Form 8-K Ceres, Inc. For: Jun 16

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June 17, 2016 9:07 AM EDT

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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

June 16, 2016
Date of Report (Date of earliest event reported)

CERES, INC.
(Exact name of registrant as specified in its charter)

Delaware

(State of Incorporation)

001-35421

(Commission File Number)

33-0727287

(I.R.S. Employer

Identification Number)

1535 Rancho Conejo Boulevard
Thousand Oaks, CA 91320
(Address of Principal Executive Offices) (Zip Code)

(805) 376-6500
(Registrant’s Telephone Number, Including Area Code)

N/A
(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:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ 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))

Item 1.01. Entry into a Material Definitive Agreement.

Merger Agreement

On June 16, 2016, Ceres, Inc., a Delaware corporation (the “Company”), Land O’Lakes, Inc., a cooperative corporation incorporated under the laws of Minnesota (“Land O’Lakes”), and Roman Merger Sub, Inc., a corporation incorporated under the laws of Delaware (“Merger Sub”) entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Merger Sub will commence a cash tender offer (the “Offer”) to purchase all of the issued and outstanding shares of the common stock, par value $0.01 per share, of the Company (the “Common Shares”) at a price of $0.40 per Common Share in cash (the “Common Offer Price”), without interest and less any applicable withholding taxes. Subject to the terms and conditions of the Merger Agreement, following the consummation of the Offer, Merger Sub will be merged with and into the Company (the “Merger”), with the Company as the surviving corporation as a wholly-owned subsidiary of Land O’Lakes.

The obligation of Merger Sub to purchase Common Shares tendered in the Offer is subject to certain conditions, including, among others, the following: (i) the Company’s stockholders shall have validly tendered and not validly withdrawn in the Offer the number of Common Shares (not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depositary for the Offer in full settlement or satisfaction of such guarantee) which, when added to the Common Shares then owned by Merger Sub, would represent one Common Share more than one half of all Common Shares outstanding immediately prior to the time Merger Sub, for the first time, irrevocably accepts for payment Common Shares validly tendered and not withdrawn pursuant to the Offer (the “Offer Acceptance Time”) (for the avoidance of doubt, including in the number of Common Shares outstanding immediately prior to the Offer Acceptance Time (a) to the extent that the Company has received a notice of conversion with respect to any Series A-1 Convertible Preferred Stock, par value $0.01 per share, of the Company (the “Preferred Shares”) prior to the Offer Acceptance Time, the Common Shares issuable upon conversion of such Preferred Shares, (b) to the extent the Company has received a notice of conversion with respect to any warrants to purchase Common Shares (“Company Warrants”) prior to the Offer Acceptance Time, the Common Shares that the Company would be required to issue upon the exercise of such Company Warrants and (c) to the extent the Company has received a notice of exercise with respect to any options to purchase Common Shares (“Company Options”) prior to the Offer Acceptance Time, the Common Shares that the Company would be required to issue upon the exercise of such Company Options) (the “Minimum Condition”), (ii) the absence of a material adverse effect with respect to the Company and (iii) certain other customary conditions. The consummation of the Offer is not subject to any financing condition.

At the effective time of the Merger (the “Effective Time”), each Common Share issued and outstanding (excluding Common Shares held by a holder who has properly demanded appraisal and otherwise complied with the provisions of Section 262 of the Delaware General Corporation Law (the “DGCL”) and has not effectively withdrawn or lost such holder’s rights to appraisal (such shares being referred to collectively as the “Dissenting Shares”)) will be converted into the right to receive a cash amount equal to the Common Offer Price, without interest thereon (the “Common Consideration”), subject to any applicable withholding or other taxes and certain other amounts specified in the Merger Agreement. At the Effective Time, all of the issued and outstanding Preferred Shares (excluding the Dissenting Shares) will be converted into the right to receive a cash amount equal to $1,000.00 per share in cash, without interest and subject to any applicable withholding or other taxes and certain other amounts specified in the Merger Agreement.

At the Effective Time, each outstanding Company Option will be cancelled and converted into the right to receive an amount in cash (subject to any applicable withholding or other taxes and certain other amounts specified in the Merger Agreement) equal to the product of (i) the total number of Common Shares subject to such Company Option and (ii) the excess, if any, of the Common Consideration over the exercise price of the Common Shares previously subject to such Company Option.

The Company has issued certain restricted Common Shares (“Restricted Shares”) under its incentive plans. At the Effective Time, each Restricted Share will be cancelled and converted into the right to receive an amount in cash (subject to any applicable withholding or other taxes and certain other amounts specified in the Merger Agreement) equal to the Common Consideration payable in connection with the Restricted Shares.

