Stock Purchase Agreement by and among PhotoMedex, Inc., (Seller), LCA-Vision Inc. (Company) and Vision Acquisition, LLC (Buyer) dated as of January 31, 2015 TABLE OF CONTENTS

This Table of Contents is for the convenience of reference only and is not intended to define, limit or describe the scope or intent of any provision of this Stock Purchase Agreement.

This Stock Purchase Agreement (the "Agreement") is made and entered into as of January 31, 2015 by and among Vision Acquisition, LLC, a Delaware limited liability company ("Buyer"), PhotoMedex, Inc., a Nevada corporation ("Seller") and LCA-Vision Inc., a Delaware corporation that is a wholly owned subsidiary of Seller (the "Company" and, together with Buyer and Seller, each individually a "Party" and collectively the "Parties").

WHEREAS, the authorized capital stock of the Company consists solely and exclusively of 5,000 shares of common stock (the "Common Stock"), of which 100 shares are issued and outstanding (the "Shares").

WHEREAS, Seller owns, beneficially and of record, all of the Shares.

WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, the Shares in accordance with, and subject to, the terms of this Agreement.

WHEREAS, immediately after the consummation of the transactions contemplated hereby, Buyer shall own all of the Shares.

WHEREAS, each of Seller, by action of its board of directors (the "Seller Board"), and the Company, by unanimous action of its board of directors, has approved the terms of this Agreement.

NOW, THEREFORE, in reliance on the representations, warranties and agreements made herein and in consideration of the premises and covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.1:

"Administrative Agent" --JPMorgan Chase Bank, NA.

"Accountant"--as defined in Section 2.5(b)(v).

"Accounts Receivable" --as defined in Section 3.7(a).

"Acquired Companies"--the Company, LCA-Vision (Canada) Inc., an Ontario corporation, and Lasik Insurance Company, collectively, and each, an "Acquired Company."

"Affiliate"--of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person;

provided, however, that for purposes of Section 3.20, "Affiliate" shall not include any medical practice entity that directly or indirectly, through one or more intermediates, controls, is controlled by, or is under common control with Seller or any Acquired Company. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

"Affiliated Group" --any affiliated group within the meaning of Code §1504(a) or any similar group defined under a similar provision of state or local Legal Requirement.

"Applicable Contracts"--as defined in Section 3.14(a).

 "Breach"-- a "Breach" of a representation, warranty, covenant, obligation, or other provision of this Agreement or any instrument delivered pursuant to this Agreement will be deemed to have occurred if there is or has been any inaccuracy in or breach of, or any failure to perform or comply with, such representation, warranty, covenant, obligation, or other provision.

"Buyer"--as defined in the first paragraph of this Agreement.

"Buyer's Knowledge" or any other reference to "Knowledge" with respect to Buyer--the actual knowledge of the managers and officers of Buyer listed on Schedule 1.1(a) without the requirement of conducting a reasonable inquiry or investigation.

"Closing"--as defined in Section 2.3.

"Closing Date"--the date hereof.

"Closing Date Payment"--the Purchase Price plus or minus, as applicable, an amount equal to the Estimated Working Capital Adjustment, minus the Estimated Funded Indebtedness.  For the purposes of clarity, if the difference between the Estimated Working Capital and the Target Net Working Capital is (x) a negative number, then the Estimated Working Capital Adjustment will be subtracted from the Purchase Price, and (y) a positive number, then the Estimated Working Capital Adjustment will be added to the Purchase Price.

"Closing Documents"--the Mutual Release, the Seller Closing Certificate, the agreements contemplated in Section 2.4(c), the Contingency Escrow Agreement, the Transition Services Agreement, the XTRAC Usage Agreement and the Credit Agreement(s) Release Documentation.

"Closing Financial Statements"--as defined in Section 2.5(b)(ii).

"Closing Funded Indebtedness"--as defined in Section 2.5(b)(ii).

"Closing Working Capital"--as defined in Section 2.5(b)(ii).

"Code"--the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto.

"Company"--as defined in the Recitals of this Agreement.

"Company Clinicians"--all ophthalmologists and optometrists who perform services on behalf of any Acquired Company.

"Company IP"--as defined in Section 3.19(b).

"Company IP Agreements"--all licenses, sublicenses, consent to use agreements, covenants not to sue and permissions and other Contracts, including the right to receive royalties or any other consideration, whether written or oral, relating to Intellectual Property and to which any Acquired Company is a party or under which an Acquired Company is a licensor or licensee.

 "Company-Owned IP"--all Intellectual Property owned or purported to be owned by any Acquired Company.

"Company Proprietary Software"--all Software developed by or on behalf of an Acquired Company that such Acquired Company owns or purports to own, other than any web-based Software for which the source code is customarily accessible to end-users, and all Intellectual Property embodied in or related thereto.

"Consent"--any approval, consent, ratification, waiver, or other authorization (including any Governmental Authorization).

"Consolidated Return Group" --the Affiliated Group, the common parent of which is Seller, that files a consolidated U.S. federal income tax return.

"Contemplated Transactions"--all of the transactions contemplated by this Agreement, including:

 

"Contingency Escrow Amount"--two million dollars ($2,000,000).

"Contingency Escrow Agreement"--that certain agreement by and between Seller, Buyer and Escrow Agent, regarding escrow of the Contingency Escrow Amount and dated as of the date hereof, in the form previously agreed by the Parties.

"Contract"--any agreement, contract, obligation, promise, or undertaking (whether written or oral and whether express or implied) that is legally binding.

"Covered Pre-Closing Tax Period" --any Taxable Period (a) beginning on or after the Look-Back Date and ending at or before the close of the Closing Date and (b) the portion of any Straddle Period beginning on the first day of such Straddle Period and ending at the close of the Closing Date.

"Credit Agreement"--that certain Credit Agreement, dated May 12, 2014, as amended, by and between Seller, JPMorgan Chase Bank, NA as Administrative Agent, First Niagara Bank, N.A. and PNC Bank, National Association as Co-Syndication Agents, and J.P. Morgan Securities LLC, as Lead Arranger and Bookrunner, as amended.

