0001193125-17-036401.txt : 20170210 0001193125-17-036401.hdr.sgml : 20170210 20170209185232 ACCESSION NUMBER: 0001193125-17-036401 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20170210 DATE AS OF CHANGE: 20170209 GROUP MEMBERS: RIVERWOOD CAPITAL GP LTD. GROUP MEMBERS: RIVERWOOD CAPITAL L.P. GROUP MEMBERS: RIVERWOOD CAPITAL MANAGEMENT L.P. GROUP MEMBERS: RIVERWOOD CAPITAL MANAGEMENT LTD. GROUP MEMBERS: RW LSG MANAGEMENT HOLDINGS LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LIGHTING SCIENCE GROUP CORP CENTRAL INDEX KEY: 0000866970 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC LIGHTING & WIRING EQUIPMENT [3640] IRS NUMBER: 232596710 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42472 FILM NUMBER: 17589018 BUSINESS ADDRESS: STREET 1: 1350 DIVISION ROAD STREET 2: SUITE 102 CITY: WEST WARWICK STATE: RI ZIP: 02893 BUSINESS PHONE: 321-779-5520 MAIL ADDRESS: STREET 1: 1350 DIVISION ROAD STREET 2: SUITE 102 CITY: WEST WARWICK STATE: RI ZIP: 02893 FORMER COMPANY: FORMER CONFORMED NAME: PHOENIX GROUP CORP DATE OF NAME CHANGE: 20001130 FORMER COMPANY: FORMER CONFORMED NAME: PHOENIX HEATHCARE CORP DATE OF NAME CHANGE: 19990519 FORMER COMPANY: FORMER CONFORMED NAME: IATROS HEALTH NETWORK INC DATE OF NAME CHANGE: 19941221 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Riverwood Capital Partners L.P. CENTRAL INDEX KEY: 0001485534 IRS NUMBER: 264649689 STATE OF INCORPORATION: E9 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 70 WILLOW ROAD, SUITE 100 CITY: MENLO PARK STATE: CA ZIP: 94025 BUSINESS PHONE: 650-618-7300 MAIL ADDRESS: STREET 1: 70 WILLOW ROAD, SUITE 100 CITY: MENLO PARK STATE: CA ZIP: 94025 SC 13D/A 1 d333093dsc13da.htm SC 13D/A SC 13D/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 7)*

 

 

Lighting Science Group Corporation

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

53224G103

(CUSIP Number)

Mei Liang

Riverwood Capital Partners L.P.

70 Willow Road, Suite 100

Menlo Park, CA 94025

(650) 687-7300

Copy to:

Kirsten Jensen

Simpson Thacher & Bartlett LLP

2475 Hanover Street

Palo Alto, CA 94304

(650) 251-5000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

February 3, 2017

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a Reporting Person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 53224G103  

 

  1.   

Names of Reporting Persons.

 

Riverwood Capital Partners L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

0

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

0

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

0

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

0%

14.  

Type of Reporting Persons (See Instructions)

 

PN


CUSIP No. 53224G103  

 

  1.   

Names of Reporting Persons.

 

Riverwood Capital L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

0

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

0

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

0

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

0%

14.  

Type of Reporting Persons (See Instructions)

 

PN


CUSIP No. 53224G103  

 

  1.   

Names of Reporting Persons.

 

Riverwood Capital GP Ltd.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

0

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

0

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

0

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

0%

14.  

Type of Reporting Persons (See Instructions)

 

OO


CUSIP No. 53224G103  

 

  1.   

Names of Reporting Persons.

 

RW LSG Management Holdings LLC

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

0

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

0

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

0

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

0%

14.  

Type of Reporting Persons (See Instructions)

 

OO


CUSIP No. 53224G103  

 

  1.   

Names of Reporting Persons.

 

Riverwood Capital Management L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

0

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

0

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

0

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

0%

14.  

Type of Reporting Persons (See Instructions)

 

PN


CUSIP No. 53224G103  

 

  1.   

Names of Reporting Persons.

 

Riverwood Capital Management Ltd.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ☐        (b)  ☒

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

OO

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

0

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

0

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

0

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

0%

14.  