At the Effective Time, each holder of certain unexpired and unexercised Company Warrants that include provisions entitling the warrant holder to receive a “Black Scholes Value”, as defined in the applicable warrant agreement (each such warrant a “BSV Warrant”), will be entitled to receive either (x) an amount of cash equal to the product of (1) the aggregate number of Common Shares for which such BSV Warrant was exercisable immediately prior to the effective time of the Merger and (2) the excess, if any, of the Common Consideration over the per share exercise price under such BSV Warrant, or (y) at the holder’s option, exercisable at any time concurrently with, or within thirty (30) days following, the Effective Time, an amount in cash equal to the “Black Scholes Value” calculated pursuant to the terms of the applicable warrant agreement. At the Effective Time, each unexpired and unexercised Company Warrant that is not a BSV Warrant will be entitled to receive an amount of cash equal to the product of (I) the aggregate number of Common Shares for which such Company Warrant was exercisable immediately prior to the effective time of the Merger and (II) the excess, if any, of the Common Consideration over the per share exercise price under such Company Warrant. The aggregate amount payable in connection with the Merger with respect to the Company Warrants is expected to be approximately $6.1 million.

The Merger will be governed by Section 251(h) of the DGCL, with no stockholder vote required to consummate the Merger, provided that subject to the terms of the Merger Agreement, under certain circumstances Land O’Lakes may cause the Merger Agreement to be governed by Section 253 of the DGCL. The Company has granted to Merger Sub an irrevocable option (the “Top-Up Option”), if necessary, to purchase at a price per share equal to the Common Offer Price from the Company up to a number of Common Shares (the “Top-Up Shares”) that, when added to the number shares of Common Shares already owned by Merger Sub as promptly as practicable after the Offer Acceptance Time, would represent at least ninety percent (90%) of the Common Shares outstanding immediately after giving effect to the issuance of the Top-Up Shares. Merger Sub will exercise the Top-Up Option as promptly as practicable after the Offer Acceptance Time if (i) certain specified triggering events occur, (ii) the Offer Acceptance Time has occurred, (iii) the Minimum Condition has been satisfied, and (iv) Merger Sub does not hold Common Shares representing at least ninety percent (90%) of the Common Shares then outstanding. The parties have agreed that if the Top-Up Option is exercised, the parties will use their best efforts to cause the Merger to be completed in accordance with Section 253 of the DGCL as promptly as possible following the issuance of the Top-Up Shares on the same day as the closing of the purchase of the Top-Up Shares. At the closing of the purchase of the Top-Up Shares, the purchase price for the Top-Up Shares shall be paid to the Company, at Merger Sub’s option, either fully in cash or by (i) paying an amount in cash equal to not less than the aggregate par value of the Top-Up Shares and (ii) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price of the Top-Up Shares less the amount paid in cash for the Top-Up Shares at the Top-Up Shares closing.

The Merger Agreement includes customary representations, warranties and covenants of the parties customary for a transaction of this nature, including covenants (i) to as promptly as reasonably practicable effect all registrations, filings and submissions required pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and other applicable laws with respect to the Offer and the Merger, (ii) for each of the parties to use their reasonable best efforts to take, or cause to be taken, all appropriate action to consummate and make effective the Offer, the Merger and the other transactions contemplated by the Merger Agreement, (iii) for the Company to conduct its business in the ordinary course and to be bound by customary restrictions relating to the operation of its business until the effective time of the Merger or termination of the Merger Agreement, and (iv) for the Company not to solicit third party proposals relating to alternative transactions or provide information or enter into discussions in connection with alternative transactions, subject to exceptions to permit the Board of Directors of the Company (the “Company Board”) to comply with its fiduciary duties.

The Merger Agreement includes certain termination provisions for both the Company and Land O’Lakes and provides that, in connection with the termination of the Merger Agreement under certain specified circumstances, the Company may be required to pay Land O’Lakes a termination fee of $695,000.

The Merger Agreement has been unanimously approved by the Company Board and the board of directors of Land O’Lakes, and the Company Board has unanimously recommended that the holders of Common Shares tender their Common Shares in the Offer.

Tender and Support Agreement

In connection with the Merger Agreement, Land O’Lakes and the Company’s directors and certain of the Company’s officers, who collectively beneficially own approximately 1.16% of the outstanding Common Shares, have entered into tender and support agreements dated as of June 16, 2016 (the “Tender and Support Agreement”). The Tender and Support Agreements provide, among other things, that the Company directors and officers party thereto shall (i) validly tender all of their Common Shares in the Offer and (ii) vote against and not consent to any competing acquisition proposal, any extraordinary transaction involving the Company other than the Merger, or any corporate action that would frustrate, prevent or delay the transactions contemplated by the Merger Agreement. The Company stockholders party to the Tender and Support Agreements have also agreed not to withdraw tendered Common Shares unless Land O’Lakes terminates the Offer in accordance with the terms of the Merger Agreement, or the Tender and Support Agreement has been terminated in accordance with its terms.

The foregoing summaries of (i) the Merger Agreement and the transactions contemplated thereby, and (ii) the Tender and Support Agreements and the transactions contemplated thereby, in each case, do not purport to be complete and are subject to, and qualified in their entirety by the Merger Agreement, attached hereto as Exhibit 2.1, and the Form of Tender and Support Agreement, attached hereto as Exhibit 99.1, which are incorporated herein by reference.