"Credit Agreement(s) Release Documentation" --documentation, in form and substance reasonably satisfactory to Buyer, executed and delivered by the Company, Seller and applicable counterparties necessary to fully and irrevocably release the Shares, the Company and its assets and the Acquired Companies and their respective assets from any and all Encumbrances or other obligations owing to JPMorgan Chase Bank, NA, First Niagara Bank, N.A., PNC Bank, National Association, and Bank Leumi le-Israel B.M., under the Credit Agreement and all ancillary documentation executed pursuant thereto to which the Company is a party, including, termination of all Encumbrances on the 7840 Montgomery Road, Cincinnati, Ohio Facility.

"Damages"--as defined in Section 7.1.

"Disclosure Schedule"--the Disclosure Schedule delivered by Seller to Buyer concurrently with the execution and delivery of this Agreement.

"Encumbrance"--any charge, claim, community property interest, equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

"Environmental Laws"--any applicable Legal Requirement, and any Order or binding agreement with any Governmental Body: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Substances. The term "Environmental Law" includes, without limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource

Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.

"ERISA"--the Employee Retirement Income Security Act of 1974 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.

"Escrow Agent" --Fifth Third Bank.

"Estimated Funded Indebtedness"--as defined in Section 2.5(a)(i).

"Estimated Working Capital"--as defined in Section 2.5(a)(i).

"Estimated Working Capital Adjustment"--as defined in Section 2.5(a)(ii).

"Final Purchase Price"--the Purchase Price plus or minus, as applicable, an amount equal to the Post-Closing Working Capital Adjustment, minus the Closing Funded Indebtedness. For the purposes of clarity, if the difference between the Closing Working Capital and the Target Net Working Capital is (x) a negative number, then the Post-Closing Working Capital Adjustment will be subtracted from the Purchase Price, and (y) a positive number, then the Post-Closing Working Capital Adjustment will be added to the Purchase Price.

"Funded Indebtedness"--as of any particular time, (i) the amount of all indebtedness for borrowed money of any Acquired Company (excluding any letters of credit and similar instruments, but including any unpaid principal, premium, accrued and unpaid interest, related expenses, prepayment penalties, assignment, transfer, commitment and other fees, reimbursements, indemnities and all other amounts payable in connection therewith), (ii) liabilities of any Acquired Company evidenced by bonds, debentures, notes, or other similar instruments or debt securities, (iii) liabilities of Acquired Companies to pay the deferred purchase price of property or services other than trade payables incurred in the Ordinary Course of Business, (iv) all liabilities of Acquired Companies arising out of any interest rate and currency swap arrangements and any other arrangements designed to provide protection against fluctuations in interest or currency rates, (v) any "success fees" or bonuses, or severance payments accrued and/or payable to employees or Company Clinicians of any Acquired Company to the extent arising from or otherwise triggered by the closing of the Contemplated Transactions (including those severance payments and other specified liabilities set forth on Schedule 1.1(b), but excluding (A) any bonuses payable to any employee or Company Clinician based on the performance of such employee or Company Clinician or the performance of any Acquired Company (except with respect to the individuals listed on Schedule 1.1(b) as contemplated in item 5 thereof), and (B) the retention bonus set forth on Schedule 1.1(c), and (vi) the amount of all capitalized lease obligations (without inclusion of any breakage or other

similar costs unless actually incurred as a result of a change of control provision at Closing) of any Acquired Company; provided, however, that Funded Indebtedness shall not include (x) any liabilities or obligations of the type referred to in clauses (i) through (vi) above if such liability or obligation of an Acquired Company is owed or payable to another Acquired Company, or (y) any liability or obligation set forth on Section 1.1(a) of the Disclosure Schedule.  For the avoidance of doubt, Funded Indebtedness shall not include any premium payment liability or any non-interest bearing liability.

"GAAP"--generally accepted United States accounting principles, applied on a basis consistent with the basis on which the Interim Balance Sheets and the other financial statements referred to in Section 3.4 were prepared.

"Governmental Authorization"--any approval, consent, license, permit, waiver, or other authorization issued, granted, or required to be obtained by or under the authority of any Governmental Body or pursuant to any Legal Requirement.

"Governmental Body"--any:

"Hazardous Substance"--(a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or man-made, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws, and (b) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls.

 "Indemnified Persons"--Buyer Indemnified Persons and Seller Indemnified Persons, as applicable, and each, an "Indemnified Person."

"Intellectual Property"--all intellectual property and other similar proprietary rights in any jurisdiction worldwide, whether registered or unregistered, including such rights in and to: (a) patents (including all reissues, divisions, provisionals, continuations and continuations-in-part, re-examinations, renewals and extensions thereof), patent applications, patent disclosures or other patent rights ("Patents"); (b) copyrights, design, design registration, and all registrations, applications for registration, and renewals for any of the foregoing, and any "moral" rights ("Copyrights"); (c) trademarks, service marks, trade names, business names, logos, trade dress, certification marks and other indicia of commercial source or origin together with all goodwill associated with the foregoing, and all registrations, applications and renewals for any of the foregoing ("Trademarks"); (d) trade secrets and business, technical and know-how information,

databases, data collections and other confidential and proprietary information and all rights therein ("Trade Secrets"); (e) software, including data files, source code, object code, application programming interfaces, architecture, files, records, schematics, computerized databases and other software-related specifications and documentation ("Software"); and (f) Internet domain name registrations.

"Interim Balance Sheets"--as defined in Section 3.4.

"Income Tax" means any federal, state, local, or non-U.S. income tax, including any interest, penalty, or addition thereto, whether disputed or not.

"IRS"--the United States Internal Revenue Service or any successor agency, and, to the extent relevant, the United States Department of the Treasury.

"Lasik Insurance Company"--Lasik Insurance Company, Ltd., a Grand Cayman insurance corporation.

