exv10w4






Exhibit 10.4




AGREEMENT AND PLAN OF MERGER




     THIS AGREEMENT AND PLAN OF MERGER (as amended, supplemented or restated from time to time,
this “Agreement”) is entered into as of ___________, by and among Aurora Diagnostics, Inc.,
a Delaware corporation (“ARDX Inc.”), Aurora Diagnostics Holdings, LLC, a Delaware limited
liability company (“Aurora LLC”), SV VI-B Aurora Blocker Corp., a Delaware corporation
(“Summit Blocker 1”), SPPE VII-B Aurora Blocker Corp., a Delaware corporation (“Summit
Blocker 2”), KRG Aurora Blocker, Inc., a Delaware corporation (“KRG Blocker”; Aurora
LLC, KRG Blocker, Summit Blocker 1 and Summit Blocker 2 are referred to collectively herein as the
“Merging Entities”, and each individually as a “Merging Entity”; Summit Blocker 1,
Summit Blocker 2 and KRG Blocker are referred to collectively herein as the “Corporate Merging
Entities”, and each individually as a “Corporate Merging Entity”; the Corporate Merging
Entities and ARDX Inc. are referred to collectively herein as the “Corporate Merger Constituent
Entities”; Aurora LLC and ARDX Inc. are referred to collectively herein as the “LLC Merger
Constituent Entities”), Summit Ventures VI-B, L.P., a Delaware limited partnership and the sole
stockholder of Summit Blocker 1, Summit Partners Private Equity Fund VII-B, L.P., a Delaware
limited partnership and the sole stockholder of Summit Blocker 2 (collectively, the “Summit
Blocker Stockholders”), KRG Capital Fund IV, L.P., a Delaware limited partnership, KRG Capital
Fund IV-A, L.P., a Delaware limited partnership, KRG Capital Fund IV (FF), L.P., a Delaware limited
partnership, KRG Capital Fund IV (PA), L.P., a Delaware limited partnership, and KRG Co-Investment,
L.L.C., a Delaware limited liability company (collectively, the “KRG Blocker
Stockholders”), the affiliates of Summit Partners, L.P. set forth as “Summit Non-Blocker
Members” on the signature pages to this Agreement (the “Summit Non-Blocker Members”; Summit
Blocker 1, Summit Blocker 2, and the Summit Non-Blocker Members are referred to collectively as the
“Summit Members”) and the individual members of Aurora LLC set forth as “Management
Members” on the signature pages to this Agreement (collectively, the “Management Members”;
the Summit Members, KRG Blocker and the Management Members are referred to collectively as
“Aurora LLC Members”).



RECITALS




     A. The board of directors of ARDX Inc. deems it advisable and in the best interests of ARDX
Inc. that (i) ARDX Inc. undertake the Corporate Merger (as defined in Section 1.1(a))
pursuant to the provisions of the General Corporation Law of the State of Delaware (the
“DGCL”) and the terms of this Agreement, and (ii) ARDX Inc. undertake the LLC Merger (as
defined in Section 1.1(b)) pursuant to the provisions of the Limited Liability Company Act
of the State of Delaware (the “LLC Act”) and the terms of this Agreement.



     B. With respect to (i) each Corporate Merging Entity, the board of directors of such Corporate
Merging Entity deems it advisable and in the best interests of such Corporate Merging Entity and
its stockholders that the Corporate Merger be consummated pursuant to the provisions of the DGCL
and the terms of this Agreement, and (ii) Aurora LLC, the board of managers of Aurora LLC deems it
advisable and in the best interests of Aurora LLC and its members that the LLC Merger be
consummated pursuant to the provisions of the DGCL and the LLC Act and the terms of this Agreement.



     C. With respect to (i) each Corporate Merger Constituent Entity, all of the outstanding stock
of such Corporate Merger Constituent Entity entitled to vote on the Corporate Merger has been voted
for the Corporate Merger and the adoption of this Agreement, and (ii) each LLC Merger Constituent
Entity, the requisite members of such LLC Merger Constituent Entity (in the case of Aurora LLC) and
all of the outstanding stock (in the case of ARDX Inc.) entitled to vote on the LLC Merger have
voted for the LLC Merger and the adoption of this Agreement.



 









 





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



ARTICLE I




THE MERGERS



     SECTION 1.1 The Mergers. Upon the terms and subject to the conditions set forth in
this Agreement:



     (a) at the Corporate Merger Effective Time (as defined in Section 1.2), each Corporate
Merging Entity shall be merged with and into ARDX Inc. in accordance with the provisions of Section
251 of the DGCL (the “Corporate Merger”) and, following the Corporate Merger, ARDX Inc.
will continue as the surviving entity (the “Surviving Entity”) and the separate existence
of each Corporate Merging Entity shall cease; and



     (b) at the LLC Merger Effective Time (as defined in Section 1.2), Aurora LLC shall be
merged with and into ARDX Inc. in accordance with the provisions of Section 209 of the LLC Act (the
“LLC Merger”) and, following the LLC Merger, ARDX Inc. will continue as the Surviving
Entity and the separate existence of Aurora LLC shall cease.



     SECTION 1.2 Effective Times.



     (a) The Corporate Merger will be consummated on the Closing Date (as defined in Section
2.1) by the filing of a certificate of merger substantially in the form of Exhibit A
(the “Corporate Merger Certificate”) with the Secretary of State of the State of Delaware
in accordance with Section 251 of the DGCL. The time of the filing of the Corporate Merger
Certificate or the time specified therein as the effective time of the Corporate Merger is referred
to herein as “Corporate Merger Effective Time.”



     (b) The LLC Merger will be consummated on the Closing Date by the filing of a certificate of
merger substantially in the form of Exhibit B (the “LLC Merger Certificate”) with
the Secretary of State of the State of Delaware in accordance with Section 209 of the LLC Act. The
time of the filing of the LLC Merger Certificate or the time specified therein as the effective
time of the LLC Merger is referred to herein as “LLC Merger Effective Time.”



     (c) The Corporate Merger Effective Time shall be prior to the LLC Merger Effective Time.



     SECTION 1.3 Effect of the Mergers.



     (a) The Corporate Merger will have the effects set forth in Section 259 of the DGCL. Without
limiting the generality of the foregoing, as of the Corporate Merger Effective Time, all of the
respective properties, rights, privileges, powers and franchises of each Corporate Merging Entity
will vest in ARDX Inc., as the Surviving Entity, and all of the respective debts, liabilities and
duties of each Corporate Merging Entity will become debts, liabilities and duties of ARDX Inc., as
the Surviving Entity.



     (b) The LLC Merger will have the effects set forth in Section 259 of the DGCL and Section 209
of the LLC Act. Without limiting the generality of the foregoing, as of the LLC Merger Effective
Time, all of the properties, rights, privileges, powers and franchises of Aurora LLC will vest in



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ARDX Inc., as the Surviving Entity, and all of the debts, liabilities and duties of Aurora LLC will
become debts, liabilities and duties of ARDX Inc., as the Surviving Entity.




     SECTION 1.4 Certificate of Incorporation and Bylaws.



     (a) The certificate of incorporation of ARDX Inc. as in effect immediately preceding the
Corporate Merger Effective Time shall remain unchanged as a result of the Corporate Merger and
shall continue as the certificate of incorporation of the Surviving Entity following the Corporate
Merger. The bylaws of ARDX Inc. as in effect immediately preceding the Corporate Merger Effective
Time shall remain unchanged as a result of the Corporate Merger and shall continue as the bylaws of
the Surviving Entity following the Corporate Merger.



     (b) The certificate of incorporation of ARDX Inc. as in effect immediately preceding the LLC
Merger Effective Time shall remain unchanged as a result of the LLC Merger and shall continue as
the certificate of incorporation of the Surviving Entity following the LLC Merger. The bylaws of
ARDX Inc. as in effect immediately preceding the LLC Merger Effective Time shall remain unchanged
as a result of the LLC Merger and shall continue as the bylaws of the Surviving Entity following
the LLC Merger.



     SECTION 1.5 Directors and Officers.



     (a) The directors of the Surviving Entity shall be James C. New, Thomas S. Roberts,
Christopher Dean, Peter J. Connolly, Mark M. King, Christopher J. Block, Blair Tikker and James M.
Emanuel, who will hold office from the Corporate Merger Effective Time until their respective
successors are duly elected and qualified in the manner provided in the certificate of
incorporation and bylaws of the Surviving Entity or as otherwise provided by law. The officers of
ARDX Inc. at the Corporate Merger Effective Time shall continue as the officers of the Surviving
Entity, and will hold office from the Corporate Merger Effective Time until their respective
successors are duly elected or appointed and qualified in the manner provided in the bylaws of the
Surviving Entity or as otherwise provided by law.



