Current Report Filing (8-k)

LIGHTING SCIENCE GROUP CORPORATION

Date: November 20, 2014

/s/ Edward D. Bednarcik

Edward D. Bednarcik

Chief Executive Officer

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) November 14, 2014

LIGHTING SCIENCE GROUP CORPORATION

(Exact name of registrant as specified in its charter)

Delaware

000-20354

23-2596710

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

1830 Penn Street, Melbourne, FL 32901

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (321) 779-5520

Not Applicable

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 240.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Section 1 – Registrant’s Business and Operations

Item 1.01 Entry into a Material Definitive Agreement.

The Series J Offering and Series J Subscription Agreement

On November 14, 2014, Lighting Science Group Corporation (the “Company”) entered into a Series J Subscription Agreement (the “Subscription Agreement”) with Serengeti Lycaon MM L.P. and Serengeti Opportunities MM L.P, two investment funds managed by Serengeti Asset Management LP (the “Purchasers”), pursuant to which the Company issued an aggregate of 13,000 units of its securities (the “Series J Securities”) for aggregate consideration of $13 million (the “Serengeti Offering”). Each Series J Security consists of (i) one share of Series J Convertible Preferred Stock of the Company, par value $0.001 per share (the “Series J Preferred Stock”) and (ii) a warrant to purchase 2,650 shares of common stock of the Company, par value $0.001 per share (the “Common Stock”), at an exercise price of $0.001 per share (each, a “Warrant” and together, “Warrants”).

As previously disclosed on the Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on August 20, 2014, the Company’s board of directors authorized the Company to sell (i) 30,000 Series J Securities in a series of transactions commencing August 14, 2014 and ending on or before December 31, 2014 to purchasers designated by the Chief Executive Officer, Chief Financial Officer or Secretary of the Company and (ii) such number of additional Series J Securities as are purchased pursuant to Section 14 of each Certificate of Designation (as defined below) as a result of the sale of the Series J Securities to be issued as described in clause (i) above (the “Series J Offering”). The Company previously issued and sold 8,000 of the 30,000 Series J Securities authorized to be sold in the Series J Offering pursuant to the Series J Subscription Agreement dated August 14, 2014, by and among the Company and the purchasers parties thereto. After giving effect to the Serengeti Offering, 9,000 Series J Securities remained available for issuance pursuant to the Series J Offering.

The Warrants issued to the Purchasers as part of the Series J Securities contain substantially identical terms as the warrants previously issued to PCA LSG Holdings, LLC on January 3, 2014 and filed as Exhibit 4.5 to the Company’s Current Report on Form 8-K filed with the SEC on January 8, 2014.

The foregoing description of the Subscription Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Subscription Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Amendments to Certificates of Designation

On November 14, 2014, in connection with the Serengeti Offering and in an effort to facilitate the issuance of the remaining Series J Securities authorized for issuance in the Series J Offering, the Company amended and restated the certificates of designation governing the Series H Convertible Preferred Stock (the “Series H Certificate”), Series I Convertible Preferred Stock (the “Series I Certificate”) and Series J Preferred Stock (the “Series J Certificate” and together with the Series H Certificate and Series I Certificate, the “Certificates of Designation”).

Amended Series J Certificate

The Company amended and restated the Series J Certificate (the “Amended Series J Certificate”) to, among other things:

(i) require the Company to redeem the Series J Preferred Stock (a) on November 14, 2019, at the election of the holders of Series J Preferred Stock (the “Special Redemption”), (b) upon the occurrence of an uncured material breach by the Company of any of the Certificates of Designation and (c) subject to certain limited exceptions, immediately prior to the redemption of any security which ranks junior to, or pari passu with, the Series J Preferred Stock;

(ii) if the Company does not have sufficient capital available to redeem the Series J Preferred Stock upon the exercise of a Special Redemption, require the Company to issue a non-interest bearing note or notes (payable 180 days after issuance) in the principal amount of the liquidation amount of any shares of Series J Preferred Stock not redeemed by the Company in connection with such Special Redemption, subject to certain limitations imposed by Delaware law governing distributions to stockholders;

(iii) in each case subject to certain exceptions, require the Company or any successor entity in connection with any merger, consolidation or similar capital reorganization (each a “Reorganization”) to (a) assume the covenants and obligations set forth in the Amended Series J Certificate and (b) to the extent such assumption of covenants and obligations is not required, adjust the consideration to be received upon conversion of the Series J Preferred Stock following a Reorganization to substantially preserve the economic benefit the Series J Preferred Stock would have been entitled to in a qualified underwritten public offering (a “QPO”) by the Company’s successor;

(iv) subject to certain limited exceptions, require the Company to take any action necessary or desirable to provide the holders of Series J Preferred Stock with the benefit of any term that is more favorable than the terms of the Amended Series J Certificate resulting from an amendment to any term or any new term, set forth in the certificate of designation governing any of the Company’s securities ranking junior to, or pari passu with, the Series J Preferred Stock;

(v) prohibit the Company from issuing securities to related parties other than on arm’s-length terms; and

(vi) make certain other clarifying amendments.

The Amended Series J Certificate also requires the Company to obtain the consent of the Purchasers under most circumstances to (i) make certain amendments to the terms and rights of the Series J Preferred Stock set forth in the Amended Series J Certificate, (ii) pay dividends or make certain distributions on any shares of the Company’s capital stock, (iii) engage in any recapitalization, change of control transaction, or sale of a substantial portion of the Company’s assets or (iv) reclassify or exchange any outstanding securities of the Company for securities which rank senior to, or pari passu with, the Series J Preferred Stock.

Amended Series H Certificate and Amended Series I Certificate

The Company also amended and restated the Series H Certificate (the “Amended Series H Certificate”) and the Series I Certificate (the “Amended Series I Certificate” and together with the Amended Series H Certificate and Amended Series J Certificate, the “Amended and Restated Certificates”) to, among other things:

(i) require the Company to redeem the shares of Series H Convertible Preferred Stock and Series I Convertible Preferred Stock, respectively, upon the occurrence of an event that requires the Company to redeem the Series J Preferred Stock;

(ii) in each case subject to certain exceptions, require the Company or any successor entity in connection with any Reorganization to (a) assume the covenants and obligations set forth in the Amended Series H Certificate and Amended Series I Certificate, respectively, and (b) to the extent such assumption of covenants and obligations is not required, adjust the consideration to be received upon conversion of the Series H Convertible Preferred Stock and Series I Convertible Preferred Stock, respectively, following a Reorganization to substantially preserve the economic benefit the Series H Convertible Preferred Stock and Series I Convertible Preferred Stock, respectively, would have been entitled to in a QPO by the Company’s successors; and

(iii) subject to certain limited exceptions, require the Company to take any action necessary or desirable to provide the holders of Series H Convertible Preferred Stock and Series I Convertible Preferred Stock, respectively, with the benefit of any term that is more favorable than the terms of the Amended Series H Certificate or the Amended Series I Certificate, respectively, resulting from an amendment to any term or any new term, set forth in the certificate of designation governing any of the Company’s securities which rank junior to, or pari passu with, the Series H Convertible Preferred Stock and Series I Convertible Preferred Stock, respectively.

The foregoing description of the Amended and Restated Certificates does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated Certificates, which are filed as Exhibits 4.1, 4.2 and 4.3 to this Current Report on Form 8-K and are incorporated herein by reference.

Registration Rights Agreement

In connection with the Serengeti Offering, on November 14, 2014, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with the Purchasers. In addition to the Purchasers, subsequent purchasers of Series J Securities in the Series J Offering (collectively, the “RRA Parties”) would also have the right to become parties to the Registration Rights Agreement. Pursuant to the Registration Rights Agreement, the Company granted the RRA Parties the right, after the exercise by certain other holders of their demand registration rights or after the consummation of a public offering by the Company, to three demand registrations and unlimited piggyback registration rights. Such registration rights relate to (a) any shares of Common Stock held by the RRA Parties as well as any shares of Common Stock issued upon the conversion or exercise of any securities convertible or exercisable into shares of Common Stock (including the shares of Series J Preferred Stock and Warrants) or (b) such additional shares of Common Stock acquired by the RRA Parties while it continues to hold any registrable securities.

The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference.

Section 3 – Securities and Trading Markets

Item 3.02 Unregistered Sales of Equity Securities.

The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.

Pursuant to the Serengeti Offering, the Company issued (i) 10,000 Series J Securities to Serengeti Lycaon MM L.P., and (ii) 3,000 Series J Securities to Serengeti Opportunities MM L.P for gross proceeds of $13 million.

Each share of Series J Preferred Stock is convertible at any time, at the election of the holder thereof, into the number of shares of Common Stock equal to the quotient obtained by dividing (a) $1,000 by (b) the $0.95 conversion price of the Series J Preferred Stock, subject to adjustment in accordance with the terms set forth in the Amended Series J Certificate (the “Optional Conversion Shares”).

Upon the consummation of a QPO where (i) the gross proceeds received by the Company and any selling stockholders in the offering are no less than $100 million and (ii) the market capitalization of the Company immediately after consummation of the offering is no less than $500 million, each outstanding share of Series J Preferred Stock will automatically convert into the number of shares of Common Stock equal to the greater of (a) the number of Optional Conversion Shares or (b) the quotient obtained by dividing (x) $2,000 (subject to adjustment in accordance with the terms set forth in the Amended Series J Certificate) by (y) the price per share of Common Stock paid by the public in the QPO.

The shares of Series J Preferred Stock and the Warrants issued pursuant to the Serengeti Offering were issued by the Company pursuant to the exemption from registration provided by Section 4(2) of the Securities Act of 1933, as amended, and the safe harbors for sales provided by Regulation D promulgated thereunder.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

On November 14, 2014, the Company filed the Amended and Restated Certificates with the Secretary of State of the State of Delaware.

Section 7 – Regulation FD Disclosure

Item 7.01 Regulation FD Disclosure.

On November 19, 2014, the Company issued a press release with respect to the Serengeti Offering. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K.

The information in Item 7.01 of this Current Report on Form 8-K (including Exhibit 99.1) is being furnished pursuant to Item 7.01 and shall not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act, whether made before or after the date hereof and regardless of any general incorporation language contained in such filing.

Section 9 – Financial Statements and Exhibits

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

The information in the Exhibit Index of this Current Report on Form 8-K is incorporated into this Item 9.01(d) by reference.

SIGNATURES

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

EXHIBIT INDEX


Number		Description of Exhibit

4.1		Amended and Restated Certificate of Designation of Series H Preferred Stock filed with the Secretary of State of Delaware on November 14, 2014.

4.2		Amended and Restated Certificate of Designation of Series I Preferred Stock filed with the Secretary of State of Delaware on November 14, 2014.

4.3		Amended and Restated Certificate of Designation of Series J Preferred Stock filed with the Secretary of State of Delaware on November 14, 2014.

10.1		Series J Subscription Agreement, dated as of November 14, 2014, by and among Lighting Science Group Corporation, Serengeti Lycaon MM L.P. and Serengeti Opportunities MM L.P.

10.2		Registration Rights Agreement, dated as of November 14, 2014, by and among Lighting Science Group Corporation, Serengeti Lycaon MM L.P. and Serengeti Opportunities MM L.P.

99.1		Press Release.

Exhibit 4.1

AMENDED AND RESTATED

CERTIFICATE OF DESIGNATION

SERIES H CONVERTIBLE PREFERRED STOCK

LIGHTING SCIENCE GROUP CORPORATION

Pursuant to Section 242 of the

General Corporation Law of the State of Delaware

Lighting Science Group Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of Section 242 thereof, hereby certifies as follows:

FIRST: That pursuant to the authority conferred upon the Board of Directors (the “Board of Directors”) of the Corporation in accordance with the Amended and Restated Certificate of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), and the Amended and Restated Bylaws of the Corporation, as amended to date (the “Bylaws”), the Board of Directors has duly adopted a resolution amending and restating the rights of the Series H Convertible Preferred Stock, declaring said amendment and restatement to be advisable and authorizing the appropriate officers of the Corporation to solicit the requisite consent of the holders of the Series H Convertible Preferred Stock therefor; and

SECOND: That this Amended and Restated Certificate of Designation has been duly adopted in accordance with Sections 242 and 228 of the Delaware General Corporation Law.

RESOLVED, that the rights set forth in the Certificate of Designation of Series H Convertible Preferred Stock (the “Certificate of Designation”), are hereby amended and restated as follows:

1. Number of Shares; Designation. A total of 135,000 shares (the “Preferred Shares”) of preferred stock, par value $0.001 per share, of the Corporation have been designated as Series H Convertible Preferred Stock (the “Series”).

2. Rank. The Series shall, with respect to payment of dividends, distributions and rights (including to redemption payments) upon liquidation, dissolution or winding-up of the affairs of the Corporation, rank:

(a) Senior and prior to: (i) the Common Stock, par value $0.001 per share, of the Corporation (the “Common Stock”), and all other equity securities of the Corporation (including warrants and other securities exercisable, convertible or exchangeable into or for shares of Common Stock (“Common Stock Equivalents”)), outstanding as of the Investment Date, other than any shares of the Corporation’s Series I Convertible Preferred Stock outstanding on the Investment Date or issued in accordance with the terms hereof; and (ii) any additional class or series of stock which may in the future be issued by the Corporation and is designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of stock as ranking junior to the Preferred Shares or which does not state they are Parity Liquidation Shares (as defined below) or Senior Liquidation Shares (as defined below). Any shares of the Corporation’s Capital Stock that are junior to the Preferred Shares with respect to dividends, distributions and rights (including to redemption payments) upon liquidation, dissolution or winding up of the affairs of the Corporation, including upon a Liquidation Event (as defined below), are hereinafter referred to as “Junior Liquidation Shares.”

(b) Pari passu with: (i) the Series I Convertible Preferred Stock of the Corporation and (ii) any additional class or series of stock which may in the future be issued by the Corporation in accordance with the terms hereof and is expressly designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of stock as ranking equal to the Preferred Shares. Any shares of the Corporation’s Capital Stock that rank equal to the Preferred Shares with respect to dividends, distributions and rights (including to redemption payments) upon liquidation, dissolution or winding-up of the affairs of the Corporation, including upon a Liquidation Event, are hereinafter referred to as “Parity Liquidation Shares.”

(c) Junior to any additional class or series of stock which may in the future be issued by the Corporation in accordance with the terms hereof and is expressly designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of stock as ranking senior to the Preferred Shares. Any shares of the Corporation’s Capital Stock that rank senior to the Preferred Shares with respect to dividends, distributions and rights (including to redemption payments) upon liquidation, dissolution or winding up of the affairs of the Corporation, including upon a Liquidation Event, are hereinafter referred to as “Senior Liquidation Shares.”

3. Dividends.

(a) Subject to the rights and preferences of any Senior Liquidation Shares, each Holder shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends for each Preferred Share, dividends of the same type as any dividends or other distribution, whether in cash, in kind or in other property, payable or to be made on outstanding shares of Common Stock, in an amount equal to the amount of such dividends or other distribution as would be made on the number of shares of Common Stock equal to the number of Optional Conversion Shares issuable to each Holder on the applicable record date for such dividends or other distribution on the Common Stock (the “Dividends”).

(b) Any Dividends shall be payable to each Holder at the same time as and when such dividend or other distribution on Common Stock is paid to the holders of Common Stock and shall be payable to each Holder on the record date for the corresponding dividend or distribution on the Common Stock; provided, that no dividend or distribution on Common Stock shall be made to any holders of Common Stock unless the Dividends are paid (or are concurrently being paid) to all Holders pursuant to this Section 3.

(c) The Preferred Shares shall not be entitled to any dividend, whether payable in cash, in kind or other property, in excess of or in any instance other than the Dividends as provided in this Section 3.

(d) So long as any Preferred Shares remain outstanding, the Corporation shall not, directly or indirectly, make any Parity Securities Distribution or Junior Securities Distribution, other than (i) as may be required pursuant to that certain Commitment Agreement, dated September 25, 2012, by and between the Corporation and Pegasus Partners IV, L.P., as may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, (ii) for the redemption of the Series I Convertible Preferred Stock pursuant to an exercise of the Optional Redemption Right (as defined in the Series I Certificate of Designation as in effect on the Investment Date) or (iii) with respect to any other Parity Securities Distribution, to the extent that such distribution is made in accordance with the requirements of Section 11(b) and the Holders participate in such Parity Securities Distribution in exactly the same manner, to the same extent and in the same proportions (on an as converted basis) as all other Parity Liquidation Shares.

4. Conversion.

(a) Conversion at Option of Holder. Each Preferred Share shall be convertible, at the option of the Holder thereof, at any time and from time to time, into the number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock equal to the number of Optional Conversion Shares issuable with respect to each Preferred Share (subject to Section 4(e)). In the event of a Liquidation Event, the conversion rights provided by this Section 4(a) shall terminate at the close of business on the last full day preceding the date fixed for payment of any amounts distributable on such Liquidation Event to the Holders.

(b) Procedures for Conversion at Option of Holder. Each Holder shall effect an optional conversion pursuant to Section 4(a) by providing the Corporation with a written conversion notice specifying (i) the number of Preferred Shares to be converted and (ii) the date on which such conversion is to be effected (such date, the “Conversion Date”), which conversion date and time shall not be prior to the date such Holder delivers such notice to the Corporation nor more than twenty (20) business days thereafter. If no Conversion Date is specified in a notice of conversion, the Conversion Date shall be the date that such notice of conversion to the Corporation is deemed delivered to the Corporation hereunder. To effect any conversion of the Preferred Shares, each Holder shall surrender the certificate(s) representing such Preferred Shares to the Corporation. Any Preferred Shares converted into Common Stock pursuant to the terms hereof shall be canceled and shall not be reissued. As soon as practicable after the Conversion Date and the surrender of the certificate(s) representing Preferred Shares, the Corporation shall issue and deliver to each such Holder or its nominee, at such Holder’s address as it appears on the books of the Corporation, a certificate(s) for the number of Optional Conversion Shares. Such conversion shall be deemed to have been made on the Conversion Date, and the Holder entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock on the Conversion Date. Unless a Holder converts all of its Preferred Shares pursuant to an Optional Conversion, the Corporation shall, as soon as practicable and in no event later than five (5) business days after the Conversion Date and at its own expense, issue a new certificate evidencing the number of Preferred Shares owned by such Holder after giving effect to the Preferred Shares converted on the Conversion Date.

(c) Conversion at the Option of the Corporation. At any time on or after the first date that (x) Primary Investor no longer beneficially owns any Preferred Shares and (y) fewer than 5,000 Preferred Shares remain outstanding in the aggregate (as adjusted for any Reclassification (as defined below) of the Preferred Shares), then at the Corporation’s option and election, all outstanding Preferred Shares, in whole but not in part, may be converted automatically into the number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock equal to the number of Optional Conversion Shares with respect to all outstanding Preferred Shares (subject to Section 4(e)). The Corporation shall effect an optional conversion pursuant to this Section 4(c) by mailing a written conversion notice to each Holder at the address of record on the books of the Corporation specifying (i) the Conversion Date, which conversion date and time shall not be prior to fifteen (15) days after the date the Corporation delivers such notice, and (ii) (A) that at any time prior to the Conversion Date, each Holder shall have the right in lieu of conversion to exercise its right to redeem such Preferred Shares for an amount in cash equal to the Liquidation Amount with respect thereto in the same manner as upon receipt of a Contingent Redemption Notice pursuant to Section 5(a)(ii), and (B) the Redemption Date with respect to any such Redemption (as defined below), which Redemption Date shall be no more than sixty (60) days after the Conversion Date. For the avoidance of doubt, the Corporation shall not have the right to effect an optional conversion pursuant to this Section 4(c) so long as Primary Investor continues to beneficially own any Preferred Shares.

(d) Automatic Conversion. Upon the date on which a Qualified Public Offering is consummated (the “Forced Conversion Date”), each Preferred Share shall automatically be converted (a “Forced Conversion”), into the number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock equal to the greater of (1) the number of Optional Conversion Shares issuable with respect to each Preferred Share (subject to Section 4(e)) or (2) the quotient obtained by dividing (I) the Returned Value by (II) the price per share of Common Stock paid by the public in such Qualified Public Offering. All outstanding Preferred Shares shall, on the Forced Conversion Date, be converted into Common Stock for all purposes, notwithstanding the failure of any Holder thereof to surrender any certificate representing such shares on or prior to such date. On and after the Forced Conversion Date, (w) no Preferred Shares shall be deemed to be outstanding or be transferable on the books of the Corporation; and (x) each Holder, as such, shall not be entitled to receive any dividends or other distributions, to receive notices or to vote such Preferred Shares or to exercise or enjoy any other powers, preferences or rights in respect thereof, other than (y) the right, upon surrender of the certificate(s) representing such Preferred Shares, to receive a certificate(s) for the shares of Common Stock into which such shares have been converted, and (z) all dividends accrued and unpaid with respect to Preferred Shares accrued up to and including the Forced Conversion Date. On the Forced Conversion Date, all such Preferred Shares shall be retired and cancelled and shall not be reissued.

(e) Fractional Shares. No fractional shares of Common Stock or scrip shall be issued upon conversion of any Preferred Shares. In lieu of any fractional share to which any Holder would otherwise be entitled, based on the number of Preferred Shares of such Holder being converted in a single or series of related transactions, the Corporation shall issue a number of shares of Common Stock to such Holder rounded up to the nearest whole number of shares of Common Stock. No cash shall be payable to any Holder upon conversion of Preferred Shares.

5. Redemption.

(a) Redemption Right at Option of Holders.

(i) At any time on or after September 25, 2015, subject to this Section 5, (A) so long as Primary Investor continues to beneficially own any Preferred Shares, Primary Investor shall, and (B) in the event that Primary Investor ceases to own any Preferred Shares, each Holder shall, have the right at any time thereafter to require the Corporation to redeem all or a portion of such Holder’s Preferred Shares for an amount in cash equal to the Liquidation Amount of such Preferred Shares (the “Optional Redemption Right”).

(ii) In the event that Primary Investor elects to exercise its Optional Redemption Right pursuant to Section 5(a)(i)(A) and delivers a Redemption Notice (as defined below) whereby it elects to exercise its Optional Redemption Right, all other Holders shall, subject to this Section 5(a)(ii), have the right (a “Contingent Redemption Right”) to have all or any portion of their Preferred Shares redeemed for an amount in cash equal to the Liquidation Amount of such Preferred Shares. The Corporation shall mail to each Holder (other than Primary Investor) at the address of record on the books of the Corporation a written notice (a “Contingent Redemption Notice”) of such Contingent Redemption Right not later than ten (10) days following the Corporation’s receipt from Primary Investor of the Redemption Notice triggering such Contingent Redemption Right. Each Holder shall have ten (10) days from the date of receipt of any Contingent Redemption Notice to deliver a Redemption Notice to the Corporation electing to exercise its Contingent Redemption Right; provided, that the Redemption Date (as defined

below) for such Redemption shall be the Redemption Date selected by Primary Investor in the Redemption Notice triggering the Contingent Redemption Right. If for any or no reason at all, Primary Investor withdraws the Redemption Notice triggering the Contingent Redemption Right prior to the Redemption Date related thereto, the Holders shall no longer have the right to redeem Preferred Shares on such Redemption Date.

(iii) For the avoidance of doubt, the obligations of the Corporation to the Holders shall be senior to the obligations of the Corporation to any and all Junior Liquidation Shares.

(b) Redemption Event. Upon the occurrence of a Redemption Event, the Corporation shall provide each Holder with written notice thereof not later than ten (10) days following discovery by the Corporation of such Redemption Event. Upon receipt of notice of a Redemption Event, each Holder shall, subject to this Section 5, have the right to require the Corporation to redeem all or a portion of such Holder’s Preferred Shares for an amount in cash equal to the Liquidation Amount, which right shall terminate upon the Corporation’s satisfaction or cure of the obligation or obligations giving rise to the Redemption Event or any waiver thereof.

(c) Limitations on Redemption. Any redemption of Preferred Shares pursuant to this Section 5 or Section 6 (a “Redemption”) shall be payable out of any cash or surplus available therefor under applicable Delaware law, and if there is not a sufficient amount of cash or surplus available, then out of the remaining assets of the Corporation available therefor under applicable Delaware law (valued at the fair market value thereof on the date of payment, as determined by the Board of Directors). At the time of a Redemption, the Corporation shall take all actions required or permitted under Delaware law to permit the Redemption of the Preferred Shares, including, without limitation, through the revaluation of its assets in accordance with Delaware law, to make funds available under applicable Delaware law for such Redemption or to determine the existence of sufficient surplus. Notwithstanding anything to the contrary herein, the Corporation shall not be permitted or required to redeem any Preferred Shares for so long as such Redemption would result in an event of default under: (x) that certain Second Lien Letter of Credit, Loan and Security Agreement, dated September 20, 2011, by and among the Corporation, as borrower, the guarantors and lenders party from time to time thereto and Ares Capital Corporation, as agent; (y) that certain Loan and Security Agreement, dated as of November 22, 2010, by and among the Corporation, the guarantors and lenders from time to time party thereto, Wells Fargo Bank, National Association, as agent, (or its successor) and Wells Fargo Capital Finance, LLC, as sole lead arranger, manager and bookrunner (or its successor) (together, (x) and (y), the “Credit Facilities”); or (z) any amendments or restatements of, supplements to, or new facility or facilities entered into in replacement of, the Credit Facilities in accordance with the terms hereof, including Section 11(b) (to the extent applicable); provided, that nothing in this Section 5(c) shall limit, restrict or delay the application of Section 5(e).

(d) Redemption Procedures. Primary Investor shall effect a Redemption pursuant to this Section 5 and each Holder shall effect a Redemption pursuant to Section 5(a)(i)(B), 5(a)(ii) or 5(b) by providing the Corporation with a written Redemption notice (a “Redemption Notice”) specifying: (i) the number of Preferred Shares to be redeemed and (ii) the date on which such Redemption is to be effected (the “Redemption Date”), which Redemption Date and time shall (subject to the rights of any Senior Liquidation Shares): (A) with respect to the Optional Redemption Right (and any Contingent Redemption Right triggered thereby), not be prior to sixty (60) days after delivery of such Redemption Notice to the Corporation nor more than one hundred eighty (180) days thereafter; or (B) with respect to a Redemption effected pursuant to Section 5(a) or Section 5(b), not be prior to the date and time of delivery of such Redemption Notice to the Corporation nor more than twenty (20) business days thereafter. To effect a Redemption of the Preferred Shares, a Holder shall surrender the certificate(s) representing such Preferred Shares to the Corporation. On the Redemption Date, the Corporation shall pay the Liquidation Amount

by check to the order of the record holder of the Preferred Shares or, if instructions are provided therefore in the Redemption Notice, by wire transfer of immediately available funds. Unless all of a Holder’s Preferred Shares are redeemed on the Redemption Date, the Corporation shall, as soon as practicable and in no event later than five (5) business days after the Redemption Date and at its own expense, issue a new certificate evidencing the number of Preferred Shares owned by such Holder after giving effect to the Preferred Shares redeemed on the Redemption Date. Any Preferred Shares redeemed pursuant to the terms hereof shall be canceled and shall not be reissued.

(e) Control Event. If (i) any Preferred Shares held by Primary Investor and submitted for Redemption pursuant to an exercise of the Optional Redemption Right or the Repurchase Right (as defined below) are not redeemed on the Redemption Date or Repurchase Date (as defined below), as applicable with respect thereto or (ii) a Redemption Event shall occur (each of the events in clauses (i) and (ii), a “Control Event”), the Corporation shall take any and all actions as may be required and permitted under applicable Federal and State laws, the Corporation’s Certificate of Incorporation and the Corporation’s Bylaws, in order to (A) fix the size of the Board of Directors to a size (which shall be the smallest size necessary) that would permit Primary Investor to appoint a majority of the Board of Directors and (B) cause the election or appointment of the directors designated by Primary Investor, to serve as members of the Board of Directors until such director designees’ resignation, death, removal or disqualification. All actions taken by such directors appointed by Primary Investor shall be in accordance with applicable Federal and State laws. Under the circumstances described in the foregoing clause (i), to the extent the actions described in the first two sentences of Section 5(c) are taken by the Board of Directors and are insufficient to enable the Corporation to effect the Redemption, subject to applicable law, Primary Investor shall have the right in its sole discretion to, and without any further act, vote or approval of any of the Corporation, the Board of Directors or any of the Corporation’s stockholders, notwithstanding any act, vote or approval otherwise required, and shall be authorized to take all necessary action to, and subject to applicable law, the Board of Directors shall take all necessary action to, cause the Corporation to redeem such Preferred Shares, including without limitation by implementing in the discretion of Primary Investor as promptly as practicable a Qualified Public Offering or other offering, debt or equity financing, sale (whether by way of merger, consolidation, sale of assets or Equity Securities or otherwise) of the Corporation to a third party other than an Affiliate of Primary Investor or any other transaction. The Corporation shall implement any such action or transaction pursuant to the immediately preceding sentence of this Section 5(e) in a timely manner, and subject to applicable law, shall take all actions and execute and deliver such agreements and instruments that may be requested by Primary Investor or otherwise to effect such action or transaction in a manner intended to first repay all Redemption obligations of the Corporation to Primary Investor hereunder and thereafter to generate the highest price to the holders of the Corporation’s other Capital Stock for such Capital Stock. To the extent permitted by applicable law, the implementation of such Qualified Public Offering or other offering, debt or equity financing, sale (whether by way of merger, consolidation, sale of assets or Equity Securities or otherwise) of the Corporation or other transaction pursuant to the second preceding sentence of this Section 5(e) at a particular time by reason of the determination by Primary Investor to exercise its rights under this Section 5(e) at such time shall not be deemed to violate any duty (including any fiduciary duty) of the Board of Directors or Primary Investor owed to the Corporation or its stockholders, so long as they have acted in good faith and in compliance with the terms hereof. Any director designee(s) elected or appointed as a result of a Control Event may only be removed by Primary Investor and, upon such removal or otherwise following such director designees’ resignation, death, or disqualification, Primary Investor shall be permitted to appoint a replacement for any such director. Upon Redemption or conversion of all of the Preferred Shares giving rise to the Control Event or upon the Corporation’s full satisfaction of the obligations giving rise to the Redemption Event or other subsequent cure thereof, (1) all directors elected or appointed to the Board of Directors pursuant to this Section 5(e) shall resign immediately without any further action by the Board of Directors or the Corporation’s stockholders and (2) the Corporation shall take any and all actions as may be required under applicable Federal and State

laws, the Corporation’s Certificate of Incorporation and the Corporation’s Bylaws in order to fix the size of the Board of Directors to its size immediately prior to the Control Event. Notwithstanding the foregoing, the rights of Primary Investor pursuant to this Section 5(e) shall automatically terminate on the date that Primary Investor ceases to beneficially own at least 10,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis), but disregarding any reduction in the number of Preferred Shares beneficially owned by Primary Investor attributable to: (w) any transfer pursuant to a public offering (other than a Qualified Public Offering), (x) a Redemption giving rise to the underlying Control Event, (y) any transfer to Pegasus or (z) any transfer pursuant to the exercise of the Primary Co-Sale Rights.

(f) Other than with respect to the Optional Redemption Right and the Contingent Redemption Right set forth in Section 5(a), in no event shall the Corporation or any of its Subsidiaries redeem, purchase or acquire any Preferred Shares from one or more Holders unless the Corporation (or the applicable Subsidiary) irrevocably offers to simultaneously redeem, purchase or acquire a pro rata amount of Preferred Shares from each other Holder on the same terms.

6. Change of Control.

(a) Except to the extent Section 9(b) applies, upon consummation of a Change of Control, the Corporation shall immediately (and in any event within two (2) business days) make an offer in writing to each Holder to redeem all of the outstanding Preferred Shares for cash equal to the aggregate Liquidation Amount with respect to such Preferred Shares.

(b) Upon a Change of Control, the Corporation shall give to each Holder notice (the “Change of Control Notice”) of the occurrence of the Change of Control and of the Holder’s right to receive the Liquidation Amount as a result of such Change of Control (the “Repurchase Right”). The Change of Control Notice shall be mailed to each Holder at the address of record on the books of the Corporation and shall state (i) the date on which the Preferred Shares shall be repurchased (the “Repurchase Date”); (ii) the date by which the Repurchase Right must be exercised, which date shall be no earlier than twenty (20) days after the delivery by the Corporation of the Change of Control Notice (the “Repurchase Right Expiration Date”); (iii) the Liquidation Amount; and (iv) a description of the procedures a Holder must follow to exercise the Repurchase Right.

(c) To exercise the Repurchase Right, a Holder shall deliver to the Corporation, on or before the Repurchase Right Expiration Date, a written notice specifying the number of Preferred Shares to be repurchased by the Corporation. Each Holder shall retain the right to convert Preferred Shares at any time on or prior to the Repurchase Date, or to withdraw an election to have such shares repurchased at any time on or prior to the Repurchase Date.

(d) Notwithstanding anything herein to the contrary, the Corporation shall comply with all requirements under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the Repurchase Right as a result of a Change of Control. No failure by the Corporation to give the Change of Control Notice and no defect in any Change of Control Notice shall limit any Holder’s right to exercise its Repurchase Right or affect the validity of the proceedings for the repurchase of Preferred Shares.

7. Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation (a “Liquidation Event”), the Holders shall be entitled to receive and to be paid out of the assets of the Corporation, the Liquidation Amount of the Preferred Shares held by them; provided, that the Holders (i) shall not be entitled to receive the Liquidation Amount of the Preferred

Shares held by them until the liquidation value of any and all Senior Liquidation Shares shall have been paid in full, and (ii) shall be entitled to receive the Liquidation Amount of such shares held by them in preference to and in priority over any distributions upon any Junior Liquidation Shares. Upon payment in full of the then present Liquidation Amount to which the Holders are entitled, the Holders will not be entitled to any further participation in any distribution of assets by the Corporation and the Preferred Shares held by such Holders shall be deemed redeemed and cancelled. If the assets of the Corporation are not sufficient to pay in full the then present Liquidation Amount payable to the Holders and the liquidation value payable to the holders of any Parity Liquidation Shares, the holders of all such shares shall share ratably in such distribution of assets in accordance with the amounts that would be payable on the distribution if the amounts to which the Holders and the holders of any Parity Liquidation Shares are entitled were paid in full. For purposes of this Section 7, a Change of Control (in and of itself) shall not be deemed a Liquidation Event (it being understood that an actual liquidation, dissolution or winding up of the Corporation in connection with a Change of Control will be subject to this Section 7).

8. Status and Reservation of Shares.

(a) Status. All Preferred Shares that are at any time converted pursuant to Section 4 or redeemed or repurchased pursuant to Sections 5, 6 or 7, and all Preferred Shares that are otherwise reacquired by the Corporation and subsequently canceled by the Board of Directors, shall be retired and shall not be subject to reissuance and shall be automatically returned to the status of authorized and unissued shares of preferred stock of the Corporation, available for future designation and issuance pursuant to the terms of the Corporation’s Certificate of Incorporation.

(b) Reservation. On and after the Investment Date, the Corporation shall at all times reserve and keep available out of any stock held as treasury or out of its authorized but unissued Common Stock, or both, solely for the purpose of effecting optional conversions or the Forced Conversion, no less than the aggregate number of shares of Common Stock equal to the product obtained by multiplying (a) the Optional Conversion Shares by (b) the aggregate number of issued and outstanding Preferred Shares. All shares of Common Stock issued upon conversion of the Preferred Shares will, upon issuance by the Corporation, be duly and validly issued, fully paid and nonassessable, not issued in violation of any preemptive rights arising under law or contract and free from all taxes, liens and charges with respect to the issuance thereof, and the Corporation shall take no action which will cause a contrary result.

9. Certain Adjustments.

(a) Stock Reclassifications, Splits and Dividends. If the Corporation, at any time while any Preferred Shares remain outstanding, shall undertake any reclassification, stock split, reverse stock split, stock dividend, subdivision, combination, consolidation, recapitalization or any similar proportionately-applied change (collectively, a “Reclassification”) of outstanding shares of Common Stock (other than a change in, of, or from par value), then the Conversion Price shall be adjusted such that each Holder shall thereafter be entitled to receive upon conversion the kind and amount of shares of Common Stock and/or other Capital Stock and/or property that such Holder of outstanding Preferred Shares would have been entitled to acquire immediately after such Reclassification as if such Preferred Shares were converted to Common Stock immediately prior to such Reclassification. Any adjustment made pursuant to this Section 9(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.