"Lease"--all leases, subleases and other agreements under which any Acquired Company leases, uses or occupies, or has the right to use or occupy, any real property.

"Leased Real Estate"--all real property that any Acquired Company leases, subleases or otherwise uses or occupies, or has the right to use or occupy, pursuant to a Lease.

"Legal Requirement"--any federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute or treaty.

"Look-Back Date"--as defined in Section 3.11(a)(i).

"Material Managed Care Customer"--as defined in Section 3.14(a)(xiv).

"Multiemployer Plan" --as defined in Section 3.10(d).

"Mutual Release"—that certain release by and between the Company and Seller, and acknowledged by Buyer, dated as of the date hereof, in the form previously agreed by the Parties.

over

the sum, without duplication, of (A) all current liabilities (other than the current portions of (i) accruals for unpaid stockholder dividends and interest payments, (ii) inter Acquired Company payables, (iii) inter Acquired Company Seller payables, (iv) customer deposits included in deferred revenue, and (v) current or deferred income Tax liabilities of the Consolidated Return Group, or otherwise of the Acquired Companies) of the Acquired Companies, plus (B) any transaction expenses incurred or accrued by the Acquired Companies,

provided, however, in all cases such amounts shall be determined in accordance with GAAP and, to the extent inconsistent with GAAP, in accordance with the Parties' preparation of Schedule 2.5, and shall not include (i) any deferred Tax asset in respect of net operating loss carry-forwards, Tax credits or similar attributes and all other items historically recorded as "Deferred tax assets" on the Company's balance sheet, (ii) any Funded Indebtedness or (iii) the retention bonus set forth on Schedule 1.1(c), all as set forth in more detail on Schedule 2.5. Additionally, for purposes of determining the current liabilities of the Company as of the Closing Date, accounts payable shall include such portion of disbursements made by the Company within the sixty days following the Closing that relate to services or goods provided to the Company on or prior to the Closing Date that were not invoiced to the Company or otherwise accrued on the books of the Company as of the Closing Date.

Net Working Capital shall be calculated in accordance with the Parties' preparation of Schedule 2.5.

"Order"--any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any Governmental Body or by any arbitrator.

"Ordinary Course of Business"--an action taken by a Person will be deemed to have been taken in the "Ordinary Course of Business" only if:

(a) such action is generally consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person; and

(b) such action is not required to be specifically authorized by the board of directors or shareholders of such Person (or by any Person or group of Persons exercising similar authority) and/or is not required to be specifically authorized by the parent company (if any) of such Person.

"Organizational Documents"--(a) the articles or certificate of incorporation and the bylaws of a corporation; (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (d) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (e) any amendment to any of the foregoing.

"Owned Real Estate"--any real estate owned in fee by any Acquired Company, together with all buildings, structures, fixtures and improvements thereon and all of the Acquired Companies' rights thereto, including without limitation, all easements, rights of way and appurtenances relating thereto.

"Payoff Amount" --as defined in Schedule 1.1(d).

"Permitted Encumbrance"--(a) statutory Encumbrance for Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (b) mechanics', carriers', workers', repairers' and similar statutory Encumbrances arising or incurred in the Ordinary Course of Business for amounts which are not delinquent or which are being contested by appropriate proceedings (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (c) zoning, entitlement, building and other land use regulations imposed by Governmental Bodies having jurisdiction over such Person's owned or leased real property, which are not violated by the current use and operation of such real property, (d) covenants, conditions, restrictions, easements and other similar non-monetary matters of record affecting title to such Person's owned or leased real property, which do not materially impair the occupancy or use of such real property for the purposes for which it is currently used in connection with such Person's businesses, (e) any right of way or easement related to public roads and highways, which do not materially impair the occupancy or use of such real property for the purposes for which it is currently used in connection with such Person's businesses, and (f) Encumbrances arising under workers' compensation, unemployment insurance, social security, retirement and similar legislation.

"Person"--any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or Governmental Body.

"Post-Closing Working Capital Adjustment"--as defined in Section 2.5(b)(i).

"Proceeding"--any action, arbitration, audit, hearing, litigation, or suit (whether civil, criminal or administrative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.

"Representative"--with respect to a particular Person, any director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.

"Required Consents" --as defined in Section 5.1(a).

"Securities Act"--the Securities Act of 1933 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.

"Seller"--as defined in the first paragraph of this Agreement.

"Seller Board"--as defined in the Recitals of this Agreement.

"Seller's Knowledge"--the actual knowledge of (i) Dennis McGrath, Michele Pupach, Dolev Rafaeli and Michael Celebrezze, after conducting a reasonable inquiry and investigation (consistent with such Person's title and/or responsibility) concerning the existence of a particular fact or matter, and (ii) Bharat Kakar without the requirement of conducting a reasonable inquiry or investigation.

"Seller Standalone Tax Returns" --all Tax Returns, not filed on a consolidated basis with Seller, of the Acquired Companies for Taxable Periods ending on or before the Closing Date.

"Shares"--as defined in the Recitals of this Agreement.

"Straddle Period"--as defined in Section 6.2.

"Subsidiary"--with respect to any Person (the "Owner"), any corporation or other Person of which securities or other interests having the power to elect a majority of that corporation's or other Person's board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the Owner or one or more of its Subsidiaries; when used without reference to a particular Person, "Subsidiary" means a Subsidiary of the Company.

"Surviving Representations"--as defined in Section 7.3.

"Target Net Working Capital"--$ 0.00 (zero dollars).

"Tax"--any tax (including any income tax, capital gains tax, value-added tax, franchise tax, excise tax, commercial activity tax, sales tax, property tax, gift tax, or estate tax), levy, assessment, tariff, duty (including any customs duty), deficiency, or other fee, and any related charge or amount (including any fine, penalty, interest, or addition to tax), imposed, assessed, or collected by or under the authority of any taxing authority or payable pursuant to any tax-sharing agreement or any other Contract relating to the sharing or payment of any such tax, levy, assessment, tariff, duty, deficiency, or fee.