Type of Reporting Persons (See Instructions)

 

OO


This Amendment No. 7 supplements and amends the initial statement on Schedule 13D filed by (i) RW LSG Holdings LLC (“RW LSGH”), (ii) Riverwood Capital Partners L.P., (iii) Riverwood Capital L.P., (iv) Riverwood Capital GP Ltd., (v) RW LSG Management Holdings LLC, (vi) Riverwood Capital Management L.P. and (vii) Riverwood Capital Management Ltd., with the Securities and Exchange Commission on June 4, 2012 with respect to shares of Common Stock, par value $0.001 per share, of Lighting Science Group Corporation (the “Initial Statement”) as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5 and Amendment No. 6 thereto filed with the Securities and Exchange Commission on June 13, 2012, June 20, 2012, September 26, 2012, September 13, 2013, January 7, 2014 and September 11, 2015 respectively (as amended, the “Schedule 13D”). This Amendment No. 7 of constitutes an exit filing for each of Riverwood Capital Partners L.P., Riverwood Capital L.P., Riverwood Capital GP Ltd., RW LSG Management Holdings LLC, Riverwood Capital Management L.P. and Riverwood Capital Management Ltd. Capitalized terms used but not defined herein shall have the meanings attributed to such terms in the Schedule 13D. The Schedule 13D is hereby amended and supplemented as follows:

 

Item 2. Identity and Background

Item 2 of the Schedule 13D is hereby amended and replaced in its entirety with the following:

This statement is being filed by (i) Riverwood Capital Partners L.P. (“RCP”), which is a Cayman Islands exempted limited partnership, (ii) Riverwood Capital L.P. (“RCLP”), which is a Cayman Islands exempted limited partnership, (iii) Riverwood Capital GP Ltd. (“RC Ltd.”), which is a Cayman Islands company limited by shares, (iv) RW LSG Management Holdings LLC (“RW LSGM”), which is a Delaware limited liability company, (v) Riverwood Capital Management L.P. (“RCM LP”), which is a Cayman Islands exempted limited partnership and (vi) Riverwood Capital Management Ltd. (“RCM Ltd.”), which is a Cayman Islands company limited by shares (all of the foregoing, the “Reporting Persons”). The principal business address of each of the Reporting Persons is 70 Willow Road, Suite 100, Menlo Park, CA 94025.

The principal business of RCP was to serve as the managing member of RW LSGH prior to the acquisition of RW LSGH by Holdings III (as defined below) and to manage investments in companies through partnerships and other limited liability companies.

The principal business of RCLP is to serve as the general partner of RCP and to manage investments in companies through partnerships and other limited liability companies.

The principal business of RC Ltd. is to serve as the general partner of RCLP and to manage investments in companies through partnerships and other limited liability companies.

The principal business of RW LSGM is to provide certain monitoring, advisory and consulting services to the Issuer from time to time and to manage investments in companies.

The principal business of RCM LP is to serve as an investment advisor to RCP, to serve as the managing member of RW LSGM and to manage investments in companies through partnerships and other limited liability companies.

The principal business of RCM Ltd. is to serve as the general partner of RCM LP and to manage investments in companies through partnerships and other limited liability companies.


The name, residence or business address, and present principal occupation or employment of each director and executive officer of RC Ltd. and RCM Ltd. are listed on Schedule I to this Schedule 13D. RCP, RCLP, RW LSGM and RCM LP do not have any directors or officers.

None of the Reporting Persons (nor, to the knowledge of the Reporting Persons, any of the persons listed on Schedule I hereto) has, during the past five years, been convicted of any criminal proceeding (excluding traffic violations or similar misdemeanors), nor been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 4. Purpose of Transaction

Item 4 of the Schedule 13D is hereby amended and supplemented by replacing the second, third and fourth paragraphs from the end thereof in their entirety with the following:

Execution of Option Exercise Agreement

On February 3, 2017, RCLP, Holdings III, RW LSGH, and RW LSGM entered into the Purchase Option Exercise Agreement (the “Option Exercise Agreement”), pursuant to which Holdings III exercised its purchase rights under the Option Agreement on the following amended terms: (a) Holdings III acquired all the outstanding membership interests in RW LSGH from RCLP and the other equityholders of RW LSGH for an aggregate amount equal to $9,000,000, (b) Holdings III acquired 554,221 shares of the Issuer’s Common Stock from RW LSGM for an aggregate price of $90,000, or a per share price of $0.16, and (c) Holdings III acquired the New Warrant from RW LSGM for no additional consideration. RW LSGH’s sole asset at the time of its acquisition by Holdings III was 45,000 shares of Series H Preferred, resulting in a price of $200.00 per share of Series H Preferred.