The representations and warranties of the Company contained in the Merger Agreement have been made solely for the benefit of Land O’Lakes and Merger Sub. In addition, such representations and warranties (i) have been made only for purposes of the Merger Agreement, (ii) have been qualified by documents filed with, or furnished to, the Securities and Exchange Commission (the “SEC”) by the Company prior to the date of the Merger Agreement, (iii) have been qualified by confidential disclosures made to Land O’Lakes and Merger Sub in connection with the Merger Agreement, (iv) are subject to materiality qualifications contained in the Merger Agreement which may differ from what may be viewed as material by investors, (v) were made only as of the date of the Merger Agreement or such other date as is specified in the Merger Agreement and (vi) have been included in the Merger Agreement for the purpose of allocating risk between the contracting parties rather than establishing matters as facts. Accordingly, the Merger Agreement is included with this filing only to provide investors with information regarding the terms of the Merger Agreement, and not to provide investors with any other factual information regarding the Company or its subsidiaries or business. Investors should not rely on the representations and warranties or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or business. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Company that has been, is or will be contained in, or incorporated by reference into, the Forms 10-K, Forms 10-Q, Forms 8-K, proxy statements and other documents that the Company files with the SEC.

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

On June 16, 2016, the Company Board approved the Company’s Second Amended and Restated Bylaws (the “Second Amended and Restated Bylaws”), effective immediately. The Second Amended and Restated Bylaws amend and restate in their entirety the Company’s Amended and Restated Bylaws to include a new Article VIII, which, unless the Company consents in writing, establishes certain Delaware courts as the exclusive forum for certain types of claims involving the Company.

The foregoing summary is subject to, and qualified in its entirety by, the full text of the Second Amended and Restated Bylaws, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference into this Item 5.03.

Item 8.01. Other Events.

On June 17, 2016, the Company and Land O’Lakes issued a joint press release announcing their entry into the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.2.

Cautionary Statement Regarding Forward-Looking Statements

This Current Report on Form 8-K contains forward-looking statements related to Ceres, Inc., including statements about the proposed acquisition of the Company by Land O’Lakes, the parties’ ability to close the proposed transaction and the expected closing date of the proposed transaction. Statements in this Current Report on Form 8-K that are not historical or current facts are forward-looking statements. All forward-looking statements in this Current Report on Form 8-K are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements are not guarantees of future performance and involve known and unknown risks, uncertainties and other factors that may cause the Company’s actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. These forward-looking statements include, but are not limited to: statements regarding the planned completion of the Offer and the Merger; statements regarding the anticipated timing of filings and approvals relating to the Offer and the Merger; statements regarding the expected timing of the completion of the Offer and the Merger; statements regarding the ability to complete the Offer and the Merger considering the various closing conditions; and projected financial information. The Company’s actual future results may differ materially from the Company’s current expectations due to the risks and uncertainties inherent in its business. These risks include, but are not limited to: uncertainties as to the timing of the Offer and the Merger; uncertainties as to the percentage of the Company stockholders tendering their Common Shares into the Offer; the possibility that competing offers will be made; the possibility that various closing conditions for the Offer or the Merger may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the Merger; the effects of disruption caused by the transaction making it more difficult to maintain relationships with employees, collaborators, vendors and other business partners; the risk that potential stockholder litigation in connection with the Offer or the Merger may result in significant costs of defense, indemnification and liability; and risks and uncertainties pertaining to the business of the Company, including the risks and uncertainties detailed under “Risk Factors” and elsewhere in the Company’s public periodic filings with the SEC, as well as the tender offer materials filed by Land O’Lakes in connection with the Offer.

Accordingly, no assurances can be given as to whether the Offer and the Merger will be completed or if any of the other events anticipated by the forward-looking statements will occur or what impact they will have. Forward-looking statements speak only as of the date hereof and you are cautioned not to place undue reliance on these forward-looking statements. All forward-looking statements are qualified in their entirety by this cautionary statement and the Company undertakes no obligation to revise or update this report to reflect events or circumstances after the date hereof, except as required by law.

Additional Information and Where to Find It

The Offer described in this Current Report on Form 8-K and the press release attached as Exhibit 99.2 to this Current Report on Form 8-K has not yet commenced. Neither this Current Report on Form 8-K nor the information incorporated herein by reference is an offer to purchase or a solicitation of an offer to sell any Common Shares or any other securities of the Company. On the commencement date of the Offer, Land O’Lakes and Merger Sub, will file a tender offer statement on Schedule TO (“Schedule TO”), including an offer to purchase, a letter of transmittal and related documents, with the SEC. At or around the same time, the Company will file a statement on Schedule 14D-9 (“Schedule 14D-9”) with the SEC. Investors and security holders are urged to read, carefully and in their entirety, both the Schedule TO and the Schedule 14D-9 regarding the Offer, as each may be amended from time to time, and any other documents relating to the Offer that are filed with the SEC, when they become available because they will contain important information relevant to making any decision regarding tendering Common Shares. These materials will be sent free of charge to all stockholders of the Company when available. In addition, all of these materials (and all other materials filed by the Company with the SEC) will be available at no charge from the SEC through its website at www.sec.gov. The Company’s reports, proxy statements and other information are also made available, free of charge, on the Company’s investor relations website at http://investor.ceres.net as soon as reasonably practicable after the Company electronically files such information with the SEC. References to the Company’s corporate website address in this Current Report on Form 8-K are intended to be inactive textual references only, and none of the information contained on the Company’s website is part of this report or incorporated in this report by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.		Description of Exhibit
2.1		Agreement and Plan of Merger, dated as of June 16, 2016, by and among Ceres, Inc., Land O’Lakes, Inc. and Roman Merger Sub, Inc.
3.1		Second Amended and Restated Bylaws of Ceres, Inc., dated June 16, 2016
99.1		Form of Tender and Support Agreement, dated as of June 16, 2016 (with schedule of parties attached)
99.2		Joint Press Release issued by Ceres, Inc. and Land O’Lakes, Inc., dated as of June 17, 2016

SIGNATURES

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

	CERES, INC.