"Taxable Period"--any period prescribed by any Governmental Body for which a Tax Return is required to be filed or a Tax is required to be paid.

"Tax Return"--any return (including any information return), report, statement, schedule, notice, form, or other document or information filed with or submitted to, or required to be filed with or submitted to, any taxing authority in connection with the determination, assessment, collection, or payment of any Tax or in connection with the administration, implementation, or enforcement of or compliance with any Legal Requirement relating to any Tax.

"Threshold"--as defined in Section 7.4.

"Transfer Taxes"--as defined in Section 6.6.

"Transition Services Agreement"--that certain Transition Services Agreement, by and between Seller and the Company, and acknowledged by Buyer, dated as of the date hereof, in the form previously agreed by the Parties.

"Working Capital Collar"--as defined in Section 2.5(a)(ii)(A).

"XTRAC Usage Agreement"--that certain agreement regarding XTRAC excimer laser services by and between Seller and the Company, and acknowledged by Buyer, dated as of the date hereof, in the form previously agreed by the Parties.

The following provisions shall be applied wherever appropriate herein:  (a) "herein," "hereby," "hereunder," "hereof" and other equivalent words shall refer to this Agreement in its entirety and not solely to the particular portion of this Agreement in which any such word is used; (b) all definitions set forth herein shall be deemed applicable whether the words defined are used herein in the singular or the plural; (c) wherever used herein, any pronoun or pronouns shall be deemed to include both the singular and plural and to cover all genders; (d) all accounting terms not specifically defined herein shall be construed in accordance with GAAP; (e) this Agreement and the Closing Documents shall be deemed to have been drafted by the Parties and neither this Agreement nor any Closing Document shall be construed against any Party as the principal draftsperson hereof or thereof; (f) any references herein to a particular Section, Article, or Schedule means a Section or Article of, or a Schedule to, this Agreement unless another agreement is specified; (g) all references or citations in this Agreement to statutes or regulations or statutory or regulatory provisions shall, when the context requires, be considered citations to such statutes, regulations, or provisions directly or indirectly superseding such statutes, regulations, or provisions; provided, however that with respect to any representations or warranties provided in this Agreement or the Closing Documents, such citations shall only apply to the statute or regulation in effect at Closing; (h) the Schedules attached hereto are incorporated herein by reference and shall be considered part of this Agreement; (i) the headings in this Agreement and the Closing Documents are for convenience of identification only and are not intended to describe, interpret, define or limit the scope, extent, or intent of the respective Closing Documents or any provision hereof or thereof; and (j) "including," "includes," and other equivalent words mean including, without limitation.

Subject to the terms and conditions of this Agreement, at the Closing, Seller will sell and transfer the Shares to Buyer, and Buyer will purchase the Shares from Seller.

The base purchase price for the Shares prior to the adjustments contemplated herein will be Forty Million Dollars ($40,000,000) (the "Purchase Price"). At Closing, Buyer will:

The purchase and sale (the "Closing") provided for in this Agreement will take place at the offices of Buyer's counsel at 600 Vine Center, Suite 2500, Cincinnati, Ohio, simultaneously with the execution and delivery of this Agreement.  For the avoidance of doubt, the Closing may take place via release of previously deposited documents, and by telephone, email and wire transfers.

At the Closing:

Hundred Fifty Thousand ($250,000) (the "Working Capital Collar"), then the Estimated Working Capital Adjustment shall be zero (0); and

outside accountants available to respond to reasonable written or oral inquiries of Seller or their Representatives).

Seller and the Company hereby represent and warrant to Buyer as follows:

the Contemplated Transactions by Seller will, directly or indirectly (with or without notice or lapse of time):

The authorized capital stock of the Company consists of 5,000 shares of Common Stock, of which 100 shares are issued and outstanding and constitute the Shares.  The authorized equity securities of each Subsidiary of the Company, the number of outstanding equity securities and the holder thereof is set forth on Section 3.3 of the Disclosure Schedule.  All of the Shares are duly authorized and validly issued, fully paid and nonassessable and not subject to any pre-emptive rights.  Seller is, immediately prior to the Closing, the record and beneficial owner and holder of the Shares, free and clear of all Encumbrances other than Encumbrances under the Credit Agreement.  With the exception of the Shares, all of the outstanding equity securities and other securities of each Acquired Company are owned of record and beneficially by one or more of the Acquired Companies, free and clear of all Encumbrances other than Encumbrances under the Credit Agreement.  No legend or other reference to any purported Encumbrance appears upon any certificate representing equity securities of any Acquired Company, other than references to Encumbrances only under the Securities Act and other applicable securities laws.  All of the outstanding equity securities of each Acquired Company have been duly authorized and validly issued and are fully paid and non-assessable (with respect to jurisdictions that recognize such concept). Except for this Agreement and the Credit Agreement, there are no Contracts in effect relating to the issuance, sale, or transfer of any equity securities, or other securities, of any Acquired Company.  There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote, or convertible into, or exchangeable for, securities having the right to vote, on any matters on which holders of Common Stock may vote.

None of the outstanding equity securities or other securities of any Acquired Company was issued in violation of the Securities Act or any other Legal Requirement.  No Acquired Company owns, or has any Contract to acquire, any equity securities or other securities of any Person (other than the other Acquired Companies) or any direct or indirect equity or ownership interest in any other business.  Upon delivery to Buyer at the Closing of certificates representing the Shares, duly endorsed by Seller for transfer to Buyer, and upon Seller's receipt of the Purchase Price for each such Share, good and valid title to the Shares will pass to Buyer, free and clear of any Encumbrances, other than references to Encumbrances only under the Securities Act and other applicable securities laws.  Other than this Agreement, the Company's Organizational Documents and the Credit Agreement, the Shares are not subject to any voting trust, proxy or other Contract, including any Contract restricting or otherwise relating to the voting, dividend rights or disposition of the Shares.