     (b) The directors of the Surviving Entity shall be James C. New, Thomas S. Roberts,
Christopher Dean, Peter J. Connolly, Mark M. King, Christopher J. Block, Blair Tikker and James M.
Emanuel, who will hold office from the LLC Merger Effective Time until their respective successors
are duly elected and qualified in the manner provided in the certificate of incorporation and
bylaws of the Surviving Entity or as otherwise provided by law. The officers of ARDX Inc. at the
LLC Merger Effective Time shall continue as the officers of the Surviving Entity, and will hold
office from the LLC Merger Effective Time until their respective successors are duly elected or
appointed and qualified in the manner provided in the bylaws of the Surviving Entity or as
otherwise provided by law.



     SECTION 1.6 Conversion of Interests; Cancellation of Certain ARDX Common Stock.



     (a) At the Corporate Merger Effective Time, each of the following transactions shall be deemed
to occur simultaneously, subject to Section 1.7:




	 	(i)	 	the shares of common stock of Summit Blocker 1 outstanding
immediately prior to the Corporate Merger Effective Time shall, by virtue of
the Corporate Merger and without any action on the part of the holder thereof,
be converted into and become (A) an aggregate of [•] shares of Common Stock,
par value $0.01 per share, of ARDX Inc. (“ARDX Common Stock”) and (B)
the right to receive certain payments in the amounts set forth in the Tax
Receivable Agreement (the “TRA Agreement”), dated as of [•], by and
among ARDX Inc., the Summit




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	 	 	 	Blocker Stockholders, the Summit Non-Blocker Members, the Management
Members, and the KRG Blocker Stockholders, attached hereto as Exhibit
C (“TRA Payments”);






	 	(ii)	 	the shares of common stock of Summit Blocker 2 outstanding
immediately prior to the Corporate Merger Effective Time shall, by virtue of
the Corporate Merger and without any action on the part of the holder thereof,
be converted into and become (A) an aggregate of [•] shares of ARDX Common
Stock and (B) the right to receive TRA Payments; and






	 	(iii)	 	the shares of common stock of KRG Blocker outstanding
immediately prior to the Corporate Merger Effective Time shall, by virtue of
the Corporate Merger and without any action on the part of the holder thereof,
be converted into and become (A) an aggregate of [•] shares of ARDX Common
Stock and (B) the right to receive TRA Payments.





     (b) At the LLC Merger Effective Time, each of the following transactions shall be deemed to
occur simultaneously, subject to Section 1.7:




	 	(i)	 	the Class A-1 Units of Aurora LLC outstanding immediately
prior to the LLC Merger Effective Time shall, by virtue of the LLC Merger and
without any action on the part of the holder thereof, be converted into and
become (A) an aggregate of [•] shares of ARDX Common Stock and (B) the right
to receive TRA Payments;






	 	(ii)	 	the Class A Units of Aurora LLC outstanding immediately prior
to the LLC Merger Effective Time shall, by virtue of the LLC Merger and
without any action on the part of the holder thereof, be converted into and
become (A) an aggregate of [•] shares of ARDX Common Stock and (B) the right
to receive TRA Payments;






	 	(iii)	 	the Class B Units of Aurora LLC outstanding immediately
prior to the LLC Merger Effective Time shall, by virtue of the LLC Merger and
without any action on the part of the holder thereof, be converted into and
become (A) an aggregate of [•] shares of ARDX Common Stock and (B) the right
to receive TRA Payments;






	 	(iv)	 	the Class C Units of Aurora LLC outstanding immediately prior
to the LLC Merger Effective Time shall, by virtue of the LLC Merger and
without any action on the part of the holder thereof, be [converted into and
become (A) an aggregate of [•] shares of ARDX Common Stock and (B) the right
to receive TRA Payments][cancelled without consideration];






	 	(v)	 	the Class D-1 Units of Aurora LLC outstanding immediately
prior to the LLC Merger Effective Time shall, by virtue of the LLC Merger and
without any action on the part of the holder thereof, be [converted into and
become (A) an aggregate of [•] shares of ARDX Common Stock and (B) the right
to receive TRA Payments][cancelled without consideration];






	 	(vi)	 	the Class D-2 Units of Aurora LLC outstanding immediately
prior to the LLC Merger Effective Time shall, by virtue of the LLC Merger and
without any




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	 	 	 	action on the part of the holder thereof, be [converted into and become (A)
an aggregate of [•] shares of ARDX Common Stock and (B) the right to receive
TRA Payments][cancelled without consideration]; and






	 	(vii)	 	the Class D-3 Units of Aurora LLC outstanding immediately
prior to the LLC Merger Effective Time shall, by virtue of the LLC Merger and
without any action on the part of the holder thereof, be [converted into and
become (A) an aggregate of [•] shares of ARDX Common Stock and (B) the right
to receive TRA Payments][cancelled without consideration].





     (c) Each share of ARDX Common Stock issued and outstanding immediately prior to the Corporate
Merger Effective Time shall, by virtue of the Corporate Merger and without any action on the part
of the holder thereof, cease to be outstanding, shall be cancelled and retired without payment of
any consideration therefore and shall cease to exist.



     (d) The parties acknowledge that ARDX Inc. is issuing the ARDX Common Stock to the
stockholders of the respective Corporate Merging Entities pursuant to Section 1.6(a) and
Aurora LLC Members pursuant to Section 1.6(b) in reliance upon (i) the representations
given by such stockholder or member as a “Subscribing Party” in Section 1.8(h), and (ii) if
applicable, the respective representations and warranties given by such stockholder as a Summit
Blocker Stockholder or the KRG Blocker Stockholder, as the case may be, in Section 1.8.



     (e) The parties to this Agreement hereby acknowledge that ARDX Inc. shall be obligated to make
payments in the amounts and under the terms and conditions set forth in the TRA Agreement.



     Section 1.7 No Fractional Shares. Notwithstanding anything to the contrary in
Section 1.6, no fractional shares of ARDX Common Stock will be issued. If the number of
shares of ARDX Common Stock to be received by the stockholder of a Corporate Merging Entity or an
Aurora LLC Member is not a whole number, then the number of shares of ARDX Common Stock that such
person shall be entitled to receive pursuant to this Agreement shall be rounded up or down to the
nearest whole share (with one-half being rounded up).



     Section 1.8 Certain Representations.



     (a) Representations and Warranties of the Merging Entities. Each Merging Entity hereby
makes the following representations and warranties to ARDX Inc. solely with respect to itself and
not with respect to any other Merging Entity:




     (i) Such Merging Entity is a corporation or limited liability company, as applicable,
duly organized, validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization with full corporate or other organizational power and
authority to carry on its business as it is now being conducted and to own, operate and
lease its properties and assets.




     (ii) Except as set forth on Schedule 1.8(a)(ii), such Merging Entity does not
own, is not obligated and does not have a right to purchase any equity interest in or any
other security convertible into or exchangeable for an equity interest in any entity.




     (iii) The authorized, issued and outstanding equity interests (including for the
avoidance of doubt, capital stock and membership interests, as applicable) of such Merging
Entity on a fully diluted basis on the date hereof, and without giving effect to any of the
transactions



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contemplated hereby, are held beneficially and of record by the persons set forth on
Schedule 1.8(a)(iii). Except as set forth on Schedule 1.8(a)(iii), such
Merging Entity does not have any contracts containing any profit participation features,
appreciation rights or phantom equity interests, or similar contracts that allow any person
to participate in the equity of such Merging Entity. Except as set forth on Schedule
1.8(a)(iii), such Merging Entity is not subject to any contract or obligation
(contingent or otherwise) to issue, repurchase, purchase, redeem or otherwise acquire or
retire any equity interests of, or securities or obligations of any kind convertible into
equity interests (including options) of, such Merging Entity. Except as set forth on
Schedule 1.8(a)(iii), there are no equity interests of such Merging Entity that are
currently reserved for issuance and/or may be required to be issued upon the occurrence of
any event or condition. Except as set forth on Schedule 1.8(a)(iii), there are no
contracts that are binding upon such Merging Entity with respect to the voting, transfer,
encumbrance of the equity interests of such Merging Entity or with respect to any aspect of
such Merging Entity’s governance or dividends or distributions. The equity interest record
books of such Merging Entity that have been delivered to ARDX Inc. and/or its
representatives for inspection prior to the date hereof are complete and correct in all
material respects.




     (iv) Except as set forth on Schedule 1.8(a)(iv), all of the outstanding equity
interests of such Merging Entity are duly authorized, validly issued, fully paid and (if
such Merging Entity is a corporation) nonassessable, were issued by such Merging Entity in
compliance with all applicable regulations, are not subject to, nor were they issued in
violation of, any purchase option, call option, right of first refusal, first offer, co-sale
or participation, preemptive right, subscription right or any similar right.