Date: June 17, 2016	By:	/s/ Paul Kuc
	Name: Paul Kuc
	Title: Chief Financial Officer

Exhibit Index

Exhibit No.		Description of Exhibit
2.1		Agreement and Plan of Merger, dated as of June 16, 2016, by and among Ceres, Inc., Land O’Lakes, Inc. and Roman Merger Sub, Inc.
3.1		Second Amended and Restated Bylaws of Ceres, Inc., dated June 16, 2016
99.1		Form of Tender and Support Agreement, dated as of June 16, 2016 (with schedule of parties attached)
99.2		Joint Press Release issued by Ceres, Inc. and Land O’Lakes, Inc., dated as of June 17, 2016

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

LAND O’LAKES, INC.,

ROMAN MERGER SUB, INC.

and

CERES, INC.

dated as of June 16, 2016

TABLE OF CONTENTS

			Page

Article I THE OFFER			2

	Section 1.1	The Offer	2
	Section 1.2	Top-Up Option.	5
	Section 1.3	Company Actions	6
	Section 1.4	Directors	8

Article II THE MERGER			8

	Section 2.1	The Merger	8
	Section 2.2	Closing; Effective Time	8
	Section 2.3	Merger Without Meeting of Stockholders	9
	Section 2.4	Governing Documents; Directors and Officers	9
	Section 2.5	Conversion of Shares	9
	Section 2.6	Surrender of Certificates	10
	Section 2.7	Appraisal Rights	13
	Section 2.8	Treatment of Company Options; Restricted Shares; Stock Plans	13
	Section 2.9	Treatment of Warrants	14
	Section 2.10	Withholding	15
	Section 2.11	Further Action	15

Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY			16

	Section 3.1	Qualification, Organization, etc.	16
	Section 3.2	Capitalization, Subsidiaries	16
	Section 3.3	Corporate Authority Relative to this Agreement; No Violation; Governmental Authorizations	18
	Section 3.4	Reports and Financial Statements	19
	Section 3.5	No Undisclosed Liabilities	20
	Section 3.6	Off-Balance Sheet Arrangements	20
	Section 3.7	Compliance with Laws; Permits	21
	Section 3.8	Environmental Laws and Regulations	21
	Section 3.9	Employee Benefit Plans	22
	Section 3.10	Absence of Certain Changes or Events	24
	Section 3.11	Investigation; Litigation	25
	Section 3.12	Tax Matters	25
	Section 3.13	Labor Matters	27
	Section 3.14	Intellectual Property	29
	Section 3.15	Real Property	32
	Section 3.16	Material Contracts	32
	Section 3.17	Insurance	34
	Section 3.18	Finders and Brokers	35
	Section 3.19	Fairness Opinion	35
	Section 3.20	Information Supplied	35

	Section 3.21	Inapplicability of Takeover Laws	35
	Section 3.22	Vote Required	35
	Section 3.23	Foreign Corrupt Practices	36
	Section 3.24	USDA	36
	Section 3.25	No Other Representations	36

Article IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB			37

	Section 4.1	Qualification, Organization, Subsidiaries, etc.	37
	Section 4.2	Corporate Authority Relative to this Agreement; No Violation	37
	Section 4.3	Compliance with Law	38
	Section 4.4	Information Supplied	38
	Section 4.5	Sufficiency of Funds; Solvency	38
	Section 4.6	Investigations; Litigation	39
	Section 4.7	Finders and Brokers	39
	Section 4.8	Stock Ownership	39
	Section 4.9	No Merger Sub Activity	39
	Section 4.10	No Other Representations	39

Article V COVENANTS RELATING TO CONDUCT OF BUSINESS PENDING THE CLOSING			40

	Section 5.1	Conduct of Business by the Company Pending the Closing	40
	Section 5.2	No Solicitation	43
	Section 5.3	Persephone Divestiture Transaction	47

Article VI ADDITIONAL AGREEMENTS			47

	Section 6.1	Access; Confidentiality; Notice of Certain Events	47
	Section 6.2	Reasonable Best Efforts	48
	Section 6.3	Publicity	49
	Section 6.4	Directors’ and Officers’ Insurance and Indemnification	50
	Section 6.5	Takeover Statutes	51
	Section 6.6	Obligations of Merger Sub	51
	Section 6.7	Employee Benefits Matters	51
	Section 6.8	Security Holder Litigation	52
	Section 6.9	Delisting	53
	Section 6.10	Company Certificate Amendment	53
	Section 6.11	Rule 14d-10 Matters	53
	Section 6.12	Section 16 Matters	53

Article VII CONDITIONS TO CONSUMMATION OF THE MERGER			54

	Section 7.1	Conditions to Each Party’s Obligations to Effect the Merger	54
	Section 7.2	Frustration of Conditions	54

