ICC 21st Century Oncology Holdings, Inc.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT PURSUANT TO

SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): July 8, 2015 (July 2, 2015)

21ST CENTURY ONCOLOGY

HOLDINGS, INC.

(Exact Name of Registrant as Specified in Charter)

Delaware

(State or Other Jurisdiction of Incorporation)

(239) 931-7275
(Registrant’s Telephone Number, including Area Code)

N/A

(Former Name or Former Address, if Changed Since Last Report.)

Item 1.01      Entry into a Material Definitive Agreement.

Securities Contribution and Purchase Agreement

On July 2, 2015, 21st Century Oncology Holdings, Inc. (the “Company”) completed its purchase of the remaining 35% of the equity interests in SFRO Holdings, LLC, a Florida limited liability company (“SFRO”), that it did not already own (the “SFRO Acquisition”). The purchase was completed pursuant to a Securities Contribution and Purchase Agreement (the “Purchase Agreement”), by and among 21C East Florida, LLC (“21C East Florida”), a wholly-owned subsidiary of the Company; 21st Century Oncology Investments, LLC (“21CI”), the Company’s sole common stockholder; Kishore Dass, M.D., Seema Dass 2014 GRAT, dated May 13, 2014, Ben Han, M.D., and Rajiv Patel (the “Sellers”); and SFRO.

Pursuant to the Purchase Agreement, the Sellers contributed a portion of their equity interests in SFRO (the “Contributed Equity”) to 21CI in exchange for $19.0 million of 21CI’s SFRO Preferred Units and the remaining portion of their equity interests in SFRO to 21C East Florida in exchange for $15.0 million in cash and promissory notes issued by the Company with an aggregate principal amount of $15.0 million of 10% Subordinated Unsecured PIK Notes due 2019 (the “Notes”). For additional information on the Notes, see “—Promissory Notes.”

Pursuant to the Purchase Agreement, 21CI contributed the Contributed Equity to the Company in exchange for 31 shares of the Company’s common stock. The Company subsequently contributed the Contributed Equity to 21st Century Oncology, Inc., which in turn contributed (i) 93% of the Contributed Equity to 21C East Florida and (ii) 7% of the Contributed Equity (the “Acquisition Equity”) to 21st Century of Florida Acquisition, LLC (“21C Acquisition”).  21C Acquisition subsequently contributed the Acquisition Equity to 21C East Florida.  Following the closing of the SFRO Acquisition, the Company, through 21C East Florida, owns 100% of the equity interests in SFRO.

The foregoing description of the Purchase Agreement is qualified in its entirety by reference to such agreement, a copy of which is filed herewith as Exhibit 2.1 and incorporated herein by reference.

Promissory Notes

As described above, in connection with the SFRO Acquisition, the Company issued promissory notes on July 2, 2015 to each of the Sellers, with an aggregate principal amount of $15.0 million. The Notes accrue interest at a rate of 10% per annum, which will be capitalized quarterly and added to the outstanding principal amount. The Notes mature on June 30, 2019 and may be prepaid (i) at the Company’s election, in part or in whole, without penalty, any time following 18 months after the issue date or (ii) at the election of the holders of a majority of the Notes outstanding in the event that the Company has completed certain refinancing transactions with respect to its existing notes and outstanding indebtedness under its credit agreement and 18 months have elapsed since the issue date. The Notes also provide for certain pre-payments and premiums payable to the holders based on certain milestones being achieved, which could entitle the holders of the Notes to up to an additional $4.5 million in the aggregate.

The Notes are unsecured and subordinated to the Company’s existing notes and outstanding indebtedness under the Company’s credit agreement and include customary events of default for notes of this type.

The foregoing description of the Notes is qualified in its entirety by reference to such documents, a form of which is filed herewith as Exhibit 4.1 and incorporated herein by reference.

Sixth Amended and Restated Limited Liability Company Agreement of 21st Century Oncology Investments, LLC

As described above, in connection with the SFRO Acquisition, the Sellers contributed the Contributed Equity to 21CI in exchange for $19.0 million of 21CI’s SFRO Preferred Units pursuant to a Sixth Amended and Restated Limited Liability Company Agreement of 21CI, dated as of July 2, 2015, which was amended and restated to include the SFRO Preferred Units (the “Operating Agreement”).  Pursuant to the Operating Agreement, distributable assets of 21CI shall be distributed first, until such time as there have been $19.0 million in aggregate distributions, 100% to the holders of SFRO Preferred Units, pro rata in accordance with the respective number of SFRO Preferred Units held by each such unitholder immediately prior to such distribution. Upon an initial public offering of the

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Company, the holders of SFRO Preferred Units shall have the right at their written election to receive shares of common stock of the Company in exchange for the SFRO Preferred Units, based on the dollar amount that such holders would be entitled to receive had an amount equal to the equity value of the Company (as implied by the price per share of common stock of the Company paid by the public in such public offering) been distributed to such holders pursuant to the distribution provisions of the Operating Agreement, after taking into account all prior distributions (including any proceeds of any public offering).

The foregoing description of the Operating Agreement is qualified in its entirety by reference to such agreement, a copy of which is filed herewith as Exhibit 10.1 and incorporated herein by reference.

Item 2.03                   Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The description of the Notes included in Item 1.01 of this Current Report is incorporated by reference into this Item 2.03.

Item 3.02                   Unregistered Sales of Equity Securities.

The description of the Purchase Agreement and the completion of the transactions contemplated thereby included in Item 1.01 of this Current Report is incorporated by reference into this Item 3.02. The issuance of 31 shares of the Company’s common stock to 21CI in connection with the SFRO Acquisition was exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended.

Item 7.01                   Regulation FD Disclosure.

On July 8, 2015, the Company issued a press release announcing the SFRO Acquisition. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Forward-Looking Statements

This Current Report on Form 8-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended.  Statements preceded by, followed by or that otherwise include the words “believes,” “expects,” “anticipates,” “intends,” “projects,” “estimates,” “plans,” “may increase,” “forecast” and similar expressions or future or conditional verbs such as “will,” “should,” “would,” “may” and “could” are generally forward-looking in nature and not historical facts. Forward-looking statements are based on management’s current expectations or beliefs about the Company’s future plans, expectations and objectives.  These forward-looking statements are not historical facts and are subject to risks and uncertainties that could cause the actual results to differ materially from those projected in these forward-looking statements including, but not limited to reductions in Medicare reimbursement, healthcare reform, decreases in payments by managed care organizations and other commercial payers and other risk factors that may be described from time to time in the Company’s filings with the Securities and Exchange Commission.  Readers of this Current Report are cautioned not to place undue reliance on forward-looking statements contained herein, which speak only as of the date stated, or if no date is stated, as of the date of this Current Report. The Company undertakes no obligation to publicly update or revise the forward-looking statements contained herein to reflect changed events or circumstances after the date of this release, unless required by law.

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Item 9.01                   Financial Statements and Exhibits.

(d) Exhibits

*                 Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K.  The Company agrees to furnish a supplemental copy of any omitted schedule to the Securities and Exchange Commission upon request.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

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EXHIBIT INDEX

*                 Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K.  The Company agrees to furnish a supplemental copy of any omitted schedule to the Securities and Exchange Commission upon request.

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Exhibit 2.1

SECURITIES CONTRIBUTION AND PURCHASE AGREEMENT

BY AND AMONG

KISHORE DASS, SEEMA DASS 2014 GRAT, DATED MAY 13, 2014, BEN HAN AND RAJIV PATEL AS SELLERS,

21C EAST FLORIDA, LLC AS BUYER,

21ST CENTURY ONCOLOGY INVESTMENTS, LLC

AND

SFRO HOLDINGS, LLC

July 2, 2015

TABLE OF CONTENTS

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ii

EXHIBITS AND SCHEDULES

Exhibits

Schedules

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SECURITIES CONTRIBUTION AND PURCHASE AGREEMENT

THIS SECURITIES CONTRIBUTION AND PURCHASE AGREEMENT (this “Agreement”) is made as of July 2, 2015, by and among 21C East Florida, LLC, a Delaware limited liability company (“Buyer”), 21st Century Oncology Investments, LLC (“Parent LLC”), Kishore Dass, M.D. (“Dass”), Seema Dass 2014 GRAT, dated May 13, 2014, (“GRAT”), Ben Han, M.D. (“Han”), and Rajiv Patel (“Patel”, and collectively with Dass, GRAT and Han, the “Sellers”, and each a “Seller”), and SFRO Holdings, LLC, a Florida limited liability company (the “Company”).  Capitalized terms used herein and not otherwise defined herein have the meanings given to such terms in ARTICLE VII below.

WHEREAS, pursuant to a Securities Purchase Agreement (the “2014 Purchase Agreement”), dated as of February 10, 2014, Buyer acquired sixty-five percent (65%) of the outstanding Equity Interests in the Company from the Sellers;

WHEREAS, the Sellers collectively own beneficially and of record the remaining thirty-five percent (35%) of the outstanding Equity Interests in the Company, their respective ownership of such interests is as set forth on Schedule 1.1 attached hereto (the percentage interest set forth next to each Seller’s name on Schedule 1.1 is referred to as such Seller’s “Equity Interest Percentage”);

WHEREAS, the Sellers desire to contribute to Parent LLC a portion of their Company Equity Interests with an aggregate value of $19,000,000 (collectively, the “Contributed Equity”), in consideration for the Rollover Equity (as defined below);

WHEREAS, Parent LLC and its Subsidiaries desire to further contribute the Contributed Equity to Buyer;

WHEREAS, Buyer desires to purchase, and the Sellers desire to sell in the aggregate, their remaining Company Equity Interests (other than the Contributed Equity) (collectively, the “Purchased Equity”), in consideration for the Purchase Price (as defined below); and

WHEREAS, as a material inducement to Buyer’s willingness to enter into this Agreement and consummate the transactions contemplated hereby (the “Transactions”), the Sellers have agreed to be bound by the restrictive covenants set forth in Section 6.2, and each of the Sellers acknowledge and agree that Buyer would not have entered into this Agreement but for the agreement of the Sellers to be bound by the restrictive covenants set forth in Section 6.2.

NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I
Contribution of Contributed Equity; Purchase and Sale of Purchased Equity; Closing

1.1.                            Agreement to Purchase and Sell Interests.  Subject to the terms and conditions of this Agreement, at the Closing, each Seller shall transfer to Buyer and Parent LLC,

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and Buyer and Parent LLC shall acquire from each Seller, such Seller’s portion of the Contributed Equity and Purchased Equity as set forth on Schedule 1.1, in each case free and clear of all Liens other than Liens that may arise under securities Laws, and in exchange, Parent LLC shall issue the Rollover Equity in the manner provided in Section 1.2(b) and Buyer shall pay the Purchase Price in the manner provided in Section 1.2(c).

1.2.                            The Closing.

(a)                                 Time and Place of Closing.  The consummation of the Transactions will occur remotely on the date hereof upon the execution of this Agreement through the exchange of electronic copies (the “Closing”), with originals exchanged among the parties hereto promptly after the Closing.  The date on which the Closing occurs is referred to as the “Closing Date”.

(b)                                 Contribution of Contributed Equity.  Subject to the terms and conditions set forth in this Agreement, at the Closing the parties shall take the following actions in the following order:

(i)                                     Sellers shall contribute the Contributed Equity to Parent LLC, and Parent LLC shall issue to the Sellers $19,000,000 of SFRO Preferred Units of Parent LLC to be issued on the Closing Date (the “Rollover Equity”);

(ii)                                  Parent LLC shall contribute the Contributed Equity to 21st Century Oncology Holdings, Inc. (“Holdings”) in exchange for common shares of Holdings, and Holdings shall further contribute the Contributed Equity to Parent;

(iii)                               Parent shall contribute (A) 93% of the Contributed Equity to Buyer, and (B) the remaining 7% of the Contributed Equity to 21st Century of Florida Acquisition, LLC, and 21st Century of Florida Acquisition, LLC shall further contribute such Contributed Equity to Buyer; and

(iv)                              Buyer shall purchase the Purchased Equity, in consideration for the Purchase Price (as defined below).

(c)                                  Purchase and Sale of Purchased Equity.  For purposes of this Agreement, the “Purchase Price” means the sum of: (i) $15,000,000 (the “Cash Purchase Price”); and (ii) the promissory notes issued by Holdings to each Seller on the Closing Date in the form attached hereto as Exhibit A, having an aggregate principal amount of $15,000,000 (each, a “Promissory Note” and collectively, the “Promissory Notes”).

(d)                                 Deliveries and Proceedings in connection with the Closing.

(i)                                     Deliveries by Sellers to Buyer and Parent LLC.  In connection with the Closing, the Sellers shall deliver (or cause to be delivered) to Buyer and Parent LLC the following:

(A)                               at Closing, an assignment of each Seller’s portion of the Contributed Equity as set forth on Schedule 1.1 in favor of Parent LLC in a form reasonably acceptable to Parent LLC, duly executed by such Seller;

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(B)                               at Closing, an assignment of each Seller’s portion of the Purchased Equity as set forth on Schedule 1.1 in favor of Buyer and Parent LLC in a form reasonably acceptable to Buyer, duly executed by such Seller;

(C)                               at Closing, a joinder agreement in the form attached as Exhibit B hereto (the “Joinder”), duly executed by all Sellers pursuant to which the Sellers shall become a party on the Closing Date to that certain Second Amended and Restated Securityholders Agreement, dated as of September 26, 2014, by and among Parent LLC, Holdings and the other parties thereto;

(D)                               at Closing, the Sellers signature to a fully executed consent resolution of the board of managers of the Company terminating the Company’s 401(k) plan effective June 29, 2015; and

(E)                                at Closing, the Sellers signature to a fully executed consent resolution of the board of managers of the Company approving an amendment to close the Company’s cash balance plan to freeze the plan to new participants as of the Closing and the duly executed amendment to close the cash balance plan freezing the plan to new participants as of the Closing.

(ii)                                  Deliveries by Buyer to Sellers.  In connection with the Closing, Buyer shall deliver (or cause to be delivered) to the Sellers or to such other specified persons the following:

(A)                               on the Closing Date, the Promissory Notes, duly executed by 21st Century Oncology Holdings, Inc.;

(B)                               at Closing, employment agreement amendments between SFM and each Seller in form acceptable to such Seller, duly executed by SFM; and

(C)                               at Closing, an amount equal to the Cash Purchase Price by wire transfer of immediately available funds, pro rata in accordance with the Equity Interest Percentages set forth on Schedule 1.1, to the account or accounts designated by the Seller Representative.

(iii)                               Deliveries by Parent LLC to Sellers.  In connection with the Closing, Parent LLC shall deliver (or cause to be delivered) to Sellers on the Closing Date, the Rollover Equity, pro rata in accordance with the Equity Interest Percentages set forth on Schedule 1.1 attached hereto;

(iv)                              2014 Purchase Agreement Escrow Release.  At the Closing, the Buyer shall deliver to the Escrow Agent and Sellers a duly executed release letter instructing the Escrow Agent to release all remaining funds in the Escrow Account under the Escrow Agreement to the Sellers in accordance with the Escrow Agreement (as those terms are defined in the 2014 Purchase Agreement).  Buyer shall cause the Escrow Agent to release such funds remaining in the Escrow Account to the Sellers by wire transfer of immediately available funds.

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1.3.                            Withholding Taxes.  Notwithstanding anything in this Agreement to the contrary, Buyer, and each Target Company shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement any withholding Taxes or other amounts required under the Code or any applicable Law to be deducted and withheld.  To the extent that any such amounts are so deducted or withheld, such amounts shall be paid over to the appropriate Government Entity and treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

1.4.                            2014 Purchase Agreement; Letter Agreement Termination.  Sellers acknowledge and agree that the payment of the Purchase Price shall also fulfill all of Buyer’s obligations under Section 1 of the 2014 Purchase Agreement and no further amounts shall be due by Buyer to Seller under Section 1 of the 2014 Purchase Agreement other than the Purchase Price.  The letter agreement dated February 10, 2014 between Holdings and the Sellers is hereby terminated as of the Closing Date.

ARTICLE II
Representations and Warranties of Sellers Regarding the Target Companies

As a material inducement to Buyer to enter into this Agreement and to consummate the Transactions, the Sellers hereby represent and warrant to Buyer that, except with the due authorization of the board of managers of the Company, with Buyer’s Knowledge or as set forth in the disclosure schedules to the 2014 Purchase Agreement, from and after the 2014 Closing Date through May 31, 2015:

2.1.                            Absence of Undisclosed Liabilities.  Except as set forth on Schedule 2.1, no Target Company has any Liability (including Liabilities relating to medical malpractice claims to the extent not covered by insurance) that, individually or in the aggregate, would be material to the Target Companies taken as a whole, other than (i) Liabilities set forth on the liabilities side of the face of the Balance Sheet (not in the notes thereto), (ii) Liabilities which have arisen after the date of the Balance Sheet in the ordinary course of business consistent with past practice (none of which is a Liability resulting from breach of contract, breach of warranty, tort, infringement, claim, lawsuit or violation of Law, and none of which is material either individually or in the aggregate), or (iii) Liabilities duly authorized by the board of managers of the Company.

2.2.                            Absence of Certain Developments.  There has occurred no fact, event or circumstance which has had or would reasonably be expected to have a Material Adverse Effect.  Except as expressly contemplated by this Agreement or as set forth on Schedule 2.2, no Target Company has:

(a)                                 amended its certificate of formation, limited liability company agreement or other organizational documents;

(b)                                 issued, delivered or sold or proposed or agreed to issue, deliver or sell any Equity Interest, or issued, delivered or sold or proposed or agreed to issue any securities convertible into or exchangeable or exercisable for, or options with respect to, or warrants to purchase or rights to subscribe for, calls, conversion rights, commitments, other securities relating to any Equity Interests, or sold, transferred or otherwise disposed of any Equity Interest;

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(c)                                  incurred, issued or guaranteed any Indebtedness  or incurred, created or assumed any Liens (other than Permitted Liens) upon any of its material assets, tangible or intangible;

(d)                                 discharged or paid any material obligation or Liability, other than current Liabilities paid in the ordinary course of business consistent with past practice;

(e)                                  declared any distribution of cash or other property with respect to its Equity Interests that remains unpaid, or repurchased, redeemed or otherwise acquired any Equity Interests in any Target Company;

(f)                                   sold, assigned, transferred, leased, licensed, failed to maintain or abandoned any of its material assets, tangible or intangible, other than sale or use of consumables or other inventory in the ordinary course of business consistent with past practice;

(g)                                  materially amended or modified any Material Contract, waived any material default, claim or other right under any Material Contract, or terminated any contract that would constitute a Material Contract if in effect as of the date hereof;

(h)                                 terminated, cancelled, amended, waived, modified or failed to maintain or comply with any material Permit;

(i)                                     made or granted any bonus or any wage or salary increase to, or changed any material employment or retention terms with, any employee or group of employees or contractors, including salespersons (other than bonuses and wage or salary increases in the ordinary course of business consistent with past custom and practice), entered into or increased amount or duration of any severance arrangement, or made or granted any increase in any Employee Benefit Plan or arrangement, or amended or terminated any existing Employee Benefit Plan or arrangement or adopted any new Employee Benefit Plan or arrangement, or entered into, modified or terminated any collective bargaining agreement or relationship;

(j)                                    made any material change in its cash management practices or in any material method of accounting or accounting policies, or made any write-down in the value of its inventory that is material or outside of the ordinary course of business consistent with past custom and practice;

(k)                                 made or changed any material Tax election, changed any annual accounting period, adopted or changed any material accounting method, filed any amended Tax Return, entered into any closing agreement, settled any material Tax claim or assessment, surrendered any right to claim a material refund of Taxes, consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment;

(l)                                     adopted any plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization, bankruptcy, suspension of payments or other reorganization;

(m)                             other than compensation, benefits and expense reimbursements in the ordinary course of business consistent with past custom and practice, directly or indirectly

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engaged in any transaction or entered into, amended or terminated, any arrangement with any of its officers, directors, managers, equityholders or other Affiliates;

(n)                                 entered into any new line of business or opened or closed any facility or office;

(o)                                 incurred or committed to incur any capital expenditures in excess of $250,000 individually;

(p)                                 entered into any acquisition agreement or agreement to acquire by merger, consolidation or otherwise, or agreement to acquire (whether through acquisition of assets, equity securities or otherwise) any business of any other Person;

(q)                                 cancelled or waived (i) any right material to the operation of its business or (ii) any debts or claims against any of its Affiliates;

(r)                                    failed to maintain in full force and effect any insurance policy in a form and amount consistent with past practice;

(s)                                   settled, released, waived or compromised any pending or threatened action, suits, proceeding or investigation;

(t)                                    delayed, postponed or canceled the payment of accounts payable or any other Liability, or accelerated the collection of accounts receivable, other than in the ordinary course of business consistent with past practice; or

(u)                                 agreed to take or authorize the taking, whether orally or in writing, any of the foregoing.

2.3.                            Contracts and Commitments.

(a)                                 Except as expressly contemplated by this Agreement or as set forth on Schedule 2.3 attached hereto, no Target Company is, a party to or bound by (whether written or oral) any:

(i)                                     pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees;

(ii)                                  collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;

(iii)                               employment or consulting agreement or other contract for the employment or service of any physician, radiologist, other medical practitioner, officer, individual employee or other Person on a full-time, part-time, consulting or other basis;

(iv)                              contract or agreement with any Government Entity;

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(v)                                 contract with any healthcare provider;

(vi)                              contract with any supplier to the Target Companies under which the aggregate payments exceeded $250,000 during the fiscal year ended December 31, 2014;

(vii)                           agreement or indenture relating to borrowed money or other Indebtedness, the mortgaging, pledging or otherwise placing a Lien on any material asset (tangible or intangible) or material group of assets (tangible or intangible) of any Target Company, any letter of credit arrangements, or any guarantee therefor;

(viii)                        lease or agreement under which any Target Company is (x) lessee of or holds or operates any personal property, owned by any other party, except for any lease of personal property under which the aggregate annual rental payments did not exceed $250,000 during the fiscal year ended December 31, 2014 or (y) lessor of or permits any third party to hold or operate any property owned or controlled by any Target Company;

(ix)                              agreements relating to the ownership of, Investments in or loans and advances to, any Person, including Investments in joint ventures and minority equity investments;

(x)                                 license, royalty, indemnification or other agreement with respect to any Intellectual Property Rights (other than licenses for commercially available, off-the-shelf software with a replacement cost and/or annual license fee of less than $50,000 during the fiscal year ended December 31, 2014);

(xi)                              power of attorney or other similar agreement or grant of agency;

(xii)                           contract or agreement prohibiting it from freely engaging in any line of business or competing anywhere in the world, including any nondisclosure or confidentiality agreements; or

(xiii)                        other agreement that involved consideration in excess of $500,000 during the fiscal year ended December 31, 2014.

(b)                                 The contracts, agreements and instruments set forth or required to be set forth on Schedule 2.3 attached hereto are referred to individually as a “Material Contract” and collectively as “Material Contracts.”  Each Material Contract is valid, binding and in full force and effect, and is enforceable in accordance with its terms.  No Target Company is in default under or in breach of, nor in receipt of any claim of default or breach under, any Material Contract.  No event has occurred which with the passage of time or the giving of notice or both would result in a material default or breach by any Target Company under any Material Contract; and, to the Sellers’ Knowledge, there is no existing or threatened material breach or cancellation by the other parties to any Material Contract to which any Target Company is a party.

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(c)                                  Buyer has been supplied with a true, complete and correct copy of each written Material Contract, together with all amendments, waivers or other changes thereto, and a summary of the material terms of each oral Material Contract.

2.4.                            Labor Matters.  Schedule 2.4(a) attached hereto contains a true, complete and correct list as of May 31, 2015 of (i) the employees employed by each Target Company whose total cash compensation in 2014 through such date exceeded $200,000, and (ii) the rate of all current compensation payable by any Target Company to each such employee, including any bonus, contingent or deferred compensation.  Except as set forth on Schedule 2.4(b) attached hereto, no executive or key employee of any Target Company and no group of employees or contractors of any Target Company has informed such Target Company in writing of any plan to terminate or materially alter the terms of his, her or their employment with or services for such Target Company.  To the Seller’s Knowledge, no executive or key employee of any Target Company is party to any confidentiality, proprietary rights, non-competition, non-solicitation, or similar agreement that could materially restrict the performance of such employee’s employment duties or the ability of any Target Company to conduct its business.  None of the Target Companies is a party to or bound by any collective bargaining agreement or other contract or bargaining relationship with any labor organization.  There are no pending or, to the Sellers’ Knowledge, threatened strikes, work stoppages, walkouts, or other material labor disputes or disruptions against or affecting any Target Company, and no such disputes have occurred within the past five (5) years.  To the Sellers’ Knowledge, there are no ongoing or threatened union organizing activities involving employees of any Target Company and no such activities have occurred within the past three (3) years.  Except as would not, individually or in the aggregate, reasonable be expected to be adverse in any material respect to the Target Companies taken as a whole, the Target Companies are in compliance, and since the 2014 Closing Date have complied with all applicable Laws relating to labor and employment.  No Target Company has any material liability resulting from any delinquency in payment of, or failure to pay, any of its current or former employees, consultants or independent contractors wages (including minimum wage, overtime, meal breaks or waiting time penalties), salaries, fees, commissions, accrued and unused vacation, on-call payments, equal pay, or collective bargaining payments, bonuses, or other compensation, if any, for any services performed by them to which they would be entitled under applicable Law or agreement.

