Common use of REPRESENTATIONS AND WARRANTIES BY THE SELLERS Clause in Contracts

REPRESENTATIONS AND WARRANTIES BY THE SELLERS. Each of the Sellers jointly and severally represents and warrants to the Purchasers as follows: a. The statements made by the Seller in this Section 9 are and will be correct and complete as of the Effective Date of this Agreement and as of the Closing Date. b. Each of the Sellers is a corporation, validly existing and in good standing under the laws of the State of their domicile. c. This Agreement and the Documents to be executed and delivered by each Seller have been duly approved by all requisite action of such Seller, and such Seller has full power and authority to execute, deliver and perform this Agreement, together with all of the Documents to be executed and delivered by it. d. Practice Sellers own, have not assigned, and have the full right to assign the Practice Assets, free and clear of any claim, lien, encumbrance, option to purchase by, or other rights of any third person arising by, through or under any Seller. e. The Surgery Center Sellers own, have not assigned, and have the full right to assign the Surgery Center Assets, free and clear of any claim, lien, encumbrance, option to purchase by, or other rights of any third person arising by, through or under any Seller. f. This Agreement and the Documents to be executed and delivered by each of the Sellers constitutes the legal, valid and binding obligations of such Seller, and will be enforceable in accordance with their respective terms against such Seller, subject to bankruptcy, insolvency, moratorium, reorganization and similar laws of general applicability affecting the rights and remedies of creditors and to general principles of equity, regardless of whether enforcement is sought in proceedings in equity or at law. g. The execution and deliver by each Seller of this Agreement and the Documents, and any and all other agreements, documents or instruments contemplated hereby, and the fulfillment of and compliance with the respective terms hereof and thereof by the Sellers do not and will not (i) conflict with or result in a breach of the terms, conditions, or provisions of, (ii) constitute a default or event of default under, (iii) give any third party the right to accelerate any obligation under, (iv) result in a violation of, or (v) require any authorization, consent, approval exemption or other action by or notice to any court or governmental authority pursuant to, the articles of incorporation or bylaws of the Sellers or any regulation, order or contract to which any of the Sellers are subject, except for the required consent by HBK. h. Practice Sellers have title to all of the Practice Assets and will transfer same to the Original Practice, free and clear of all claims, liens or encumbrances, or has contractual rights to those Practice Assets which are leased and not owned. THE PRACTICE ASSETS ARE BEING SOLD “AS IS, WHERE IS” AND SELLERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES RELATING TO THE CONDITION, USABILITY, OR AGE OF ANY OF THE ASSETS. To the extent assignable, Practice Sellers shall transfer and assign their rights to any warranties relating to the Practice Assets to the Original Practice. i. Surgery Center Sellers have title to all of the Surgery Center Assets and will transfer same to the Surgery Center Buyers, free and clear of all claims, liens or encumbrances, or have contractual rights to those Surgery Center Assets which are leased and not owned. THE SURGERY CENTER ASSETS ARE BEING SOLD “AS IS, WHERE IS” AND SELLERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES RELATING TO THE CONDITION, USABILITY, OR AGE OF ANY OF THE ASSETS. To the extent assignable, Surgery Center Sellers shall transfer and assign their rights to any warranties relating to the Surgery Center to the Surgery Center Buyers. j. Other than the $100,000 finder’s fee owed to Xxxxx Xxxxx LLC by the Sellers, the Sellers have not employed any broker, finder, advisor, consultant or other intermediary in connection with this Agreement or the transaction contemplated hereby who is or might be entitled to any fee, commission or other compensation from any of the Purchasers, upon or as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby. k. The Sellers have delivered to the Purchasers an unaudited balance sheet of the PainCare Sub and the PainCare Surgery Centers as of April 30, 2007 (the “Financial Statement Date”), and the related unaudited statements of income, shareholders’ equity and cash flows for the period then ended (collectively, the “Financial Statements”). The Financial Statements were prepared from the books and records of such entities, which are correct and complete, except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. The Financial Statements present fairly and accurately the financial position of such entities and the results of its operations as of the respective dates and for the periods presented therein and have been prepared in accordance with GAAP except for footnotes and year-end closing adjustments and except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. To the knowledge of the Sellers, neither the PainCare Sub nor the PainCare Surgery Centers have undergone any material adverse change in its business, condition (financial or otherwise) or prospects, or suffered any material damage, destruction or loss (whether or not covered by insurance) since the Financial Statement Date. Since the Financial Statement Date, the PainCare Sub and the PainCare Surgery Centers have operated only in the ordinary course of business, and no change has been made or transaction entered into in anticipation of the transactions contemplated by this Agreement. l. Except as set forth in the Financial Statements, to