ALL REASONABLE AND
DOCUMENTED COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, THE FEES AND
EXPENSES OF COUNSEL, ACCOUNTANTS AND FINANCIAL ADVISORS) INCURRED IN CONNECTION
WITH THE CONSUMMATION OF THE TRANSACTIONS SHALL BE PAID BY THE PARTY INCURRING
SUCH COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, THE FEES AND EXPENSES OF
THEIR RESPECTIVE COUNSEL AND FINANCIAL ADVISERS.
23.
CONFLICTS.
TO THE EXTENT THERE IS ANY
CONFLICT BETWEEN THIS AGREEMENT AND THE LIMITED PARTNERSHIP AGREEMENT OF ANY
DEERFIELD PEGASUS FUND (INCLUDING, WITHOUT LIMITATION, ANY SIDE LETTER RELATING
THERETO), ANY DEERFIELD PEGASUS FUND GP AGREEMENT OR ANY INVESTMENT ADVISORY
AGREEMENT
BETWEEN ANY DEERFIELD PEGASUS FUND AND DCM OR ANY DEERFIELD PEGASUS FUND
INVESTMENT ADVISOR, THE PROVISIONS OF THIS AGREEMENT SHALL APPLY WITH RESPECT TO
THE PARTIES HERETO.
24.
RELATED PARTY TRANSACTIONS.(1)
IF INVESTOR
OR ANY AFFILIATE THEREOF OR ANY OF SUCH PERSON'S PARTNERS, MEMBERS,
SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS, AGENTS OR OPERATING ADVISORS
(COLLECTIVELY, THE "PEGASUS ENTITIES"), ACQUIRES KNOWLEDGE OF A POTENTIAL
TRANSACTION OR MATTER WHICH MAY BE AN INVESTMENT OR BUSINESS OPPORTUNITY OR
PROSPECTIVE ECONOMIC OR COMPETITIVE ADVANTAGE IN WHICH DFR, DCM, ANY DEERFIELD
PEGASUS FUND GP, ANY DEERFIELD PEGASUS FUND OR ANY AFFILIATE THEREOF OR ANY OF
SUCH ENTITY'S PARTNERS, MEMBERS, SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS,
AGENTS OR ADVISORS (COLLECTIVELY, THE "DFR ENTITIES") COULD HAVE AN INTEREST OR
EXPECTANCY (A "COMPETITIVE OPPORTUNITY") OR OTHERWISE IS THEN EXPLOITING ANY
COMPETITIVE OPPORTUNITY, NONE OF THE DFR ENTITIES WILL HAVE ANY INTEREST IN, AND
NO EXPECTATION THAT, SUCH COMPETITIVE OPPORTUNITY BE OFFERED TO ANY DFR ENTITY.
TO THE FULLEST EXTENT PROVIDED BY LAW, ANY SUCH INTEREST OR EXPECTATION IS
HEREBY RENOUNCED SO THAT NONE OF THE PEGASUS ENTITIES SHALL HAVE ANY DUTY TO
COMMUNICATE OR PRESENT SUCH COMPETITIVE OPPORTUNITY TO ANY DFR ENTITY AND EACH
PEGASUS ENTITY SHALL HAVE THE RIGHT TO EITHER HOLD ANY SUCH COMPETITIVE
OPPORTUNITY FOR SUCH PEGASUS ENTITY'S (AND ITS AGENTS', PARTNERS' OR
AFFILIATES') OWN ACCOUNT AND BENEFIT OR TO RECOMMEND, ASSIGN OR OTHERWISE
TRANSFER SUCH COMPETITIVE OPPORTUNITY TO PERSONS OTHER THAN TO A DFR ENTITY.
25.
DETERMINATIONS OF THE INVESTOR.
EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THE TRANSACTION DOCUMENTS, NOTWITHSTANDING ANY
APPLICABLE PROVISION OF LAW OR EQUITY, TO THE FULLEST EXTENT PERMITTED BY LAW,
WHENEVER INVESTOR OR ANY OF ITS AFFILIATES IS PERMITTED TO MAKE A DECISION OR
CONSENT TO ANY ACTION PURSUANT TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT, ANY OF THE INVESTOR AND ITS AFFILIATES SHALL BE PERMITTED TO MAKE SUCH
DECISION OR PROVIDE OR WITHHOLD SUCH CONSENT IN ITS "SOLE DISCRETION" AND SHALL
BE ENTITLED TO CONSIDER ONLY SUCH INTERESTS AND FACTORS AS IT DESIRES, INCLUDING
ITS OWN INTERESTS, AND SHALL HAVE NO DUTY OR OBLIGATION TO GIVE ANY
CONSIDERATION TO ANY INTEREST OF OR FACTORS AFFECTING ANY OTHER PERSON.
26.
Representations and Warranties.
Each of the
parties makes representations and warranties as set forth in Exhibit A attached
hereto, as applicable.
(1)
TO THE EXTENT THERE IS 3RD PARTY CAPITAL;
TO INCLUDE SIMILAR LANGUAGE IN THE PPM; INCLUDING A DISCLAIMER RELATING TO
INVESTOR'S LIABILITY UNDER THE