2.5.                            Compliance with Laws; Permits; Prohibited Payments.

(a)                                 Except as set forth on Schedule 2.5(a) attached hereto, each of the Target Companies is in compliance, and since the 2014 Closing Date has complied, with all applicable Laws relating to the operation of its business in all material respects.  Except as set forth on Schedule 2.5(a) attached hereto, no written notices have been received by and, to the Sellers’ Knowledge, no written claims have been filed against any Target Company alleging a material violation of any such Laws.  Except as set forth in Schedule 2.5(a) attached hereto, none of the Target Companies (i) has received any written notice from any Government Entity of any threatened or pending investigation, audit or inquiry into an alleged or suspected violation of any applicable Law or regulation, or (ii) is party to any agreement or settlement with any Government Entity with respect to its alleged non-compliance with, or violation of, any applicable Law.

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(b)                                 Each of the Target Companies holds all material Permits of all Government Entities required for the conduct of its business and the ownership of its properties, and Schedule 2.5(b) attached hereto sets forth a list of all of such material Permits held by the Target Companies.  No written notices have been received by any Target Company alleging the failure to hold any Permits.  Each of the Target Companies is, and since the 2014 Closing Date have been, in compliance in all material respects with all terms and conditions of all permits, licenses, accreditations and authorizations which it holds or held.

(c)                                  No Target Company has, directly or indirectly, (i) made or agreed to make any contribution, payment or gift to any government official, employee or agent where either the contribution, payment or gift or the purpose thereof was illegal under the Laws of any federal, state, local or foreign jurisdiction, (ii) established or maintained any unrecorded fund or asset for any purpose or made any false entries on the books and records of any Target Company for any reason, (iii) made or agreed to make any illegal contribution, or illegally reimbursed any political gift or contribution made by any other Person, to any candidate for federal, state, local or foreign public office or (iv) illegally paid or delivered any fee, commission or any other sum of money or item of property, however characterized, to any finder, agent, government official or other Person, in the United States or any other country, which in any manner relates to the assets, business or operations of any Target Company.

2.6.                            Environmental Matters.  Except as set forth on Schedule 2.6 attached hereto:

(a)                                 each of the Target Companies is, and has been since the 2014 Closing Date, in compliance in all material respects with all applicable Environmental Requirements which compliance includes and has included obtaining, maintaining and complying with all Permits required pursuant to Environmental Requirements for the operation of the Business and the occupation of the Leased Property;

(b)                                 no Target Company has received any written notice or report regarding any actual or alleged violation of or any Liabilities arising under, Environmental Requirements;

(c)                                  none of the Target Companies has (i) treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, released or exposed any Person to, any Hazardous Substance, or (ii) owned or operated any facility or property (including the Leased Property) that is or has been contaminated by any Hazardous Substance, in each case of (i) or (ii) so as to give rise to any material Liabilities pursuant to any Environmental Requirements;

(d)                                 except under credit agreements, inventory supply agreements and leases entered into in the ordinary course of business, no Target Company has assumed or provided an indemnity with respect to any Liability of any other Person relating to any Environmental Requirements;

(e)                                  none of the Target Companies nor any of their respective predecessors or Affiliates has manufactured, sold, marketed, installed or distributed products or items containing asbestos, and none of such Persons has any Liabilities with respect to the presence

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or alleged presence of asbestos-containing material in any product or item on, at or upon any property or facility; and

(f)                                   the Sellers have furnished to Buyer all environmental assessments, audits, reports and other documents materially bearing on environmental, health or safety Liabilities with respect to the current and former operations and facilities of the Business, to the extent such documents are in the possession or under the reasonable control of the Target Companies.

2.7.                            Affiliate Transactions.  Except as set forth on Schedule 2.3 attached hereto or Schedule 2.7 attached hereto and except for any Employee Benefit Plans or agreements with Parent or Buyer, no (i) employee, officer, manager or director of any Target Company or Affiliate of any Seller, (ii) individual related by blood, marriage or adoption to any individual referred to in clause (i), or (iii) entity in which any Person or individual referred to in clause (i) or (ii) owns any beneficial interest (other than a Target Company), is a party to any agreement, contract, commitment or transaction with a Target Company that has not been duly authorized by the board of managers of the Company after the 2014 Closing Date or has any direct or indirect interest (other than through a Target Company) in any assets used by a Target Company.  Except for the contracts and agreements set forth on Schedule 2.7 attached hereto and transactions contemplated thereby, there are no agreements, contracts, commitments or transactions between the Company and/or any of its Subsidiaries, on the one hand, and SFM and/or any of its Subsidiaries, on the other hand.

2.8.                            Healthcare.

(a)                                 The Target Companies have complied in all material respects with all applicable healthcare Laws, including but not limited to Sections 1128A, 1128B, or 1877 of the Social Security Act (42 U.S.C. §§ 1320a-7a, 1320a-7b, and 1395nn), 31 U.S.C. § 3729 et seq. (the Civil False Claims Act), 18 U.S.C. § 1347 (Health Care Fraud), Public Law 104-191 (the Health Insurance Portability and Accountability Act of 1996), the Florida Patient Self-Referral Act (Fla. Stat. 456.053),  Florida Patient Brokering Act (Fla. Stat. 817.505) , Florida Kickback Act (Fla. Stat. 456.054), the Florida Medicaid Kickback Law (Fla. Stat. 409.920(e), all applicable fraud and abuse, false claims and anti-self-referral Laws and all applicable Laws related to the confidentiality, privacy and security of medical information, or to licensing, the corporate practice of medicine, fee-splitting, certificate of need and reimbursement or billing for healthcare services.  None of the Target Companies has received any written notice to the contrary; and each Target Company possesses all material healthcare Permits necessary to own, lease and conduct their respective businesses in the manner and to the full extent now operated, in each case issued by the appropriate Government Entity, including, without limitation, the United States Department of Health and Human Services and each other federal, state and local agency the regulations of which are applicable to the businesses of each Target Company including, without limitation, those adopted pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended by the HITECH Act of the American Recovery and Reinvestment Act of 2009 (“HIPAA”).

(b)                                 The Target Companies are qualified for participation in all federal healthcare programs in which they participate, including the Medicare programs, the Medicaid programs, and the Tricare programs in which they participate (together with their respective

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intermediaries or carriers, the “Government Reimbursement Programs”) and comply in all material respects with the rules, regulations and conditions of participation associated with all Government Reimbursement Programs in which they participate.  Except as disclosed on Schedule 2.8 attached hereto, there is no pending or, to the Sellers’ Knowledge, threatened proceeding or investigation by any Government Reimbursement Program with respect to (i) any Target Company’s qualification or right to participate in such Government Reimbursement Program, (ii) the compliance or non-compliance by any Target Company with the terms or provisions of such Government Reimbursement Program, or (iii) the right of any Target Company to receive or retain reimbursements from such Government Reimbursement Program, in each case other than (x) billing reviewed, reconciliations and audits performed in the ordinary course of business or (y) as would not reasonably be expected to give rise to any liabilities that, individually or in the aggregate, be material to the Target Companies, taken as a whole.  For purposes of this Agreement, “Medicaid” means any state-operated means-tested entitlement program under Title XIX of the Social Security Act that provides federal grants to states for medical assistance based on specific eligibility criteria (Social Security Act of 1965, Title XIX, P.L. 89-87, as amended; 42 U.S.C. § 1396 et seq.), “Medicare” means that government-sponsored entitlement program under Title XVIII of the Social Security Act that provides for a health insurance system for eligible elderly and disabled individuals (Social Security Act of 1965, Title XVIII, P.L. 89-87 as amended; 42 U.S.C. § 1395 et seq.) and “Tricare” means the healthcare program established by the U.S. Department of Defense under Title 10, Subtitle A, Part II, Chapter 55 (10 U.S.C. § 1071 et seq.) for members of the military, military retirees, and their dependents, and includes the competitive selection of contractors to financially underwrite the delivery of healthcare services under the Civilian Health and Medical Program of the Uniformed Services.

(c)                                  None of the Target Companies, nor any of their respective officers managers or directors, has, on behalf of any of the Target Companies, (i) knowingly or willfully violated the federal Medicare and Medicaid statutes, 42 U.S.C. § 1320a-7c, or 1320a-7b or the regulations promulgated pursuant to such statutes or related state or local statutes or regulations, including but not limited to the following:  (i) knowingly or willfully made or caused to be made a false statement or representation of a material fact in any applications for any benefit or payment; (ii) knowingly or willfully made or caused to be made any false statement or representation of a material fact for use in determining rights to any benefit or payment; (iii) knowingly or willfully failed to disclose knowledge by a claimant of the occurrence of any event affecting the initial or continued right to any benefit or payment on its own behalf or on behalf of another, with intent to secure such benefit or payment fraudulently; (iv) knowingly or willfully solicited or received any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind or offering to pay or soliciting to receive such remuneration (x) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part by Medicare, Medicaid, Tricare or other applicable government payers, or (y) in return for purchasing, leasing or ordering or arranging for or recommending the purchasing, leasing or ordering of any good, facility, service or item for which payment may be made in whole or in part by Medicare, Medicaid, Tricare or other applicable government payers; (v) knowingly or willfully presented or caused to be presented a claim for a medical or other item or service that was not provided as claimed, or is for a medical or other item or service and the person knew or should have known the claim was false or fraudulent; or (vi) presented or caused to be presented a claim to any individual, third party payor or other entity for a designated health service furnished pursuant to a prohibited referral by a

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physician pursuant to 42 U.S.C. § 1395nn or any regulations promulgated pursuant thereto.  None of the Target Companies has, nor have any of their respective officers, managers or directors, on behalf of  any of the Target Companies, violated in any material respect any applicable state false claims act statutes or the Federal False Claims Act, 31 U.S.C. § 3729, including without limitation (A) knowingly presenting or causing to be presented to a government official a false claim for payment or approval, (B) knowingly made, used or caused to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government, or (C) conspired to defraud the government by getting a false or fraudulent claim paid.

(d)                                 The Sellers have disclosed any and all corporate integrity or other agreements with any Government Entity to which any Target Company is a party.  The Target Companies are in compliance in all material respects with all such agreements.  No employee of or, to the Sellers’ Knowledge, independent contractor to the Target Companies is excluded from participating in any Government Reimbursement Program in which the Target Companies participate, nor, to the Sellers’ Knowledge, is any such exclusion threatened in writing or pending.  None of the officers, managers and directors and, to the Sellers’ Knowledge, none of the agents or managing employees (as such term is defined in 42 U.S.C. § 1320a-5(b)) of any Target Company has been excluded from a Government Reimbursement Program, been subject to sanction pursuant to 42 U.S.C. § 1320a-7a or 1320a-8, or been convicted of a crime described at 42 U.S.C. § 1320a-7b.

(e)                                  The Target Companies are in compliance in all material respects with the provisions of HIPAA, and the regulations promulgated thereunder, including the Standards for Electronic Transaction and Code Set (45 C.F.R. Parts 160 and 162), the Standards for Privacy of Individually Identifiable Health Information (45 C.F.R. Parts 160 and 164), the Security Standards for the Protection of Electronic Protected Health Information (45 C.F.R. Parts 160 and 164).  None of the Target Companies has received any written notice from any Government Entity or contract party that it is in violation of the requirements of HIPAA, or that such contract party has filed or intends to file a report to a Government Entity alleging a violation of or noncompliance with HIPAA, or that a Government Entity has imposed or intends to impose any enforcement actions, fines, or penalties for any failure or alleged failure to comply with the requirements of HIPAA or its implementing regulations.

ARTICLE III
Representations and Warranties of Sellers

As a material inducement to Buyer to enter into this Agreement and to consummate the Transactions, each Seller, severally and not jointly, with respect to himself, represents and warrants to Buyer as follows:

3.1.                            Power and Authority.  Such Seller possesses all requisite capacity or power and authority, as the case may be, necessary to carry out the Transactions.

3.2.                            Authorization; No Breach.

(a)                                 The execution, delivery and performance of this Agreement and all other agreements or instruments contemplated hereby to which such Seller is a party or by which

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such Seller is bound have been duly authorized by such Seller, if applicable.  This Agreement and all other agreements contemplated hereby to which such Seller is a party, when executed and delivered by such Seller in accordance with the terms hereof, shall each constitute a valid and binding obligation of such Seller, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by general principles of equity.

(b)                                 The execution, delivery and performance by such Seller of this Agreement and all other agreements contemplated hereby to which such Seller is a party, and the fulfillment of and compliance with the respective terms hereof and thereof by such Seller, do not and shall not (i) conflict with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under (whether with or without the passage of time, the giving of notice or both), (iii) result in the creation of any Lien upon the portion of Company Equity Interests held by such Seller pursuant to, (iv) give any third party the right to modify, terminate or accelerate any obligation under, (v) result in a violation of, or (vi) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any third party or Government Entity pursuant to, (A) any Law to which such Seller is subject or (B) any agreement, instrument, order, judgment or decree to which such Seller is subject, except, in each case of subclauses (A) and (B) above, for any conflict, breach, default, Lien, modification, termination, obligation, violation or failure that, individually or in the aggregate, would not be adverse in any material respect to the Target Companies taken as a whole, and would not adversely affect in any material respect the ability of the Target Companies or the Sellers to consummate the Transactions.

3.3.                            Title to Equity Interests.  Such Seller (a) holds of record and owns beneficially all of the Equity Interests of the Company set forth opposite such Seller’s name on Schedule 1.1 attached hereto, such Seller has good and valid title to such Equity Interests, free and clear of all Liens other than Liens that may arise under securities Laws and the SFRO Operating Agreement, and at the Closing such Seller shall deliver to the Buyer good and valid title to such Equity Interests free and clear of all Liens, (b) such Seller is not a party to any option, warrant, right, contract, call, put or other agreement or commitment providing for the disposition or acquisition of the Equity Interests owned by him or any other Equity Interests in the Company (other than this Agreement and the SFRO Operating Agreement) and (c) other than the Governing Documents of the Company and the SFRO Operating Agreement, such Seller is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of the Equity Interests owned by him or any other Equity Interests in any of the Target Companies.

3.4.                            Brokerage.  There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the Transactions based on any arrangement or agreement to which such Seller is a party or to which such Seller is subject for which any Target Company or Buyer could become obligated.

ARTICLE IV
Representations and Warranties of Buyer

As a material inducement to each Seller to enter into this Agreement and consummate the Transactions, Buyer represents and warrants to each Seller as follows:

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4.1.                            Organization, Power and Authority.  Buyer is duly organized, validly existing and in good standing under the Laws of Delaware.  Buyer possesses all requisite power and authority necessary to carry out the Transactions.

4.2.                            Authorization; No Breach.

(a)                                 The execution, delivery and performance of this Agreement and all other agreements or instruments contemplated hereby to which Buyer is a party or by which Buyer is bound have been duly authorized by Buyer.  This Agreement and all other agreements contemplated hereby to which Buyer is a party, when executed and delivered by Buyer in accordance with the terms hereof, shall each constitute a valid and binding obligation of Buyer, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by general principles of equity.

(b)                                 The execution, delivery and performance by Buyer of this Agreement and all other agreements contemplated hereby and the fulfillment of and compliance with the respective terms hereof and thereof by Buyer, do not and shall not (i) conflict with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under (whether with or without the passage of time, the giving of notice or both), (iii) give any third party the right to modify, terminate or accelerate any obligation under, (iv) result in a violation of, or (v) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any third party or Government Entity pursuant to, (A) the organizational documents of Buyer, (B) any Law to which Buyer is subject, or (C) any  agreement, instrument, order, judgment or decree to which Buyer is subject, except, in the case of subclause (B) and (C) above, for any conflict, breach, default, Lien, modification, termination, obligation, violation or failure that would not be material in any respect.

4.3.                            Brokerage.  There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the Transactions based on any arrangement or agreement to which Buyer is a party or to which Buyer is subject for which any Seller could become liable or obligated.

ARTICLE V
Indemnification

5.1.                            Survival of Representations and Warranties.  The representations and warranties in this Agreement shall survive the Closing for a period starting on the Closing Date and ending on the date that is eighteen (18) months following the Closing Date, except that the representations and warranties set forth in (i) Sections 3.1, 3.2(a), 3.3, 4.1 and 4.2(a) shall survive indefinitely (the “Fundamental Representations”) and (ii) Section 2.8 shall survive until sixty (60) days after the expiration of the applicable statute of limitations.  The agreements and covenants set forth in this Agreement shall survive in accordance with their terms and, if no term is specified, for a period of three (3) years following the Closing Date. Notwithstanding the foregoing, any claim by a party for indemnification hereunder with respect to the breach or alleged breach of any representation, warranty, covenant or agreement asserted prior to the expiration of the applicable survival period set forth in this Section 5.1 shall survive the expiration of such period until the final resolution of such claim.

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5.2.                            General Indemnification.

(a)                                 Common Indemnification Obligations of Sellers.  Subject to Section 5.2(d)(iii) and the other limitations in this ARTICLE V, after the Closing, the Sellers shall indemnify Buyer and its Affiliates (for the avoidance of doubt, including the Target Companies) and their respective officers, managers, directors, employees, successors and permitted assigns (other than Sellers) (collectively, “Buyer Indemnified Parties”) and save and hold each of them harmless against any loss, Liability, action, cause of action, cost, damage, Tax or expense, whether or not arising out of third party claims (including reasonable attorneys’, consultants’ and experts’ fees and expenses, interests or penalties to the extent owed to third-parties, refund obligations, and reasonable third-party costs and expenses incurred in connection with the investigation of any Third Party Claim after the receipt or commencement of such Third Party Claim) (collectively, “Losses”, and each a “Loss”), which any Buyer Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of:

(i)                                     thirty-five percent (35%) of any breach of any representation or warranty made by such Seller in ARTICLE II; or

(ii)                                  any nonfulfillment or breach of any covenant, agreement or other provision by such Seller under this Agreement.

If and to the extent any provision of this Section 5.2(a) is unenforceable for any reason, the Sellers agree to make the lesser maximum contribution to the payment and satisfaction of the Losses for which indemnification is provided for in this Section 5.2(a) which is permissible under applicable Laws.  Notwithstanding anything contained herein, in no event shall any Target Company be required to provide indemnification or contribution for any obligation of the Sellers under this Section 5.2(a).

(b)                                 Individual Indemnification Obligations of Sellers.  After the Closing, each Seller shall severally and not jointly indemnify the Buyer Indemnified Parties and save and hold each of them harmless against:

(i)                                     any Loss which any Buyer Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of any breach of any representation or warranty made by such Seller in ARTICLE III; or

(ii)                                  any Loss which any Buyer Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of any nonfulfillment or breach of any covenant, agreement or other provision by such Seller under this Agreement.

If and to the extent any provision of this Section 5.2(b) is unenforceable for any reason, each Seller hereby agrees to make the lesser maximum contribution to the payment and satisfaction of the Loss for which indemnification is provided for in this Section 5.2(b) which is permissible under applicable Laws. Notwithstanding anything contained herein, in no event shall any Target Company be required to provide indemnification or contribution for any obligation of the Sellers under this Section 5.2(b).

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(c)                                  Indemnification Obligations of Buyer.  After the Closing, Buyer shall indemnify each Seller and its Affiliates (other than Buyer and its Affiliates, including the Target Companies) (collectively, “Seller Indemnified Parties”) and hold them harmless against any Losses which Seller Indemnified Parties may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of:

(i)                                     any breach of any representation or warranty of Buyer contained in ARTICLE IV of this Agreement; or

(ii)                                  any nonfulfillment or breach of any covenant, agreement or other provision by Buyer under this Agreement.

If and to the extent any provision of this Section 5.2(c) is unenforceable for any reason, Buyer hereby agrees to make the maximum contribution to the payment and satisfaction of the Losses for which indemnification is provided for in this Section 5.2(c) which is permissible under applicable Laws.

(d)                                 Limitations on Indemnification.

(i)                                     The provisions of Section 5.2(a) and Section 5.2(b) notwithstanding:

(A)                               none of the Sellers shall be required to indemnify Buyer Indemnified Parties in respect of any Losses suffered by Buyer Indemnified Parties pursuant to Section 5.2(a)(i) or Section 5.2(b)(i), as applicable, as a result of any breach of any representation or warranty contained in ARTICLE II or ARTICLE III (other than the Fundamental Representations) until the aggregate amount of all such Losses suffered by Buyer Indemnified Parties exceed one percent (1%) of the Cash Purchase Price plus one percent (1%) of any cash payment to the payees under the Promissory Notes (the “Basket”) (at which point the full amount of such Losses starting with dollar one, including the Basket, shall be payable); and

(B)                               in no event shall the aggregate amount of the Sellers’ liabilities under Section 5.2(a)(i) and Section 5.2(b)(i) (excluding liabilities as a result of any breach of any Fundamental Representations) exceed twelve and one-half percent (12.5%) of the Cash Purchase Price plus twelve and one-half percent (12.5%) of any cash payment to the payees under the Promissory Notes (together, the “General Cap”).

(ii)                                  Subject to the limitations set forth in this Section 5.2(d), the Sellers shall be responsible for one hundred percent (100%) of the Losses suffered by any Buyer Indemnified Party for which indemnification is available pursuant to Section 5.2(a).  For purpose of clarity, subject to the limitations set forth in this Section 5.2(d), in the event of any Losses suffered by any Target Companies for which indemnification is available under Section 5.2(a), (A) Buyer will request that the indemnification payment be made to one or more of the Target Companies directly and (B) the Sellers shall pay one hundred percent (100%) of such Losses to such Target Company or Target Companies.

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(iii)                               The provisions of Section 5.2(a) and Section 5.2(b) notwithstanding, each individual Seller shall not be required to indemnify Buyer Indemnified Parties for more than such Seller’s pro rata portion of any Losses suffered by Buyer Indemnified Parties for which indemnification is available pursuant to Section 5.2(a) (for purposes of this Agreement the Sellers’ pro rata portions are twenty-two and nine-tenths percent (22.9%) for Dass, forty-five percent (45%) for Han, ten percent (10%) for Patel and twenty-two and one-tenths percent (22.1%) for GRAT).

(iv)                              The provisions of Section 5.2(a) and Section 5.2(b) notwithstanding, none of the Sellers shall be required to indemnify Buyer Indemnified Parties in respect of any Losses suffered by Buyer Indemnified Parties:

(A)                               to the extent such Losses constitute consequential or punitive damages, other than such items as the Buyer Indemnified Parties may be required to pay to a unaffiliated third-party as a result of the facts and circumstances underlying the relevant indemnification claim;

(B)                               to the extent of any net Tax benefits actually realized by the Buyer Indemnified Parties as a result of the facts and circumstances underlying such indemnification claim (after taking into account any Tax costs arising from indemnification hereunder and treating the applicable Tax item as the last item to be used by the Buyer Indemnified Parties);

(C)                               to the extent of insurance proceeds actually recovered by the Buyer Indemnified Parties in connection with the facts and circumstances underlying the relevant indemnification claim; and

(D)                               to the extent of any indemnity, contribution or other similar payments and claims actually received from third-parties.

(e)                                  Calculation of Losses.  For purposes of calculating the amount of Losses incurred with respect to any breach of any representation and warranty contained this Agreement (but not for purposes of determining whether a breach of a representation or warranty has occurred), all qualifications and limitations as to materiality (including terms such as “material”) in such representation or warranty shall be disregarded and not be given any effect.

(f)                                   Manner of Payment.  Any indemnification of Buyer Indemnified Parties pursuant to this Section 5.2 shall be effected (i) first by offsetting such amount against (x) any amounts due under the Promissory Notes and/or (y) at Buyer’s option, any obligation owing by the Target Companies or Buyer to Seller Indemnified Parties (including any distributions in respect of any Equity Interests held by Sellers in any Target Company), and (ii) thereafter, by wire transfer of immediately available funds from Sellers to an account designated in writing by Buyer Indemnified Party within five (5) days after the determination thereof.  Any indemnification owing to Seller Indemnified Parties pursuant to this Section 5.2 shall be effected by wire transfer of immediately available funds from Buyer to an account designated in writing by Seller Indemnified Party within five (5) days after the determination thereof.