Section 6 or in the second sentence of this Section 9(b), as part of such Reorganization, lawful provision shall be made as part of the terms of such transaction so that each Holder of Preferred Shares outstanding at the time of such Reorganization shall thereafter be entitled to receive upon conversion of such Preferred Shares (or of other convertible preferred stock received by such Holders in place thereof), the Capital Stock or other property that such Holder of outstanding Preferred Shares would have been entitled to receive in such Reorganization as if such Preferred Shares were converted to Common Stock immediately prior to such Reorganization, subject to adjustments for subsequent events substantially the same as those described in Section 9 hereof. Notwithstanding the foregoing, unless a Reorganization is also a Third Party Sale (defined below), then in addition to the conversion rights described in the immediately preceding sentence, lawful provision shall be made as part of the terms of such transaction so that in the event of a subsequent Forced Conversion, the amount of such Capital Stock or other property that such Holder of outstanding Preferred Shares at the time of such Reorganization is entitled to receive upon such subsequent Forced Conversion shall be increased at the time of such Forced Conversion to the amount, if greater, corresponding to the amount of Capital Stock or other property that would be issuable by dividing (i) the Returned Value by (II) the price per share of Capital Stock paid by the public in any public offering giving rise to the Forced Conversion, which for the avoidance of doubt may be satisfied by the successor, resulting or surviving entity, as applicable, expressly assuming the covenants, obligations and agreements of the Corporation under this Certificate of Designation in accordance with the immediately following sentence. Notwithstanding and in each case in addition to the foregoing, as a condition precedent to any Reorganization, the Corporation shall (1) if it is the surviving entity, ratify and affirm the covenants, obligations and agreements of the Corporation under this Certificate of Designation and (2) otherwise, require the successor, resulting or surviving entity, as applicable, to expressly assume the covenants, obligations and agreements of the Corporation under this Certificate of Designation, with all references to the Corporation herein (including as set forth in the defined terms used or referenced herein) becoming references to the successor, resulting or surviving entity and such covenants, obligations and agreements applying mutatis mutandis with respect to such successor, resulting or surviving entity; provided, however, that if the relevant Reorganization is also a Change of Control and on or prior to the effective date of such Reorganization (A) each Holder of outstanding Preferred Shares was given the right to receive (on or prior to the Reorganization effective date) an amount in cash equal to the aggregate Liquidation Amount with respect to its Preferred Shares and (B) such payment, assuming it was accepted, was (1) a legal, valid and enforceable obligation of the Corporation or the resulting or surviving entity, (2) permitted to be paid pursuant to all applicable laws, including Delaware law and federal securities laws and (3) not in conflict in any material respect with any material contract or other obligation binding on the Corporation or the resulting or surviving entity, then the provisions which must be ratified and affirmed by the Corporation or the provisions that the Corporation requires the successor, resulting or surviving entity to assume, as applicable, will be limited to ratifying and affirming or requiring the successor, resulting or surviving entity to expressly assume, as applicable, the obligation to deliver, upon any conversion of the Preferred Shares, such Capital Stock or other property that the Holders are entitled to receive pursuant to the first sentence of this Section 9(b) and, if such Reorganization is not a Third Party Sale, the second sentence of this Section 9(b), and to making lawful provisions for the protection of such conversion rights in its certificate or articles or other constituent documents and for any adjustments to such conversion rights which, for events subsequent, substantially the same as those provided in Section 9(a), the first sentence of this Section 9(b) and, if such Reorganization Event is not a Third Party Sale, the second sentence of this Section 9(b). If this Section 9(b) applies to a Reorganization, Section 9(a) shall not also apply to such Reorganization. The term “Third Party Sale” shall mean a Reorganization that results in the majority of the voting power of all Voting Stock and the majority of the economic interests of all Capital Stock being owned by stockholders that were not, directly or indirectly, individually or in the aggregate, holders of more than five percent (5)% of the voting power of the Voting Stock or economic interests of the Capital Stock of the Corporation prior to such Reorganization.

If, at any time, after the date hereof, (i) the Series I Certificate of Designation, a certificate of designation governing the terms of any other series of Junior Liquidation Shares or Parity Liquidation Shares outstanding at such time or any other agreement governing the terms of any series of Junior Liquidation Shares, Parity Liquidation Shares or any Preferred Shares is amended in a manner that makes the terms of such Junior Liquidation Shares, Parity Liquidation Shares or Preferred Shares more favorable to the holders thereof than the terms of this Series H Certificate of Designation are to the Holders or (ii) the terms of the certificate of designation or other agreement governing the terms of any newly created Junior Liquidation Shares or Parity Liquidation Shares or any newly created Preferred Shares or any series thereof that are issued, other than solely in Excepted Equity Issuances, has terms (taken together with the terms of any other securities of the Corporation issued therewith) that are more favorable to the holder or holders thereof than the terms of this Certificate of Designation (taken together with the terms of any other securities of the Corporation issued with the Preferred Shares) are to the Holders (such more favorable terms, collectively, the “Improved Terms”), then the Corporation shall promptly take such action as may be necessary or desirable (including, without limitation, by amending the Series H Certificate of Designation) to provide the Holders with the benefit of the applicable Improved Terms.

10. Voting Rights; Board Designees.

(a) Generally. Unless otherwise provided by any Federal or State law, the Corporation’s Certificate of Incorporation, the Corporation’s Bylaws, this Section 10 or Section 11 hereof, the Holders shall not have the right to vote for the election of directors or on any other matters presented to the Corporation’s stockholders for action by their written consent or at any annual or special meeting of stockholders. On any matter on which the Holders are entitled by any Federal or State law, under the Corporation’s Certificate of Incorporation or Bylaws or pursuant to this Section 10 or Section 11 hereof to vote separately as a class, each such Holder shall be entitled to one vote for each Preferred Share held and such matter shall be determined by a majority of the Preferred Shares voting on such matter. Notwithstanding the foregoing, except as set forth in this Section 10 in connection with the election of the Zouk Director (as defined below) to the Board of Directors, for so long as Primary Investor beneficially owns at least 10,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or (x) the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis and (y) at least one Preferred Share), the vote, consent, approval, waiver or authorization of Primary Investor on any matter, including without limitation, any matter on which the Holders are entitled by any Federal or State law (other than as may be required by Section 242(b)(2) of the Delaware General Corporation Law), under the Corporation’s Certificate of Incorporation or Bylaws or pursuant to this Series H Certificate of Designation to vote separately as a class, shall be, and shall be deemed to be, the vote, consent, approval, waiver or authorization of all of the Preferred Shares and the Holders of all of the Preferred Shares; provided, that Primary Investor shall not (i) without the consent of each adversely affected Holder, act to amend this Series H Certificate of Designation so as to alter the terms of the Preferred Shares of any Holder in a manner different from the other Holders with respect to their Preferred Shares or otherwise specifically targeting and materially and adversely affecting any such Holder with respect to its Preferred Shares in a manner different from the other Holders with respect to their Preferred Shares, or (ii) without the consent of each Holder of 6,000 or more Preferred Shares (as adjusted for any Reclassification of the Preferred Shares), act to amend this Series H Certificate of Designation so as to adversely amend the first sentence of Section 4(a), Section 4(b), the first two sentences of Section 4(c), the first sentence of Section 4(d), the first sentence of Section 5(a)(ii), the last sentence of Section 5(b), Section 6(a), the first sentence of Section 7, the last sentence of Section 7, the definitions of “Conversion Price”, “Liquidation Amount”, “Permitted Transfer”, “Returned Value”, “Stated Value”, “Fair Market Value”, “Optional Conversion Shares” or “Triggering Event” as contained in Section 16 hereof; provided, further, that in addition, the

consent of Holders of a majority of the Preferred Shares then outstanding, subject to the rights and privileges of Holders expressly set forth herein, is also required to waive any or all obligations of the Corporation in respect of a Redemption Event or upon a Change of Control (and for the avoidance of doubt, the foregoing shall not restrict the ability of the Corporation and the Primary Investor to effect a Reorganization that complies with the terms and provisions of Section 9(b) in all respects). The provisions of clause (i) of the foregoing sentence may not be amended without the consent of each Holder of Preferred Shares, and the provisions of clause (ii) of the foregoing sentence may not be amended without the consent of each Holder of 6,000 or more Preferred Shares (as adjusted for any Reclassification of the Preferred Shares). So long as Zouk continues to beneficially own at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis), the provisions of Section 10(b) (as it relates to Section 10(d)) and Section 10(d) may not be amended or waived without the consent of Zouk.

(b) Board Designees. The holders of Series H Preferred Stock, voting separately as a class, shall be entitled to elect the aggregate number of directors set forth in Sections 10(c) and 10(d).

(i) So long as Primary Investor continues to beneficially own at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis), to the fullest extent permitted by the Exchange Act, the rules of any national securities exchange or over-the-counter market on which the Common Stock is listed or traded and any other applicable Federal and State laws, Primary Investor, voting separately, shall be entitled at any annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation, and at all other times at which stockholders of the Corporation will have the right to or will vote for or render consent in writing regarding the election of directors of the Corporation, to elect a number of directors to the Board of Directors equal to the greater of: (x) two (2) directors and (y) the number of directors (rounded to the nearest whole number) equal to the product obtained by multiplying (1) the total number of directors that constitute the whole Board of Directors by (2) Primary Investor’s Pro Rata Share. Subject to the Exchange Act, the rules of any national securities exchange or over-the-counter market on which the Common Stock is listed or traded and any other applicable Federal and State laws, the Series H Director (as defined below) elected pursuant to this Section 10(c)(i) shall be appointed to the audit committee of the Board of Directors. Notwithstanding the foregoing, if after his or her election or appointment to the Board of Directors, any Series H Director shall die, shall become disabled, shall resign or shall be removed from the Board of Directors in accordance with applicable law, then Primary Investor shall be entitled to designate, by delivery of notice to the Company, a successor to replace the applicable Series H Director for election to the Board of Directors at the next scheduled annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation. The Corporation shall use its best efforts to give effect to and preserve the intent of the constituency of the Board of Directors provided for in this Section 10.

(ii) In the event that Primary Investor no longer has designee rights pursuant to Section 10(c)(i), so long as the Preferred Shares, on an as-converted basis, represent at least ten percent (10%) or more of the Corporation’s outstanding Capital Stock, the Holders of the Preferred Shares, voting separately, shall be entitled at any annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation, and at all other times at which stockholders of the Corporation will have the right to or will vote for or render consent in writing regarding the election of directors of the Corporation, to elect one (1) director to the Board of Directors.

(iii) Each director elected by Primary Investor pursuant to Section 10(c)(i) or the Holders pursuant to Section 10(c)(ii) shall be referred to as a “Series H Director”. Each Series H Director must be reasonably acceptable to the Corporation.

(iv) Notwithstanding anything to the contrary herein, the provisions of this Section 10(c) shall terminate automatically and be of no further force or effect upon the consummation of a Qualified Public Offering or the conversion or redemption of all outstanding Preferred Shares pursuant to Section 4(c).

(d) Zouk Board Designee.

(i) So long as Zouk continues to beneficially own at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis), to the fullest extent permitted by the Exchange Act, the rules of any national securities exchange or over-the-counter market on which the Common Stock is listed or traded and any other applicable Federal and State laws, Zouk, voting separately, shall be entitled at any annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation, and at all other times at which stockholders of the Corporation will have the right to or will vote for or render consent in writing regarding the election of directors of the Corporation, to elect one (1) director to the Board of Directors. Notwithstanding the foregoing, if after his or her election or appointment to the Board of Directors, the Zouk Director shall die, shall become disabled, shall resign or shall be removed from the Board of Directors in accordance with applicable law, then Zouk shall be entitled to designate, by delivery of notice to the Company, a successor to replace such Zouk Director for election to the Board of Directors at the next scheduled annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation. The Corporation shall use its best efforts to give effect to and preserve the intent of the constituency of the Board of Directors provided for in this Section 10.

(ii) Each director elected by Zouk pursuant to Section 10(d)(i) shall be referred to as a “Zouk Director”. Any Zouk Director must be reasonably acceptable to the Corporation.

(iii) Notwithstanding anything to the contrary herein, the provisions of this Section 10(d) shall terminate automatically and be of no further force or effect upon the consummation of a Qualified Public Offering or the conversion or redemption of all outstanding Preferred Shares pursuant to Section 4(c).

(e) Waivers. Any provision of this Certificate of Designation may be waived in a written instrument executed by the waiving party including, without limitation, a waiver by Primary Investor in accordance with the third sentence of Section 10(a).

11. Restrictions and Limitations.

(b) So long as Primary Investor continues to beneficially own (I) in the case of Sections 11(b)(i), 11(b)(ii), 11(b)(iii), 11(b)(iv) or 11(b)(vii)(A), at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares); (II) in the case of Section 11(b)(ix), at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis); and (III) in the case of Sections 11(b)(v), 11(b)(vi), 11(b)(vii)(B), 11(b)(viii), 11(b)(x), 11(b)(xi) and 11(b)(xii), at least 10,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis), but for purposes of the calculations in (I), (II) and (III) above disregarding any reduction in the number of Preferred Shares beneficially owned by Primary Investor attributable to: (x) any Transfer pursuant to a public offering (other than a Qualified Public Offering), (y) any Transfer to Pegasus or (z) any Transfer pursuant to the exercise of the Primary Co-Sale Rights, and in each case with Sections 11(b)(xii) and 11(b)(xiii) continuing to apply with respect to the subsections still in effect pursuant to the foregoing clauses (I), (II) and (III), the Corporation shall not, without the written consent of Primary Investor:

(i) alter, modify or amend (whether by amendment to the Certificate of Incorporation or Bylaws, merger, consolidation or otherwise) the terms, rights, preferences, privileges or powers of, or the other restrictions provided for the benefit of, the Series in any way as set forth herein or in any other agreement entered into by the Corporation;

(ii) re-issue (whether by merger or otherwise) any Preferred Shares that have been converted, redeemed or otherwise reacquired by the Corporation;

(iii) pay dividends or cash interests or other distributions (whether in cash, Equity Securities or otherwise) on, redeem or repurchase or otherwise acquire any Capital Stock, Equity Securities, convertible debt, or debt coupled with any Common Stock Equivalents of the Corporation, other than as may be required by any Senior Liquidation Shares issued in accordance with the terms hereof, including Section 11(b)(vii);

(iv) liquidate, dissolve or wind-up the affairs of the Corporation or otherwise initiate any insolvency proceeding or any proceeding under the Bankruptcy Reform Act of 1978, as amended, or other applicable bankruptcy or insolvency laws;

(v) engage in any recapitalization, merger, consolidation, reorganization or similar transaction; provided, that such consent may not be unreasonably withheld, conditioned or delayed to the extent such transaction will constitute a Change of Control and the Corporation has available, or will obtain in connection with such transaction, sufficient proceeds to redeem all of the Preferred Shares in accordance with the provisions of Section 6 and, for the avoidance of doubt, to the extent such transaction will constitute a Change of Control, this subsection (v) is not intended to be utilized by Primary Investor to modify the amount of proceeds payable to the Holders with respect to the Preferred Shares upon such Change of Control from the amount to which such Holders would otherwise be entitled pursuant to Section 6 hereof upon such Change of Control; or other than in the ordinary course of business, form or maintain any direct or indirect Subsidiary;

(vi) engage in a public offering or listing of Equity Securities (including indirectly by means of equity securities of a successor entity or otherwise) on any national securities exchange, other than (A) in connection with a Qualified Public Offering, (B) an offering made in connection with a business acquisition pursuant to a registration statement on Form S-4 or any similar form that does not otherwise require consent pursuant to this Section 11(b), or (C) in connection with an employee benefit plan pursuant to a registration statement on Form S-8 or any similar form;

(vii) other than with respect to any Permitted Equity Issuance, (A) issue any Senior Liquidation Shares or Parity Liquidation Shares, or reclassify any outstanding Equity Securities into Senior Liquidation Shares or Parity Liquidation Shares or (B) issue any other Equity Securities, or reclassify any other outstanding Equity Securities; provided, that consent shall not be required pursuant to this Section 11(b)(vii) with respect to any issuance of Equity Securities to the extent the proceeds thereof shall upon receipt thereof immediately be used to satisfy in full the obligations of the Corporation to redeem all then-outstanding Preferred Shares pursuant to Section 4, Section 5 or Section 6 hereof;

(viii) incur any Indebtedness (A) in excess of $50.0 million, other than (x) any Indebtedness incurred pursuant to a refinancing of the Credit Facilities or any other working capital facilities of the Corporation in effect as of the Investment Date, in each case without any increase in the available principal amount thereof or (y) pursuant to any refinancing or replacement of the Credit Facilities with respect to working capital or other working capital facilities as approved by the Board of Directors, in each case such that the aggregate available principal amount thereunder is secured only by the Corporation’s account receivables and finished goods inventory and does not exceed 80% of accounts receivable, 60% of finished goods inventory and $75 million in the aggregate (each of (A)(x) and (A)(y), “Permitted Indebtedness”); or (B) containing any provision that limits the Corporation’s ability to redeem any Preferred Shares pursuant to Section 5(a) for a period that exceeds that contained in the Credit Facilities as in effect as of the Investment Date; provided, that if such provision is contained in any Permitted Indebtedness, such Indebtedness shall continue to be Permitted Indebtedness for purposes of the foregoing clause (A) and consent shall only be required pursuant to this clause (B) with respect to such provision; and provided further that consent shall not be required pursuant to this Section 11(b)(viii) for Indebtedness to the extent the proceeds thereof shall upon receipt thereof immediately be used to satisfy in full the obligations of the Corporation to redeem all then-outstanding Preferred Shares pursuant to Section 4, Section 5 or Section 6 hereof;

(ix) enter into any new agreements or transactions or series of agreements or transactions with any Affiliate of the Corporation or Pegasus or any other holder of five percent (5%) or more of the Corporation’s Capital Stock or any Affiliates of any such stockholder of the Corporation (a “Related Party Agreement”) or amend or modify the terms of any existing Related Party Agreements, other than: (A) up to $500,000 in the aggregate of fees or other amounts payable annually by the Corporation to Pegasus pursuant to any management or similar services agreement; (B) up to $200,000 in the aggregate of fees or other amounts payable annually by the Corporation to Primary Investor or any of its Affiliates pursuant to any management or similar services agreement; and (C) up to $100,000 in the aggregate of fees or other amounts payable annually by the Corporation to any Significant Holder or its Affiliates pursuant to any management or similar services agreement;

Corporation or any of its Subsidiaries) or enter into any joint venture where either (A) the aggregate consideration to be paid or received by the Corporation or any of its Subsidiaries, or (B) the fair market value of the relevant property, rights or assets, in one transaction or a series of related transactions, exceeds $5.0 million, other than commercial transactions with customers and distributors for the sale of the Corporation’s products in the ordinary course of business; provided, that such consent may not be unreasonably withheld, conditioned or delayed to the extent such transaction will constitute a Change of Control and the Corporation has available, or will obtain in connection with such transaction, sufficient proceeds to redeem all of the Preferred Shares in accordance with the provisions of Section 6 and, for the avoidance of doubt, to the extent such transaction will constitute a Change of Control, this subsection (x) is not intended to be utilized by Primary Investor to modify the amount of proceeds payable to the Holders with respect to the Preferred Shares upon such Change of Control from the amount to which such Holders would otherwise be entitled pursuant to Section 6 hereof upon such Change of Control;

(xi) (A) appoint a new, or remove the then-current, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or Chief Technology Officer (or equivalents thereof) of the Corporation and any other senior executive officer having a comparable scope of authority to the foregoing with respect to his or her relevant function, or (B) determine or modify any compensation (including cash and equity) or establish any compensation performance targets for any individual that is an “officer” of the Corporation as such term is defined in Rule 3b-2 of the Exchange Act;

(xii) enter into any definitive agreement or commitment with respect to any of the foregoing; or

(xiii) indirectly engage in any of the foregoing through an Affiliated person (including without limitation Pegasus), including cause or permit any Subsidiary to engage in or enter into any definitive agreement or commitment with respect to any of the foregoing.

(c) In the event that the Holders of at least a majority of the outstanding Preferred Shares agree (whether by a vote, written consent, waiver or otherwise) to allow the Corporation to alter or change the rights, preferences or privileges of the Series pursuant to applicable law, no such change shall be effective to the extent that, by its terms, such change applies to less than all of the Preferred Shares then outstanding.

(d) Notwithstanding anything to the contrary herein, subject to applicable law, the provisions of this Section 11 shall terminate automatically and be of no further force or effect upon the consummation of a Qualified Public Offering or the conversion or redemption of all outstanding Preferred Shares pursuant to Section 4(c).

12. Covenants. For so long as Primary Investor continues to beneficially own at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares), the Corporation agrees that:

(a) Maintenance of Existence; Compliance. The Corporation shall, and shall cause each of its Subsidiaries to (i) preserve, renew and keep in full force and effect its organizational existence, (ii) take all reasonable action to maintain all material rights, privileges and franchises necessary or desirable in the normal conduct of its business and (iii) comply in all material respects with all material contractual obligations and requirements of law applicable to the Corporation and its Subsidiaries, and its and their respective properties, rights and assets.

(b) Maintenance of Property; Insurance. The Corporation shall, and shall cause each of its Subsidiaries to (a) keep all property necessary for the conduct of its business as conducted on the Investment Date in good working order and condition, ordinary wear and tear excepted, and (b) maintain with financially sound and reputable insurance companies insurance on all property necessary for the conduct of its business in at least such amounts and against at least such risks (but including in any event public liability, product liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business.

(c) Minimum Consolidated EBITDA. The Corporation shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, permit Consolidated EBITDA as at the last day of any period of four consecutive fiscal quarters of the Corporation ending on the last day of the Corporation’s fiscal year set forth below to be less than the amount set forth opposite such fiscal year end:


Fiscal Year End	Minimum Consolidated EBITDA
December 31, 2015 and each fiscal year end thereafter	$	20.0 million

The Corporation shall have the right to cure a breach of this Section 12(c) with respect to any fiscal year within fifteen (15) days of the earlier of (x) March 31 immediately following such fiscal year and (y) the date of the Corporation’s audited financials for such fiscal year, by using up to $5.0 million in proceeds from an Exempt Equity Issuance.

(d) Certificates; Other Information. The Corporation shall, and shall cause each of its Subsidiaries to, furnish Primary Investor, concurrently with the delivery of any unaudited annual financial statements pursuant to Section 4(e)(ii) of the Subscription Agreement, (i) a certificate of a Responsible Officer stating that, to the best of each such Responsible Officer’s knowledge, the Corporation and each of its Subsidiaries has during such period observed or performed all of its covenants and other agreements, and satisfied every material obligation contained herein to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Triggering Event except as specified in such certificate and (ii) a Compliance Certificate containing all information and calculations necessary for determining compliance by the Corporation and its Subsidiaries with the provisions set forth herein referred to therein as of the last day of the fiscal year of the Corporation.

(e) Notices. The Corporation shall, and shall cause each of its Subsidiaries to, promptly give the Holders written notice of the occurrence of any Liquidation Event.

such corporate opportunity to the Corporation or any of its Subsidiaries, as the case may be, and, notwithstanding any provision of any agreement to the contrary, shall not be liable to the Corporation or its Affiliates or stockholders or creditors for breach of any duty (contractual or otherwise) by reason of the fact that Primary Investor, such Significant Holder or such Affiliated Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another person, or does not present such opportunity to the Corporation or any of its Subsidiaries; provided, that the provisions of this Section 12(f) shall not apply with respect to the actions of any individual while serving in an operational capacity as an officer or other employee of the Corporation. Primary Investor and each Significant Holder agrees on behalf of itself and each Affiliated Person to keep confidential all proprietary and non-public information regarding the Corporation received in such capacity and not to use such proprietary and non-public information for any purpose other than in connection with evaluating, monitoring or taking any other action with respect to the investment by Primary Investor or such Significant Holder in the Preferred Shares, provided, that nothing herein shall prevent Primary Investor, such Significant Holder or such Affiliated Persons from disclosing or using any such information that (i) is or becomes generally available to the public in accordance with Federal or State laws other than as a result of a disclosure by Primary Investor, such Significant Holder or such Affiliated Persons in violation of this Section 12(f) or any other legal duty, fiduciary duty or other duty of trust and confidence, of Primary Investor, such Significant Holder or such Affiliated Person; (ii) was in Primary Investor’s, such Significant Holder’s or such Affiliated Person’s possession or developed by it prior to being furnished with such information, as evidenced by Primary Investor’s, such Significant Holder’s or such Affiliated Person’s records; (iii) becomes available to Primary Investor, such Significant Holder or such Affiliated Person on a non-confidential basis from a source other than the Corporation, or (iv) is required to be disclosed by applicable law or legal process.

13. Transfers.

(a) Generally. Subject to this Section 13, Preferred Shares may be Transferred by any Holder pursuant to a Permitted Transfer. During the Restrictive Period, Holders may not Transfer Preferred Shares except pursuant to a Permitted Transfer. As used herein, the “Restrictive Period” shall mean the period commencing on the Investment Date and ending upon the earliest of (A) the three (3) year anniversary of the Investment Date, (B) a Qualified Public Offering and (C) a Redemption Event.

(b) To the extent the Restrictive Period ends by reason of the occurrence of the three (3) year anniversary of the Investment Date as provided in clause (A) of the definition thereof, and neither a Qualified Public Offering nor a Redemption Event has occurred, Preferred Shares may be Transferred by any Holder with the prior written consent of the Corporation, such consent not to be unreasonably withheld, conditioned or delayed, or pursuant to a Permitted Transfer. Notwithstanding the foregoing, Preferred Shares may be offered, sold, transferred or assigned by any Holder without consent after the occurrence of a Change of Control or a Liquidation Event.

(c) All Transfers of Preferred Shares must also be made in accordance with the Securities Act, and applicable state securities laws. Any attempted Transfer of Preferred Shares in violation of this Section 13 shall be null and void ab initio. Notwithstanding anything in this Section 13 to the contrary, in the event that the Corporation consents to a Transfer of more than five thousand (5,000) Preferred Shares in the aggregate (as adjusted for any Reclassification of the Preferred Shares) by Primary Investor in one or more transactions, the Corporation shall be deemed to have consented to all Transfers of Preferred Shares from and after such time by all Holders.

Rights shall be transferrable in connection with a Transfer by Primary Investor, in a single transaction to a single transferee, of more than 25,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis).

(e) Lock-up. In connection with a Qualified Public Offering or any other underwritten public offering, each Holder shall complete and execute a customary lock-up agreement to the extent required pursuant to the terms of the underwriting arrangements of the Qualified Public Offering agreeing not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Capital Stock of the Corporation during the seven (7) day period prior to, and for the one hundred and eighty (180) days after, the effective date of the registration statement for such Qualified Public Offering or other underwritten public offering (or such lesser period as the managing underwriters may require or permit), except for such Capital Stock to be included in such offering; provided that all of the Corporation’s Affiliates and executive officers and all of the members of the Board of Directors are restricted in the same manner and for the same duration; provided, further, that notwithstanding anything in this Section 13(e) to the contrary, in no event shall any Holder be obligated to execute a lock-up agreement restricting it or otherwise prohibiting it from effecting any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Capital Stock for any period of time exceeding the period of time (including with respect to any requirements that such period be applicable to other persons or entities) that such Holder has contractually agreed to in writing with the Corporation.

14. Preemptive Rights.

may elect to purchase all or any portion of its respective Pro Rata Share of the securities to be issued in such issuance or sale at the same price and on the same terms identified in the notice. If electing to participate, such Holder (an “Exercising Holder”) shall be required to purchase the same Equity Securities that are being issued by the Corporation and shall be entitled to make such purchase on the same terms and conditions, in each case as set forth in the Issuance Notice. Such Holder’s election to participate in any such transaction must be made in writing and be delivered to the Corporation ten (10) days after the Corporation’s delivery of the Issuance Notice; provided, that if there is a material change in the Corporation’s proposed terms or conditions of issuance or sale, a new Issuance Notice shall be provided to the Holders pursuant to this Section 14(a) and the Holders will have ten (10) days after the Corporation’s delivery of such new Issuance Notice with such revised terms to reconfirm such Holder’s intention to invest. To the extent any Holder does not elect to purchase all of its Pro Rata Share of the Equity Securities (a “Declining Holder”), the Exercising Holders shall be entitled to purchase the Equity Securities allocated to the Declining Holder, and the Corporation shall deliver to each Exercising Holder a written notice (the “Remaining Equity Notice”) not less than fifteen (15) days after the date of the Issuance Notice specifying the aggregate number of Equity Securities that all of the Declining Holders did not elect to purchase. Each Exercising Holder shall have the right to purchase additional Equity Securities, which right must be exercised not less than ten (10) days after delivery of the Remaining Equity Notice, by notifying the Corporation in writing (a “Second Exercise Notice”) of the maximum number of such Equity Securities that such Exercising Holder wishes to purchase. To the extent the aggregate number of shares sought to be purchased under the Second Exercise Notices is equal to or less than the number of Equity Securities set forth in the Remaining Equity Notice, each Holder delivering a Second Exercise Notice shall be entitled to purchase the number of Equity Securities set forth in such Holder’s Second Exercise Notice. To the extent the aggregate number of shares sought to be purchased under the Second Exercise Notices is greater than the number of Equity Securities set forth in the Remaining Equity Notice, such Equity Securities shall be allocated among the Holders on a pro rata basis based on their relative Pro Rata Share. If after notifying the Holders, the Corporation elects not to proceed with the issuance or sale, any elections made by such Holder shall be deemed rescinded. Notwithstanding anything to the contrary contained in this Section 14(a), if the consideration to be received by the Corporation with respect to the issuance of Equity Securities specified in the Issuance Notice is other than cash to be paid upon the issuance of the Equity Securities (that is, if the consideration would constitute so called “in kind” property), or if security is to be provided to secure the payment of any deferred portion of the purchase price, then any Holder exercising his, hers or its rights under this Section 14 may purchase such Equity Securities by making a cash payment at the time of the closing specified in the Issuance Notice in the amount of the reasonably equivalent value of the “in kind” property specified in the Issuance Notice and/or may provide reasonably equivalent security to that provided in the Issuance Notice. Such “reasonably equivalent value” or “reasonably equivalent security” shall be determined by the Board of Directors. In the event of any issuance or sale of any debt securities by the Corporation to any Significant Holder or any Affiliate of any Significant Holder, in whole or in part, other than any offering of debt securities by the Corporation that is registered pursuant to the Securities Act (a “Preemptive Debt Issuance”), such Preemptive Debt Issuance shall be treated in the same manner as an issuance of Equity Securities for purposes of the rights provided in this Section 14 and each Holder shall have the right to notice of, and to elect to participate in, such Preemptive Debt Issuance as if each reference to “Equity Securities” in this Section 14 were replaced with a reference to such debt securities. If, in connection with any issuance of Equity Securities or debt securities by the Corporation after the date hereof other than any Exempt Equity Issuance or any offering of Capital Stock or debt securities that is registered pursuant to the Securities Act, the Corporation grants any Significant Holder or any Affiliate of any Significant Holder (i) any new material right or contractual benefit which is in addition and/or supplemental to those rights and benefits of such Significant Holder that are in effect immediately prior to such issuance (and which is not granted as a condition of such issuance) or (ii) any additional securities (clauses (i) and (ii) each, an “Ancillary Right”) in connection with or relating to such Significant Holder’s ownership of Preferred Shares or shares of Series I Convertible Preferred Stock, as

applicable, in each case which Ancillary Right (x) is not otherwise made available to the Holders that exercise their rights in full pursuant to this Section 14 and (y) does not arise out of a law, regulation, order or other legal circumstance that is applicable to such Significant Holder but not to such other Holders that exercise their rights in full, then each other Significant Holder shall be offered a Pro Rata Share of such Ancillary Right on the same terms and conditions as such Significant Holder or such Affiliate of such Significant Holder in the same manner as is provided in this Section 14, so long as such other Significant Holder participates in such issuance of Equity Securities or debt securities to the same extent on a pro rata basis as such Significant Holder or such Affiliate of such Significant Holder.

(b) If the Holders do not elect to purchase all of the Equity Securities proposed to be issued in such issuance or sale as described in Section 14(a), upon the expiration of the offering periods described in Section 14(a), the Corporation shall be entitled to sell any Equity Securities that the Holders have not elected to purchase during the one hundred and twenty (120) calendar days following such expiration at a price not less than, and on other terms and conditions either substantially the same as, or more favorable to the Corporation than, those set forth in the Issuance Notice. Any shares of Capital Stock offered or sold by the Corporation after such one hundred and twenty (120) day period (or, if prior to such one hundred and twenty (120) day period, at a price less than, or on other terms and conditions not substantially the same as, or more favorable to the Corporation than, those offered set forth in the Issuance Notice) must be reoffered to the Holders pursuant to the terms of this Section 14.

(c) Notwithstanding anything to the contrary contained in Section 14(a), in the event that the Board of Directors determines that time is of the essence in completing any issuance of Equity Securities pursuant to this Section 14, the Corporation may issue or sell Equity Securities without first complying with the terms of Section 14(a); provided that the terms of such issuance or sale shall require that, promptly following such issuance or sale, (i) the Corporation shall deliver an Issuance Notice to each Holder and (ii) each Holder shall have the right to purchase all or any part of the Equity Securities described in the Issuance Notice (whether pursuant to the resale of Equity Securities by the initial purchaser(s) of such Equity Securities or the issuance by the Corporation of additional Equity Securities) upon the terms, and subject to the conditions, set forth in Section 14(a).

15. Notices.

(a) Notices of Record Date. In the event of any taking by the Corporation of a record of the holders of any class of the Corporation’s Equity Securities for the purposes of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other distribution, any right to subscribe for, purchase or otherwise acquire any Equity Securities of any class or any other securities or property, or any other right, the Corporation shall mail to each Holder, at least ten (10) days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right.

(b) Notices by the Corporation. Any notice required by the provisions of this Series H Certificate of Designation to be given to the Holders shall be deemed given if sent by U.S. nationally recognized overnight courier service, and addressed to each holder of record at his or her address appearing on the books of the Corporation.

16. Certain Definitions. As used in this Series H Certificate of Designation, the following terms shall have the following respective meanings:

“Affiliate” of, or a person or entity “Affiliated” with, a specified person or entity, is a person or entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person or entity specified. Notwithstanding the foregoing, for purposes hereof, the Corporation, its Subsidiaries and its other controlled Affiliates shall not be considered Affiliates of any Holder by reason of such person being a Holder.

“Appraiser” means a nationally recognized investment bank, financial advisor or valuation or appraisal firm selected by mutual agreement of the Corporation and Primary Investor (but only if Primary Investor continues to hold any Preferred Shares) as having appropriate experience in the Corporation’s industry in doing valuations of the nature required, which is independent of and not affiliated with the Corporation, Primary Investor, any other Holder participating in the relevant transaction or any of their respective Affiliates.

“Capital Stock” of any person or entity means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in the common stock or preferred stock of such person or entity, including, without limitation, partnership and membership interests.

“Change of Control” means (a) the sale, conveyance, transfer or disposition, directly or indirectly, including but not limited to any spin-off or in-kind distribution (a “Divestiture”), of all or substantially all of the assets of the Corporation or any successor (on a consolidated basis), other than to the Corporation or its wholly-owned Subsidiaries; (b) the effectuation of a transaction or series of related transactions in which, directly or indirectly, more than thirty-five percent (35)% of the voting power of the outstanding shares of Voting Stock of the Corporation (or ultimate parent thereof) is disposed of (other than (i) as a direct result of normal, uncoordinated trading activities in the Common Stock generally or (ii) solely as a result of the disposition by a stockholder of the Corporation to an Affiliate of such stockholder); (c) any merger, consolidation, stock or asset purchase, recapitalization or other business combination transaction (or series of related transactions) immediately following which the persons that beneficially owned or controlled, directly or indirectly, all of the voting power of the outstanding shares of Voting Stock of the Corporation immediately prior to such transaction (or series of related transactions), beneficially own or control, in the aggregate (together with Affiliates of such stockholders), less than sixty-five percent (65%) of the voting power of the outstanding shares of Voting Stock of the entity surviving or resulting from such transaction (or ultimate parent thereof); (d) a transaction (or series of transactions) in which any person, entity or “group” (as such term is used in Sections 13(d) of the Exchange Act), other than Pegasus, acquires, directly or indirectly, more than thirty-five percent (35)% of the voting power of the outstanding shares of Voting Stock of the Corporation (or ultimate parent thereof) or control of the Board of Directors (excluding, in the case of control of the Board of Directors only, as a result of the occurrence of a Control Event (as defined in the Series H Certificate of Designation)), or (e) Pegasus ceases to beneficially own and control at least ten percent (10%) of the voting power of the outstanding shares of Voting Stock and at least twenty-five (25)% of the economic interests in the outstanding shares of Capital Stock of the Corporation, on a fully-diluted basis.

“Compliance Certificate” means a certificate duly executed by a Responsible Officer substantially in the form of Exhibit A.

“Consolidated EBITDA” means, for any period, the net income (or loss) of the Corporation and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, plus, without duplication and solely to the extent reflected as a charge in the statement of such consolidated net income for such period, the sum of (a) income tax expense, (b) interest expense associated with Indebtedness, (c) depreciation and amortization, (d) amortization of intangibles (including, but not limited to, goodwill), (e) expenses related to the transactions consummated on the Investment Date and (f) non-recurring or extraordinary items.

“Conversion Price” means $0.95, subject to adjustment in accordance with the terms hereof.

“Eligible Amount” means with respect to any Holder, the “Eligible Amount” of shares of Common Stock equal to the product obtained by multiplying (a) the maximum number of shares of Common Stock that the underwriter(s) estimate(s) can be underwritten in connection with an Eligible Offering at a price range that is acceptable to the Corporation less any shares of Common Stock being offered by the Corporation or any other person or entity holding registration rights that are senior to those granted to the Holders in this Series H Certificate of Designation, by (b) a fraction, the numerator of which shall equal the number of shares of Common Stock issuable to such Holder upon the conversion of such Holder’s Preferred Shares, and the denominator of which shall equal the total number of shares of Common Stock issuable to all Holders upon conversion of such Holders’ Preferred Shares that are requested to be included in the Eligible Offering.

“Equity Securities” means any Capital Stock or any other equity securities of the Corporation and any of its Subsidiaries, whether now or hereafter authorized, and any instrument convertible into or exchangeable for any of the foregoing equity securities or equity security.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excepted Equity Issuance” means the issuance of (i) any Capital Stock of the Corporation pursuant to compensatory issuances to (A) the executives and directors of the Corporation in their capacity as such and (B) other employees of the Corporation in their capacity as such, in each case pursuant to an option, stock or other equity plan approved by the Board of Directors; or (ii) any Common Stock or warrants or options to purchase Common Stock in connection with a bona fide strategic commercial agreement or commercial relationship as determined by the Corporation and approved by the Board of Directors and by each Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, the primary purpose of which is not to raise capital.