the Sellers’ knowledge neither the PainCare Sub nor and the PainCare Surgery Centers have any liability, debt or obligation, whether known or unknown, absolute or contingent, arising under contract, in tort, by statute or regulation or otherwise, accrued or unaccrued, liquidated or unliquidated and due or to become due, and whether for the payment of money, the provision of goods or services or the performance of any other obligation (a “Liability”) except Liabilities which have arisen after the Financial Statement Date in the ordinary course of business, consistent with historical practice (none of which Liabilities arises out of or relates to any breach of contract, breach of warranty, tort, infringement or violation of law) and except to the extent any Liabilities have resulted from the action or inaction by any of the Purchasers m. To the Sellers’ knowledge, as of the Effective Date of this Agreement and the Closing Date, neither the Financial Statements nor any other information regarding the PainCare Sub and the PainCare Surgery Centers delivered by the Sellers to the Purchasers contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

REPRESENTATIONS AND WARRANTIES BY THE SELLERS. Each of the Sellers Sellers, jointly and severally severally, hereby represents and warrants to the Purchasers Buyer that the matters set forth below are true, accurate and not misleading as of the date of this Agreement and upon the Closing remains to be true, accurate and not misleading as of the date hereof and as of the Completion Date, as follows: a. The statements made by the Seller in this Section 9 are and will be correct and complete as of the Effective Date of this Agreement and as of the Closing Date. b. 7.2.1 Each of the Sellers Seller, if not an individual person, is a corporationan entity duly organized, validly existing and in good standing under the laws Laws of the State jurisdiction of their domicileits formation and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted. c. 7.2.2 Each Seller has all requisite power, authority and legal right and capacity to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform such Seller’s obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. This Agreement has been, and the Documents each Ancillary Document to which a Seller is or is required to be a party has been or shall be when delivered, duly and validly executed and delivered by each such Seller have been duly approved and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by all requisite action the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of such Seller, and enforceable against such Seller has full power and authority in accordance with its terms, subject to execute, deliver and perform this Agreement, together with all of the Documents to be executed and delivered by itEnforceability Exceptions. d. Practice 7.2.3 Sellers ownown good, have not assigned, valid and have marketable title to the full right to assign the Practice AssetsSale Shares, free and clear of any claimand all Liens (other than those imposed by applicable securities Laws or the Target Company’s Organizational Documents), lienwith each Seller owning the Sale Shares set forth on Annex I. There are no proxies, encumbrancevoting rights, option to purchase by, shareholders’ agreements or other rights agreements or understandings, to which a Seller is a party or by which a Seller is bound, with respect to the voting or transfer of any third person arising byof such Seller’s Sale Shares other than this Agreement. Upon delivery of the Sale Shares to the Buyer on the Completion losing Date in accordance with this Agreement, through or under any Seller. e. The Surgery Center Sellers ownthe entire legal and beneficial interest in the Sale Shares and good, have not assigned, valid and have marketable title to the full right to assign the Surgery Center AssetsSale Shares, free and clear of all Liens (other than those imposed by applicable securities Laws or those incurred by the Buyer), will pass to the Buyer. 7.2.4 Each Seller has the right to dispose of his, her or its Sale Shares and is the exclusive legal and beneficial owner of such Sale Shares, and has the absolute right to sell such Sale Shares. 7.2.5 The execution of this Agreement or to comply with the obligation under this Agreement will not result in any claimviolation, lienbreach of default of any term or provision of any mortgage, encumbranceindenture, option contract to purchase bywhich the Seller is a party of by which it may be bound, or other rights of any third person arising byprovision of any judgment, through decree, order, statue, rule or under any Sellerregulation applicable to or binding upon it. f. This 7.2.6 Except as otherwise described in Schedule 7.2.6, no Consent of or with any Governmental Authority on the part of any Seller is required to be obtained or made in connection with the execution, delivery or performance by such Seller of this Agreement or any Ancillary Documents or the consummation by a Seller of the transactions contemplated hereby or thereby other than (a) such filings as expressly contemplated by this Agreement and the Documents (b) pursuant to be executed and delivered by each of the Sellers constitutes the legal, valid and binding obligations of such Seller, and will be enforceable in accordance with their respective terms against such Seller, subject to bankruptcy, insolvency, moratorium, reorganization and similar laws of general applicability affecting the rights and remedies of creditors and to general principles of equity, regardless of whether enforcement is sought in proceedings in equity or at lawAntitrust Laws. g. The 7.2.7 Except as otherwise described in Schedule 7.2.7, the execution and deliver delivery by each Seller of this