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(g)                                  Third Party Claims.  Any Person making a claim for indemnification under this Section 5.2 (an “Indemnitee”) shall notify the indemnifying party (an “Indemnitor”) of the claim in writing promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim (a “Proceeding”) against it (if by a third party), describing the claim, the amount thereof (if known and quantifiable) and the basis thereof; provided that the failure to so notify an Indemnitor shall not relieve the Indemnitor of its obligations hereunder unless and to the extent the Indemnitor shall be actually prejudiced by such failure to so notify.  Any Indemnitor shall be entitled to participate in the defense of such Proceeding giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof (including as it relates to the posting of any bond or the making of any guarantee in connection with such defense) by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided that prior to the Indemnitor assuming control of such defense, Indemnitor shall first reasonably demonstrate to the Indemnitee in writing (A) the Indemnitor’s financial ability to provide full indemnification to the Indemnitee with respect to the estimated amount of the Loss relating to such Proceeding (determined in good faith based upon all of the information pertaining to the Proceeding available at such time and after giving effect to any applicable limitations on indemnification in Section 5.2(d)) and (B) that, assuming the Indemnitor were to become obligated to indemnify the Indemnitee hereunder in respect of the estimated amount of the Loss relating to such Proceeding (determined in good faith based upon all of the information pertaining to the Proceeding available at such time), the Indemnitor (after giving effect to any applicable limitations on indemnification in Section 5.2(d)) would be responsible for more of the Loss than the Indemnitee in the event such Proceeding were determined in an adverse manner to the Indemnitor and the Indemnitee; and provided, further, that:

(i)                                     the Indemnitee shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such separate counsel (x) that are incurred prior to the date the Indemnitor effectively assumes control of such defense) or (y) retained because of a conflict of interest exists between the Indemnitor and the Indemnitee, each of which, notwithstanding the foregoing, shall be borne by the Indemnitor);

(ii)                                  the Indemnitee shall be entitled to assume control of such defense (the fees and expenses of counsel retained by Indemnitee in connection with such defense shall be deemed indemnifiable Losses, subject to the limitations set forth in this ARTICLE V) if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation (provided that in such event (x) the Indemnitee shall not enter into any settlement of a claim without the prior written consent of the Indemnitor (which shall not be unreasonably withheld, delayed or conditioned), (y) the Indemnitor shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnitor), and (z) the Indemnitor shall be entitled to review the files and record relating to such defense upon request of the Indemnitor); (B) the Indemnitee reasonably believes that an adverse determination with respect to the Proceeding giving rise to such indemnification claim would materially and adversely affect the Indemnitee’s business reputation; (C) the claim seeks an injunction or

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equitable relief against the Indemnitee; or (D) the Indemnitor failed or is failing to vigorously prosecute or defend such claim; and

(iii)                               if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a Proceeding or ceasing to defend such Proceeding if, pursuant to or as a result of such settlement or cessation, (A) injunctive or other equitable relief will be imposed against the Indemnitee, (B) the Indemnitee will become responsible for any payment or any portion thereof or any other Liabilities, whether as a result of the limitations on indemnification in Section 5.2(d), or otherwise, or (C) in the case of a settlement, such settlement does not expressly and unconditionally release the Indemnitee from all Liabilities with respect to such claim, without prejudice.

(h)                                 Waiver.  Each Seller hereby agrees that such Seller shall not make any claim for indemnification hereunder against any Target Company by reason of the fact that such Seller or one or more of its officers was a shareholder, manager, director, officer, employee or agent of any Target Company or was serving at the request of any Target Company as a partner, trustee, manager, director, officer, employee or agent of another entity (whether such claim is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise) with respect to any Proceeding brought by any of Buyer Indemnified Parties against such Seller or any claim against such Seller in connection with this Agreement, and each Seller hereby acknowledges and agrees that such Seller shall have no claims or right to contribution or indemnity from any Target Company with respect to any amounts paid by such Seller pursuant to this Section 5.2.

(i)                                     Without limiting the Indemnitor’s rights under this ARTICLE V, if any Indemnitee recovers from a third-party any amount in respect of a matter for which the Indemnitors have indemnified the Indemnitee pursuant to this ARTICLE V, then such Indemnitee will promptly pay over to the Indemnitors such recovered amount, but in no event shall any Indemnitee pay to the Indemnitors any recovered amount in excess of any amount previously paid by the Indemnitors to or for the account of the Indemnitees in respect of such claim.

(j)                                    Final Purchase Price Adjustment.  All indemnification payments under this ARTICLE V shall be deemed adjustments to the Purchase Price.

(k)                                 Sole Remedy.  After the Closing, other than any claim of fraud, the indemnification pursuant to this ARTICLE V shall be the sole remedies for breach of any representation, warranty or covenant under this Agreement; provided that the parties may seek injunctive relief and other equitable remedies for breaches of or failures to comply with the covenants and obligations under ARTICLE VI.

ARTICLE VI
Post-Closing Covenants and Agreements

Each of the parties hereto agrees as follows with respect to the period after the Closing Date:

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6.1.                            Tax Matters.

(a)                                 Certain Taxes.  All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (collectively, “Transfer Taxes”) shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by the Sellers.  Buyer will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable law, the Sellers will, and will cause their Affiliates to, join in the execution of any such Tax Returns and other documentation.  The Sellers’ share of any Transfer Taxes payable in respect of such Tax Returns shall be paid by the Seller Representative (for payment to the applicable taxing authority), together with fifty percent (50%) of the costs of the preparation of such Tax Returns, no later than five (5) Business Days before such Transfer Taxes become due and payable.

(b)                                 Intended Tax Treatment and Allocation.

(i)                                     The parties intend that (A) the contribution of the Contributed Equity to Parent LLC in exchange for the Rollover Equity (as set forth on Schedule 1.1) will qualify as a tax-free exchange under Section 721 of the Code, (B) the subsequent sale of the Purchased Equity to Buyer in exchange for the Cash Purchase Price and Promissory Notes (as set forth on Schedule 1.1) will be a taxable transaction described in Situation 1 of IRS Revenue Ruling 99-6, 1999-1 C.B. 432, and shall therefore be treated for U.S. federal income tax purposes, from the perspective of the Sellers, as a fully taxable sale of partnership interests and, from Buyer’s perspective, as an asset acquisition (the “Intended Tax Treatment”).

(ii)                                  Following the final determination of the Purchase Price, Buyer shall prepare or cause to be prepared, and shall submit to the Seller Representative, an allocation (the “Allocation”) of the Purchase Price, the liabilities of the Target Companies existing immediately prior to the Closing, and other relevant items among the assets of the Target Companies based on the fair market value of such assets immediately prior to the Closing, consistent with Section 1060 of the Code.  For purposes of the foregoing, the Parties agree that the fair market value of the tangible assets of the Target Companies shall be equal to their adjusted tax basis.  If the Seller Representative objects to the Allocation within thirty (30) days after receipt thereof from Buyer, then Buyer and the Seller Representative shall negotiate in good faith to resolve promptly any such objection.  If Buyer and the Seller Representative do not obtain a final resolution within thirty (30) days after the Seller Representative has so objected, then the dispute shall be resolved by the Independent Auditor, in accordance with the procedural principles of Section 6.1(g) of the 2014 Purchase Agreement.  Buyer and the Seller Representative shall update the Allocation to reflect any further adjustments to the Purchase Price in a manner consistent with the principles used to create the Allocation.

(iii)                               None of the Company, Buyer, Parent LLC or the Sellers, nor any of their Affiliates, shall take any position for income Tax purposes (whether in audits, Tax Returns or otherwise) which is inconsistent with the Intended Tax Treatment or the Allocation unless required to do so by applicable Law.

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6.2.                            Non-Solicitation and Non-Competition.

(a)                                 Each Seller agrees that during the period beginning on the date hereof and ending on the fifth (5th) anniversary of the Closing Date (the “Restricted Period”), such Seller shall not directly or indirectly (except on behalf of a Target Company) (i) induce or attempt to induce any officer, employee, consultant, physician or radiologist of any Target Company (other than such Seller) (an “Employee”) to leave the employ of any Target Company, or (ii) hire any Employee or any person who is or was an Employee.

(b)                                 Each Seller agrees that during the Restricted Period, such Seller shall not, without the prior written consent of Buyer, directly or indirectly, anywhere in the Territory: (i) form, acquire, finance, operate, control or otherwise become associated with an enterprise which provides outpatient radiation and other oncology treatment services or any other oncology services of any nature, including urology, medical oncology and surgical oncology services, or otherwise provides similar services to oncology patients or is otherwise competitive with the businesses of the Target Companies as now conducted or planned to be conducted (a “Competing Business”) or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit, advise or otherwise do, or attempt to do, business with any patients, clients, suppliers, business partners, customers or accounts of the Target Companies.  Notwithstanding the foregoing, (x) each Seller may be a passive owner (which shall not prohibit the exercise of any rights as a shareholder) of not more than three percent (3%) of the outstanding stock of any class of any public corporation that engages in a Competing Business, and (y) in the event a Seller’s employment by SFM is terminated by SFM without Cause (as defined in such Seller’s then-applicable employment agreement with SFM) prior to the expiration of the Restricted Period, such Seller shall be permitted to work for an existing radiation therapy provider following the expiration of the applicable noncompete period under such Seller’s employment agreement with SFM, provided that (1) such Seller does not receive any profits interests or any equity or equity-based interest in connection with such subsequent employment (whether as part of his compensation or otherwise) and (2) such Seller is not otherwise in violation of any of the provisions of this Section 6.2.

(c)                                  Buyer and the Sellers agree that (i) the covenants set forth in Sections 6.2(a), 6.2(b) and 6.2(c) are reasonable in temporal and geographical scope and in all other respects, and (ii) the covenants contained herein have been made in order to induce the Company and Buyer to enter into this Agreement.

(d)                                 Buyer and Sellers intend that the covenants of Sections 6.2(b) and 6.2(c) shall be deemed to be a series of separate covenants, one for each county within the Territory and one for each month of the Restricted Period.

(e)                                  If, at the time of enforcement of Sections 6.2(a), 6.2(b) or 6.2(c) a court shall hold that the duration or scope stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated duration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by Law.

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(f)                                   Each Seller recognizes and affirms that in the event of its or his breach of any provision of Section 6.2(a), 6.2(b) or 6.2(c), money damages would be inadequate and neither the Company nor Buyer would have adequate remedy at law.  Accordingly, each Seller agrees that in the event of a breach or a threatened breach of any of the provisions of Section 6.2(a), 6.2(b) or 6.2(c), the Company and Buyer, in addition and supplementary to other rights and remedies existing in its favor, may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security).  In addition, in the event of a material breach or violation of Section 6.2(a) or Section 6.2(b), the Restricted Period shall be tolled until such breach or violation has ceased.

6.3.                            Further Assurances.  Following the Closing, the Sellers shall execute and deliver such further instruments of conveyance and transfer and take such additional action as Buyer may reasonably request to effect, consummate, confirm or evidence the Transactions, including the contribution to Parent LLC of the Contributed Equity and the transfer to Buyer of the Purchased Equity, and the Sellers shall execute such documents as may be necessary to assist Parent LLC in preserving or perfecting its rights in the Contributed Equity and Buyer in preserving or perfecting its rights in the Purchased Equity and its ability to conduct the business of the Target Companies.

6.4.                            Release.  As a material inducement to Buyer to enter into this Agreement, effective as of the Closing, each Seller agrees not to bring any claim of any nature nor to commence any proceeding of any nature and fully, unconditionally and irrevocably releases and discharges Parent LLC, the Parent, Buyer, the Target Companies and their respective directors, managers, officers, assigns and successors, past and present (collectively, the “Releasees”), with respect to and from any and all claims, demands, rights, Liens, contracts, covenants, proceedings, causes of action, obligations, debts, and Losses of whatever kind or nature in law, equity or otherwise, whether now known or unknown, and whether or not concealed or hidden, all of which such Seller now owns or holds or has at any time owned or held against Releasees, including with respect to any and all payments pursuant to Section 1 of the 2014 Purchase Agreement; provided, however, that nothing in this Section 6.4 will be deemed to constitute a release by such Seller of any right to enforce its rights under this Agreement and the agreements entered into in connection herewith (including the Promissory Notes and the amended employment agreements between SFM and each Seller), the 2014 Purchase Agreement (other than payments due under Section 1 of the 2014 Purchase Agreement) and the agreements entered into in connection therewith (other than that certain letter agreement terminated pursuant to Section 1.4 hereof) or for any accrued compensation and/or employee benefits owed to such Seller in his capacity as an employee of any Target Company that remains unpaid as of the date hereof.  It is the intention of each Seller that such release be effective as a bar to each and every claim, demand and cause of action hereinabove specified.  In furtherance of this intention each Seller hereby expressly waives, effective as of the Closing, any and all rights and benefits conferred upon him or her by the provisions of applicable Law and expressly consents that this release will be given full force and effect according to each and all of its express terms and provisions, including those related to unknown and unsuspected claims, demands and causes of action, if any, as those relating to any other claims, demands and causes of action hereinabove specified, but only to the extent such section is applicable to releases such as this.

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6.5.                            Personal Guarantees.  After the Closing, the Buyer will, and will cause the Target Companies to obtain the release of all personal guarantees made by the Sellers and their Affiliates as set forth on Schedule 6.5 in respect of any indebtedness of the Target Companies.  To the extent that the Buyer and the Target Companies are unable to obtain a full release of such personal guarantees, the Target Companies will indemnify, defend and hold the Sellers and such other Persons harmless from and against all obligations and liabilities incurred by them in respect of any default or other event arising after the Closing under such personal guarantees.

ARTICLE VII
Definitions

For the purposes hereof, the following terms have the meanings set forth below:

“2014 Closing Date” means February 10, 2014.

“2014 Purchase Agreement” has the meaning set forth in the recitals.

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise.  With respect to an individual, “Affiliate” shall also include any member of such individual’s Family Group.  For the avoidance of doubt, in no event shall any Seller be deemed an Affiliate of Buyer, any Target Company, or any direct or indirect equityholder of Buyer.

“Affiliated Group” means any affiliated, consolidated, combined, unitary or other group for Tax purposes.

“Agreement” has the meaning set forth in the preamble.

“Allocation” has the meaning set forth in Section 6.1(b)(ii).

“Basket” has the meaning set forth in Section 5.2(d)(i)(A).

“Business” means, collectively, the businesses conducted by the Target Companies prior to and as of the date hereof.

“Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York are open for the general transaction of business.

“Buyer” has the meaning set forth in the preamble.

“Buyer Indemnified Parties” has the meaning set forth in Section 5.2(a).

“Buyer’s Knowledge” and similar phrases means the actual knowledge of Daniel E. Dosoretz, M.D., Richard R. Lewis, Joseph Biscardi, Norton Travis, Bryan J. Carey, Madlyn Dornaus, Frank English, Kurt Janavitz, Gary Delanois, Constantine Mantz or Daniel Galmarina.

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“Cash Purchase Price” has the meaning set forth in Section 1.2(c).

“Claim” has the meaning set forth in Section 8.17(a)(i).

“Closing” has the meaning set forth in Section 1.2(a).

“Closing Date” has the meaning set forth in Section 1.2(a).

“Code” means the Internal Revenue Code of 1986, as amended.

“Company” has the meaning set forth in the preamble.

“Competing Business” has the meaning set forth in Section 6.2(b).

“Contributed Equity” has the meaning set forth in the recitals.

“Dass” has the meaning set forth in the preamble.

“Employee” has the meaning set forth in Section 6.2(a).

“Employee Benefit Plan” means all “employee benefit plans” (as such term is defined in Section 3(3) of ERISA), each other pension, retirement, profit-sharing, savings, health, welfare, bonus, incentive, commission, equity or equity-based, deferred compensation, severance, separation, retention, employment, change of control, and each other material benefit or compensation plan, program, policy or contract (including, without limitation, any employment, consulting and collective bargaining agreements) maintained, sponsored or contributed to or required to be contributed to by any Target Company, or with respect to which any Target Company has any Liability.

“Environmental Requirements” shall mean all applicable Laws and all contractual obligations concerning public or worker health and safety, pollution or protection of the environment.

“Equity Interest Percentage” has the meaning set forth in the recitals.

“Equity Interests” means capital stock, partnership interests, limited liability company interests or other indicia of equity ownership (including any profits interest) or any kind, and any option, warrant or other right to convert into or otherwise receive any of the foregoing.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Family Group” means, with respect to any natural person, such person’s spouse, siblings, children (whether natural or adopted) and any trust or other entity (including a corporation, partnership or limited liability company) formed solely for the benefit of such person and/or such person’s spouse, siblings and/or children (whether natural or adopted).

“Florida LLC Act” means the Florida Revised Limited Liability Company Act, Florida Statutes Chapter 605, as it may be amended from time to time.

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“Fundamental Representations” has the meaning set forth in Section 5.1.

“GAAP” means United States generally accepted accounting principles consistently applied, as in effect from time to time.

“General Cap” has the meaning set forth in Section 5.2(d)(i)(B).

“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs.  For example, the “Governing Documents” of a corporation would be its certificate of incorporation and bylaws, the “Governing Documents” of a limited partnership would be its certificate of limited partnership and limited partnership agreement and the “Governing Documents” of a limited liability company would be its certificate of formation and operating agreement.

“Government Entity” means individually, and “Government Entities” means collectively, the United States of America or any other nation, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of government, including any court, in each case having jurisdiction over the Target Companies.

“Government Reimbursement Programs” has the meaning set forth in Section 2.8(b).

“GRAT” has the meaning set forth in the preamble.

“Han” has the meaning set forth in the preamble.

“Hazardous Substance” means any substance, material or waste for which Liability or standards of conduct may be imposed pursuant to any Environmental Requirements, including any contaminant, pollutant, hazardous waste, hazardous substance, toxic substance, toxic waste, special waste, regulated medical waste, asbestos and asbestos-containing materials, petroleum and petroleum by-products, radiation and radioactive materials.

“HIPAA” has the meaning set forth in Section 2.8(a).

“Holdings” has the meaning set forth in Section 1.2(b)(ii).

“Indebtedness” means at a particular time, without duplication, (i) any obligations under any indebtedness for borrowed money (including all obligations for principal, interest premiums, penalties, fees, expenses, breakage costs and bank overdrafts thereunder), (ii) any indebtedness evidenced by any note, bond, debenture or other debt security, (iii) any commitment by which a Person assures a creditor against loss (including contingent reimbursement obligations with respect to letters of credit), (iv) any indebtedness pursuant to a guarantee, (v) any indebtedness secured by a Lien on a Person’s assets, (vi) any obligations under capitalized leases or with respect to which a Person is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which obligations a Person assures a creditor against loss, and (vii) all obligations for the deferred and unpaid purchase price of property or services (other than trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice).

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“Indemnitee” has the meaning set forth in Section 5.2(g).

“Indemnitor” has the meaning set forth in Section 5.2(g).

“Intellectual Property Rights” means any and all of the following in any jurisdiction throughout the world: (i) inventions (whether or not patentable or reduced to practice), patents, patent applications and patent disclosures and improvements thereto together with all reissuances, continuations, continuations-in-part, divisionals, revisions, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, trade names, slogans, logos, designs, Internet domain names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof, and  all  goodwill associated with any of the foregoing, and all applications, registrations and renewals in connection therewith; (iii) copyrights and copyrightable works and all applications, registrations and renewals in connection therewith; (iv) computer software (including source code, executable code, data, data bases and related documentation); (v) trade secrets and other confidential information (including, ideas, formulas, compositions, know-how, manufacturing and production processes and techniques, research and development, drawings, specifications, designs, plans, proposals, technical data, financial, business and marketing plans, customer and supplier lists and price and cost information); (vi) all other intellectual property and proprietary rights; and (vii) all copies and tangible embodiments of any of the foregoing (in whatever form or medium).

“Intended Tax Treatment” has the meaning set forth in Section 6.1(b)(i).

“IRS” means the United States Internal Revenue Service.

“Joinder” has the meaning set forth in Section 1.2(d)(i)(C).

“Laws” means all statutes, laws, common law, codes, ordinances, regulations, rules, and other provisions having the force or effect of law, and all orders, judgments, writs, injunctions, acts or decrees of any Government Entity.

“Leased Property” means the real property leased or subleased by any Target Company, in each case, as tenant or sublessee, together with, to the extent leased by any Target Company, all buildings and other structures, facilities or improvements located thereon, all fixtures, systems, equipment and items of personal property attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing.

“Liability” means any liability, payment, debt, obligation, deficiency, Tax, penalty, assessment, fine, claim, cause of action or other loss, damage, fee, cost or expense of any kind or nature whatsoever, whether asserted or unasserted, absolute or contingent, known or unknown, accrued or unaccrued, liquidated or unliquidated, and whether due or to become due and regardless of when asserted.

“Lien” or “Liens” means any mortgage, pledge, security interest, encumbrance, lien (statutory or other), license, or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

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“LLC Agreement” means the Sixth Amended and Restated LLC Agreement of Parent LLC in the form attached as Exhibit C hereto.

“Loss” or “Losses” have the meaning set forth in Section 5.2(a).

“Material Adverse Effect” means any event, change, circumstance, effect or state of facts, individually or in the aggregate with other events, changes, circumstances, effects or state of facts, that has, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, condition (financial or otherwise), operating results of the Target Companies (taken as a whole) or (b) the ability of the Target Companies and Sellers to consummate the Transactions, other than, in the case of clause (a) above, any event, change, circumstance, effect or state of facts that results from (i) any change in general economic conditions in the United States, (ii) any change generally affecting the industry in which the Target Companies operate, (iii) any change in Law, GAAP or the authoritative interpretations thereof, (iv) acts of war, sabotage or terrorism, military actions or the escalation thereof, or (v) any action required by this Agreement; provided that with respect to each of clauses (i) through (iv), only if such event, change, circumstance, effect or state of facts does not have, and would not reasonably be expected to have, a disproportionately adverse effect on the Target Companies as compared to other companies operating in the same industries in which the Target Companies operate.

“Material Contracts” has the meaning set forth in Section 2.3(b).

“Medicaid” has the meaning set forth in Section 2.8(b).

“Medicare” has the meaning set forth in Section 2.8(b).

“Parent” means 21st Century Oncology, Inc., a Delaware corporation.

“Parent LLC” has the meaning set forth in the preamble.

“Patel” has the meaning set forth in the preamble.

“Permits” means any license, permit, authorization, registration, certificate of authority, qualification or similar document or authority that has been or is required to be issued or granted by any Government Entity.

“Permitted Liens” means (a) Liens for Taxes or assessments and similar charges that are not yet due and payable, (b) Liens related to Indebtedness, (c) statutory liens of landlords, carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due, (d) liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, and (e) with respect to Leased Property only, (i) zoning, building and other land use regulations imposed by Government Entities having jurisdiction over the Leased Property which are not violated by the current use or occupancy of the Leased Property or the operation of the Business thereon, and (ii) covenants, conditions, restrictions, easements and other similar matters of record, affecting title to the Leased Property which do not materially impair (x) the value of the parcel of Leased Property to which they pertain or (y) the occupancy or use of the Leased Property

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by any Target Company (as applicable) for the purposes for which it is currently used in connection with such Person’s business.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a Government Entity or any department, agency or political subdivision thereof.

“Proceeding” has the meaning set forth in Section 5.2(g).

“Promissory Note” and “Promissory Notes” have the meanings set forth in Section 1.2(c).

“Purchase Price” has the meaning set forth in Section 1.2(b).

“Purchased Equity” has the meaning set forth in the recitals.

“Releasees” has the meaning set forth in Section 6.4.

“Restricted Period” has the meaning set forth in Section 6.2(a).

“Rollover Equity” has the meaning set forth in Section 1.2(b)(i).

“Seller” and “Sellers” have the meanings set forth in the preamble.

“Seller Indemnified Parties” has the meaning set forth in Section 5.2(c).

“Seller Representative” has the meaning set forth in Section 8.17(a).

“Sellers’ Knowledge” means the actual knowledge of any Seller after due inquiry and investigation (without review of public records and filings).

“SFM” means South Florida Medicine, LLC, a Florida limited liability company.

“SFRO Operating Agreement” means the Amended and Restated Operating Agreement of the Company dated February 10, 2014, as amended, by and among the Company, Buyer and the Sellers.

“SFRO Preferred Units” means “SFRO Preferred Units” as such term is defined in the LLC Agreement.

“Target Company” and “Target Companies” means, individually or collectively, the Company and its Subsidiaries.

“Tax” or “Taxes” means (i)  United States federal, state or local or non-United States taxes, assessments, charges, duties, fees, levies or other similar charges (together with any interest, penalties, and additional amounts imposed with respect thereto) imposed by or payable to any Government Entity, including all income, franchise, profits, capital gains, gross receipts, premium, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, withholding, ad valorem, value added, alternative or add-on

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minimum, environmental, escheat or unclaimed property, customs, social security (or similar), unemployment, disability, registration and other similar taxes, assessments, charges, duties or levies, whether disputed or not, together with all estimated taxes; (ii) any liability for the payment of any amount of a type described in clause (i) arising as a result of being or having been a member of any Affiliated Group; and (iii) any liability for the payment of any amount of a type described in clause (i) or clause (ii) as a transferee or successor, by contract or otherwise.

“Tax Return” means any return, declaration, report, estimate, information report, return statement or filing with respect to Taxes, including any schedule or attachment thereto and including any amendment thereof.

“Territory” means Miami-Dade county, Broward county, Palm Beach county, Martin county and their respective contiguous counties in the State of Florida.

“Third Party Claim” a Claim by a Person who is not a party to this Agreement or an Affiliate thereof.

“Transactions” has the meaning set forth in the recitals.

“Transfer Taxes” has the meaning set forth in Section 6.1(a).

“Tricare” has the meaning set forth in Section 2.8(b).

ARTICLE VIII
Miscellaneous

8.1.                            Fees and Expenses.  Buyer shall pay all costs and expenses incurred by Buyer in connection with the negotiation, preparation and execution of this Agreement and the consummation of the Transactions.

8.2.                            Press Release and Announcements.  No Seller nor any of its Affiliates shall make any public announcement with respect to this Agreement or the Transactions without the prior written consent of Buyer (such consent not to be unreasonably withheld or delayed).  None of Buyer and its Affiliates shall make any public announcement naming any Seller as a recipient of any portion of the Purchase Price without the prior written consent of such Seller.  Notwithstanding the foregoing, any such public announcement may be made if required by applicable Law or a securities exchange rule; provided that the party required to make such public announcement shall, to the extent possible, confer with the other parties concerning the timing and content of such public announcement before the same is made.