Section 3.4 of the Disclosure Schedule sets forth an unaudited balance sheet for Lasik Insurance Company and an unaudited consolidated balance sheet of the Acquired Companies as at December 31, 2014 (the "Interim Balance Sheets") and the related unaudited consolidated statement of income, changes in stockholders' equity, and cash flow for the twelve (12) months then ended, excluding the notes thereto.  Such financial statements fairly present in all material respects the financial condition and the results of operations, changes in stockholders' equity, and cash flow of the Acquired Companies as at the respective date of and for the period referred to in such financial statements, all in accordance with GAAP, subject to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be materially adverse) and the absence of notes; the financial statements referred to in this Section 3.4 reflect the consistent application of such accounting principles throughout the periods involved.  There has been no material change in the Company's accounting methods or principles since December 31, 2013.  The books of account and other financial records of the Acquired Companies are true, complete and accurate in all material respects.

To Seller's Knowledge, except as set forth in Section 3.5 of the Disclosure Schedule, the Acquired Companies have no liabilities or obligations of any nature (whether known or unknown and whether absolute, accrued, contingent, or otherwise) except for (i) liabilities or obligations reflected or reserved against in the Interim Balance Sheets, (ii) current liabilities incurred in the Ordinary Course of Business since the date of the Interim Balance Sheets, (iii) liabilities that are not, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (iv) liabilities or obligations explicitly disclosed in the Disclosure Schedules as such; (v) liabilities or obligations under Applicable Contracts or Company Employee Plans; and (vi) obligations to comply with applicable Legal Requirements.

To Seller's Knowledge, the buildings, plants, structures, and equipment of the Acquired Companies are (i) structurally sound, (ii) in good operating condition and repair, ordinary wear

and tear expected, and (iii) adequate for the uses to which they are being put, in each case, in all material respects. To Seller's Knowledge, the building, plants, structures, and equipment of the Acquired Companies are sufficient for the continued conduct of the Acquired Companies' businesses immediately after the Closing in substantially the same manner as conducted prior to the Closing, except as would not have a material adverse effect on the business of any Acquired Company.

of Code §162(m) (or any corresponding provision of state, local, or non-U.S. Tax law). No Acquired Company is a party to or bound by any Tax allocation or sharing agreement, other than agreements with non-Affiliate counterparties that are entered into in the Ordinary Course of Business and that are not principally related to Taxes.

Period, except to the extent that the breach of any of the representations in Section 3.8(e) directly results in the imposition of a Tax (upon the Acquired Companies) for a Post-Closing Taxable Period, and (ii) are the sole representations and warranties made by Seller in all of Section 3 with respect to Taxes that shall survive the Closing, provided, however, that the preceding limitation shall not in any way diminish or limit the scope of representations made in Section 3.4. 

each corresponding trust exempt under Section 501 of the Code is so qualified and has received a timely determination or opinion letter from the IRS upon which it may rely regarding its qualified status under the Code for all statutory and regulatory changes with respect to all plan qualification requirements for which the IRS will issue such a letter and, to the Seller's Knowledge, no circumstance exists, whether by action or failure to act, that caused or could cause the loss of such qualification or the imposition of any penalty or Tax; (iii) the Acquired Companies and each of their ERISA Affiliates have timely made all material contributions and other payments required by and due under the terms of each Company Employee Plan, applicable Legal Requirements, GAAP, Section 412 of the Code, other applicable Code section or any collective bargaining agreement with respect to all prior periods (including, without limitation, all contributions, insurance premiums or intercompany charges), and all benefits accrued under any unfunded Company Employee Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with the terms of such Company Employee Plan, applicable Legal Requirements, and GAAP; (iv) there are no audits, inquiries or Proceedings pending, instituted or threatened or, to Seller's Knowledge, anticipated by the IRS or the U.S. Department of Labor, or any Governmental Body with respect to any Company Employee Plan, and no such completed audit, inquiry or Proceeding, if any, has resulted in the imposition of any Tax or penalty; (v) with respect to each Company Employee Plan, there are no claims or other Proceedings pending, threatened, asserted, instituted or, to Seller's Knowledge, anticipated (other than routine claims for benefits) against any Company Employee Plan, any trustee or fiduciaries thereof, any ERISA Affiliate, any employee, officer, director, stockholder or other service provider of any Acquired Company (whether current, former or retired), or any of the assets of any Company Employee Plan; (vi) with respect to each Company Employee Plan that is funded mostly or partially through an insurance policy, none of the Acquired Companies or any ERISA Affiliate has any material liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability under the Company Employee Plan arising wholly or partially out of events occurring on or before the date of this Agreement or is reasonably expected to have such material liability with respect to periods through the Closing; (vii) no non-exempt "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, has occurred or is reasonably expected to occur with respect to any Company Employee Plan, and no circumstance has occurred that would subject any Acquired Company to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA; and (viii) no Company Employee Plan is funded by, associated with or related to a "voluntary employees' beneficiary association" within the meaning of Section 501(c)(9) of the Code.

Except as set forth in Section 3.13 of the Disclosure Schedule, since the date of its Interim Balance Sheet, each Acquired Company has conducted its business in the Ordinary Course of Business in all material respects and there has not been any:

of the Acquired Companies and the business and employees of the Acquired Companies (except for any such policies maintained to provide benefits to employees under a Company Employee Plan). All such insurance policies are in full force and effect, and no Acquired Company is in default in any material respect with respect to its obligations under any such insurance policies. All premiums and other payments due from the Acquired Companies prior to the date of this Agreement under or on account of any such insurance policies have been paid as of the date of this Agreement.  Except as set forth on Section 3.15 of the Disclosure Schedule, there is no material insurance claim by any Acquired Company pending under any of the policies.