Agreement and each Ancillary Document to which it is a party or otherwise bound and the consummation by such Seller of the transactions contemplated hereby and thereby, and compliance by each Seller with any of the provisions hereof and thereof, will not, (a) conflict with or violate any provision of any Seller’s Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Clause 7.2.6 hereof, and the waiting periods referred to therein having expired, and any and all other agreementscondition precedent to such Consent or waiver having been satisfied, documents conflict with or instruments contemplated herebyviolate any Law, and the fulfillment Order or Consent applicable to any Seller or any of and compliance with the respective terms hereof and thereof by the Sellers do not and will not its properties or assets or (c) (i) violate, conflict with or result in a breach of the terms, conditions, or provisions of, (ii) constitute a default (or an event which, with notice or lapse of default time or both, would constitute a default) under, (iii) give any third party result in the right to accelerate any obligation undertermination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by any Seller under, (v) result in a violation ofright of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vvii) require result in the creation of any authorizationLien upon any of the properties or assets of any Seller under, consent, approval exemption (viii) give rise to any obligation to obtain any third party consent or other action by or provide any notice to any court Person or governmental authority pursuant to(ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the articles of incorporation maturity or bylaws of the Sellers performance, cancel, terminate or modify any regulationright, order benefit, obligation or contract to which other term under, any of the Sellers terms, conditions or provisions of, any Contract to which a Seller is a party or a Seller or its properties or assets are subjectotherwise bound, except for any deviations from any of the required consent by HBKforegoing clauses (a), (b) or (c) that has not had and would not reasonably be expected to have a Material Adverse Effect on any Seller. h. Practice Sellers have title 7.2.8 There is no Action pending or, to all the Knowledge of such Seller, threatened, nor any Order is outstanding, against or involving any Seller or any of its officers, directors, managers, shareholders, properties, assets or businesses, whether at law or in equity, before or by any Governmental Authority, which would reasonably be expected to adversely affect the ability of such Seller to consummate the transactions contemplated by, and discharge its obligations under, this Agreement and the Ancillary Documents to which such Seller is or is required to be a party. 7.2.9 Each Seller: (a) is either (i) an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act or (ii) not a “U.S. person” as that term is defined pursuant to Regulation S under the Securities Act; (b) is acquiring its portion of the Practice Assets Exchange Shares for itself for investment purposes only, and will not with a view towards any resale or distribution of such Exchange Shares; (c) has been advised and understands that the Exchange Shares (i) are being issued in reliance upon one or more exemptions from the registration requirements of the Securities Act and any applicable state securities Laws, (ii) have not been and shall not be registered under the Securities Act or any applicable state securities Laws and, therefore, must be held indefinitely and cannot be resold unless such Exchange Shares are registered under the Securities Act and all applicable state securities Laws, unless exemptions from registration are available, available, and (iii) are subject to additional restrictions on transfer same pursuant to such Seller’s Lock-Up (as defined below); (d) is aware that an investment in the Buyer is a speculative investment and is subject to the Original Practicerisk of complete loss; and (e) acknowledges that the Buyer is under no obligation hereunder to register the Exchange Shares under the Securities Act. No Seller has any contract with any Person to sell, free and clear of all claims, liens or encumbrancestransfer, or grant participations to such Person, or to any third Person, with respect to the Exchange Shares. By reason of such Seller’s business or financial experience, or by reason of the business or financial experience of such Seller’s “purchaser representatives” (as that term is defined in Rule 501(h) under the Securities Act), each Seller is capable of evaluating the risks and merits of an investment in the Buyer and of protecting its interests in connection with this investment. Each Seller has contractual rights carefully read and understands all materials provided by or on behalf of the Buyer or its Representatives to those Practice Assets which such Seller or such Seller’s Representative pertaining to an investment in the Buyer and has consulted, as such Seller has deemed advisable, with its own attorneys, accountants or investment advisors with respect to the investment contemplated hereby and its suitability for such Seller. Each Seller acknowledges that the Exchange Shares are leased subject to dilution for events not under the control of such Seller. Each Seller has completed its independent inquiry and has relied fully upon the advice of its own legal counsel, accountant, financial and other Representatives in determining the legal, tax, financial and other consequences of this Agreement and the transactions contemplated hereby and the suitability of this Agreement and the transactions contemplated hereby for such Seller and its particular circumstances, and, except as set forth herein, has not ownedrelied