8.3.                            Remedies.  Except as expressly provided in this Agreement, any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by Laws.  All such rights and remedies shall be cumulative and non-exclusive, and may be exercised singularly or concurrently.  One or more successive actions may be brought, either in the same action or in separate actions, as often as is deemed advisable, until all of the obligations to such Person are paid and performed in full.

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8.4.                            Consent to Amendments; Waivers.  This Agreement may be amended, or any provision of this Agreement may be waived upon the approval, in a writing, executed by Buyer and the Seller Representative.  No course of dealing between or among the parties hereto shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any such party or such holder under or by reason of this Agreement.

8.5.                            Successors and Assigns.  This Agreement and all covenants and agreements contained herein and rights, interests or obligations hereunder, by or on behalf of any of the parties hereto, shall bind and inure to the benefit of the respective successors and permitted assigns of the parties hereto whether so expressed or not; provided that Buyer and the Company (following the Closing) may assign this Agreement and its rights hereunder without such prior written consent to any of its Affiliates, any Person which provides financing to the Company, and any subsequent purchaser of Buyer, the Company or any of their respective Affiliates (whether by merger, consolidation, sale of stock, sale of assets or otherwise); provided, further, that Buyer shall be entitled to pledge, encumber, hypothecate or grant a Lien in any or all of its rights hereunder.  With respect to any Lien granted or otherwise created by Buyer in its rights hereunder, each Seller agrees that upon such Seller’s receipt of written notice from the beneficiary of such Lien so demanding, any and all payments otherwise payable to Buyer pursuant hereto shall thereafter be payable to, and all rights of Buyer hereunder shall thereafter be exclusively exercisable by, such beneficiary, and any contrary instructions from Buyer shall be disregarded and be of no force or effect.

8.6.                            Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held to be prohibited by, illegal or unenforceable under applicable Law or rule in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

8.7.                            Counterparts.  This Agreement may be executed in two or more counterparts (including by means of telecopied, facsimile or .pdf signature pages), each of which will be deemed an original but all of which will constitute but one instrument.

8.8.                            Descriptive Headings; Interpretation.  The headings and captions used in this Agreement and the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth in this Agreement.  The use of the word “including” herein shall mean “including without limitation.”  Unless otherwise specified herein, accounting terms in this Agreement have the meaning given such terms under GAAP.  All references to “dollars” or “$” will be deemed references to the lawful money of the United States of America.  All computations of interest shall be made on the basis of a year of 365 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable.

8.9.                            Entire Agreement.  This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding among the parties hereto with

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respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way.

8.10.                     No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns and nothing herein expressed or implied shall give or be construed to give any Person, other than the parties hereto and such permitted successors and assigns, any legal or equitable rights hereunder; provided that any Indemnitee shall be a third party beneficiary of this Agreement.

8.11.                     Schedules and Exhibits.  All Schedules and Exhibits attached hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.

8.12.                     Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the Schedules and Exhibits attached hereto shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York; provided, however, that matters with respect to the Target Companies that are subject to the Florida LLC Act will be governed by the Florida LLC Act, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Florida.  In furtherance of the foregoing, the internal law of the State of New York shall control the interpretation and construction of this Agreement (and all Schedules and Exhibits hereto), even though under that jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily apply; provided, however, that the internal laws of State of Florida shall control the interpretation and construction of this Agreement (and all Schedules and Exhibits hereto) with respect to matters with respect to the Target Companies that are subject to the Florida LLC Act.

8.13.                     Waiver of Jury Trial.  TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE) INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.  EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 8.13 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT.  ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

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8.14.                     Jurisdiction.  Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in Miami Dade County, Florida, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly waives any claim of improper venue and any claim that such courts are an inconvenient forum.  Each of the parties hereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to its address set forth in Section 8.15.

8.15.                     Notices.  All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient or when sent by facsimile followed by delivery by reputable overnight courier service, three business days after being sent to recipient by US First Class mail (postage prepaid), or one business day after being sent to the recipient by reputable overnight courier service (charges prepaid).  Such notices, demands and other communications shall be sent to Buyer, Sellers and the Company at the addresses indicated below or to such other address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party.  All notices, demands and other communications hereunder may be given by any other means (including telecopy or electronic mail), but shall not be deemed to have been duly given unless and until it is actually received by the intended recipient.

If to the Seller Representative (on behalf of the Sellers):

Rajiv Patel
2783 Pillsbury Way
Wellington, Florida 33414
Fax:  [          ]
Email:  [          ]

with a copy to (which shall not constitute notice to the Sellers):

McDermott Will & Emery LLP
227 West Monroe Street
Chicago, IL 60606-5096
Attn:  [          ]
Facsimile: [          ]
Email:  [          ]

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If to Buyer, Parent LLC or the Company:

c/o 21st Century Oncology
2270 Colonial Boulevard
Fort Myers, FL 33907
Attn:  President
Facsimile: [          ]
Email: [          ]

with a copy to (which shall not constitute notice to Buyer):

Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn:  [          ]
Facsimile:  [          ]
Email:  [          ]

8.16.                     No Strict Construction.  The parties hereto have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any of the provisions of this Agreement.

8.17.                     Seller Representative.  The parties hereto have agreed that it is desirable to designate Rajiv Patel to act on behalf of the Sellers for certain limited purposes, as specified herein (the “Seller Representative”).

(a)                                 The Seller Representative is appointed, authorized and empowered to act as a representative for the benefit of the each Seller as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Seller in connection with and to facilitate the consummation of the Transactions which shall include the power and authority:

(i)                                     to execute and deliver such waivers and consents in connection with this Agreement and the consummation of the transactions contemplated hereby as Seller Representative, in its sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement;

(ii)                                  as the Seller Representative, to enforce and protect the rights and interests of the Sellers and to enforce and protect the rights and interests of the Seller Representative arising out of or under or in any manner relating to this Agreement and the other agreements contemplated hereby or the transactions provided for herein or therein (including in connection with any and all claims for indemnification brought under ARTICLE V hereof), and to take any and all actions which Seller Representative believes are necessary or appropriate under this Agreement for and on behalf of the Sellers, including asserting or pursuing any claim, action, proceeding or investigation (a “Claim”) against Buyer, defending any Third Party Claim or Claim by any Buyer Indemnified Party,

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consenting to, compromising or settling any such Third Party Claim or Claim, conducting negotiations with Buyer and their respective representatives regarding such Third Party Claim or Claim.  Without limiting the generality of the foregoing, the Seller Representative may (A) assert any claim or institute any action, proceeding or investigation, (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Buyer or any other Person, or by any Government Entity against the Seller Representative and/or any of the Sellers, (C) receive process on behalf of any or all Sellers in any such claim, action, proceeding or investigation and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary, and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation (it being understood that the Seller Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);

(iii)                               to refrain from enforcing any right of the Sellers, Seller Indemnified Parties and/or the Seller Representative arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Seller Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Seller Representative or by the Sellers unless such waiver is in writing signed by the waiving party or by the Seller Representative;

(iv)                              to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Seller Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Transactions, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith; and

(v)                                 making any payments or paying any expenses under or in connection with this Agreement or on behalf of the Sellers.

(b)                                 Buyer may rely upon all actions taken or omitted to be taken by the Seller Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the Sellers, and Buyer shall not have any responsibility for the calculation of any payments to be made to the Sellers according to their Equity Interest Percentages.

(c)                                  The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and shall survive the death, incompetency, bankruptcy or liquidation of any Seller and (ii) shall survive the consummation of the Transactions.

(d)                                 All actions taken by the Seller Representative under this Agreement shall be binding upon all Sellers and their successors as if expressly confirmed and ratified in writing by each of them.  Buyer shall serve notice to, and deal exclusively with, the Seller

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Representative with respect to any and all matters concerning any of the Sellers arising out of or related to this Agreement and all other agreements or instruments contemplated hereby or the transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Seller Representative to have been executed by or on behalf of any of the Sellers as fully binding upon such Seller.  If the Seller Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Sellers, the Sellers shall, within ten (10) days after the occurrence of such event, appoint (by vote of the Sellers holding a majority of the Equity Interest Percentages set forth on Schedule 1.1 attached hereto) a successor representative and, promptly thereafter, shall notify Buyer of the identity of such successor.  Any such successor shall become the “Seller Representative” for purposes of this Agreement and the other agreements and instruments contemplated hereby.  If for any reason there is no Seller Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Seller Representative shall be deemed to refer to the Sellers.  Each Seller agrees that any action taken by the Seller Representative on its behalf pursuant to the terms of this Agreement and the other agreements and instruments contemplated hereby shall be fully binding on them.

(e)                                  Except in cases of willful misconduct or fraud, the Seller Representative will have no liability to Buyer or its successors or assigns with respect to actions taken or omitted to be taken in good faith in its capacity as the Seller Representative and shall be entitled to indemnification and reimbursement from the Sellers (pro rata in accordance with the Equity Interest Percentages set forth on Schedule 1.1 attached hereto) against any loss, liability, fees or expenses arising out of actions taken or omitted to be taken in good faith in its capacity as the Seller Representative.

*     *     *      *     *

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IN WITNESS WHEREOF, the parties hereto have executed this Securities Contribution and Purchase Agreement on the date first written above.

[Signature Page to Securities Contribution and Purchase Agreement]

Exhibit 4.1

THE SECURITIES REPRESENTED HEREBY WERE ORIGINALLY ISSUED ON JULY 2, 2015 AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION THEREFROM UNDER THE ACT, THE RULE AND REGULATIONS THEREUNDER AND APPLICABLE STATE LAWS. ALL INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATED TO OTHER INDEBTEDNESS PURSUANT TO ARTICLE 3 OF THIS NOTE.

21ST CENTURY ONCOLOGY HOLDINGS, INC.

10% SUBORDINATED UNSECURED PIK NOTES DUE 2019

This NOTE (this “Note”) is one of a duly authorized issue of notes of 21st Century Oncology Holdings, Inc., a Delaware corporation (together with any Successor Issuer pursuant to Article 8 of this Note, the “Issuer”), designated as its 10% Subordinated Unsecured PIK Notes Due 2019.

FOR VALUE RECEIVED, the Issuer promises to pay to [          ], the holder hereof (together with its registered assigns, the “Holder”), the principal sum of $[          ] (the “Original Principal Amount”) (subject to any prepayments or adjustments provided for below) on the Maturity Date and to pay interest (each such payment, an “Interest Payment”) on the principal sum outstanding from time to time under this Note, as adjusted as described below (as so adjusted, the “Outstanding Principal Amount”). Interest on the Note shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Issue Date. Interest shall be capitalized in arrears on a quarterly basis on each January 1, April 1, July 1 and October 1, commencing with the first full quarterly period immediately following the Issue Date (each, an “Interest Payment Date”). The interest shall be capitalized and payable at a rate of 10% per annum (the “PIK Interest”) and the amount of such payment shall accrue and, on the applicable Interest Payment Date, be added to the Outstanding Principal Amount hereof for purposes of calculating the Outstanding Principal Amount, which shall be paid in full, in cash on the Maturity Date. Any Outstanding Principal Amount or premium that is owed pursuant to Article II, in each case that is not paid when due shall bear interest, payable on demand, at a rate per annum equal to the otherwise applicable interest rate plus 4% (or, if less, the maximum interest rate then permitted by applicable law), compounded quarterly, from the due date thereof (whether at maturity, upon acceleration or otherwise) until the same is paid in full in cash.

Interest will be computed on the basis of a 365-day year and the actual days elapsed.  Interest Payments will be paid to the Person in whose name this Note is registered on the records of the Issuer regarding registration and transfers of the SFRO Notes (together, the “Notes Register”) on the Business Day prior to the applicable payment date. The Issuer shall maintain the Notes Register at its principal office.

This Note is subject to the following additional provisions:

ARTICLE 1
DEFINITIONS

The following terms shall have the following meanings.

“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person.  “Control” of a Person means the power, directly or indirectly, (i) to vote 10% or more of the Capital Securities (on a fully diluted basis) of such Person having ordinary voting power for the election of directors, managing members or general partners (as applicable); or (ii) to direct or cause the direction of the management and policies of such Person (whether by contract or otherwise).

“Business Day” means any day that is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York, New York.

“Capital Securities” means, with respect to any Person, all shares, membership or other interests, participations, units or other equivalents (however designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or issued after the Issue Date.

“Debt Refinancing” means the Refinancing in full, whether in one transaction or multiple transactions, of all the Issuer’s Senior Indebtedness outstanding as of June 30, 2015.

“EBITDA” shall mean, with respect to any calculation period, consolidated net income (as determined in accordance with generally accepted accounting principles in the United States) before interest, taxes, depreciation and amortization of SFRO (or the SFRO Division), provided:

(a)        there shall be excluded therefrom (i) any extraordinary, unusual or nonrecurring gains (or losses), costs, charges or expenses (including, without limitation, onetime specialist bonuses, asset sales, severance, relocation, transition and other restructuring costs and litigation settlements or losses and non-compete payments), (ii) income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period), (iii) any gains or losses and all fees and expenses or charges relating thereto attributable to the early extinguishment of indebtedness, (iv) the effect of any non-cash items resulting from any amortization, write-up, write-down or write-off of assets (including intangible assets, goodwill and deferred financing costs in connection with any future acquisition, disposition, merger, consolidation or similar transaction or any other non-cash impairment charges resulting from the application of SFAS Nos. 141, 142 or 144 or other accounting pronouncements relating to purchase accounting), and (v) any non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity incentive programs;

(b)        there shall be given pro forma effect for the full calculation period to adjustments to reflect normalized rent expense from any actions actually implemented by SFRO (or the SFRO Division) prior to the end of the relevant calculation period that are supportable and quantifiable by the underlying accounting records of SFRO (or the SFRO Division); and

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(c)         the Issuer shall ensure that, consistent with the two preceding paragraphs, all EBITDA related to or arising from SFRO and its subsidiaries and their business and operations shall be included for purposes of calculating EBITDA regardless of any corporate restructuring or reorganization undertaken by the Issuer, its subsidiaries or SFRO or its subsidiaries.

“EBITDA Milestone” means SFRO (or, if SFRO’s operations are consolidated with 21st Century Oncology, LLC the SFRO Division) has achieved EBITDA for a period of four consecutive fiscal quarters equal to or exceeding $28,000,000.

“EBITDA Milestone Principal Amount” means $[          ] of the Original Principal Amount.

“Governmental Authority” means the government of the United States, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or similar body exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“Integration Milestone” means the successful integration of the business of SFRO into the business of the Issuer through the achievement of all of the requirements of the Integration Work Plan.

“Integration Milestone Principal Amount” means $[          ] of the Original Principal Amount.

“Integration Work Plan” means the description of the key steps necessary for SFRO to fully integrate SFRO with Issuer as described on Exhibit A.

“Issue Date” means July 2, 2015.

“Material Weakness Milestone” means the successful remediation of any and all Material Weaknesses (as defined by the Public Company Accounting Oversight Board Auditing Standard No. 5) at SFRO such that no Material Weakness at SFRO continues to exist, as determined by the independent auditor of the Issuer (or the independent auditor of the Issuer downgrades such Material Weaknesses such that no Material Weaknesses are required to be disclosed in the Issuer’s Annual Report on Form 10-K).  At the request of the Required Noteholders upon their good faith belief that the Material Weakness Milestone has occurred, the Issuer will cause its independent auditor to as promptly as practicable make a determination whether the Material Weaknesses have been successfully remediated or downgraded such that no Material Weaknesses are required to be disclosed in the Issuer’s Annual Report on Form 10-K.

“Material Weakness Milestone Principal Amount” means $[          ] of the Original Principal Amount.

“Maturity Date” means June 30, 2019.

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“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any indebtedness.

“Person” means any natural person, corporation, limited liability company, partnership, joint venture, association, trust or unincorporated organization, Governmental Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.

“Refinance” means refinance, refund, replace,  repay,  extend the maturity for at least two years or materially modify in the aggregate the economic terms, and the term “Refinancing” as used for any purposes herein shall have a correlative meaning.

“Required Noteholders” means, as of any date, the registered holders holding at least a majority of the principal amount of the SFRO Notes outstanding on such date.

“Senior Loan Agreement” means that certain Credit Agreement, dated as of April 30, 2015, among 21st Century Oncology, Inc. (“21C”), as borrower, the Issuer, Morgan Stanley Senior Funding, Inc., as administrative agent, collateral agent, issuing bank and as swingline lender (the “Bank”), the other agents party thereto and the lenders party thereto and each guarantee, security agreement or other agreement or document entered into in connection therewith, in each case, as amended, increased, restated, supplemented, extended, modified, renewed, refunded, restructured, replaced or refinanced in whole or in part from time to time.

“Senior Notes” means, collectively, 21C’s 11.00% Senior Notes due 2023 issued pursuant to that Indenture, dated as of April 30, 2015, as may be amended or supplemented from time to time, among 21C, the Issuer, the other guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), and OnCure Holdings, Inc.’s (“OnCure”) 11.75% Senior Secured Notes due 2017 issued pursuant to that Amended and Restated Indenture, dated as of October 25, 2013, as may be amended or supplemented from time to time, among OnCure, the Issuer, the other guarantors party thereto and the Trustee.

“SFRO” means South Florida Radiation Oncology, LLC, a Florida limited liability company.

“SFRO Division” means the operations of SFRO and its subsidiaries which are integrated with the operations of the Issuer and its other subsidiaries (but, for the avoidance of doubt, excluding the operations of the Issuer and such other subsidiaries) together with any additional operations acquired and added to the Southeast Florida division of the Issuer after the Issue Date.

“SFRO Notes” means those certain 10% Subordinated Unsecured PIK Notes due 2019 originally issued by the Issuer on July 2, 2015, in an aggregate principal amount of $15,000,000, including, for the avoidance of doubt, this Note.

“Subordinated Note Obligations” means all Obligations with respect to this Note, including, without limitation, principal and interest payable pursuant to the terms of this Note (including, without limitation, upon the prepayment thereof), together with and including, without limitation, any amounts received or receivable upon the exercise of rights of rescission or other rights of action (including, without limitation, claims for damages) or otherwise.

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ARTICLE 2
MANDATORY PRE-PAYMENTS AND PREMIUMS

Section 2.01. EBITDA Milestone.

(i)                                     If the EBITDA Milestone occurs within 12 months of the Issue Date, then, within five (5) Business Days following such 12-month anniversary, the Issuer shall pay to the Holder a mandatory pre-payment equal to the sum of: (A) a premium of $[          ], (B) the EBITDA Milestone Principal Amount, (C) an amount equal to the PIK Interest that has accrued and been capitalized on the EBITDA Milestone Principal Amount from the Issue Date up to, but not including, such 12-month anniversary, and (D) an amount equal to any accrued but uncapitalized interest on the EBITDA Milestone Principal Amount from the last Interest Payment Date up to, but not including, such 12-month anniversary. Upon such pre-payment, the Outstanding Principal Amount shall be reduced by the sum of clauses (B) and (C) of this paragraph (i), and the amount of any accrued but uncapitalized interest outstanding on this Note shall be reduced by the amount set forth in clause (D) of this paragraph (i).

(ii)                                  If the EBITDA Milestone does not occur within 12 months of the Issue Date but occurs within 18 months of the Issue Date, then, within five (5) Business Days following such 18-month anniversary, the Issuer shall pay to the Holder a mandatory pre-payment equal to the sum of: (A) a premium of $[          ], (B) the EBITDA Milestone Principal Amount, (C) an amount equal to the PIK Interest that has accrued and been capitalized on the EBITDA Milestone Amount from the Issue Date up to, but not including, such 18-month anniversary, and (D) an amount equal to any accrued but uncapitalized interest on the EBITDA Milestone Principal Amount from the last Interest Payment Date up to, but not including, such 18-month anniversary. Upon such pre-payment, the Outstanding Principal Amount shall be reduced by the sum of clauses (B) and (C) of this paragraph (ii), and the amount of any accrued but uncapitalized interest outstanding on this Note shall be reduced by the amount set forth in clause (D) of this paragraph (ii).

(iii)                               If the EBITDA Milestone does not occur within 18 months of the Issue Date, no mandatory prepayment shall be required to be made with respect to the EBITDA Milestone Amount and there shall be no premium paid related thereto.

Section 2.02. Integration Milestone.

(i)                                     If the Integration Milestone occurs within 12 months of the Issue Date, then, within five (5) Business Days following such 12-month anniversary, the Issuer shall pay to the Holder a mandatory pre-payment equal to the sum of: (A) a premium of $[          ], (B) the Integration Milestone Principal Amount, (C) an amount equal to the PIK Interest that has accrued and been capitalized on the Integration Milestone Principal Amount from the Issue Date up to, but not including, such 12-month anniversary, and (D) an amount equal to any accrued but uncapitalized interest on the Integration Milestone Principal Amount from the last Interest Payment Date up to, but not including, such 12-month anniversary. Upon such pre-payment, the Outstanding Principal Amount shall be reduced by the sum of clauses (B) and (C) of this paragraph (i), and the amount of any accrued but uncapitalized interest outstanding on this Note shall be reduced by the amount set forth in clause (D) of this paragraph (i).

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(ii)                                  If the Integration Milestone does not occur within 12 months of the Issue Date but occurs within 18 months of the Issue Date, then, within five (5) Business Days following such 18-month anniversary, the Issuer shall pay to the Holder a mandatory pre-payment equal to the sum of: (A) a premium of $[          ], (B) the Integration Milestone Principal Amount, (C) an amount equal to the PIK Interest that has accrued and been capitalized on the Integration Milestone Amount from the Issue Date up to, but not including, such 18-month anniversary, and (D) an amount equal to any accrued but uncapitalized interest on the Integration Milestone Principal Amount from the last Interest Payment Date up to, but not including, such 18-month anniversary. Upon such pre-payment, the Outstanding Principal Amount shall be reduced by the sum of clauses (B) and (C) of this paragraph (ii), and the amount of any accrued but uncapitalized interest outstanding on this Note shall be reduced by the amount set forth in clause (D) of this paragraph (ii).

(iii)                               If the Integration Milestone does not occur within 18 months of the Issue Date, no mandatory prepayment shall be required to be made with respect to the Integration Milestone Amount and there shall be no premium paid related thereto.

Section 2.03. Material Weakness Milestone.

(i)                                     If the Material Weakness Milestone occurs within 6 months of the Issue Date, then, within five (5) Business Days following such 6-month anniversary, the Issuer shall pay to the Holder a mandatory pre-payment equal to the sum of: (A) a premium of $[          ], (B) the Material Weakness Milestone Principal Amount, (C) an amount equal to the PIK Interest that has accrued and been capitalized on the Material Weakness Milestone Principal Amount from the Issue Date up to, but not including, such 6-month anniversary, and (D) an amount equal to any accrued but uncapitalized interest on the Material Weakness Milestone Principal Amount from the last Interest Payment Date up to, but not including, such 6-month anniversary. Upon such pre-payment, the Outstanding Principal Amount shall be reduced by the sum of clauses (B) and (C) of this paragraph (i), and the amount of any accrued but uncapitalized interest outstanding on this Note shall be reduced by the amount set forth in clause (D) of this paragraph (i).

(ii)                                  If the Material Weakness Milestone does not occur within 6 months of the Issue Date but occurs within 18 months of the Issue Date, then, within five (5) Business Days following such 18-month anniversary, the Issuer shall pay to the Holder a mandatory pre-payment equal to the sum of: (A) a premium of $[          ], (B) the Material Weakness Milestone Principal Amount, (C) an amount equal to the PIK Interest that has accrued and been capitalized on the Material Weakness Milestone Amount from the Issue Date up to, but not including, such 18-month anniversary, and (D) an amount equal to any accrued but uncapitalized interest on the Material Weakness Milestone Principal Amount from the last Interest Payment Date up to, but not including, such 18-month anniversary. Upon such pre-payment, the Outstanding Principal Amount shall be reduced by the sum of clauses (B) and (C) of this paragraph (ii), and the amount of any accrued but uncapitalized interest outstanding on this Note shall be reduced by the amount set forth in clause (D) of this paragraph (ii).

(iii)                               If the Material Weakness Milestone does not occur within 18 months of the Issue Date, no mandatory prepayment shall be required to be made with respect to the Material Weakness Milestone Amount and there shall be no premium paid related thereto.

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ARTICLE 3
SUBORDINATION

Section 3.01.  Extent of Subordination.  The Subordinated Note Obligations is subordinate and junior to all the Issuer’s indebtedness under the Senior Loan Agreement and Senior Notes (“Senior Indebtedness”). This Note is subordinate to Senior Indebtedness to the extent and in the manner set forth below:

(i)                                     So long as there is no default existing under the Senior Loan Agreement or Senior Notes that has not been duly cured by the Issuer or duly waived by the Bank or Trustee, as applicable, the Issuer shall pay and be permitted to pay Outstanding Principal Amount as set forth in this Note; provided that no such payment shall cause a default under the Senior Indebtedness.

(ii)                                  If any payment is made on this Note at a time when the Holder is not entitled to receive payments on this Note as a result of a default existing under the Senior Loan Agreement or Senior Notes that has not been duly cured by the Issuer or duly waived by the Bank or Trustee, as applicable, such payment or distribution shall be delivered directly to the holders of Senior Indebtedness for application against such Senior Indebtedness, unless and until all principal and interest on such Senior Indebtedness has been paid in full, or such payment has been provided for; provided that:

(A)                               no delivery shall be made of stock or obligations that are issued by the Issuer or any corporation succeeding to the Issuer or acquiring its property and assets, pursuant to reorganization proceedings or dissolution or liquidation proceedings or upon any merger, consolidation, sale, lease, transfer or other disposal, if such stock or obligations are subordinate and junior at least to the extent provided hereunder to the payment of Senior Indebtedness to the extent then outstanding and to the payment of any stock or obligations which are issued in exchange for Senior Indebtedness to the extent then outstanding, and

(B)                               if any holder of Senior Indebtedness receives any payment or distribution which, except for the provisions of this Article 3 would have been payable or deliverable with respect to this Note, the Holder shall (after all principal and interest owing on such Senior Indebtedness has been paid in full) be subrogated to the rights of the holders of such Senior Indebtedness against the Issuer.