The description of the terms and conditions of the Subscription Agreement, the Series H Certificate, the Registration Rights Agreement, the Co-Sale Letter, the Services Agreement, the Warrant, the Letter Agreements, the New Warrant, the Amended and Restated Registration Rights Agreement, the Four-Party Co-Sale Letter, the Three-Party Co-Sale Letter, the Control Event Letter, the Fee Waiver Letter, the Voting Agreement, the Series J Subscription Agreement, the Series J Certificate, the Series H Subscription Agreement Amendment, the Option Agreement the Second Series J Subscription Agreement, the Series J Initial Warrant, the Series J Exchange Warrant, the First Amended Series J Certificate, the Second Amended Series H Certificate, the Equity Purchase Agreement, the Mutual Release, the Series J Subscription Agreement, the Amended Series H Certificate and the Option Exercise Agreement set forth herein does not purport to be complete and is qualified in its entirety by reference to the full text of the Subscription Agreement attached hereto as Exhibit 3, the Series H Certificate attached hereto as Exhibit 4, the Registration Rights Agreement attached hereto as Exhibit 5, the Co-Sale Letter attached hereto as Exhibit 6, the Services Agreement attached hereto as Exhibit 7, the Warrant attached hereto as Exhibit 8, the Letter Agreements attached hereto as Exhibits 9 and 10, the New Warrant attached hereto as Exhibit 11, the Amended and Restated Registration Rights Agreement attached hereto as Exhibit 12, the Four-Party Co-Sale Letter attached hereto as Exhibit 13, the Three-Party Co-Sale Letter attached hereto as Exhibit 14, the Control Event Letter attached hereto as Exhibit 15, the Fee Waiver Letter attached hereto as Exhibit 16, the Voting Agreement attached hereto as Exhibit 17, the Series J Subscription Agreement attached hereto as Exhibit 18, the Series J Certificate attached hereto as Exhibit 19, the Amended Series H Certificate attached hereto as Exhibit 20, and the Series H Subscription Agreement Amendment attached hereto as Exhibit 21, the Second Series J Subscription Agreement attached hereto as Exhibit 22, the Series J Initial Warrant attached hereto as Exhibit 23, the Series J Exchange Warrant attached hereto as Exhibit 24, the First Amended Series J Certificate attached hereto as Exhibit 25, the Second Amended Series H Certificate attached hereto as Exhibit 26, the Equity Purchase Agreement attached hereto as Exhibit 27, the Option Agreement attached hereto as Exhibit 28, the Mutual Release attached hereto as Exhibit 29 and the Option Exercise Agreement attached hereto as Exhibit 30, each of which is incorporated by reference.


Item 5. Interest in Securities of the Issuer

Item 5 of the Schedule 13D is hereby amended replaced in its entirety with the following:

(a), (b) The Reporting Persons no longer beneficially own any securities of the Issuer.

(c) Except as set forth in Item 4 hereof, to the best knowledge of each of the Reporting Persons, none of the Reporting Persons nor any other persons named in response to Item 2 hereof has engaged in any transactions during the past 60 days in any shares of Common Stock.

(d) No one other than the Reporting Persons has the right to receive dividends from, or the proceeds from the sale of, any of the securities of the Issuer reported on this Schedule 13D.

(e) The Reporting Persons ceased to beneficially own any securities of the Issuer on February 3, 2017.

 

Item 7. Material to Be Filed as Exhibits

Item 7 of the Schedule 13D is hereby amended and supplemented by adding additional exhibits as follows:

30. Purchase Option Exercise Agreement, dated as of February 3, 2017, by and among Riverwood Capital Partners L.P., LSGC HOLDINGS III LLC, RW LSG Holdings LLC and RW LSG Management Holdings LLC (filed herewith).