upon any representations or advice by the Buyer or its Representatives. Each Seller acknowledges and agrees that, except as set forth in Clause 7.3, no representations or warranties have been made by the Buyer or any of its Representatives, and that such Seller has not been guaranteed or represented to by any Person, (i) any specific amount or the event of the distribution of any cash, property or other interest in the Buyer or (ii) the profitability or value of the Exchange Shares in any manner whatsoever. Each Seller: (A) has been represented by independent counsel (or has had the opportunity to consult with independent counsel and has declined to do so); (B) has had the full right and opportunity to consult with such Seller’s attorneys and other advisors and has availed itself of this right and opportunity; (C) has carefully read and fully understands this Agreement in its entirety and has had it fully explained to it or him by such counsel; (D) is fully aware of the contents hereof and the meaning, intent and legal effect thereof; and (E) is competent to execute this Agreement and has executed this Agreement free from coercion, duress or undue influence. 7.2.10 Each Seller understands that the Exchange Shares are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Buyer in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. 7.2.11 Each Seller understands and agrees that the certificate(s) or the documents representing the Exchange Shares will bear one or more restrictive legends determined by counsel to the Buyer to be necessary or appropriate in order to comply with United States federal or state securities laws or to secure or protect any applicable exemptions from registration or qualification, including a legend in substantially the following form and the Seller agrees to abide by the terms thereof: “THE PRACTICE ASSETS ARE BEING SOLD SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “AS IS, WHERE IS” AND SELLERS DISCLAIM ACT”) OR ANY AND ALL IMPLIED WARRANTIES OTHER APPLICABLE SECURITIES LAW OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSEANY STATE OR OTHER JURISDICTION, AND ANY AND ALL OTHER WARRANTIES RELATING HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT PROVIDED BY REGULATION S PROMULGATED UNDER THE ACT. THESE SECURITIES CANNOT BE TRANSFERRED, OFFERED, OR SOLD IN THE UNITED STATES OR TO A “U.S. PERSON” (AS THAT TERM IS DEFINED IN REGULATION S PROMULGATED UNDER THE ACT) UNLESS SUCH SECURITIES ARE REGISTERED UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE CONDITION, USABILITY, OR AGE OF ANY SATISFACTION OF THE ASSETSCORPORATION AND ITS COUNSEL. To the extent assignableHEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT. TO RESTRICTIONS ON TRANSFER SET FORTH IN THE SHARE EXCHANGE AGREEMENT, Practice Sellers shall transfer and assign their rights to any warranties relating to the Practice Assets to the Original Practice. i. Surgery Center Sellers have title to all of the Surgery Center Assets and will transfer same to the Surgery Center BuyersDATED AS OF APRIL 8, free and clear of all claims, liens or encumbrances, or have contractual rights to those Surgery Center Assets which are leased and not owned2020 BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN. A COPY OF SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE SURGERY CENTER ASSETS ARE BEING SOLD “AS IS, WHERE IS” AND SELLERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES RELATING ISSUER TO THE CONDITIONHOLDER HEREOF UPON WRITTEN REQUEST.” 7.2.12 No Seller, USABILITYnor any of their respective representatives on their behalf, OR AGE OF ANY OF THE ASSETS. To the extent assignable, Surgery Center Sellers shall transfer and assign their rights to any warranties relating to the Surgery Center to the Surgery Center Buyers. j. Other than the $100,000 finder’s fee owed to Xxxxx Xxxxx LLC by the Sellers, the Sellers have not has employed any broker, finderfinder or investment banker or incurred any liability for any brokerage fees, advisorcommissions, consultant finders’ fees or other intermediary similar fees in connection with this Agreement or the transaction contemplated hereby who is or might be entitled to any fee, commission or other compensation from any of the Purchasers, upon or as a result of the execution of this Agreement or the consummation of the transactions contemplated herebyby this Agreement. k. The Sellers have delivered to the Purchasers an unaudited balance sheet 7.2.13 Each Seller has conducted its own independent investigation, review and analysis of the PainCare Sub and the PainCare Surgery Centers as of April 30business, 2007 (the “Financial Statement Date”), and the related unaudited statements of income, shareholders’ equity and cash flows for the period then ended (collectively, the “Financial Statements”). The Financial Statements were prepared from the books and records of such entities, which are correct and complete, except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. The Financial Statements present fairly and accurately the financial position of such entities and the results of its operations as of the respective dates and for the periods presented therein and have been prepared in accordance with GAAP except for footnotes and year-end closing adjustments and except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. To the knowledge of the Sellersoperations, neither the PainCare Sub nor the PainCare Surgery Centers have undergone any material adverse change in its businessprospects, condition (financial or otherwise) or prospectsassets of the Buyer, or suffered any material damageand acknowledges that it has been provided adequate access to the personnel, destruction or loss properties, assets, premises, books and records, and other documents and data of the Buyer for such purpose. Each Seller acknowledges and agrees that: (whether or not covered by insurancea) since in making its decision to enter into this Agreement and to consummate the Financial Statement Date. Since the Financial Statement Datetransactions contemplated hereby, the PainCare Sub it has relied solely upon its own investigation and the PainCare Surgery Centers express representations and warranties of the Buyer set forth in this Agreement and in any certificate delivered to such Seller pursuant hereto; and (b) neither the Buyer nor any of its Representatives have operated only made any representation or warranty as to the Buyer or this Agreement, except as expressly set forth in this Agreement or in any certificate delivered to such Seller pursuant hereto. 