     (v) Such Merging Entity (i) (A) with respect to each Corporate Merging Entity, was
formed solely for the purpose of directly or indirectly acquiring and holding equity
interests in Aurora LLC, and (B) with respect to Aurora LLC, was formed solely for the
purpose of acquiring and holding equity interests in Aurora Diagnostics, LLC (“Aurora
Diagnostics”), (ii) (A) with respect to each Corporate Merging Entity, has not engaged
in any business or operations or otherwise incurred any liability, indebtedness or
obligations other than in connection with direct or indirect owning and holding equity
interests in Aurora LLC, and (B) with respect to Aurora LLC, has not engaged in any business
or operations or otherwise incurred any liability, indebtedness or obligations other than in
connection with owning and holding equity interests in Aurora Diagnostics, and (iii) except
as set forth on Schedule 1.8(a)(v) does not have any employees or independent
contractors, (iv) except as set forth on Schedule 1.8(a)(v), has not entered into
any contracts other than its organizational documents, subscription agreements for the sale
of its equity interests (all of which equity interests are outstanding and will be cancelled
in the applicable Merger), and (A) with respect to each Corporate Merging Entity, the
limited liability company agreement of Aurora LLC, and (B) with respect to Aurora LLC, the
limited liability company agreement of Aurora Diagnostics, (v) (A) with respect to each
Corporate Merging Entity, does not have, hold or own any assets other than the equity
interests in Aurora LLC, and (B) with respect to Aurora LLC, does not have, hold or own any
assets other than the equity interests in Aurora Diagnostics, (vi) except as set forth on
Schedule 1.8(a)(v), is not a party to any claims or litigation and (vii) except as
set forth on Schedule 1.8(a)(v) does not have any obligations to make any
investments.




     (vi) Such Merging Entity has timely filed or caused to be timely filed (taking into
account any applicable extension of time within which to file) with the appropriate taxing
authorities all federal, state, foreign and local tax returns, if any, required to be filed
prior to the Closing Date. All taxes and tax liabilities due and payable by or with respect
to the income,



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assets or operations of such Merging Entity, if any, for all taxable years or other
taxable periods that end prior to the Closing Date have been timely paid in full prior to
the Closing.




     (vii) Such Merging Entity has operated in compliance in all material respects with all
applicable regulations and orders. There are no claims pending, or to the knowledge of such
Merging Entity threatened, against such Merging Entity, nor has such Merging Entity received
any written notice, regarding any violations of any regulations or orders enforced by any
authority claiming jurisdiction over such Merging Entity.



     (b) Representations and Warranties of the Investors. Each Summit Blocker Stockholder,
each KRG Blocker Stockholder and each Aurora LLC Member (collectively, the “Investors” and
each, an “Investor”) hereby makes the following representations and warranties to ARDX Inc.
solely with respect to itself and not with respect to any other Investor:




     (i) such Investor owns beneficially and of record the equity interests of the Merging
Entity set forth on Schedule 1.8(a)(iii) free and clear of all liens, orders,
contracts or other encumbrances whatsoever and has full right, power and authority to vote
the equity interests of the Merging Entity held by such Investor;




     (ii) such Investor is an “accredited investor” (as defined in Regulation D promulgated
under the Securities Act of 1933, as amended (the “Securities Act”));




     (iii) such Investor has had (or its respective representatives have had) access to the
same kind of information concerning ARDX Inc. that is required by Schedule A of the
Securities Act, to the extent that ARDX Inc. possesses such information;




     (iv) such Investor has such knowledge and experience in financial and business matters
that it is capable of utilizing the information that is available to it concerning ARDX Inc.
to evaluate the risks of investment in ARDX Inc. including the risk that it could lose its
entire investment in ARDX Inc.;




     (v) such Investor understands that the shares of ARDX Common Stock to be issued to or
received by it as described, as applicable, in Section 1.6(a) and/or Section
1.6(b) (the “Issued Shares”) have not been registered under the Securities Act,
the securities laws of any state or the securities laws of any other jurisdiction and that
such Issued Shares must be held indefinitely unless the sale or transfer is registered under
the Securities Act and such other securities laws or an exemption from registration under
the Securities Act and such other securities laws covering the sale or transfer of such
Issued Shares is available;




     (vi) such Investor is purchasing the Issued Shares (other than any Issued Shares
intended to be sold in connection with the underwritten initial public offering (the
“IPO”) of ARDX Inc.’s Common Stock, par value $0.01 per share) for its own account
for investment and not with a view to, or for resale in connection with, a public offering
or distribution thereof in violation of the Securities Act;




     (vii) such Investor understands that the certificate or certificates representing the
Issued Shares (if certificated, and other than any Issued Shares intended to be sold in the
IPO) may be impressed with a legend stating that the Issued Shares have not been registered
under the Securities Act or state securities laws and setting out or referring to the
restrictions on the transferability and resale of the Issued Shares; and



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     (viii) such Investor understands that stop transfer instructions in respect of the
Issued Shares may be issued to any transfer agent, transfer clerk or other agent at any time
acting for ARDX Inc.



     Section 1.9 ARDX Inc. Representations. ARDX Inc. hereby makes the following
representations and warranties to each of the Merging Entities, the Summit Blocker Stockholders,
the KRG Blocker Stockholders and the Aurora LLC Members:



     (a) ARDX Inc. is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation with full corporate power and authority to carry on its
business as it is now being conducted and to own, operate and lease its properties and assets.



     (b) The ARDX Common Stock to be issued in accordance with Section 1.6(a) and
Section 1.6(b) will be duly authorized by all necessary corporate action on the part of
ARDX Inc. and, when issued in accordance with the terms hereof, will be validly issued, fully paid
and non-assessable.



     Section 1.10 Tax Matters.



     (a) Each of the Corporate Merger Constituent Entities intend for and will use all reasonable
best efforts to cause the Corporate Merger to qualify as a reorganization under Section 368(a) of
the Internal Revenue Code of 1986, as amended (the “Code”), with respect to ARDX Inc. and
each of the Corporate Merging Entities, and no party hereto will take any position inconsistent
with the status of the Corporate Merger as such a reorganization on any Tax Return (as defined
below) or related document or in any proceeding before a Tax authority.



     (b) Each of the LLC Merger Constituent Entities intend for and will use all reasonable best
efforts to cause the LLC Merger to qualify as a transfer under Section 351 of the Code with respect
to ARDX Inc., Aurora LLC, the Summit Non-Blocker Members and the Management Members, and no party
hereto will take any position inconsistent with the status of the LLC Merger as such a transfer on
any Tax Return or related document or in any proceeding before a Tax authority.



ARTICLE II




CLOSING



     Section 2.1 The Closing.



     (a) Promptly following the execution hereof, each Corporate Merger Constituent Entity shall
deliver to each other Corporate Merger Constituent Entity evidence of the adoption of this
Agreement and the approval of the Corporate Merger by the requisite vote of such Corporate Merger
Constituent Entity’s stockholders.



     (b) Promptly following the execution hereof, each LLC Merger Constituent Entity shall deliver
to the other LLC Merger Constituent Entity evidence of the adoption of this Agreement and the
approval of the LLC Merger by the requisite vote, as applicable, of such LLC Merger Constituent
Entity’s stockholders or members.



     (c) Subject to the delivery of such evidence set forth in Section 2.1(a) and
Section 2.1(b), the consummation of the Corporate Merger and the LLC Merger (the
“Closing”) will take place at the offices of Alston & Bird LLP, 90 Park Avenue, New York,
NY 10016, on the date hereof (the “Closing Date”).




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     Section 2.2 Closing Date Events.



     (a) At the Closing, each of the Corporate Merger Constituent Entities shall cause the
Corporate Merger Certificate to be filed as provided in Section 1.2(a).



     (b) At the Closing, each of the LLC Merger Constituent Entities shall cause the LLC Merger
Certificate to be filed as provided in Section 1.2(b).



ARTICLE III




MISCELLANEOUS




     Section 3.1 Indemnification.



     (a) Summit Ventures VI-B, L.P. shall indemnify and hold harmless ARDX Inc. (and its respective
officers, directors, employees, agents and representatives) for any and all loss, liability, claim,
damage and expense (including the cost of investigation and reasonable attorneys’ fees and
expenses), whether or not involving a third-party claim, arising, directly or indirectly, from or
in connection with any breach of any representation or warranty made by Summit Ventures VI-B, L.P.
or Summit Blocker 1 in this Agreement.



