(2) UPON THE LIQUIDATION OF FUND II, ITS CONSENT RIGHTS SET FORTH IN
SECTION 3(D).
(C)
DCM SHALL PROMPTLY NOTIFY AND CONSULT WITH INVESTOR IF ANY
ADDITION OR VARIATION IS PROPOSED TO BE MADE TO THE TERMS AND PROVISIONS
RELATING TO INCENTIVE ALLOCATIONS OR THE MANAGEMENT FEE IN THE LIMITED
PARTNERSHIP AGREEMENT (OR ANY OTHER OPERATING AGREEMENT) OF ANY DEERFIELD
PEGASUS FUND (INCLUDING, WITHOUT LIMITATION, PURSUANT TO ANY SIDE LETTERS
RELATING THERETO), PROVIDED, THAT WITHOUT THE PRIOR APPROVAL OF INVESTOR, IN NO
EVENT MAY DCM OR ANY AFFILIATE THEREOF AGREE TO ANY ADDITION OR VARIATION THAT
WOULD HAVE THE EFFECT OF (I) HOLDING INVESTOR JOINTLY LIABLE WITH DCM, DFR OR
ANY DFR AFFILIATE FOR THE RETURN OF ANY INCENTIVE ALLOCATIONS OR (II) REQUIRING
INVESTOR OR ANY OF ITS EMPLOYEES, OFFICERS OR DIRECTORS TO GUARANTY THE RETURN
OF ANY INCENTIVE ALLOCATIONS NOT RECEIVED BY SUCH PERSON.
(D)
SUBJECT TO SECTION 28, DFR SHALL CAUSE EACH DEERFIELD PEGASUS
FUND, EACH DEERFIELD PEGASUS FUND GP OF, AND EACH INVESTMENT ADVISOR OTHER THAN
DCM (SUCH INVESTMENT ADVISORS, THE "DEERFIELD PEGASUS FUND INVESTMENT ADVISORS")
TO, SUCH DEERFIELD PEGASUS FUND TO EXECUTE A COUNTERPARTY SIGNATURE PAGE TO THIS
AGREEMENT AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF (INCLUDING THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN EXHIBIT A) PROMPTLY UPON THE
FORMATION OF SUCH ENTITIES.
(e)
For the avoidance of doubt, unless Investor otherwise agrees, the
limited liability company agreement of each Deerfield Pegasus Fund GP shall be
substantially the same (except as otherwise agreed to by DCM and Investor) as
the DLC GP Agreement, provided that Investor shall not be entitled to the rights
in any such agreement that are set forth in sections 3.2 (other than sections
3.2(b)(i), 3.2(c)(i), 3.2(c)(ii), 3.2(c)(xii) (except with respect to section
10.08 of the Fund I LPA), 3.2(c)(xiii), 3.2(c)(xxi)(but only in respect of
determination under sections 5.2, 5.6, 8.1 and 8.2 of the DLC GP Agreement) and
3.2(c)(xxiii)), 3.3, 3.4, 3.6(b), 3.6(c), 3.7, 3.8 and 5.8 of the DLC GP
Agreement.
8.
USE OF NAME.
(A)
EXCEPT WITH THE PRIOR WRITTEN CONSENT OF INVESTOR OR AS REQUIRED
BY APPLICABLE LAW, RULE OR REGULATION (INCLUDING FOR THE PURPOSE OF MAKING ANY
FILING OR OTHER DISCLOSURE BUT ONLY IF THE PROCEDURES DESCRIBED IN SECTION 12
REGARDING DISCLOSURES REQUIRED BY APPLICABLE LAW, RULE OR REGULATION ARE
FOLLOWED) OR AS AUTHORIZED PURSUANT TO SECTION 12, NONE OF (1) THE DEERFIELD
PEGASUS FUNDS, THEIR RESPECTIVE GENERAL PARTNERS, DFR, DCM OR ANY DFR AFFILIATE,
OR (2) ANY MEMBER, PARTNER, MANAGER, DIRECTOR, OFFICER, EMPLOYEE, AGENT OR
SERVICE PROVIDER OF A PERSON LISTED IN CLAUSE (1), MAY DISCLOSE, USE OR
OTHERWISE REFER TO IN ANY WRITTEN MATERIAL THE NAME "PEGASUS" OR ANY DERIVATIVE
THEREOF OR THE NAMES OF ANY AFFILIATE, MEMBER, PARTNER, DIRECTOR, OFFICER OR
EMPLOYEE OF INVESTOR OR ANY INVESTMENT FUND OR OTHER ENTITY ASSOCIATED WITH
INVESTOR.
(B)
EXCEPT WITH THE PRIOR WRITTEN CONSENT OF DFR OR AS REQUIRED BY
APPLICABLE LAW, RULE OR REGULATION (INCLUDING FOR THE PURPOSE OF MAKING ANY
FILING OR OTHER