Signatures

After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Date: February 9, 2017

 

RW LSG MANAGEMENT HOLDINGS LLC

By:

 

Riverwood Capital Management L.P.,

 

as Managing Member

By:

 

Riverwood Capital Management Ltd.,

 

as General Partner

By:

 

*

 

Name: Michael E. Marks

 

Title:   Director

RIVERWOOD CAPITAL PARTNERS L.P

By:

 

Riverwood Capital L.P.,

 

as General Partner

By:

 

Riverwood Capital GP Ltd.,

 

as General Partner

By:

 

*

 

Name: Michael E. Marks

 

Title:   Director & CEO

RIVERWOOD CAPITAL L.P.

By:

 

Riverwood Capital GP Ltd.,

 

as General Partner

By:

 

*

 

Name: Michael E. Marks

 

Title:   Director & CEO

RIVERWOOD CAPITAL GP LTD.

By:

 

*

 

Name: Michael E. Marks

 

Title:   Director & CEO


RIVERWOOD CAPITAL MANAGEMENT L.P.
By:   Riverwood Capital Management Ltd.,
  as General Partner
By:  

*

  Name: Michael E. Marks
  Title:   Director
RIVERWOOD CAPITAL MANAGEMENT LTD.
By:  

*

  Name: Michael E. Marks
  Title:   Director

*/s/ Mei Liang

Attorney-in-Fact for Reporting Persons pursuant to Power of Attorney
EX-99.30 2 d333093dex9930.htm EX-99.30 EX-99.30

Exhibit 30

Execution Version

PURCHASE OPTION EXERCISE AGREEMENT

PURCHASE OPTION EXERCISE AGREEMENT, dated as of February 3, 2017 (this “Exercise Agreement”), among RIVERWOOD CAPITAL PARTNERS L.P., a Cayman Islands exempted limited partnership (“RCP”), LSGC HOLDINGS III LLC, a Delaware limited liability company (“Buyer”), RW LSG Holdings, LLC, a Delaware limited liability company (“RW LSG Holdings”) and RW LSG Management Holdings, LLC, a Delaware limited liability company (“RW LSG Management”).

RECITALS:

WHEREAS, pursuant to a Membership Interest Purchase Option dated as of September 11, 2015, among RCP, Buyer, RW LSG Holdings and RW LSG Management (the “Option Agreement”), Buyer was granted an option to acquire (i) all of the outstanding membership interests of RW LSG Holdings for an aggregate amount equal to $15,000,000, (ii) 554,221 shares of common stock, par value $0.001 per share, of Lighting Science Group Corporation, a Delaware corporation (“Common Stock”) for an aggregate of $150,000 and (iii) a warrant to purchase an aggregate of 12,664,760 shares of Common Stock for no additional consideration;

WHEREAS, capitalized terms used but not defined herein shall have the respective meanings set forth in the Option Agreement;

WHEREAS, Buyer desires to amend the Option Agreement as provided in this Exercise Agreement and to exercise the Purchase Option on such amended terms; and

WHEREAS, RCP and Sellers are willing to agree to the amendment of the Option Agreement on the terms and conditions provided herein, including the execution and delivery of a mutual release as provided herein.

NOW, THEREFORE, in consideration of the mutual covenants and conditions as hereinafter set forth, the parties hereto do hereby agree as follows:

1. Option Exercise. Buyer hereby notifies Seller of Buyer’s election to exercise the Purchase Option and purchase all of the Membership Interests and Optioned Common Stock and acquire the Special Warrant for no additional consideration, in each case in accordance with the terms and conditions of the Option Agreement as amended by the Price Amendment (as defined in Section 2 below). The Buyer and Seller covenant and agree to take all necessary actions to cause, subject to the terms and conditions set forth herein and in the Option Agreement, the closing of the transactions contemplated by the Purchase Option as more fully set forth in the Option Agreement no later than ten (10) Business Days following the date hereof. For purposes of this Exercise Agreement, “Business Day” shall mean a day, other than a Saturday or a Sunday, on which commercial banks located in New York, New York are not closed for business as a result of a federal, state or local holiday.