Section 3.02.  Liquidation, Winding Up, etc.  Upon any dissolution, winding up, liquidation or reorganization of the Issuer, whether any in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Issuer or otherwise, the holders of all Senior Indebtedness shall be entitled to receive payment in full of the principal thereof, the interest due thereon and any premium or other payment obligation with respect thereto before the Holder is entitled to receive any payments with respect to this Note.  The consolidation of the Issuer with, or the merger of the Issuer into, another entity shall not be deemed a dissolution, winding up, liquidation or reorganization of the Issuer for the purposes of this Article 3 if such entity, as a part of such consolidation or merger, succeeds to the Issuer’s property and business and assumes the Issuer’s obligations (including the Senior Indebtedness and the SFRO Notes).

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Section 3.03.  Rights not Subordinated.  The provisions of this Article 3 are for the purpose of defining the relative rights of the holders of Senior Indebtedness on the one hand and the Holder on the other hand.  Nothing herein shall impair the Issuer’s obligation to the Holder to pay to such Holder in accordance with the terms of this Note. No provision of this Article 3 shall be construed to prevent the Holder from exercising all remedies otherwise available under this Note or under applicable law, subject to the rights of the holder or holders of the Senior Indebtedness as set forth above to receive cash, assets, stock or obligations otherwise payable or deliverable to the Holder.

ARTICLE 4
TRANSFERS

The rights and obligations of the Issuer and the Holder shall be binding upon and benefit the successors and permitted assigns and transferees of the Issuer and the Holder; provided that in no event shall any Holder sell, exchange, assign, pledge, hypothecate, transfer or otherwise dispose (each, a “Transfer”) of this Note or any interest therein without the Issuer’s prior written consent, in its sole and absolute discretion. The Holder agrees that in connection with any Transfer permitted pursuant to the terms hereof, the Holder will cause such permitted assignee, transferee or pledgee to provide a representation that it is entering into such Transfer for its own account and not with a view to, or for sale in connection with, any subsequent distribution. Each permitted assignee, transferee and pledgee shall have all of the rights of the Holder under this Note. The Issuer agrees that in connection with any Transfer permitted pursuant to the terms hereof, the Issuer shall cause such Transfer to be reflected in the Notes Register, and all principal, interest and other amounts which are then, and thereafter become, due under this Note shall be paid to such permitted assignee, transferee or pledgee at the place and in the manner set forth pursuant to Section 13.01. Prior to due presentment for Transfer of this Note, the Issuer may treat the Person in whose name this Note is duly registered on the Notes Register as the owner hereof for the purpose of receiving payment as herein provided and all other purposes, whether or not this Note be overdue, and the Issuer shall not be affected by notice to the contrary.

ARTICLE 5
REPRESENTATIONS AND WARRANTIES

Section 5.01.                          The Issuer is duly organized, validly existing and in good standing under the General Corporation Law of the State of Delaware. The Issuer possesses the corporate power and authority necessary to execute and deliver this Note and perform its obligations hereunder.

Section 5.02.                          This Note is the valid and binding obligation of the Issuer, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally or by general principles of equity.

Section 5.03.                          The execution, delivery and performance by Issuer of this Note and the fulfillment of and compliance with the terms hereof by the Issuer, do not and shall not (i) conflict

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with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under (whether with or without the passage of time, the giving of notice or both), (iii) give any third party the right to modify, terminate or accelerate any obligation under, (iv) result in a violation of, or (v) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any third party or Government Authority (except for the Securities and Exchange Commission (the “SEC”)) pursuant to, (A) the certificate of incorporation and bylaws of the Issuer, (B) any law to which the Issuer is subject, or (C) any material agreement, instrument, order, judgment or decree to which the Issuer is subject, except, in the case of subclause (B) and (C) above, for any conflict, breach, default, lien, modification, termination, obligation, violation or failure that would not be material to the Issuer and its subsidiaries in the aggregate.

ARTICLE 6
COVENANTS

Section 6.01.                          The Issuer will promptly deliver to the Holder copies of any material written amendment, restatement or modification of any Senior Indebtedness; provided, however, that the Issuer shall be deemed to have satisfied this requirement by furnishing or filing any such agreement, amendment, restatement or modification with the SEC through EDGAR.

Section 6.02                             The Issuer will cause 21C to maintain at all times under any covenant restricting dividends or distributions to the Issuer contained in the Senior Loan Agreement, the indenture governing the Senior Notes or any other applicable agreement governing such Senior Indebtedness an amount available, in the aggregate, for Restricted Payments or Permitted Investments (or any other term applicable to restrictions on dividends or distributions to, or investments in, the Issuer) which may then be used by 21C to make a dividend or distribution to the Issuer equal to at least $19,500,000, which amount shall be reduced by the amount of the aggregate Original Principal Amount of the SFRO Notes that has been repaid to the holders thereof; provided such available amount may be subject to restrictions based solely on the existence of a default under the Issuer’s Senior Indebtedness or compliance with applicable corporate laws governing dividends generally.  The Issuer will cause 21C to make a dividend or distribution to the Issuer to make payments due hereunder when due to the extent the making of such dividend or distribution would not result in a default under the Issuer’s Senior Indebtedness or a violation of applicable corporate laws governing dividends generally.

ARTICLE 7
EVENTS OF DEFAULT

Section 7.01                             For purposes of this Note, an Event of Default shall be deemed to have occurred if:

(i)             the Issuer shall default in the payment of principal (including the EBITDA Milestone Principal Amount and the Material Weakness Milestone Principal Amount), interest or premium of this Note on the date when due, whether at maturity, by acceleration or otherwise, continued for 15 days;

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(ii)          the Issuer makes a general assignment for the benefit of creditors; or an order, judgment or decree is entered adjudicating the Issuer bankrupt or insolvent; or any order for relief with respect to the Issuer is entered under the Federal Bankruptcy Code; or the Issuer petitions or applies to any tribunal for the appointment of a custodian, trustee, receiver or liquidator of the Issuer of any substantial part of its assets, or commences any proceeding relating to the Issuer under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction; or any such petition or application is filed, or any such proceeding is commenced, against the Issuer and either (A) the Issuer by any overt act indicates its approval thereof, consent thereto or acquiescence therein or (B) such petition, application or proceeding is not dismissed within 60 days;

(iii)       the Issuer shall default in the payment or performance of any Senior Indebtedness and pursuant to such default the holder of such Senior Indebtedness has accelerated the maturity of such Senior Indebtedness and (A) initiated a proceeding demanding immediate payment of such Senior Indebtedness or (B) commenced foreclosure on the collateral securing such Senior Indebtedness; or

(iv)      the Issuer fails to comply, for 30 days after receipt of written notice from the Required Noteholders, with the covenants described in Section 6.01 or Section 6.02.

Section 7.02.                          If an Event of Default pursuant to Section 7.01 above has occurred and is continuing, subject to the provisions of Article 3 hereof, the Required Noteholders may demand immediate payment of all or any portion of the Outstanding Principal Amount of, and uncapitalized interest on, this Note.  If the Required Noteholders demand immediate payment of all or any portion of this Note, (x) the Issuer shall immediately pay to the Holder the entire Outstanding Principal Amount of this Note subject to such demand and any and all accrued but uncapitalized interest thereon, and (y) the Holder shall be entitled to exercise any other rights which the Holder may have been afforded under any contract or agreement at any time and any other rights which the Holder may have pursuant to applicable law. If an Event of Default described in clause (ii) of Section 7.01 occurs, the Outstanding Principal Amount of and accrued but uncapitalized interest on this Note then outstanding will become immediately due and payable without any declaration or other act on the part of the Holder or any other party.

ARTICLE 8
SUCCESSOR ISSUER; MERGER

If the Issuer consolidates with, merges into, conveys, transfers or leases, in one transaction or a series of transactions, all or substantially all its assets to any Person, the resulting, surviving or transferee Person in any such transaction (“Successor Issuer”) will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Note, but the predecessor Issuer in the case of a conveyance, transfer or lease of all its assets or substantially all its assets will be released from its obligations under this Note, including without limitation the obligation to pay the principal of and interest on this Note.

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ARTICLE 9
REPLACEMENT NOTES

In the event that the Holder notifies the Issuer that this Note has been lost, stolen or destroyed, a replacement Note identical in all respects to the original Note (except for Outstanding Principal Amount, if different than that shown on the original Note) shall be issued by the Issuer to the Holder; provided that the Holder executes and delivers to the Issuer an agreement reasonably satisfactory to the Issuer to indemnify the Issuer from any loss incurred by it in connection with such lost, stolen or destroyed Note.

ARTICLE 10
SAVINGS CLAUSE

In case any provision of this Note is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Note will not in any way be affected or impaired thereby.

ARTICLE 11
AMENDMENTS AND WAIVER

Except as otherwise expressly provided herein, the provisions of this Note may be amended and the Issuer may take any action herein prohibited, or omit to perform any act herein required to be performed by it, if, and only if, the Issuer has obtained the written consent of the Required Noteholders.

ARTICLE 12
NOTICES

Unless otherwise provided herein, any notices, consents, waivers or other communications required or permitted to be given under the terms of this Note must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally, (ii) upon transmission, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or (iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:

If to the Issuer:

21st Century Oncology Holdings, Inc.

2270 Colonial Boulevard

Fort Myers, FL 33907

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Facsimile: [          ]

Attention: [          ]

With a copy to (which shall not constitute notice to the Issuer):

Hall, Render, Killian, Heath & Lyman, PLLC

Columbia Center, Suite 1200

201 West Big Beaver Road

Troy, MI 48084

Facsimile: [          ]

Attention: [          ]

and to:

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Facsimile: [          ]

Attention: [          ]

If to the Holder, to its address and facsimile number appearing in the Notes Register which, in the case of the initial Holder, shall be:

[          ]

[          ]

[          ]

Fax:  [          ]

With a copy to (which shall not constitute notice to the initial Holder):

McDermott Will & Emery LLP
227 West Monroe Street
Chicago, IL 60606-5096
Attn:  [          ]
Facsimile: [          ]

Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

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ARTICLE 13
PAYMENT; MISCELLANEOUS

Section 13.01.  Manner of Payment.  The Issuer shall make all payments due on this Note in immediately available funds to a bank account of the Holder specified in writing by the Holder to the Issuer.

Section 13.02.  Voluntary Pre-Payments.  The Issuer may, at any time, and from time to time, after 18 months have elapsed since the Issue Date, without premium or penalty, prepay all or a portion of the Outstanding Principal Amount and any accrued but uncapitalized interest. The Issuer shall send written notice of its election to make a prepayment on this Note to the Holder at least one Business Day prior to the date of prepayment.

Section 13.03  Debt Refinancing and Mandatory Pre-Payments. Following a Debt Refinancing, but in no event before 18 months have elapsed since the Issue Date, the Required Noteholders may make a written demand for the Issuer to prepay the Outstanding Principal Amount and any accrued but uncapitalized interest. Within ten (10) Business Days following receipt of such written demand, the Issuer shall pay to the Holder the Outstanding Principal Amount and any accrued but uncapitalized interest.

Section 13.04.  Miscellaneous.  Whenever the sense of this Note requires, words in the singular shall be deemed to include the plural and words in the plural shall be deemed to include the singular. Paragraph headings are for convenience only and shall not affect the meaning of this document.

Section 13.05.   EBITDA Determination.

(a)        The Issuer and the Holder will attempt to resolve any dispute whether the EBITDA Milestone has occurred in good faith for a period of fifteen (15) Business Days after the Issuer has objected to written notice by the Required Noteholders of the Required Noteholders’ belief that the EBITDA Milestone has occurred. If an agreement as to such disputed matter is not reached during such fifteen (15) Business Day period, the parties will, as promptly as possible, work in good faith to retain the dispute resolution group of Deloitte & Touche LLP or, if Deloitte & Touche LLP is unable to or unwilling to serve in such capacity, the dispute resolution group of an independent auditing firm of national recognition mutually selected by the Issuer and the Required Noteholders (the “Independent Auditor”) to resolve such dispute.  Within ten (10) days after such retention date, the Issuer and the Required Noteholders will each submit to the Independent Auditor a statement specifying such party’s calculation of EBITDA together with supporting documentation as it deems appropriate, with a copy of such submission simultaneously delivered to the other party.  Within ten (10) days after a party’s receipt of the other party’s submission to the Independent Auditor, such party may submit a response together with any supporting documentation to the Independent Auditor.  Unless requested by the Independent Auditor in writing, no party hereto may present any additional information or arguments to the Independent Auditor, either orally or in writing. The Issuer and the Required Noteholders shall instruct the Independent Auditor to resolve such dispute (i) as soon as practicable, but in any event within thirty (30) days following the initial submission of the unresolved items and (ii) in accordance with the definitions of EBITDA and EBITDA Milestone

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(without any independent analysis into the appropriateness of such definitions). The Independent Auditor will prepare and deliver a written report relating only to the unresolved disputed item(s) to the Issuer and the Holder and will promptly submit a resolution of such unresolved disputed item(s) within thirty (30) days after the dispute is submitted to the Independent Auditor. The Independent Auditor shall (i) limit its review to disputed matters specifically set forth in the parties’ submissions to the Independent Auditor and (ii) shall not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party.  Absent fraud and except to the extent of any mathematical error, the Independent Auditor’s determination of such unresolved disputes will be final, non-appealable, conclusive and binding on the parties for purposes of this Note (regardless of whether the Holder was one of the Required Noteholders as set forth in this Section 13.05(a)).  Other than the costs and expenses of the Independent Auditor, each party shall bear its own costs and expenses in connection with the resolution of such dispute by the Independent Auditor. The costs and expenses of the Independent Auditor will be allocated to and paid by the Issuer, on the one hand, and the Holder, on the other, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Independent Auditor.

(b)        For eighteen (18) months after the Issue Date, in connection with the determination whether the EBITDA Milestone has occurred, the Issuer will provide the Holder with reasonable access, during regular business hours, to the books and records, and the personnel and outside accountants of the Issuer and its subsidiaries (including SFRO and its subsidiaries), for the limited purpose of determining whether the EBITDA Milestone has occurred.

ARTICLE 14
CHOICE OF LAW AND VENUE; WAIVER OF JURY TRIAL

This Note shall be governed by and construed in accordance with the law of the State of New York. The Issuer and, by accepting this Note, the Holder hereby irrevocably consent to the jurisdiction of the United States District Court for the Southern District of New York or any New York State court sitting in New York City (and of the appropriate appellate courts therefrom) in any suit, action or proceeding seeking to enforce any provision of, or based on any suit, action or proceeding arising out of or in connection with, this Note or the transactions contemplated hereby and irrevocably waive, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in this Article 11 shall be deemed effective service of process on such party.  EACH OF THE ISSUER AND, BY ACCEPTING THIS NOTE, THE HOLDER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS NOTE.

*   *   *   *   *   *   *   *

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed by its officer thereunto duly authorized as of the date first written above.

Signature Page to 10% Subordinated Unsecured PIK Note

Exhibit 10.1

(EXECUTION COPY)

21ST CENTURY ONCOLOGY INVESTMENTS, LLC

A Delaware Limited Liability Company

SIXTH AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

Effective as of July 2, 2015

THE COMPANY INTERESTS REPRESENTED BY THIS SIXTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS.  SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.

THE COMPANY INTERESTS REPRESENTED BY THIS SIXTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN THE SECOND AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT, DATED AS OF SEPTEMBER 26, 2014, BY AND AMONG THE COMPANY AND CERTAIN INVESTORS, AS AMENDED OR MODIFIED FROM TIME TO TIME, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH INTERESTS UNTIL SUCH TRANSFER IS IN COMPLIANCE WITH SUCH SECURITYHOLDERS AGREEMENT.  A COPY OF THE SECOND AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER OF SUCH INTERESTS UPON WRITTEN REQUEST AND WITHOUT CHARGE.

TABLE OF CONTENTS

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SCHEDULES AND EXHIBITS

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SIXTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
21ST CENTURY ONCOLOGY INVESTMENTS, LLC
A Delaware Limited Liability Company

This SIXTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of 21st Century Oncology Investments, LLC (f/k/a Radiation Therapy Investments LLC), a Delaware limited liability company (the “Company”), dated and effective as of July 2, 2015 (this “Agreement”), is approved and adopted by the Board of Managers of the Company on the date hereof with consent of the Vestar Majority Holders and Members in accordance with Section 9.5 of the Prior Agreement (as defined below).  Any reference in this Agreement to Vestar or any other Member shall include such Member’s Successors in Interest, to the extent such Successors in Interest have become Substituted Members in accordance with the provisions of this Agreement.

WHEREAS, the Company was formed as a limited liability company pursuant to the Act by the filing of its Certificate of Formation with the Secretary of State of the State of Delaware on October 9, 2007;

WHEREAS, the Company executed and delivered that certain Limited Liability Company Agreement of the Company on October 10, 2007;

WHEREAS, on February 21, 2008, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 19, 2007, by and among 21st Century Oncology, Inc. (f/k/a Radiation Therapy Services, Inc.), a Delaware corporation (“Opco”), 21st Century Oncology Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (formerly known as Radiation Therapy Services Holdings, Inc. “Holdings”), RTS MergerCo, Inc., a Florida corporation and wholly-owned subsidiary of Holdings (“Merger Sub”), and the Company (solely for purpose of Section 7.2 thereof), (i) Merger Sub merged with and into Opco, with Opco surviving as a direct wholly-owned Subsidiary of Radiation Therapy Services Holdings, Inc. (the “Parent”), and (ii) certain Management Members either contributed common stock of Opco to the Company or invested cash in the Company, in each case, in exchange for Preferred Units and Class A Units of the Company pursuant to certain Management Stock Contribution and Unit Subscription Agreements (the “Contribution Agreements”);

WHEREAS, the Company and its Members entered into a Second Amended and Restated Limited Liability Company Agreement on March 25, 2008;

WHEREAS, the Company and its Members entered into a Third Amended and Restated Limited Liability Company Agreement on June 11, 2012;

WHEREAS, the Company and its Members entered into a Fourth Amended and Restated Limited Liability Company Agreement on December 9, 2013 (as amended by the First Amendment (as defined below), the “Fourth Agreement”);

WHEREAS, the Board of Managers of the Company, with the consent of the Vestar Majority Holders, approved and adopted Amendment No. 1 to the Fourth Agreement on July 28, 2014 (the “First Amendment”);

WHEREAS, the Company and its Members entered into a Fifth Amended and Restated Limited Liability Company Agreement on September 26, 2014 (the “Prior Agreement”) in connection with the issuance of Series A Convertible Preferred Stock by Holdings (the “Convertible Preferred Stock”); and

WHEREAS, the Vestar Majority Holders and Majority Preferred Stockholders have consented to the amendment of the Prior Agreement as provided herein.

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto, each intending to be legally bound, agree that the Prior Agreement is hereby amended and restated in its entirety as follows:

ARTICLE I
DEFINITIONS

Section 1.1            Definitions.

Unless the context otherwise requires, the following terms shall have the following meanings for purposes of this Agreement:

“30% Rule” means those restrictions set out in section 13 of the Canada Pension Plan Investment Board Regulations, SOR/99-190, that prohibit CPPIB from investing directly or indirectly in the securities of a corporation to which are attached more than 30% of the votes that may be cast to elect the directors of that corporation.

“AAA” has the meaning set forth in Section 9.10(a).

“Act” means the Delaware Limited Liability Company Act, 6 Del. L. Sections 18-101 et seq., as it may be amended from time to time, and any successor to the Act.

“Additional Member” means any Person that has been admitted to the Company as a Member pursuant to Section 7.4 by virtue of having received its Membership Interest from the Company and not from any other Member or Assignee.

“Adjusted Capital Account Deficit” means, with respect to any Person’s Capital Account as of the end of any taxable year, the amount by which the balance in such Capital Account is less than zero.  For this purpose, such Capital Account balance shall be (i) reduced for any items described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6), and (ii) increased for any amount such Person is obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or Regulations Sections 1.704-2(g)(1) and 1.704-2(i) (relating to minimum gain).

“Affiliate” when used with reference to another Person means any Person (other than the Company), directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, such other Person.  In addition, Affiliates of a Member shall include all partners, officers, directors, employees and former partners, officers and employees of, all consultants or advisors to, and all other Persons who directly or indirectly receive compensation from, such Member.

“Agreement” has the meaning set forth in the preamble hereto.

“Assignee” means any Transferee to which a Member or another Assignee has Transferred all or any portion of its interest in the Company in accordance with the terms of this Agreement, but that is not a Member.

“Assumed Tax Rate” means, for any taxable year, the highest marginal effective rate of federal, state and local income tax applicable to an individual resident in New York, New York (or, if higher,

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a corporation doing business in New York, New York), taking account of any differences in rates applicable to ordinary income, dividends and capital gains and any allowable deductions in respect of such state and local taxes in computing a Member’s liability for federal income tax; provided that the Assumed Tax Rate for ordinary income initially shall be set at 45 percent, with the right of the Vestar Majority Holders to request, by written notice to the Company, a recomputation of the Assumed Tax Rate, which recomputation shall remain in effect until such time as the Vestar Majority Holders request a subsequent recomputation.

“Bankruptcy” means, with respect to any Person, the occurrence of any of the following events: (i) the filing of an application by such Person for, or a consent to, the appointment of a trustee or custodian of such Person’s assets; (ii) the filing by such Person of a voluntary petition in Bankruptcy or the seeking of relief under Title 11 of the United States Code, as now constituted or hereafter amended, or the filing of a pleading in any court of record admitting in writing such Person’s inability to pay its debts as they become due; (iii) the failure of such Person to pay its debts as such debts become due; (iv) the making by such Person of a general assignment for the benefit of creditors; (v) the filing by such Person of an answer admitting the material allegations of, or such Person’s consenting to, or defaulting in answering, a Bankruptcy petition filed against him in any Bankruptcy proceeding or petition seeking relief under Title 11 of the United States Code, as now constituted or as hereafter amended; or (vi) the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating such Person a bankrupt or insolvent or for relief in respect of such Person or appointing a trustee or custodian of such Person’s assets and the continuance of such order, judgment or decree unstayed and in effect for a period of 60 consecutive calendar days.

“Board of Managers” means the Board of Managers established pursuant to Section 6.2(a).

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required to close.

“Capital Account” has the meaning set forth in Section 3.4(a).

“Capital Contributions” means the amount of any cash or cash equivalents, or the Fair Market Value of other property, that a Member contributes (or is deemed by the Company to contribute) to the Company with respect to any Unit or other Equity Securities issued pursuant to Article III (net of liabilities assumed by the Company or to which such property is subject).

“CEO” means the Chief Executive Officer of the Company.

“Certificate” has the meaning set forth in Section 2.1.

“Certificate of Designations” has the meaning set forth in the Securityholders Agreement.

“CFO” means the Chief Financial Officer of the Company.

“Change of Control” has the meaning set forth in the Securityholders Agreement.

“Class A Members” means the Members holding Class A Units.

“Class A Unitholders” means the Unitholders holding an Economic Interest in Class A Units.

“Class A Units” means the Units having the rights and obligations specified with respect to Class A Units in this Agreement.

“Class G Unitholders” means the Unitholders holding an Economic Interest in Class G Units.

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“Class G Units” means the Units having the rights and obligations specified with respect to Class G Units in this Agreement.

“Class M Unitholders” means the Unitholders holding an Economic Interest in Class M Units.

“Class M Units” means the Units having the rights and obligations specified with respect to Class M Units in this Agreement.

“Class MEP Fraction” means, as of any date of determination, the lesser of (A) one and (B) a fraction, the numerator of which is the number of Class MEP Units outstanding at the date of any such determination and the denominator of which is the number of Class MEP Units authorized at the date of any such determination, as each of the numerator and denominator may be adjusted in the event of a recapitalization, split, dividend or other reclassification affecting the Class MEP Units.

“Class MEP Unitholders” means the Unitholders holding an Economic Interest in Class MEP Units.

“Class MEP Units” means the Units having the rights and obligations specified with respect to Class MEP Units in this Agreement.

“Class N Unitholders” means the Unitholders holding an Economic Interest in Class N Units.

“Class N Units” means the Units having the rights and obligations specified with respect to Class N Units in this Agreement.

“Class O Unitholders” means the Unitholders holding an Economic Interest in Class O Units.

“Class O Units” means the Units having the rights and obligations specified with respect to Class O Units in this Agreement.

“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, or any successor statute.  Any reference herein to a particular provision of the Code shall mean, where appropriate, the corresponding provision in any successor statute.

“Common Stock” has the meaning set forth in the Securityholders Agreement.

“Company” has the meaning set forth in the preamble hereto.

“Company Minimum Gain” has the meaning set forth for the term “partnership minimum gain” in Regulations Section 1.704-2(d).