Article VIII TERMINATION			54

	Section 8.1	Termination	54
	Section 8.2	Effect of Termination	56

Article IX MISCELLANEOUS			57

	Section 9.1	Amendment and Modification; Waiver	57
	Section 9.2	Non-Survival of Representations and Warranties	57
	Section 9.3	Expenses	58
	Section 9.4	Notices	58
	Section 9.5	Certain Definitions	59
	Section 9.6	Interpretation	70
	Section 9.7	Counterparts	71
	Section 9.8	Entire Agreement; Third-Party Beneficiaries	71
	Section 9.9	Severability	72
	Section 9.10	Governing Law; Jurisdiction	72
	Section 9.11	Waiver of Jury Trial	72
	Section 9.12	Assignment	73
	Section 9.13	Enforcement; Remedies	73
	Section 9.14	Non-Recourse	73

EXHIBIT A	FORM OF TENDER AND SUPPORT AGREEMENT
EXHIBIT B	CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
EXHIBIT C	BYLAWS OF SURVIVING CORPORATION

iii

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated June 16, 2016, is by and among LAND O’LAKES, INC., a cooperative corporation incorporated under the laws of Minnesota (“Parent”), Roman Merger Sub, Inc., a corporation incorporated under the laws of Delaware (“Merger Sub”) and CERES, INC., a corporation incorporated under the laws of Delaware (the “Company”). All capitalized terms used in this Agreement shall have the meanings ascribed to such terms in Section 9.5 or as otherwise defined elsewhere in this Agreement unless the context clearly provides otherwise. Parent, Merger Sub and the Company are each sometimes referred to as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, Merger Sub has agreed to commence a cash tender offer (as it may be extended, amended and supplemented from time to time as permitted or required under this Agreement, the “Offer”) to acquire any (subject to the Minimum Condition) and all of the issued and outstanding shares of the Company’s common stock, par value $0.01 per share (“Common Shares”) for $0.40 per Common Share (such amount or any different amount per share paid pursuant to the Offer (to the extent permitted under this Agreement), including as a result of any adjustments pursuant to Section 1.1(f), the “Common Offer Price”), net to the holder thereof in cash, without interest and subject to the conditions set forth in this Agreement, including any required Tax withholding.

WHEREAS, following the consummation of the Offer, upon the terms and subject to the conditions set forth herein, Merger Sub shall be merged with and into the Company (the “Merger”), with the Company as the surviving corporation (the “Surviving Corporation”), in accordance with the DGCL, whereby each Common Share, except as otherwise provided herein, shall be converted into the right to receive the Common Offer Price and each outstanding share of the Company’s Series A-1 Convertible Preferred Stock, par value $0.01 per share (the “Preferred Shares” and together with the Common Shares, the “Shares”), except as otherwise provided herein, shall be converted into the right to receive a cash amount equal to (A) the Common Consideration (as defined herein) multiplied by (B) 2,500 (appropriately adjusted to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Common Shares), reorganization, recapitalization or other like change with respect to the Common Shares or Preferred Shares occurring after the date hereof and prior to the Effective Time) (the “Preferred Consideration”), in each case, net to the holder thereof in cash, without interest and subject to the conditions set forth in this Agreement, including any required Tax withholding.

WHEREAS, the Board of Directors of the Company (the “Company Board”) has unanimously determined that this Agreement and the Transactions are advisable and fair to and in the best interests of the Company’s stockholders, has unanimously approved this Agreement and the Transactions in accordance with the DGCL, and has unanimously resolved to recommend that the holders of Common Shares accept the Offer and tender their Common Shares to Merger Sub pursuant to the Offer.

WHEREAS, the Board of Directors of Parent (the “Parent Board”) has approved and declared advisable this Agreement and the Transactions.

WHEREAS, the Board of Directors of Merger Sub has determined that this Agreement and the Transactions are advisable and fair to and in the best interests of Merger Sub and its sole stockholder, and has approved this Agreement and the Transactions.

WHEREAS, the Merger shall be governed by Section 251(h) of the DGCL unless the Merger is to be effected pursuant to Section 253 of the DGCL pursuant to the terms of this Agreement, and the Merger shall be effected as soon as practicable following the consummation of the Offer upon the terms and subject to the conditions set forth in this Agreement.

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent’s and Merger Sub’s willingness to enter into this Agreement, the Company’s directors and certain of the Company’s officers are executing and delivering tender and support agreements in favor of Parent and Merger Sub in the form attached as Exhibit A hereto (the “Tender and Support Agreements”) pursuant to which those directors and officers, among other things, will agree to tender all Common Shares beneficially owned by them to Merger Sub in response to the Offer.

WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also prescribe various conditions to the Transactions.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree as follows:

AGREEMENT

Article I

THE OFFER

Section 1.1 The Offer.

(a) Provided that this Agreement has not been terminated in accordance with Article VIII, as promptly as practicable after the date of this Agreement, but in no event more than ten (10) Business Days after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, that Merger Sub shall not be required to commence the Offer if the Company shall not be prepared to file the Schedule 14D-9 with the SEC substantially contemporaneously with Merger Sub’s filing of the Offer Documents with the SEC.