“Exempt Equity Issuance” means the issuance of any Capital Stock of the Corporation: (i) upon the conversion or exercise of any options, warrants or rights to acquire securities of the Corporation which options, warrants or rights were (A) outstanding on the Investment Date (as certified by an officer of the Corporation to Primary Investor on the Investment Date), (B) issued as part of another Exempt Equity Issuance or (C) offered to the Holders pursuant to an Issuance Notice in compliance with Section 14(a) hereof; (ii) compensatory issuances to (A) the executives and directors of the Corporation in their capacity as such and (B) other employees of the Corporation in their capacity as such, in each case pursuant to an option, stock or other equity plan approved by the Board of Directors; (iii) having a value of less than or equal to $15.0 million in the aggregate for all such issuances under this clause (iii), provided, that any such issuance must also be at a price per share (or equivalent security) greater than or equal to the Conversion Price; (iv) in a Qualified Public Offering; (v) for consideration in lieu of cash pursuant to the bona fide acquisition of another corporation or entity by the Corporation by consolidation, merger, purchase of all or substantially all of the assets of such other corporation or entity or fifty percent (50%) or more of the voting power of such other corporation or entity or fifty percent (50%) or more of the equity ownership of such other corporation or entity approved by the Board of Directors and by Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, in each case the primary purpose of which is not to raise capital; (vi) in connection with a bona fide strategic commercial agreement or commercial relationship as determined by the Corporation and approved by the Board of Directors and by Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, the primary purpose of which is not to raise capital; (vii) pursuant to any stock split or reverse stock split; (viii) pursuant to the Series H/I Offering; provided, that any such sale is on terms no more favorable to the purchaser of Preferred Shares or shares of Series I Convertible Preferred Stock than the terms to Primary Investor pursuant to the Subscription Agreement, including that the purchase price for each Preferred Share shall be no less than the Stated Value; (ix) upon the exercise by any Series I Holder or Series J Holder of the preemptive rights granted pursuant to the

terms of the Series I Certificate of Designation or Series J Certificate of Designation; (x) upon the conversion of any shares of Series I Convertible Preferred Stock pursuant to the terms of the Series I Certificate of Designation; and (xi) shares of Capital Stock of the Corporation issued upon conversion or exercise of the securities set forth in the foregoing clauses (i) – (x); provided that “Exempt Equity Issuance” shall in no event include any issuance of Senior Liquidation Shares, or any issuance of Parity Liquidation Shares other than as provided in the foregoing clauses (viii) and (ix).

“Fair Market Value” means, as of any date, the value of a share of the Common Stock determined as follows: (a) if the Common Stock is publicly traded and is then listed on a national securities exchange, the volume weighted average closing price of the Common Stock on the ten (10) consecutive trading days immediately preceding (but not including) such date on the principal national securities exchange on which the Common Stock is listed or admitted to trading as reported by Bloomberg L.P.; (b) if the Common Stock is publicly traded but is neither listed nor admitted to trading on a national securities exchange, the volume weighted average closing price of the Common Stock on the ten (10) consecutive trading days immediately preceding (but not including) such date in the over-the-counter market as reported by Bloomberg L.P.; (c) if the Common Stock is neither listed nor admitted to trading on a national securities exchange or quoted in the over-the-counter market, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for the Common Stock for the ten (10) consecutive trading days immediately preceding (but not including) such date as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.); or (d) if none of the foregoing is applicable, by an Appraiser, which Appraiser shall be instructed to present its conclusions within thirty (30) days and to use one or more valuation methods that, in its best professional judgment, would be most appropriate to ascertain the price at which such Common Stock would change hands between a willing buyer and a willing seller, each having reasonable knowledge of relevant facts and neither being under any compulsion to act; provided that the valuation of the Corporation by Appraiser shall assume that the Corporation has continued ownership of its Subsidiaries and other properties and continued benefit of its contractual and other relationships and arrangements and shall take in to account other factors relevant to such valuation, including the prospects of the Corporation and its Subsidiaries, and the value of the estimated future earning of the Corporation and its Subsidiaries. All such determinations shall be appropriately adjusted for any share dividend, share split or other similar transaction during such period.

“Holder” means any holder of Preferred Shares, all of such holders being the “Holders.”

“Indebtedness” means, with respect to the Corporation and its Subsidiaries: (a) any liabilities for borrowed money or amounts owed or indebtedness issued in substitution for or exchange of indebtedness for borrowed money; (b) obligations evidenced by notes, bonds, debentures or other similar instruments; (c) obligations under leases (contingent or otherwise, as obligor, guarantor or otherwise) required to be accounted for as capitalized leases pursuant to generally accepted accounting principles; (d) obligations for amounts drawn and outstanding under acceptances, letters of credit, contingent reimbursement liabilities with respect to letters of credit or similar facilities; (e) any liability for deferred purchase price of property or services, contingent or otherwise, as obligor or otherwise, other than accounts payable incurred in the ordinary course of business and (f) any accrued and unpaid interest on, and any prepayment premiums, penalties or similar contractual charges in respect of, any of the foregoing.

“Independent Director” means a natural person that qualifies as an “independent director” in accordance with the requirements of Rule 10A-3 of the Exchange Act and the rules of the NASDAQ Stock Market.

“Investment Date” means the first issue date of the Preferred Shares.

“Junior Securities Distribution” means the declaration or payment on account of, or setting apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Junior Liquidation Shares, or any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations, securities or other property, or the purchase or redemption by any entity directly or indirectly controlled by the Corporation of any of the Junior Liquidation Shares.

“Liquidation Amount” means the greater of (a) the Fair Market Value of the Optional Conversion Shares issuable to a Holder upon conversion of each Preferred Share on the applicable date of determination and (b) the Returned Value.

“Optional Conversion Shares” means the number of shares of Common Stock equal to the quotient obtained by dividing (a) the Stated Value of each Preferred Share by (b) the Conversion Price as in effect on the relevant Conversion Date.

“Parity Securities Distribution” means the declaration or payment on account of, or setting apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of (other than by conversion into or exchange for Junior Liquidation Shares), any Parity Liquidation Shares, or any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations, Common Stock, securities or other property, or the purchase or redemption by any entity directly or indirectly controlled by the Corporation of any of the Parity Liquidation Shares.

“Pegasus” means Pegasus Capital Advisors, L.P. and its Affiliates.

“Permitted Equity Issuance” means the issuance of any Capital Stock of the Corporation: (1) in an Exempt Equity Issuance pursuant to clause (i)(A), (i)(C), (ii)(B) (provided, that the shares reserved to be issued under such plan(s) do not exceed in the aggregate three percent (3%) of the issued and outstanding shares of Common Stock at the time of adoption of such plan(s)), (iii), (iv), (vii), (viii), (ix), (x) or (xi) of the definition of “Exempt Equity Issuance”, (2) in an Exempt Equity Issuance pursuant to clause (i)(B) of the definition of “Exempt Equity Issuance” to the extent relating to an Exempt Equity Issuance as described in the foregoing clause (1), and (3) in an Exempt Equity Issuance as described in clause (xii) of the definition of “Exempt Equity Issuance” to the extent relating to an Exempt Equity Issuance as described in the foregoing clauses (1) or (2); provided, that “Permitted Equity Issuance” shall in no event include any issuance of Senior Liquidation Shares, or any issuance of Parity Liquidation Shares other than as provided in clauses (viii) and (ix) of the definition of “Exempt Equity Issuance”.

“Permitted Transfer” means any Transfer by: (1) a Holder of all or any portion of the Preferred Shares: (a) to Primary Investor; (b) to Pegasus; (c) to the Corporation or any of the Corporation’s Subsidiaries, (d) pursuant to the exercise of the Primary Co-Sale Rights or the Secondary Co-Sale Rights; (e) in any transaction in which all or substantially all of the Equity Securities of the Corporation are Transferred pursuant to any reorganization, merger, consolidation or sale of the Corporation; (f) in a Qualified Public Offering; (g) pursuant to a tender or exchange offer pursuant to the Securities Act or the Exchange Act; (h) with respect to the Transfers by any party other than Primary Investor, with the prior written consent of the Corporation, such consent not to be unreasonably withheld, conditioned or delayed or (i) with respect to Transfers by Primary Investor, with the prior written consent of the Corporation; or (2) Primary Investor (a) pursuant to a pro rata in-kind distribution or dividend to the equityholders of Riverwood Capital Partners, L.P. (and any intermediary transfers amongst Affiliates of Primary Investor as part of giving effect thereto) who were equityholders of Riverwood Capital Partners, L.P. on May 25, 2102 (provided, that such distribution or dividend shall not result in a Transfer to any such equityholder of more than 15% of the Equity Securities held by Primary Investor as of the date hereof; provided, further, that such distribution or dividend shall not be structured so as to avoid the occurrence or triggering of a Change of Control) or (b) to any Affiliate or direct or indirect equityholder of Primary Investor; (3) Zouk to any Affiliate or direct or indirect equityholder of Zouk; or (4) Portman to any Affiliate or direct or indirect equityholder of Portman.

“Portman” means the Portman Limited and its Affiliates.

“Primary Co-Sale Rights” means the rights set forth in that certain co-sale agreement, dated as of September 25, 2012, among Primary Investor, Pegasus, Zouk, Portman and certain of their Affiliates.

“Primary Investor” means RW LSG Holdings LLC and its Affiliates.

“Primary Investor Rights” means those rights provided to Primary Investor pursuant to Section 5(a)(i)(A), Section 5(e), Section 10(c)(i), Section 11(b) and Section 12 hereof.

“Pro Rata Share” means, at all times on or after the Investment Date, with respect to any Holder, the quotient (in percentage terms) obtained by dividing (i) the number of shares of Common Stock and shares of Common Stock Equivalents owned by such Holder and its Affiliates at the time of determination and (ii) the number of shares of Common Stock and Common Stock Equivalents issued and outstanding at the time of such determination. For purposes of determining each Holder’s Pro Rata Share, the number of Common Stock Equivalents shall include the number of shares of Common Stock that would be issuable upon the conversion of the applicable Preferred Shares but in no event shall the shares of Common Stock or shares of Common Stock Equivalents owned by a person or entity Affiliated with more than one Holder be counted more than once for purposes of determining the respective Pro Rata Share of such Affiliated Holders.

“Qualified Public Offering” means a firmly committed underwritten public offering of the Common Stock on The NASDAQ Stock Market or the New York Stock Exchange pursuant to an effective registration statement filed under the Securities Act, where (a) the gross proceeds received by the Corporation and any selling stockholders in the offering are no less than $100 million and (b) the market capitalization of the Corporation immediately after consummation of the offering is no less than $500 million.

“Redemption Event” means (a) any default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Corporation or any of its Subsidiaries, whether such Indebtedness now exists, or is created after the Investment Date, if that default: (i) is caused by a failure to pay the principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of any grace period provided pursuant to the terms of such Indebtedness on the date of such default and (x) the aggregate amount unpaid equals $10.0 million or more or (y) the principal amount of such Indebtedness aggregates to $15.0 million or more; or (ii) results in the acceleration of such Indebtedness prior to its express maturity and the principal amount of such Indebtedness aggregates to $8.0 million or more; provided, that if such default is cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within a period of ten (10) days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, no Redemption Event shall be deemed to have occurred; (b) any material breach or default under this Series H Certificate of Designation; provided, that if such breach or default is cured or waived within a period of ten (10) days from the continuation of such breach or default beyond any applicable grace period, no Redemption Event shall be deemed to have occurred; (c) any material breach of default under the certificate of designation with respect to the Series I Certificate of Designation or the certificate of designation with respect to any other series of preferred stock of the Corporation (other than the Series), in each case to the extent outstanding; provided, that in the case of this clause (c), if such breach or default is cured or waived within a period of ten (10) days from the continuation of such breach or default beyond any applicable grace period, no Redemption Event shall be deemed to have occurred or (d) any “Redemption Event” as such term is defined in the Series J

Certificate of Designation or any other event giving rise to a “Mandatory Redemption” as such term is defined in the Series J Certificate of Designation unless such other event is satisfied, cured or waived such that pursuant to the terms of the Series J Certificate of Designation the Corporation no longer has an obligation to consummate such redemption at such time.

“Responsible Officer” means either the Chief Executive Officer or Chief Financial Officer of the Corporation.

“Returned Value” means with respect to each Preferred Share, if the Triggering Event occurs (i) on or prior to the one (1) year anniversary of the Investment Date, an amount equal to the product obtained by multiplying (A) the Stated Value thereof by (B) 1.5; (ii) subsequent to the one (1) year anniversary of the Investment Date and on or prior to the two (2) year anniversary of the Investment Date, an amount equal to the product obtained by multiplying (A) the Stated Value thereof by (B) 1.75; and (iii) subsequent to the two (2) year anniversary of the Investment Date, an amount equal to the product obtained by multiplying (A) the Stated Value thereof by (B) 2.0.

“Secondary Co-Sale Rights” means the rights set forth in that certain co-sale agreement, dated as of September 25, 2012, among Primary Investor, Zouk, Portman and certain of their Affiliates

“Securities Act” means the Securities Act of 1933, as amended.

“Series H Certificate of Designation” means this Certificate of Designation of Preferred Stock to be designated Series H Convertible Preferred Stock.

“Series H/I Offering” means the sale of up to 31,000 Preferred Shares or shares of Series I Convertible Preferred Stock (each, as adjusted for any Reclassification of the Preferred Shares) or any combination thereof by the Corporation after the Investment Date but on or prior to the four (4) month anniversary thereof.

“Series I Certificate of Designation” means the Certificate of Designation of Series I Convertible Preferred Stock of the Corporation, as filed with the Secretary of State of the State of Delaware and as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Series I Holder” means any holder of the Corporation’s outstanding shares of Series I Convertible Preferred Stock.

“Series J Certificate of Designation” means the Certificate of Designation of Series J Convertible Preferred Stock of the Corporation, as filed with the Secretary of State of the State of Delaware and as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Series J Holder” means any holder of the Corporation’s outstanding shares of Series J Convertible Preferred Stock.

“Significant Holder” means, as of the applicable date of determination, (i) Primary Investor so long as Primary Investor continues to beneficially own at least 2,500 Preferred Shares (as adjusted for any Reclassification of Preferred Shares); (ii) Primary Investor (as such term is defined in the Series I Certificate of Designation), so long as such Primary Investor continues to beneficially own at least 2,500 shares of the Corporation’s Series I Convertible Preferred Stock (as adjusted for any reclassification of such shares of Series I Convertible Preferred Stock); (iii) any Holder that beneficially owns at least 20,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares); and (iv) any Series I Holder that beneficially owns at least 20,000 shares of the Corporation’s Series I Convertible Preferred Stock (as adjusted for any reclassification of such shares of Series I Convertible Preferred Stock).

“Stated Value” means, with respect to a Preferred Share, $1,000 (as adjusted for any Reclassification of the Preferred Shares).

“Subscription Agreement” means that certain Preferred Stock Subscription Agreement entered into on May 25, 2012 by and between the Corporation, RW LSG Holdings LLC, and certain parties signatories thereto, as may be amended or modified from time to time in accordance with its terms.

“Subsidiary” means any corporation, partnership, trust, association, limited liability company or other entity owned or controlled by the Corporation, or in which the Corporation, directly or indirectly, owns a majority of the Capital Stock or similar interest that would be disclosable pursuant to Regulation S-K, Item 601(b)(21).

“Transfer” means, as a noun, any voluntary or involuntary transfer, sale, pledge or hypothecation or other disposition, whether directly or indirectly and whether through one or a series of transactions, and, as a verb, voluntarily or involuntarily to transfer, sell, pledge or hypothecation or otherwise dispose of, whether directly or indirectly and whether through one or a series of transactions.

“Triggering Event” means (a) any Change of Control, Redemption Event, Liquidation Event or the delivery of a Redemption Notice pursuant to the exercise of the Optional Redemption Right or the Contingent Redemption Right or (b) any “Triggering Event” as such term is defined in the Series J Certificate of Designation.

“Voting Stock” shall mean, (a) one (1) or more classes of Capital Stock having the right to vote in the election of directors (or otherwise control the appointment of directors) generally , and (b) any Capital Stock convertible or exchangeable without restriction at the option of the holder thereof into Capital Stock described in clause (a) of this definition.

“Zouk” means Cleantech Europe II (A) LP, Cleantech Europe II (B) LP and their Affiliates.

[signature page follows]

IN WITNESS WHEREOF, the Corporation has caused this Certificate to be duly executed on its behalf by the undersigned as of November 14, 2014.


LIGHTING SCIENCE GROUP CORPORATION

By:	/s/ Dennis McGill
	Name:	Dennis McGill
	Title:	Chief Financial Officer

Signature Page to Amended and Restated Series H Certificate of Designation

EXHIBIT A

FORM OF

COMPLIANCE CERTIFICATE

This Compliance Certificate is delivered pursuant to Section 12(d) of the Certificate of Designation of Preferred Stock of Lighting Sciences Group Corporation (the “Corporation”) to be designated Series H Convertible Preferred Stock (the “Series H Certificate of Designation”). Unless otherwise defined herein, terms defined in the Series H Certificate of Designation and used herein shall have the meanings given to them in the Series H Certificate of Designation.

1. I am the duly elected, qualified and acting [Chief Executive Officer][Chief Financial Officer] of the Corporation.

2. I have reviewed and am familiar with the contents of this Compliance Certificate.

3. I have reviewed the terms of the Series H Certificate of Designation and have made, or caused to be made, under my supervision, a review in reasonable detail of the transactions and condition of the Corporation and its Subsidiaries during the accounting period covered by the audited annual financial statements attached hereto as Annex I (the “Financial Statements”). Such review did not disclose the existence during or at the end of the accounting period covered by the Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance Certificate, of any condition or event which constitutes a Triggering Event [, except as set forth below].

4. Attached hereto as Annex II are the computations showing compliance with the covenants set forth in Section 12(a) through (e) of the Series H Certificate of Designation.

IN WITNESS WHEREOF, I have executed this Certificate this day of , 20 .

Name:

Title:

Exhibit 4.2

AMENDED AND RESTATED

CERTIFICATE OF DESIGNATION

SERIES I CONVERTIBLE PREFERRED STOCK

LIGHTING SCIENCE GROUP CORPORATION

Pursuant to Section 242 of the

General Corporation Law of the State of Delaware

FIRST: That pursuant to the authority conferred upon the Board of Directors (the “Board of Directors”) of the Corporation in accordance with the Amended and Restated Certificate of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), and the Amended and Restated Bylaws of the Corporation, as amended to date (the “Bylaws”), the Board of Directors has duly adopted a resolution amending and restating the rights of the Series I Convertible Preferred Stock, declaring said amendment and restatement to be advisable and authorizing the appropriate officers of the Corporation to solicit the requisite consent of the holders of the Series I Convertible Preferred Stock therefor; and

SECOND: That this Amended and Restated Certificate of Designation has been duly adopted in accordance with Sections 242 and 228 of the Delaware General Corporation Law.

RESOLVED, that the rights set forth in the Certificate of Designation of Series I Convertible Preferred Stock (the “Certificate of Designation”), are hereby amended and restated as follows:

1. Number of Shares; Designation. A total of 90,000 shares (the “Preferred Shares”) of preferred stock, par value $0.001 per share, of the Corporation have been designated as Series I Convertible Preferred Stock (the “Series”).

(a) Senior and prior to: (i) the Common Stock, par value $0.001 per share, of the Corporation (the “Common Stock”), and all other equity securities of the Corporation (including warrants and other securities exercisable, convertible or exchangeable into or for shares of Common Stock (“Common Stock Equivalents”)), outstanding as of the Investment Date, other than any shares of the Corporation’s Series H Convertible Preferred Stock outstanding on the Investment Date or issued in accordance with the terms hereof; and (ii) any additional class or series of stock which may in the future be issued by the Corporation and is designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of stock as ranking junior to the Preferred Shares or which does not state they are Parity Liquidation Shares (as defined below) or Senior Liquidation Shares (as defined below). Any shares of the Corporation’s Capital Stock that are junior to the Preferred Shares with respect to dividends, distributions and rights (including to redemption payments) upon liquidation, dissolution or winding up of the affairs of the Corporation, including upon a Liquidation Event (as defined below), are hereinafter referred to as “Junior Liquidation Shares.”

(b) Pari passu with: (i) the Series H Convertible Preferred Stock of the Corporation and (ii) any additional class or series of stock which may in the future be issued by the Corporation in accordance with the terms hereof and is expressly designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of stock as ranking equal to the Preferred Shares. Any shares of the Corporation’s Capital Stock that rank equal to the Preferred Shares with respect to dividends, distributions and rights (including to redemption payments) upon liquidation, dissolution or winding-up of the affairs of the Corporation, including upon a Liquidation Event, are hereinafter referred to as “Parity Liquidation Shares.”

3. Dividends.

(d) So long as any Preferred Shares remain outstanding, the Corporation shall not, directly or indirectly, make any Parity Securities Distribution or Junior Securities Distribution, other than (i) as may be required pursuant to that certain Commitment Agreement, dated September 25, 2012, by and between the Corporation and Pegasus Partners IV, L.P., as may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, (ii) for the redemption of the Series H Convertible Preferred Stock pursuant to an exercise of the Optional Redemption Right (as defined in the Series H Certificate of Designation as in effect on the Investment Date) or (iii) with respect to any other Parity Securities Distribution, to the extent that such distribution is made in accordance with the requirements of Section 11(b) and the Holders participate in such Parity Securities Distribution in exactly the same manner, to the same extent and in the same proportions (on an as converted basis) as all other Parity Liquidation Shares.

4. Conversion.

5. Redemption.

(a) Redemption Right at Option of Holders.

(iii) For the avoidance of doubt, the obligations of the Corporation to the Holders shall be senior to the obligations of the Corporation to any and all Junior Liquidation Shares.

in the Redemption Notice, by wire transfer of immediately available funds. Unless all of a Holder’s Preferred Shares are redeemed on the Redemption Date, the Corporation shall, as soon as practicable and in no event later than five (5) business days after the Redemption Date and at its own expense, issue a new certificate evidencing the number of Preferred Shares owned by such Holder after giving effect to the Preferred Shares redeemed on the Redemption Date. Any Preferred Shares redeemed pursuant to the terms hereof shall be canceled and shall not be reissued.

(e) Other than with respect to the Optional Redemption Right and the Contingent Redemption Right set forth in Section 5(a), in no event shall the Corporation or any of its Subsidiaries redeem, purchase or acquire any Preferred Shares from one or more Holders unless the Corporation (or the applicable Subsidiary) irrevocably offers to simultaneously redeem, purchase or acquire a pro rata amount of Preferred Shares from each other Holder on the same terms.

6. Change of Control.

7. Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation (a “Liquidation Event”), the Holders shall be entitled to receive and to be paid out of the assets of the Corporation, the Liquidation Amount of the Preferred Shares held by them; provided, that the Holders (i) shall not be entitled to receive the Liquidation Amount of the Preferred Shares held by them until the liquidation value of any and all Senior Liquidation Shares shall have been paid in full, and (ii) shall be entitled to receive the Liquidation Amount of such shares held by them in preference to and in priority over any distributions upon any Junior Liquidation Shares. Upon payment in full of the then present Liquidation Amount to which the Holders are entitled, the Holders will not be

entitled to any further participation in any distribution of assets by the Corporation and the Preferred Shares held by such Holders shall be deemed redeemed and cancelled. If the assets of the Corporation are not sufficient to pay in full the then present Liquidation Amount payable to the Holders and the liquidation value payable to the holders of any Parity Liquidation Shares, the holders of all such shares shall share ratably in such distribution of assets in accordance with the amounts that would be payable on the distribution if the amounts to which the Holders and the holders of any Parity Liquidation Shares are entitled were paid in full. For purposes of this Section 7, a Change of Control (in and of itself) shall not be deemed a Liquidation Event (it being understood that an actual liquidation, dissolution or winding up of the Corporation in connection with a Change of Control will be subject to this Section 7).

8. Status and Reservation of Shares.

9. Certain Adjustments.

Capital Stock or other property that such Holder of outstanding Preferred Shares would have been entitled to receive in such Reorganization as if such Preferred Shares were converted to Common Stock immediately prior to such Reorganization, subject to adjustments for subsequent events substantially the same as those described in Section 9 hereof. Notwithstanding the foregoing, unless a Reorganization is also a Third Party Sale (defined below), then in addition to the conversion rights described in the immediately preceding sentence, lawful provision shall be made as part of the terms of such transaction so that in the event of a subsequent Forced Conversion, the amount of such Capital Stock or other property that such Holder of outstanding Preferred Shares at the time of such Reorganization is entitled to receive upon such subsequent Forced Conversion shall be increased at the time of such Forced Conversion to the amount, if greater, corresponding to the amount of Capital Stock or other property that would be issuable by dividing (i) the Returned Value by (II) the price per share of Capital Stock paid by the public in any public offering giving rise to the Forced Conversion, which for the avoidance of doubt may be satisfied by the successor, resulting or surviving entity, as applicable, expressly assuming the covenants, obligations and agreements of the Corporation under this Certificate of Designation in accordance with the immediately following sentence. Notwithstanding and in each case in addition to the foregoing, as a condition precedent to any Reorganization, the Corporation shall (1) if it is the surviving entity, ratify and affirm the covenants, obligations and agreements of the Corporation under this Certificate of Designation and (2) otherwise, require the successor, resulting or surviving entity, as applicable, to expressly assume the covenants, obligations and agreements of the Corporation under this Certificate of Designation, with all references to the Corporation herein (including as set forth in the defined terms used or referenced herein) becoming references to the successor, resulting or surviving entity and such covenants, obligations and agreements applying mutatis mutandis with respect to such successor, resulting or surviving entity; provided, however, that if the relevant Reorganization is also a Change of Control and on or prior to the effective date of such Reorganization (A) each Holder of outstanding Preferred Shares was given the right to receive (on or prior to the Reorganization effective date) an amount in cash equal to the aggregate Liquidation Amount with respect to its Preferred Shares and (B) such payment, assuming it was accepted, was (1) a legal, valid and enforceable obligation of the Corporation or the resulting or surviving entity, (2) permitted to be paid pursuant to all applicable laws, including Delaware law and federal securities laws and (3) not in conflict in any material respect with any material contract or other obligation binding on the Corporation or the resulting or surviving entity, then the provisions which must be ratified and affirmed by the Corporation or the provisions that the Corporation requires the successor, resulting or surviving entity to assume, as applicable, will be limited to ratifying and affirming or requiring the successor, resulting or surviving entity to expressly assume, as applicable, the obligation to deliver, upon any conversion of the Preferred Shares, such Capital Stock or other property that the Holders are entitled to receive pursuant to the first sentence of this Section 9(b) and, if such Reorganization is not a Third Party Sale, the second sentence of this Section 9(b), and to making lawful provisions for the protection of such conversion rights in its certificate or articles or other constituent documents and for any adjustments to such conversion rights which, for events subsequent, substantially the same as those provided in Section 9(a), the first sentence of this Section 9(b) and, if such Reorganization Event is not a Third Party Sale, the second sentence of this Section 9(b). If this Section 9(b) applies to a Reorganization, Section 9(a) shall not also apply to such Reorganization. The term “Third Party Sale” shall mean a Reorganization that results in the majority of the voting power of all Voting Stock and the majority of the economic interests of all Capital Stock being owned by stockholders that were not, directly or indirectly, individually or in the aggregate, holders of more than five percent (5)% of the voting power of the Voting Stock or economic interests of the Capital Stock of the Corporation prior to such Reorganization.

If, at any time, after the date hereof, (i) the Series H Certificate of Designation, a certificate of designation governing the terms of any other series of Junior Liquidation Shares or Parity Liquidation Shares outstanding at such time or any other agreement governing the terms of any series of Junior Liquidation Shares, Parity Liquidation Shares or any Preferred Shares is amended in a manner that makes the terms of such Junior Liquidation Shares, Parity Liquidation Shares or Preferred Shares more favorable to the holders thereof than the terms of this Series I Certificate of Designation are to the Holders or (ii) the terms of the certificate of designation or other agreement governing the terms of any newly created Junior Liquidation Shares or Parity Liquidation Shares or any newly created Preferred Shares or any series thereof that are issued, other than solely in Excepted Equity Issuances, has terms (taken together with the terms of any other securities of the Corporation issued therewith) that are more favorable to the holder or holders thereof than the terms of this Certificate of Designation (taken together with the terms of any other securities of the Corporation issued with the Preferred Shares) are to the Holders (such more favorable terms, collectively, the “Improved Terms”), then the Corporation shall promptly take such action as may be necessary or desirable (including, without limitation, by amending the Series I Certificate of Designation) to provide the Holders with the benefit of the applicable Improved Terms.

10. Voting Rights; Board Designees.

(a) Generally. Unless otherwise provided by any Federal or State law, the Corporation’s Certificate of Incorporation, the Corporation’s Bylaws, this Section 10 or Section 11 hereof, the Holders shall not have the right to vote for the election of directors or on any other matters presented to the Corporation’s stockholders for action by their written consent or at any annual or special meeting of stockholders. On any matter on which the Holders are entitled by any Federal or State law, under the Corporation’s Certificate of Incorporation or Bylaws or pursuant to this Section 10 or Section 11 hereof to vote separately as a class, each such Holder shall be entitled to one vote for each Preferred Share held and such matter shall be determined by a majority of the Preferred Shares voting on such matter. Notwithstanding the foregoing but subject to the last sentence of Section 11(a) hereof, for so long as Primary Investor beneficially owns at least 10,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or (x) the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis and (y) at least one Preferred Share), the vote, consent, approval, waiver or authorization of Primary Investor on any matter, including without limitation, any matter on which the Holders are entitled by any Federal or State law (other than as may be required by Section 242(b)(2) of the Delaware General Corporation Law), under the Corporation’s Certificate of Incorporation or Bylaws or pursuant to this Series I Certificate of Designation to vote separately as a class, shall be, and shall be deemed to be, the vote, consent, approval, waiver or authorization of all of the Preferred Shares and the Holders of all of the Preferred Shares; provided, that Primary Investor shall not, without the consent of each adversely affected Holder, act to amend this Series I Certificate of Designation so as to alter the terms of the Preferred Shares of any Holder in a manner different from the other Holders with respect to their Preferred Shares or otherwise specifically targeting and materially and adversely affecting any such Holder with respect to its Preferred Shares in a manner different from the other Holders with respect to their Preferred Shares; provided, further, that in addition, the consent of Holders of a majority of the Preferred Shares then outstanding, subject to the rights and privileges of Holders expressly set forth herein, is also required to waive any or all obligations of the Corporation in respect of a Redemption Event or upon a Change of Control (and for the avoidance of doubt, the foregoing shall not restrict the ability of the Corporation and the Primary Investor to effect a Reorganization that complies with the terms and provisions of Section 9(b) in all respects). The foregoing sentence may not be amended without the consent of each Holder of Preferred Shares.

(b) Board Designees.

(i) So long as Primary Investor continues to beneficially own at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis), to the fullest extent permitted by the Exchange Act, the rules of any national securities exchange or over-the-counter market on which the Common Stock is listed or traded and any other applicable Federal and State laws, and subject to Section 10(b)(iv), Primary Investor, voting separately on behalf of the Preferred Shares as a class, shall be entitled at any annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation, and at all other times at which stockholders of the Corporation will have the right to or will vote for or render consent in writing regarding the election of directors of the Corporation, to elect a number of directors to the Board of Directors equal to the greater of: (x) two (2) directors and (y) the number of directors (rounded to the nearest whole number) equal to the product obtained by multiplying (1) the total number of directors that constitute the whole Board of Directors by (2) Primary Investor’s Pro Rata Share. Subject to the Exchange Act, the rules of any national securities exchange or over-the-counter market on which the Common Stock is listed or traded and any other applicable Federal and State laws, (A) one (1) of the Series I Directors (as defined below) elected pursuant to this Section 10(b)(i) shall be appointed to the audit committee of the Board of Directors and (B) Primary Investor shall have the right to designate the director who will serve as the chairperson of the Board of Directors (which, for the avoidance of doubt may or may not be one of the Series I Directors). Notwithstanding the foregoing, if after his or her election or appointment to the Board of Directors, any Series I Director shall die, shall become disabled, shall resign or shall be removed from the Board of Directors in accordance with applicable law, then Primary Investor shall be entitled to designate, by delivery of notice to the Company, a successor to replace the applicable Series I Director for election to the Board of Directors at the next scheduled annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation. The Corporation shall use its best efforts to give effect to and preserve the intent of the constituency of the Board of Directors provided for in this Section 10.

(ii) In the event that Primary Investor no longer has designee rights pursuant to Section 10(b)(i), so long as the Preferred Shares, on an as-converted basis, represent at least ten percent (10%) or more of the Corporation’s outstanding Capital Stock, the Holders of the Preferred Shares, voting separately as a class, shall be entitled at any annual or special meeting of the Corporation’s stockholders involving the election of directors of the Corporation, and at all other times at which stockholders of the Corporation will have the right to or will vote for or render consent in writing regarding the election of directors of the Corporation, to elect one (1) director to the Board of Directors.

(iii) Each director elected by Primary Investor pursuant to Section 10(b)(i) or the Holders pursuant to Section 10(b)(ii) shall be referred to as a “Series I Director”. Each Series I Director must be reasonably acceptable to the Corporation.

(iv) Notwithstanding anything to the contrary herein, the provisions of this Section 10(b) shall terminate automatically and be of no further force or effect upon the consummation of a Qualified Public Offering or the conversion or redemption of all outstanding Preferred Shares pursuant to Section 4(c).

(c) Waivers. Any provision of this Certificate of Designation may be waived in a written instrument executed by the waiving party including, without limitation, a waiver by Primary Investor in accordance with the third sentence of Section 10(a).

11. Restrictions and Limitations.

(a) The Holders of the Preferred Shares are entitled to vote separately as a single class on all matters to which they are entitled to vote under Section 242(b)(2) of the Delaware General Corporation Law, and on all other matters as required by applicable law, including (i) any increase or decrease in the authorized amount of Preferred Shares, except for the cancellation and retirement of shares set forth in Section 8(a); and (ii) any amendment, alteration or change in the powers, preferences or special rights of the Preferred Shares that would affect the Holders adversely. In addition, so long as any Holder continues to beneficially own at least seven thousand (7,000) Preferred Shares (as adjusted for any Reclassification of the Preferred Shares), notwithstanding the consent of the Primary Investor as may have been given pursuant to Section 10(a) hereof, the Corporation shall not, without the written consent of such Holder, alter, modify or amend (whether by amendment to the Certificate of Incorporation or Bylaws, merger, consolidation or otherwise) the terms, rights, preferences, privileges or powers of, or the other restrictions provided for the benefit of, the Series in any way as set forth herein or in any other agreement entered into by the Corporation (provided, that the written consent of such Holder(s) pursuant to the immediately preceding provision of this Section 11(a) shall not be required to make such alteration, modification or amendment if effected solely to consummate, and which is otherwise conditioned upon the consummation of, a Reorganization that complies with the terms and provisions of Section 9(b) in all respects).

(b) So long as Primary Investor continues to beneficially own (I) in the case of Sections 11(b)(i), 11(b)(ii), 11(b)(iii), 11(b)(iv) or 11(b)(vii)(A), at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares); (II) in the case of Section 11(b)(ix), at least 2,500 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis); and (III) in the case of Sections 11(b)(v), 11(b)(vi), 11(b)(vii)(B), 11(b)(viii), 11(b)(x), 11(b)(xi) and 11(b)(xii), at least 10,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis), but for purposes of the calculations in (I), (II) and (III) above disregarding any reduction in the number of Preferred Shares beneficially owned by Primary Investor attributable to: (x) any Transfer pursuant to a public offering (other than a Qualified Public Offering), (y) any Transfer to Riverwood or (z) any Transfer by Primary Investor that gives rise to the Co-Sale Rights or that otherwise would give rise to the Co-Sale Rights but for the exceptions pursuant to Section 1 of the Co-Sale Agreement, and in each case with Sections 11(b)(xii) and 11(b)(xiii) continuing to apply with respect to the subsections still in effect pursuant to the foregoing clauses (I), (II) and (III), the Corporation shall not, without the written consent of Primary Investor:

(ii) re-issue (whether by merger or otherwise) any Preferred Shares that have been converted, redeemed or otherwise reacquired by the Corporation;

(ix) enter into any new agreements or transactions or series of agreements or transactions with any Affiliate of the Corporation or any holder of five percent (5%) or more of the Corporation’s Capital Stock or any Affiliates of any such stockholder of the Corporation (a “Related Party Agreement”) or amend or modify the terms of any existing Related Party Agreements, other than: (A) up to $500,000 in the aggregate of fees or other amounts payable annually by the Corporation to Primary Investor pursuant to any management or similar services agreement; (B) up to $200,000 in the aggregate of fees or other amounts payable annually by the Corporation to Riverwood or any of its Affiliates pursuant to any management or similar services agreement; and (C) up to $100,000 in the aggregate of fees or other amounts payable annually by the Corporation to any Significant Holder or its Affiliates pursuant to any management or similar services agreement;

(x) purchase, acquire, license, transfer, sell, divest, or dispose of property, rights or assets (whether tangible or intangible) of the Corporation or any of its Subsidiaries (whether by merger, consolidation, other business combination, purchase or sale of Capital Stock or other Equity Security, spin-off, divestiture, asset purchase, asset sale or other transaction involving the Corporation or any of its Subsidiaries) or enter into any joint venture where either (A) the aggregate consideration to be paid or received by the Corporation or any of its Subsidiaries, or (B) the fair market value of the relevant property, rights or assets, in one transaction or a series of related transactions, exceeds $5.0 million, other than commercial transactions with customers and distributors for the sale of the Corporation’s products in the ordinary course of business; provided, that such consent may not be unreasonably withheld, conditioned or delayed to the extent such transaction will constitute a Change of Control and the Corporation has available, or will obtain in connection with such transaction, sufficient proceeds to redeem all of the Preferred Shares in accordance with the provisions of Section 6 and, for the avoidance of doubt, to the extent such transaction will constitute a Change of Control, this subsection (x) is not intended to be utilized by Primary Investor to modify the amount of proceeds payable to the Holders with respect to the Preferred Shares upon such Change of Control from the amount to which such Holders would otherwise be entitled pursuant to Section 6 hereof upon such Change of Control;

(xii) enter into any definitive agreement or commitment with respect to any of the foregoing; or

(xiii) indirectly engage in any of the foregoing through an Affiliated person (including without limitation Riverwood), including cause or permit any Subsidiary to engage in or enter into any definitive agreement or commitment with respect to any of the foregoing.