“Company Sale” shall mean the dissolution of the Company in accordance with this Agreement or the consummation of a transaction, whether in a single transaction or in a series of related transactions that are consummated contemporaneously (or consummated pursuant to contemporaneous agreements), with any other Person or group of related Persons (other than Vestar) on an arm’s-length basis, pursuant to which such Person or group of related Persons (i) acquires (whether by merger, stock purchase, recapitalization, reorganization, redemption, issuance of capital stock or otherwise) more than 50 percent of (A) the Units of the Company or (B) the total number of shares of Opco or Parent’s common stock outstanding (in each case assuming that all Equity Securities convertible into or exercisable for the Units of the Company or for shares of common stock of Opco or Parent have been so converted or exercised), or (ii) acquires assets

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constituting all or substantially all of the assets of the Company’s Subsidiaries on a consolidated basis; provided that in no event shall a Company Sale be deemed to include any transaction effected for the purpose of (x) changing, directly or indirectly, the form of organization or the organizational structure of the Company or any of its Subsidiaries, (y) contributing Equity Securities to entities controlled by the Company or (z) issuing the Convertible Preferred Stock, or (iii) any Company Sale as defined in the Certificate of Designations.

“Compensation Committee” means the compensation committee of the Board of Managers, if any.  For the avoidance of doubt, if no Compensation Committee has been formed by the Board of Managers (or if the Compensation Committee has been dissolved by the Board of Managers), then all actions and decisions permitted or required to be taken by the Compensation Committee hereunder shall be taken by the Board of Managers.

“Control” means, when used with reference to any Person, the power to direct the management or Policies of such Person, directly or indirectly, by or through stock or other equity ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or other understanding (written or oral); the terms “controlling” and “controlled” shall have meanings correlative to the foregoing.

“Contribution Agreements” has the meaning set forth in the recitals hereof.

“Conversion” has the meaning set forth in Section 7.6(e).

“Convertible Preferred Stock” has the meaning set forth in the recitals hereof.

“Convertible Preferred Stockholders” has the meaning set forth in the Securityholders Agreement.

“CPPIB” means the Canada Pension Plan Investment Board established under the Canada Pension Plan Investment Board Act, S.C. 1997, c. 40.

“CPPIB Entity” means CPPIB and any Subsidiary thereof, as that term is defined in the Canada Pension Plan Investment Board Act.

“Default Event” has the meaning set forth in the Securityholders Agreement.

“Depreciation” means, for each Fiscal Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, then Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, then Depreciation shall be calculated with reference to such beginning Gross Asset Value using any reasonable method selected by the Board of Managers.

“Distributable Assets” means, with respect to any fiscal period, all cash receipts of the Company (including from any operating, investing and financing activities) and, if distribution thereof is determined to be necessary or desirable by a majority of the Board of Managers, other assets of the Company from any and all sources, reduced by cash operating expenses, contributions of capital to Subsidiaries of the Company and payments (if any) required to be made in connection with any loan to the Company, including

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any reserve for contingencies or escrow required, in each case, as is determined in Good Faith by the Board of Managers.

“Economic Interest” means a Member’s or Assignee’s share of the Company’s net profits, net losses and distributions pursuant to this Agreement and the Act, but shall not include any right to participate in the management or affairs of the Company, including the right to vote in the election of Managers, vote on, consent to or otherwise participate in any decision of the Members or Managers, or any right to receive information concerning the business and affairs of the Company, in each case, except as expressly otherwise provided in this Agreement or required by the Act.

“Equity Securities” means, as applicable, (i) any capital stock, membership interests or other share capital, (ii) any securities directly or indirectly convertible into or exchangeable for any capital stock, membership interests or other share capital or containing any profit participation features, (iii) any rights or options directly or indirectly to subscribe for or to purchase any capital stock, membership interests, other share capital or securities containing any profit participation features or to subscribe for or to purchase any securities directly or indirectly convertible into or exchangeable for any capital stock, membership interests, other share capital or securities containing any profit participation features, (iv) any share appreciation rights, phantom share rights or other similar rights, or (v) any Equity Securities issued or issuable with respect to the securities referred to in clauses (i) through (iv) above in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization.

“Executive Committee” has the meaning set forth in Section 6.1(c).

“Exempt Employee Transfer” has the meaning set forth for such term in the Securityholders Agreement.

“Exempt Individual Transfer” has the meaning set forth for such term in the Securityholders Agreement.

“Exempt NYLIM Transfer” has the meaning set forth for such term in the Securityholders Agreement.

“Exempt TCW Transfer” has the meaning set forth for such term in the Securityholders Agreement.

“Fair Market Value” means, with respect to any asset or securities, the fair market value for such assets or securities as between a willing buyer and a willing seller in an arm’s length transaction occurring on the date of valuation, taking into account all relevant factors determinative of value, as is determined in Good Faith by the Board of Managers, and subject to the approval of the Vestar Majority Holders.

“First Amendment” has the meaning set forth in the preamble hereto.

“Fiscal Quarter” means each fiscal quarter of the Company and its Subsidiaries, ending on the last day of each of March, June, September and December of any Fiscal Year.

“Fiscal Year” means the fiscal year of the Company and its Subsidiaries, ending on December 31 of each calendar year.

“Floor Amount” means, as to each class of Incentive Units, the amount that would be distributable to the Unitholders with respect to each such class of Incentive Units pursuant to Section 4.1 in a hypothetical transaction in which the Company sold all of its assets for Fair Market Value and distributed the

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proceeds therefrom in liquidation of the Company pursuant to Article VII (as determined immediately prior to the issuance of such Incentive Units and all other Incentive Units of the same class that were issued as part of the same issuance).  The Floor Amount for each Class MEP Unit issued on June 11, 2012 is equal to zero.

“Fourth Agreement” has the meaning set forth in the recitals hereof.

“Fund Indemnitors” has the meaning set forth in Section 6.13.

“GAAP” means accounting principles generally accepted in the United States of America, consistently applied and maintained throughout the applicable periods.

“Good Faith” shall mean a Person having acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to a criminal proceeding, having had no reasonable cause to believe such Person’s conduct was unlawful.

“Governmental Entity” means the United States of America or any other nation, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of government, including any court, in each case, having jurisdiction over the Company or any of its Subsidiaries or any of the property or other assets of the Company or any of its Subsidiaries.

“Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(i)            The initial Gross Asset Value of any asset contributed by a Unitholder to the Company shall be the gross Fair Market Value of such asset on the date of the contribution.

(ii)           The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross Fair Market Values as of the following times:

(A)        the acquisition of an additional interest in the Company after February 21, 2008 by a new or existing Unitholder in exchange for more than a de minimis Capital Contribution, if the Board of Managers reasonably determines that such adjustment is necessary or appropriate to reflect the relative Economic Interests of the Unitholders in the Company;

(B)        the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing or a new Member acting in a partner capacity or in anticipation of becoming a partner;

(C)        the distribution by the Company to a Unitholder of more than a de minimis amount of Company property as consideration for an interest in the Company, if the Board of Managers reasonably determines that such adjustment is necessary or appropriate to reflect the relative Economic Interests of the Unitholders in the Company;

(D)        the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); and

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(E)         such other times as the Board of Managers shall reasonably determine to be necessary or advisable in order to comply with Regulations promulgated under Subchapter K of Chapter 1 of the Code.

(iii)          The Gross Asset Value of any Company asset distributed to a Unitholder shall be the gross Fair Market Value of such asset on the date of distribution.

(iv)          The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Section 734(b) or Section 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent that the Board of Managers determine that an adjustment pursuant to subparagraph (ii) of this definition of Gross Asset Value is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv).

(v)           With respect to any asset that has a Gross Asset Value that differs from its adjusted tax basis, Gross Asset Value shall be adjusted by the amount of Depreciation rather than any other depreciation, amortization or other cost recovery method.

“Group Entity” means the Company, Holdings and each of their respective subsidiaries.

“Holdings” has the meaning set forth in the preamble hereto.

“HSR Act” has the meaning set forth in Section 7.2(f).

“Income” means individual items of Company income and gain determined in accordance with the definitions of Net Income and Net Loss.

“Incentive Units” means, as applicable, the Class G Units, the Class M Units, the Class MEP Units, the Class N Units and the Class O Units, and any other class of Units the Company authorizes after the date hereof that are intended to constitute a “profits interest” in the Company within the meaning of Revenue Procedure 93-27, 1993-2 C.B. 343, or any successor Internal Revenue Service or Treasury Department regulation or other pronouncement applicable at the date of issuance of such Incentive Units, as the case may be.

“Initial Issuance Date” means February 21, 2008.

“IPO Consideration” has the meaning set forth in Section 7.6(b).

“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), any sale of receivables with recourse against the Company or any of its Subsidiaries, any filing or agreement to file a financing statement as a debtor under the Uniform Commercial Code or any similar statute other than to reflect ownership by a third party of property leased to the Company or any of its Subsidiaries under a lease that is not in the nature of a conditional sale or title retention agreement.

“Loss” means individual items of Company loss and deduction determined in accordance with the definitions of Net Income and Net Loss.

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“Majority Preferred Stockholders” has the meaning set forth in the Securityholders Agreement.

“Management Grant Agreements” means each executive grant agreement between the Company and a Management Member granting Incentive Units.

“Management Member” means any Member that is an employee of the Company or any of its Subsidiaries.

“Manager” has the meaning set forth in Section 6.2(a).

“Member” means Vestar, the other Persons listed on Schedule B attached hereto from time to time and each other Person who is hereafter admitted as a Member in accordance with the terms of this Agreement and the Act.  A Person shall cease to be a Member when such Person ceases to hold any Units.  The Members shall constitute the “members” (as such term is defined in the Act) of the Company.  Except as otherwise set forth herein or in the Act, the Members shall constitute a single class or group of members of the Company for all purposes of the Act and this Agreement.

“Member Minimum Gain” means minimum gain attributable to Member Nonrecourse Debt determined in accordance with Regulations Section 1.704-2(i).

“Member Nonrecourse Debt” has the meaning set forth for the term “partner nonrecourse debt” in Regulations Section 1.704-2 (b)(4).

“Member Nonrecourse Deduction” has the meaning set forth for the term “partner nonrecourse deduction” in Regulations Section 1.704-2(i)(2).

“Membership Interest” means, with respect to each Member, such Member’s Economic Interest and rights as a Member.

“Merger Agreement” has the meaning set forth in the recitals hereof.

“Merger Sub” has the meaning set forth in the preamble hereto.

“Net Income” or “Net Loss” means, for each Fiscal Year or other period, an amount equal to the Company’s taxable income or loss for such Fiscal Year or other period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in such taxable income or loss), with the following adjustments:

(i)            any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be added to such taxable income or loss;

(ii)           any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2) (B) of the Code expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be subtracted from such taxable income or loss;

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(iii)          in the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) or (iii) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain (if the adjustment increases the Gross Asset Value of the asset) or loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset for purposes of computing Net Income or Net Loss;

(iv)          gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(v)           in lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, Depreciation shall be taken into account for such Fiscal Year or other period;

(vi)          to the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) or 743(b) of the Code is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Unitholder’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Income or Net Loss; and

(vii)         notwithstanding any other provision of this definition of Net Income or Net Loss, any items that are specially allocated pursuant to Section 5.2 shall not be taken into account in computing Net Income or Net Loss.  The amounts of the items of Income or Loss available to be specially allocated pursuant to Section 5.2 shall be determined by applying rules analogous to those set forth in this definition of Net Income or Net Loss.

“Notice” has the meaning set forth in Section 3.3(c).

“Officer” means each Person designated as an officer of the Company pursuant to and in accordance with the provisions of Section 6.8, subject to any resolution of the Board of Managers appointing such Person as an officer or relating to such appointment.

“Opco” has the meaning set forth in the recitals hereof.

“Other Business” has the meaning set forth in Section 6.2(b)(iii).

“Parent” has the meaning set forth in the recitals hereof.

“Person” means an individual, a partnership (including a limited partnership), a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or other entity or a Governmental Entity.

“Preferred Member” means the Members holding Preferred Units.

“Preferred Unitholders” means the Unitholders holding an Economic Interest in Preferred Units.

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“Preferred Units” means the Units having the rights and obligations specified with respect to Preferred Units in this Agreement.

“Prior Agreement” has the meaning set forth in the recitals hereof.

“Proceeding” has the meaning set forth in Section 6.13.

“Public Offering” has the meaning set forth for such term in the Securityholders Agreement.

“Qualified IPO” has the meaning set forth in the Securityholders Agreement.

“Qualified Merger” has the meaning set forth in the Securityholders Agreement.

“Recapitalization” has the meaning set forth in Section 7.6(a).

“Regulations” means the regulations, including temporary regulations, promulgated by the United States Treasury Department under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“Regulatory Allocations” has the meaning set forth in Section 5.2(e).

“Securities” means any debt securities or Equity Securities of any issuer, including common and preferred stock and interests in limited liability companies (including warrants, rights, put and call options and other options relating thereto or any combination thereof), notes, bonds, debentures, trust receipts and other obligations, instruments or evidences of indebtedness, other property or interests commonly regarded as securities, interests in real property, whether improved or unimproved, interests in oil and gas properties and mineral properties, short-term investments commonly regarded as money market investments, bank deposits and interests in personal property of all kinds, whether tangible or intangible.

“Securityholders Agreement” means that certain Second Amended and Restated Securityholders Agreement, dated as of September 26, 2014, as may be amended from time to time.

“SFRO Holdings Stock” means the stock received from Holdings for the contribution of the SFRO Preferred Units.

“SFRO Preferred Unitholders” means the Unitholders holding an Economic Interest in SFRO Preferred Units.

“SFRO Preferred Units” means the Units having the rights and obligations specified with respect to SFRO Preferred Units in this Agreement.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a

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majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other business entity.  For purposes hereof, references to a “Subsidiary” of any Person shall be given effect only at such times that such Person has one or more Subsidiaries and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.

“Substituted Member” means any Person that has been admitted to the Company as a Member pursuant to Section 7.4 by virtue of such Person receiving all or a portion of a Membership Interest from a Member or its Assignee and not from the Company.

“Successor in Interest” means any (i) trustee, custodian, receiver or other Person acting in any Bankruptcy or reorganization proceeding with respect to, (ii) assignee for the benefit of the creditors of, (iii) trustee or receiver, or current or former officer, director or partner, or other fiduciary acting for or with respect to the dissolution, liquidation or termination of, or (iv) other executor, administrator, committee, legal representative or other successor or assign of, any Unitholder, whether by operation of law or otherwise.

“Tax Distribution” has the meaning set forth in Section 4.4.

“Tax Matters Member” has the meaning set forth in Section 8.4(d).

“Transfer” means any sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or other direct or indirect disposition or encumbrance of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law).  The terms “Transferee,” “Transferor,” “Transferred,” and other forms of the word “Transfer” shall have the correlative meanings.

“Unit” has the meaning set forth in Section 3.1(a).

“Unitholder” means a Member or Assignee that holds an Economic Interest in any of the Units.

“Unreturned Class A Capital” means, with respect to each Class A Unitholder, the excess, if any, of (i) such Unitholder’s aggregate Capital Contributions made in exchange for or on account of its Class A Units, over (ii) the aggregate amount of all distributions made to such Unitholder pursuant to Section 4.1(f)(i) and Section 4.1(g)(ii).

“Unreturned Class MEP Capital” means, with respect to each Class MEP Unitholder, the excess, if any, of (i) such Unitholder’s aggregate Capital Contributions made in exchange for or on account of its Class MEP Units, over (ii) the aggregate amount of all distributions made to such Unitholder pursuant to Section 4.1(h)(ii).

“Unreturned Preferred Capital” means, with respect to each Preferred Unitholder, the excess, if any, of (i) such Unitholder’s aggregate Capital Contributions made in exchange for or on account of its Preferred Units, over (ii) the aggregate amount of all distributions made to such Unitholder pursuant to or in accordance with Section 4.1(b), Section 4.1(c)(i) and Section 4.1(d)(i).

“Vestar” means Vestar Capital Partners V-A, L.P., a Cayman Islands exempted limited partnership, Vestar Executive V, L.P., a Cayman Islands exempted limited partnership, Vestar Holdings V, L.P., a Cayman Islands exempted limited partnership, Vestar V and Vestar/RTS.

“Vestar Group” means, collectively, Vestar V, Vestar/RTS and their respective Affiliates.

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“Vestar Group Majority” means the holders of a majority of the Units then held by members of the Vestar Group.

“Vestar Majority Holders” means, at any time, the Members holding a majority of the Units then held by the Vestar Unitholders.

“Vestar/RTS” means Vestar/Radiation Therapy Investments, LLC, a Delaware limited liability company.

“Vestar Unitholders” means the Unitholders holding an Economic Interest in any Units initially issued to Vestar.

“Vestar V” means Vestar Capital Partners V, L.P., a Cayman Islands exempted limited partnership.

“Vested Class MEP Units” means Class MEP Units owned by a Unitholder that have vested pursuant to the terms and conditions of the applicable Management Grant Agreement.

Section 1.2            Terms Generally.  In this Agreement, unless otherwise specified or where the context otherwise requires:

(a)           the headings of particular provisions of this Agreement are inserted for convenience only and will not be construed as a part of this Agreement or serve as a limitation or expansion on the scope of any term or provision of this Agreement;

(b)           words importing any gender shall include other genders;

(c)           words importing the singular only shall include the plural and vice versa;

(d)           the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”;

(e)           the words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement;

(f)            references to “Articles,” “Exhibits,” “Sections” or “Schedules” shall be to Articles, Exhibits, Sections or Schedules of or to this Agreement;

(g)           references to any Person include the successors and permitted assigns of such Person;

(h)           the use of the words “or,” “either” and “any” shall not be exclusive;

(i)            wherever a conflict exists between this Agreement and any other agreement (except for the Securityholders Agreement), this Agreement shall control but solely to the extent of such conflict;

(j)            wherever a conflict exists between this Agreement and the Securityholders Agreement, the Securityholders Agreement shall control but solely to the extent of such conflict.

(k)           references to “$” or “dollars” means the lawful currency of the United States of America;

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(l)            references to any agreement, contract or schedule, unless otherwise stated, are to such agreement, contract or schedule as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; and

(m)          the parties hereto have participated jointly in the negotiation and drafting of this Agreement; accordingly, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provisions of this Agreement.

ARTICLE II
GENERAL PROVISIONS

Section 2.1            Formation.  The Company was formed as a Delaware limited liability company on October 9, 2007 by the execution and filing of a Certificate of Formation (the “Certificate”) by an authorized person under and pursuant to the Act.  The Members agree to continue the Company as a limited liability company under the Act, upon the terms and subject to the conditions set forth in this Agreement.  The rights, powers, duties, obligations and liabilities of the Members shall be determined pursuant to the Act and this Agreement.  To the extent that the rights, powers, duties, obligations and liabilities of any Member are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control.

Section 2.2            Name.  The name of the Company is “21st Century Oncology Investments, LLC,” and all Company business shall be conducted in that name or in such other names that comply with applicable law as the Board of Managers may select from time to time.  The Board of Managers may change the name of the Company at any time and from time to time.  Prompt notification of any such change shall be given to all Members.

Section 2.3            Term.  The term of the Company commenced on the date the Certificate was filed with the office of the Secretary of State of the State of Delaware and shall continue in existence perpetually until termination or dissolution in accordance with the provisions of Section 7.2.

Section 2.4            Purpose; Powers.

(a)           General Powers.  The nature of the business or purposes to be conducted or promoted by the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act.  The Company may engage in any and all activities necessary, desirable or incidental to the accomplishment of the foregoing.  Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by law to a limited liability company organized under the laws of the State of Delaware.

(b)           Company Action.  Subject to the provisions of this Agreement and except as prohibited by applicable law, (i) the Company may, with the approval of the Board of Managers, enter into and perform any and all documents, agreements and instruments, all without any further act, vote or approval of any Member and (ii) the Board of Managers may authorize any Person (including any Member or Officer) to enter into and perform any document on behalf of the Company.

(c)           Merger.  Subject to the provisions of this Agreement and the Securityholders Agreement, the Company may, with the approval of the Board of Managers and without the need for any further act, vote or approval of any Member, merge with, or consolidate into, another limited liability company (organized under the laws of Delaware or any other state), a corporation (organized under the laws of Delaware or any other state) or other business entity (as defined in Section 18-209(a) of the Act), regardless of whether the Company is the survivor of such merger or consolidation.

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Section 2.5            Foreign Qualification.  Prior to the Company’s conducting business in any jurisdiction other than the State of Delaware, the Board of Managers shall cause the Company to comply, to the extent procedures are available and those matters are reasonably within the control of the Officers, with all requirements necessary to qualify the Company as a foreign limited liability company in that jurisdiction.

Section 2.6            Registered Office; Registered Agent; Principal Office; Other Offices.  The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Board of Managers may designate from time to time in the manner provided by law.  The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Board of Managers may designate from time to time in the manner provided by law.  The principal office of the Company shall be at such place as the Board of Managers may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain records at such place.  The Company may have such other offices as the Board of Managers may designate from time to time.

Section 2.7            No State-Law Partnership.  The Unitholders intend that the Company shall not be a partnership (including a limited partnership) or joint venture, and that no Unitholder, Manager or Officer shall be a partner or joint venturer of any other Unitholder, Manager or Officer by virtue of this Agreement, for any purposes other than as is set forth in the last sentence of this Section 2.7, and this Agreement shall not be construed to the contrary.  The Unitholders intend that the Company shall be treated as a partnership for federal and, if applicable, state or local income tax purposes, and each Unitholder and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.

ARTICLE III
CAPITALIZATION; REDEMPTION RIGHTS

Section 3.1            Units; Initial Capitalization; Schedules.

(a)           Units; Initial Capitalization.  Each Member’s interest in the Company, including such Member’s interest, if any, in the capital, income, gain, loss, deduction and expense of the Company and the right to vote, if any, on certain Company matters as provided in this Agreement shall be represented by units of limited liability company interest (each a “Unit”).  The Company shall have eight authorized classes of Units, designated SFRO Preferred Units, Preferred Units, Class A Units, Class G Units, Class M Units, Class MEP Units, Class N Units and Class O Units, with 100 SFRO Preferred Units, 546,182.27 Preferred Units, 10,360,448.07 Class A Units, 10 Class G Units, 100,000 Class M Units, 1,000,000 Class MEP Units, 10 Class N Units and 100,000 Class O Units authorized for issuance.  On the date hereof, the issued and outstanding Units consist of 100 SFRO Preferred Units, 543,258.20 Preferred Units, 10,308,594.21 Class A Units, 10 Class G Units, 100,000 Class M Units, 910,821.42 Class MEP Units, 10 Class N Units and 100,000 Class O Units.  The ownership by a Unitholder of Units shall entitle such Unitholder to allocations of profits and losses and other items and distributions of cash and other property as is set forth in Article IV and Article V.  The Company may not issue any fractional Units.

(b)           Schedule of Units; Schedule of Members.  The aggregate number of Units of each class and the aggregate amount of cash Capital Contributions that have been made by the Members and the Fair Market Value of any property other than cash contributed by the Members with respect to the Units (including, if applicable, a description and the amount of any liability assumed by the Company or to which contributed property is subject) shall be set forth on Schedule A attached hereto.  The Fair Market Value of any property contributed by any Management Member with respect to any Units issued on the Initial Issuance Date shall be equal to the amounts set forth in such Management Member’s Contribution Agreement as the consideration for the issuance of the relevant Units.  The name and address of each Member shall be set forth

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on Schedule B attached hereto.  Schedules A and B shall remain strictly confidential and shall only be disclosed by the Company to Vestar and the CEO.

Section 3.2            Authorization and Issuance of Additional Units.  Subject to the provisions of Section 6.10, the Board of Managers shall have the right to cause the Company to issue and/or create and issue at any time after the date hereof, and for such amount and form of consideration as the Board of Managers may determine, additional Units or other Equity Securities of the Company (including issuing additional Preferred Units and Incentive Units or creating other classes or series of Units or other Equity Securities having such powers, designations, preferences and rights as may be determined by the Board of Managers).  The Board of Managers shall have the power to make such amendments to this Agreement in order to provide for such powers, designations, preferences and rights as the Board of Managers in its discretion deems necessary or appropriate to give effect to such additional authorization or issuance; provided that any such amendment shall not reasonably be expected to have a material and adverse effect on any Unitholder, in its capacity as such, that would be borne disproportionately by such Unitholder relative to other Unitholders holding Units of the same class under this Agreement (unless such Unitholder consents in writing thereto).  Any Units that are forfeited by, or repurchased by the Company from, any Person pursuant to the provisions of the applicable agreement between such Person and the Company shall be deemed to have been acquired by the Company and may be re-issued at such time and upon such terms and subject to such conditions as the Board of Managers or the Compensation Committee determines; provided, that Incentive Units may only be re-issued to employees, officers, directors or other service providers of or to the Company and its Subsidiaries.

Section 3.3            Authorization and Issuance of the Incentive Units; Service Providers.

(a)           Authorization and Issuance of Incentive Units.  Subject to Section 6.10(b), Incentive Units are authorized and reserved for issuance to employees, officers, directors and other service providers of or to the Company and its Subsidiaries, and the Board of Managers or the Compensation Committee from time to time may issue such Units and establish such vesting, forfeiture and repurchase criteria, and such Floor Amount in connection with their issuance as the Board of Managers or the Compensation Committee in its discretion determines (and as may be set forth in the applicable Management Grant Agreement).