2. Price Amendment. The parties agree that solely for purposes of the exercise of the Purchase Option pursuant to Section 1 of this Exercise Agreement (the “February 2017 Exercise”), the Option Agreement shall be amended such that: (a) the Holdings Price shall equal $9,000,000 and (b) the Common Price shall equal $90,000 (the amendments provided in clauses (a) and (b), collectively, the “Price Amendment”). The Price Amendment shall not apply in any respect to any exercise of the Purchase Option other than the February 2017 Exercise, and to the extent the February 2017 Exercise is not consummated or completed in a timely manner in accordance with the provisions of the Option Agreement, the Price Amendment shall have no effect. The parties further acknowledge and agree that solely in connection with the February 2017 Exercise, the offer required to be made to VantagePoint pursuant to Section 8.8 of the Option Agreement shall be correspondingly amended to reflect the Price Amendment and shall be at a price of $200.00 per share.


3. Conditions to Closing.

(a) The obligations of Buyer to consummate the Closing shall be subject to the prior or concurrent satisfaction or waiver of each of the following conditions:

(i) Each of the Sellers, RW LSG Management, RW LSG Holdings and RCP, as applicable, shall have satisfied all of the conditions set forth in Section 3.1(a) of the Option Agreement (including the delivery by each Seller to Buyer of a duly executed Joinder Agreement);

(ii) Each of the Sellers, RW LSG Management and RW LSG Holdings shall have delivered to Buyer a certificate of an authorized officer of such Seller, RW LSG Management or RW LSG Holdings, as applicable, dated as of the Closing Date, stating that the conditions specified in Section 3.1(a)(ii) and Section 3.1(a)(iii) of the Option Agreement, solely as they relate to such Seller, RW LSG Management or RW LSG Holdings, as applicable, have been satisfied;

(iii) RCP shall have delivered, or cause to be delivered, to Buyer each of the items set forth in Section 3.2 of the Option Agreement; and

(iv) RCP shall have delivered to Buyer a counterpart signature page to a Mutual Release in the form attached as Exhibit A hereto dated the Closing Date (the “Mutual Release”), executed by RCP.

(b) The obligations of RCP, the other Sellers, RW LSG Management and RW LSG Holdings to consummate the Closing shall be subject to the prior or concurrent satisfaction or waiver of each of the following conditions:

(i) Buyer shall have satisfied all of the conditions set forth in Section 3.1(b) of the Option Agreement;

(ii) Buyer shall have delivered to RCP a certificate of any authorized officer of Buyer, dated as of the Closing Date, stating that the conditions specified in Section 3.1(b) of the Option Agreement have been satisfied;

(iii) Buyer shall have delivered, or caused to be delivered, to the Sellers and RW LSG Management, as applicable, each of the items set forth in Section 3.3 of the Option Agreement; and

(iv) Buyer shall have delivered, or caused to be delivered, to RCP the Mutual Release executed by Pegasus Capital Advisors, L.P.

4. Expenses. Buyer agrees to pay the reasonable and documented out-of-pocket costs and expenses of Sellers and RCP (including expense of legal counsel) in connection with the preparation and negotiation of this Agreement, the closing of the transactions contemplated hereby, any filings or notices required under applicable securities laws with respect thereto or otherwise incurred and currently outstanding with respect to the Company in an aggregate amount not to exceed $150,000.

5. Tax Matters. The parties agree that as a result of the transactions the taxable year of RW LSG Holdings shall terminate as of the Closing, for federal and applicable other income tax purposes, and all items of income, gain, loss and deduction for the taxable period through the close of business on the Closing Date shall be allocated to the owners of RW LSG Holdings immediately prior to the transactions (excluding, for the avoidance of doubt, Buyer). After the Closing, RCP shall prepare at its expense (in a

 