Fiscal Year End	Minimum Consolidated EBITDA
December 31, 2015 and each fiscal year end thereafter	$	20.0 million

(e) Notices. The Corporation shall, and shall cause each of its Subsidiaries to, promptly give the Holders written notice of the occurrence of any Liquidation Event.

(f) Freedom to Pursue Corporate Opportunities. The Corporation expressly acknowledges and agrees as follows, for so long as Primary Investor or any Significant Holder beneficially owns any Preferred Shares (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis) (a) Primary Investor or such Significant Holder and each director of the Corporation who is a member, director, officer, employee or Affiliate of Primary Investor or such Significant Holder (an “Affiliated Person”) has the right to, and shall have no duty (contractual or otherwise) not to, directly or indirectly engage in the same or similar business activities or lines of business as the Corporation or any of its Subsidiaries, including those deemed to be competing with the Corporation or any of its Subsidiaries; and (b) in the event that Primary Investor, such Significant Holder or such Affiliated Person acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Corporation, Primary Investor, such Significant Holder or such Affiliated Person shall have no duty (contractual or otherwise) to communicate or present such corporate opportunity to the Corporation or any of its Subsidiaries, as the case may be, and, notwithstanding any provision of any agreement to the contrary, shall not be liable to the Corporation or its Affiliates or stockholders or creditors for breach of any duty (contractual or otherwise) by reason of the fact that Primary Investor, such Significant Holder or such Affiliated Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another person, or does not present such opportunity to the Corporation or any of its Subsidiaries; provided, that the provisions of this Section 12(f) shall not apply with respect to the actions of any individual while serving in an operational capacity as an officer or other employee of the Corporation. Primary Investor and each Significant Holder agrees on behalf of itself and each Affiliated Person to keep confidential all proprietary and non-public information regarding the Corporation received in such capacity and not to use such proprietary and non-public information for any purpose other than in connection with evaluating, monitoring or taking any other action with respect to the investment by Primary Investor or such Significant Holder in the Preferred Shares, provided, that nothing herein shall prevent Primary Investor, such Significant Holder or such Affiliated Persons from disclosing or using any such information that (i) is or becomes generally available to the public in accordance with Federal or State laws other than as a result of a disclosure by Primary Investor, such Significant Holder or such Affiliated Persons in violation of this Section 12(f) or any other legal duty, fiduciary duty or other duty of trust and confidence, of Primary Investor, such Significant Holder or such Affiliated Person; (ii) was in Primary Investor’s, such Significant Holder’s or such Affiliated Person’s possession or developed by it prior to being furnished with such information, as evidenced by Primary Investor’s, such Significant Holder’s or such Affiliated Person’s records; (iii) becomes available to Primary Investor, such Significant Holder or such Affiliated Person on a non-confidential basis from a source other than the Corporation, or (iv) is required to be disclosed by applicable law or legal process.

13. Transfers.

(b) To the extent the Restrictive Period ends by reason of the occurrence of the three (3) year anniversary of the Investment Date as provided in clause (A) of the definition thereof, and neither a Qualified Public Offering nor a Redemption Event has occurred, Preferred Shares may be Transferred by any Holder with the prior written consent of the Corporation, such consent not to be unreasonably withheld, conditioned or delayed, or pursuant to a Permitted Transfer . Notwithstanding the foregoing, Preferred Shares may be offered, sold, transferred or assigned by any Holder without consent after the occurrence of a Change of Control or a Liquidation Event.

(d) Primary Investor Rights. Notwithstanding Section 13(a), the Primary Investor Rights shall not be transferrable and shall terminate with respect to such Transferred shares upon any Transfer by Primary Investor of Preferred Shares; provided, that, following a Control Event (as defined in the Series H Certificate of Designation as in effect on the Investment Date), the Primary Investor Rights shall be transferrable in connection with a Transfer by Primary Investor, in a single transaction to a single transferee, of more than 7,782 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) (or the equivalent number of those certain shares of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion thereof on an as-converted basis).

14. Preemptive Rights.

(a) Except with respect to any Exempt Equity Issuances or any offering of Capital Stock by the Corporation that is registered pursuant to the Securities Act, if the Corporation after the date hereof, proposes to issue or sell any Equity Securities, the Corporation will, at least twenty (20) days prior to the proposed issuance or sale but subject to applicable Federal and State laws, notify the Holders in writing (the “Issuance Notice”) of (i) the number and type of Equity Securities which the Corporation proposes to issue, the price thereof and the date on which such price shall be paid; (ii) all other material terms and conditions, including terms of condition of payment, relating to the proposed issuance or sale; (iii) the proportionate number of Equity Securities which each Holder shall have the right to purchase, which shall be equal to such Holder’s Pro Rata Share of such Equity Securities; and (iv) where the proposed purchasers of such Equity Securities are known, the identities of such proposed purchasers. Each Holder may elect to purchase all or any portion of its respective Pro Rata Share of the securities to be issued in such issuance or sale at the same price and on the same terms identified in the notice. If electing to participate, such Holder (an “Exercising Holder”) shall be required to purchase the same Equity Securities that are being issued by the Corporation and shall be entitled to make such purchase on the same terms and conditions, in each case as set forth in the Issuance Notice. Such Holder’s election to participate in any such transaction must be made in writing and be delivered to the Corporation ten (10) days after the Corporation’s delivery of the Issuance Notice; provided, that if there is a material change in the Corporation’s proposed terms or conditions of issuance or sale, a new Issuance Notice shall be provided to the Holders pursuant to this Section 14(a) and the Holders will have ten (10) days after the Corporation’s delivery of such new Issuance Notice with such revised terms to reconfirm such Holder’s intention to invest. To the extent any Holder does not elect to purchase all of its Pro Rata Share of the Equity Securities (a “Declining Holder”), the Exercising Holders shall be entitled to purchase the Equity Securities allocated to the Declining Holder, and the Corporation shall deliver to each Exercising Holder a written notice (the “Remaining Equity Notice”) not less than fifteen (15) days after the date of the Issuance Notice specifying the aggregate number of Equity Securities that all of the Declining Holders did not elect to purchase. Each Exercising Holder shall have the right to purchase additional Equity Securities, which right must be exercised not less than ten (10) days after delivery of the Remaining Equity Notice, by notifying the Corporation in writing (a “Second Exercise Notice”) of the maximum number of such Equity Securities that such Exercising Holder wishes to purchase. To the extent the aggregate number of shares sought to be purchased under the Second Exercise Notices is equal to or less than the number of Equity Securities set forth in the Remaining Equity Notice, each Holder delivering a Second Exercise Notice shall be entitled to purchase the number of Equity Securities set forth in such Holder’s Second Exercise Notice. To the extent the aggregate number of shares sought to be purchased under the Second Exercise Notices is greater than the number of Equity Securities set forth in the Remaining Equity Notice, such Equity Securities shall be allocated among the Holders on a pro rata basis based on their relative Pro Rata Share. If after notifying the Holders, the Corporation elects not to proceed with the issuance or sale, any elections made by such Holder shall be deemed rescinded. Notwithstanding anything to the contrary contained in this Section 14(a), if the consideration to be received by the Corporation with respect to the issuance of Equity Securities specified in the Issuance Notice is other than cash to be paid upon the issuance of the Equity Securities (that is, if the consideration would constitute so called “in kind” property), or if security is to be provided to secure the payment of any deferred portion of the purchase price, then any Holder exercising his, hers or its rights under this Section 14 may purchase such Equity Securities by making a cash payment at the time of the closing specified in the Issuance Notice in the amount of the reasonably equivalent value of the “in kind” property specified in the Issuance Notice and/or may provide reasonably equivalent security to that

provided in the Issuance Notice. Such “reasonably equivalent value” or “reasonably equivalent security” shall be determined by the Board of Directors. In the event of any issuance or sale of any debt securities by the Corporation to any Significant Holder or any Affiliate of any Significant Holder, in whole or in part, other than any offering of debt securities by the Corporation that is registered pursuant to the Securities Act (a “Preemptive Debt Issuance”), such Preemptive Debt Issuance shall be treated in the same manner as an issuance of Equity Securities for purposes of the rights provided in this Section 14 and each Holder shall have the right to notice of, and to elect to participate in, such Preemptive Debt Issuance as if each reference to “Equity Securities” in this Section 14 were replaced with a reference to such debt securities. If, in connection with any issuance of Equity Securities or debt securities by the Corporation after the date hereof other than any Exempt Equity Issuance or any offering of Capital Stock or debt securities that is registered pursuant to the Securities Act, the Corporation grants any Significant Holder or any Affiliate of any Significant Holder (i) any new material right or contractual benefit which is in addition and/or supplemental to those rights and benefits of such Significant Holder that are in effect immediately prior to such issuance (and which is not granted as a condition of such issuance) or (ii) any additional securities (clauses (i) and (ii) each, an “Ancillary Right”) in connection with or relating to such Significant Holder’s ownership of Preferred Shares or shares of Series H Convertible Preferred Stock, as applicable, in each case which Ancillary Right (x) is not otherwise made available to the Holders that exercise their rights in full pursuant to this Section 14 and (y) does not arise out of a law, regulation, order or other legal circumstance that is applicable to such Significant Holder but not to such other Holders that exercise their rights in full, then each other Significant Holder shall be offered a Pro Rata Share of such Ancillary Right on the same terms and conditions as such Significant Holder or such Affiliate of such Significant Holder in the same manner as is provided in this Section 14, so long as such other Significant Holder participates in such issuance of Equity Securities or debt securities to the same extent on a pro rata basis as such Significant Holder or such Affiliate of such Significant Holder.

15. Notices.

right to subscribe for, purchase or otherwise acquire any Equity Securities of any class or any other securities or property, or any other right, the Corporation shall mail to each Holder, at least ten (10) days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right.

(b) Notices by the Corporation. Any notice required by the provisions of this Series I Certificate of Designation to be given to the Holders shall be deemed given if sent by U.S. nationally recognized overnight courier service, and addressed to each holder of record at his or her address appearing on the books of the Corporation.

16. Certain Definitions. As used in this Series I Certificate of Designation, the following terms shall have the following respective meanings:

“Change of Control” means (a) the sale, conveyance, transfer or disposition, directly or indirectly, including but not limited to any spin-off or in-kind distribution (a “Divestiture”), of all or substantially all of the assets of the Corporation or any successor (on a consolidated basis), other than to the Corporation or its wholly-owned Subsidiaries; (b) the effectuation of a transaction or series of related transactions in which, directly or indirectly, more than thirty-five percent (35)% of the voting power of the outstanding shares of Voting Stock of the Corporation (or ultimate parent thereof) is disposed of (other than (i) as a direct result of normal, uncoordinated trading activities in the Common Stock generally or (ii) solely as a result of the disposition by a stockholder of the Corporation to an Affiliate of such stockholder); (c) any merger, consolidation, stock or asset purchase, recapitalization or other business combination transaction (or series of related transactions) immediately following which the persons that beneficially owned or controlled, directly or indirectly, all of the voting power of the outstanding shares of Voting Stock of the Corporation immediately prior to such transaction (or series of related transactions), beneficially own or control, in the aggregate (together with Affiliates of such stockholders), less than sixty-five percent (65%) of the voting power of the outstanding shares of Voting Stock of the entity surviving or resulting from such transaction (or ultimate parent thereof); (d) a transaction (or series of transactions) in which any person, entity or “group” (as such term is used in Sections 13(d) of the Exchange Act), other than Primary Investor, acquires, directly or indirectly, more than thirty-five percent (35)% of the voting power of the outstanding shares of Voting Stock of the Corporation (or ultimate parent thereof) or control of the Board of Directors (excluding, in the case of control of the Board of Directors only, as a result of the occurrence of a Control Event (as defined in the Series H Certificate of Designation)), or (e) Primary Investor ceases to beneficially own and control at least ten percent (10%) of the voting power of the outstanding shares of Voting Stock and at least twenty-five (25)% of the economic interests in the outstanding shares of Capital Stock of the Corporation, on a fully-diluted basis.

“Compliance Certificate” means a certificate duly executed by a Responsible Officer substantially in the form of Exhibit A.

“Conversion Price” means $0.95, subject to adjustment in accordance with the terms hereof.

“Co-Sale Agreement” means the rights set forth in that certain co-sale agreement, dated as of September 25, 2012, among Primary Investor, Riverwood, Portman and Zouk and certain of their Affiliates.

“Co-Sale Rights” means the rights of each of the parties to the Co-Sale Agreement, as set forth in such Agreement.

“Eligible Amount” means with respect to any Holder, the “Eligible Amount” of shares of Common Stock equal to the product obtained by multiplying (a) the maximum number of shares of Common Stock that the underwriter(s) estimate(s) can be underwritten in connection with an Eligible Offering at a price range that is acceptable to the Corporation less any shares of Common Stock being offered by the Corporation or any other person or entity holding registration rights that are senior to those granted to the Holders in this Series I Certificate of Designation, by (b) a fraction, the numerator of which shall equal the number of shares of Common Stock issuable to such Holder upon the conversion of such Holder’s Preferred Shares, and the denominator of which shall equal the total number of shares of Common Stock issuable to all Holders upon conversion of such Holders’ Preferred Shares that are requested to be included in the Eligible Offering.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excepted Equity Issuance” means the issuance of (i) any Capital Stock of the Corporation pursuant to compensatory issuances to (A) the executives and directors of the Corporation in their capacity as such and (B) other employees of the Corporation in their capacity as such, in each case pursuant to an option, stock or other equity plan approved by the Board of Directors; or (ii) any Common Stock or warrants or options to purchase Common Stock in connection with a bona fide strategic commercial agreement or commercial relationship as determined by the Corporation and approved by the Board of Directors and by each Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, the primary purpose of which is not to raise capital.

“Exempt Equity Issuance” means the issuance of any Capital Stock of the Corporation: (i) upon the conversion or exercise of any options, warrants or rights to acquire securities of the Corporation which options, warrants or rights were (A) outstanding on the Investment Date (as certified by an officer of the Corporation to Primary Investor on the Investment Date), (B) issued as part of another Exempt Equity Issuance or (C) offered to the Holders pursuant to an Issuance Notice in compliance with Section 14(a) hereof; (ii) compensatory issuances to (A) the executives and directors of the Corporation in their capacity as such and (B) other employees of the Corporation in their capacity as such, in each case pursuant to an option, stock or other equity plan approved by the Board of Directors; (iii) having a value of less than or equal to $15.0 million in the aggregate for all such issuances under this clause (iii), provided, that any such issuance must also be at a price per share (or equivalent security) greater than or equal to the Conversion Price; (iv) in a Qualified Public Offering; (v) for consideration in lieu of cash pursuant to the bona fide acquisition of another corporation or entity by the Corporation by consolidation, merger, purchase of all or substantially all of the assets of such other corporation or entity or fifty percent (50%) or more of the voting power of such other corporation or entity or fifty percent (50%) or more of the equity ownership of such other corporation or entity approved by the Board of Directors and by Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, in each case the primary purpose of which is not to raise capital; (vi) in connection with a bona fide strategic commercial agreement or commercial relationship as determined by the Corporation and approved by the Board of Directors and by Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, the primary purpose of which is not to raise capital; (vii) pursuant to any stock split or reverse stock split; (viii) pursuant to the Series H/I Offering; provided, that any such sale is on terms no more favorable to the purchaser of Preferred Shares or shares of Series H Convertible Preferred Stock than the terms to Riverwood pursuant to the Subscription Agreement, including that the purchase price for each Preferred Share shall be no less than the Stated Value; (ix) upon the exercise by any Series H Holder or Series J Holder of the preemptive rights granted pursuant to the terms of the Series H Certificate of Designation or Series J Certificate of Designation; (x) upon the conversion of any shares of Series H Convertible Preferred Stock pursuant to the terms of the Series H Certificate of Designation; and (xi) shares of Capital Stock of the Corporation issued upon conversion or exercise of the securities set forth in the foregoing clauses (i) – (x); provided that “Exempt Equity Issuance” shall in no event include any issuance of Senior Liquidation Shares, or any issuance of Parity Liquidation Shares other than as provided in the foregoing clauses (viii) and (ix).

“Holder” means any holder of Preferred Shares, all of such holders being the “Holders.”

“Investment Date” means the first issue date of the Preferred Shares.

clause (xii) of the definition of “Exempt Equity Issuance” to the extent relating to an Exempt Equity Issuance as described in the foregoing clauses (1) or (2); provided, that “Permitted Equity Issuance” shall in no event include any issuance of Senior Liquidation Shares, or any issuance of Parity Liquidation Shares other than as provided in clauses (viii) and (ix) of the definition of “Exempt Equity Issuance”.

“Permitted Transfer” means any Transfer by: (1) a Holder of all or any portion of the Preferred Shares (a) to Primary Investor; (b) to Riverwood; (c) to the Corporation or any of the Corporation’s Subsidiaries, (d) pursuant to the exercise of the Co-Sale Rights; (e) in any transaction in which all or substantially all of the Equity Securities of the Corporation are Transferred pursuant to any reorganization, merger, consolidation or sale of the Corporation; (f) in a Qualified Public Offering; (g) pursuant to a tender or exchange offer pursuant to the Securities Act or the Exchange Act; (h) with respect to the Transfers by any party other than Primary Investor, with the prior written consent of the Corporation, such consent not to be unreasonably withheld, conditioned or delayed; or (i) with respect to Transfers by Primary Investor, with the prior written consent of the Corporation; (2) PCA LSG Holdings, LLC of up to 18,316 Preferred Shares on or prior to the six (6) month anniversary of the Investment Date; or (3) Primary Investor pursuant to a pro rata in-kind distribution or dividend to the equityholders of Pegasus Partners IV, L.P. (and any intermediary transfers amongst Affiliates of Primary Investor as part of giving effect thereto) who were equityholders of Pegasus Partners IV, L.P. on May 25, 2102 (provided, that such distribution or dividend shall not result in a Transfer to any such equityholder of more than 15% of the Equity Securities held by Primary Investor as of the date hereof; provided, further, that such distribution or dividend shall not be structured so as to avoid the occurrence or triggering of a Change of Control).

“Portman” means Portman Limited, a Cayman Islands exempted company and its Affiliates.

“Primary Investor” means Pegasus Capital Advisors, L.P. and its Affiliates.

“Primary Investor Rights” means those rights provided to Primary Investor pursuant to Section 5(a)(i)(A), Section 5(e), Section 10(b)(i), Section 11(b) and Section 12 hereof.

created after the Investment Date, if that default: (i) is caused by a failure to pay the principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of any grace period provided pursuant to the terms of such Indebtedness on the date of such default and (x) the aggregate amount unpaid equals $10.0 million or more or (y) the principal amount of such Indebtedness aggregates to $15.0 million or more; or (ii) results in the acceleration of such Indebtedness prior to its express maturity and the principal amount of such Indebtedness aggregates to $8.0 million or more; provided, that if such default is cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within a period of ten (10) days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, no Redemption Event shall be deemed to have occurred; (b) any material breach or default under this Series I Certificate of Designation; provided, that if such breach or default is cured or waived within a period of ten (10) days from the continuation of such breach or default beyond any applicable grace period, no Redemption Event shall be deemed to have occurred; (c) any material breach of default under the certificate of designation with respect to the Series H Certificate of Designation or the certificate of designation with respect to any other series of preferred stock of the Corporation (other than the Series), in each case to the extent outstanding; provided, that in the case of this clause (c), if such breach or default is cured or waived within a period of ten (10) days from the continuation of such breach or default beyond any applicable grace period, no Redemption Event shall be deemed to have occurred or (d) any “Redemption Event” as such term is defined in the Series J Certificate of Designation or any other event giving rise to a “Mandatory Redemption” as such term is defined in the Series J Certificate of Designation unless such other event is satisfied, cured or waived such that pursuant to the terms of the Series J Certificate of Designation the Corporation no longer has an obligation to consummate such redemption at such time.

“Responsible Officer” means either the Chief Executive Officer or Chief Financial Officer of the Corporation.

“Riverwood” means RW LSG Holdings LLC and its Affiliates.

“Securities Act” means the Securities Act of 1933, as amended.

“Series H Certificate of Designation” means the Certificate of Designation of Series H Convertible Preferred Stock of the Corporation, as filed with the Secretary of State of the State of Delaware and as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Series H Holder” means any holder of the Corporation’s outstanding shares of Series H Convertible Preferred Stock.

“Series H/I Offering” means the sale of up to 31,000 Preferred Shares or shares of Series H Convertible Preferred Stock (each as adjusted for any Reclassification of the Preferred Shares) or any combination thereof by the Corporation after the Investment Date but on or prior to the four (4) month anniversary thereof.

“Series I Certificate of Designation” means this Certificate of Designation of Preferred Stock to be designated Series I Convertible Preferred Stock.

“Series J Holder” means any holder of the Corporation’s outstanding shares of Series J Convertible Preferred Stock.

“Significant Holder” means, as of the applicable date of determination, (i) Primary Investor so long as Primary Investor continues to beneficially own at least 2,500 Preferred Shares (as adjusted for any Reclassification of Preferred Shares); (ii) Primary Investor (as such term is defined in the Series H Certificate of Designation), so long as such Primary Investor continues to beneficially own at least 2,500 shares of the Corporation’s Series H Convertible Preferred Stock (as adjusted for any reclassification of such shares of Series H Convertible Preferred Stock); (iii) any Holder that beneficially owns at least 20,000 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares); and (iv) any Series H Holder that beneficially owns at least 20,000 shares of the Corporation’s Series H Convertible Preferred Stock (as adjusted for any reclassification of such shares of Series H Convertible Preferred Stock).

“Stated Value” means, with respect to a Preferred Share, $1,000 (as adjusted for any Reclassification of the Preferred Shares).

“Zouk” means Cleantech Europe II (A) LP, Cleantech Europe II (B) LP and their Affiliates.

[signature page follows]

IN WITNESS WHEREOF, the Corporation has caused this Certificate to be duly executed on its behalf by the undersigned as of November 14, 2014.


LIGHTING SCIENCE GROUP CORPORATION

By:	/s/ Dennis McGill
	Name:	Dennis McGill
	Title: Chief Financial Officer

Signature Page to Amended and Restated Series I Certificate of Designation

EXHIBIT A

FORM OF

COMPLIANCE CERTIFICATE

This Compliance Certificate is delivered pursuant to Section 12(d) of the Certificate of Designation of Preferred Stock of Lighting Science Group Corporation (the “Corporation”) to be designated Series I Convertible Preferred Stock (the “Series I Certificate of Designation”). Unless otherwise defined herein, terms defined in the Series I Certificate of Designation and used herein shall have the meanings given to them in the Series I Certificate of Designation.

1. I am the duly elected, qualified and acting [Chief Executive Officer][Chief Financial Officer] of the Corporation.

2. I have reviewed and am familiar with the contents of this Compliance Certificate.

3. I have reviewed the terms of the Series I Certificate of Designation and have made, or caused to be made, under my supervision, a review in reasonable detail of the transactions and condition of the Corporation and its Subsidiaries during the accounting period covered by the audited annual financial statements attached hereto as Annex I (the “Financial Statements”). Such review did not disclose the existence during or at the end of the accounting period covered by the Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance Certificate, of any condition or event which constitutes a Triggering Event [, except as set forth below].

4. Attached hereto as Annex II are the computations showing compliance with the covenants set forth in Section 12(a) through (e) of the Series I Certificate of Designation.

IN WITNESS WHEREOF, I have executed this Certificate this day of , 20 .

Name:

Title:

Exhibit 4.3

AMENDED AND RESTATED

CERTIFICATE OF DESIGNATION

SERIES J CONVERTIBLE PREFERRED STOCK

LIGHTING SCIENCE GROUP CORPORATION

Pursuant to Section 242 of the

General Corporation Law of the State of Delaware

FIRST: That pursuant to the authority conferred upon the Board of Directors (the “Board of Directors”) of the Corporation in accordance with the Amended and Restated Certificate of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), and the Amended and Restated Bylaws of the Corporation, as amended to date (the “Bylaws”), the Board of Directors has duly adopted a resolution amending and restating the rights of the Series J Convertible Preferred Stock, declaring said amendment and restatement to be advisable and authorizing the appropriate officers of the Corporation to solicit the requisite consent of the holders of the Series J Convertible Preferred Stock therefor; and

SECOND: That this Amended and Restated Certificate of Designation has been duly adopted in accordance with Sections 242 and 228 of the Delaware General Corporation Law.

RESOLVED, that the rights set forth in the Certificate of Designation of Series J Convertible Preferred Stock (the “Certificate of Designation”), are hereby amended and restated as follows:

Unless otherwise hereinafter provided, certain capitalized terms as used herein shall have the meaning set forth in Section 16 hereof.

1. Number of Shares; Designation. A total of 70,000 shares (the “Preferred Shares”) of preferred stock, par value $0.001 per share, of the Corporation have been designated as Series J Convertible Preferred Stock (the “Series”).

2. Rank. The Series shall, with respect to payment of dividends, distributions, redemptions, repurchases and other rights upon any mandatory or optional redemption event (including any Redemption (as defined below)), Change of Control (or other Triggering Event), liquidation, dissolution or winding up of the affairs of the Corporation (including upon a Liquidation Event (as defined below)), rank:

(a) Senior and prior to (i) the Series H Convertible Preferred Stock of the Corporation, par value $0.001 per share (the “Series H Preferred Stock”); (ii) the Series I Convertible Preferred Stock of the Corporation, par value 0.001 per share (the “Series I Preferred Stock”); (iii) the Common Stock of the Corporation, par value $0.001 per share (the “Common Stock”); (iv) all other Equity Securities of the Corporation (including warrants and other securities exercisable, convertible or exchangeable into or for (A) shares of Common Stock (“Common Stock Equivalents”), (B) shares of Series H Preferred Stock, (C) shares of Series I Preferred Stock, and/or (D) any other Equity Securities of the Corporation other than Parity Liquidation Shares (as defined below) or Senior Liquidation Shares (as defined below); and

(v) any additional class or series of Capital Stock which may in the future be issued by the Corporation in accordance with the terms hereof and is designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of Capital Stock as ranking junior to the Preferred Shares or which does not state they are Parity Liquidation Shares (as defined below) or Senior Liquidation Shares (as defined below). Any shares of the Corporation’s Capital Stock described in clauses (i) through (v) above are hereinafter referred to as “Junior Liquidation Shares.”

(b) Pari passu with any additional class or series of Capital Stock which may in the future be issued by the Corporation in accordance with the terms hereof and is expressly designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of Capital Stock as ranking equal to the Preferred Shares. Any shares of the Corporation’s Capital Stock described in the immediately preceding sentence are hereinafter referred to as “Parity Liquidation Shares.”

(c) Junior to any additional class or series of Capital Stock which may in the future be issued by the Corporation in accordance with the terms hereof and is expressly designated in the amendment to the Corporation’s Certificate of Incorporation or the certificate of designation establishing such additional class or series of Capital Stock as ranking senior to the Preferred Shares. Any shares of the Corporation’s Capital Stock described in the immediately preceding sentence are hereinafter referred to as “Senior Liquidation Shares.” For the avoidance of doubt, the Corporation shall not issue any Senior Liquidation Shares, without the approval of each Holder required in accordance with Section 11 hereof, as applicable, that are not also senior with respect to dividends, distributions, redemptions, repurchases and other rights upon any mandatory or optional redemption event (including any Redemption), Change of Control (or other Triggering Event), liquidation, dissolution or winding up of the affairs of the Corporation (including upon a Liquidation Event), to any Parity Liquidation Shares and/or Junior Liquidation Shares.

3. Dividends and Distributions.

(a) Each Holder shall be entitled to receive, when, as and if declared by the Board of Directors, to the fullest extent not prohibited by Delaware law governing distributions to stockholders for each Preferred Share, dividends of the same type as any dividends or other distribution, whether in cash, in kind or in other property, payable or to be made on outstanding shares of Common Stock, in an amount equal to the amount of such dividends or other distribution as would be made on the number of shares of Common Stock equal to the number of Optional Conversion Shares issuable to each Holder on the applicable record date for such dividends or other distribution on the Common Stock (the “Dividends”).

(b) Any Dividends shall be payable to each Holder at the same time as and when such dividend or other distribution on Common Stock is paid to the holders of Common Stock and shall be payable to each Holder on the record date for the corresponding dividend or distribution on the Common Stock; provided, that no dividend or distribution on Common Stock shall be declared, paid or set aside or otherwise made to any holders of Common Stock unless the Dividends are paid (or are concurrently being paid) to all Holders pursuant to this Section 3.

(c) So long as any Preferred Shares remain outstanding, without the consent of each Holder required in accordance with Section 11 hereof, as applicable, the Corporation shall not, directly or indirectly, and shall not cause or permit any of its Subsidiaries to, and it shall be a breach of this Section 3(c) if any Holding Company does, make any Parity Securities Distribution or Junior Securities Distribution, other than (i) as may be required pursuant to that certain Commitment Agreement, dated September 25, 2012, by and between the Corporation and Pegasus Partners IV, L.P., or those certain Warrants dated as of September 25, 2012 and issued to Zouk and Portman, respectively (in each case,

without giving effect to any modifications made thereto at any time that increase the amount or frequency of such payments by the Corporation as may be required thereby); (ii) redemptions or repurchases of Equity Securities of the Corporation from its employees in the ordinary course of business, (iii) up to $2.0 million aggregate amount each year (which amount shall reset to $2.0 million (with no carry-over from year to year) on November 14 of each year) in redemptions or repurchases of Junior Liquidation Shares from persons other than the Primary Investors, Significant Holders or any of their respective Affiliates; (each of (i) through (iii), a “Permitted Junior Security Redemption”), (iv) for the redemption of any shares of the Series H Preferred Stock or Series I Preferred Stock to the extent that such redemption(s) are made in accordance with, and subject to, the terms and conditions of Section 5, or (v) with respect to any Parity Securities Distribution, to the extent that the Holders participate in such Parity Securities Distribution in exactly the same manner, to the same extent and in the same proportions (based on their relative liquidation preferences (which shall be the Liquidation Amount as of the record date for such distribution with respect to the Preferred Shares)) as the Parity Liquidation Shares entitled to such distributions (each of (iv) and (v), an “Approved Redemption”, and any such distributions other than those expressly set forth in clauses (i) through (v), “Prohibited Distributions”). For purposes of this Series J Certificate of Designation, a traditional cashless or “net” exercise of any option or warrant to purchase Common Stock shall not be a Junior Securities Distribution.

4. Conversion.

(a) Conversion at Option of Holder. Each Preferred Share shall be convertible, at the option of the Holder thereof, at any time and from time to time, into the number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock equal to the number of Optional Conversion Shares issuable with respect to each Preferred Share (subject to Section 4(e) and Section 9). In the event of a Liquidation Event, the conversion rights provided by this Section 4(a) shall terminate at the close of business on the last full day preceding the date fixed for payment of any amounts distributable on such Liquidation Event to the Holders.

(b) Procedures for Conversion at Option of Holder. Each Holder shall effect an optional conversion pursuant to Section 4(a) by providing the Corporation with a written conversion notice specifying (i) the number of Preferred Shares to be converted and (ii) the date on which such conversion is to be effected (such date, the “Conversion Date”), which conversion date and time shall not be prior to the date such Holder delivers such notice to the Corporation nor more than twenty (20) business days thereafter. If no Conversion Date is specified in a notice of conversion, the Conversion Date shall be the date that such notice of conversion to the Corporation is deemed delivered to the Corporation hereunder. To effect any conversion of the Preferred Shares, each Holder shall surrender the certificate(s) representing such Preferred Shares to the Corporation. The Corporation shall take such actions as are necessary to cause any Preferred Shares that have been converted into Common Stock pursuant to the terms hereof to be retired, and such shares shall not be reissued. As soon as practicable after the Conversion Date and the surrender of the certificate(s) representing Preferred Shares, the Corporation shall issue and deliver to each such Holder or its nominee, at such Holder’s address as it appears on the books of the Corporation, a certificate(s) for the number of Optional Conversion Shares. Such conversion shall be deemed to have been made on the Conversion Date, and the Holder entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock on the Conversion Date. Unless a Holder converts all of its Preferred Shares pursuant to Section 4(a), the Corporation shall, as soon as practicable and in no event later than five (5) business days after the Conversion Date and at its own expense, issue a new certificate evidencing the number of Preferred Shares owned by such Holder after giving effect to the Preferred Shares converted on the Conversion Date.

(c) Conversion at the Option of the Corporation. At any time on or after the first date that fewer than 2,500 Preferred Shares remain outstanding in the aggregate (as adjusted for any Reclassification (as defined below) of the Preferred Shares), then at the Corporation’s option and election, all outstanding Preferred Shares (other than those Preferred Shares for which a Holder has made a Cash Election (as defined below) in accordance with the terms hereof), in whole but not in part, may be converted into the number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock equal to the number of Optional Conversion Shares with respect to all outstanding Preferred Shares (subject to Section 4(e) and Section 9). The Corporation shall effect a conversion pursuant to this Section 4(c) by mailing via nationally recognized courier service a written conversion notice to each Holder at the address of record on the books of the Corporation specifying (i) the Conversion Date, which conversion date and time shall not be prior to fifteen (15) days after the date the Corporation delivers such notice, and (ii) (A) that at any time prior to the Conversion Date, each Holder shall have the right in lieu of conversion to exercise its right to require the Corporation to redeem such Preferred Shares for an amount in cash equal to the Liquidation Amount with respect thereto (the “Cash Election”), and (B) the redemption date with respect to any such Cash Election (the “Cash Election Redemption Date”), which Cash Election Redemption Date shall be no more than sixty (60) days after the Conversion Date. No failure by the Corporation to give written notice as described in this Section 4(c) and no defect in any such notice shall limit any Holder’s right to make a Cash Election or affect the validity of the proceedings for such redemption of Preferred Shares.

(d) Automatic Conversion. Upon the date on which a Qualified Public Offering is consummated (the “Forced Conversion Date”), each Preferred Share shall be converted (a “Forced Conversion”), into the number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock equal to the greater of (1) the number of Optional Conversion Shares issuable with respect to each Preferred Share (subject to Section 4(e) and Section 9) or (2) the quotient obtained by dividing (I) the Returned Value by (II) the price per share of Common Stock paid by the public in such Qualified Public Offering. All outstanding Preferred Shares shall, on the Forced Conversion Date, be converted into Common Stock for all purposes, notwithstanding the failure of any Holder thereof to surrender any certificate representing such shares on or prior to such date. On and after the Forced Conversion Date, (w) no Preferred Shares shall be deemed to be outstanding or be transferable on the books of the Corporation; and (x) no Holder, as such, shall be entitled to receive any dividends or other distributions, to receive notices or to vote such Preferred Shares or to exercise or enjoy any other powers, preferences or rights in respect thereof, other than (y) the right, upon surrender of the certificate(s) representing such Preferred Shares, to receive a certificate(s) for the shares of Common Stock into which such shares have been converted, and (z) all dividends accrued and unpaid with respect to Preferred Shares accrued up to and including the Forced Conversion Date. On or promptly following the Forced Conversion Date, the Corporation shall take such actions as are necessary to cause all such Preferred Shares to be retired and such shares shall not be reissued.

(e) Fractional Shares. No cash shall be payable to any Holder upon conversion of Preferred Shares in lieu of fractional shares.

5. Redemption.

(a) Redemption Rights; Automatic and at Option of Holders.

(i) Upon the earlier of (1) the Corporation’s receipt of written notice of a request for any Junior Security Redemption (made in accordance with the certificate of designation (or the equivalent thereof) governing the terms of such Junior Liquidation Shares), other than a Permitted Junior Security Redemption and (2) the earliest redemption date for the applicable Junior Security Redemption, other than a Permitted Junior Security Redemption, the Corporation shall redeem all

of the Preferred Shares for an amount in cash equal to the Liquidation Amount of such Preferred Shares (the “Mandatory Redemption”) unless, and only to the extent that, any Holder of Preferred Shares gives written notice to the Corporation of such Holder’s election to have less than all or none of its Preferred Shares so redeemed. The Corporation shall mail via nationally recognized overnight courier service to each Holder at the address of record on the books of the Corporation, and e-mail and fax (to the e-mail and fax number, as applicable, on record for such Holder) a written notice (a “Mandatory Redemption Notice”) of such Mandatory Redemption not later than the earlier of (x) one (1) business day following the Corporation’s receipt of notice of a request for a Junior Security Redemption, other than a Permitted Junior Security Redemption, and (y) ten (10) business days before the earliest redemption date for the applicable Junior Security Redemption, other than a Permitted Junior Security Redemption, which Mandatory Redemption Notice shall specify the earliest redemption date for the applicable Junior Security Redemption. Each Holder shall have until such earliest redemption date specified in the Mandatory Redemption Notice to deliver a notice to the Corporation electing to exercise its right to have less than all or none of its Preferred Shares redeemed (a “Notice of Non-Redemption”). To the extent any Preferred Shares are redeemed in a Mandatory Redemption, payment of the Liquidation Amount in respect of such Preferred Shares shall be senior to and payable in full prior to the payment of any amounts pursuant to any Junior Security Redemption (including, without limitation, with respect to the Junior Security Redemption that triggered the Mandatory Redemption). The redemption date for such Mandatory Redemption (the “Mandatory Redemption Date”) shall be the earliest redemption date specified in the Mandatory Redemption Notice for the Junior Security Redemption triggering the Mandatory Redemption. If, for any or no reason at all, the Junior Security Redemption triggering the Mandatory Redemption is withdrawn or if the Corporation satisfies or cures, or the applicable holders of the Junior Liquidation Shares waive, the obligation or obligations giving rise to such Junior Security Redemption, in each case, prior to the Mandatory Redemption Date, or any other action is taken such that there is no longer an obligation on the part of the Corporation to consummate the Junior Security Redemption at such time, and no shares of Series H Preferred Stock, Series I Preferred Stock or other Junior Liquidation Shares are to be redeemed or repurchased in any such Junior Security Redemption, then the Corporation shall no longer have the obligation to consummate the Mandatory Redemption on the Mandatory Redemption Date.