Except for such matters as would not, individually or in the aggregate, be material to the Acquired Companies, taken as a whole:

Since the Look-Back Date, no Acquired Company has been or is a party to any collective bargaining or other labor Contract.  Since the Look-Back Date, there has not been, there is not presently pending or existing, and, to Seller's Knowledge, there is not threatened, (a) any strike, slowdown, lockout, picketing, work stoppage, or employee grievance process, (b) any Proceeding against or affecting any Acquired Company relating to the alleged violation of any Legal Requirement pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable Governmental Body, organizational activity, or other labor or employment dispute against or affecting any of the Acquired Companies or their premises, or (c) any application for certification of a collective bargaining agent.  To Seller's Knowledge, no event has occurred or circumstance exists that could provide the basis for any work stoppage or other labor dispute.  Since the Look-Back Date, each Acquired Company has complied in all respects with all Legal Requirements relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours,

benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health, and plant closing.

refrain from using any Intellectual Property of any other Person, and no Acquired Company has received in writing any claim or notice of any such infringement claims, except for such infringement claims or notices thereof that would not reasonably be expected, individually or in the aggregate, to be material to the Acquired Companies, taken as a whole.

Neither Seller nor any Affiliate of Seller (other than the Acquired Companies) has any interest in any property (whether real, personal, or mixed and whether tangible or intangible) that is material to the Acquired Companies' businesses.  Neither Seller nor any Affiliate of Seller owns (of record or as a beneficial owner) an equity interest in a Person that (i) has a material financial interest in any transaction with any Acquired Company other than business dealings or transactions conducted in the Ordinary Course of Business with the Acquired Companies at substantially prevailing market prices and on substantially prevailing market terms, or (ii) engages in competition with any Acquired Company with respect to any line of the products or services of such Acquired Company in any market presently served by such Acquired Company.  Except as set forth in Section 3.20 of the Disclosure Schedule, neither Seller nor any Affiliate of Seller (other than the other Acquired Companies) is a party to any Contract with, or has any claim or right against, any Acquired Company.

Except as set forth in Section 3.21 of the Disclosure Schedule, neither Seller nor the Acquired Companies, nor any of their agents or officers, have incurred any obligation or liability, contingent or otherwise, for brokerage or finders' fees or agents' commissions or other similar payment in connection with this Agreement.

Since the Look-Back Date, there has not been any material adverse change in the business relationship of the Company with any Material Managed Care Customer.  No Material Managed Care Customer has given an Acquired Company written notice that such Material Managed Care Customer, and, to Michael Celebrezze's actual knowledge (without the requirement of conducting a reasonable inquiry or investigation), no Material Managed Care Customer, intends, as of the date hereof, to cease or materially decrease its current arrangements with the Company.

Except as specified in Section 3.23 of the Disclosure Schedule, to Seller's Knowledge, since the Look-Back Date, all ophthalmologists who perform services on behalf of any Acquired Company have been board certified or licensed as specialists in their area of practice corresponding to such services provided and have valid and effective medical malpractice insurance through third party carriers or the Lasik Insurance Company.  To Seller's Knowledge, no Company Clinician who has performed services for an Acquired Company has, since the Look-Back Date, had his or her medical license suspended or been subjected to disciplinary action by the applicable licensing or certification agency.  Except as set forth on Section 3.23 of the Disclosure Schedule, no ophthalmologist who performs services on behalf of any Acquired Company has given such Acquired Company written notice that such ophthalmologist intends to cease or materially decrease its current arrangements with such Acquired Company and, to Michael Celebrezze's actual knowledge (without the requirement of conducting a reasonable inquiry or investigation) no such ophthalmologist intends to cease or materially decrease its current arrangements with such Acquired Company.

 

Buyer represents and warrants to Seller as follows:

Buyer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware with all necessary limited liability company

power and authority to conduct its business as it is now being conducted and to own or use the properties and assets that it purports to own or use, and to perform its material obligations under material Contracts to which it is a party.  Buyer is duly qualified to do business as a foreign limited liability company and is in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of each state or other jurisdiction in which either ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification, except where the failure to be so qualified or to be in good standing would not be materially adverse to Buyer.

Buyer is acquiring the Shares for its own account and not with a view to their distribution within the meaning of Section 2(11) of the Securities Act.

There is no pending Proceeding that has been commenced against Buyer and that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions.  To Buyer's Knowledge, no such Proceeding has been threatened.

Buyer and its agents or officers have incurred no obligation or liability, contingent or otherwise, for brokerage or finders' fees or agents' commissions or other similar payment in connection with this Agreement.

Neither Buyer nor any of its direct or indirect owners has, or has had a relationship with Seller described in Section 267(b) of the Code.

 

under this provision to (A) agree to any unreasonable change in the terms and conditions of any such Required Consent Contract, or (B) make any funds available to a Required Consent Contract counterparty in exchange for such Required Consent in excess of that portion of the Contingency Escrow Amount allocable to such Required Consent as set forth on Section 5.1 of the Disclosure Schedule.   Buyer shall, and shall cause the Company to, negotiate in good faith with the counterparty to each Required Consent Contract in effort to cause the release from escrow, as soon as possible, of the full portion of the Contingency Escrow Amount allocable to such Required Consent Contract.  Buyer shall, and shall cause the Company to, keep Seller informed of (x) any and all correspondence and communications with a counterparty to a Required Consent Contract, and (y) any and all developments in the process of obtaining the Required Consents.

modifications made to such Required Consent Contract as a condition to obtaining the applicable Required Consent;