7.2.14 None of the information supplied or to be supplied by any Seller expressly for inclusion or incorporation by reference: (a) in any Current Report on Form 8-K or 6-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority (including the SEC) or stock exchange (including Nasdaq) with respect to the transactions contemplated by this Agreement or any Ancillary Documents; (b) in the ordinary course of business, and no change has been made Solicitation Documents; or transaction entered into (c) in anticipation the mailings or other distributions to the Buyer’s shareholders and/or prospective investors with respect to the consummation of the transactions contemplated by this Agreement. l. Except as set forth Agreement or in the Financial Statements, to the Sellers’ knowledge neither the PainCare Sub nor and the PainCare Surgery Centers have any liability, debt or obligation, whether known or unknown, absolute or contingent, arising under contract, in tort, by statute or regulation or otherwise, accrued or unaccrued, liquidated or unliquidated and due or to become due, and whether for the payment of money, the provision of goods or services or the performance of any other obligation (a “Liability”) except Liabilities which have arisen after the Financial Statement Date in the ordinary course of business, consistent with historical practice (none of which Liabilities arises out of or relates amendment to any breach of contractdocuments identified in (a) through (c), breach of warrantywill, tortwhen filed, infringement made available, mailed or violation of law) and except to the extent any Liabilities have resulted from the action or inaction by any of the Purchasers m. To the Sellers’ knowledgedistributed, as of the Effective Date of this Agreement and the Closing Datecase may be, neither the Financial Statements nor any other information regarding the PainCare Sub and the PainCare Surgery Centers delivered by the Sellers to the Purchasers contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading. None of the information supplied or to be supplied by any Seller expressly for inclusion or incorporation by reference in any SEC filings to be made by the Buyer will, when filed or distributed, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, no Seller makes any representation, warranty or covenant with respect to any information supplied by or on behalf of the Buyer or its Affiliates. 7.2.15 Each seller confirms that he has disclosed to the Buyer in writing all reasonable matters which a reasonable purchaser should know and undertakes to inform the Buyer in writing if it becomes aware of any matters of which will breach any warranties or are inconsistence to the warranties under this Agreement after this Agreement is executed and prior to the Completion Date.

REPRESENTATIONS AND WARRANTIES BY THE SELLERS. Each The Sellers represent and warrant to the Purchaser, all of which representation and warranties shall be true at the time of the Sellers jointly Closing Date and severally represents and warrants to shall survive the Purchasers as followsClosing Date for a period of two (2) years therefrom, that: a. The statements made by the Seller in this Section 9 are Sellers have, and will be correct and complete as of the Effective Date of this Agreement and as of have at the Closing Date. b. Each of the Sellers is a corporation, validly existing good and in good standing under the laws of the State of their domicile. c. This Agreement and the Documents marketable title to be executed and delivered by each Seller have been duly approved by all requisite action of such Seller, and such Seller has full power and authority to execute, deliver and perform this Agreement, together with all of the Documents shares of the Company that they are selling pursuant to be executed and delivered by it. d. Practice Sellers own, have not assigned, and have the full right to assign the Practice Assetsthis Agreement, free and clear of any claim, lien, encumbrance, option to purchase by, and all liens or other rights of any third person arising by, through or under any Sellerencumbrances. e. b. The Surgery Center Sellers own, have not assigned, and have the full right power to assign sell and transfer their shares in the Surgery Center Assets, free and clear capital of any claim, lien, encumbrance, option to purchase by, or other rights of any third person arising by, through or under any Seller. f. the Company upon the terms provided for in this Agreement. This Agreement and the Documents to be executed and delivered by each constitutes a valid binding obligation of the Sellers constitutes the legal, valid and binding obligations of such Seller, and will be enforceable in accordance with their respective terms against such Sellerits terms, subject to except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium, reorganization and insolvency or similar laws of general applicability affecting the creditors' rights and remedies of creditors and to by general principles