(ii) At any time on or after the date on which the Corporation or any successor, directly or indirectly (including, without limitation, through a Subsidiary) or any Holding Company has consummated a Junior Security Redemption or any other Prohibited Distribution (in each case, other than a Permitted Junior Security Redemption), each Holder shall have the right at any time and from time to time to require the Corporation to redeem all or a portion of such Holder’s Preferred Shares for an amount in cash equal to the Liquidation Amount of such Preferred Shares (the “Optional Redemption Right”). The Corporation shall not, without the approval of each Holder required in accordance with Section 11 hereof, effect a transaction that results in a successor to the Corporation unless such successor agrees to make provisions consistent with the preceding sentence in accordance with Section 9(b).

(iii) For the avoidance of doubt, the obligations of the Corporation to the Holders (including, without limitation, the obligation to pay the Liquidation Amount in respect of the Preferred Shares pursuant to Section 4(c), Section 5, Section 6 and Section 7) shall be senior to the obligations of the Corporation to any and all Junior Liquidation Shares (including in connection with a Control Event (as defined in the Series H Certificate of Designation)).

(b) Redemption Event.

Upon the occurrence of a Redemption Event, the Corporation shall provide each Holder with written notice thereof not later than ten (10) days following discovery by the Corporation of such Redemption Event. Upon receipt of notice of a Redemption Event, each Holder shall, subject to this Section 5, have the right (the “Redemption Event Right”) to require the Corporation to redeem all or a portion of such Holder’s Preferred Shares for an amount in cash equal to the Liquidation Amount of such Preferred Shares; provided, that if the Corporation satisfies or cures the breach or default giving rise to the Redemption Event within any applicable grace period, such as the grace period provided in the definition of Redemption Event, then the Redemption Event Right shall terminate upon such default or breach no longer constituting a Redemption Event.

(i) Any redemption or repurchase of Preferred Shares pursuant to Section 4(c), this Section 5 or Section 6 (a “Redemption”) shall be payable out of any cash or surplus available therefor under applicable Delaware law (including any cash or surplus made available as a result of any revaluation or otherwise in accordance with the terms of this Section 5(c)(i)), and, except as otherwise provided in Section 5(d), if there is not a sufficient amount of cash or surplus available, then out of the remaining assets of the Corporation available therefor under applicable Delaware law (valued at the fair market value thereof on the date of payment, as determined by the Board of Directors). At the time of a Redemption, the Corporation shall take all actions required or permitted under Delaware law to permit the Redemption of the Preferred Shares, including, without limitation, through the revaluation of its assets in accordance with Delaware law, to make funds available under applicable Delaware law for such Redemption or to determine the existence of sufficient surplus, and the Corporation shall apply all of its assets to any such Redemption except to the extent prohibited by Delaware law governing distributions to stockholders.

(ii) The Corporation shall not be required to redeem any Preferred Shares pursuant to Section 4(c) or Section 5 (except Section 5(d)) for so long as such Redemption would result in an event of default under: (x) that certain Loan and Security Agreement, dated April 25, 2014, by and among the Corporation, as borrower, the guarantors and lenders party from time to time thereto and FCC, LLC (d/b/a First Capital), as agent; (y) that certain Term Loan Agreement, dated as of February 19, 2014, by and among the Corporation, the guarantors and lenders from time to time party thereto, and Medley Capital Corporation, as administrative agent for the lenders (together, (x) and (y), the “Credit Facilities”); or (z) any amendments or restatements of, supplements to, or new facility or facilities entered into in replacement of, the Credit Facilities in accordance with the terms hereof, including Section 11(b) (to the extent applicable); provided, that this limitation shall not apply to Section 5(b) if there otherwise exists a continuing default under the Credit Facilities and shall not apply at all if the Corporation attempts to consummate a Junior Security Redemption or other Prohibited Distribution (in each case, other than a Permitted Junior Security Redemption); and provided further that, to the extent that such Redemption would result in an event of default under the Credit Facilities but the Redemption of less than all of the Preferred Share to be redeemed on an applicable redemption date would not result in an event of default under the Credit Facilities, the Corporation shall ratably redeem the maximum number of Preferred Shares that it may redeem consistent with the Credit Facilities, and shall redeem the remaining Preferred Shares as soon as it may do so under the Credit Facilities.

(iii) Nothing in this Section 5 shall be construed to (1) affect the obligation of the Corporation (or its successor) to pay the Liquidation Amount in full in any Redemption prior to making any payment or distribution in respect of any Junior Liquidation Shares (including in connection with a Control Event (as defined in the Series H Certificate of Designation)), (2) limit the right of the Holders to require that the Corporation (or its successor) repurchase its Preferred Shares for the Liquidation Amount pursuant to Section 6, or (3) affect a Redemption or issuance of Conversion Notes in accordance with the provisions of Section 5(d) on the Special Redemption Date and any Note Conversion Date.

(d) Special Redemption.

(i) Upon at least sixty (60) days (but not more than one-hundred eighty (180) days) prior written notice, each Holder shall have the right to require the Corporation to redeem all or a portion of such Holder’s Preferred Shares pursuant to this Section 5(d) on November 14, 2019 (the “Special Redemption Date”). On the Special Redemption Date, with respect to all Preferred Shares for which the Holders have sent notice requiring redemption pursuant to the foregoing sentence (the “Specially Redeemed Preferred Shares” and any other Preferred Shares, the “Excluded Shares”), (1) the Corporation shall redeem all of the Specially Redeemed Preferred Shares for an amount per share in cash equal to the Liquidation Amount of such Specially Redeemed Preferred Shares out of cash and cash equivalents available to the Corporation to the fullest extent permitted by Delaware law governing distributions to stockholders, and (2) if less than all of the Specially Redeemed Preferred Shares have been redeemed pursuant to the immediately preceding clause (1), then, to the fullest extent that further redemptions would not be prohibited by Delaware law governing distributions to stockholders but cash or cash equivalents are not immediately available therefor, the Corporation shall ratably redeem the maximum number of Specially Redeemed Preferred Shares that have not been redeemed pursuant to the immediately preceding clause (1) (hereinafter, the “Remaining Shares”) that it may redeem consistent with such Delaware law governing distributions to stockholders in exchange for one or more non-interest bearing notes, substantially in the form attached hereto as Exhibit A, which shall be due and payable in full 180 days following the redemption date (each, a “Conversion Note”) payable in the principal amount equal, with respect to the Conversion Note or Notes issuable to each Holder, to the aggregate Liquidation Amount applicable to the Remaining Shares of such Holder so redeemed (the “Note Conversion Event”); provided, that for so long as any Conversion Notes are outstanding, the Corporation shall not, and shall not cause or permit any of its Subsidiaries to, make any distributions to stockholders other than distributions made pursuant to this Section 5(d) (and such limitation shall be included as a covenant in each Conversion Note), and it shall be a breach of this Section 5(d)(i) if a Holding Company makes any distributions in any manner that would constitute a breach of this Section 5(d)(i) if done by the Corporation or any of its Subsidiaries. At the time of the initial Note Conversion Event, the Corporation shall ratably redeem the maximum number of shares of the Remaining Shares that it may redeem in exchange for Conversion Notes in the amounts and on the terms set forth in the immediately preceding sentence, and thereafter shall ratably redeem the maximum number of shares of the Remaining Shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders (for the Liquidation Amount using funds legally available therefor, if immediately available, or otherwise by exchange for additional Conversion Notes) (each such subsequent redemption is referred to as a Note Conversion Event). On the date of the applicable Note Conversion Event, the applicable Remaining Shares shall be redeemed for the Liquidation Amount and/or exchanged for Conversion Notes, as applicable, for all purposes, notwithstanding the failure of any Holder thereof to surrender any certificate representing such shares on or prior to such date.

(ii) As soon as practicable after the date of any Note Conversion Event and the surrender of the certificate(s) representing Preferred Shares, the Corporation shall issue and deliver to each such Holder or its nominee, at such Holder’s address as it appears on the books of the Corporation, the Conversion Notes. Such Conversion Notes shall be deemed to have been issued on the date of such Note Conversion Event, and the Holder entitled to receive the Conversion Notes issuable upon such conversion shall be treated for all purposes as the record holder of such Conversion Notes on the date of the Note Conversion Event.

(e) Redemption and Repurchase Procedures.

(i) A Redemption pursuant to Section 5(a)(i) shall occur automatically on the applicable Mandatory Redemption Date unless and only to the extent that the Holder has provided the Corporation with a Notice of Non-Redemption in accordance with Section 5(a)(i) specifying the number of Preferred Shares to be retained by such Holder and an exchange pursuant to Section 5(d)(i) shall occur automatically on the date of the applicable Note Conversion Event if one should occur.

(ii) Holders shall exercise the Optional Redemption Right or Redemption Event Right (an “Optional Redemption”) by providing the Corporation with a written notice of their election to exercise such Optional Redemption Right or Redemption Event Right (an “Optional Redemption Notice”) specifying (i) the number of Preferred Shares to be redeemed and (ii) the date on which such Optional Redemption is to be effected (the “Optional Redemption Date”), which Optional Redemption Date and time shall not be prior to sixty (60) days after delivery of such Optional Redemption Notice to the Corporation nor more than one hundred eighty (180) days thereafter. No failure by the Corporation to give written notice of the Redemption Event under Section 5(b) and no defect in any such notice shall limit any Holder’s right to exercise its Redemption Event Right or affect the validity of the proceedings for such Redemption of Preferred Shares.

(iii) In connection with a Redemption of the Preferred Shares, a Holder shall surrender the certificate(s) representing such Preferred Shares to the Corporation. On the Mandatory Redemption Date, Optional Redemption Date, Cash Election Redemption Date, Special Redemption Date, date of any Note Conversion Event or Repurchase Date (as defined below), as applicable, the Corporation shall pay the Liquidation Amount (or lesser amount in connection with a Redemption pursuant to Section 5(d)) by check to the order of the record holder of the Preferred Shares or, if written instructions are provided in connection with such Redemption (it being acknowledged that e-mail instructions shall be sufficient), by wire transfer of immediately available funds in accordance with such instructions. If on any such redemption date, Delaware law governing distributions to stockholders prevents the Corporation or any successor from redeeming or repurchasing or exchanging all Preferred Shares to be redeemed or repurchased or exchanged, the Corporation shall ratably redeem or repurchase or exchange the maximum number of shares of Preferred Shares that it may redeem or repurchase or exchange consistent with such law, and shall redeem or repurchase or exchange the remaining shares as soon as it may lawfully do so under such law.

(iv) If for any reason less than all of a Holder’s Preferred Shares are redeemed for the Liquidation Amount on the Mandatory Redemption Date, Optional Redemption Date, Cash Election Redemption Date, Special Redemption Date, date of any Note Conversion Event or Repurchase Date, as the case may be, the Corporation shall, as soon as practicable and in no event later than five (5) business days after such date, as the case may be, and at its own expense, issue a new certificate evidencing the number of Preferred Shares owned by such Holder after giving effect to the Preferred Shares redeemed, repurchased or exchanged on such Mandatory Redemption Date, Optional Redemption Date, Cash Election Redemption Date, Special Redemption Date, date of any Note Conversion Event or Repurchase Date. The Corporation shall take all actions that are necessary to cause any Preferred Shares redeemed pursuant to the terms hereof to be retired and such shares shall not be reissued.

(f) Other than with respect to a Mandatory Redemption (in the event any Holder elects not to be so Redeemed), a Cash Election as set forth in Section 4(c), a Note Conversion Event as set forth in Section 5(d) (in the event any Holder elects not to be so converted with respect to Excluded Shares) or an Optional Redemption as set forth in Section 5(a) or Section 5(b), in no event shall the Corporation, or shall the Corporation cause or permit or any of its Subsidiaries to, redeem, purchase or acquire any Preferred Shares from one or more Holders unless the Corporation (or the applicable Subsidiary) irrevocably offers to simultaneously redeem, purchase or acquire a pro rata amount of Preferred Shares from each other Holder on the same terms, and it shall be a breach of this Section 5(f) if a Holding Company redeems, purchases or acquires any Preferred Shares in any manner that would constitute a breach of Section 5(f) if done by the Corporation or any of its Subsidiaries.

6. Change of Control.

(a) Upon consummation of a Change of Control (other than a Change of Control pursuant to which the Holders, upon the consummation of such Change of Control, receive consideration in cash equal to the aggregate Liquidation Amount with respect to their Preferred Shares), the Corporation shall immediately (and in any event within two (2) business days) make an offer in writing to each Holder to redeem all of the outstanding Preferred Shares for cash equal to the aggregate Liquidation Amount with respect to such Preferred Shares.

(b) Upon a Change of Control described in Section 6(a), the Corporation shall promptly give to each Holder notice (the “Change of Control Notice”) of the occurrence of the Change of Control and of the Holder’s right to receive the Liquidation Amount as a result of such Change of Control (the “Repurchase Right”). The Change of Control Notice shall be mailed to each Holder at the address of record on the books of the Corporation and shall state (i) the date on which the Preferred Shares shall be repurchased (the “Repurchase Date”); (ii) the date by which the Repurchase Right must be exercised, which date shall be no earlier than twenty (20) days after the delivery by the Corporation of the Change of Control Notice (the “Repurchase Right Expiration Date”); (iii) the Liquidation Amount; and (iv) a description of the procedures a Holder must follow to exercise the Repurchase Right (which shall be substantially the same as and no more onerous than the procedures described in Section 6(c).

(c) To exercise the Repurchase Right, a Holder shall deliver to the Corporation, on or before the Repurchase Right Expiration Date, a written notice (a “Repurchase Notice”) specifying the number of Preferred Shares to be repurchased by the Corporation. Each Holder shall retain the right to convert Preferred Shares at any time on or prior to the Repurchase Date, or to withdraw an election to have such shares repurchased at any time on or prior to the Repurchase Date. The Corporation shall use the consideration received by the Corporation pursuant to such Change of Control together with any other assets of the Corporation available for distribution to stockholders (the “Available Proceeds”) to satisfy the exercise by Holders of the Repurchase Right. In the event of a Redemption pursuant to the Repurchase Right, if the Available Proceeds are not sufficient to redeem all outstanding Preferred Shares required to be redeemed pursuant to a Repurchase Notice, the Corporation shall ratably redeem the Preferred Shares of the Holders exercising the Repurchase Right to the fullest extent of Available Proceeds, and shall redeem the remaining Preferred Shares requested to be redeemed pursuant to a Repurchase Notice as soon as it may lawfully do so under Delaware law governing distributions to stockholders. Prior to the Redemption of all Preferred shares required to be redeemed pursuant to this Section 6, the Corporation shall not expend or dissipate the consideration received pursuant to such Change of Control except to discharge expenses incurred in connection with such Change of Control or in the ordinary course of business.

(e) For the avoidance of doubt, to the extent that Available Proceeds are not (or will not be) sufficient to redeem the Preferred Shares of any person that properly exercises its Repurchase Right for the full Liquidation Amount, then the Corporation shall be prohibited, directly or indirectly, from making any payments (whether as dividends, or distributions, or as the result of redemptions or otherwise) on any Junior Liquidation Shares, entering into any agreement with any other party that provides for any payment in respect of Junior Liquidation Shares or otherwise making or facilitating any payment, transfer or distribution in respect of Junior Liquidation Shares.

(f) For the avoidance of doubt, without limiting the obligations of the Corporation set forth in Section 9, the obligations of this Section 6 shall survive any Change of Control and on or prior to the consummation of any Change of Control, the Corporation shall make provisions for the surviving or resulting entity of any transaction resulting in a Change of Control to assume all of the obligations of the Corporation under this Section 6, with all references to the Corporation herein becoming references to the surviving or resulting entity, as applicable.

7. Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation (a “Liquidation Event”), the Holders shall be entitled to receive and to be paid out of the assets of the Corporation available to the holders of the Corporation’s capital stock, the Liquidation Amount of the Preferred Shares held by them; provided, that the Holders (i) shall not be entitled to receive the Liquidation Amount of the Preferred Shares held by them until the liquidation value of any and all Senior Liquidation Shares shall have been paid in full, and (ii) shall be entitled to receive the Liquidation Amount of such shares held by them in preference to and in priority over any distributions upon any Junior Liquidation Shares. Upon payment in full of the Liquidation Amount to which the Holders are entitled, the Holders will not be entitled to any further participation in any distribution of assets by the Corporation in respect of the Preferred Shares. If the assets of the Corporation are not sufficient to pay in full the Liquidation Amount payable to the Holders and the liquidation value payable to the holders of any Parity Liquidation Shares, the holders of all such shares shall share ratably in such distribution of assets in accordance with their relative liquidation preferences (which shall be the Liquidation Amounts as of the record date for such distribution with respect to the Preferred Shares).

8. Status and Reservation of Shares.

(a) Status. All Preferred Shares that are at any time converted pursuant to Section 4 or redeemed or repurchased pursuant to Sections 4(c), 5, 6 or 7, and all Preferred Shares that are otherwise reacquired by the Corporation, shall be retired and shall not be subject to reissuance and shall, upon retirement, be automatically returned to the status of authorized and unissued shares of preferred stock of the Corporation, available for future designation and issuance pursuant to the terms of the Corporation’s Certificate of Incorporation.

9. Certain Adjustments.

(a) Stock Reclassifications, Splits and Dividends. If the Corporation, at any time while any Preferred Shares remain outstanding, shall undertake any reclassification, stock split, reverse stock split, stock dividend, subdivision, combination, consolidation, recapitalization or any similar proportionately-applied change (collectively, a “Reclassification”) of outstanding shares of Common Stock (other than resulting solely from a change in, of, or from par value), then the Conversion Price shall be adjusted such that each Holder shall thereafter be entitled to receive upon conversion the kind and amount of shares of Common Stock and/or other Capital Stock and/or property that such Holder of outstanding Preferred Shares would have been entitled to acquire immediately prior to, and receive pursuant to, such Reclassification as if such Preferred Shares were converted to Common Stock immediately prior to such Reclassification, subject to adjustment in respect of such Capital Stock by the terms thereof. Any adjustment made pursuant to this Section 9(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such stock dividend (or other similar distribution) and shall become effective immediately after the effective date in the case of a reclassification, stock split, reverse stock split, subdivision, combination, consolidation, recapitalization or other similar proportionately-applied change.

(b) Mergers or Consolidations. If at any time while any Preferred Shares remain outstanding there is a merger, consolidation or similar capital reorganization of the Common Stock (each a “Reorganization”), then without limiting or prejudicing the obligations of the Corporation set forth in Section 6 or in the second sentence of this Section 9(b), as part of such Reorganization, lawful provision shall be made as part of the terms of such transaction so that each Holder of Preferred Shares outstanding at the time of such Reorganization shall thereafter be entitled to receive upon conversion of such Preferred Shares (or of other convertible preferred stock received by such Holders in place thereof), the Capital Stock or other property that such Holder of outstanding Preferred Shares would have been entitled to receive in such Reorganization as if such Preferred Shares were converted to Common Stock immediately prior to such Reorganization, subject to adjustments for subsequent events substantially the same as those described in Section 9 hereof. Notwithstanding the foregoing, unless a Reorganization is also a Third Party Sale (defined below), then in addition to the conversion rights described in the immediately preceding sentence, lawful provision shall be made as part of the terms of such transaction so that in the event of a subsequent Forced Conversion, the amount of such Capital Stock or other property that such Holder of outstanding Preferred Shares at the time of such Reorganization is entitled to receive upon such subsequent Forced Conversion shall be increased at the time of such Forced Conversion to the amount, if greater, corresponding to the amount of Capital Stock or other property that would be issuable by dividing (i) the Returned Value by (II) the price per share of Capital Stock paid by the public in any public offering giving rise to the Forced Conversion, which for the avoidance of doubt may be satisfied by the successor, resulting or surviving entity, as applicable, expressly assuming the covenants, obligations and agreements of the Corporation under this Certificate of Designation in accordance with the immediately following sentence. Notwithstanding and in each case in addition to the foregoing, as a condition precedent to any Reorganization, the Corporation shall (1) if it is the surviving entity, ratify and affirm the covenants, obligations and agreements of the Corporation under this Certificate of Designation and (2) otherwise, require the successor, resulting or surviving entity, as

applicable, to expressly assume the covenants, obligations and agreements of the Corporation under this Certificate of Designation, with all references to the Corporation herein (including as set forth in the defined terms used or referenced herein) becoming references to the successor, resulting or surviving entity and such covenants, obligations and agreements applying mutatis mutandis with respect to such successor, resulting or surviving entity; provided, however, that if the relevant Reorganization is also a Change of Control and on or prior to the effective date of such Reorganization (A) each Holder of outstanding Preferred Shares was given the right to receive (on or prior to the Reorganization effective date) an amount in cash equal to the aggregate Liquidation Amount with respect to its Preferred Shares and (B) such payment, assuming it was accepted, was (1) a legal, valid and enforceable obligation of the Corporation or the resulting or surviving entity, (2) permitted to be paid pursuant to all applicable laws, including Delaware law and federal securities laws and (3) not in conflict in any material respect with any material contract or other obligation binding on the Corporation or the resulting or surviving entity, then the provisions which must be ratified and affirmed by the Corporation or the provisions that the Corporation requires the successor, resulting or surviving entity to assume, as applicable, will be limited to ratifying and affirming or requiring the successor, resulting or surviving entity to expressly assume, as applicable, the obligation to deliver, upon any conversion of the Preferred Shares, such Capital Stock or other property that the Holders are entitled to receive pursuant to the first sentence of this Section 9(b) and, if such Reorganization is not a Third Party Sale, the second sentence of this Section 9(b), and to making lawful provisions for the protection of such conversion rights in its certificate or articles or other constituent documents and for any adjustments to such conversion rights which, for events subsequent, substantially the same as those provided in Section 9(a), the first sentence of this Section 9(b) and, if such Reorganization Event is not a Third Party Sale, the second sentence of this Section 9(b). If this Section 9(b) applies to a Reorganization, Section 9(a) shall not also apply to such Reorganization. The term “Third Party Sale” shall mean a Reorganization that results in the majority of the voting power of all Voting Stock and the majority of the economic interests of all Capital Stock being owned by stockholders that were not, directly or indirectly, individually or in the aggregate, holders of more than five percent (5)% of the voting power of the Voting Stock or economic interests of the Capital Stock of the Corporation prior to such Reorganization.

If, at any time, after the date hereof, (i) the Series H Certificate of Designation, the Series I Certificate of Designation, a certificate of designation governing the terms of any other series of Junior Liquidation Shares outstanding at such time or any other agreement governing the terms of any series of Junior Liquidation Shares or any Preferred Shares is amended in a manner that makes the terms of such Junior Liquidation Shares or Preferred Shares more favorable to the holders thereof than the terms of this Series J Certificate of Designations are to the Holders or (ii) the terms of the certificate of designation or other agreement governing the terms of any newly created Junior Liquidation Shares or any newly created Preferred Shares or any series thereof that are issued, other than solely in Excepted Equity Issuances, has terms (taken together with the terms of any other securities of the Corporation issued therewith) that are more favorable to the holder or holders thereof than the terms of this Certificate of Designation (taken together with the terms of any other securities of the Corporation issued with the Preferred Shares) are to the Holders (such more favorable terms, collectively, the “Improved Terms”), then the Corporation shall promptly take such action as may be necessary or desirable (including, without limitation, by amending the Series J Certificate of Designation) to provide the Holders with the benefit of the applicable Improved Terms.

10. Voting Rights.

(a) Generally. Unless otherwise provided by any Federal or State law, the Corporation’s Certificate of Incorporation, the Corporation’s Bylaws, this Section 10 or Section 11 hereof, the Holders shall not have the right to vote for the election of directors or on any other matters presented to the Corporation’s stockholders for action by their written consent or at any annual or special meeting of stockholders. On any matter on which the Holders are entitled by any Federal or State law, under the Corporation’s Certificate of Incorporation or Bylaws or pursuant to this Section 10 or Section 11 hereof to vote separately as a class, each such Holder shall be entitled to one vote for each Preferred Share held and such matter shall be determined by a majority of the Preferred Shares voting on such matter (unless otherwise provided herein, including pursuant to Section 11(b) or Section 11(c), or required under Delaware law). Notwithstanding the foregoing, the joint vote, consent, approval, waiver or authorization of each Primary Investor on any matter, including without limitation, any matter on which the Holders are entitled by any Federal or State law (other than as may be required by the Delaware General Corporation Law), under the Corporation’s Certificate of Incorporation or Bylaws or pursuant to this Series J Certificate of Designation to vote separately as a class, shall be, and shall be deemed to be, the vote, consent, approval, waiver or authorization of all of the Preferred Shares and the Holders of all of the Preferred Shares; provided that no Primary Investor shall, without the consent of each adversely affected Holder, act to amend this Series J Certificate of Designation so as to alter the terms of the Preferred Shares of any Holder in a manner different from the other Holders with respect to their Preferred Shares or otherwise specifically targeting and materially and adversely affecting any such Holder with respect to its Preferred Shares in a manner different from the other Holders with respect to their Preferred Shares (and for the avoidance of doubt, the foregoing shall not restrict the ability of the Corporation and/or any Primary Investor to effect a Reorganization that complies with the terms and provisions of Section 9(b) in all respects, or an amendment to this Certificate of Designation to comply with the terms and conditions set forth in Section 9(c) or in Section 5 of the Subscription Agreement). The foregoing sentence may not be amended without the consent of each Holder of Preferred Shares. In addition, no vote, consent, approval, waiver or authorization of the Primary Investors shall be, or shall be deemed to be, the vote, consent, approval, waiver or authorization of all of the Preferred Shares with respect to any action that requires the consent of each Consenting Holder pursuant to Section 11(c) unless the consent of each Consenting Holder has also been obtained and any action taken by a Primary Investor in any capacity that is inconsistent with the requirements in Section 11(c) shall be of no force and effect unless the consent of each Consenting Holder is obtained. The foregoing sentence may not be amended without the consent of each Consenting Holder.

(b) Waivers. Subject to any separate approvals required under Section 11(c), any provision of this Series J Certificate of Designation may be waived in a written instrument executed by the waiving party including, without limitation, a waiver executed by each Primary Investor in accordance with the third sentence of Section 10(a).

11. Restrictions and Limitations.

(a) The Holders of the Preferred Shares are entitled to vote separately as a single class on (i) all matters to which they are entitled to vote under Section 242(b)(2) of the Delaware General Corporation Law, (ii) any increase or decrease in the authorized amount of Preferred Shares, except for the retirement of shares set forth in Section 8(a); (iii) any amendment, alteration or change in the powers, preferences or rights of the Preferred Shares that would affect the Holders adversely (whether by Reorganization, Reclassification, merger, consolidation or otherwise and whether before or after a Control Event (as defined in the H Series Certificate of Designation)) and (iv) all other matters as required by applicable law. Any act or transaction entered into by or on behalf of the Corporation without the consent, vote or waiver required by Section 10 or Section 11 shall be null and void ab initio and of no force or effect.

(b) The Corporation shall not, directly or indirectly, without the prior written consent of each Primary Investor (or, in the event there are no Primary Investors, the Holders of a majority of the outstanding Preferred Shares):

(ii) pay dividends or cash interests or other distributions (whether in cash, Equity Securities or otherwise) on, redeem or repurchase or otherwise acquire any Capital Stock, Equity Securities, convertible debt, or debt coupled with any Common Stock Equivalents of the Corporation, make any Parity Securities Distribution or any Junior Securities Distribution other than (i) as may be required by any Senior Liquidation Shares issued in accordance with the terms hereof, including Section 11(b)(vi), (ii) as part of any Permitted Junior Security Redemption or (iii) as part of any Approved Redemption.

(iii) liquidate, dissolve or wind-up the affairs of the Corporation or otherwise initiate any insolvency proceeding or any proceeding under the Bankruptcy Reform Act of 1978, as amended, or other applicable bankruptcy or insolvency laws;

(iv) engage in any recapitalization, merger, consolidation, reorganization or similar transaction; provided, that such consent may not be unreasonably withheld, conditioned or delayed to the extent such transaction will constitute a Change of Control and the Corporation has available, or will obtain in connection with such transaction, sufficient proceeds to redeem all of the Preferred Shares in accordance with the provisions of Section 6 and, for the avoidance of doubt, to the extent such transaction will constitute a Change of Control, this subsection (iv) is not intended to be utilized by the Primary Investor(s) to modify the amount of proceeds payable to the Holders with respect to the Preferred Shares upon such Change of Control from the amount to which such Holders would otherwise be entitled pursuant to Section 6 hereof upon such Change of Control; or other than in the ordinary course of business, form or maintain any direct or indirect Subsidiary;

(v) engage in a public offering or listing of Equity Securities (including indirectly by means of equity securities of a successor entity or otherwise) on any national securities exchange, other than (A) in connection with a Qualified Public Offering, (B) an offering made in connection with a business acquisition pursuant to a registration statement on Form S-4 or any similar form that does not otherwise require consent pursuant to this Section 11(b), or (C) in connection with an employee benefit plan pursuant to a registration statement on Form S-8 or any similar form;

(vi) other than with respect to any Permitted Equity Issuance, (A) issue any Senior Liquidation Shares or Parity Liquidation Shares, or reclassify any outstanding Equity Securities into Senior Liquidation Shares or Parity Liquidation Shares or (B) issue any other Equity Securities, or reclassify any other outstanding Equity Securities; provided, that consent shall not be required pursuant to this Section 11(b)(vi) with respect to any issuance of Equity Securities to the extent the proceeds thereof shall upon receipt thereof immediately be used to offer to redeem or repurchase all of the then-outstanding Preferred Shares pursuant to Section 5 or Section 6 hereof;

(vii) incur any Indebtedness (A) in excess of $50.0 million, other than (x) any Indebtedness incurred pursuant to a refinancing of the Credit Facilities or any other working capital facilities of the Corporation in effect as of the Investment Date, in each case without any increase in the available principal amount thereof or (y) pursuant to any refinancing or replacement of the Credit Facilities with respect to working capital or other working capital facilities as approved by the Board of Directors, in each case such that the aggregate available principal amount thereunder is secured only by the Corporation’s account receivables and finished goods inventory and does not exceed 80% of accounts receivable, 60% of finished goods inventory and $75 million in the aggregate (each of (A)(x) and (A)(y), “Permitted Indebtedness”); or (B) containing any provision that limits the Corporation’s ability to redeem any Preferred Shares pursuant to Section 5 for a period that exceeds that contained in the Credit Facilities as in effect as of the Investment Date; provided, that if such provision is contained in any Permitted Indebtedness, such Indebtedness shall continue to be Permitted Indebtedness for purposes of the foregoing clause (A) and consent shall only be required pursuant to this clause (B) with respect to such provision; and provided further that consent shall not be required pursuant to this Section 11(b)(vii) for Indebtedness to the extent the proceeds thereof shall upon receipt thereof immediately be used to offer to redeem or repurchase all of the then-outstanding Preferred Shares pursuant to Section 5 or Section 6 hereof;

(viii) enter into any new agreements or transactions or series of agreements or transactions (a “Related Party Agreement”) with any Affiliate of the Corporation or any holder of five percent (5%) or more of the Corporation’s Capital Stock or any Affiliates of any such stockholder of the Corporation (a “Related Party”) or amend or modify the terms of any existing Related Party Agreements, other than: (A) up to $500,000 in the aggregate of fees or other amounts payable annually by the Corporation to Pegasus pursuant to any management or similar services agreement; (B) up to $200,000 in the aggregate of fees or other amounts payable annually by the Corporation to Riverwood or any of its Affiliates pursuant to any management or similar services agreement; and (C) up to $100,000 in the aggregate of fees or other amounts payable annually by the Corporation to any Significant Holder or its Affiliates pursuant to any management or similar services agreement;

(ix) purchase, acquire, license, transfer, sell, divest, or dispose of property, rights or assets (whether tangible or intangible) of the Corporation or any of its Subsidiaries or any of their successors (whether by merger, consolidation, other business combination, purchase or sale of Capital Stock or other Equity Security, spin-off, divestiture, asset purchase, asset sale or other transaction involving the Corporation or any of its Subsidiaries or any of their successors) or enter into any joint venture where either (A) the aggregate consideration to be paid or received by the Corporation or any of its Subsidiaries, or (B) the fair market value of the relevant property, rights or assets, in one transaction or a series of related transactions, exceeds $5.0 million, other than commercial transactions with customers and distributors for the sale of the Corporation’s products in the ordinary course of business; provided, that such consent may not be unreasonably withheld, conditioned or delayed to the extent such transaction will constitute a Change of Control and the Corporation has available, or will obtain in connection with such transaction, sufficient proceeds to redeem all of the Preferred Shares in accordance with the provisions of Section 6 and, for the avoidance of doubt, to the extent such transaction will constitute a Change of Control, this subsection (x) is not intended to be utilized by the Primary Investor(s) to modify the amount of proceeds payable to the Holders with respect to the Preferred Shares upon such Change of Control from the amount to which such Holders would otherwise be entitled pursuant to Section 6 hereof upon such Change of Control;

(x) (A) appoint a new, or remove the then-current, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or Chief Technology Officer (or equivalents thereof) of the Corporation and any other senior executive officer having a comparable scope of authority

to the foregoing with respect to his or her relevant function, or (B) determine or modify any compensation (including cash and equity) or establish any compensation performance targets for any individual that is an “officer” of the Corporation as such term is defined in Rule 3b-2 of the Exchange Act;

(xi) enter into any definitive agreement or commitment with respect to any of the foregoing;

(xii) engage in any of the foregoing through an affiliated person (including without limitation Pegasus or Riverwood), including by causing or permitting any Subsidiary to engage in or enter into any definitive agreement or commitment with respect to any of the foregoing; or

(xiii) so long as there are any Primary Investors, amend this Section 11(b) without the consent of each Primary Investor.

(c) Unless the Control Event Conditions (defined below) are satisfied in full contemporaneously with each of the following, the Corporation shall not, directly or indirectly, without the prior written consent of each Consenting Holder:

(i) alter, modify or amend (whether by amendment to the Certificate of Incorporation or Bylaws, merger, consolidation, reorganization or otherwise) the terms, rights, preferences, privileges or powers of, or the other restrictions provided for the benefit of the Series in any way as set forth herein or in any other agreement entered into by or binding on the Corporation or accept, give effect to or rely on or otherwise take any action pursuant to any vote, consent, approval, waiver, authorization or instruction of any Primary Investor (pursuant to Section 10(a) or otherwise) or any Holders of the Series in any manner that affects the ranking, priority, conversion rights, voting rights, dividend rights, rights in connection with any Redemption, Redemption Event, Change of Control, Liquidation Event, Reorganization or other Triggering Event (or provides any rights or remedies to any Holder with respect to such Holder’s Preferred Shares that are different or in addition to the rights and remedies provided hereunder), including, without limitation, Section 3(c), the first sentence of Section 4(a), Section 4(b), the first two sentences of Section 4(c), the first sentence of Section 4(d), Section 5, Section 6, Section 7, Section 9(b), Section 9(c), the second sentence and last two sentences of Section 10(a), Section 11(a), the definitions of “Change of Control”, “Consenting Holder”, “Conversion Price”, “Liquidation Amount”, “Permitted Transfer”, “Prohibited Distributions”, “Returned Value”, “Stated Value”, “Fair Market Value”, “Optional Conversion Shares” or “Triggering Event” as contained in Section 16 hereof;

(ii) pay dividends or cash interests or other distributions (whether in cash, Equity Securities or otherwise) on, redeem or repurchase or otherwise acquire any Capital Stock, Equity Securities, convertible debt, or debt coupled with any Common Stock Equivalents of the Corporation, make any Parity Securities Distribution or any Junior Securities Distribution other than (i) as may be required by any Senior Liquidation Shares issued in accordance with the terms hereof, (ii) as part of any Permitted Junior Security Redemption or (iii) as part of an Approved Redemption;

(iii) engage in any recapitalization, merger, consolidation, reorganization (including the creation of any Holding Company or non-wholly owned Subsidiary), business combination or similar transaction or any Change of Control (pursuant to which the Corporation or any of its Subsidiaries is a party); provided, that such consent may not be unreasonably withheld, conditioned or delayed to the extent that such transaction, upon consummation, will result in the Holders (assuming they do not elect to retain their Preferred Shares) receiving consideration in cash equal to the aggregate Liquidation Amount with respect to their Preferred Shares;

(iv) reclassify, replace, exchange or substitute any outstanding Equity Securities into, for or with, as applicable, Senior Liquidation Shares or Parity Liquidation Shares or otherwise directly or indirectly use such outstanding Equity Securities as consideration for an issuance or exchange of or for new Senior Liquidation Shares or Parity Liquidation Shares; provided, that consent may not be unreasonably withheld, conditioned or delayed to the extent that the actions described in this Section 11(c)(iv) occur in connection with a transaction otherwise permitted without consent under Section 11(c) that, upon consummation, will result in the Holders receiving (assuming they do not elect to retain their Preferred Shares) consideration in cash equal to the aggregate Liquidation Amount with respect to their Preferred Shares;

(v) transfer, sell, divest or dispose of a substantial portion of the property, rights or assets (whether tangible or intangible) of the Corporation or its Subsidiaries or any of their successors (whether by sale of equity interests, spin-off, divestiture, asset sale or other transaction involving the Corporation or any of its Subsidiaries or any of their successors); provided, that such consent may not be unreasonably withheld, conditioned or delayed to the extent that such transaction, upon consummation, will result in Holders (assuming they do not elect to retain their Preferred Shares) receiving consideration in cash equal to the aggregate Liquidation Amount with respect to their Preferred Shares

(vi) enter into any definitive agreement or commitment with respect to any of the foregoing;

(vii) engage in any of the foregoing through an affiliated person (including without limitation Pegasus or Riverwood), including by causing or permitting any Subsidiary to engage in or enter into, or acquiescing in the efforts of any Holding Company entering into any definitive agreement or commitment with respect to any of the foregoing; or

(viii) so long as there are any Consenting Holders, amend this Section 11(c), Section 11(f) or the definition of “Preferred Shares Fair Value” set forth in Section 16 without the consent of each Consenting Holder.