     (b) Summit Partners Private Equity Fund VII-B, L.P. shall indemnify and hold harmless ARDX
Inc. (and its respective officers, directors, employees, agents and representatives) for any and
all loss, liability, claim, damage and expense (including the cost of investigation and reasonable
attorneys’ fees and expenses), whether or not involving a third-party claim, arising, directly or
indirectly, from or in connection with any breach of any representation or warranty made by Summit
Partners Private Equity Fund VII-B, L.P. or Summit Blocker 2 in this Agreement.



     (c) Each KRG Blocker Stockholder shall indemnify and hold harmless ARDX Inc. (and its
respective officers, directors, employees, agents and representatives) for any and all loss,
liability, claim, damage and expense (including the cost of investigation and reasonable attorneys’
fees and expenses), whether or not involving a third-party claim, arising, directly or indirectly,
from or in connection with any breach of any representation or warranty made by such KRG Blocker
Stockholder or KRG Blocker in this Agreement.



     (d) Each Aurora LLC Member shall indemnify and hold harmless ARDX Inc. (and its respective
officers, directors, employees, agents and representatives) for any and all loss, liability, claim,
damage and expense (including the cost of investigation and reasonable attorneys’ fees and
expenses), whether or not involving a third-party claim, arising, directly or indirectly, from or
in connection with any breach of any representation or warranty made by such Aurora LLC Member in
this Agreement.



     Section 3.2 Counterparts. This Agreement may be executed in one or more counterparts
(which may be delivered by facsimile or electronic transmission), all of which shall be considered
one and the same agreement, and shall become effective when one or more such counterparts have been
signed by each party hereto and delivered to the other parties hereto.



     Section 3.3 Termination.



     (e) Notwithstanding anything herein to the contrary, the Corporate Merger may be abandoned by
agreement of each of the Corporate Merger Constituent Entities at any time prior to the



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Corporate Merger Effective Time. Any such abandonment of the Corporate Merger shall be deemed
to constitute and effect the simultaneous termination of this Agreement with respect to all of the
rights and obligations of each Corporate Merger Constituent Entity hereunder.




     (f) Notwithstanding anything herein to the contrary, the LLC Merger may be abandoned by
agreement of each of the LLC Merger Constituent Entities at any time prior to the LLC Merger
Effective Time. Any such abandonment of the LLC Merger shall be deemed to constitute and effect
the simultaneous termination of this Agreement with respect to all of the rights and obligations of
each LLC Merger Constituent Entity hereunder.



     Section 3.4 Further Assurances. If at any time the Surviving Entity shall consider or
be advised that any further assignment or assurances in law are necessary or desirable to vest in
the Surviving Entity the title to any property or rights of the Merging Entities, the respective
stockholders or members, as applicable, and officers of each Merging Entity shall grant the
stockholders and officers of the Surviving Entity a limited power of attorney to execute and make
all such proper assignments and assurances in law and to do all things necessary and proper to thus
vest such property or rights in the Surviving Entity, and otherwise to carry out the purposes of
this Agreement.



     Section 3.5 Governing Law. This Agreement and any disputes arising under or related
thereto shall be governed by and construed in accordance with the internal laws of the State of
Delaware applicable to agreements made and to be performed entirely within such State, without
regard to the conflicts of law principles of such State.



ARTICLE IV




TAX INDEMNITY




     SECTION 4.1 Definitions.



     (a) “Tax Return” means any return, declaration, report, claim for refund, information
return, or other document (including any related or supporting estimates, elections, schedules,
statements, or information), including any amendments thereto, filed or required to be filed in
connection with the determination, assessment, or collection of any Tax or the administration of
any legal requirements relating to any Tax.



     (b) “Tax” or “Taxes” (and with correlative meaning, “Taxable” and
“Taxing”) means (i) any federal, state, provincial, local, foreign or other income,
alternative, minimum, add-on minimum, accumulated earnings, personal holding company, franchise,
capital stock, net worth, capital, profits, intangibles, windfall profits, gross receipts, value
added, sales, use, goods and services, excise, customs duties, transfer, conveyance, mortgage,
registration, stamp, documentary, recording, premium, severance, environmental (including taxes
under Section 59A of the Code), natural resources, real property, personal property, ad valorem,
intangibles, rent, occupancy, license, occupational, employment, unemployment insurance, social
security, disability, workers’ compensation, payroll, health care, withholding, estimated or other
taxes, duties, levies or other similar governmental charges or assessments or deficiencies thereof
(including all interest and penalties thereon and additions thereto whether disputed or not) and
(ii) any liability in respect of any items described in clause (i) above by reason of (a) being a
transferee or successor or by having been a member of a combined or consolidated group, or (b) by
contract or otherwise.



10









 





     SECTION 4.2 Tax Indemnity Obligations of the KRG Blocker Stockholders.



     (a) KRG Tax Returns. ARDX Inc. and the KRG Blocker Stockholders agree and acknowledge
that as a result of Corporate Merger, KRG Blocker shall cease to exist and its tax year shall end
for federal and applicable state, local and foreign income tax purposes on the Closing Date. The
KRG Blocker Stockholders shall appoint a designee (the “KRG Designee”) to prepare and file
all Tax Returns of KRG Blocker with respect to any taxable year or period that ends on or before
the Closing Date and any taxable year or period beginning before and ending after the Closing Date,
which are due after the Closing Date. The KRG Designee shall prepare or cause to be prepared such
Tax Returns in accordance with the procedures, practices and accounting methods of KRG Blocker in
effect as of the date hereof. With respect to such Tax Returns, the KRG Designee shall provide
drafts of such Tax Returns to ARDX Inc. for its review and comment no later than thirty (30) days
prior to the due date for filing such Tax Returns, such comments to be delivered to the KRG
Designee within the next twenty (20) days. The KRG Designee shall make all such revisions and
otherwise implement all such comments provided by ARDX Inc. that the KRG Designee, in its sole
discretion and in good faith, deems reasonable. ARDX Inc. shall cooperate with the KRG Designee in
filing such Tax Returns, including causing the applicable entities to sign and file such Tax
Returns.



     (b) Tax Indemnity. The KRG Blocker Stockholders shall indemnify and hold harmless ARDX
Inc. from any and all liabilities, losses, damages, deficiencies, assessments, judgments and costs
or expenses (including out-of-pocket expenses for investigation and defense and reasonable
attorneys’ fees) actually incurred or sustained by ARDX Inc. with respect to or in connection with
Taxes imposed on ARDX Inc. as successor to KRG Blocker that are attributable to any taxable period
ending on or before the Closing Date and with respect to any taxable period that includes but does
not end on the Closing Date, the portion of such period that ends on and includes the Closing Date
(“Pre-Closing Tax Period”) (including as a result of the Corporate Merger, but excluding
Taxes attributable to events subsequent to the Corporate Merger Effective Time) of the KRG Blocker.



     (c) Cooperation on Tax Matters.




     (i) Unless otherwise required by law, ARDX Inc. shall not take any action which could
reasonably be expected to increase the liability of the KRG Blocker Stockholders for Taxes
attributable to any Pre-Closing Tax Period (including any action which could reasonably be
expected to increase the liability of the KRG Blocker Stockholders attributable to the
Corporate Merger) under this Agreement without the prior written consent of the KRG
Designee, which may be withheld by the KRG Designee in its sole discretion. ARDX Inc. shall
not amend, refile or otherwise modify any applicable portion of any Tax Return or Tax
election of KRG Blocker for any Pre-Closing Tax Period, or take any other action with
respect to such a Tax Return, that could reasonably be expected to increase the liability of
the KRG Blocker Stockholders for Taxes under this Agreement, without the prior written
consent of the KRG Designee, which consent may be withheld by the KRG Designee in its sole
discretion. Except as otherwise contemplated by this Agreement, ARDX Inc. shall not take any
action from and after the date of this Agreement but prior to the Corporate Merger Effective
Time that is outside the ordinary course of business.




     (ii) After the date of this Agreement, ARDX Inc. shall not, without the written consent
of the KRG Designee, agree to waive or extend the statute of limitations relating to any
Taxes of KRG Blocker for any Pre-Closing Tax Period.




     (iii) ARDX Inc. shall notify the KRG Designee in writing within ten (10) days upon
receipt by ARDX Inc. of notice of any pending or threatened federal, state, local or foreign
Tax



11









 







audits, assessments, or administrative or judicial proceedings affecting the Taxes or
Tax attributes of KRG Blocker that could result in any Tax liability for which the KRG
Blocker Stockholders may be liable to ARDX Inc. hereunder (a “KRG Tax Claim”). Such
notice shall contain factual information describing any asserted Tax liability and shall
include copies of any notice or other document received from any taxing authority in respect
of any such asserted Tax liability.