of equity. The execution, regardless of whether enforcement is sought in proceedings in equity or at law. g. The execution delivery and deliver performance by each Seller the Sellers of this Agreement and the Documents, and any and all consummation of the other agreements, documents or instruments transactions contemplated hereby, and the fulfillment of and compliance with the respective terms hereof and thereof by this Agreement to be performed by the Sellers do not and will not require the authorization, consent, permit or approval of, or declaration to or filing with, any court, regulatory or public body or governmental authority or other third party not already obtained or made, or result in the creation of any lien, security interest, charge or encumbrance upon the capital stock or assets of the Company. c. The Sellers understand that, in connection with the issuance of the Purchaser Common Stock (i) conflict with the Purchaser is relying upon an exemption from registration under the Securities Act of 1933, as amended (the "Securities Act"), which relates to "transactions by an issuer not involving any public offering," and applicable regulations promulgated by the U.S. Securities and Exchange Commission ("SEC") thereunder or result in a breach other exemption under such act; and (ii) the Purchaser is also relying upon the accuracy of the termsrepresentations of the Sellers set forth in this Section 4 as an inducement to issue the Purchaser Common Stock under this Agreement. d. The Sellers have been afforded (i) the opportunity to ask such questions as they have deemed necessary of, conditionsand to receive answers from, or provisions ofrepresentatives of the Purchaser concerning the merits and risks of investing in the Purchaser Common Stock, (ii) constitute a default or event access to public information about the Purchaser and the Purchaser's financial condition, results of default underoperations, business, properties, management and prospects sufficient to enable it to evaluate its investment in the Purchaser Common Stock, and (iii) give any third party the right opportunity to accelerate any obligation under, obtain such additional public information that is necessary to make an informed decision with respect to the Purchaser Common Stock. The Sellers acknowledge that the Purchaser makes Filings (ivas hereinafter defined) result in a violation of, or under the Exchange Act (vas hereinafter defined) require any authorization, consent, approval exemption or other action by or notice to any court or governmental authority pursuant to, and that the articles of incorporation or bylaws Filings may be viewed and printed at the web site of the Sellers or any regulation, order or contract to which any of the SEC at www.sec.gov. e. The Sellers are subjectable to bear the economic rixx xx xx xxvestment in the Purchaser Common Stock and, except for at the required consent by HBKpresent time, is able to afford a complete loss of such investment. h. Practice Sellers have title to all of the Practice Assets and will transfer same to the Original Practice, free and clear of all claims, liens or encumbrances, or has contractual rights to those Practice Assets which are leased and not owned. THE PRACTICE ASSETS ARE BEING SOLD “AS IS, WHERE IS” AND SELLERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES RELATING TO THE CONDITION, USABILITY, OR AGE OF ANY OF THE ASSETS. To the extent assignable, Practice Sellers shall transfer and assign their rights to any warranties relating to the Practice Assets to the Original Practice. i. Surgery Center Sellers have title to all of the Surgery Center Assets and will transfer same to the Surgery Center Buyers, free and clear of all claims, liens or encumbrances, or have contractual rights to those Surgery Center Assets which are leased and not owned. THE SURGERY CENTER ASSETS ARE BEING SOLD “AS IS, WHERE IS” AND SELLERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES RELATING TO THE CONDITION, USABILITY, OR AGE OF ANY OF THE ASSETS. To the extent assignable, Surgery Center Sellers shall transfer and assign their rights to any warranties relating to the Surgery Center to the Surgery Center Buyers. j. Other than the $100,000 finder’s fee owed to Xxxxx Xxxxx LLC by the Sellers, the Sellers have not employed any broker, finder, advisor, consultant or other intermediary in connection with this Agreement or the transaction contemplated hereby who is or might be entitled to any fee, commission or other compensation from any of the Purchasers, upon or as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby. k. f. The Sellers have delivered such knowledge, sophistication and experience in business and financial matters so as to be able of evaluating the Purchasers an unaudited balance sheet merits and risks of the PainCare Sub and prospective investment in the PainCare Surgery Centers as of April 30, 2007 (the “Financial Statement Date”)Purchaser Common Stock, and have so evaluated the related unaudited statements merits and risks of income, shareholders’ equity and cash flows for such investment. g. The Sellers are not a "U.S. person" as such term is defined in Regulation S promulgated under the period then ended (collectively, the “Financial Statements”)Securities Act. The Financial Statements were prepared from the books and records of such entities, which are correct and complete, except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. The Financial Statements present fairly and accurately the financial position of such entities and the results of its operations as of the respective dates and for the periods presented therein and have been prepared in accordance with GAAP except for footnotes and year-end closing adjustments and except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. To