(d) In the event that the Holders of at least a majority of the outstanding Preferred Shares agree (whether by a vote, written consent, waiver or otherwise) or, if applicable, the Primary Investors agree (whether by vote, consent, waiver or otherwise) to allow the Corporation to alter or change the rights, preferences or privileges of the Preferred Shares pursuant to applicable law or otherwise, no such change shall be effective to the extent that such change applies to less than all of the Preferred Shares then outstanding.

(e) Subject to applicable law, the provisions of this Section 11 shall terminate automatically and be of no further force or effect upon the consummation of a Forced Conversion pursuant to Section 4(d) or the conversion or redemption of all outstanding Preferred Shares pursuant to Section 4(c).

(f) “Control Event Conditions” shall mean all of the following: (1) there has been a Control Event pursuant to Section 5(e)(i) of the Series H Certificate of Designation and Primary Investor thereunder has appointed a majority of the Board pursuant to the provisions thereof, (2) (A) concurrent with the consummation of any transaction that would have otherwise required Consenting Holder consent pursuant to Section 11(c), such Consenting Holder will receive an amount in cash equal to the greater of (i) the aggregate Liquidation Amount with respect to its Preferred Shares and (ii) the aggregate Preferred

Shares Fair Value and (B) such cash payment is (i) a legal, valid and enforceable obligation of the Corporation or purchaser or the resulting or surviving entity, (ii) permitted to be paid pursuant to all applicable laws, including Delaware law and federal securities laws and (iii) not in conflict in any material respect with any material contract or other obligation binding on the Corporation or the resulting or surviving entity in a manner that would subject the Consenting Holder to any potential limitation or reversal of such cash payments, (3) the Preferred Shares Fair Value shall be determined by an Appraiser selected and supervised by the independent directors of the Board, (4) the Appraiser shall determine the Preferred Shares Fair Value in accordance with the definition of such term set forth in Section 16, (5) each Consenting Holder shall be afforded the opportunity to review and receive copies of all of the information provided to the Appraiser by the Corporation, Primary Investors, and any of their respective agents and advisors, to receive copies of the correspondence and materials distributed by the Appraiser (and there shall be no non-written communications between the Appraiser and the Corporation, Primary Investors, and any of their respective agents and advisors in order to ensure that the Consenting Holders have complete access to all such communications), (6) the Appraiser has the reasonable cooperation of the Corporation and management during the valuation process, (7) the Corporation shall not, directly or indirectly, take, permit or acquiesce in any transaction or action that would have otherwise required Consenting Holder consent pursuant to Section 11(c) prior to the date that is ten (10) business days after each Consenting Holder receives a certified copy of the Appraiser’s Preferred Shares Fair Value, which has been determined in accordance with this Section 11(f) and (8) if a Consenting Holder challenges the results of such Preferred Shares Fair Value determination or otherwise has to take legal action to enforce the provisions of Section 11(c) and of this Section 11(f), and prevails in a court of competent jurisdiction with respect to such legal action, such Consenting Holder shall be entitled to reimbursement for all reasonable fees, costs and expenses incurred in connection therewith, including the fees of outside counsel, consultants and experts.

12. Covenants.

(a) For so long as any Preferred Shares are outstanding, the Corporation agrees that:

(i) Maintenance of Existence; Compliance. The Corporation shall, and shall cause each of its Subsidiaries to (A) preserve, renew and keep in full force and effect its organizational existence, (B) take all reasonable action to maintain all material rights, privileges and franchises necessary or desirable in the normal conduct of its business and (C) comply in all material respects with all material contractual obligations and requirements of law applicable to the Corporation and its Subsidiaries, and its and their respective properties, rights and assets.

(ii) Maintenance of Property; Insurance. The Corporation shall, and shall cause each of its Subsidiaries to (A) keep all property necessary for the conduct of its business as conducted on the Investment Date in good working order and condition, ordinary wear and tear excepted, and (B) maintain with financially sound and reputable insurance companies insurance on all property necessary for the conduct of its business in at least such amounts and against at least such risks (but including in any event public liability, product liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business.

(iii) Related Party Issuances. The Corporation shall not, and shall cause each of its Subsidiaries not to (A) issue any debt securities, Senior Liquidation Shares, Parity Liquidation Shares, other Equity Securities or Preferred Shares to either Primary Investor or any of their respective Affiliates or to any Related Party or any Affiliate of the Corporation (without giving effect to the last sentence of the definition of “Affiliate” in Section 16) or (B) reclassify any outstanding Equity Securities held by either Primary Investor or any of their respective Affiliates

into Senior Liquidation Shares or Parity Liquidation Shares, in each case unless such issuance or reclassification is pursuant to the reasonable requirements of the business of the Corporation and is on terms no less favorable to the Corporation than would be obtained in an arms’-length transaction with a bona fide third party, as determined by the disinterested directors of the Corporation in their reasonable judgment.

(b) Notices. The Corporation shall, and shall cause each of its Subsidiaries to, promptly give the Holders written notice of the occurrence of any Liquidation Event, Change of Control, Reclassification, or Reorganization.

(c) Certificates; Other Information. The Corporation shall, and shall cause each of its Subsidiaries to, furnish each Primary Investor and to each Consenting Holder, no later than seventy-five (75) days after the end of each fiscal year of the Corporation, a certificate of a Responsible Officer stating that, to the best of each such Responsible Officer’s knowledge, the Corporation and each of its Subsidiaries has during such period observed or performed all of its covenants and other agreements, and satisfied every material obligation contained herein to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Triggering Event except as specified in such certificate. For the avoidance of doubt, failure of the Corporation to deliver a certificate in accordance with this Section 12(c) shall not constitute a material breach of this Certificate of Designation, and the sole remedy of any Holder for breach of this Section 12(c) shall be to compel the Corporation to specifically perform its obligations to deliver a certificate of a Responsible Officer and a Compliance Certificate under this Section 12(c).

(d) Freedom to Pursue Corporate Opportunities. The Corporation expressly acknowledges and agrees as follows, for so long as a Primary Investor or Significant Holder beneficially owns any Preferred Shares (or shares of Common Stock issued upon conversion thereof) (i) such Primary Investor or Significant Holder and each director of the Corporation who is a member, director, officer, employee or Affiliate of such Primary Investor or Significant Holder (an “Affiliated Person”) has the right to, and shall have no duty (contractual or otherwise) not to, directly or indirectly engage in the same or similar business activities or lines of business as the Corporation or any of its Subsidiaries, including those deemed to be competing with the Corporation or any of its Subsidiaries; and (ii) in the event that such Primary Investor or such Affiliated Person acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Corporation, such Primary Investor, Significant Holder or Affiliated Person shall have no duty (contractual or otherwise) to communicate or present such corporate opportunity to the Corporation or any of its Subsidiaries, as the case may be, and, notwithstanding any provision of any agreement to the contrary, shall not be liable to the Corporation or its Affiliates or stockholders or creditors for breach of any duty (contractual or otherwise) by reason of the fact that such Primary Investor, Significant Holder or Affiliated Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another person, or does not present such opportunity to the Corporation or any of its Subsidiaries; provided, that the provisions of this Section 12(d) shall not apply with respect to the actions of any individual while serving in an operational capacity as an officer or other employee of the Corporation. Each Primary Investor and each Significant Holder agrees on behalf of itself and each Affiliated Person to keep confidential all proprietary and non-public information regarding the Corporation received in such capacity and not to use such proprietary and non-public information for any purpose other than in connection with evaluating, monitoring or taking any other action with respect to the investment by such Primary Investor or such Significant Holder in the Preferred Shares or other Equity Securities of the Corporation or any of its Subsidiaries, provided, that nothing herein shall prevent such Primary Investor, Significant Holder or Affiliated Persons from disclosing or using any such information that (i) is or becomes generally available to the public in accordance with Federal or State laws other than as a result of a disclosure by such Primary Investor, Significant Holder or Affiliated Persons in violation of this Section 12(d) or any other legal duty, fiduciary duty or other duty of

trust and confidence, of such Primary Investor, Significant Holder or Affiliated Person; (ii) was in such Primary Investor’s, such Significant Holder’s or such Affiliated Person’s possession or developed by it prior to being furnished with such information, as evidenced by such Primary Investor’s, such Significant Holder’s or such Affiliated Person’s records; (iii) becomes available to such Primary Investor, Significant Holder or Affiliated Person on a non-confidential basis from a source other than the Corporation, or (iv) is required to be disclosed by applicable law or legal process.

13. Transfers.

(a) Generally. Subject to the other provisions of this Section 13, Preferred Shares may be Transferred by any Holder. During the Restrictive Period, Holders may not Transfer Preferred Shares except pursuant to a Permitted Transfer. As used herein, the “Restrictive Period” shall mean the period commencing on the Investment Date and ending upon the earliest of (A) May 25, 2015, (B) a Qualified Public Offering and (C) a Triggering Event.

(b) To the extent the Restrictive Period ends by reason of the occurrence of the date provided in clause (A) of the definition thereof, and neither a Qualified Public Offering nor a Triggering Event has occurred, Preferred Shares may be Transferred by any Holder with the prior written consent of the Corporation, such consent not to be unreasonably withheld, conditioned or delayed, or pursuant to a Permitted Transfer. Notwithstanding anything to contrary contained herein, Preferred Shares may be offered, sold, transferred or assigned by any Holder without consent after the occurrence of a Change of Control or a Liquidation Event; provided, that for the purposes of this Section 13, clause (d) of the definition of “Change of Control” shall not exclude the change of board control occurring after a Control Event.

(d) Primary Investor Rights. Notwithstanding Section 13(a), the Primary Investor Rights shall not be transferrable and shall terminate upon any Transfer by any Primary Investor of Preferred Shares with respect to such transferred Preferred Shares (or, to the extent Common Stock is counted for purposes of the definition of “Primary Investor”, upon any transfer by any Primary Investor of such Common Stock).

(e) Lock-up. In connection with a Qualified Public Offering or any other underwritten public offering, each Holder shall complete and execute a customary lock-up agreement to the extent required pursuant to the terms of the underwriting arrangements of the Qualified Public Offering agreeing not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Capital Stock of the Corporation during the seven (7) day period prior to, and for the one hundred and eighty (180) days after, the effective date of the registration statement for such Qualified Public Offering or other underwritten public offering (or such lesser period as the managing underwriters may require or permit), except for such Capital Stock to be included in such offering; provided, that such lock-up shall only be required to the extent that all of the Corporation’s Affiliates and executive officers and all of the members of the Board of Directors are restricted with respect to their Capital Stock in the same manner and for the same duration as provided in this Section 13(e); provided, further, that notwithstanding anything in this Section 13(e) to the contrary, in no event shall any Holder be obligated to execute a lock-up agreement restricting it or otherwise prohibiting it from effecting any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Capital Stock for any period of time exceeding the period of time (including with respect to any requirements that such period be applicable to other persons or entities) that such Holder has contractually agreed to in writing with the

Corporation. Notwithstanding the foregoing provisions of this clause (e) or anything in this Series J Certificate of Designation to the contrary, to the extent a Holder has contractually agreed with the Corporation or any underwriter in writing to any “holdback,” “lock-up” or similar agreements in connection with a Qualified Public Offering or other underwritten public offering with respect to Preferred Shares held by such Holder, the provisions of this clause (e) shall be superseded in their entirety by the terms and conditions of such agreements with respect to such Preferred Shares and the provisions of this clause (e) shall not apply to the Corporation or any Holder with respect to such Preferred Shares.

(f) Registration Rights. To the extent that any shares of Common Stock are being offered for the account of selling stockholders in the Qualified Public Offering (an “Eligible Offering”), each Holder shall be permitted to participate in such Eligible Offering and to sell an Eligible Amount of the shares of Common Stock issuable upon conversion of such Holder’s Preferred Shares. The Corporation will, at least twenty (20) days prior to the filing of a registration statement with respect to an Eligible Offering, notify the Holders in writing of such Eligible Offering. Each Holder may elect to participate in such Eligible Offering (up to the Eligible Amount) by delivering written notice of such Holder’s election to the Corporation within five (5) days after the Corporation’s delivery of the notice provided under this Section 13(f). The right of any Holder to participate in an Eligible Offering shall be conditioned upon such Holder agreeing to: (i) sell its shares of Common Stock in the Eligible Offering on the basis provided in any customary underwriting arrangements and (ii) complete and execute all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents required under the terms of such underwriting arrangements. The registration rights provided by this Section 13(f) shall be junior to any registration rights granted to any other holder of the Corporation’s Equity Securities on or prior to the Investment Date and any registration rights granted after the Investment Date, in each case to the extent a written agreement evidencing such registration rights is executed by the parties and provides rights senior to those provided by this Section 13(f). For the avoidance of doubt, the registration rights provided by this Section 13(f) shall be pari passu with the registration rights set forth in the Series H Certificate of Designation and Series I Certificate of Designation. Notwithstanding the foregoing provisions of this clause (f) or anything in this Series J Certificate of Designation to the contrary, to the extent a Holder has contractually agreed with the Corporation in writing to any registration or other similar rights of such Holder to participate in a Qualified Public Offering with respect to any Preferred Shares held by such Holder, the provisions of this clause (f) shall be superseded in their entirety by the terms and conditions of such registration or other similar rights with respect to such Preferred Shares and the provisions of this clause (f) shall not apply to the Corporation or Holder with respect to such Preferred Shares.

14. Preemptive Rights.

issued by the Corporation and shall be entitled to make such purchase on the same terms and conditions, in each case as set forth in the Issuance Notice (and which, for the avoidance of doubt, will be terms at least as favorable as those provided to any other investor in such issuance). Such Holder’s election to participate in any such transaction must be made in writing and be delivered to the Corporation ten (10) days after the Corporation’s delivery of the Issuance Notice; provided, that if there is a material change in the Corporation’s proposed terms or conditions of issuance or sale, a new Issuance Notice shall be provided to the Holders pursuant to this Section 14(a) and the Holders will have ten (10) days after the Corporation’s delivery of such new Issuance Notice with such revised terms to reconfirm such Holder’s intention to invest (or in the event that such Holder did not elect to participate originally, to elect to invest and become an Exercising Holder). To the extent any Holder does not elect to purchase all of its Pro Rata Share of the Equity Securities (a “Declining Holder”), the Exercising Holders shall be entitled to purchase the Equity Securities allocated to the Declining Holder, and the Corporation shall deliver to each Exercising Holder a written notice (the “Remaining Equity Notice”) not less than fifteen (15) days after the date of the Issuance Notice specifying the aggregate number of Equity Securities that all of the Declining Holders did not elect to purchase. Each Exercising Holder shall have the right to purchase additional Equity Securities, which right must be exercised not less than ten (10) days after delivery of the Remaining Equity Notice, by notifying the Corporation in writing (a “Second Exercise Notice”) of the maximum number of such Equity Securities that such Exercising Holder wishes to purchase. To the extent the aggregate number of shares sought to be purchased under the Second Exercise Notices is equal to or less than the number of Equity Securities set forth in the Remaining Equity Notice, each Holder delivering a Second Exercise Notice shall be entitled to purchase the number of Equity Securities set forth in such Holder’s Second Exercise Notice. To the extent the aggregate number of shares sought to be purchased under the Second Exercise Notices is greater than the number of Equity Securities set forth in the Remaining Equity Notice, such Equity Securities shall be allocated among the Holders on a pro rata basis based on their relative Pro Rata Share. If after notifying the Holders, the Corporation elects not to proceed with the issuance or sale, any elections made by such Holder shall be deemed rescinded. Notwithstanding anything to the contrary contained in this Section 14(a), if the consideration to be received by the Corporation with respect to the issuance of Equity Securities specified in the Issuance Notice is other than cash to be paid upon the issuance of the Equity Securities (that is, if the consideration would constitute so called “in kind” property), or if security is to be provided to secure the payment of any deferred portion of the purchase price, then any Holder exercising his, hers or its rights under this Section 14 may purchase such Equity Securities by making a cash payment at the time of the closing specified in the Issuance Notice in the amount of the reasonably equivalent value of the “in kind” property specified in the Issuance Notice and/or may provide reasonably equivalent security to that provided in the Issuance Notice. Such “reasonably equivalent value” or “reasonably equivalent security” shall be determined by the Committee of Independent Directors of the Board or, if such committee is no longer constituted, the independent members of the Board of Directors. In the event of any issuance or sale of any debt securities by the Corporation to any Significant Holder or any Affiliate of any Significant Holder, in whole or in part, other than any offering of debt securities by the Corporation that is registered pursuant to the Securities Act (a “Preemptive Debt Issuance”), such Preemptive Debt Issuance shall be treated in the same manner as an issuance of Equity Securities for purposes of the rights provided in this Section 14 and each Holder shall have the right to notice of, and to elect to participate in, such Preemptive Debt Issuance as if each reference to “Equity Securities” in this Section 14 were replaced with a reference to such debt securities. If, in connection with any issuance of Equity Securities or debt securities by the Corporation after the date hereof other than any Exempt Equity Issuance or any offering of Capital Stock or debt securities that is registered pursuant to the Securities Act, the Corporation grants any Significant Holder or any Affiliate of any Significant Holder (i) any new material right or contractual benefit which is in addition and/or supplemental to those rights and benefits of such Significant Holder that are in effect immediately prior to such issuance or (ii) any additional securities (clauses (i) and (ii) each, an “Ancillary Right”) in connection with or relating to such Significant Holder’s ownership of Preferred Shares, which Ancillary Right (x) is not otherwise made available to the Holders that exercise their rights in full

pursuant to this Section 14 and (y) does not arise out of a law, regulation, order or other legal circumstance that is applicable to such Significant Holder but not to such other Holders that exercise their rights in full, then each other Significant Holder shall be offered a Pro Rata Share of such Ancillary Right on the same terms and conditions as such Significant Holder or such Affiliate of such Significant Holder in the same manner as is provided in this Section 14, so long as such other Significant Holder participates in such issuance of Equity Securities or debt securities to the same extent on a pro rata basis as such Significant Holder or such Affiliate of such Significant Holder.

(c) Notwithstanding anything to the contrary contained in Section 14(a), in the event that the Board of Directors determines that time is of the essence in completing any issuance of Equity Securities pursuant to this Section 14, the Corporation may issue or sell Equity Securities without first complying with the terms of Section 14(a); provided, that the terms of such issuance or sale shall require that, promptly following such issuance or sale, (i) the Corporation shall deliver an Issuance Notice to each Holder and (ii) each Holder shall have the right to purchase all or any part of the Equity Securities described in the Issuance Notice (whether pursuant to the resale of Equity Securities by the initial purchaser(s) of such Equity Securities or the issuance by the Corporation of additional Equity Securities) upon the terms, and subject to the conditions, set forth in Section 14(a).

15. Notices.

(a) Notices of Record Date. In the event of any taking by the Corporation of a record of the holders of any class of the Corporation’s Equity Securities for the purposes of determining the holders thereof who are entitled to receive any dividend or other distribution, any right to subscribe for, purchase or otherwise acquire any Equity Securities of any class or any other securities or property, or any other right, the Corporation shall mail to each Holder, at least ten (10) days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right.

(b) Notices by the Corporation. Any notice required by the provisions of this Series J Certificate of Designation to be given to the Holders shall be deemed given if sent by U.S. nationally recognized overnight courier service, and addressed to each holder of record at his or her address appearing on the books of the Corporation.

16. Certain Definitions; Interpretation.

(a) Unless context requires otherwise, the use of the term “or” is not exclusive.

(b) As used in this Series J Certificate of Designation, the following terms shall have the following respective meanings:

“Appraiser” means a nationally recognized investment bank, financial advisor or valuation or appraisal firm selected by mutual agreement of the Corporation and each Primary Investor as having appropriate experience in the Corporation’s industry in doing valuations of the nature required, which is independent of and not affiliated with the Corporation, any Primary Investor whose agreement was required for the selection of the Appraiser, any other Holder participating in the relevant transaction or any of their respective Affiliates.

“Change of Control” means (a) the sale, conveyance, transfer or disposition, directly or indirectly, including but not limited to any spin-off or in-kind distribution (a “Divestiture”), of all or substantially all of the assets of the Corporation or any successor (on a consolidated basis), other than to the Corporation or its wholly-owned Subsidiaries; (b) the effectuation of a transaction or series of related transactions in which, directly or indirectly, more than thirty-five percent (35)% of the voting power of the outstanding shares of Voting Stock of the Corporation (or ultimate parent thereof) is disposed of (other than (i) as a direct result of normal, uncoordinated trading activities in the Common Stock generally or (ii) solely as a result of the disposition by a stockholder of the Corporation to an Affiliate of such stockholder); (c) any merger, consolidation, stock or asset purchase, recapitalization or other business combination transaction (or series of related transactions) immediately following which the persons that beneficially owned or controlled, directly or indirectly, all of the voting power of the outstanding shares of Voting Stock of the Corporation immediately prior to such transaction (or series of related transactions), beneficially own or control, in the aggregate (together with Affiliates of such stockholders), less than sixty-five percent (65%) of the voting power of the outstanding shares of Voting Stock of the entity surviving or resulting from such transaction (or ultimate parent thereof); (d) a transaction (or series of transactions) in which any person, entity or “group” (as such term is used in Sections 13(d) of the Exchange Act), other than Pegasus, acquires, directly or indirectly, more than thirty-five percent (35)% of the voting power of the outstanding shares of Voting Stock of the Corporation (or ultimate parent thereof) or control of the Board of Directors (excluding, in the case of control of the Board of Directors only, as a result of the occurrence of a Control Event (as defined in the Series H Certificate of Designation)), or (e) Pegasus ceases to beneficially own and control at least ten percent (10%) of the voting power of the outstanding shares of Voting Stock and at least twenty-five percent (25)% of the economic interests in the outstanding shares of Capital Stock of the Corporation, on a fully-diluted basis.

“Co-Sale Agreement” means the rights set forth in that certain co-sale agreement, dated as of September 25, 2012, among Pegasus, Riverwood, Cleantech Europe II (A) LP, Cleantech Europe II (B) LP, Portman Limited and certain of their Affiliates.

“Co-Sale Rights” means the rights of each of the parties to the Co-Sale Agreement, as set forth in such Agreement.

“Consenting Holder” means Serengeti for so long as it continues to beneficially own at least ten thousand (10,000) Preferred Shares (as adjusted for any Reclassification of Preferred Shares), and any permitted transferee of at least ten thousand (10,000) of a Consenting Holder’s Preferred Shares (as adjusted for any Reclassification of Preferred Shares) for so long as such transferee continues to

beneficially own at least ten thousand (10,000) Preferred Shares (as adjusted for any Reclassification of Preferred Shares); provided that for purposes of the determination of the number of Preferred Shares beneficially owned by each Consenting Holder, beneficial ownership of Common Stock, as adjusted for any Reclassification thereof, issued upon conversion of Preferred Shares on an as-converted basis shall be treated as beneficial ownership of Preferred Shares for so long as such Holder also owns at least one (1) Preferred Share.

“Conversion Price” means $0.95, subject to adjustment in accordance with the terms hereof.

“Eligible Amount” means with respect to any Holder, the “Eligible Amount” of shares of Common Stock equal to the product obtained by multiplying (a) the maximum number of shares of Common Stock that the underwriter(s) estimate(s) can be underwritten in connection with an Eligible Offering at a price range that is acceptable to the Corporation less any shares of Common Stock being offered by the Corporation or any other person or entity holding registration rights that are senior to those granted to the Holders in this Series J Certificate of Designation, by (b) a fraction, the numerator of which shall equal the number of shares of Common Stock issuable to such Holder upon the conversion of such Holder’s Preferred Shares, and the denominator of which shall equal the total number of shares of Common Stock issuable to all Holders upon conversion of such Holders’ Preferred Shares that are requested to be included in the Eligible Offering.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excepted Equity Issuance” means, subject to the requirements of Section 12(a)(iii) (if applicable), the issuance of (i) any Capital Stock of the Corporation pursuant to compensatory issuances to (A) the executives and directors of the Corporation in their capacity as such and (B) other employees of the Corporation in their capacity as such, in each case pursuant to an option, stock or other equity plan approved by the Board of Directors; or (ii) any Common Stock or warrants or options to purchase Common Stock in connection with a bona fide strategic commercial agreement or commercial relationship as determined by the Corporation and approved by the Board of Directors and by each Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof and by each Consenting Holder to the extent required (but only to the extent actually required) by Section 11(c) hereof, the primary purpose of which is not to raise capital.

“Exempt Equity Issuance” means, subject to the requirements of Section 12(a)(iii) (if applicable), the issuance of any Capital Stock of the Corporation: (i) upon the conversion or exercise of any options, warrants or rights to acquire securities of the Corporation which options, warrants or rights were (A) outstanding on the Investment Date (as certified by an officer of the Corporation to each Primary Investor), (B) issued as part of another Exempt Equity Issuance or (C) offered to the Holders pursuant to an Issuance Notice in compliance with Section 14(a) hereof; (ii) compensatory issuances to (A) the executives and directors of the Corporation in their capacity as such and (B) other employees of the Corporation in their capacity as such, in each case pursuant to an option, stock or other equity plan approved by the Board of Directors; (iii) having a value of less than or equal to $15.0 million in the aggregate for all such issuances under this clause (iii), provided, that any such issuance must also be at a price per share (or equivalent security) greater than or equal to the Conversion Price; (iv) in a Qualified Public Offering; (v) for consideration in lieu of cash pursuant to the bona fide acquisition of another corporation or entity by the Corporation by consolidation, merger, purchase of all or substantially all of the assets of such other corporation or entity or fifty percent (50%) or more of the voting power of such

other corporation or entity or fifty percent (50%) or more of the equity ownership of such other corporation or entity approved by the Board of Directors and by each Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, in each case the primary purpose of which is not to raise capital; (vi) in connection with a bona fide strategic commercial agreement or commercial relationship as determined by the Corporation and approved by the Board of Directors and by each Primary Investor to the extent required (but only to the extent actually required) by Section 11(b) hereof, the primary purpose of which is not to raise capital; (vii) pursuant to any stock split or reverse stock split; (viii) upon the exercise by any Series H Holder of the preemptive rights granted pursuant to the terms of the Series H Certificate of Designation; (ix) upon the conversion of any shares of Series H Preferred Stock pursuant to the terms of the Series H Certificate of Designation; (x) upon the exercise by any Series I Holder of any preemptive rights contained in the Series I Certificate of Designation; (xi) upon the conversion of any shares of Series I Preferred Stock pursuant to the terms of the Series I Certificate of Designation; (xii) upon the exercise by any holder of Preferred Shares of the preemptive rights set forth in Section 14; or (xiii) shares of Capital Stock of the Corporation issued upon conversion or exercise of the securities set forth in the foregoing clauses (i) – (xii); provided, that “Exempt Equity Issuance” shall in no event include any issuance of Senior Liquidation Shares, or any issuance of Parity Liquidation Shares.

“Holder” means any holder of Preferred Shares, all of such holders being the “Holders.”

“Holding Company” means any entity that consolidates the Corporation on its financial statements in accordance with generally accepted accounting principles, but does not include any other equity investor (even if such investor holds a majority of the outstanding voting stock of the Corporation or otherwise controls the Corporation) and does not include Pegasus, Riverwood, Zouk, Portman or Serengeti.

“Investment Date” means the first issue date of the Preferred Shares.

“Junior Securities Distribution” means the declaration or payment on account of, or setting apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Junior Liquidation Shares, or any dividend or distribution in respect thereof, either directly or indirectly, and whether in cash, obligations, securities or other property, or the purchase or redemption by any entity directly or indirectly controlled by the Corporation of any of the Junior Liquidation Shares.

“Junior Security Redemption” means the redemption, repurchase, acquisition or similar purchase by the Corporation or by any entity directly or indirectly controlled by the Corporation of any shares of Series H Preferred Stock, Series I Preferred Stock or any other Junior Liquidation Shares.

“Parity Securities Distribution” means the declaration or payment on account of, or setting apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of (other than by conversion into or exchange for Junior Liquidation Shares), any Parity Liquidation Shares, or any dividend or distribution in respect thereof, either directly or indirectly, and whether in cash, obligations, Common Stock, securities or other property, or the purchase or redemption by any entity directly or indirectly controlled by the Corporation of any of the Parity Liquidation Shares.

“Pegasus” means, collectively, Pegasus Capital Advisors, L.P., Pegasus Partners IV, L.P. and each of their Affiliates.

“Permitted Equity Issuance” means, subject to the requirements of Section 12(a)(iii) (if applicable), the issuance of any Capital Stock of the Corporation: (1) in an Exempt Equity Issuance pursuant to clause (i)(A), (i)(C), (ii)(B) (provided, that the shares reserved to be issued under such plan(s) do not exceed in the aggregate three percent (3%) of the issued and outstanding shares of Common Stock at the time of adoption of such plan(s)), (iii), (iv), (vii), (viii), (ix), (x) or (xi) of the definition of “Exempt Equity Issuance”, (2) in an Exempt Equity Issuance pursuant to clause (i)(B) of the definition of “Exempt Equity Issuance” to the extent relating to an Exempt Equity Issuance as described in the foregoing clause (1), and (3) in an Exempt Equity Issuance as described in clause (xii) of the definition of “Exempt Equity Issuance” to the extent relating to an Exempt Equity Issuance as described in the foregoing clauses (1) or (2); provided, that “Permitted Equity Issuance” shall in no event include any issuance of Senior Liquidation Shares, or any issuance of Parity Liquidation Shares.

“Permitted Transfer” means any Transfer by: (1) a Holder of all or any portion of the Preferred Shares (a) to Pegasus; (b) to Riverwood; (c) to the Corporation or any of the Corporation’s Subsidiaries, (d) pursuant to the exercise of the Co-Sale Rights; (e) in any transaction in which all or substantially all of the Equity Securities of the Corporation are Transferred pursuant to any reorganization, merger, consolidation or sale of the Corporation, including pursuant to a Change of Control or Liquidation Event; (f) in a Qualified Public Offering; (g) pursuant to a tender or exchange offer pursuant to the Securities Act or the Exchange Act; or (h) with the prior written consent of the Corporation, such consent not to be unreasonably withheld, conditioned or delayed; (2) a Primary Investor pursuant to a pro rata in-kind distribution or dividend to the equityholders of such Primary Investor (and any intermediary transfers amongst Affiliates of such Primary Investor as part of giving effect thereto) who were equityholders of such Primary Investor on the Investment Date (provided, that such distribution or dividend shall not result in a Transfer to any such equityholder of more than 15% of the Equity Securities held by such Primary Investor as of the Investment Date; provided, further, that such distribution or dividend shall not be structured so as to avoid the occurrence or triggering of a Change of Control); (3) Zouk to any Affiliate or direct or indirect equityholder of Zouk; (4) Portman to any Affiliate or direct or indirect equityholder of Portman or (5) Serengeti to any Affiliate or direct or indirect equityholder of Serengeti.

“Portman” shall mean Portman Limited, a Cayman Islands exempted company and its Affiliates.

“Preferred Shares Fair Value” means, as of any date, the value of the Preferred Shares determined by an Appraiser, which Appraiser shall be instructed to use one or more valuation methods that, in its best professional judgment, would be most appropriate to ascertain the price at which the Preferred Shares (including all the rights held by the Consenting Holder with respect to the Consenting Holder’s Preferred Shares) would change hands between a willing buyer and a willing seller, each having reasonable knowledge of all relevant facts and neither being under any compulsion to act; provided, that in connection with the valuation of the Preferred Shares and the Corporation generally for these purposes, the Appraiser shall assume that the Corporation has continued ownership of its Subsidiaries and other properties and continued benefit of its contractual and other relationships and arrangements and shall take in to account other factors relevant to such valuation, including the prospects of the Corporation and its Subsidiaries, and the value of the estimated future earning of the Corporation and its Subsidiaries. All such determinations shall be appropriately adjusted for any share dividend, share split or other similar transaction during such period.

“Primary Investor” means (i) so long as Pegasus and Riverwood each continue to beneficially own, without ever owning less than such amount, a number of Preferred Shares equal to or greater than the number of Preferred Shares acquired by each of them on September 11, 2013, both Pegasus and Riverwood, (ii) in the event either Pegasus or Riverwood, but not both, continues to beneficially own, without ever owning less than such amount, a number of Preferred Shares equal to or greater than the number of Preferred Shares acquired thereby on September 11, 2013, whichever one of Pegasus and Riverwood that continues to beneficially own such amount, (iii) in the event that both Pegasus and Riverwood beneficially own less than a number of Preferred Shares equal to the number of Preferred Shares acquired thereby on September 11, 2013, at any time, (x) Pegasus to the extent that Pegasus continues to beneficially own at least 1,750 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares) and/or (y) Riverwood to the extent that Riverwood continues to beneficially own at least 1,750 Preferred Shares (as adjusted for any Reclassification of the Preferred Shares), and (iv) otherwise, there shall be no Primary Investor. For purposes of the foregoing definition and the determination of the number of Preferred Shares beneficially owned by Pegasus or Riverwood, beneficial ownership of shares of Common Stock, as adjusted for any Reclassification thereof, issued upon

conversion of Preferred Shares on an as-converted basis shall be treated as beneficial ownership of Preferred Shares so long as Pegasus or Riverwood, as applicable, continues to beneficially own, without ever owning less than such amount, at least 1,750 Preferred Shares (as adjusted for any Reclassification of Preferred Shares).

“Primary Investor Rights” means those rights provided to the Primary Investor(s) pursuant to Section 10(a) and Section 11(b) hereof.

“Pro Rata Share” means, at all times on or after the Investment Date, with respect any Holder, the quotient (in percentage terms) obtained by dividing (i) the number of shares of Common Stock and shares of Common Stock Equivalents owned by such Holder and its Affiliates at the time of determination and (ii) the number of shares of Common Stock and Common Stock Equivalents issued and outstanding at the time of such determination. For purposes of determining each Holder’s Pro Rata Share, the number of Common Stock Equivalents shall include the number of shares of Common Stock that would be issuable upon the conversion of the applicable Preferred Shares but in no event shall the shares of Common Stock or shares of Common Stock Equivalents owned by a person or entity Affiliated with more than one Holder be counted more than once for purposes of determining the respective Pro Rata Share of such Affiliated Holders.

“Redemption Event” means any material breach or default under this Series J Certificate of Designation, including, for the avoidance of doubt, any action or event described in Section 11(c) occurring without the required consent of a Consenting Holder; provided, that if (and only if) such breach or default is capable of being cured, if such breach or default is cured or waived within a period of thirty (30) days from the continuation of such breach or default, no Redemption Event shall be deemed to have occurred.

“Responsible Officer” means either the Chief Executive Officer or Chief Financial Officer of the Corporation.

“Returned Value” means with respect to each Preferred Share, an amount equal to the product obtained by multiplying (A) the Stated Value thereof by (B) 2.0.

“Riverwood” means RW LSG Holdings LLC and its Affiliates.

“Securities Act” means the Securities Act of 1933, as amended.

“Serengeti” means Serengeti Asset Management LP and its Affiliates.

“Series H Certificate of Designation” means the Certificate of Designation of Series H Preferred Stock of the Corporation, as filed with the Secretary of State of the State of Delaware and as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Series H Holder” means any holder of the Corporation’s outstanding shares of Series H Preferred Stock.

“Series I Certificate of Designation” means the Certificate of Designation of governing terms of the Series I Preferred Stock.

“Series I Holder” means any holder of the Corporation’s outstanding shares of Series I Preferred Stock.

“Series J Certificate of Designation” means this Certificate of Designation of Preferred Stock to be designated Series J Convertible Preferred Stock.

“Significant Holder” means, as of the applicable date of determination, (i) each Primary Investor so long as such Primary Investor remains a Primary Investor (as defined herein); (ii) any Consenting Holder; (iii) any Series H Holder that beneficially owns at least 20,000 shares of the Corporation’s Series H Convertible Preferred Stock (as adjusted for any reclassification of such shares of Series H Convertible Preferred Stock); and (iv) any Series I Holder that beneficially owns at least 20,000 shares of the Corporation’s Series I Convertible Preferred Stock (as adjusted for any reclassification of such shares of Series I Convertible Preferred Stock).