(b)           Profits Interests.  Each Person receiving Incentive Units shall make a timely election under Section 83(b) of the Code with respect to such Units upon their issuance, in a manner reasonably prescribed by the Company.  The Company and each Person receiving Incentive Units hereby acknowledges and agrees that each Person’s Incentive Units, as the case may be, and the rights and privileges associated with such Units, collectively are intended to constitute a “profits interest” in the Company within the meaning of Revenue Procedure 93-27, 1993-2 C.B. 343, or any successor Internal Revenue Service or Treasury Department regulation or other pronouncement applicable at the date of issuance of such Incentive Units, as the case may be.  For so long as Revenue Procedure 2001-43, 2001-2 C.B. 343, is effective, the Company and each Person who receives Incentive Units, as the case may be, hereby agrees (i) that all such Persons will be treated as Unitholders and as partners for federal income tax purposes immediately upon issuance of such Units and (ii) to comply with the provisions of Revenue Procedure 2001-43, and neither the Company nor any such Person shall perform any act or take any position inconsistent with the application of Revenue Procedure 2001-43.

(c)           Authorization of Safe Harbor Election.  By executing this Agreement, each Member authorizes and directs the Company to elect to have the “safe harbor” described in the proposed Revenue Procedure set forth in Internal Revenue Service Notice 2005-43, 2005-24 I.R.B. 1221 (the “Notice”), apply to any interest in the Company Transferred to a service provider by the Company on or after the effective date of such Revenue Procedure in connection with services provided to the Company (and, to the extent that then-applicable guidance permits, in connection with services provided to any Subsidiary).  For purposes of making such safe harbor election, the Tax Matters Member is hereby designated as the “partner who has responsibility for federal income tax reporting” by the Company and, accordingly, for execution of a “safe harbor election”

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in accordance with Section 3.03(1) of the Notice.  The Company and each Member hereby agree to comply with all requirements of the safe harbor described in the Notice, including the requirement that each Member shall prepare and file all federal income tax returns reporting the income tax effects of each safe harbor partnership interest issued by the Company in a manner consistent with the requirements of the Notice.

(d)           Amendment by Tax Matters Member.  Each Member authorizes the Tax Matters Member to amend this Section 3.3 to the extent necessary to achieve substantially the same tax treatment with respect to any profits interest in the Company Transferred to a service provider by the Company in connection with services provided to the Company (and, to the extent that then applicable guidance permits, in connection with services provided to any Subsidiary) as is set forth in, as applicable, Revenue Procedure 93-27, Revenue Procedure 2001-43 or Section 4 of the Notice (e.g., to reflect changes from the rules set forth in the Notice in subsequent Internal Revenue Service or Treasury Department guidance), provided that such amendment is not materially adverse to any Member (as compared with the after-tax consequences that would result if the provisions of the Notice applied to all profits interests in the Company Transferred to a service provider by the Company in connection with services provided to the Company or any of its Subsidiaries).

Section 3.4            Capital Accounts.

(a)           The Company shall maintain a separate capital account for each Unitholder according to the rules of Regulations Section 1.704-1(b)(2)(iv) (each a “Capital Account”).  The Capital Account of each Unitholder shall be credited initially with an amount equal to such Unitholder’s cash contributions and the Fair Market Value of other property contributed to the Company by the Unitholder (net of any liabilities securing such contributed property that the Company is considered to assume or take subject to).

(b)           The Capital Account of each Unitholder shall (i) be credited with all Income allocated to such Unitholder pursuant to Section 5.1 and Section 5.2, and with the amount equal to such Unitholder’s cash contributions and the Fair Market Value of other property contributed to the Company by the Unitholder (net of any liabilities securing such contributed property that the Company is considered to assume or take subject to) and (ii) be debited with all Loss allocated to such Unitholder pursuant to Section 5.1 or Section 5.2, and with the amount of cash and the Gross Asset Value of any other property (net of liabilities assumed by such Unitholder and liabilities to which such property is subject) distributed by the Company to such Unitholder.

(c)           The Company may, upon the occurrence of the events specified in Regulation Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts of the Unitholders in accordance with the rules of such Regulation and Regulation Section 1.704-1(b)(2) (iv)(g) to reflect a revaluation of Company property.

Section 3.5            Negative Capital Accounts.  No Unitholder shall be required to pay to any other Unitholder or the Company any deficit or negative balance that may exist from time to time in such Unitholder’s Capital Account (including upon and after dissolution of the Company).

Section 3.6            No Withdrawal.  No Person shall be entitled to withdraw any part of such Person’s Capital Contributions or Capital Account or to receive any distribution from the Company, except as expressly provided herein.

Section 3.7            Loans From Unitholders.  Loans by Unitholders to the Company shall not be considered Capital Contributions.  If any Unitholder shall loan funds to the Company, then the making of such loans shall not result in any increase in the Capital Account balance of such Unitholder.  The amount of any such loans shall

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be a debt of the Company to such Unitholder and shall be payable or collectible in accordance with the terms and conditions upon which such loans are made.

Section 3.8            No Right of Partition.  No Unitholder shall have the right to seek or obtain partition by court decree or operation of law of any property of the Company or any of its Subsidiaries or the right to own or use particular or individual assets of the Company or any of its Subsidiaries, or, except as expressly contemplated by this Agreement, be entitled to distributions of specific assets of the Company or any of its Subsidiaries.

Section 3.9            Non-Certification of Units; Legend; Units Are Securities.

(a)           Units shall be issued in non-certificated form; provided that the Board of Managers may cause the Company to issue certificates to a Member representing the Units held by such Member.  If any Unit certificate is issued, then such certificate shall bear a legend as is set forth in Section 9.2 of the Securityholders Agreement and also substantially in the following form:

This certificate evidences a [SFRO Preferred] [Preferred] [Class [A][G][M][MEP][N][O] Unit representing an interest in 21st Century Oncology Investments, LLC and shall be a security within the meaning of Article 8 of the Uniform Commercial Code.

The interest in 21st Century Oncology Investments, LLC represented by this certificate is subject to restrictions on transfer set forth in (i) the [Then Effective] Amended and Restated Limited Liability Company Agreement of 21st Century Oncology Investments, LLC, dated as of [Applicable Date], by and among 21st Century Oncology Investments, LLC and each of the members from time to time party thereto, as the same may be amended from time to time and the (ii) the Amended and Restated Securityholders Agreement of 21st Century Oncology Investments, LLC dated as of March 25, 2008, by and among 21st Century Oncology Investments, LLC and some or all of the members from time to time party thereto, as the same may be amended from time to time.

(b)           The Company hereby irrevocably elects that all Units shall be “securities” governed by Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware or analogous provisions in the Uniform Commercial Code in effect in any other jurisdiction.  This Section 3.9(b) shall not be amended without the prior written consent of all of the Members, and any purported amendment to this Section 3.9(b) in violation of the foregoing shall be null and void.

ARTICLE IV
DISTRIBUTIONS

Section 4.1            Distributions; Priority.  Distributable Assets will be distributed at such times as are determined by the Board of Managers, subject to Section 4.4, in the order and priority set forth below:

(a)           First, until such time as there have been $19,000,000 in aggregate distributions pursuant to this clause (a), 100% to the SFRO Preferred Unitholders, pro rata in accordance with the respective number of SFRO Preferred Units held by each such Unitholder immediately prior to such distribution.

(b)           Second, $240,779,400 to the Preferred Unitholders pro rata in accordance with each such Unitholder’s aggregate Unreturned Preferred Capital.

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(c)           Third, until such time as the Class M Unitholders have received aggregate distributions pursuant to this Section 4.1(c) in the amount of $17,258,360: (i) 91.28% to the Preferred Unitholders, pro rata in accordance with each such Unitholder’s aggregate Unreturned Preferred Capital, (ii) 1.72% to the Class G Unitholders, pro rata in accordance with the respective number of Class G Units held by each such Unitholder immediately prior to such distribution, and (iii) 7% to the Class M Unitholders, pro rata in accordance with the respective number of Class M Units held by each such Unitholder immediately prior to such distribution.

(d)           Fourth, until such time as each Preferred Unitholder’s Unreturned Preferred Capital has been reduced to zero, (i) 89.28% to the Preferred Unitholders, pro rata in accordance with each such Unitholder’s aggregate Unreturned Preferred Capital, (ii) 1.72% to the Class G Unitholders, pro rata in accordance with the respective number of Class G Units held by each such Unitholder immediately prior to such distribution, and (iii) 9% to the Class O Unitholders, pro rata in accordance with the respective number of Class O Units held by each such Unitholder immediately prior to such distribution.

(e)           Fifth, if any Class N Units remain outstanding at the time of such distribution, $3,500,000 to the Class N Unitholders, pro rata in accordance with the respective number of Class N Units held by each such Unitholder immediately prior to such distribution.

(f)            Sixth, until such time as the Class O Unitholders have received aggregate distributions pursuant to this Section 4.1(f) and Section 4.1(d) in the amount of $13,500,000, (i) 89.28% to the Class A Unitholders, pro rata in accordance with each such Unitholder’s Unreturned Class A Capital, (ii) 1.72% to the Class G Unitholders, pro rata in accordance with the respective number of Class G Units held by each such Unitholder immediately prior to such distribution, and (iii) 9% to the Class O Unitholders, pro rata in accordance with the respective number of Class O Units held by each such Unitholder immediately prior to such distribution.

(g)           Seventh, until such time as each Class A Unitholder’s Unreturned Class A Capital has been reduced to zero, (i) 1.72% to the Class G Unitholders, pro rata in accordance with the respective number of Class G Units held by each such Unitholder immediately prior to such distribution, and (ii) 98.28% to the Class A Unitholders, pro rata in accordance with each such Unitholder’s Unreturned Class A Capital.

(h)           Eighth, until such time as each Class MEP Unitholder’s Unreturned Class MEP Capital has been reduced to zero, (i) 1.72% to the Class G Unitholders, pro rata in accordance with the respective number of Class G Units held by each such Unitholder immediately prior to such distribution, and (ii) 98.28% to the Class MEP Unitholders pro rata in accordance with each such Unitholder’s Unreturned Class MEP Capital.

(i)            Ninth, the remainder to the Class A Unitholders, Class G Unitholders and Vested Class MEP Unitholders, divided as follows:

(i)            86.28% to the Class A Unitholders pro rata in accordance with the aggregate number of Class A Units held by each such Unitholder immediately prior to such distribution;

(ii)           1.72% to the Class G Unitholders, pro rata in accordance with the respective number of Class G Units held by each such Unitholder immediately prior to such distribution; and

(iii)          12% to, (A) the Vested Class MEP Unitholders in a percentage equal to the product of (x) 12% multiplied by (y) the Class MEP Fraction, to the Vested Class MEP Unitholders, pro rata in accordance with the number of Vested Class MEP Units held by each

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such Unitholder immediately prior to such distribution, and (B) the remainder of such 12% to the Class A Unitholders, pro rata in accordance with the number of Class A Units held by each such Unitholder immediately prior to such distribution; provided, however, that with respect to clause (A) of this Section 4.1(i)(iii), any Vested Class MEP Unit shall share in distributions pursuant to this Section 4.1(i)(iii) only from and after the point at which the aggregate amount of distributions to the Unitholders pursuant to this Section 4.1(i) after the date of issuance of the Vested Class MEP Unit is equal to the Floor Amount for such Vested Class MEP Unit and any amounts not distributed to the holders of such Vested Class MEP Units by reason of the Floor Amounts shall be distributed pursuant to clause (B) of this Section 4.1(i)(iii).

Section 4.2            Priority over Form of Consideration.  Notwithstanding any other provision in this Agreement, if the Company makes a distribution pursuant to Section 4.1 that includes more than one kind of asset (e.g., cash, equity or debt securities or any combination thereof), then the assets available for distribution shall be distributed ratably among all Unitholders entitled to participate in such distribution; provided that, to the extent cash is included in such assets, such cash shall first be distributed to the Preferred Unitholders if they so elect by vote of holders of a majority of the Preferred Units.

Section 4.3            Successors.  For purposes of determining the amount of distributions under Section 4.1, each Unitholder shall be treated as having made the Capital Contributions and as having received the distributions made to or received by its predecessors with respect to any of such Unitholder’s Units.

Section 4.4            Tax Distributions.  Subject to the Act and to any restrictions contained in any agreement to which the Company is bound and notwithstanding the provisions of Section 4.1, no later than the tenth day of each April, June and September of any calendar year and January of the following calendar year, the Company shall, to the extent of available cash of the Company, make a distribution in cash (each, a “Tax Distribution”) to each Unitholder in an amount equal to the excess of (a) the product of (i) the cumulative taxable income allocated by the Company to the Unitholder through the end of the month immediately preceding the distribution date, in excess of the cumulative taxable loss allocated by the Company to such Unitholder for that period, to the extent that such taxable loss would be available (without regard to any other Tax item of the Unitholder) to offset such taxable income, in each case based upon (x) the information returns filed by the Company, as amended or adjusted on or prior to the applicable date, and (y) estimated amounts, in the case of periods for which the Company has not yet filed information returns, and (ii) the Assumed Tax Rate applicable to each period, over (b) all prior distributions to the Unitholders pursuant to Section 4.1 (other than clauses (a), (b), (c)(i), (d)(i), (f)(i), (g)(ii) and (h)(ii) thereof) and this Section 4.4.  All distributions made pursuant to this Section 4.4 to a Unitholder shall be treated as advance distributions under Section 4.1 (other than clauses (a), (b), (c)(i), (d)(i), (f)(i), (g)(ii) and (h)(ii) thereof) and shall be taken into account in determining the amount subsequently distributable to the Unitholder under Section 4.1.  In particular, if, at the time that the Company makes any distribution under Section 4.1 (other than clauses (a), (b), (c)(i), (d)(i), (f)(i), (g)(ii) and (h)(ii) thereof) or this Section 4.4, any Unitholder has received a share of the aggregate distributions made pursuant to such Section(s), as applicable, that is less than the share that it would have received if all such distributions had been made pursuant to such Section(s), as applicable, without regard to Section 4.4, then, notwithstanding such Section(s), as applicable, distributions first shall be made 100 percent to the Unitholders having such a shortfall in such amounts as are required so that each Unitholder has received its appropriate share, determined under such Section(s), as applicable, of all distributions made by the Company under such Section(s), as applicable, and this Section 4.4.  For the avoidance of doubt, Tax Distributions shall be made only with respect to income of the Company allocated to the Unitholders (as opposed to income recognized by any Member with respect to the issuance or vesting of such Member’s Units).  For the purpose of determining the amount of distributions under Section 4.4, each Unitholder shall be treated as having been allocated the cumulative taxable income and received the distributions made to or received by its predecessors with respect to any of such Unitholder’s Units.

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Section 4.5            Security Interest and Right of Set-Off.  As security for any liability or obligation to which the Company may be subject as a result of any act or status of any Unitholder, or to which the Company may become subject with respect to the interest of any Unitholder, the Company shall have (and each Unitholder hereby grants to the Company) a security interest in all Distributable Assets distributable to such Unitholder to the extent of the amount of such liability or obligation.  Whenever the Company is to pay any sum to any Unitholder or any Affiliate or related Person thereof pursuant to the terms of this Agreement, any amounts that such Unitholder or such Affiliate or related Person owes to the Company may be deducted from that sum before payment.

Section 4.6            Certain Distributions.  For purposes of this Article IV, a distribution to a Member of property (other than cash) shall be treated as a Tax Distribution pursuant to Section 4.4 (rather than as, for example, a distribution pursuant to Section 4.1(a)), in an amount equal to the hypothetical amount of tax that the Member would pay, at the Assumed Tax Rate, if (i) such property were not treated as a distribution of money pursuant to Section 731(c)(2) of the Code (to the extent that Section 731(c)(2) otherwise applies) and (ii) the Member sold the property immediately after receiving such distribution.

ARTICLE V
ALLOCATIONS

Section 5.1            Allocations.  Except as otherwise provided in Section 5.2, Net Income and Net Loss (and, if necessary, individual items of Income and Loss) shall be allocated annually (and at such other times as the Board of Managers determines) to the Unitholders in such manner that the Capital Account balance of each Unitholder shall, to the greatest extent possible, be equal to the amount, positive or negative, that would be distributed to such Unitholder (in the case of a positive amount) or for which such Unitholder would be liable to the Company under this Agreement (in the case of a negative amount), if (a) the Company were to sell the assets of the Company for their Gross Asset Values, (b) all Company liabilities were satisfied (limited with respect to each nonrecourse liability to the Gross Asset Values of the assets securing such liability), (c) the Company were to distribute the proceeds of sale pursuant to Section 4.1 (including to the holders of unvested Class MEP Units that are treated as Unitholders pursuant to Section 3.3) and (d) the Company were to dissolve pursuant to Article VII, minus such Unitholder’s share of Company Minimum Gain and Member Minimum Gain, computed immediately prior to the hypothetical sale of assets.

Section 5.2            Special Allocations.

(a)           Loss attributable to Member Nonrecourse Debt shall be allocated in the manner required by Regulations Section 1.704-2(i).  If there is a net decrease during a taxable year in Member Minimum Gain, Income for such taxable year (and, if necessary, for subsequent taxable years) shall be allocated to the Unitholders in the amounts and of such character as is determined according to Regulations Section 1.704-2(i)(4).  This Section 5.2(a) is intended to be a “partner nonrecourse debt minimum gain chargeback” provision that complies with the requirements of Regulations Section 1.704-2(i)(4), and shall be interpreted in a manner consistent therewith.

(b)           Except as otherwise provided in Section 5.2(a), if there is a net decrease in Company Minimum Gain during any taxable year, each Unitholder shall be allocated Income for such taxable year (and, if necessary, for subsequent taxable years) in the amounts and of such character as is determined according to Regulations Section 1.704-2(f).  This Section 5.2(b) is intended to be a “minimum gain chargeback” provision that complies with the requirements of Regulations Section 1.704-2(f), and shall be interpreted in a manner consistent therewith.

(c)           If any Unitholder that unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) has an Adjusted Capital Account Deficit as of the end of any taxable year, computed after the application of Section 5.2(a) and Section 5.2(b) but before the application of any other provision of this Article V, then Income for such taxable year shall be

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allocated to such Unitholder in proportion to, and to the extent of, such Adjusted Capital Account Deficit.  This Section 5.2(c) is intended to be a “qualified income offset” provision as described in Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.

(d)           Income and Loss described in clause (iv) of the definition of Gross Asset Value shall be allocated in a manner consistent with the manner that the adjustments to the Capital Accounts are required to be made pursuant to Regulations Section 1.704-1 (b)(2)(iv)(m).

(e)           The allocations set forth in Section 5.2(a) through Section 5.2(d) inclusive (the “Regulatory Allocations”) are intended to comply with certain requirements of Section 1.704-1(b) and 1.704-2 of the Regulations.  The Regulatory Allocations may not be consistent with the manner in which the Unitholders intend to allocate Income and Loss of the Company or to make distributions.  Accordingly, notwithstanding the other provisions of this Article V, but subject to the Regulatory Allocations, items of Income and Loss of the Company shall be allocated among the Unitholders so as to eliminate the effect of the Regulatory Allocations and thereby cause the respective Capital Account balances of the Unitholders to be in the amounts (or as close thereto as possible) they would have been if Income and Loss had been allocated without reference to the Regulatory Allocations.  In general, the Unitholders anticipate that this will be accomplished by specially allocating other Income and Loss among the Unitholders so that the net amount of Regulatory Allocations and such special allocations to each such Unitholder is zero.

(f)            Income and Loss of the Company shall be allocated in the manner required by proposed Regulations Section 1.704 (b)-1(b)(4)(xii)(c) (or any successor guidance dealing with so-called “forfeiture allocations”) from and after the time permitted by applicable final or temporary guidance.

Section 5.3            Tax Allocations.

(a)           The income, gains, losses and deductions of the Company shall be allocated for federal, state and local income tax purposes among the Unitholders in accordance with the allocation of such income, gains, losses and deductions among the Unitholders for purposes of computing their Capital Accounts; except that if any such allocation is not permitted by the Code or other applicable law, then the Company’s subsequent income, gains, losses and deductions for tax purposes shall be allocated among the Unitholders so as to reflect as nearly as possible the allocation set forth herein in computing their Capital Accounts.

(b)           Items of Company taxable income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall be allocated among the Unitholders in accordance with Section 704(c) of the Code so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its Gross Asset Value, using the “remedial method” under Regulation Section 1.704-3(d), unless otherwise agreed in writing by the Vestar Majority Holders.

(c)           If the Gross Asset Value of any Company asset is adjusted pursuant to the requirements of Regulations Section 1.704-1(b)(2)(iv)(e) or (f), subsequent allocations of items of taxable income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as under Section 704(c) of the Code using such method or methods as the Vestar Group Majority may direct.

(d)           In addition to the consent rights set forth in Section 6.10(a), the Vestar Group Majority shall have the sole and exclusive right to determine the method used by the Company or any of its Subsidiaries to make allocations pursuant to Section 704(c) of the Code (including any so-called “reverse” Section 704(c) allocations).

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(e)           Tax credits, tax credit recapture and any items related thereto shall be allocated to the Unitholders according to their interests in such items as reasonably determined by the Board of Managers taking into account the principles of Regulations Sections 1.704-1(b)(4)(ii) and 1.704-1T(b)(4)(xi).

(f)            Allocations pursuant to this Section 5.3 are solely for the purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Unitholder’s Capital Account or share of Income, Loss, distributions or other Company items pursuant to any provision of this Agreement.

Section 5.4            Unitholders’ Tax Reporting.  The Unitholders acknowledge and are aware of the income tax consequences of the allocations made pursuant to this Article V and, except as may otherwise be required by applicable law or regulatory requirements, hereby agree to be bound by the provisions of this Article V in reporting their shares of Company income, gain, loss, deduction and credit for federal, state and local income tax purposes.

Section 5.5            Indemnification and Reimbursement for Payments on Behalf of a Unitholder.  If the Company is required by law to make any payment to a Governmental Entity that is specifically attributable to a Unitholder or a Unitholder’s status as such (including federal withholding taxes, state or local personal property taxes and state or local unincorporated business taxes), then such Unitholder shall indemnify the Company in full for the entire amount paid (including interest, penalties and related expenses).  The Board of Managers may offset distributions to which a Person is otherwise entitled under this Agreement against such Person’s obligation to indemnify the Company under this Section 5.5.  A Unitholder’s obligation to indemnify the Company under this Section 5.5 shall survive termination, dissolution, liquidation and winding up of the Company, and for purposes of this Section 5.5, the Company shall be treated as continuing in existence.  The Company may pursue and enforce all rights and remedies it may have against each Unitholder under this Section 5.5, including instituting a lawsuit to collect such indemnification, with interest calculated at a rate equal to 10 percent (but not in excess of the highest rate per annum permitted by law).

ARTICLE VI
MANAGEMENT

Section 6.1            The Board of Managers; Delegation of Authority and Duties.

(a)           Members, Board of Managers and Executive Committee.  The Members shall possess all rights and powers as provided in the Act and otherwise by applicable law.  Except as otherwise expressly provided for herein, the Members hereby consent to the exercise by the Board of Managers of all such powers and rights conferred on them by the Act with respect to the management and control of the Company, provided that such rights and powers shall be exercised on behalf of the Board of Managers exclusively by the Executive Committee, except to the extent (i) such delegation of authority would not be permitted under applicable Law (assuming for this purposes that the Company is a Delaware corporation) and (ii) the power and authority is reserved to another existing committee of the Board of Managers under its existing charter, provided further that if the Executive Committee is dissolved in accordance with Section 6.1(c), all such powers and rights will be exercised by the Board of Managers.  For the avoidance of doubt, any references in this Agreement granting permission or authority to the Board of Managers shall be deemed to refer to the Executive Committee (even if not included in such reference) to the extent consistent with the first proviso in the immediately preceding sentence.   Notwithstanding the foregoing and except as explicitly set forth in this Agreement, if a vote, consent or approval of the Members is required by the Act or other applicable law with respect to any act to be taken by the Company or matter considered by the Board of Managers or the Executive Committee, each Member agrees that it shall be deemed to have consented to or approved such act or voted on such matter in accordance with a vote of the Board of Managers or the Executive Committee, as the case may be, on such act or matter.  Each Class A Unitholder shall have one vote for each Class A Unit held by such Unitholder.  Holders of SFRO Preferred Units, Preferred Units and Incentive Units shall not have the right to vote on any matter unless such right is expressly provided herein.  If a vote, consent

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or approval of the Members is required by this Agreement, only the Class A Members shall be entitled to vote, consent or approve unless a right to vote, consent or approve is expressly provided herein to any other Member.  Unless otherwise set forth in this Agreement, any vote, consent or approval of any class of Units required by this Agreement shall require a majority of the voting power of the applicable Units.  No Member, in its capacity as a Member, shall have any power to act for, sign for or do any act that would bind the Company.  The Members, acting through the Board of Managers or the Executive Committee, as applicable, shall devote such time and effort to the affairs of the Company as they may deem appropriate for the oversight of the management and affairs of the Company.  Each Member acknowledges and agrees that no Member shall, in its capacity as a Member, be bound to devote all of such Member’s business time to the affairs of the Company, and that each Member and such Member’s Affiliates do and will continue to engage for such Member’s own account and for the account of others in other business ventures.