the knowledge of the Sellers, neither the PainCare Sub nor the PainCare Surgery Centers have undergone any material adverse change in its business, condition (financial or otherwise) or prospects, or suffered any material damage, destruction or loss (whether or not covered by insurance) since the Financial Statement Date. Since the Financial Statement Date, the PainCare Sub and the PainCare Surgery Centers have operated only in the ordinary course of business, and no change has been made or transaction entered into in anticipation of the transactions contemplated by this AgreementAgreement are being negotiated and entered into outside the United States and neither of the Sellers is a citizen or resident of the United States. h. The Sellers are acquiring the Purchaser Common Stock for their own account for investment and not with a view to distribution. i. The Sellers understand that resale or transfer of the Purchaser Common Stock may only be undertaken pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act. In connection with any transfer of any Purchaser Common Stock other than pursuant to an effective registration statement under the Securities Act, the Purchaser may require that the transferor provide to the Purchaser an opinion of counsel, reasonably satisfactory to the Purchaser, to the effect that such transfer does not require registration of such Purchaser Common Stock under the Securities Act. j. The Sellers acknowledge and agree that the Purchaser Common Stock are subject to certain restrictions on public resale as set forth above and that the Purchaser is under no obligation to register, or assist in the registration of, the Purchaser Common Stock under the Securities Act or to make any exemption from registration under the Securities Act available. k. Notwithstanding anything set forth in this Agreement to the contrary, the Sellers acknowledge that after the acquisition of the Company, the Purchaser may negotiate with third parties for the possible issuance of additional shares of common stock of the Purchaser to acquire other corporations by the exchange of common stock or for the sale of additional shares of common stock to increase the operating capital of the Purchaser or for other legitimate corporate purposes. Therefore, the Sellers acknowledge and consent that the number of shares outstanding and number of shareholders of the Purchaser may change after the date hereof and the financial condition of Purchaser may change to reflect the results of any such issuances for assets of another corporation or may change to reflect the proceeds from a future sale of common stock. l. Except as The representations and warranties of the Company set forth in the Financial Statements, to the Sellers’ knowledge neither the PainCare Sub nor and the PainCare Surgery Centers have any liability, debt or obligation, whether known or unknown, absolute or contingent, arising under contract, in tort, by statute or regulation or otherwise, accrued or unaccrued, liquidated or unliquidated and due or to become due, and whether for the payment of money, the provision of goods or services or the performance of any other obligation (a “Liability”) except Liabilities which have arisen after the Financial Statement Date in the ordinary course of business, consistent with historical practice (none of which Liabilities arises out of or relates to any breach of contract, breach of warranty, tort, infringement or violation of law) and except to the extent any Liabilities have resulted from the action or inaction by any of the Purchasers m. To the Sellers’ knowledge, as of the Effective Date of this Agreement are true and the Closing Date, neither the Financial Statements nor any other information regarding the PainCare Sub and the PainCare Surgery Centers delivered by the Sellers to the Purchasers contain any untrue statement of a correct in all material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingrespects.

REPRESENTATIONS AND WARRANTIES BY THE SELLERS. Each of the Sellers Sellers, jointly and severally severally, represents and warrants to the Purchasers Purchaser as follows: a. The statements made by the Seller Sellers in this Section 9 6 are and will be correct and complete as of the Effective Date date of this Settlement Agreement and as of the Closing Date. b. Each of the Sellers is a corporation, validly existing and in good standing under the laws of the State of their domicile. c. This Settlement Agreement and the Settlement Documents to be executed and delivered by each Seller have been duly approved by all requisite action of such Seller, and such Seller has full power and authority to execute, deliver and perform this Settlement Agreement, together with all of the Settlement Documents to be executed and delivered by it. d. Practice Sellers ownPainCare Sub owns, have has not assigned, sold or otherwise transferred and have has the full right to assign sell the Practice AssetsManagement Company Stock Practice, free and clear of any claim, lien, encumbrance, option to purchase by, or other rights of any third person arising by, through or under any Seller, other than the liens granted to HBK Investments, LP, a Delaware limited partnership (“HBK”) in connection with that certain Loan and Security Agreement, dated as of May 10, 2005, and entered into by and between PainCare and HBK, among others (hereinafter referred to sometimes as the “HBK Debt” or “HBK Loan Agreement”), which liens HBK will release at Closing. e. The Surgery Center Sellers own, have not assigned, and have the full right to assign the Surgery Center Assets, free and clear of any claim, lien, encumbrance, option to purchase by, or other rights of any third person arising by, through or under any Seller. f. This Settlement