“Stated Value” means, with respect to a Preferred Share, $1,000 (as adjusted for any Reclassification of the Preferred Shares).

“Subscription Agreement” means that certain Preferred Stock Subscription Agreement entered into on September 25, 2012, by and between the Corporation, Pegasus and RW LSG Holdings LLC, as in effect on the Investment Date.

“Triggering Event” means any Change of Control, Mandatory Redemption, Optional Redemption, Special Redemption, Redemption Event or Liquidation Event (or if earlier, the delivery of a notice with respect to any of the following events).

“Voting Stock” shall mean, (a) one (1) or more classes of Capital Stock having the right to vote in the election of directors (or otherwise control the appointment of directors) generally, and (b) any Capital Stock convertible or exchangeable without restriction at the option of the holder thereof into Capital Stock described in clause (a) of this definition.

“Zouk” means Cleantech Europe II (A) LP, Cleantech Europe II (B) LP and their Affiliates.

[signature page follows]

IN WITNESS WHEREOF, the Corporation has caused this Certificate to be duly executed on its behalf by its undersigned Chief Financial Officer as of November 14, 2014.


LIGHTING SCIENCE GROUP CORPORATION

By:		/s/ Dennis McGill
		Name: Dennis McGill
		Title: Chief Financial Officer

Signature Page to Amended and Restated Series J Certificate of Designation

EXHIBIT A

FORM OF CONVERSION NOTE


$		Effective as of , 20

FOR VALUE RECEIVED, the undersigned, LIGHTING SCIENCE GROUP CORPORATION (“Maker”), hereby unconditionally promises to pay (“Payee”) the principal sum of $ (“Principal”), without interest in lawful money of the United States of America, on the Maturity Date (as defined below).

SECTION 1. Payments and Prepayments. The unpaid Principal of this Note shall be due and payable in full one hundred and eighty (180) days after the date hereof (the “Maturity Date”). Maker reserves the right to prepay the Principal of this Note, in whole or in part, at any time and from time to time, without premium or penalty.

SECTION 2. No Distributions. For so long as this Note is outstanding, the Maker shall not, and shall cause its Subsidiaries (as defined in the Amended and Restated Certificate of Designation of Series J Convertible Preferred Stock of the Maker (the “Series J Certificate”)) not to, make any distributions to any stockholder of the Maker other than distributions made pursuant to Section 5(d) of the Series J Certificate.

SECTION 3. Default and Remedies. If Maker fails to pay the Principal in full on or prior to the Maturity Date, Payee shall immediately be entitled to pursue and enforce any available right or remedy available to it under applicable law or principles of equity. If Maker defaults in its obligations under Section 2 hereof, Payee shall have the option, upon written notice to Maker, to declare the unpaid Principal due and payable immediately and upon such declaration and acceleration, Payee shall be entitled to pursue and enforce any available right or remedy available to it under applicable law or principles of equity.

SECTION 4. Binding Effect and Non-Transferability. This Note shall be binding upon and inure to the benefit of Maker and Payee and their respective successors and assigns; provided, that Maker may not assign or transfer this Note without the prior written consent of the Payee.

SECTION 5. Notices. All notices required under this Note shall be personally delivered or sent by first class mail, postage prepaid, or by overnight courier to the principal office of Maker or Payee, as applicable; provided that notices and other communications to Maker or Payee may be delivered or furnished by email.

SECTION 6. Waiver. No failure to exercise, and no delay in exercising, on the part of Payee, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Payee hereunder shall be in addition to all other rights provided by law or equity.

SECTION 7. GOVERNING LAW. THIS NOTE IS BEING EXECUTED AND DELIVERED, AND IS INTENDED TO BE PERFORMED IN THE STATE OF DELAWARE.

SECTION 8. ENTIRETY. THIS NOTE EMBODIES THE FINAL, ENTIRE AGREEMENT OF MAKER AND PAYEE AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF MAKER AND PAYEE. THERE ARE NO ORAL AGREEMENTS BETWEEN MAKER AND PAYEE. THIS NOTE MAY BE AMENDED OR MODIFIED ONLY BY WRITTEN INSTRUMENT DULY EXECUTED BY BOTH MAKER AND PAYEE.

* * * * *


MAKER:

LIGHTING SCIENCE GROUP CORPORATION

BY:
		NAME:
		TITLE:

Exhibit 10.1

SERIES J SUBSCRIPTION AGREEMENT

THIS SERIES J SUBSCRIPTION AGREEMENT (as may be amended or modified from time to time in accordance with the terms hereof, this “Agreement”) is entered into on November 14, 2014, by and among LIGHTING SCIENCE GROUP CORPORATION, a Delaware corporation (the “Company”) and the person(s) (the “Purchasers”) listed on the Schedule of Purchasers attached as Exhibit A (the “Schedule of Purchasers”).

WHEREAS, on September 11, 2013, the Company authorized a series of preferred shares designated the “Series J Convertible Preferred Stock” (“Preferred Shares”), which are convertible into shares of common stock, $0.001 par value per share, of the Company (“Common Stock”).

WHEREAS, the terms and conditions of the Preferred Shares are governed in accordance with the Amended and Restated Series J Certificate of Designation attached hereto as Exhibit B (the “Series J Certificate of Designation”);

WHEREAS, the Company desires to sell to each Purchaser, and each Purchaser desires to buy from the Company, the number of units of the Company’s securities (the “Series J Securities”) set forth opposite such Purchaser’s name on the Schedule of Purchasers at a purchase price of $1,000 per Series J Security. Each Series J Security shall consist of (i) one Preferred Share and (ii) a warrant to purchase 2,650 shares of Common Stock (the “Series J Warrants”) on the terms set forth in the form of warrant attached hereto as Exhibit C.

WHEREAS, the Company is authorized to sell: (i) 30,000 Series J Securities in a series of transactions commencing August 14, 2014 and ending on or before December 31, 2014 to purchasers designated by the Chief Executive Officer, Chief Financial Officer or Secretary of the Company and (ii) such number of additional Series J Units as are purchased pursuant to Section 14 of each of the Series H Certificate of Designation, the Series I Certificate of Designation and the Series J Certificate of Designation as a result of the sale of the Series J Securities to be issued as described in clause (i) above (such issuances described in clause (i) and (ii) above being collectively referred to as the “Series J Securities Offering”)

WHEREAS, the Company has previously issued and sold 8,000 of the 30,000 Series J Securities authorized to be sold in the Series J Securities Offering pursuant to that certain Series J Subscription Agreement, dated August 14, 2014, by and among the Company and the Purchasers parties thereto.

WHEREAS, certain capitalized terms as used herein shall have the meaning set forth in Section 5(a) hereof.

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto hereby agree as follows:

1. Purchase and Sale of Purchased Securities.

(a) Payment for Securities; Delivery of Certificates. Subject to the provisions of this Agreement, and relying upon the representations, warranties and covenants set forth herein, each Purchaser hereby agrees to purchase from the Company, and the Company hereby agrees to sell to each Purchaser, the number of Series J Securities set forth opposite such Purchaser’s name on the Schedule of Purchasers (the “Purchased Securities”), free and clear of all Liens (other than restrictions on transfer or Liens under applicable state and federal securities Laws and, with respect to the Purchased Shares (as defined below), pursuant to the Series J Certificate of Designation), for a purchase price of $1,000 per Series J Security for an aggregate consideration equal to the total consideration set forth opposite such Purchaser’s name on the Schedule of Purchasers (the “Purchase Price”), which shall be paid in United States dollars.

(b) Closing.

(i) The purchase, sale and issuance of the Purchased Securities shall take place at one or more closings (each of which is referred to in this Agreement as a “Closing”). The initial closing (the “Initial Closing”) shall occur concurrently with the execution hereof. Subject to the terms and conditions of this Agreement, the Company may sell and issue Series J Securities at a price per Series J Security no less than $1,000 at one or more subsequent closings (each, a “Subsequent Closing”), to such Persons (the “Additional Purchasers”) as may be approved by the Company. All such sales made at any Subsequent Closing shall be made on the terms and conditions set forth in this Agreement, the representations and warranties of the Company set forth in Section 2 hereof shall speak as of such Subsequent Closing (and Schedule 2(d) shall speak as of the Business Day immediately preceding such Subsequent Closing), and the representations and warranties of the Additional Purchasers in Section 3 hereof shall speak as of such Subsequent Closing. The Schedule of Purchasers may be amended by the Company without the consent of the Purchasers to include any Additional Purchasers upon the execution by such Additional Purchasers of a counterpart signature page hereto. Any Series J Securities sold pursuant to this Section 1(b)(i) shall be deemed to be “Purchased Securities” for all purposes under this Agreement and any Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement. Such Persons shall, upon execution and delivery of a signature page hereto, become parties to, and be bound by, this Agreement without the need for an amendment to this Agreement except to add such Person’s name to the Schedule of Purchasers, and shall have the rights and obligations hereunder as of the date of the applicable Subsequent Closing.

(ii) At the Closing: (i) each Purchaser shall transmit, or cause to be transmitted, by wire transfer of immediately available funds to the Company, in accordance with the wire transfer instructions attached hereto as Annex A an amount equal to such Purchaser’s Purchase Price; (ii) the Company will deliver to each Purchaser certificates representing such Purchaser’s Preferred Shares (the “Purchased Shares”) and Series J Warrants (the “Purchased Warrants”), registered in the name of each Purchaser in such denominations as such Purchaser shall request; (iii) each Purchaser shall deliver to the Company each of the Transaction Documents to which such Purchaser is a party, duly executed by such Purchaser, as applicable; (iv) the Company shall deliver or cause to be delivered

to each Purchaser each of the Transaction Documents to which the Company and such Purchaser is a party, duly executed by each party thereto other than such Purchaser; (v) the Company shall cause to be delivered to each Purchaser an opinion of Haynes and Boone, LLP, counsel for the Company, in the form attached hereto as Exhibit D and (vi) with respect to the Initial Closing only, the Company shall cause to be delivered to each Purchaser an opinion of Morris, Nichols, Arsht & Tunnel, LLP, Delaware counsel for the Company, in the form attached hereto as Exhibit E.

(c) Use of Purchase Price. The proceeds of the aggregate Purchase Price paid all Purchasers shall be used by the Company for general corporate purposes.

2. Company Representations and Warranties. The Company hereby represents and warrants to each Purchaser as of the date hereof as follows:

(a) The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and has the requisite corporate power to carry on its business as presently conducted. The Company is duly qualified to do business as a foreign entity and in good standing in each state or country, if any, in which failure to be so qualified would, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect.

(b) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents and all other instruments, documents and agreements contemplated or required by the provisions of any of the Transaction Documents to be executed, delivered or carried out by the Company hereunder. The Purchased Securities have been duly authorized and, when issued, sold, and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be validly issued, fully paid and nonassessable.

(c) This Agreement constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Company does not and will not conflict with, violate or cause a breach of any Contract to which the Company is a party or any Order to which the Company is subject.

(d) Schedule 2(d) attached hereto sets forth, a true, complete and correct listing, as of November 14, 2014, of all of the Company’s outstanding (i) shares of Common Stock and (ii) securities convertible into or exchangeable for shares of Common Stock (the “Derivative Securities”), including the applicable exercise price of such Derivative Securities, other than any Derivative Securities issued pursuant to the Company’s Amended and Restated Equity-Based Compensation Plan or the Company’s 2011 Employee Stock Purchase Plan (the “Management Equity”). Except as set forth in Schedule 2(d) and except for any Management Equity, the Company has no other outstanding equity securities.

(e) (i) As of its filing date, the Form 10-K filed by the Company with the SEC on March 31, 2014, the Form 10-Q filed by the Company with the SEC on August 14, 2014, the Form 10-Q filed by the Company with the SEC on November 14, 2014 and, if applicable, each subsequent Form 10-Q filed by the Company with the SEC prior to the date of any Subsequent Closing (such filings, collectively, the “Company SEC Documents”) complied in all material respects with the applicable requirements of the 1933 Act, the 1934 Act, and the Sarbanes-Oxley Act of 2002, as the case may be, including, in each case, the rules and regulations promulgated thereunder.

(ii) Except to the extent that information contained in the Company SEC Documents has been revised or superseded by a document the Company subsequently filed with the SEC, the Company SEC Documents do not 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.

(iii) The financial statements (including the related notes thereto) included in the Company SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and their respective consolidated results of operations and cash flows for the periods then ended, all in accordance with GAAP and the applicable rules and regulations promulgated by the SEC. Since August 14, 2014, the Company has not made any change in the accounting practices or policies applied in the preparation of its financial statements, except as required by GAAP, the rules of the SEC or policy or applicable Law.

(iv) Subsequent to the filing of the Company SEC Documents with the SEC, there has been no material and adverse change or development, or event involving such a prospective change, in the condition, business, properties or results of operations of the Company and its Subsidiaries.

(f) Subject to the accuracy of the Purchasers’ representations and warranties in Section 3, the offer and sale of the Purchased Securities by the Company to each Purchaser pursuant to and in the manner contemplated by this Agreement will be exempt from the registration requirements of the 1933 Act.

(g) The Company agrees and acknowledges that the Purchased Securities to be acquired pursuant to this Agreement are subject to the Registration Rights Agreements and that all Conversion Shares issuable to Purchasers shall be deemed “Registrable Securities” pursuant to the Registration Rights Agreement.

(h) Except to the extent waived or otherwise cured in accordance with the terms thereof, the Company has complied in all material respects with the covenants set forth in that certain Term Loan Agreement by and among the Company, the lenders party thereto, and Medley Capital Corporation, as administrative agent for the lenders party thereto and that certain Loan and Security Agreement by and among the Company, BioLogical Illumination, LLC, the financial institutions from time to time party thereto as

lenders, and FCC, LLC (collectively, the “Debt Facilities”). Immediately prior to and immediately following the consummation of the transactions contemplated hereby, the Company will be in compliance in all material respects with the covenants set forth in the Debt Facilities.

3. Purchaser Representations and Warranties. Each Purchaser, severally and not jointly, represents and warrants with respect to itself to the Company as of the date hereof as follows:

(a) Such Purchaser has the full power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and thereunder, and to purchase, acquire and accept delivery of the Purchased Securities.

(b) The Purchased Securities are being acquired for such Purchaser’s own account and not with a view to, or intention of, distribution thereof in violation of the 1933 Act, or any applicable state securities Laws.

(c) Such Purchaser is knowledgeable in financial matters and is able to evaluate the risks and benefits of an investment in the Purchased Securities. Such Purchaser understands and acknowledges that such investment is a speculative venture, involves a high degree of risk and is subject to complete risk of loss. Such Purchaser has carefully considered and has, to the extent such Purchaser deems necessary, discussed with such Purchaser’s professional legal, tax, accounting and financial advisers the suitability of its investment in the Purchased Securities.

(d) Such Purchaser is able to bear the economic risk of its investment in the Purchased Securities for an indefinite period of time because the Purchased Securities have not been registered under the 1933 Act and, therefore, cannot be sold unless subsequently registered under the 1933 Act or an exemption from such registration is available. Such Purchaser: (i) understands and acknowledges that the Purchased Securities being issued to such Purchaser have not been registered under the 1933 Act, nor under the securities Laws of any state, nor under the Laws of any other country and (ii) recognizes that no public agency has passed upon the accuracy or adequacy of any information provided to such Purchaser or the fairness of the terms of its investment in the Purchased Securities.

(e) Such Purchaser has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Purchased Securities and has had full access to such other information concerning the Company as has been requested.

(f) This Agreement constitutes the legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, and the execution, delivery and performance of this Agreement by such Purchaser does not and will not conflict with, violate or cause a breach of any Contract to which such Purchaser is a party or any Order to which such Purchaser is subject.

(g) Such Purchaser became aware of the offering of the Purchased Securities other than by means of general advertising or general solicitation.

(h) Such Purchaser is an “accredited investor” as that term is defined under the 1933 Act and Regulation D promulgated thereunder, as amended by Section 413 of the Private Fund Investment Advisers Registration Act of 2010 and any applicable rules or regulations or interpretations thereof promulgated by the SEC or its staff.

(i) Such Purchaser acknowledges that the certificates for the Purchased Shares will contain a legend substantially as follows:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.”

Subject to any lock-up or other similar agreement that may apply to the Purchased Shares as may be specifically agreed to with an applicable Purchaser, the requirement that the Purchased Shares contain the legend set forth in clause (i) above shall cease and terminate when such shares are transferred pursuant to Rule 144 promulgated under the 1933 Act. Upon the consummation of an event described in the immediately preceding sentence, the Company, upon surrender of certificates containing such legend, shall, at its own expense (without the need for any opinion of counsel for a Purchaser), deliver to the holder of any such securities as to which the requirement for such legend shall have terminated, one or more new certificates evidencing such securities not bearing such legend.

(j) Each Purchaser holding 20% or more of the Company’s voting equity securities (as used in Rule 506(d)(1) of the 1933 Act) represents that neither (i) such Purchaser, (ii) any of its directors, executive officers, other officers that may serve as a director or officer of any company in which it invests, general partners or managing members, nor (iii) any beneficial owner of the Company’s voting equity securities (in accordance with Rule 506(d) of the 1933 Act) held by such Purchaser is subject to any Disqualification Event, except for Disqualification Events covered by Rule 506(d)(2) or (d)(3) under the 1933 Act and disclosed reasonably in advance of the Closing in writing in reasonable detail to the Company.

4. Additional Agreements.

(a) Purchaser Covenant. Each Purchaser agrees, severally and not jointly as to itself, not to make any sale, transfer or other disposition of the Purchased Securities in violation of the 1933 Act, the 1934 Act, the rules and regulations promulgated thereunder or any applicable securities Laws.

(b) Tax Provision. The Company and each Purchaser intend that for U.S. federal, state and local income tax purposes, the Purchased Securities will be treated as equity.

(c) Terms of the Preferred Shares. Each of the parties hereto acknowledges that the Preferred Shares shall have the powers, preferences and rights, and be subject to the qualifications, limitations or restrictions set forth in the Series J Certificate of Designation.

(d) Certain Actions. Promptly following the date hereof, the Company shall take all actions required to promptly prepare and file any required notice of exempt offering of securities, including a Form D, with the SEC pursuant to the 1933 Act and/or other comparable form with state securities regulators with respect to any applicable “blue sky” laws, in each such case, with respect to the transactions contemplated hereby.

(e) U.S. Real Property Holding Corporation Status. So long as any Purchaser beneficially owns any Purchased Shares or any shares of Common Stock issued upon conversion thereof or upon exercise of the Purchased Warrant, the Company shall not become a U.S. real property holding corporation within the meaning of Section 897 of the Code.

(f) Preemptive Rights. Promptly following consummation of the transactions contemplated by clause (i) of the definition of “Series J Securities Offering,” the Company shall deliver an Issuance Notice (as defined in the Certificates of Designation) to the holders of the Company’s outstanding shares of Series H Convertible Preferred Stock, the holders of the Company’s outstanding shares of Series I Convertible Preferred Stock and the holders of the Company’s outstanding Preferred Shares and each such holder shall thereafter have the right, in accordance with Section 14 of the Certificates of Designation (as applicable) to purchase at least a “pro rata share” (as such term is defined in the applicable Certificate of Designation) of the aggregate amount of Series J Securities issued pursuant to clause (i) of the definition of “Series J Securities Offering,” (such offering, the “Preemptive Rights Offering”). Each Purchaser (i) hereby expressly and irrevocably waives any rights pursuant to the Certificates of Designation to purchase any Series J Securities in connection with the Preemptive Rights Offering with respect to the Series J Securities purchased by it hereunder and (ii) hereby expressly agrees that the amount of Series J Securities such Purchaser may acquire pursuant to any rights to acquire such securities under the Certificates of Designations shall be reduced by the amount of Series J Securities purchased by it hereunder.

(g) Information Rights. For so long as a Purchaser continues to beneficially own, together with its Affiliates, in the aggregate, at least 10,000 Preferred Shares (or the equivalent amount of Conversion Shares), during normal business hours, the Company shall provide to such Purchaser or its designated representative, to the extent not prohibited by Law or any applicable rules or regulations, with (1) reasonable access to customary information, access and inspection rights, including delivering to such Purchaser such financial, management and operating reports and information reasonably requested by such Purchaser, including all such information as required for customary reporting to the limited partners of such Purchaser ’s Affiliates and for tax reporting purposes, (2) copies of all materials provided to the Company’s board of directors (“Board”) and (3) reasonable access during normal business hours to the officers of the Company with knowledge of the material business and affairs of the Company, including, without limitation, management personnel and compensation of employees, new products

or new lines of business, significant research and development programs, proposed commencement or compromise of significant litigation, purchasing or selling or creation or loss of important trademarks, licenses or concessions; provided, however, that the Company shall not be required to violate any written obligation of confidentiality to which the Company is subject or to waive any privilege which it may possess in discharging their obligations pursuant to this Section 4(g). Such Purchaser hereby agrees that such access, information and inspection rights shall be conducted in a manner so as to not, and the Company’s obligations to respond thereto shall not, interfere unreasonably with the operations of the Company.

(h) Board Observer Rights. For so long as a Purchaser continues to beneficially own, together with its Affiliates, in the aggregate, at least 10,000 Preferred Shares, as adjusted for any reclassification pursuant to the Series J Certificate of Designation (a “Reclassification”), (or the equivalent number of Conversion Shares, as adjusted for any Reclassification thereof), the right to (1) designate one non-voting board observer that will be entitled to attend all meetings of the Board and meetings of committees of the Board (other than the Audit Committee, Committee of Independent Directors, or any other committee comprised solely of directors who are deemed “independent directors” by the Board) (the “Observer Committees”), (2) receive notice of all meetings of the Board and meetings of Observer Committees as and when provided to the members of the Board or Observer Committee and all minutes, reports, meetings materials, notices, written consents and other materials as and when such documents and/or materials are provided to members of the Board or Observer Committee, (3) receive each form of action by unanimous consent in lieu of a meeting of the Board and each Observer Committee, together with the exhibits and annexes to any such consent and (4) receive such notice as is provided for regular and special meetings of the Board or Observer Committees, under the Company’s constitutive documents.

(i) Confidentiality. Each Purchaser, individually (and not jointly or jointly and severally), who receives any information from the Company, its officers, directors, representatives or Affiliates pursuant to any rights of such Purchaser pursuant to (x) Section 4(g) or Section 4(h) of this Subscription Agreement, (y) the Certificates of Designation, including, without limitation, in accordance with such Purchaser’s preemptive rights, consent rights, rights to demand or request information and (z) any other rights of such Purchaser to receive information in the capacity as a holder of Purchased Shares or Conversion Shares (collectively, the “Company Information”) agrees that it shall keep such Company Information confidential and shall not provide access to such Company Information to any other Person; provided, that Purchaser may provide access to such Company Information (A) to its agents, employees, directors, officers, trustees, partners, Affiliates, attorneys, accountants, advisors, auditors, portfolio management services and investors having an obligation of confidentiality to Purchaser in the ordinary course of Purchaser’s business; (B) to prospective transferees or purchasers of any of the Purchased Shares held by Purchaser; provided, that any such prospective transferee or purchaser shall have agreed to keep the same confidential in accordance with the provisions of this Section 4; (C) as may be required by Law, subpoena, judicial or administrative Order or similar legal process; provided, that Purchaser shall notify the Company prior to disclosure if permitted by Law; (D) in

connection with any litigation related to any Transaction Document or other agreement between Purchaser or any of its Affiliates and the Company or any of its Affiliates or in connection with the exercise of any right or remedy under any such Transaction Document or agreement; and (E) as may be required in connection with the examination, audit or similar investigation of Purchaser or as requested or required by any Governmental Body having jurisdiction over Purchaser. The foregoing confidentiality restriction shall not apply to any Company Information that is in the public domain, becomes part of the public domain (other than due to a breach by Purchaser of this Section 4), was within Purchaser’s possession or developed by it prior to being furnished with such information as evidenced by Purchaser’s records, or becomes available to Purchaser on a non-confidential basis from a source other than the Company.

5. General Provisions.

(a) Definitions. As used herein, the following terms shall have the following meanings:

“1933 Act” shall mean the Securities Act of 1933, as amended.

“1934 Act” shall mean the Securities Exchange Act of 1934, as amended.

“Additional Purchasers” shall have the meaning set forth in Section 1(b)(i).

“Affiliate” shall mean any Person which directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person or entity; provided, that for purposes of the definition of “Affiliate,” Purchaser shall not be deemed an “Affiliate” of the Company.

“Agreement” shall have the meaning set forth in the preamble.

“Business Day” shall mean any day other than a Saturday, Sunday or a day on which the banks in New York or Florida are authorized by Law to be closed; provided, that with respect to any notice period that is shorter than ten (10) Business Days and includes a Friday, such period shall be extended for one (1) additional Business Day.

“Bylaws” shall mean, when used with respect to a specified Person, the bylaws of a Person, as the same may be amended from time to time.

“Certificate of Incorporation” shall mean, when used with respect to a specified Person, the articles or certificate of incorporation or other applicable organizational document of such Person, including any certificate of designation, as currently in effect.

“Certificates of Designation” shall mean, collectively, the Series H Certificate of Designation, the Series I Certificate of Designation and the Series J Certificate of Designation.

“Closing” shall have the meaning set forth in Section 1(b)(i).

“Code” shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.

“Common Stock” shall have the meaning set forth in the recitals.

“Company” shall have the meaning set forth in the preamble.

“Company SEC Documents” shall have the meaning set forth in Section 2(g).

“Company Subsidiary” shall mean any Subsidiary of the Company.

“Contract” shall mean any legally binding contract, agreement, mortgage, deed of trust, bond, loan, indenture, lease, license, note, option, warrant, right, instrument, commitment or other similar document, arrangement or agreement, whether written or oral, together with all amendments, modifications and/or supplements thereof.

“Conversion Shares” shall mean shares of Common Stock or other securities issuable upon conversion of the Purchased Shares or exercise of the Purchased Warrants.

“Derivative Securities” shall have the meaning set forth in Section 2(d).

“Disqualification Event” shall mean any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the 1933 Act.

“GAAP” shall mean United States generally accepted accounting principles.

“Governmental Body” shall mean any government of any nation or any political subdivision or unit thereof, whether at the federal, state, territorial, provincial, county, municipal or any other level, and any agency, authority, regulatory body, board, branch, bureau, commission, court, arbitral body (public or private), department, instrumentality or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank), whether located in the United States or abroad.

“Initial Closing” shall have the meaning set forth in Section 1(b)(i).

“Law” shall mean any treaty, statute, ordinance, code, rule, regulation, Order or other legal requirement enacted, adopted, promulgated, applied or followed by any Governmental Body.

“Lien” shall mean any mortgage, pledge, Lien (statutory or otherwise), security interest, hypothecation, conditional sale agreement, encumbrance or similar restriction or agreement.

“Management Equity” shall have the meaning set forth in Section 2(d).

“Material Adverse Effect” shall mean any event, change, effect, condition or contingency that has a material adverse effect on the business, assets, liabilities (including contingent liabilities), results of operations or financial condition of the Company and the Company Subsidiaries, taken as a whole, other than to the extent resulting from: (i) changes in general business or economic conditions affecting the industry generally in which the Company and the Company Subsidiaries operate, (ii) changes in national or international political or social conditions, including the engagement by the United States of America in hostilities, whether or not pursuant to a declaration of a national emergency or war, or any escalation thereof, or the occurrence of any military or terrorist attack upon the Unites States of America or any of its territories, possessions or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States of America, (iii) changes generally affecting financial, banking or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (iv) changes in GAAP, or (v) changes in applicable Laws (including any changes in interpretations thereof), in each case in the foregoing clauses (i) through (v), inclusive, which do not disproportionately affect the Company or the Company Subsidiaries as compared to other similarly situated participants in the industry in which the Company and the Company Subsidiaries operate.

“Order” shall mean any order, injunction, judgment, decree, ruling, writ, assessment, mediation or arbitration award (whether temporary, preliminary or permanent).

“Person” shall mean any individual, corporation, partnership, firm, limited liability company, joint venture, trust, association, unincorporated organization, group, joint stock company, Governmental Body or other entity.

“Preferred Shares” shall have the meaning set forth in the recitals.

“Preemptive Rights Offering” shall have the meaning set forth in Section 4(f).

“Purchase Price” shall have the meaning set forth in the recitals.

“Purchased Securities” shall have the meaning set forth in Section 1(a).

“Purchased Shares” shall have the meaning set forth in Section 1(b)(ii).

“Purchased Warrants” shall have the meaning set forth in Section 1(b)(ii).

“Purchasers” shall have the meaning set forth in the preamble.

“Registration Rights Agreement” shall mean that certain Registration Rights Agreement, dated as of November 14, 2014, by and among the Company and each Purchaser, as supplemented from time to time in connection with each Subsequent Closing.

“Schedule of Purchasers” shall have the meaning set forth in the preamble.

“SEC” shall mean the Securities and Exchange Commission.

“Series H Certificate of Designation” shall mean the Amended and Restated Certificate of Designation governing the Company’s Series H Convertible Preferred Stock.

“Series I Certificate of Designation” shall mean the Amended and Restated Certificate of Designation governing the Company’s Series I Convertible Preferred Stock.

“Series J Certificate of Designation” shall mean have the meaning set forth in the recitals.

“Series J Securities” shall have the meaning set forth in the recitals.

“Series J Warrants” shall have the meaning set forth in the recitals.

“Subsequent Closing” shall have the meaning set forth in Section 1(b)(i).

“Subsidiary” shall mean (i) as to any Person, any other Person more than 50% of the shares of the voting stock, voting interests, membership interests or partnership interests of which are owned or controlled, or the ability to select or elect more than 50% of the directors or similar managers is held, directly or indirectly, by such first Person or one or more of its Subsidiaries or by such first Person and one or more of its Subsidiaries and/or (ii) any Person with respect to which the Company or a Company Subsidiary is a general partner or managing member.

“Transaction Documents” shall mean this Agreement, the schedules and exhibits hereto, the Series J Certificate of Designation, the Purchased Warrants, the certificates evidencing the Purchased Shares, the Registration Rights Agreement and any certificate or other document required to be delivered by or on behalf of the Company or any Purchaser pursuant to this Agreement or in connection with the transactions contemplated by this Agreement.

(b) Choice of Law. The Laws of the State of New York without reference to any conflict of Laws provisions thereof that would result in the application of the Law of a different jurisdiction, will govern all questions concerning the construction, validity and interpretation of this Agreement.

(c) Amendment and Waiver. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument referencing this Agreement and signed by the Company and the Purchasers holding a majority of the Purchased Securities issued pursuant to this Agreement (excluding any of such shares that have been sold in a public offering or pursuant to Rule 144); provided, that Additional Purchasers purchasing Series J Securities in a Subsequent Closing may become parties to this Agreement in accordance with Section 1(b)(i) without any amendment of this Agreement pursuant to this paragraph or any consent or approval of any other Purchaser; provided further, that with respect to Section 4(g) and Section 4(h), such term may only be amended, waived, discharged or terminated with the written consent of each Purchaser holding, together with its Affiliates, at least 10,000 Preferred Shares (or the equivalent amount of Conversion Shares). No delay or failure of any Purchaser in exercising any right, power or remedy hereunder shall affect or operate as a waiver thereof, nor shall any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or of any other right, power or remedy. The rights and remedies hereunder of each Purchaser are cumulative and not exclusive of any rights or remedies which it would otherwise have.

(d) 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.

(e) 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.

(f) 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.

(g) Benefit of Agreement, Assignment. This Agreement shall be binding upon and inure to the benefit of the Company and each Purchaser and their respective successors and assigns, heirs, executors and personal representative, as applicable, except that the Company shall not have the right to assign any of its rights under this Agreement without the prior written consent of each Purchaser. Notwithstanding the foregoing, the rights of each Purchaser set forth herein shall inure to the benefit of such Purchaser and its transferees. This Agreement is made solely for the benefit of the parties hereto and it is not the intention of the parties to confer third-party beneficiary rights upon any other Person, and no other Person shall have any rights, interest or claims hereunder or otherwise be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.

(h) Notices. Any and all notices or other communications required or permitted to be delivered hereunder shall be deemed properly delivered if (i) delivered personally, (ii) mailed by first class, registered or certified mail, return receipt requested, postage prepaid, (iii) sent by next day or overnight mail or delivery or (iv) sent by electronic mail, facsimile transmission or other electronic means of transmitting written documents (with a follow up copy under (iii) above), to the parties as set forth below:

If to the Company:

Lighting Science Group Corporation

1830 Penn Street

Melbourne, FL 32901

Attention: Zvi Raskin, General Counsel

Tel: (321) 779-5520

Fax: (321) 779-5521

Email: Zvi.Raskin@lsgc.com

With a copy (which shall not constitute notice or constructive notice) to:

Haynes and Boone, LLP

2323 Victory Avenue, Suite 700

Dallas, TX 75219

Attention: Ryan R. Cox, Esq.

Tel: (214) 651-5273

Fax: (214) 200-0534

Email: ryan.cox@haynesbooone.com

If to a Purchaser:

The address of such Purchaser as it appears on the Schedule of Purchasers.

Any party may change the name and address of the designee to whom notice shall be sent by giving written notice of such change to the other party. All notices or other communications to be, or otherwise, provided by a Purchaser or the Company must be sent to the Company or the Purchasers, respectively, in accordance with the procedures set forth in this Section 5(h) in order to be deemed properly delivered.

(i) Entire Agreement. This Agreement, the Transaction Documents and all Exhibits and Schedules attached hereto or thereto constitute the entire agreement and understanding between the Company and the Purchasers and the final expression thereof and supersede any and all prior agreements and understandings, written or oral, formal or informal, between the Company and the Purchasers relating to the subject matter hereof and thereof.

(j) Venue. Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any state or federal court located within New York, New York in connection with any matter based upon or arising out of this Agreement or the transactions contemplated hereby, agrees that process may be served upon them in any manner authorized by the Laws of the State of New York for such Persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and process. Each party hereto hereby agrees not to commence any legal proceedings relating to or arising out of this Agreement or the transactions contemplated hereby in any jurisdiction or courts other than as provided herein.

(k) WAIVER OF JURY TRIAL. EACH PURCHASER AND THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PURCHASER OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

(l) Rules of Construction. Words such as “herein,” “hereunder,” “hereof” and the like shall be deemed to refer to this Agreement as a whole and not to any particular document or Article, Section or other portion in which such words appear. If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Any reference to any federal, state, local or foreign statute, Law or other legal regulation shall be deemed to also to refer to all rules and regulations promulgated thereunder. References herein to “$” shall be references to United States Dollars. The words “include” and “including” shall be deemed to mean “include, without limitation,” and “including, without limitation”.

(m) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable Law in any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating any other provision of this Agreement. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement and the other Transaction Documents be consummated as originally contemplated to the greatest extent possible.

(n) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as, and the Company acknowledges that the Purchasers do not so constitute, a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group, and the Company shall not assert any such claim with respect to such obligations or the transactions contemplated by the Transaction Documents and the Company acknowledges that the Purchasers are not acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. The Company acknowledges and each Purchaser confirms that it has independently participated in the negotiation of the transaction contemplated hereby with the advice of its own counsel and

advisors. A default by any Purchaser of its obligations pursuant to this Agreement shall not constitute a default by any other Purchaser under this Agreement and, except with respect to such defaulting Purchaser, shall not relieve the Company of any of its obligations to any other Purchaser under this Agreement. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents to which it is a party, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.

[Remainder of page intentionally left blank]

The parties hereto have executed this Agreement to be effective as of the date first written above and, for purposes of any Subsequent Closing, as of the date of Closing indicated in the Schedule of Purchasers.


COMPANY:

LIGHTING SCIENCE GROUP CORPORATION

By:		/s/ Dennis McGill
Name:		Dennis McGill
Title:		Chief Financial Officer

Signature Page to Series J Subscription Agreement


PURCHASER:

SERENGETI OPPORTUNITIES MM L.P.

By:	Serengeti Asset Management LP, as the Investment Advisor

	By:	/s/ Marc Baum
	Name:	Marc Baum
	Title:	Director

Signature Page to Series J Subscription Agreement


PURCHASER:

SERENGETI LYCAON MM L.P.

By:	Serengeti Asset Management LP, as the Investment Advisor

	By:	/s/ Marc Baum
	Name:	Marc Baum
	Title:	Director

Signature Page to Series J Subscription Agreement

Exhibit A

Schedule of Purchasers


Name and Address	Number of Purchased Securities		Purchase Price		Date of Closing
Serengeti Opportunities MM L.P. 632 Broadway, 12th Floor New York, New York 10012 Fax Number: (212) 672-2229 Email: mbaum@serengeti-am.com		3,000	$	3,000,000.00		11/14/14
Serengeti Lycaon MM L.P. 632 Broadway, 12th Floor New York, New York 10012 Fax Number: (212) 672-2229 Email: mbaum@serengeti-am.com		10,000	$	10,000,000.00		11/14/14

Exhibit A

Exhibit 10.2

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT, dated effective as of November 14, 2014 (this “Agreement”), is between Lighting Science Group Corporation (the “Company”) and the holders of the Company’s securities identified on Schedule A attached hereto (each, including any Affiliate or Permitted Transferee thereof who is a subsequent holder of any Registrable Securities and who agrees in writing to be bound by the terms hereof, an “Investor” and collectively the “Investors”).