     (iv) ARDX Inc. and the KRG Designee shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of Tax Returns
pursuant to Section 4.2(a) and any audit, assessment, litigation or other proceeding
with respect to Taxes, and each shall (i) retain all books and records with respect to Tax
matters pertinent to KRG Blocker until the expiration of the statute of limitations
(including any extensions thereof) applicable to such taxable periods, and to abide by all
record retention agreements entered into with any taxing authority and (ii) to give to the
other party reasonable written notice prior to transferring, destroying or discarding any
such books and records and, if such other party so requests, the party will allow the other
party to take possession of such books and records.



     (d) Tax Contests. The KRG Designee shall, at its own expense, have the right to
control the contest of any KRG Tax Claim (a “KRG Tax Proceeding”) provided that (i) ARDX
Inc. may participate in the conduct of such KRG Tax Proceeding at its own expense, and (ii) the
settlement or other resolution of such KRG Tax Proceeding shall be subject to the written consent
of ARDX Inc., which consent shall not be unreasonably withheld, conditioned or delayed; provided,
however, that no such consent shall be required where such settlement provides for the payment by
the KRG Blocker, the KRG Blocker Stockholders, or the KRG Designee of money as the sole remedy and
includes as an unconditional term thereof the giving by the claimant of a release from all
liability with respect to such KRG Tax Claim.



     (e) Tax Refunds. Any refunds for Taxes (including any interest in respect thereof)
received by ARDX Inc., and any amounts credited against Taxes to which ARDX Inc. becomes entitled
(including by way of any amended Tax Return), that relate to Pre-Closing Tax Period of the KRG
Blocker, shall be property of the KRG Blocker Stockholders, except in each case to the extent such
refund or credit resulted from the carryback of a net operating loss or other Tax attribute that
was economically generated after the date of this Agreement. ARDX Inc. shall pay to the KRG
Designee any such refund or the amount of any such credit within fifteen (15) days after receipt or
entitlement thereto.



      SECTION 4.3 Tax Indemnity Obligations of the Summit Blocker Stockholders.



     (a) Summit Tax Returns. ARDX Inc. and the Summit Blocker Stockholders agree and
acknowledge that as a result of the Corporate Merger, the Summit Blockers shall cease to exist and
its tax year shall end for federal and applicable state, local and foreign income tax purposes on
the Closing Date. The Summit Blocker Stockholders shall appoint a designee (the “Summit
Designee”) to prepare and file all Tax Returns of the Summit Blockers with respect to any
taxable year or period that ends on or before the Closing Date and any taxable year or period
beginning before and ending after the Closing Date, which are due after the Closing Date. The
Summit Designee shall prepare or cause to be prepared such Tax Returns in accordance with the
procedures, practices and accounting methods of the Summit Blockers in effect as of the date
hereof. With respect to such Tax Returns, the Summit Designee shall provide drafts of such Tax
Returns to ARDX Inc. for its review and comment no later than thirty (30) days prior to the due
date for filing such Tax Returns, such comments to be delivered to the Summit Designee within the
next twenty (20) days. The Summit Designee shall make all such revisions and otherwise implement
all such comments provided by ARDX Inc. that the Summit Designee, in its sole discretion and in
good faith, deems reasonable. ARDX Inc. shall cooperate with the Summit Designee in filing such
Tax Returns, including causing the applicable entities to sign and file such Tax Returns.



12









 





     (b) Tax Indemnity.




     (i) Summit Ventures VI-B, L.P. shall indemnify and hold harmless ARDX Inc. from any and
all liabilities, losses, damages, deficiencies, assessments, judgments and costs or expenses
(including out-of-pocket expenses for investigation and defense and reasonable attorneys’
fees) actually incurred or sustained by ARDX Inc. with respect to or in connection with
Taxes imposed on ARDX Inc. as successor to the Summit Blocker 1 that are attributable to any
Pre-Closing Tax Period (including as a result of the Corporate Merger, but excluding Taxes
attributable to events subsequent to the Corporate Merger Effective Time) of the Summit
Blocker 1.




     (ii) Summit Partners Private Equity Fund VII-B, L.P. shall indemnify and hold harmless
ARDX Inc. from any and all liabilities, losses, damages, deficiencies, assessments,
judgments and costs or expenses (including out-of-pocket expenses for investigation and
defense and reasonable attorneys’ fees) actually incurred or sustained by ARDX Inc. with
respect to or in connection with Taxes imposed on ARDX Inc. as successor to the Summit
Blocker 2 that are attributable to any Pre-Closing Tax Period (including as a result of the
Corporate Merger, but excluding Taxes attributable to events subsequent to the Corporate
Merger Effective Time) of the Summit Blocker 2.



     (c) Cooperation on Tax Matters.




     (i) Unless otherwise required by law, ARDX Inc. shall not take any action which could
reasonably be expected to increase the liability of the Summit Blocker Stockholders for
Taxes attributable to any Pre-Closing Tax Period (including any action which could
reasonably be expected to increase the liability of the Summit Blocker Stockholders
attributable to the Corporate Merger) under this Agreement without the prior written consent
of the Summit Designee, which may be withheld by the Summit Designee in its sole discretion.
ARDX Inc. shall not amend, refile or otherwise modify any applicable portion of any Tax
Return or Tax election of the Summit Blockers for any Pre-Closing Tax Period, or take any
other action with respect to such a Tax Return, that could reasonably be expected to
increase the liability of the Summit Blocker Stockholders for Taxes under this Agreement,
without the prior written consent of the Summit Designee, which consent may be withheld by
the Summit Designee in its sole discretion. Except as otherwise contemplated by this
Agreement, ARDX Inc. shall not take any action from and after the date of this Agreement but
prior to the Corporate Merger Effective Time that is outside the ordinary course of
business.




     (ii) After the date of this Agreement, ARDX Inc. shall not, without the written consent
of the Summit Designee, agree to waive or extend the statute of limitations relating to any
Taxes of the Summit Blockers for any Pre-Closing Tax Period.




     (iii) ARDX Inc. shall notify the Summit Designee in writing within ten (10) days upon
receipt by ARDX Inc. of notice of any pending or threatened federal, state, local or foreign
Tax audits, assessments, or administrative or judicial proceedings affecting the Taxes or
Tax attributes of the Summit Blockers that could result in any Tax liability for which the
Summit Blocker Stockholders may be liable to ARDX Inc. hereunder (a “Summit Tax
Claim”). Such notice shall contain factual information describing any asserted Tax
liability and shall include copies of any notice or other document received from any taxing
authority in respect of any such asserted Tax liability.



13









 






     (iv) ARDX Inc. and the Summit Designee shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of Tax Returns
pursuant to Section 4.3(a) and any audit, assessment, litigation or other proceeding
with respect to Taxes, and each shall (i) retain all books and records with respect to Tax
matters pertinent to the Summit Blockers until the expiration of the statute of limitations
(including any extensions thereof) applicable to such taxable periods, and to abide by all
record retention agreements entered into with any taxing authority and (ii) to give to the
other party reasonable written notice prior to transferring, destroying or discarding any
such books and records and, if such other party so requests, the party will allow the other
party to take possession of such books and records.



     (d) Tax Contests. The Summit Designee shall, at its own expense, have the right to
control the contest of any Summit Tax Claim (a “Summit Tax Proceeding”) provided that (i)
ARDX Inc. may participate in the conduct of such Summit Tax Proceeding at its own expense, and (ii)
the settlement or other resolution of such Summit Tax Proceeding shall be subject to the written
consent of ARDX Inc., which consent shall not be unreasonably withheld, conditioned or delayed;
provided, however, that no such consent shall be required where such settlement provides for the
payment by the Summit Blockers, the Summit Blocker Stockholders, or the Summit Designee of money as
the sole remedy and includes as an unconditional term thereof the giving by the claimant of a
release from all liability with respect to such Summit Tax Claim.



     (e) Tax Refunds. Any refunds for Taxes (including any interest in respect thereof)
received by ARDX Inc., and any amounts credited against Taxes to which ARDX Inc. becomes entitled
(including by way of any amended Tax Return), that relate to any Pre-Closing Tax Period of the
Summit Blockers, shall be property of the Summit Blocker Stockholders, except in each case to the
extent such refund or credit resulted from the carryback of a net operating loss or other Tax
attribute that was economically generated after the date of this Agreement. ARDX Inc. shall pay to
the Summit Designee any such refund or the amount of any such credit within fifteen (15) days after
receipt or entitlement thereto.