Seller shall indemnify the Acquired Companies, Buyer, and each Buyer Affiliate and hold them harmless from and against (i) all Taxes of the Acquired Companies for the Covered Pre-Closing Tax Period, (ii) any and all Income Taxes of the Consolidated Return Group for the Covered Pre-Closing Tax Period, including those imposed on the Company pursuant to Treasury Regulation §1.1502-6 or any analogous or similar state, local, or non-U.S. law or regulation, and (iii) any and all Income Taxes of any Person (other than the Acquired Companies) imposed on the Acquired Companies as a transferee or successor, or by contract, which Taxes relate to an event or transaction occurring during the Covered Pre-Closing Tax Period; provided, however, that in the case of clauses (i), (ii) and (iii) above, Seller shall be liable only to the extent that such Taxes are in excess of the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) on the face of the Closing Balance Sheet and taken into account in determining the Post-Closing Working Capital Adjustment. Seller shall reimburse Buyer for Taxes described in clauses (i), (ii) and (iii) above that are due under Tax Returns for Straddle Periods that are required to be prepared by Buyer, within fifteen (15) business days after the filing of the applicable Tax Return.  Seller's obligation to indemnify and hold harmless the Acquired Companies, Buyer and each Buyer Affiliate under this Section 6.1 shall survive until the eighteen (18) month anniversary of the Closing Date; provided, however, that if notice of a claim shall have been timely given to Seller under Section 7.8 or Section 7.9 on or prior to such termination date, Seller's obligation to indemnify and hold harmless the Acquired Companies, Buyer and each Buyer Affiliate in respect of such claim shall survive beyond such eighteen (18) month period until such claim for indemnification has been satisfied or otherwise resolved.

In the case of any Taxable Period that includes (but does not end on) the Closing Date (a "Straddle Period"), the amount of any Taxes for the Covered Pre-Closing Tax Period shall be determined as follows:

Any Tax refunds that are received by Buyer or the Acquired Companies, and any amounts credited against Tax to which Buyer or Acquired Companies become entitled, that relate to the Covered Pre-Closing Tax Period shall be for the account of Seller, (excluding any refund or credit attributable to any loss in a tax year (or portion of a Straddle Period) beginning after the Closing Date applied (e.g., as a carryback) to income in the Covered Pre-Closing Tax Period), and Buyer shall pay over or cause to be paid over to Seller any such refund or the amount of any such credit (net of any Taxes of Buyer, or any Acquired Companies attributable to such refund or credit) within 15 days after receipt or entitlement thereto; provided, however,

Buyer shall not be required to pay over to Seller any such refund or the amount of any such credit up to the amount of any Tax asset (excluding any deferred Tax asset established to reflect timing differences between book and Tax income) set forth on the face of the Closing Balance Sheet (rather than in any notes thereto) and taken into account in determining the Post-Closing Working Capital Adjustment.

All stamp, transfer, documentary, sales, use, registration and other such Taxes, levies and fees (including any penalties and interest) incurred in connection with this Agreement and the transactions contemplated hereby (collectively, "Transfer Taxes"), and the reasonable costs of preparing and filing the Tax Returns associated therewith, will be borne equally by Seller and Buyer.  All Tax Returns with respect to Transfer Taxes shall be prepared and filed by the Person that customarily is responsible for the filing of such Tax Returns.

Buyer shall not, and shall not cause or permit any Acquired Company to, (i) amend any Tax Returns filed with respect to any Taxable Period ending on or before the Closing Date or with respect to any Straddle Period, or (ii) make any Tax election that has retroactive effect to any such Taxable Period or Straddle Period, in each such case without the prior written consent of Seller (not to be unreasonably withheld).

Notwithstanding anything to the contrary herein, (i) neither Buyer (nor any of its Affiliates) nor Seller will file or allow to be filed an election under Section 338 or Section 336(e)

of the Code (or any similar elections under applicable Legal Requirements) with respect to any of the Acquired Companies.

Seller shall not elect to retain any net operating loss carryovers or capital loss carryovers of the Acquired Companies other than those net operating loss carryovers or capital loss carryovers of the Acquired Companies that are utilized by the Consolidated Return Group to offset Consolidated Return Group income or gain attributable to the Covered Pre-Closing Tax Period.  For the avoidance of doubt, and in furtherance of the preceding sentence, Seller will not make an election under Treasury Regulations Section § 1.1502-36(d)(6) to retain the net operating losses of the Company or any election pursuant to Reg. § 1.1502-32(b)(4)(i) to treat all or any portion of the Company's net operating losses as expiring prior to the Company becoming a member of the Consolidated Return Group.

Subject to the terms and conditions of Section 7, from and after the Closing, Seller will indemnify and hold harmless Buyer, the Acquired Companies, and their respective Representatives and Affiliates (collectively, the "Buyer Indemnified Persons") for, and will pay to the Buyer Indemnified Persons the amount of, any loss, liability, claim, damage or expense (including costs of reasonable attorneys' fees), whether or not involving a third party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with:

Subject to the terms and conditions of Section 7, from and after the Closing, Buyer will indemnify and hold harmless Seller and its Representatives and Affiliates (collectively, the

"Seller Indemnified Persons") for, and will pay to the Seller Indemnified Persons the amount of any Damages arising, directly or indirectly, from or in connection with:

None of the representations and warranties contained in this Agreement shall survive the Closing, except that (i) the representations and warranties of Seller set forth in Section 3.1 (Organization and Good Standing); Section 3.2(a) (Authority; No Conflict; Enforceability); and Section 3.3 (Capitalization) and the representations and warranties of Buyer set forth in Section 4.1 (Organization and Good Standing) and Section 4.2(a) (Authority; No Conflict) shall survive the Closing indefinitely, and (ii) the representations and warranties of Seller set forth in Section 3.4 (Financial Statements), Section 3.5 (No Undisclosed Liabilities), Section 3.8 (Taxes), Section 3.9(a) (Title to Properties), Section 3.14(c)&(d) (Contracts; No Defaults) (solely with respect to those Applicable Contracts marked with a † on Section 3.14(a) of the Disclosure Schedule), Section 3.15(b) (Insurance), Section 3.22 (Managed Care Relationships), and Section 3.23 (Medical Service Providers) shall survive the Closing until the eighteen (18) month anniversary of the Closing Date (the representations and warranties described in clauses (i) and (ii) are referred to as the "Surviving Representations").  Each of the covenants set forth in this Agreement shall survive the Closing for the period contemplated by its terms.