W I T N E S S E T H:

WHEREAS, each Investor has acquired shares of the Company’s Series J Convertible Preferred Stock, par value $0.001 per share (the “Preferred Shares”), and warrants (the “Warrants”) to purchase shares of the Company’s common stock, $0.001 par value per share (“Common Stock”), pursuant to that certain Series J Subscription Agreement, dated November 14, 2014, by and between the Company and the Purchaser parties listed on the Schedule of Purchasers attached as Exhibit A thereto (the “Subscription Agreement”); and

WHEREAS, each Investor and the Company desires to enter into this Agreement to provide for certain rights relating to the registration of all shares of Common Stock issuable upon exercise or conversion of the Preferred Shares and the Warrants.

AGREEMENT

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

Section 1. Certain Definitions. For purposes of this Agreement, the following terms have the meanings set forth below:

“Affiliate” means any Person that, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether by contract, through the ownership of voting securities, or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing; provided, that in no event shall any Holder be deemed an Affiliate of the Company.

“Commission” means the Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act.

“Convertible Securities” means any evidences of indebtedness, including bonds and debentures, shares, including the Preferred Shares or any other shares of preferred stock, warrants, options or other securities that are convertible into or exchangeable or exercisable for Common Stock.

“Exchange Act” means the Securities Exchange Act of 1934, or any successor federal statute, and the rules and regulations of the Commission thereunder, as the same may be amended from time to time.

“Holder” or “Holders” means any of the Investors and/or any subsequent Permitted Transferee.

“Home Depot Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of January 14, 2011, by and between the Company and The Home Depot, Inc.

“Medley Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of February 19, 2014, by and between the Company, Medley Capital Corporation and Medley Opportunity Fund II LP.

“Pegasus” means Pegasus Capital Advisors, L.P.

“Pegasus Registration Rights Agreement” means the Amended and Restated Registration Rights Agreement dated January 23, 2009, as further amended as of May 25, 2012, by and between the Company and Pegasus Partners IV, L.P.

“Person” means an individual, a corporation, a partnership, an association, a joint-stock company, a trust, any unincorporated organization, or a government or political subdivision thereof.

“Permitted Transferee” means any Person to whom the rights, duties and obligations of any current or subsequent Holder are assigned in compliance with Section 13 of this Agreement.

“Public Offering” means the sale of the Company’s Common Stock for cash to the public pursuant to an effective registration statement filed under the Securities Act.

“Qualified Public Offering” means any firmly committed underwritten Public Offering of the Company’s Common Stock on The NASDAQ Stock Market or the New York Stock Exchange, where (a) the gross proceeds received by the Company and any selling stockholders in the offering are no less than $100,000,000 and (b) the market capitalization of the Company immediately after consummation of such offering is no less than $500,000,000.

“Registrable Securities” with respect to any Holder means (i) all of the shares of Common Stock owned or held as of the date of this Agreement by such Holder or acquired at any time hereafter if at such time such Holder holds Registrable Securities, including in each case any shares of Common Stock issuable upon the conversion or exercise of the Preferred Shares or Warrants or any other Convertible Securities (provided that the underlying shares have vested), as applicable; (ii) any shares of Common Stock owned or held by, or issuable pursuant to the conversion, exchange or exercise of any Preferred Shares, Warrants or other Convertible Securities (provided that the underlying shares have vested) to, a Permitted Transferee; and (iii) any shares of capital stock or other securities of the Company issued as a dividend or other distribution with respect to or in exchange for or in replacement of any of the Registrable Securities described in (i) and (ii) above; provided, that as to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged pursuant to such registration statement; (b) such securities shall have been otherwise transferred (other than to an Affiliate of such Holder), new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities shall have ceased to be outstanding; (d) the date upon which such securities are sold under Rule 144 (or any successor provision) or (e) such securities shall become “Registrable Securities” (or are treated as such) under the Tri-Party Registration Rights Agreement, the Pegasus Registration Rights Agreement or any other registration rights agreement entered into after the date hereof.

“Riverwood” means RW LSG Holdings LLC.

“Securities Act” means the Securities Act of 1933, or any successor federal statute, and the rules and regulations of the Commission thereunder, as the same may be amended from time to time.

“Serengeti” means Serengeti Asset Management LP and its Affiliates, including the Investors hereunder that are Affiliates of Serengeti Asset Management LP.

“Tri-Party Registration Rights Agreement” means that certain Amended and Restated Registration Rights Agreement, dated as of September 25, 2012, by and among the Company, RW LSG Holdings LLC, RW LSG Management Holdings LLC, Cleantech Europe II (A) LP, Cleantech Europe II (B) LP and Portman Limited, as amended.

“Underwriter” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.

Section 2. Demand Registration.

(a) Request for Demand Registration. At any time and from time to time after the exercise of demand registration rights granted by the Company pursuant to the Pegasus Registration Rights Agreement or the Tri-Party Registration Rights Agreement or, subject to any applicable lock-up period provided herein, any time after the Company files a registration statement with respect to a Public Offering (other than a registration statement: (i) on Form S-4 or S-8 or any successor form filed under the Securities Act; (ii) filed in connection with any employee stock option or other benefit plan, (iii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iv) for an offering of debt that is convertible into equity securities of the Company; (v) for a dividend reinvestment plan; or (vi) on any other form not available for registering the Registrable Securities for sale to the public), Holders of a majority-in-interest (the “Majority-In-Interest”) of the Registrable Securities (determined on a fully diluted basis) held by all Holders other than Holders that are Affiliates of Pegasus or Riverwood (the “Demand Holders”) may make a written demand for registration under the Securities Act of all or part of their Registrable Securities (a “Demand Registration”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) and plan of distribution thereof. Upon the Company’s receipt of the written request for a Demand Registration, the Company shall promptly notify all other Holders of Registrable Securities of such demand for a Demand Registration, and each such Holder that wishes to include all or a portion of such Holder’s Registrable Securities in the Demand Registration (each such Holder including Registrable Securities in such registration, a “Selling Demanding Holder”) shall so notify the Company within fifteen (15) days after the receipt by the Holder of the notice from the Company. Upon any such request, the Selling Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2(g) and the provisos set forth in the first sentence of Section 2(b).

(b) Form of Registration Statement. The Company shall, as expeditiously as possible and in any event within sixty (60) days after receipt of a request for a Demand Registration pursuant to Section 2(a), prepare and file with the Commission a registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) and plan of distribution thereof; provided, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, in each case if the Company shall furnish to the Holders a certificate signed by the Chief Executive Officer or Chairman of the Board of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders for such registration statement to be effected at such time; provided, further, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder. In addition, the Company may elect to register for resale shares of Common Stock held by other security holders of the Company, so long as (i) the Registrable Securities of the Selling Demand Holders to be registered will not be reduced thereby; (ii) if such registration is an underwritten offering, such other security holders agree in writing to sell the Common Stock on the same terms and conditions as apply to the Registrable Securities being sold by the Holders, (iii) if such registration is an underwritten offering, any Common Stock held by other security holders of the Company to be registered for resale and/or resold will not, in the opinion of the managing Underwriter(s) adversely affect the proposed offering price, the timing, the distribution method, or the probability of success of such offering of the Registrable Securities being sold; and (iv) the Company will be responsible for any and all costs (including reasonable attorneys’ fees) incurred by the Selling Demand Holders arising out of the registration of such other security holder’s Common Stock. The Majority-in-Interest shall be entitled to select counsel for the Selling Demand Holders, whose expenses shall be borne by the Company.

(c) Effecting the Registration Statement. The Company shall use reasonable best efforts to cause the registration statement filed pursuant to this Section 2 to become effective as soon as possible following the filing thereof, and shall use reasonable best efforts to keep such registration statement in effect and maintain compliance with all securities laws until the end of the Registration Period (as defined below). A registration will not count as a Demand Registration for purposes of Section 2(d) until the registration statement filed with the Commission with respect to such Demand Registration

registering all of the Registrable Securities specified in the notice received pursuant to Section 2(a), determined on the basis described in Sections 2(a) and 2(b), has been declared effective and the Company has complied with all of its obligations under this Agreement with respect thereto; provided, that if, after such registration statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the registration statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until: (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a Majority-In-Interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Company shall not be obligated to file a second Registration Statement until a registration statement that has been filed is counted as a Demand Registration or is terminated.

(d) Number of Demands. Subject to Section 2(g), the Company shall only be obligated under this Section 2 to effect an aggregate of three (3) Demand Registrations for any and all Holders, unless the Company breaches its obligations under Section 2(b), or Section 5.

(e) Delay due to Underwritten Offering. If, following receipt of a demand for a Demand Registration pursuant to Section 2(a), the Company has already begun registering securities (with respect to a primary or secondary offering) pursuant to an underwritten public offering (an “Existing Offering”) and in the good faith judgment of the managing Underwriter of the Existing Offering, the registration of the Registrable Securities pursuant to such demand or the resale of the Registrable Securities pursuant thereto would interfere with the Underwriter’s successful marketing of the Existing Offering, the Company may, by giving prompt written notice to the Holders making such demand, delay the registration of the Registrable Securities pursuant to such demand or any resale of such Registrable Securities for the minimum period necessary to not interfere with such Existing Offering, but in no event more than 90 days; provided, that the Company may not deliver any such notice more than once in any 365-day period. Notwithstanding the foregoing, the Holders shall have Piggyback Registration rights under Section 3 with respect to the Existing Offering.

(f) Underwritten Offering. If any registration under Section 2 of this Agreement is an underwritten offering, the Underwriter(s) that will administer the offering shall be selected by the Company, subject to the prior written consent of the Holders of a majority-in-interest of the Registrable Securities proposed to be sold by the Selling Demanding Holders (the “Majority Selling Demanding Holders”), such consent not to be unreasonably withheld.

(g) Withdrawal. If the Majority Selling Demanding Holders disapprove of the terms of any underwriting or are not entitled to include all of their Registrable Securities in any offering such Majority Selling Demanding Holders may elect to withdraw from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the registration statement filed with the Commission with respect to such Demand Registration. If the Majority Selling Demanding Holders withdraw from a proposed offering relating to a Demand Registration, then such registration shall not count as a Demand Registration provided for in Section 2(d).

Section 3. Piggyback Registration.

(a) If at any time, the Company proposes to file a registration statement with respect to a Public Offering (other than a registration statement: (i) on Form S-4 or S-8 or any successor form filed under the Securities Act; (ii) filed in connection with any employee stock option or other benefit plan, (iii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iv) for an offering of debt that is convertible into equity securities of the Company; (v) for a dividend reinvestment plan; or (vi) on any other form not available for registering the Registrable Securities for sale to the public), the Company shall promptly provide each Holder with written notice (which notice shall be given not less than fifteen (15) business days prior to the effective date of such registration statement) of such registration (a “Piggyback Registration”), which notice shall offer such Holder the opportunity to register such amount of Registrable Securities as it shall request. Each Holder of Registrable Securities shall have ten (10) business days from the date of receipt of the Company’s notice to deliver to the Company a written request for inclusion of such Holder’s Registrable Securities, specifying the number of such Registrable Securities to be included in the registration. Any Holder shall have the right to withdraw such Holder’s request for inclusion at any time by sending a written withdrawal notice to the Company. The Company shall include in such registration all the Registrable Securities requested to be included by any Holder in accordance with this Section 3(a).

(b) If the Company intends for the Common Stock being registered pursuant to any Piggyback Registration to be distributed pursuant to an underwriting (an “Underwritten Piggyback Registration”), the notice provided by the Company to each Holder pursuant to Section 3 shall state that such registration will be underwritten. In connection with an Underwritten Piggyback Registration, the Board of Directors of the Company shall select the Underwriter.

(c) Notwithstanding anything to the contrary in this Section 3, the right of any Holder to participate in an Underwritten Piggyback Registration shall be conditioned upon such Holder agreeing to (i) sell all of its Registrable Securities included in such registration on the basis provided in any underwriting arrangements approved by the Company and (ii) complete and execute all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements.

(d) If in connection with any Underwritten Piggyback Registration the Underwriter advises the Company that in its opinion the number of securities requested to be included in such registration exceeds the number that can reasonably be sold in such offering, then the Company shall include in such registration: (i) first, all of the securities that the Company proposes to sell; (ii) second, all of the securities requested to be included therein by any Persons exercising demand registration rights granted by the Company; (iii) third, all of the securities requested to be included therein pursuant to and in accordance with the Pegasus Registration Rights Agreement, the Tri-Party Registration Rights Agreement, the Home Depot Registration Rights Agreement and the Medley Registration Rights Agreement, (iv) fourth, on a pro-rata basis all of the Registrable Securities requested to be included therein by the Holders based upon the relative amount of Registrable Securities then held by such Holder (provided, that any such amount thereby allocated to any such Holder that exceeds such Holder’s request shall be reallocated among the remaining Holders in a like manner) and if there is any amount then remaining to be allocated, such amount shall be allocated on a pro rata basis based on the relative amount of Registrable Securities requested to be included and (v) fifth, the shares of Common Stock or other securities for the account of other Persons that the Company is obligated to register pursuant to written contractual arrangements. If the number of Registrable Securities that any Holder requested be included in an Underwritten Piggyback Registration is to be reduced as a result of this Section 3(d), the Company shall promptly notify such Holder of any such reduction and the number of Registrable Securities of such Holder that will be included in such registration.

(e) If in connection with any Underwritten Piggyback Registration any Holder disapproves of the terms of the underwriting, such Holder may elect to withdraw from such underwriting by delivering written notice to the Company and the Underwriter at least three (3) business days prior to the effective date of the registration statement. Any Registrable Securities withdrawn from such underwriting shall also be withdrawn from such registration.

(f) Nothing in this Agreement shall create any liability on the part of the Company to the Holders if the Company in its sole discretion should decide not to file a registration statement proposed to be filed pursuant to Section 3 or to defer or withdraw such registration statement subsequent to its filing, regardless of any action whatsoever that a Holder may have taken, whether as a result of the issuance by the Company of any notice hereunder or otherwise.

(g) The Company shall be entitled to suspend the rights of selling Holders under Section 3 to make sales pursuant to a registration statement otherwise required to be kept effective hereunder if the Company determines in good faith that there exists a material proposed event (including any proposed acquisition or disposition) that would be required to be disclosed in such registration statement and the disclosure of which would either have a material adverse effect on such proposed transaction or the Company.

Section 4. Registrations on Form S-3.

At any time and from time to time after the exercise of demand registration rights granted by the Company pursuant to the Pegasus Registration Rights Agreement or the Tri-Party Registration Rights Agreement or, subject to any applicable lock-up period provided herein, any time after the Company files a registration statement with respect to a Public Offering

(other than a registration statement: (i) on Form S-4 or S-8 or any successor form filed under the Securities Act; (ii) filed in connection with any employee stock option or other benefit plan, (iii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iv) for an offering of debt that is convertible into equity securities of the Company; (v) for a dividend reinvestment plan; or (vi) on any other form not available for registering the Registrable Securities for sale to the public), the Demand Holders may request in writing that the Company register (a “Form S-3 Registration”) the resale of any or all of such Registrable Securities on Form S-3 or any similar short-form registration which may be available at such time (“Form S-3”). Upon the Company’s receipt of a written request for a Form S-3 Registration, the Company shall promptly give written notice of the proposed registration to all other Holders of Registrable Securities, and, as soon as practicable thereafter, subject to the provisions of Section 3, effect the registration of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities or other securities of the Company, if any, or any other Holder or Holders that are joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, that the Company shall not be obligated to effect any such registration pursuant to this Section 4, (i) if Form S-3 is not available for such offering or (ii) if the Holders of the Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $500,000. Registrations effected pursuant to this Section 4 shall not be counted as Demand Registrations effected pursuant to Section 2(d).

Section 5. Registration Procedures.

(a) In the case of each registration by the Company pursuant to this Agreement, the Company shall:

(i) Use reasonable best efforts to prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective, and keep such registration statement effective until the distribution contemplated in the registration statement has been completed;

(ii) Use reasonable best efforts to prepare and file with the Commission such amendments, supplements and post-effective amendments to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement;

(iii) Use reasonable best efforts to furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them;

(iv) Use commercially reasonable efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided, that the Company shall not be required in connection therewith or as a condition thereto (A) to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(a)(iv); (B) subject itself to taxation but for this Section 5(a)(iv); or (C) consent to general service of process in any jurisdiction in which it would not otherwise be subject to general service of process but for this Section 5(a)(iv);

(v) Use commercially reasonable efforts to cause the Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be required by virtue of the business and operations of the Company to enable the Holder or Holders thereof to consummate the disposition of such Registrable Securities;

(vi) Enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be

made to and for the benefit of the Holders of Registrable Securities included in such registration statement. No Holder of Registrable Securities included in such registration statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such Holder’s material agreements and organizational documents, and with respect to written information relating to such Holder that such Holder has furnished in writing expressly for inclusion in such registration statement. Holders of Registrable Securities shall agree to such covenants and indemnification and contribution obligations for selling stockholders as are customarily contained in agreements of that type;

(vii) Promptly, and in no event more than two (2) business days after such filing, notify the Holders of Registrable Securities included in such registration statement of such filing, and shall further notify such Holders promptly and confirm such advice in writing in all events within two (2) business days of the occurrence of any of the following: (i) when such registration statement becomes effective; (ii) when any post-effective amendment to such registration statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission for any amendment or supplement to such registration statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such registration statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to the Holders of Registrable Securities included in such registration statement any such supplement or amendment; except that before filing with the Commission a registration statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the Holders of Registrable Securities included in such registration statement and to the legal counsel for any such Holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such Holders and legal counsel with a reasonable opportunity to review such documents and comment thereon, and the Company shall not file any registration statement or prospectus or amendment or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall object;

(viii) Use its reasonable best efforts to cause all such Registrable Securities covered by the registration statement to be listed on each securities exchange or quotation system on which similar securities issued by the Company are then listed, and enter into such customary agreements, including a listing application; provided, that the applicable listing requirements are satisfied;

(ix) Make available for inspection during normal business hours by any Holder of Registrable Securities covered by such registration statement, any Underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such Holder or Underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries (collectively, “Records”), if any, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s and its subsidiaries’ officers, directors and employees to supply all information and respond to all inquiries reasonably requested by any such Inspector in connection with such registration statement. Notwithstanding the foregoing, the Company shall have no obligation to disclose any Records to the Inspectors in the event the Company determines that such disclosure is reasonably likely to have an adverse effect on the Company’s ability to assert the existence of an attorney-client privilege with respect thereto;

(x) If requested by the Holder, use commercially reasonable efforts to furnish to each Holder of Registrable Securities included in any registration statement a signed counterpart, addressed to such Holder, of (i) any opinion of counsel to the Company delivered to any Underwriter and (ii) any comfort letter from the Company’s independent public accountants delivered to any Underwriter. In the event no legal opinion is delivered to any Underwriter, the Company shall furnish to each Holder of Registrable Securities included in such registration statement, at any time that such Holder elects to use a prospectus, an opinion of counsel to the Company to the effect that the registration statement containing such prospectus has been declared effective and that no stop order is in effect; and

(xi) Otherwise use its commercially reasonable efforts to comply, and continue to comply during the period that such registration statement is effective under the Securities Act with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission with respect to the disposition of all Registrable Securities covered by such registration statement, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.

(b) Upon receipt of written notice from the Company that a registration statement or prospectus for a registration under this Agreement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances then existing, each Holder of Registrable Securities shall forthwith discontinue the disposition of Registrable Securities until such Holder has received copies of the supplemented or amended prospectus that corrects such untrue statement or discloses such material fact, or until such Holder is advised in writing by the Company that the use of the prospectus may be resumed, and, if directed by the Company, such Holder shall deliver to the Company (at the Company’s expense) all copies of the prospectus covering such Registrable Securities current at the time of receipt of such notice.

(c) In connection with any registration statement in which Holders are participating, each seller of Registrable Securities shall furnish to the Company in writing such information and affidavits with respect to itself and its proposed distribution of Registrable Securities as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws.

Section 6. Registration Expenses.

(a) Subject to Section 6(b), all expenses incident to the Company’s performance of or compliance with this Agreement, including, without limitation, all registration, qualification and filing fees, fees and expenses of compliance with federal and applicable state securities laws, printing expenses, escrow fees, messenger and delivery expenses, and fees and disbursements of counsel for the Company and all independent certified public accountants, Underwriters (excluding discounts and commissions) and other Persons, retained by the Company (all such expenses being herein called “Registration Expenses”), will be borne by the Company.

(b) The fees and expenses of one legal counsel selected by the Holders of a majority-in-interest of the Registrable Securities included in a registration will be borne by the Company; provided, that such Holders shall not be entitled to select such legal counsel if all holders of securities registered in such registration are represented by counsel and the Company is paying the fees and expenses of such counsel. Any underwriting discounts or commissions incurred in connection with, and attributable to, the sale of Registrable Securities shall be borne by the Holders of such Registrable Securities.

Section 7. Indemnification.

(a) In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to indemnify and hold harmless (i) each seller of Registrable Securities and (ii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such seller of Registrable Securities (any of the Persons referred to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the respective officers, directors, partners, employees, representatives and agents of any seller of Registrable Securities or any controlling person, to the fullest extent permitted by law, from and against any and all losses, claims, damages, liabilities, judgments, actions and reasonable expenses (including without limitation and as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to any such party) directly or indirectly caused by, related to, based upon, arising out of or in

connection with any untrue statement or alleged untrue statement of a material fact contained in any registration statement under which such Registrable Securities were registered under the Securities Act (or any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that the Company shall not be liable in any such case insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any seller of Registrable Securities that is furnished in writing to the Company by such seller or any controlling person of such seller specifically for use in such registration statement or prospectus; provided, further, that the indemnity agreement contained in this Section 7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, judgment, action or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld).

(b) In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, each seller of Registrable Securities thereunder agrees, severally and not jointly, to indemnify and hold harmless the Company, and its respective directors, officers, and each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each such Person, each Underwriter and each Person, if any, who controls any Underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and each other seller of Registrable Securities and each Person who controls any such other seller of Registrable Securities, to the fullest extent permitted by law, from and against any and all losses, claims, damages, liabilities, judgments, actions and reasonable expenses (including without limitation and as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to any such party) directly or indirectly caused by, related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any registration statement under which such Registrable Securities were registered under the Securities Act (or any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, which untrue statement or alleged untrue statement or omission or alleged omission is made solely in reliance upon and in express conformity with information pertaining to such seller that is furnished in writing to the Company by such seller or any controlling person of such seller specifically for use in such registration statement or prospectus; provided, that (i) the indemnity agreement contained in this Section 7(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, judgment, action or expense if such settlement is effected without the consent of such seller (which consent shall not be unreasonably withheld) and (ii) the maximum aggregate liability of such seller shall in no event exceed the net proceeds actually received by such seller upon sale of Registrable Securities.

(c) Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission to promptly notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under this Section 7, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action shall be brought against any indemnified party and it shall promptly notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 7 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, that if the defendants in any such action include both the indemnified party and the indemnifying party and counsel to the indemnified party shall have reasonably concluded in writing that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party, or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified

party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred. It is understood that the indemnifying party shall not, in connection with any action or related actions in the same jurisdiction, be liable for the fees and disbursements of more than one separate firm qualified in such jurisdiction to act as counsel for the indemnified party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the written consent of such indemnified party, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity was sought hereunder by such indemnified party unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of the indemnified party. The indemnification procedures of Underwriters provided for in this Section 7 shall be on such other terms and conditions as are at the time customary and reasonably required by such Underwriter as provided in Section 7(c).

(d) If the indemnification provided for in Section 7(a) and Section 7(b) above is unavailable or insufficient to hold harmless an indemnified party under such sections in respect of any losses, claims, damages, liabilities, judgments, actions or expenses in respect thereof referred to therein, then each indemnifying party shall in lieu of indemnifying such indemnified party contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, judgments, actions or expenses in such proportion as appropriate to reflect the relative fault of the Company, on the one hand, and the Underwriters or the sellers of such Registrable Securities, on the other, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments, actions or expenses as well as any other relevant equitable considerations, including, without limitation, the failure to give any notice under Section 7(c) above, provided, that in no event shall any contribution by any Holder hereunder exceed the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) from the sale of Registrable Securities in the offering actually received by such Holder. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to information supplied by the Company, on the one hand, or the Underwriter or the sellers of such Registrable Securities, on the other, and to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each of the Holders agrees that it would not be just and equitable if contributions pursuant to this Section 7(d) were determined by pro rata allocation (even if all of the sellers of such Registrable Securities were treated as one entity for such purpose) or by any other method of allocation which did not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities, judgments, actions or expenses in respect thereof, referred to in this Section 7(d), shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act), shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.

Section 8. Rule 144. The Company agrees with the Holders that it shall timely file any and all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and shall make and keep public information available as those terms are understood and defined in Rule 144(c) under the Securities Act. Upon the written request of any Holder, the Company shall promptly furnish to such Holder a written statement by the Company as to its compliance with the reporting requirements set forth in this Section 8. The Company will, at the request of a Holder, upon receipt from such Holder of a certificate certifying (i) that such Holder has held its Registrable Securities for the applicable holding period under Rule 144 with respect to the Holder’s possession of such Registrable Securities, as in effect on the date of such certificate, (ii) that such Holder has not been an affiliate (as defined in Rule 144) of the Company during any of the 90 preceding days, and (iii) as to other matters as may be required in accordance with Rule 144, remove from the stock certificates representing such Registrable Securities that portion of any restrictive legend which relates to the registration provisions of the Securities Act. The Company acknowledges and agrees that the purpose of the requirements contained in this Section 8 are to enable the Holders to comply with the current public information requirement contained in paragraph (c) of Rule 144 of the Securities Act should the Holders

ever wish to dispose of any of the securities of the Company acquired by it without registration under the Securities Act in reliance upon Rule 144 (or any similar exemptive provision). The Company shall take such other measures, and file such other information, documents and reports, as shall hereafter be required by the Commission as a condition to the availability of Rule 144 under the Securities Act (or any similar provision hereafter in effect). The Company shall use commercially reasonable efforts to obtain eligibility to use Form S-3, and shall take such further action as the Holders of Registrable Securities may reasonably request, all to the extent required from time to time to enable such Holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.

Section 9. Holdback Agreement. Each Holder agrees that in the event (a) the Company proposes to offer for sale to the public any of its equity securities, (b) such Holder is requested by an Underwriter engaged by the Company in connection with a firmly committed underwritten Public Offering to sign an agreement restricting the sale or other transfer of any Registrable Securities and (c) the following Persons (the “Restricted Sellers”) are restricted in the same manner and for the same duration: (i)(A) all of the Company’s Affiliates and executive officers and all of the members of the Board of Directors and (B) all of the securities that could be requested to be included in any registration pursuant to the Pegasus Registration Rights Agreement and the Tri-Party Registration Rights Agreement and (ii) if such Persons are selling stockholders in such offering, (A) all of the securities that could be requested to be included in any registration pursuant to Home Depot Registration Rights Agreement and the Medley Registration Rights Agreement and any successors, assigns and transferees thereof, then such Holder will promptly sign such agreement and will not transfer, whether in privately negotiated transactions or to the public in open market transactions or otherwise, any Registrable Securities or any other securities of the Company held by him, her or it during such period as is determined by the Underwriter(s), not to exceed, (x) in the case of the Company’s initial Qualified Public Offering, the seven (7) day period prior to and 180 days following the closing of the Company’s initial Qualified Public Offering and (y) in the case of any other underwritten Public Offering, the seven (7) day period prior to and 90 days following the closing of such Public Offering (each such period, the “Lock-Up Period”). Any such lock-up agreement shall be in writing and in form and substance reasonably satisfactory to such Underwriter and pursuant to customary and prevailing terms and conditions. Notwithstanding whether the Holder has signed such an agreement, the Company may impose stop-transfer instructions with respect to the Registrable Securities or any other securities of the Company subject to the foregoing restrictions until the end of the Lock-Up Period. Notwithstanding the foregoing, if any Restricted Seller is or becomes subject to a shorter Lock-Up Period under any lock-up agreement (including but not limited to as a result of any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the Underwriters) or otherwise subsequently becomes subject to terms different from those set forth in such lock-up agreement, then, if applicable, the Lock-Up Period shall be such shorter period and each Holder shall have to right, but not the obligation, to accept such differing terms and such Holder’s lock-up agreement shall be so amended.

Section 10. Headings. The underlined headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

Section 11. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

Section 12. Series J Purchaser Joinder. The Company and each Investor acknowledge and agree that subsequent to the date hereof additional Persons may purchase Preferred Shares and Warrants in accordance with the Series J Subscription Agreement. Any such additional Person shall become party to this Agreement by the execution and delivery of a joinder agreement substantially in the form attached hereto as Exhibit A by such Person and the Company, pursuant to which such additional Person agrees to be bound by the terms of this Agreement, and such additional Person shall thereafter be deemed to be an Investor for all purposes of this Agreement and shall have the rights and be subject to the obligations of an Investor hereunder, and such joinder shall occur automatically without any further action by any other party hereto.

Section 13. Transfer or Assignment of Registration Rights. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of any current or subsequent Holder of Registrable Securities hereunder may be freely assigned by such current or subsequent Holder of Registrable Securities in conjunction with and to the extent of any transfer by such current or subsequent Holder of Registrable Securities to any Person; provided, that none of the rights, duties or obligations of such current or subsequent Holder of Registrable Securities shall be assignable unless: (i) if such transferee is not an Affiliate of such Holder, the aggregate amount of Registrable Securities transferred to such transferee amounts to at least 10,000,000 shares of Common Stock (calculated on an as-converted or exercised basis with respect to any Preferred Shares, Warrants or other Convertible Securities (provided such shares have vested) and after giving effect to any reclassification, stock split, reverse stock split, stock dividend, subdivision, combination, consolidation, recapitalization or any similar proportionately applied change of outstanding shares of Common Stock after the date of this Agreement); and (ii) such transferee signs a joinder agreement to this Agreement in the form attached hereto as Exhibit A. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and the permitted assigns of any Holder or of any assignee of such Holder. Except as provided in the immediately preceding sentence or unless the Company gives its prior written consent, an assignment of the rights, interests or obligations hereunder shall be null and void ab initio.

Section 14. Entire Agreement; Modification. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. Any inconsistent provisions in the documents governing the Preferred Shares or the Warrants relating to registration rights or lock up provisions shall be superseded by the provisions hereof to the extent required to make them not inconsistent. Except as expressly provided in this Agreement, none of the provisions of this Agreement may be amended, modified or supplemented, and waivers or consents to departures from the provisions thereof may not be given, unless the Company has obtained the written consent of Holders holding a majority of the Registrable Securities so affected by such amendment, modification, supplement, waiver or consent to departure; provided, that a waiver or consent to departure from the provisions of this Agreement that relates exclusively to the rights of the Holders whose Registrable Securities are being sold pursuant to a registration statement and that does not directly or indirectly adversely affect the rights of any other Holders may be given by the Holders holding a majority of the Registrable Securities being sold; provided, further, that for so long as Serengeti holds any Registrable Securities, no such amendment, modification, supplement, waiver or consent to departure shall be effective without the written consent of Serengeti. Notwithstanding the foregoing, no Holder’s rights under Section 7 may be adversely affected without the consent of such Holder.

Section 15. Notices. All notices, requests, demands, claims and other communications that are required or may be given pursuant to this Agreement must be in writing and delivered personally against written receipt, by facsimile, by email or by reputable domestic or international overnight courier to the parties at the following addresses (or to the attention of such other Person or at such other address as any party may provide to the other party by notice in accordance with this Section 15):


If to the Company, to it at:		Lighting Science Group Corporation
		1227 South Patrick Drive
		Building 2A
		Satellite Beach, FL 32937
		Attention: Chief Financial Officer
		Telephone: (321) 779-5520
		Facsimile: (321) 779-5521

with a copy to:		Haynes and Boone, LLP
		2323 Victory Avenue, Suite 700
		Dallas, TX 75219
		Attention: Ryan R. Cox
		Telephone: (214) 651-5273
		Facsimile: (214) 200-0534
		Email: ryan.cox@haynesboone.com

If to an Investor, to it at:		The address of such investor as it appears on the Schedule of Purchasers of the Subscription Agreement.

Any such notice, request, demand, claim or other communication will be deemed to have been given (a) if personally delivered, when so delivered, (b) if sent by facsimile or email, upon transmission with electronic confirmation thereof or (c) if sent by reputable domestic or international overnight courier, when received.

Section 16. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or email (in .pdf or .tif format) transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement. No party to this Agreement will raise the use of a fax or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax or email as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.

Section 17. Remedies Cumulative. In the event that the Company fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, a Holder may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.

Section 18. Governing Law.

(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the parties hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.

(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

Section 19. Interpretation. As used herein, the words “hereof”, “herein”, “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and the word “Section” refers to a Section of this Agreement unless otherwise specified. Whenever the words “include”, “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

Section 20. Termination of Rights. The provisions of this Agreement, except the provisions in Sections 6 and 7 of this Agreement, shall terminate upon the earlier of: (i) the first day that all Registrable Securities have been sold by all of the Holders; (ii) with regard to any specific Holder, the first day that such Holder no longer owns any Registrable Securities; and (iii) the tenth anniversary of the date of this Agreement; provided, that the indemnification and contribution rights and obligations hereunder shall not terminate and shall survive forever.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as an instrument under seal as of the date and year first above written.


LIGHTING SCIENCE GROUP CORPORATION

By:		/s/ Dennis McGill
Name:		Dennis McGill
Title:		Chief Financial Officer

Signature Page to Registration Rights Agreement

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as an instrument under seal as of the date and year first above written.


INVESTOR:

SERENGETI OPPORTUNITIES MM L.P.

By: Serengeti Asset Management LP, as the Investment Advisor

By:		/s/ Marc Baum
Name:		Marc Baum
Title:		Director

Signature Page to Registration Rights Agreement


INVESTOR:

SERENGETI LYCAON MM L.P.

By: Serengeti Asset Management LP, as the Investment Advisor

By:		/s/ Marc Baum
Name:		Marc Baum
Title:		Director

Signature Page to Registration Rights Agreement

SCHEDULE A

Schedule of Investors


Name of Investor	Number of Preferred Shares Purchased at Closing		Date of Closing
Serengeti Opportunities MM L.P.		3,000	November 14, 2014
Serengeti Lycaon MM L.P.		10,000	November 14, 2014

EXHIBIT A

FORM OF

JOINDER AGREEMENT

The undersigned hereby agrees, effective as of the date hereof, to become a party to that certain Registration Rights Agreement (the “Agreement”), dated as of November 14, 2014, by and among Lighting Science Group Corporation (the “Company”) and the holders of the Company’s securities listed on Schedule A thereto, as amended from time to time, and for all purposes of the Agreement, the undersigned shall be included within the term “Investor” (as defined in the Agreement). The address and facsimile number to which notices may be sent to the undersigned is as follows:

Address:

Facsimile No.:

This day of , 20 .


[INVESTOR]


Name:
Title:
Date:

Exhibit 99.1

For Immediate Release

Kate Kaminski, Marketing

Lighting Science Group Corporation

D 321.610.9541

E kate.kaminski@lsgc.com

Lighting Science Receives $13.0 Million Equity Investment to Fund Growth

Funding commercialization of existing Lighting Science products in next-generation light technologies

and capture share in fast-growing LED lighting market

Melbourne, FL – November 19, 2014 – Lighting Science Group Corporation announced that it has received $13.0 million in preferred stock financing from Serengeti Asset Management. The funding will be used to finance the Company’s growth and solidify its leadership position in the LED lighting market, with a strong focus on the Company’s technology platforms and product innovations.

The Company issued an aggregate of 13,000 shares of its senior Series J Convertible Preferred Stock at a price of $1,000 per share. This issuance augments the $45.5 million that was previously invested in this round by other investors.

“We are excited to announce Serengeti as the most recent addition to the prestigious firms supporting Lighting Science and its mission of revolutionizing the world through the commercialization of next-generation light-based technologies,” said Edward Bednarcik, Chief Executive Officer of Lighting Science. He continued “We believe this capital infusion will help us capture share in the fast-growing LED lighting market, where we see adoption rates growing very rapidly, and continue to execute on our aggressive growth plans.”

About Lighting Science

Lighting Science Group Corporation (OTCQB:LSCG) is a global leader in innovative LED lighting solutions that designs, manufactures and brings to market the most advanced and intelligent products for both consumer, professional and retail applications. By inventing breakthrough, award-winning, LED lamps and lighting fixtures that truly work in sync with nature, we follow one of our core values by being committed to unleash the science of light to make people, and our planet, look, feel and heal better. Lighting Science Group is headquartered in Melbourne, FL, with an Asian office located in Hong Kong, China. Find out more at www.lsgc.com and join us on Twitter, Facebook, LinkedIn and the Lighting Science blog.

About Serengeti Asset Management

Serengeti Asset Management is an opportunistic, value-based investment firm with $1.5 billion of assets under management. Serengeti focuses on debt and equity investments in out-of-favor asset classes and sectors and complex situations. This often involves companies going through a transformative catalyst, operational turnaround, or liquidation. This can include special situation equities, distressed debt, stressed corporate credit and off-the-run structured credit.

Forward Looking Statements

Certain statements in this press release may constitute “forward-looking statements” made under the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. These statements include, but are not limited to, statements concerning the anticipated growth of the LED lighting market and the performance of Lighting Science Group and its products and/or use terminology such as “achieve,” “anticipate,” “believe,” “estimate,” “expect,” “goal,” “intend,” “plan,” “project,” “seek,” “target,” “will,” “agenda,” “continue” and variations of such words and similar expressions. Such statements reflect the current view of Lighting Science Group with respect to future events and are subject to certain risks, uncertainties and assumptions. Known and unknown risks, uncertainties and other factors could cause actual results to differ materially from those contemplated by these statements. In evaluating these statements, you should carefully review the risk factors detailed under “Risk Factors” in our most recent filings with the Securities and Exchange Commission that may cause our actual results to differ materially from these forward-looking statements.

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