2


manner consistent with past practice, unless otherwise required by applicable law) and deliver to Buyer all U.S. federal and applicable other income Tax Returns of RW LSG Holdings for any taxable years ending on or prior to the Closing Date that have not been filed as of the Closing Date (the “Pre-Closing Income Tax Returns”) and Buyer shall, upon receipt of such Pre-Closing Income Tax Returns, cause such Pre-Closing Income Tax Returns to be promptly filed with the applicable Tax Authority, provided they are prepared in accordance with applicable law and that Buyer has such authority under applicable law. Buyer and RCP shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the preparation and filing of any Pre-Closing Income Tax Returns and any Tax audit, litigation or other proceeding with respect to RW LSG Holdings with respect to taxable periods (or portions thereof) ending on or before the Closing Date. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such Tax Return, audit, litigation or other proceeding or any tax planning and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. RCP shall, at its sole expense, represent the interests of RW LSG Holdings in any audit or dispute of any income Tax Return of RW LSG Holdings for any period ending on or before the Closing Date, including, without limitation, any disposition of such audit and any litigation resulting therefrom; provided, however, that (i) in order to control any such dispute RCP must first acknowledge in writing that any resulting taxes and losses will be borne by RCP, (ii) RCP shall not settle any such dispute without the prior written consent of Buyer, not to be unreasonably withheld, conditioned or delayed and (iii) Buyer and RW LSG Holdings shall be entitle to fully participate in any such proceedings at its sole expense.

6. Notices. Any notices, requests and demands hereunder shall be in writing and shall be given in the same manner as provided under the Option Agreement.

7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to any conflict of Laws provisions thereof that would result in the application of the Law of a different jurisdiction. Any legal proceedings relating to or arising out of this Exercise Agreement may be brought only in the same manner as provided under the Option Agreement.

8. Successors and Assigns; Assignment. This Exercise Agreement shall be binding upon, and shall inure to the benefit of the parties hereto and their respective successors and assigns under the Option Agreement, provided that neither this Exercise Agreement nor any rights or obligations hereunder shall be assigned or delegated by any party hereto except in connection with an assignment of the rights of such party under the Option Agreement on the terms provided therein. This Exercise Agreement is not intended to confer upon any Person other than the parties and their permitted assigns any rights or remedies.

9. Counterparts. This Agreement may be executed in counterparts (including via facsimile or e-mail in .pdf format), each of which shall be an original and all of which shall constitute a single agreement.

10. Amendments and Waivers. No amendment, modification or supplement to the Agreement shall be enforced against any party unless such amendment, modification or supplement is in writing and signed by each of the parties hereto. Any waiver by any party of any term of this Agreement shall not operate as or be construed to be a waiver of any other term of this Agreement. Any waiver must be in writing and signed by the party charged therewith.

11. Effectiveness. It is understood that this Agreement is not effective and binding upon any of the parties hereto until executed and delivered by each of the parties hereto.

 

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12. Headings. The headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

13. Entire Agreement. This Exercise Agreement together with the Option Agreement constitutes the entire agreement and understanding between the parties and is the final expression thereof and supersede any and all prior agreements and understandings, written or oral, formal or informal, between the parties relating to the subject matter hereof and thereof.

14. Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof.

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.

 

RIVERWOOD CAPITAL PARTNERS, L.P.
By:   Riverwood Capital L.P., its General Partner
By:   Riverwood Capital GP Ltd., its General Partner
By:  

/s/ Thomas J. Smach

  Name: Thomas J. Smach
  Title: Director
RW LSG HOLDINGS LLC
By:   Riverwood Capital Partners L.P., its manager
By:   Riverwood Capital L.P., its general partner
By:   Riverwood Capital GP Ltd., its general partner
By:  

/s/ Thomas J. Smach

  Name: Thomas J. Smach
  Title: Director
RW LSG MANAGEMENT HOLDINGS LLC
By:   Riverwood Capital Management L.P., its sole member
By:   Riverwood Capital Management Ltd., its general partner
By:  

/s/ Thomas J. Smach

  Name: Thomas J. Smach
  Title: Director


LSGC HOLDINGS III LLC
By:   PEGASUS PARTNERS V, L.P., its sole member
By:   PEGASUS INVESTORS V, L.P., its general partner
By:   PEGASUS INVESTORS V (GP) , L.L.C., its general partner
By:  

/s/ Daniel Stencel

  Name: Daniel Stencel
  Title: Chief Financial Officer