     SECTION 4.4 Tax Allocation Provisions. In the case of any Tax Return for a
Pre-Closing Tax Period that does not end on the Closing Date (a “Straddle Period”), and for
purposes of determining hereunder the amount of Taxes attributable to a Pre-Closing Tax Period or
any taxable period (or portion thereof) that is not a Pre-Closing Tax Period generally, the amount
of Taxes attributable to the Pre-Closing Tax Period shall be deemed to be (i) in the case of Taxes
imposed on a periodic basis (such as certain franchise Taxes, real or personal property Taxes), the
amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears
basis, the amount of such Taxes for the immediately preceding period) multiplied by a fraction, the
numerator of which is the number of calendar days in the Straddle Period ending on and including
the Closing Date and the denominator of which is the number of calendar days in the entire relevant
Straddle Period and (ii) in the case of Taxes not described in (i) above (such as Taxes that are
based upon or related to income or receipts, based upon occupancy or imposed in connection with any
sale or other transfer or assignment of property (real or personal, tangible or intangible)), the
amount of any such Taxes shall be determined as if such taxable period and the taxable period ended
of as of the close of business on the Closing Date.



14









 





     SECTION 4.5. Aurora LLC Partnership Tax Year. The parties agree that, for purposes of
federal income tax and applicable state income tax, the partnership tax year of Aurora LLC shall
end on the Closing Date. ARDX Inc. and the Aurora LLC Members agree to report the LLC Merger for
federal income tax, and applicable state income tax, as an assets-over transaction in accordance
with Rev. Rul. 84-111, 1984-2 C.B. 88, in which all income recognized by Aurora LLC as a result of
the LLC Merger shall be allocated to the Summit Non-Blocker Members and the Management Members, and
not to ARDX Inc. or the Corporate Merging Entities, unless otherwise required by law.



[SIGNATURES ON NEXT PAGE]





15












 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of Merger to be
duly executed as of the date first written above.



ARDX INC:




AURORA DIAGNOSTICS, INC.




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






[Signature Page to Agreement and Plan of Merger]





 









 








SUMMIT BLOCKER 1:




SV VI-B AURORA BLOCKER CORP.




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






SUMMIT BLOCKER 2:




SPPE VII-B AURORA BLOCKER CORP.




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






SUMMIT BLOCKER STOCKHOLDERS:




SUMMIT VENTURES VI-B, L.P.




By: Summit Partners VI (GP), L.P.

Its: General Partner




By: Summit Partners VI (GP), LLC

Its: General Partner




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title: Member	 	 






SUMMIT PARTNERS PRIVATE EQUITY FUND VII-B, L.P.




By: Summit Partners PE VII, L.P.

Its: General Partner




By: Summit Partners PE VII, LLC

Its: General Partner




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title: Member	 	 






[Signature Page to Agreement and Plan of Merger]





 









 








KRG BLOCKER:




KRG AURORA BLOCKER, INC.




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






KRG BLOCKER STOCKHOLDERS:




KRG CAPITAL FUND IV, L.P.




By: KRG Capital Management, L.P., with respect to its Class IV series

Its: General Partner




By: KRG Capital, LLC, with respect to its Class IV series

Its: General Partner




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name: Mark M. King	 	 
	 

	 	Title: Managing Director	 	 






KRG CAPITAL FUND IV-A, L.P.




By: KRG Capital Management, L.P., with respect to its Class IV series

Its: General Partner




By: KRG Capital, LLC, with respect to its Class IV series

Its: General Partner




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name: Mark M. King	 	 
	 

	 	Title: Managing Director	 	 






[Signature Page to Agreement and Plan of Merger]








 









 








KRG CAPITAL FUND IV, (PA) L.P.




By: KRG Capital Management, L.P., with respect to its Class IV series

Its: General Partner




By: KRG Capital, LLC, with respect to its Class IV series

Its: General Partner




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name: Mark M. King	 	 
	 

	 	Title: Managing Director	 	 






KRG CAPITAL FUND IV, (FF) L.P.




By: KRG Capital Management, L.P., with respect to its Class IV series

Its: General Partner




By: KRG Capital, LLC, with respect to its Class IV series

Its: General Partner




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name: Mark M. King	 	 
	 

	 	Title: Managing Director	 	 






KRG CO-INVESTMENT, L.L.C.




By: King Consulting Corporation

Its: Managing Member




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name: Mark M. King	 	 
	 

	 	Title: President	 	 






[Signature Page to Agreement and Plan of Merger]








 









 








AURORA LLC:




AURORA DIAGNOSTICS HOLDINGS, LLC




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






AURORA LLC MEMBERS:




SV VI-B AURORA BLOCKER CORP.




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






SPPE VII-B AURORA BLOCKER CORP.




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






KRG AURORA BLOCKER, INC.




	 	 	 	 	 

	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






[Signature Page to Agreement and Plan of Merger]







 









 








SUMMIT VENTURES VI-A, L.P.




By: Summit Partners VI (GP), L.P.

Its: General Partner




By: Summit Partners VI (GP), LLC

Its: General Partner




	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Member	 	 






SUMMIT VI ADVISORS FUND, L.P.




By: Summit Partners VI (GP), L.P.

Its: General Partner




By: Summit Partners VI (GP), LLC

Its: General Partner




	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Member	 	 






SUMMIT VI ENTREPRENEURS FUND, L.P.




By: Summit Partners VI (GP), L.P.

Its: General Partner




By: Summit Partners VI (GP), LLC

Its: General Partner




	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Member	 	 






[Signature Page to Agreement and Plan of Merger]







 









 








SUMMIT INVESTORS VI, L.P.




By: Summit Partners VI (GP), L.P.

Its: General Partner




By: Summit Partners VI (GP), LLC

Its: General Partner




	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Member	 	 






SUMMIT PARTNERS PRIVATE EQUITY FUND VII-A, L.P.,




By: Summit Partners PE VII, L.P.

Its: General Partner




By: Summit Partners PE VII, LLC

Its: General Partner




	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Member	 	 






SUMMIT PARTNERS VI (GP), L.P.




By: Summit Partners VI (GP), LLC

Its: General Partner




	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Member	 	 






SUMMIT PARTNERS PE VII, L.P.




By: Summit Partners PE VII, LLC

Its: General Partner




	 	 	 	 	 	 	 

	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Member	 	 






[Signature Page to Agreement and Plan of Merger]





 









 








MANAGEMENT MEMBERS:




	 	 	 

	James C. New

	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Christopher Jahnle
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Kirk A. Rebane
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Martin J. Stefanelli
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Fred Ferrara
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Michael Null
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Deanna Shackley
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Michael Grattendick
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Greg Marsh
	 	 
	 
	 	 
	 
	 	 





[Signature Page to Agreement and Plan of Merger]





 












 





Schedule 1.8(a)(ii)




Certain Rights to Other Securities


Aurora LLC





	 	1.	 	Aurora LLC directly owns 100% of the outstanding membership interests of Aurora
Diagnostics.




 









 











Schedule 1.8(a)(iii)




Capitalization




	 	1.	 	The following are the holders of the outstanding equity interests of each Merging
Entity:





	 	 	 
	Merging Entity	 	Stockholders/Members
	Summit Blocker 1

	 	Summit Ventures VI-B, L.P.
	 
	 	 
	Summit Blocker 2

	 	Summit Partners Private Equity Fund VII-B, L.P.
	 
	 	 
	KRG Blocker

	 	KRG Capital Fund IV, L.P.
	 

	 	KRG Capital Fund IV-A, L.P.
	 

	 	KRG Capital Fund IV (FF), L.P.
	 

	 	KRG Capital Fund IV (PA), L.P.
	 

	 	KRG Co-Investment, L.L.C.
	 
	 	 
	Aurora Diagnostics

	 	SV VI-B Aurora Blocker Corp.
	Holdings, LLC

	 	SPPE VII-B Aurora Blocker Corp.
	 

	 	KRG Aurora Blocker, Inc.
	 

	 	Summit Ventures VI, L.P.
	 

	 	Summit VI Advisors Fund, L.P.
	 

	 	Summit VI Entrepreneurs Fund, L.P.
	 

	 	Summit Investors VI, L.P.
	 

	 	Summit Partners Private Equity Fund VII-A, L.P.
	 

	 	Summit Partners VI (GP), L.P.
	 

	 	Summit Partners PE VII, L.P.
	 

	 	James C. New
	 

	 	Christopher Jahnle
	 

	 	Kirk A. Rebane
	 

	 	Martin J. Stefanelli
	 

	 	Fred Ferrara
	 

	 	Michael Null
	 

	 	Gregory Marsh
	 

	 	Michael Grattendick
	 

	 	Deanna Shackley





Aurora LLC





	 	2.	 	Amended and Restated Limited Liability Company Agreement, dated June 12, 2009, among
Aurora Diagnostics Holdings, LLC and the other parties named therein.