(b) Upon the terms and subject to the conditions set forth in this Agreement, including the prior satisfaction of the Minimum Condition (as defined in Annex I) and the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment, and promptly thereafter pay for, all Common Shares validly tendered and not validly withdrawn pursuant to the Offer.

(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Common Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company (which the Company may withhold in its sole discretion), Merger Sub shall not (A) decrease the Common Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Common Shares subject to the Offer; (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and Merger Sub may waive the Minimum Condition only with the prior written consent of the Company (which the Company may withhold in its sole discretion). The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with Article VIII.

(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) at the end of the day on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer has been extended beyond the Initial Expiration Date pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (such Initial Expiration Date, or such later date and time to which the Offer has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”).

(e) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows: (i) if on the applicable Expiration Date, any of the Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub shall extend the Offer for successive periods of not more than ten (10) Business Days each (as determined by Merger Sub), or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or Nasdaq or its staff. Nothing in this Section 1.1(e) shall (A) require Merger Sub to, and without the Company’s prior written consent (which the Company may withhold in its sole discretion) Merger Sub shall not be permitted to, extend the Offer beyond the End Date or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the Parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Merger Sub shall extend the Offer in any manner other than pursuant to and in accordance with the provisions of this Section 1.1(e) without the prior written consent of the Company (which the Company may withhold in its sole discretion).

(f) The Common Offer Price shall be adjusted proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Shares or Preferred Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Common Offer Price shall provide to the holders of Common Shares the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.

(g) Neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated in accordance with the terms hereof, then Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer, and shall cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Common Shares to the registered holders thereof.

(h) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall contain or incorporate by reference the Offer to Purchase and form of the related letter of transmittal and summary advertisement, if any, and any other ancillary Offer documents and instruments pursuant to which the Offer shall be made, and (ii) cause the Offer to Purchase and related documents to be disseminated to all holders of Common Shares. Parent and Merger Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (collectively, the “Offer Documents”) filed by either Parent or Merger Sub with the SEC to comply, in all material respects, with the Exchange Act and other applicable Law. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it or any of its Representatives for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and shall supplement the information contained in the Offer Documents to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub further shall use their best efforts to promptly cause the Offer Documents as so corrected or supplemented to be filed with the SEC and to promptly be disseminated to holders of Common Shares, in each case as and to the extent required by applicable Law. The Company shall promptly furnish or otherwise make available in writing to Parent and Merger Sub or Parent’s legal counsel all information concerning the Company and the Company’s stockholders that is required by applicable Law or is reasonably requested by Parent to be included in the Offer Documents. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.

(i) Parent shall cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any Common Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.

Section 1.2 Top-Up Option.

(a) Subject to the immediately succeeding sentence, the Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only on the terms and conditions set forth in this Section 1.2, to purchase from the Company, at a price per share equal to the Common Offer Price, that number of Common Shares (the “Top-Up Shares”) that, when added to the Common Shares owned by Merger Sub at the Top-Up Exercise Time (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository for the Offer in full settlement or satisfaction of such guarantee)), would represent at least ninety percent (90%) of the Common Shares outstanding immediately after giving effect to the issuance of the Top-Up Shares. Merger Sub shall exercise the Top-Up Option as promptly as practicable after the Offer Acceptance Time (the date and time of such exercise, the “Top-Up Exercise Time”) if, but shall only exercise the Top-Up Option if, (i) a Triggering Event shall have occurred, (ii) the Offer Acceptance Time shall have occurred, (iii) the Minimum Condition has been satisfied, and (iv) Merger Sub shall not hold Common Shares (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository for the Offer in full settlement or satisfaction of such guarantee)) representing at least ninety percent (90%) of the Common Shares then outstanding. On the day of the Top-Up Exercise Time, Merger Sub shall give the Company written notice specifying the number of Common Shares directly or indirectly owned by Merger Sub at the time of such notice (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository for the Offer in full settlement or satisfaction of such guarantee)) and the number of Top-Up Shares. The Top-Up Option shall automatically terminate upon the earlier to occur of (x) the Effective Time and (y) the termination of this Agreement in accordance with Article VIII.

(b) At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place in the manner specified in Section 2.2 on a date specified by Parent, the purchase price owed by Merger Sub to the Company therefor shall be paid to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price of the Top-Up Shares less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first (1st) anniversary of the Top-Up Closing, (ii) shall bear simple interest at a rate equal to five percent (5%) per annum, (iii) shall be full recourse to Parent and Merger Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares.

(c) Parent and Merger Sub acknowledge that the Top-Up Shares that Merger Sub may acquire at the Top-Up Closing will not be registered under the Securities Act and will be issued in reliance upon an applicable exemption from registration under the Securities Act. Each of Parent and Merger Sub hereby represents and warrants to the Company that Merger Sub will be, upon the purchase of the Top-Up Shares, an “accredited investor”, as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the Top-Up Shares to be acquired at the Top-Up Closing are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

(d) Any dilutive impact on the value of Shares as a result of the issuance of the Top-Up Shares shall not be taken into account in any determination of the fair value of any Dissenting Shares pursuant to Section 262 of the DGCL.