(b)           Delegation by Board of Managers and Executive Committee.  Each of the Board of Managers and the Executive Committee shall have the power and authority to delegate (in the case of the Board of Managers, to the extent such rights and powers have not be delegated to the Executive Committee in accordance with Section 2.1(a) and the Securityholders Agreement) to one or more other Persons its rights and powers to manage and control the business and affairs of the Company, including to delegate to agents and employees of a Member, a Manager or the Company (including Officers), and to delegate by a management agreement or another agreement with, or otherwise to, other Persons.  Each of the  Board of Managers and the Executive Committee may authorize, to the extent of its rights and powers in accordance with Section 6.1(a), any Person (including any Member, Officer or Manager) to enter into and perform under any document on behalf of the Company. Notwithstanding the foregoing and for the avoidance of doubt, all powers and rights of the Board of Managers which are exercised by the Executive Committee in accordance with Section 6.1(a) may only be delegated by the Executive Committee during the period of its existence.

(c)           Committees.  The Board of Managers shall have, during the period specified below, an executive committee (the “Executive Committee”) and the Board of Managers may, from time to time, designate one or more other committees (including the Compensation Committee).

(i)            The Executive Committee. The Executive Committee shall be comprised of three Managers, a Manager nominated by the Majority Preferred Stockholders, a Manager nominated by the Vestar V , and one appointed by Dr. Dosoretz or the Majority Executives (as required by the Securityholders Agreement), each as nominated as set forth in Section 2.1(b) of the Securityholders Agreement.  The Executive Committee shall have and may exercise all powers and rights conferred on the Members by the Act with respect to the management and control of the Company, except for such powers and rights that are reserved for the Board of Managers in accordance with Section 6.1(a). The Executive Committee shall conduct its proceedings in accordance with its charter adopted on the date hereof.   The Executive Committee shall be dissolved upon the occurrence of the earlier of (i) a Qualified IPO, (ii) a Qualified Merger and (iii) a Default Event.

(ii)           Other Committees.  Each committee other than the Executive Committee shall be comprised of at least three Managers, and, if applicable, shall be constituted in accordance with Section 2.1(c) of the Securityholders Agreement.  Except as otherwise required by applicable law, no committee of the Board of Managers may bind the Board of Managers.  The Board of Managers may dissolve any committee (other than the Executive Committee) at any time, unless otherwise provided in the Securityholders Agreement or this Agreement.  Notwithstanding anything to the contrary in the charters of the other committees, while the Executive Committee is in existence, each such committee shall report to the Executive Committee, and all matters in respect of which any such committee makes a recommendations shall be decided by the Executive Committee.  Each committee in

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existence as of the date hereof shall conduct its proceedings in accordance with the charters for such committee as in effect or as adopted, as applicable, on the date hereof.  Except in connection with an initial Public Offering of Holdings, the charters of these committees shall not be modified, and no new committees created, without the consent of Vestar V and the Majority Preferred Stockholders.

Section 6.2            Establishment of Board of Managers.

(a)           Managers.  There shall be established a board of managers (the “Board of Managers”) composed of seven (7) persons (who, for the avoidance of doubt, need not be members), or such other number of persons as is determined in accordance with Section 2.1 of the Securityholders Agreement, all of whom shall be individuals (each, a “Manager”) who shall be elected by a majority vote of the holders of the Class A Units, voting together as a single class, provided that the Board of Managers shall at all times be constituted in accordance with Section 2.1 of the Securityholders Agreement, and each such Unitholder shall have one vote for each Unit held by such Member.  Each Manager shall be a “manager” (as such term is defined in the Act) of the Company but, notwithstanding the foregoing, no Manager shall have any rights or powers beyond the rights and powers granted to such Manager in this Agreement.  Any Manager may be removed from the Board of Managers at any time by the holders of a majority of the Class A Units, but only in a manner consistent with Section 2.1 of the Securityholders Agreement.  Each Manager shall remain in office until his or her death, resignation or removal, and in the event of death, resignation or removal of a Manager, the vacancy created shall be filled by a majority vote of the holders of the Class A Units, voting together as a single class, and otherwise in accordance with Section 2.1 of the Securityholders Agreement.

(b)           Duties; Investment Opportunities; Conflicts of Interest.

(i)            A Manager shall be personally liable to the Company and the other Members for any loss incurred by such Person for acts or omissions in the management of the Company only in the case of gross negligence, willful misconduct, bad faith or breach of a duty expressly set forth below by such Manager; but a Manager shall not be personally liable to the Company or any Member for any other acts or omissions, including the negligence, strict liability or other fault or responsibility (short of gross negligence, willful misconduct, bad faith or as expressly set forth below) by such Manager.  The Board of Managers and any member or committee thereof may consult with counsel and accountants in respect of Company affairs and, provided the Board of Managers (or such member or committee, as the case may be) acts in good faith reliance upon the advice or opinion of such counsel or accountants, the Board of Managers (or such member or committee, as the case may be) shall not be liable for any loss suffered by the Members or the Company in reliance thereon.  Notwithstanding any other provision of this Agreement or any duty otherwise existing at law or in equity, the parties hereby agree that the Managers and the Members, in their capacities as Managers and Members, as applicable, shall, to the maximum extent permitted by law, including Section 18-1101(c) of the Act, owe no fiduciary duties to the Company, the Members or any other Person bound by this Agreement; provided, however, that the Managers shall act in accordance with the implied contractual covenant of good faith and fair dealing.  Any amendment or modification of the provisions of this Section 6.2(b) shall not adversely affect any rights or protections of a Manager at the time of such amendment or modification.  Except as stated in the preceding sentence and the other duties as may be expressly set forth in this Agreement, a Manager shall not be subject to any duties in the management of the Company. And, for the avoidance of doubt, in the event that there is a Company Sale and the Board of Managers or any particular Manager, in such capacity, takes any action to implement, undertake or facilitate such Company Sale at the request of Vestar or the Majority Preferred Stockholders, then such action shall not be subject to the

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standards set forth in this Section 6.2(b), but instead shall be considered actions taken to implement the contractual agreements of the parties to this Agreement and not in a fiduciary capacity to the Members.

(ii)           In performing such Person’s duties, each of the Managers and the officers of the Company shall be entitled to rely in good faith on the provisions of this Agreement and on information, opinions, reports or statements (including financial statements and information, opinions, reports or statements as to the value or amount of the assets, liabilities, profits or losses of the Company or any facts pertinent to the existence and amount of assets from which distributions to Unitholders might properly be paid), of the following other Persons or groups: (A) one or more officers or employees of the Company or any of its Subsidiaries; (B) any attorney, independent accountant or other Person employed or engaged by the Company or any of its Subsidiaries; or (C) any other Person who has been selected with reasonable care by or on behalf of the Company or any of its Subsidiaries, in each case, as to matters which such relying Person reasonably believes to be within such other Person’s professional or expert competence.  The preceding sentence shall in no way limit any Person’s right to rely on information to the extent provided in Section 18-406 of the Act.

(iii)          The Members expressly acknowledge that (A) Vestar, CPPIB and their respective Affiliates are permitted to have, and may presently or in the future have, investments or other business relationships with entities other than through the Company or any of its Subsidiaries (an “Other Business”), (B) Vestar, CPPIB and their respective Affiliates may have or may develop a strategic relationship with an Other Business, (C) none of Vestar, CPPIB and their respective Affiliates will be prohibited by virtue of its investment in the Company or any of its Subsidiaries or, if applicable, its service on the Board of Managers or the Executive Committee from pursuing and engaging in any such activities with Other Businesses, (D) none of Vestar, CPPIB and its respective Affiliates shall be obligated to inform the Company or any of its Subsidiaries of any such opportunity, relationship or investment relating to Other Businesses, (E) the other Members will not acquire or be entitled to any interest or participation in any Other Business except as provided in any agreement with the Company or Subsidiary as a result of the participation therein of Vestar, CPPIB or any of their respective Affiliates, and (F) the involvement of any equityholder of a Member, CPPIB or their Affiliates in any Other Business except as provided in any agreement with the Company or Subsidiary will not constitute a conflict of interest by such Persons with respect to the Company or its Members or any of its Subsidiaries.  Nothing in the preceding sentence shall limit the confidentiality obligations of Section 9.4.

(c)           Absence.  A Manager may designate a Person to act as his or her substitute and in his or her place at any meeting of the Board of Managers.  Such Person shall have all power of the absent Manager, and references herein to a “Manager” at a meeting shall be deemed to include his or her substitute.  Notwithstanding anything in this Agreement to the contrary, Managers, in their capacities as such, shall not be deemed to be “members” (as such term is defined in the Act) of the Company.

(d)           No Individual Authority.  No Manager has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditures or incur any obligations on behalf of the Company or authorize any of the foregoing, other than acts that are expressly authorized by the Board of Managers.

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(e)           Conflict.  Each provision of this Section 6.2 is subject to the terms and provisions of the Securityholders Agreement, and to the extent any such provisions apply, they are then to be construed as being incorporated in this Agreement and made a part hereof.

(f)            Compensation of Directors; Expense Reimbursement.  Managers that are also employees or Officers of the Company or any of its Subsidiaries shall not receive any stated salary for services in their capacity as Managers; provided, however, that, subject to Section 6.10(b), nothing herein contained shall be construed to preclude any Manager from serving the Company or any Subsidiary in any other capacity and receiving compensation (including Incentive Units) therefor.  Managers that are not also employees or Officers of the Company or any of its Subsidiaries may receive equity based compensation and/or a stated salary for their services as Managers, in each case, as is determined from time to time by the Board of Managers.  Managers shall be reimbursed for any reasonable out-of-pocket expenses related to attendance at each regular or special meeting of the Board of Managers (or any committee thereof), subject to the Company’s requirements with respect to reporting and documentation of such expenses.

Section 6.3            Board of Managers Meetings.

(a)           Quorum and Voting.  A majority of the total number of Managers, including at least one Vestar Manager and one Preferred Manager (each as defined in the Securityholders Agreement) shall constitute a quorum for the transaction of business of the Board of Managers, provided that if at any meeting of the Board a quorum is not present, such meeting shall be adjourned by the Board of Managers (which adjournment may be approved by the Board of Managers even if less than a quorum is present) to a date no more than three business days after the initial meeting, and at such adjourned meeting any majority of the total number of Managers shall constitute a quorum for the transaction of business of the Board of Managers. Except as otherwise provided in this Agreement or Section 2.3 of the Securityholders Agreement, the act of a majority of the Managers present at a meeting of the Board of Managers at which a quorum is present shall be the act of the Board of Managers.  A Manager who is present at a meeting of the Board of Managers at which action on any matter is taken shall be presumed to have assented to the action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the Person acting as secretary of the meeting before the adjournment thereof or shall deliver such dissent to the Company immediately after the adjournment of the meeting.  Such right to dissent shall not apply to a Manager who voted in favor of such action.

(b)           Place and Waiver of Notice.  Meetings of the Board of Managers may be held at such place or places as shall be determined from time to time by resolution of the Board of Managers.  At all meetings of the Board of Managers, business shall be transacted in such order as shall from time to time be determined by resolution of the Board of Managers.  Attendance of a Manager at a meeting shall constitute a waiver of notice of such meeting, except where a Manager attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

(c)           Regular Meetings.  Regular meetings of the Board of Managers may be held as from time to time shall be determined by the Board of Managers.  After there has been such determination, and notice thereof has once been given to each Manager, regular meetings of the Board of Managers may be held without further notice being given.  Such notice need not state the purpose or purposes of, nor the business to be transacted at, such meeting, except as may otherwise be required by applicable law or provided for in this Agreement.

(d)           Special Meetings.  Special meetings of the Board of Managers may be called on at least 24 hours notice to each Manager by any two Managers.  Such notice need not state the purpose or purposes of, nor the business to be transacted at, such meeting, except as may otherwise be required by applicable law or provided for in this Agreement.

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(e)           Notice.  Notice of any special meeting of the Board of Managers or other committee may be given personally, by mail, facsimile, courier or other means and, if other than personally, shall be deemed given when written notice is delivered to the office of the Manager at the address of the Manager in the books and records of the Company.

Section 6.4            Chairman and Vice Chairman.  The Board of Managers shall designate a Manager to serve as chairman.  Rob Rosner shall serve as the initial chairman of the Board of Managers. The Board of Managers may designate a Manager to serve as vice chairman.  The chairman shall preside at all meetings of the Board of Managers.  If the chairman is absent at any meeting of the Board of Managers, the vice chairman serve as interim chairman for that meeting.  The chairman shall have no independent authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditure or incur any obligations on behalf of the Company or authorize any of the foregoing.  The chairman shall not have exclusive power to establish the agenda for any meeting.  Any matter proposed for consideration and seconded by at least one Manager other than the proposing Manager shall be deemed properly raised for consideration at any meeting.

Section 6.5            Approval or Ratification of Acts or Contracts.  Any act or contract approved or ratified by the Board of Managers shall be as valid and as binding upon the Company and upon all the Members (in their capacity as Members) as if it had been approved or ratified by each Member of the Company.

Section 6.6            Action by Written Consent.  Any action permitted or required by the Act, the Certificate or this Agreement to be taken at a meeting of the Board of Managers or any committee designated by the Board of Managers may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed by a majority of the Managers or representatives of such other committee, as the case may be, subject to Section 2.3 of the Securityholders Agreement.  Such consent shall have the same force and effect as a vote at a meeting and may be stated as such in any document or instrument filed with the Secretary of State of the State of Delaware, and the execution of such consent shall constitute attendance or presence in person at a meeting of the Board of Managers or any such other committee, as the case may be.

Section 6.7            Meetings by Telephone Conference or Similar Measures.  Subject to the requirements of this Agreement for notice of meetings, the Managers, or representatives of any other committee designated by the Board of Managers, may participate in and hold a meeting of the Board of Managers or any such other committee, as the case may be, by means of a conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other, and participation in such meeting shall constitute attendance and presence in person at such meeting, except where a Person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 6.8            Officers.

(a)           Designation and Appointment.  Subject to Section 6.10 and the Securityholders Agreement, the Board of Managers may, from time to time, employ and retain Persons as may be necessary or appropriate for the conduct of the Company’s business (subject to the supervision and control of the Board of Managers), including employees, agents and other Persons (any of whom may be a Member or Manager) who may be designated as Officers of the Company, with such titles as and to the extent authorized by the Board of Managers.  Any number of offices may be held by the same Person.  In its discretion, the Board of Managers may choose not to fill any office for any period as it may deem advisable.  Officers need not be residents of the State of Delaware or Members.  Any Officers so designated shall have such authority and perform such duties as the Board of Managers may from time to time delegate to them.  The Board of Managers may assign titles to particular Officers.  Each Officer shall hold office until his successor shall be duly designated and shall qualify or until his death or until he shall resign or shall have been removed in the

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manner hereinafter provided.  The salaries or other compensation, if any, of the Officers of the Company shall be fixed from time to time by the Board of Managers.

(b)           Resignation and Removal.  Any Officer may resign as such at any time.  Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time is specified, at the time of its receipt by the Board of Managers.  The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.  Any Officer may be removed as such, either with or without cause at any time, subject to Section 6.10, by the Board of Managers.  Designation of an Officer shall not of itself create any contractual or employment rights.

(c)           Duties of Officers Generally.  The Officers, in the performance of their duties as such, shall owe to the Company duties of loyalty and due care of the type owed by the officers of a corporation to such corporation and its stockholders under the laws of the State of Delaware.

Section 6.9            Management Matters.

(a)           Transfer of Property.  All property owned by the Company shall be registered in the Company’s name, in the name of a nominee or in “street name” as the Board of Managers may from time to time determine.  Any corporation, brokerage firm or transfer agent called upon to Transfer any Securities to or from the name of the Company shall be entitled to rely on instructions or assignments signed or purported to be signed by any Officer or Manager without inquiry as to the authority of the Person signing or purporting to sign such instructions or assignments or as to the validity of any Transfer to or from the name of the Company.  At the time of any such Transfer, any such corporation, brokerage firm or transfer agent shall be entitled to assume that (i) the Company is then in existence and (ii) that this Agreement is in full force and effect and has not been amended, in each case, unless such corporation, brokerage firm or transfer agent shall have received written notice to the contrary.

(b)           Existence and Good Standing.  The Board of Managers may take all action which may be necessary or appropriate (i) for the continuation of the Company’s valid existence as a limited liability company under the laws of the State of Delaware (and of each other jurisdiction in which such existence is necessary to enable the Company to conduct the business in which it is engaged) and (ii) for the maintenance, preservation and operation of the business of the Company in accordance with the provisions of this Agreement and applicable laws and regulations.  The Board of Managers may file or cause to be filed for recordation in the office of the appropriate authorities of the State of Delaware, and in the proper office or offices in each other jurisdiction in which the Company is formed or qualified, such certificates (including certificates of limited liability companies and fictitious name certificates) and other documents as are required by the applicable statutes, rules or regulations of any such jurisdiction or as are required to reflect the identity of the Members and the amounts of their respective capital contributions.

(c)           Investment Company Act.  The Board of Managers shall use its best efforts to assure that the Company shall not be subject to registration as an investment company pursuant to the Investment Company Act of 1940, as amended.

Section 6.10          Consent Rights.

(a)           Consent Rights.  The Company shall not, and shall not permit any of its Subsidiaries to take or commit to take any action, unless any required consent of the Majority Executives, the Vestar Majority Holders and the Majority Preferred Stockholders pursuant to Section 2.3 of the Securityholders Agreement has been obtained.

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(b)           Scope of Consent Rights.  The Members hereby acknowledge and agree that the determination of the Vestar Majority Holders, the Majority Preferred Stockholders, any Vestar Manager or any Preferred Manager as to whether to consent to any of the actions referenced in Section 6.10(a) and described in Section 2.3 of the Securityholders Agreement shall be made (i) in the sole discretion of such parties or the applicable Preferred Manager acting in its, his or her own best interests and (ii) without regard to any fiduciary duty.

(c)           Termination.  The provisions set forth in this Section 6.10 shall terminate as set forth in the Securityholders Agreement.

Section 6.11          Securities in Subsidiaries.  The Company shall vote, or cause to be voted, all of the securities it holds in any direct or indirect Subsidiary of the Company as directed by the Board of Managers, and in all respects in accordance with the Securityholders Agreement.

Section 6.12          Liability of Unitholders.

(a)           No Personal Liability.  Except as otherwise required by applicable law and as expressly set forth in this Agreement, no Unitholder shall have any personal liability whatsoever in such Person’s capacity as a Unitholder, whether to the Company, to any of the other Unitholders, to the creditors of the Company or to any other third party, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company.  Each Unitholder shall be liable only to make such Unitholder’s Capital Contribution to the Company, if applicable, and the other payments provided for expressly herein.

(b)           Return of Distributions.  In accordance with the Act and the laws of the State of Delaware, a member of a limited liability company may, under certain circumstances, be required to return amounts previously distributed to such member.  It is the intent of the Members that no distribution to any Member pursuant to Article IV shall be deemed a return of money or other property paid or distributed in violation of the Act.  The payment of any such money or distribution of any such property to a Member shall be deemed to be a compromise within the meaning of the Act, and the Member receiving any such money or property shall not be required to return to any Person any such money or property.  However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such payment, such obligation shall be the obligation of such Member and not of any Manager or other Member.

Section 6.13          Indemnification by the Company.  Subject to the limitations and conditions provided in this Section 6.13, each Person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or arbitral (each a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he, she or it, or a Person of which he, she or it is the legal representative, is or was a Unitholder, Officer or Manager shall be indemnified by the Company to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment) against all judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable expenses (including reasonable attorneys’ fees and expenses) actually incurred by such Person in connection with such Proceeding, appeal, inquiry or investigation, if such Person acted in Good Faith.  Reasonable expenses incurred by a Person of the type entitled to be indemnified under this Section 6.13 who was, is or is threatened to be made a named defendant or respondent in a Proceeding shall be paid by the Company in advance of the final disposition of the Proceeding upon receipt of an undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company.  Indemnification under this Section 6.13 shall continue as to a Person who has ceased to serve in the capacity which

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initially entitled such Person to indemnity hereunder.  The rights granted pursuant to this Section 6.13 shall be deemed contract rights, and no amendment, modification or repeal of this Section 6.13 shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings, appeals, inquiries or investigations arising prior to any amendment, modification or repeal.  It is expressly acknowledged that the indemnification provided in this Section 6.13 could involve indemnification for negligence or under theories of strict liability.  The Company hereby acknowledges that certain indemnitees under this Section 6.13 may have certain rights to indemnification and/or insurance provided by affiliated investment funds (collectively, “Fund Indemnitors”) of such indemnitees and the Company intends such Fund Indemnitors to be secondary to the primary obligation of the Company to indemnify such indemnitee as provided herein.  The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to indemnitees are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by indemnitee are secondary) for the indemnification obligations provided in this Section 6.13, (ii) that it shall be required to advance the full amount of expenses incurred by any indemnitee hereunder and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement (or any other agreement between the Company and any indemnitee), without regard to any rights indemnitee may have against the Fund Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof.  The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of any indemnitee with respect to any claim for which such indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such indemnitee against the Company.  The Company and each indemnitee hereunder agree that the Fund Indemnitors are express third party beneficiaries of the terms of this Section 6.13.

ARTICLE VII
WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS

Section 7.1            Unitholder Withdrawal.  No Unitholder shall have the power or right to withdraw or otherwise resign or be expelled from the Company prior to the dissolution and winding up of the Company, except pursuant to a Transfer permitted under this Agreement of all of such Unitholder’s Units to an Assignee, a Member or the Company.

Section 7.2            Dissolution.

(a)           Events.  Subject to Section 6.10 and the Securityholders Agreement, the Company shall be dissolved and its affairs shall be wound up on the first to occur of (i) the majority vote of the Board of Managers, or (ii) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act.

(b)           Actions Upon Dissolution.  When the Company is dissolved, the business and property of the Company shall be wound up and liquidated by the Board of Managers or, in the event of the unavailability of the Board of Managers or if the Board of Managers so determine, such Member or other liquidating trustee as shall be named by the Board of Managers.

(c)           Priority.  A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to Section 7.2 to minimize any losses otherwise attendant upon such winding up.  Notwithstanding the generality of the foregoing, within 120 calendar days after the effective date of dissolution of the Company, the assets of the Company shall be distributed in the following manner and order: (i) all debts and obligations of the Company, if any, shall first be paid, discharged or provided for by adequate reserves; (ii)  amount equal to all payment obligations of the

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Company and the Unitholders pursuant to Section 4.3 of the Securityholders Agreement shall be paid second, in accordance with Section 4.3 of the Securityholders Agreement and (iii) the balance shall be distributed to the Unitholders in accordance with Section 4.1.

(d)           Cancellation of Certificate.  On completion of the distribution of Company assets as provided herein, the Company is terminated, and shall file a certificate of cancellation with the Secretary of State of the State of Delaware, cancel any other filings made and take such other actions as may be necessary to terminate the Company.

(e)           Return of Capital.  The liquidators shall not be personally liable for the return of Capital Contributions or any portion thereof to the Members (it being understood that any such return shall be made solely from Company assets).

(f)            Hart-Scott-Rodino.  Notwithstanding any other provision in this Agreement, in the event the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), is applicable to any Member by reason of the fact that any assets of the Company will be distributed to such Member in connection with the dissolution of the Company, the dissolution of the Company shall not be consummated until such time as the applicable waiting periods (and extensions thereof) under the HSR Act have expired or otherwise been terminated with respect to each such Member.

Section 7.3            Transfer by Unitholders.  Any Member who shall Transfer any Units in the Company shall cease to be a Member of the Company with respect to such Units and shall no longer have any rights or privileges of a Member with respect to such Units.  Any Member or Assignee who acquires in any manner whatsoever any Units, irrespective of whether such Person has accepted and adopted in writing the terms and provisions of this Agreement, shall be deemed by the acceptance of the benefits of the acquisition thereof to have agreed to be subject to and bound by all of the terms and conditions of this Agreement that any predecessor in such Units or other interest in the Company was subject to or by which such predecessor was bound.  No Member shall cease to be a Member upon the collateral assignment of, or the pledging or granting of a security interest in, its entire interest in the Company.  Any Transfer and any related admission of a Person as a Member in compliance with the provisions of the Securityholders Agreement and this Agreement shall be deemed effective on such date that the Transferee or successor in interest complies with the requirements of the Securityholders Agreement and this Agreement.

Section 7.4            Admission or Substitution of New Members.

(a)           Admission.  The Board of Managers shall have the right, subject to Section 7.3, to admit as a Substituted Member or an Additional Member any Person who acquires an interest in the Company, or any part thereof, from a Member or from the Company; provided that the Board of Managers shall admit as a Substituted Member, subject to Section 7.4(b), any Transferee who acquires an interest in the Company pursuant to an Exempt Employee Transfer, an Exempt TCW Transfer, an Exempt NYLIM Transfer or an Exempt Individual Transfer.  Concurrently with the admission of a Substituted Member or an Additional Member, the Board of Managers shall forthwith (i) amend Schedule B hereto to reflect the name and address of such Substituted Member or Additional Member and to eliminate or modify, as applicable, the name and address of the Transferring Member with regard to the Transferred Units and (ii) cause any necessary papers to be filed and recorded and notice to be given wherever and to the extent required showing the substitution of a Transferee as a Substituted Member in place of the Transferring Member, or the admission of an Additional Member, in each case, at the expense, including payment of any professional and filing fees incurred, of such Substituted Member or Additional Member, unless otherwise determined by the Board of Managers.

(b)           Conditions and Limitations.  The admission of any Person as a Substituted Member or an Additional Member shall be conditioned upon (i) such Person’s written acceptance and adoption of all

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