	 	3.	 	Amended and Restated Registration Rights Agreement, dated June 12, 2009, by and among
Aurora Diagnostics Holdings, LLC and each of the signatories thereto.




 









 











Schedule 1.8(a)(iv)




Certain Rights to Equity Interests


None.









 









 








Schedule 1.8(a)(v)




Certain Activities and Agreements


Summit Blocker 1 and Summit Blocker 2



Summit Blocker 1 and Summit Blocker 2 each were party to a limited partnership agreement, of which
each was the sole limited partner, for a partnership formed for the purpose of holding its indirect
investment in Aurora LLC. The assets of each such partnership were distributed out to the
partnership’s respective limited partner and general partner immediately prior to Summit Blocker 1
and Summit Blocker 2 entering into this Agreement.



Aurora LLC



Aurora LLC has previously entered into to the following agreements:





	 	1.	 	Purchase Agreement, dated March 7, 2008, by and among Aurora Diagnostics Holdings, LLC,
Aurora Diagnostics, LLC, TCD Holdings, Inc. and Valda Kaye, M.D.






	 	2.	 	Senior Management Agreement, dated June 2, 2006, by and among Aurora Diagnostics
Holdings, LLC and James C. New.






	 	3.	 	Senior Management Agreement, dated October 2006, by and among Aurora Diagnostics
Holdings, LLC, Aurora Diagnostics, LLC, James C. New and Martin J. Stefanelli.






	 	4.	 	Senior Management Agreement, dated November 5, 2007, by and among Aurora Diagnostics
Holdings, LLC, Aurora Diagnostics, LLC and Greg Marsh.






	 	5.	 	Letter Agreement, dated August 11, 2008, by and among Aurora Diagnostics Holdings, LLC,
Aurora Diagnostics, LLC and Greg Marsh.






	 	6.	 	Senior Management Agreement, dated October 2006, by and among Aurora Diagnostics
Holdings, LLC, Aurora Diagnostics, LLC, James C. New and Fred Ferrara.






	 	7.	 	Senior Management Agreement, dated April 2007, by and among Aurora Diagnostics
Holdings, LLC, Aurora Diagnostics, LLC, James C. New and Michael Null.






	 	8.	 	Master Promissory Note, dated November 17, 2006, by James C. New in favor of Aurora
Diagnostics Holdings, LLC.






	 	9.	 	Executive Unit Pledge Agreement, dated June 2, 2006, by and between James C. New and
Aurora Diagnostics Holdings, LLC.






	 	10.	 	Promissory Note, dated March 7, 2008, by James C. New in favor of Aurora Diagnostics
Holdings, LLC.






	 	11.	 	Pledge Agreement, dated March 7, 2008, by and between James C. New and Aurora
Diagnostics Holdings, LLC.






	 	12.	 	Master Promissory Note, dated November 17, 2006, by Martin J. Stefanelli in favor of
Aurora Diagnostics Holdings, LLC.




 









 












	 	13.	 	Executive Unit Pledge Agreement, dated October 2, 2006, by and between Martin J.
Stefanelli and Aurora Diagnostics Holdings, LLC.






	 	14.	 	Promissory Note, dated March 7, 2008, by Martin J. Stefanelli in favor of Aurora
Diagnostics Holdings, LLC.






	 	15.	 	Pledge Agreement, dated March 7, 2008, by and between Martin J. Stefanelli and Aurora
Diagnostics Holdings, LLC.






	 	16.	 	Master Promissory Note, dated November 17, 2006, by Fred Ferrara in favor of Aurora
Diagnostics Holdings, LLC.






	 	17.	 	Executive Unit Pledge Agreement, dated October 2, 2006, by and between Fred Ferrara and
Aurora Diagnostics Holdings, LLC.






	 	18.	 	Pledge Agreement, dated March 7, 2008, by and between Fred Ferrara and Aurora
Diagnostics Holdings, LLC.






	 	19.	 	Promissory Note, dated March 7, 2008, by Fred Ferrara in favor of Aurora Diagnostics
Holdings, LLC.






	 	20.	 	Master Promissory Note, dated April 23, 2007, by Michael Null in favor of Aurora
Diagnostics Holdings, LLC.






	 	21.	 	Executive Unit Pledge Agreement, dated April 23, 2007, by and between Michael Null and
Aurora Diagnostics Holdings, LLC.






	 	22.	 	Promissory Note, dated March 7, 2008, by Michael Null in favor of Aurora Diagnostics,
Holdings, LLC.






	 	23.	 	Pledge Agreement, dated March 7, 2008, by and between Michael Null and Aurora
Diagnostics Holdings, LLC.






	 	24.	 	Manager Indemnification Agreement, dated as of June 2, 2006, by and between Aurora
Diagnostics Holdings, LLC and James C. New.






	 	25.	 	Manager Indemnification Agreement, dated as of June 2, 2006, by and between Aurora
Diagnostics Holdings, LLC and Thomas S. Roberts.






	 	26.	 	Manager Indemnification Agreement, dated as of June 2, 2006, by and between Aurora
Diagnostics Holdings, LLC and Wesley W. Lang, Jr.






	 	27.	 	Manager Indemnification Agreement, dated as of June 2, 2006, by and between Aurora
Diagnostics Holdings, LLC and Peter J. Connolly.






	 	28.	 	Manager Indemnification Agreement, dated as of June 2, 2006, by and between Aurora
Diagnostics Holdings, LLC and Christopher J. Dean.






	 	29.	 	Manager Indemnification Agreement, dated as of June 12, 2009, by and between Aurora
Diagnostics Holdings, LLC and Mark M. King.




 









 












	 	30.	 	Manager Indemnification Agreement, dated as of June 12, 2009, by and between Aurora
Diagnostics Holdings, LLC and Christopher J. Bock.






	 	31.	 	Manager Indemnification Agreement, dated as of June 12, 2009, by and between Aurora
Diagnostics Holdings, LLC and Blain Tikker.






	 	32.	 	Management Rights Agreement, dated June 2, 2006, by and among Summit Ventures VI-A,
L.P., SV VI-B Aurora Holdings, L.P., Summit Ventures VI-B, L.P., Summit VI Advisors Fund,
L.P., Summit VI Entrepreneurs Fund, L.P., Summit Investors VI, L.P., Summit Partners
Private Equity Fund VII-A, L.P., SPPE VII-B Aurora Holdings, L.P., Summit Partners Private
Equity Fund VII-B, L.P. and Aurora Diagnostics Holdings, LLC.






	 	33.	 	Management Rights Agreement, dated June 12, 2009, by and among KRG Capital Partners,
L.L.C., KRG Aurora Blocker, Inc. and Aurora Diagnostics Holdings, LLC.






	 	34.	 	Management Rights Agreement, dated June 2, 2006, by and among GSO Special Situations
Fund LP and GSO Sumnostics Holdings (US), Inc., and Aurora Diagnostics Holdings, LLC.






	 	35.	 	Registration Agreement, dated June 2, 2006, by and among Aurora Diagnostics Holdings,
LLC, Summit Ventures VI-A, L.P., SV VI-B Aurora Holdings, L.P., Summit VI Advisors Fund,
L.P., Summit VI Entrepreneurs Fund, L.P., Summit Investors VI, L.P., Summit Partners
Private Equity Fund VII-A, L.P., SPPE VII-B Aurora Holdings, L.P., GSO Special Situations
Fund LP and GSO Sumnostics Holdings (US), Inc., James C. New and other executive employees
named from time to time, and Christopher Jahnle, Kirk A. Rebane, and other equityholders
named from time to time, as amended and restated on June 12, 2009, by and among Aurora
Diagnostics Holdings, LLC and each of the signatories thereto.






	 	36.	 	Consulting Agreement, dated June 2, 2006, by and between Aurora Diagnostics, LLC,
Aurora Diagnostics Holdings, LLC and Haverford, Capital Advisors, Inc.






	 	37.	 	Equity Incentive Plan of Aurora Diagnostics Holdings, LLC.






	 	38.	 	Engagement Letter, dated March 20, 2009, by and between Wachovia Capital Markets, LLC
and Aurora Diagnostics Holdings, LLC, as amended by that certain amendment thereto, dated
June 10, 2009.






	 	39.	 	Agreement, dated as of June 10, 2009, by and among Wachovia Capital Markets, LLC,
Aurora Diagnostics Holdings, LLC and Lazard Middle Market LLC.