(e) The Parties hereto agree that, if the Top-Up Option is exercised, they shall use their best efforts to cause the Merger to be consummated in accordance with Section 253 of the DGCL as promptly as possible following the issuance of the Top-Up Shares on the same day as the Top-Up Closing.

Section 1.3 Company Actions.

(a) The Company hereby approves and consents to the Offer and represents and warrants that the Company Board, at a meeting duly called and held, has by a unanimous vote of directors (i) determined that this Agreement and the Transactions are advisable and fair to and in the best interests of the Company’s stockholders, (ii) approved and declared advisable this Agreement and the Transactions in accordance with the requirements of the DGCL, (iii) resolved to recommend that holders of Common Shares accept the Offer and tender their Common Shares pursuant to the Offer (such recommendation, the “Company Board Recommendation”), and (iv) adopted a resolution having the effect of causing the restrictions contained in Section 203 of the DGCL applicable to a “business combination” (as defined in such Section 203) not to apply to the execution, delivery or performance of this Agreement, the Tender and Support Agreements and the consummation of the Offer, the Merger and the other Transactions. Subject to Section 5.2, the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents.

(b) Substantially contemporaneously with the filing of the Schedule TO, the Company shall file with the SEC and disseminate to all holders of Shares, in each case, as and to the extent required by applicable Law, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any exhibits, amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 5.2, shall include the Company Board Recommendation and shall contain (i) the notice of appraisal rights required to be delivered by the Company under Section 262(d)(2) of the DGCL, (ii) the opinion of the financial advisor referred to in Section 3.19 and (iii) a summary of the financial analysis conducted by such financial advisor in accordance with applicable Law. The Company shall affirmatively set a record date for the Company’s stockholders to receive such notice of appraisal rights in accordance with Section 262(d)(2) of the DGCL and shall disseminate the Schedule 14D-9, including such notice of appraisal rights, to the Company’s stockholders as of such record date. The Company agrees that it shall cause the Schedule 14D-9 to comply, in all material respects, with the Exchange Act and other applicable Law. Each of Parent, Merger Sub and the Company shall respond promptly to correct any information provided by it or its Representatives for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law and shall supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company further shall cause the Schedule 14D-9 as so corrected or supplemented to promptly be filed with the SEC and to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Merger Sub shall promptly furnish or otherwise make available in writing to the Company or the Company’s legal counsel all information concerning Parent and Merger Sub that is required by applicable Law or may reasonably be requested by the Company to be included in the Schedule 14D-9. Parent and its counsel shall be given reasonable opportunity to review and comment on the Schedule 14D-9 and any amendment thereto prior to the filing thereof with the SEC, and the Company shall give reasonable and good faith considerations to any such comments made by Parent or its counsel. The Company shall provide Parent and its counsel with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9; provided, however, that Parent and its counsel shall be given reasonable opportunity to review and comment on any response to such comments prior to the Company’s filing of any such response with the SEC, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel. The Company shall provide Parent and its legal counsel with reasonable opportunity to participate in any discussions or meetings with the SEC or its staff.

(c) In connection with the Offer, the Company shall, or shall cause its transfer agent to, promptly furnish Parent with a list of the Company’s stockholders of record, non-objecting beneficial holders and, to the extent available, warrant holders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and, to the extent available, Company Warrants and lists of securities positions of Shares and, to the extent available, Company Warrants held in stock depositories, in each case, accurate and complete as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, and, to the extent available, warrant holders, mailing labels and lists of securities positions) and such other assistance as Parent or its Representatives may reasonably request. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions, Parent and Merger Sub shall, and Parent and Merger Sub shall exercise their respective best efforts to cause their respective agents to, hold in confidence the information contained in any such labels, listings and files and shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated, (i) Parent shall promptly deliver to the Company or destroy all copies of and any extracts or summaries from such information then in Parent’s or Merger’s Sub’s possession or control (other than electronic copies retained as part of ordinary course computer back-up processes), (ii) Parent and Merger Sub shall use their respective best efforts to cause their respective agents to deliver to the Company or destroy, all copies of and any extracts or summaries from such information then in their possession or control (other than electronic copies retained as part of ordinary course computer back-up processes), and (iii) Parent shall promptly certify in writing to the Company Parent’s and Merger Sub’s compliance with clauses (i) and (ii) of this sentence.

(d) The Company shall register (and shall instruct its transfer agent to register) the transfer of the Common Shares accepted for payment by Merger Sub effective immediately after the Offer Acceptance Time.

Section 1.4 Directors. To the extent requested by Parent, the Company shall cause each director of the Company immediately prior to the Effective Time to execute and deliver a letter effectuating such Person’s resignation as a member of the Company Board to be effective as of the Effective Time. The Company shall take any action required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. The provisions of this Section 1.4 are in addition to, and shall not limit, any right Merger Sub or Parent, or any of their respective affiliates, may have (with respect to the election of directors or otherwise) under applicable Law as a holder or beneficial holder of shares of the Company’s capital stock.

Article II

THE MERGER

Section 2.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease. The Company shall be the surviving corporation in the Merger, and the separate corporate existence of the Company, with all its rights, privileges, immunities, powers and franchises, shall continue unaffected by the Merger, except as set forth in this Article II. The Merger shall have the effect provided in this Agreement and as specified in the DGCL.