Seller shall have no liability (for indemnification or otherwise) in the case of a claim by a Buyer Indemnified Person under Section 7.1(a) unless and until the aggregate amount of all Damages for which Seller would, but for this clause, be liable under Section 7.1(a) exceeds, on a cumulative basis, an amount equal to $410,000 (the "Threshold"), in which case Seller shall be required to pay or be liable for all such Damages, including the Threshold. The aggregate amount of all Damages for which Seller shall be liable pursuant to Section 7.1(a) shall not exceed ten percent (10%) of the Final Purchase Price.  Under no circumstances shall the aggregate amount of Damages for which Seller shall be liable to the Buyer Indemnified Persons pursuant to this Agreement exceed the Final Purchase Price.

Buyer shall have no liability (for indemnification or otherwise) in the case of a claim by a Seller Indemnified Person under Section 7.2(a) unless and until the aggregate amount of all

Damages for which Buyer would, but for this clause, be liable under Section 7.2(a) exceeds, on a cumulative basis, an amount equal to the Threshold, in which case Buyer shall be required to pay or be liable for all such Damages, including the Threshold.  The aggregate amount of all Damages for which Buyer shall be liable pursuant to Section 7.2(a) shall not exceed ten percent (10%) of the Final Purchase Price.  Under no circumstances shall the aggregate amount of Damages for which Buyer and the Company shall be liable to the Seller Indemnified Persons pursuant to this Agreement exceed the Final Purchase Price.

The Parties acknowledge and agree that, from and after the Closing, their sole and exclusive remedy with respect to any and all claims (other than claims arising from intentional fraud on the part of a Party hereto in connection with the transactions contemplated by this Agreement) for any Breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement or the Contemplated Transactions, shall be pursuant to the indemnification provisions set forth in this Section 7.

set forth in Section 7.8(b) above, or the good faith determination of such Indemnified Person that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement), the indemnifying party will not be bound by any determination of such Proceeding or any compromise or settlement thereof effected without the prior consent of the indemnifying party (which may not be unreasonably withheld).

A claim for indemnification for any matter not involving a third party claim may be asserted by notice to the Party from whom indemnification is sought.

Any indemnity payment under this Agreement shall be treated as an adjustment to the Final Purchase Price for Tax purposes, unless otherwise required by applicable Legal Requirements.

Except as otherwise expressly provided in this Agreement, each Party to this Agreement will bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the Contemplated Transactions, including all fees and expenses of Representatives.  Seller will cause the Acquired Companies not to incur any out-of-pocket expenses in connection with this Agreement that are not included in the calculation of Net Working Capital.

Upon execution of this Agreement, Seller shall issue a press release in the form agreed by the Parties.  Seller and Buyer will consult with each other concerning the means by which the Acquired Companies' employees, Company Clinicians, customers, and suppliers and others having dealings with the Acquired Companies will be informed of the Contemplated Transactions.

Clinician or independent contractor of an Acquired Company, as of the Closing Date, or in any way interfere with the relationship between such Acquired Company and any such employee or independent contractor; provided, that the restrictions contained in this Section 8.3(a) shall not apply to general solicitations or advertisements not directed at any employee, Company Clinician or independent contractor of an Acquired Company.

All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand, (b) sent by telecopier or e-mail, or (c) sent by mail, certified or registered mail with postage prepaid or by a nationally recognized next-day or overnight delivery service, in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses, telecopier numbers or emails as a Party may designate by notice to the other Parties).  All such notices, consents, waivers and other communications shall be deemed to have been given when received (x) if delivered by hand, on the day of such delivery, if prior to 5:00 p.m., (y) if by mail, certified or registered mail, next-day or overnight delivery, on the day delivered, and (z) if by telecopier or e-mail, on the business day on which received.

 

Any action or Proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any Party in the courts of the State of Delaware located in Wilmington, Delaware, or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each Party consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or Proceeding and waives any objection to venue laid therein.  Process in any action or Proceeding referred to in the preceding sentence may be served on any Party anywhere in the world.

The Parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other Parties may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.

The rights and remedies of the Parties to this Agreement are cumulative and not alternative.  Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a

waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.  To the maximum extent permitted by applicable Legal Requirements, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Parties; (b) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one Party will be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

This Agreement supersedes all prior agreements between the Parties with respect to its subject matter (including the Letter of Intent between Buyer and Seller dated December 8, 2014) and constitutes (along with the Closing Documents) a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter.  The Parties acknowledge that, except for the representations and warranties provided herein, no Party has made any other representation, warranty, statement, promise or other inducement to any of the Parties and, accordingly, the Parties are not relying on any representations, warranties, statements, promises or other inducements, whether oral or written, made by another Party, or any Representatives thereof, except those expressly stated in this Agreement. This Agreement may not be amended except by a written agreement executed by the Party to be charged with the amendment.

No Party may assign any of its rights under this Agreement without the prior written consent of the other Parties except that Buyer may assign any of its rights under this Agreement to any Subsidiary of Buyer or Affiliate thereof (but no such assignment shall relieve Buyer of any of its obligations hereunder).  Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties.  Nothing expressed or referred to in this Agreement will be construed to give any Person other than the Parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement.  This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the Parties to this Agreement and their successors and assigns.

If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect.  Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.

This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any conflicts of laws principles that would otherwise cause the application of the laws of another jurisdiction.

This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile, electronic mail or other electronic transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.

IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first written above.

For the avoidance of doubt, if all or any portion of the amounts listed in 1-3 above is not paid to the applicable executive or is paid to the applicable executive but returned to the Company for any reason, such amount shall be excluded from the calculation of Closing Funded Indebtedness and, to the extent repaid to the Company after the calculation of Closing Funded Indebtedness, Buyer will cause the Company to promptly pay over such amount to Seller.

Notwithstanding anything to the contrary contained herein, items 1-5 above will be deemed Funded Indebtedness for purposes of this Agreement and will be excluded from the definition of Net Working Capital and the calculations of Estimated Working Capital and Closing Working Capital.

Payoff Amount: $33,294,297