holder Litig., 897 A.2d 162, 168 (Del. 2006) (to support a conclusion, a plaintiff must make specific supporting factual allegations (citation omitted)). Moreover, the Court is required to accept only those reasonable inferences that logically flow from the face of the complaint and not every strained interpretation of the allegations proposed by the plaintiff. In re Gen. Motors (Hughes), 897 A.2d at 168 (citation omitted).

I. THE COMPLAINT SHOULD BE DISMISSED BECAUSE SARISSA DOES NOT PLEAD ALL NECESSARY ELEMENTS FOR A CLAIM OF BREACH OF CONTRACT.

Under Delaware law, a party asserting a breach of an oral agreement must prove the existence of an enforceable contract by a preponderance of the evidence. Pulieri v. Boardwalk Props., LLC, C.A. No. 9886-CB, 2015 WL 691449, at *5 (Del. Ch. Feb. 18, 2015). In addition, Sarissa seeks the remedy of

specific performance. (Compl., Preamble) That requires it to prove its claims by clear and convincing evidence.

A party must prove by clear and convincing evidence that he or she is entitled to specific performance and that he or she has no adequate legal remedy. A party seeking specific performance must establish that (1) a valid contract exists, (2) he is ready, willing, and able to perform, and (3) that the balance of equities tips in favor of the party seeking performance.

Pulieri, 2015 WL 691449 at *5 (citation omitted). Thus, to survive a motion to dismiss, Sarissa must allege facts from which it is reasonably conceivable that [it] could establish a right to specific performance by clear and convincing evidence. Id. (dismissing complaint because it failed to adequately allege an oral contract).

Here, Sarissa cannot get past the first element: a valid contract.

In Delaware, a contract exists only when a reasonable man would, based upon the objective manifestation of assent and all of the surrounding circumstances, conclude that the parties intended to be bound by contract. Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1101-02 (Del. Ch. 1986). Even when there is a signed writing which does not exist here a contract is not formed unless the parties have agreed to all material terms of the contract. Id. at 1102. It is when all of the terms that the parties themselves regard as important have been negotiated that a contract is formed. Id. (emphasis added). Those terms must be sufficiently definite in order for a contract to exist. Pulieri, 2015 WL 691449, at *6. See also 1 Williston on Contracts 3:2 (4th ed. 2016). That is because

Delaware courts have long recognized that equity has no role in supplying a contract s essential terms where a party seeks specific performance, since that would be rather to make than to execute an agreement. Pulieri, 2015 WL 691449, at *6 (citation omitted). As the Court noted in Leeds, the existence of some terms even in a finalized writing does not create a complete agreement because multi-faceted commercial transactions can only proceed in stages:

Until it is reasonable to conclude, in light of all of these surrounding circumstances, that all of the points that the parties themselves regard as essential have been expressly or (through prior practice or commercial custom) implicitly resolved, the parties have not finished their negotiations and have not formed a contract. Agreements made along the way to a completed negotiation, even when reduced to writing, must necessarily be treated as provisional and tentative. Negotiation of complex, multi-faceted commercial transactions could hardly proceed in any other way. See International Telemeter Corporation v. Teleprompter Corporation, 592 F.2d 49 (2d Cir. 1979) (Friendly, J., concurring).

521 A.2d at 1102 (emphasis added); see also id. at 1102 n.4 (quoting 2 Schlesinger (ed.), Formation of Contracts: A Study of the Common Core of Legal Systems at 1584-86 (1968)) (describing typical course of dealing in a significant commercial transaction in which lawyers come up with a draft which meets the approval of all of them, and of their clients and only then [do] the parties proceed to the actual formation of the contract through a closing or by simultaneous execution or delivery in the course of a more or less ceremonial meeting, of the document or documents prepared by the lawyers )); Grunstein v. Silva, C.A. No. 3932-VCN,

2014 WL 4473641, at *17 (Del. Ch. Sept. 5, 2014) (stating that a reasonable negotiator could rationally assume that a complex agreement would necessarily have to be reduced to writing for all of the essential terms to be fully agreed upon ), aff d, 113 A.3d 1080 (Del. 2015) (TABLE); id. at *20 ( The parties circulated legal documents that sophisticated parties would expect to memorialize their rights and obligations. A reasonable negotiator, all things being equal, would be less likely to conclude that a high-level oral agreement constituted all of the material terms to an agreement and had been assented to after these failed attempts to formalize more detailed agreements. ).