Agreement and the Settlement Documents to be executed and delivered by each of the Sellers constitutes the legal, valid and binding obligations of such Seller, and will be enforceable in accordance with their respective terms against such Seller, subject to bankruptcy, insolvency, moratorium, reorganization and similar laws of general applicability affecting the rights and remedies of creditors and to general principles of equity, regardless of whether enforcement is sought in proceedings in equity or at law. g. f. The execution and deliver by each Seller of this Settlement Agreement and the Settlement Documents, and any and all other agreements, documents or instruments contemplated hereby, and the fulfillment of and compliance with the respective terms hereof and thereof by the Sellers do not and will not (i) conflict with or result in a breach of the terms, conditions, or provisions of, (ii) constitute a default or event of default under, (iii) give any third party the right to accelerate any obligation under, (iv) result in a violation of, or (v) require any authorization, consent, approval exemption or other action by or notice to any court or governmental authority pursuant to, the articles of incorporation or bylaws of the Sellers or any regulation, order or contract to which any of the Sellers are subject, except for the required consent by HBK. h. Practice Sellers have title to all of the Practice Assets and will transfer same to the Original Practice, free and clear of all claims, liens or encumbrances, or has contractual rights to those Practice Assets which are leased and not owned. THE PRACTICE ASSETS ARE BEING SOLD “AS IS, WHERE IS” AND SELLERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES RELATING TO THE CONDITION, USABILITY, OR AGE OF ANY OF THE ASSETS. To the extent assignable, Practice Sellers shall transfer and assign their rights to any warranties relating to the Practice Assets to the Original Practice. i. Surgery Center Sellers have title to all of the Surgery Center Assets and will transfer same to the Surgery Center Buyers, free and clear of all claims, liens or encumbrances, or have contractual rights to those Surgery Center Assets which are leased and not owned. THE SURGERY CENTER ASSETS ARE BEING SOLD “AS IS, WHERE IS” AND SELLERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES RELATING TO THE CONDITION, USABILITY, OR AGE OF ANY OF THE ASSETS. To the extent assignable, Surgery Center Sellers shall transfer and assign their rights to any warranties relating to the Surgery Center to the Surgery Center Buyers. j. Other than the $100,000 finder’s fee owed to Xxxxx Xxxxx LLC by the Sellers, the g. The Sellers have not employed any broker, finder, advisor, consultant or other intermediary in connection with this Settlement Agreement or the transaction contemplated hereby who is or might be entitled to any fee, commission or other compensation from any of the PurchasersPurchaser, upon or as a result of the execution of this Settlement Agreement or the consummation of the transactions contemplated hereby. k. The Sellers have delivered to the Purchasers an unaudited balance sheet of the PainCare Sub and the PainCare Surgery Centers as of April 30, 2007 (the “Financial Statement Date”), and the related unaudited statements of income, shareholders’ equity and cash flows for the period then ended (collectively, the “Financial Statements”). The Financial Statements were prepared from the books and records of such entities, which are correct and complete, except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. The Financial Statements present fairly and accurately the financial position of such entities and the results of its operations as of the respective dates and for the periods presented therein and have been prepared in accordance with GAAP except for footnotes and year-end closing adjustments and except to the extent any errors or omissions have resulted from information provided by any of the Purchasers. To the knowledge of the Sellers, neither the PainCare Sub nor the PainCare Surgery Centers have undergone any material adverse change in its business, condition (financial or otherwise) or prospects, or suffered any material damage, destruction or loss (whether or not covered by insurance) since the Financial Statement Date. Since the Financial Statement Date, the PainCare Sub and the PainCare Surgery Centers have operated only in the ordinary course of business, and no change has been made or transaction entered into in anticipation of the transactions contemplated by this Agreement. l. Except as set forth in the Financial Statements, to the Sellers’ knowledge neither the PainCare Sub nor and the PainCare Surgery Centers have any liability, debt or obligation, whether known or unknown, absolute or contingent, arising under contract, in tort, by statute or regulation or otherwise, accrued or unaccrued, liquidated or unliquidated and due or to become due, and whether for the payment of money, the provision of goods or services or the performance of any other obligation (a “Liability”) except Liabilities which have arisen after the Financial Statement Date in the ordinary course of business, consistent with historical practice (none of which Liabilities arises out of or relates to any breach of contract, breach of warranty, tort, infringement or violation of law) and except to the extent any Liabilities have resulted from the action or inaction by any of the Purchasers m. To the Sellers’ knowledge, as of the Effective Date of this Agreement and the Closing Date, neither the Financial Statements nor any other information regarding the PainCare Sub and the PainCare Surgery Centers delivered by the Sellers to the Purchasers contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.