	 	40.	 	Release Letter, dated June 10, 2009, from Wachovia Capital Markets, LLC to Aurora
Diagnostics Holdings, LLC.






	 	41.	 	Release Letter, dated June 10, 2009, from Lazard Middle Market LLC to Aurora
Diagnostics Holdings, LLC.






	 	42.	 	Contribution and Termination Agreement, dated as of June 12, 2009, by and among Aurora
Diagnostics Holdings, LLC, Aurora Diagnostics, LLC, GSO Capital Partners LP, GSO Special
Situations Fund LP, GSO Special Situations Overseas Master Fund Ltd. and GSO Credit
Opportunities Fund (Helios), L.P.




 









 












	 	43.	 	Escrow Agreement, dated June 12, 2009, by and among GSO Capital Partners LP, GSO
Special Situations Fund LP, GSO Special Situations Overseas Master Fund Ltd., GSO Credit
Opportunities Fund (Helios), L.P., Aurora Diagnostics Holdings, LLC and Regions Bank.






	 	44.	 	Credit Agreement, dated June 2, 2006, among Aurora Diagnostics, LLC, Aurora Diagnostics
Holdings, LLC and certain subsidiaries of Aurora Diagnostics, LLC, as Guarantors, GSO
Capital Partners LP as Collateral Agent and Administrative Agent, and the lenders party
thereto from time to time.






	 	45.	 	Security Agreement, dated November 17, 2006, among Aurora Diagnostics, LLC, Aurora
Diagnostics Holdings, LLC and certain subsidiaries of Aurora Diagnostics, LLC, as
Guarantors, and GSO Capital Partners LP as Collateral Agent.






	 	46.	 	First Lien Credit and Guaranty Agreement dated as of December 10, 2007, among Aurora
Diagnostics, LLC and certain subsidiaries of Aurora Diagnostics, LLC, as Borrowers, Aurora
Diagnostics Holdings, LLC and certain subsidiaries of Aurora Diagnostics Holdings, LLC, as
Guarantors, the lenders executing the signature pages attached thereto and the
Administrative Agent, Collateral Agent, Lead Arranger, Syndication Agent and Documentation
Agent, each as defined therein, and all amendments thereto.






	 	47.	 	Second Lien Credit and Guaranty Agreement dated as of December 10, 2007, among Aurora
Diagnostics, LLC and certain subsidiaries of Aurora Diagnostics, LLC, as Borrowers, Aurora
Diagnostics Holdings, LLC and certain subsidiaries of Aurora Diagnostics Holdings, LLC, as
Guarantors, the lenders executing the signature pages attached thereto and the
Administrative Agent, Collateral Agent, Lead Arranger, Syndication Agent and Documentation
Agent, each as defined therein, and all amendments thereto.






	 	48.	 	Credit and Guaranty Agreement, dated May 26, 2010, by and among Aurora Diagnostics LLC
as Borrower, Aurora Diagnostics Holdings, LLC and certain subsidiaries and affiliates of
Aurora Diagnostics, LLC as Guarantors, the various lenders party thereto, Barclays Bank PLC
as Administrative Agent and Collateral Agent, Barclays Capital, Morgan Stanley Senior
Funding, Inc. and UBS Securities LLC as Joint Lead Arrangers and Joint Bookrunners, Morgan
Stanley Senior Funding, Inc. as Syndication Agent and UBS Securities LLC as Documentation
Agent.






	 	49.	 	Pledge and Security Agreement, dated May 26, 2010, among Aurora Diagnostics, LLC,
Aurora Diagnostics Holdings, LLC and certain subsidiaries of Aurora Diagnostics, LLC, as
Guarantors, and Barclays Bank PLC as Collateral Agent.






 












 





EXHIBIT A




CERTIFICATE OF MERGER

OF

SV VI-B AURORA BLOCKER CORP.,

(a Delaware corporation),

SPPE VII-B AURORA BLOCKER CORP.,

(a Delaware corporation)

AND

KRG AURORA BLOCKER, INC.

(a Delaware corporation)

INTO

AURORA DIAGNOSTICS, INC.

(a Delaware corporation)



     Pursuant to the provisions of Section 251 of the Delaware General Corporation Law (the
“DGCL”), the undersigned DO HEREBY CERTIFY THAT:




	 	1.	 	The name and jurisdiction of incorporation of the entities that are to merge (the
“Constituent Entities”) are SV VI-B Aurora Blocker Corp., a Delaware corporation
(“Summit Blocker 1”), SPPE VII-B Aurora Blocker Corp., a Delaware corporation
(“Summit Blocker 2”), KRG Aurora Blocker, Inc., a Delaware corporation (“KRG
Blocker” and, together with Summit Blocker 1 and Summit Blocker 2, the
“Blockers”) and Aurora Diagnostics, Inc., a Delaware corporation (“ARDX
Inc.”).






	 	2.	 	An Agreement and Plan of Merger (the “Merger Agreement”) has been approved,
adopted, certified, executed and acknowledged by each of the Constituent Entities in
accordance with Section 251 of the DGCL.






	 	3.	 	The name of the surviving entity is “Aurora Diagnostics, Inc.” (the “Surviving
Entity”).






	 	4.	 	The certificate of incorporation of ARDX Inc. as in effect immediately preceding the
filing of this certificate of merger shall continue as the certificate of incorporation of
the Surviving Entity until it is amended in accordance with its terms and the terms of the
DGCL.






	 	5.	 	The executed Merger Agreement is on file at the principal place of business of the
Surviving Entity, the address of which is [•].






	 	6.	 	The merger of the Blockers and ARDX Inc. shall be effective as of [•] local time on
[•].






	 	7.	 	A copy of the Merger Agreement will be furnished by the Surviving Entity, on request
and without cost, to any stockholder of any Constituent Entity.





[SIGNATURES ON NEXT PAGE]




 









 





     IN WITNESS WHEREOF, this certificate has been executed as of this [•] day of [•], [•] by the
undersigned.



	 	 	 	 	 	 	 	 
	AURORA DIAGNOSTICS, INC. 

 	 	SV VI-B AURORA BLOCKER CORP.

 	 
	By:  	 	 	By:  	 	 
	 	Name:  	 	 	 	Name:  	 	 
	 	Title:  	 	 	 	Title:  	 	 
	
 
	 	SPPE VII-B AURORA BLOCKER CORP.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	
 
	 	KRG AURORA BLOCKER, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT B




CERTIFICATE OF MERGER

OF

AURORA DIAGNOSTICS HOLDINGS, LLC

(a Delaware limited liability company)

INTO

AURORA DIAGNOSTICS, INC.

(a Delaware corporation)




     Pursuant to the provisions of Section 251 of the Delaware General Corporation Law (the
“DGCL”) and 209 of the Delaware Limited Liability Company Act (the “LLC Act”), the
undersigned DO HEREBY CERTIFY THAT:




	 	8.	 	The name and jurisdiction of formation or organization of the entities that are to
merge (the “Constituent Entities”) Aurora Diagnostics Holdings, LLC, a Delaware
limited liability company (“Aurora LLC”) and Aurora Diagnostics, Inc., a Delaware
corporation (“ARDX Inc.”).






	 	9.	 	An Agreement and Plan of Merger (the “Merger Agreement”) has been approved,
adopted, certified, executed and acknowledged by each of the Constituent Entities in
accordance with Section 251 of the DGCL and Section 209 of the LLC Act.






	 	10.	 	The name of the surviving entity is “Aurora Diagnostics, Inc.” (the “Surviving
Entity”).






	 	11.	 	The certificate of incorporation of ARDX Inc. as in effect immediately preceding the
filing of this certificate of merger shall continue as the certificate of incorporation of
the Surviving Entity until it is amended in accordance with its terms and the terms of the
DGCL and the LLC Act.






	 	12.	 	The executed Merger Agreement is on file at the principal place of business of the
Surviving Entity, the address of which is [•].






	 	13.	 	The merger of the Aurora LLC and ARDX Inc. shall be effective as of [•] local time on
[•].






	 	14.	 	A copy of the Merger Agreement will be furnished by the Surviving Entity, on request
and without cost, to any stockholder of any Constituent Entity.





[SIGNATURES ON NEXT PAGE]




 









 





     IN WITNESS WHEREOF, this certificate has been executed as of this [•] day of [•], [•] by the
undersigned.




	 	 	 	 	 	 	 	 
	AURORA DIAGNOSTICS, INC. 

 	 	AURORA DIAGNOSTICS HOLDINGS, LLC

 	 
	By:  	 	 	By:  	 	 
	 	Name:  	 	 	 	Name:  	 	 
	 	Title:  	 	 	 	Title:  	 	 



 









 






EXHIBIT C




TAX RECEIVABLE AGREEMENT




	*	 	The Tax Receivable Agreement is filed as a separate exhibit to the registration statement of Aurora Diagnostics Inc.




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