[I]t is a basic matter of contract law that, to be binding, an acceptance of an offer must be identical with the offer and unconditional. Schwartz v. Chase, C.A. No. 4274-VCP, 2010 WL 2601608, at *7 (Del. Ch. June 29, 2010) (emphasis in original) (citation omitted). Thus, [w]here the parties fail to agree on one or more essential terms, there is no binding contract. Patel v. Patel, C.A. No. 07C-07-020 RRC, 2009 WL 427977, at *3 (Del. Super. Ct. Feb. 20, 2009). This principle operates with equal force in the context of settlement agreements. See, e.g., id. at *4 (concluding no valid settlement agreement existed where an executed, purportedly simple agreement omitted key terms and was to be submitted to counsel to be formalized); Schwartz, 2010 WL 2601608, at *7, *8 n.71 (finding no binding settlement agreement where party signs agreement but

simultaneously raises additional issues or where party was comfortable with changes to written document but otherwise demonstrated intent to make execution a condition precedent).

As set forth below, there are at least the following reasons why Sarissa s breach of contract claim must fail. First, on its face, the draft agreement that the parties were discussing required execution and delivery as a prerequisite to form a binding contract; that never happened. Second, Sarissa fails to allege that it ever had any binding agreement let alone clear and convincing evidence of what exactly the terms of the alleged oral and written agreements were with anyone with authority to bind Innoviva. In particular, Sarissa fails to allege that it believed that Mr. Grossman (or anyone else) had authority to bind Innoviva to take actions that require a majority vote of the Board. Third, based on the Complaint and the documents incorporated by reference therein, there are at least two material terms absent from the alleged agreement which two directors would be seated and the contents of the press release. Fourth, it is not reasonably conceivable that, at an ultimate judicial determination, Sarissa will meet its burden by clear and convincing evidence and be entitled to specific performance.

II. THE DRAFT AGREEMENT CONTEMPLATED THAT WRITTEN EXECUTION BY A REPRESENTATIVE OF INNOVIVA AND DELIVERY WERE PREREQUISITES TO A CONTRACT.

The language of Exhibit B to the Complaint, which Sarissa alleges was the parties draft agreement, makes clear that the parties contemplated written execution of any agreement by all parties and delivery of those executed agreements as prerequisites to an enforceable contract. See Leeds, 521 A.2d at 1102.

First, Exhibit B to the Complaint states: In consideration for, among other things, the willingness of Sarissa to take the actions outlined in the preceding paragraph, the Company (i) confirms, represents and warrants to Sarissa that, concurrently with the execution of this letter agreement, it has (A) increased the size of the Company s board of directors (the Board ) to nine (9) members, (B) appointed each of George W. Bickerstaff, III and as a director of the Company (each, a Sarissa Designee and collectively, the Sarissa Designees) . (Compl. Ex. B at 1) (emphasis added) Second, Exhibit B states: This letter agreement may be executed in two or more counterparts (delivery of which may be by facsimile or via email as a portable document format (.pdf)) which together shall constitute a single agreement . (Compl. Ex. B at 2) (emphasis added) Finally, Exhibit B makes clear in the very first sentence that the entities and natural

persons set forth on the second and third signature pages hereby. (Compl. Ex. B at 1) (emphasis added)

Not surprisingly, given that the draft agreement contemplated changes to the size and composition of the board of directors of a Delaware corporation, the parties, through the explicit terms of Exhibit B to the Complaint, stated that there would be a binding contract hereby only upon execution or once executed in two or more counterparts by authorized representatives of all parties, as reflected on the signature pages, and which executed pages were to be delivere[d] by facsimile or via email. (Compl. Ex. B at 1-2) (emphasis added) This is common in contracts such as Exhibit B where execution or delivery(10) of the document or documents prepared by the lawyers is the actual formation of the contract. Leeds, 521 A.2d at 1102 n.4 (citation omitted). See also Bryant v. Way, C.A. No. 11C-01-164 RRC, 2012 WL 1415529, at *10 (Del. Super. Ct. Apr. 17, 2012)