Section 2.2 Closing; Effective Time. Upon the terms and subject to the conditions set forth in this Agreement, the closing of the Merger (the “Closing”) shall take place by electronic exchange of Closing documents in lieu of an in-person Closing at 10:00 a.m. (New York City time), as promptly as practicable following the consummation of the Offer, but in any event no later than the second (2nd) Business Day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) (the date on which the Closing occurs, the “Closing Date”), unless this Agreement has been terminated pursuant to its terms or unless another time or manner of Closing is agreed to by the Parties in writing. Subject to the provisions of this Agreement, (i) a certificate of merger (or, if a Triggering Event has occurred, a certificate of ownership and merger) satisfying the applicable requirements of the DGCL (in either case, the “Certificate of Merger”) shall be duly executed by the Company (or Merger Sub, in the case of a certificate of ownership and merger) and (ii) Parent, Merger Sub and the Company shall cause the Certificate of Merger to be delivered to the DSOS for filing, in each case, as soon as practicable following the Offer Acceptance Time and concurrently with the Closing. The Merger shall become effective upon the filing of the Certificate of Merger with the DSOS or such later time as is agreed upon in writing by the Parties hereto and specified in the Certificate of Merger (such time, the “Effective Time”). From and after the Effective Time, the Surviving Corporation shall possess all the properties, rights, powers, privileges, franchises and be subject to all of the debts, obligations, liabilities, restrictions and disabilities of the Company and Merger Sub, all as provided in the DGCL.

Section 2.3 Merger Without Meeting of Stockholders. The Merger shall be governed by Section 251(h) of the DGCL unless a Triggering Event occurs, in which case, the Merger shall be governed by Section 253 of the DGCL. The Parties hereto shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable following the Offer Acceptance Time, without a meeting of stockholders of the Company in accordance with Section 251(h) of the DGCL or, following a Triggering Event, Section 253 of the DGCL.

Section 2.4 Governing Documents; Directors and Officers.

(a) At the Effective Time, by virtue of the Merger, the Certificate of Incorporation of the Surviving Corporation shall be amended and restated in its entirety to read as set forth in Exhibit B and, as so amended and restated, shall be the Certificate of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law;

(b) At the Effective Time, the Bylaws of the Surviving Corporation shall be amended and restated in their entirety to read as set forth in Exhibit C and, as so amended and restated, shall be the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law; and

(c) The directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are designated as directors and officers of Merger Sub immediately prior to the Effective Time, until their respective death, permanent disability, resignation or removal or until their respective successors are duly elected and qualified.

Section 2.5 Conversion of Shares.

(a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder of the Company:

(i) any Shares held by the Company shall be cancelled and shall cease to exist, and no consideration shall be delivered in exchange therefor;

(ii) any Common Shares irrevocably accepted for purchase in the Offer shall be cancelled and shall cease to exist, and no consideration shall be delivered in exchange therefor;

(iii) except as provided in clauses (i) and (ii) above and subject to Section 2.5(b), each Common Share then issued and outstanding (other than any Dissenting Shares) shall be converted into the right to receive a cash amount equal to the Common Offer Price, without interest thereon (the “Common Consideration” and, together with the Preferred Consideration, the “Merger Consideration”), subject to any withholding of Taxes required by applicable Law in accordance with Section 2.10;

(iv) except as provided in clause (i) above and subject to Section 2.5(b), each Preferred Share then issued and outstanding (other than Dissenting Shares) shall be converted to the right to receive a cash amount equal to the Preferred Consideration without interest thereon, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.10 (for the avoidance of doubt, the Merger Consideration will be appropriately adjusted to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Common Shares), reorganization, recapitalization or other like change with respect to the Common Shares or Preferred Shares occurring after the date hereof and prior to the Effective Time); and

(v) each share of common stock, $0.01 par value per share, of Merger Sub then issued and outstanding shall be converted into one (1) fully paid and nonassessable share of common stock of the Surviving Corporation.

(b) At the Effective Time, all Shares converted pursuant to Section 2.5(a)(iii) or Section 2.5(a)(iv) shall cease to be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of any certificates evidencing such Shares (the “Certificates”) or non-certificated Shares represented by book-entry (“Book-Entry Shares”) immediately prior to the Effective Time shall cease to have any rights with respect thereto, except the right to receive the applicable Merger Consideration therefor.

Section 2.6 Surrender of Certificates.

(a) Prior to the Offer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Paying Agent”) for the holders of Shares to receive the funds to which holders of such Shares shall become entitled pursuant to this Agreement. At the Closing, Parent shall deposit or cause to be deposited with the Paying Agent sufficient funds to pay the aggregate Merger Consideration payable in respect of the Shares (the “Payment Fund”). To the extent the Payment Fund diminishes for any reason below the level required to make prompt payment of the amounts described in the preceding sentence, Parent and Merger Sub shall, or shall cause the Surviving Corporation to, promptly replace or restore the lost portion of such fund so as to ensure that it is maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that no such investment or losses thereon shall relieve Parent from making the payments required by this Article II or affect the amount of Merger Consideration payable in respect of the Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses. Any and all interest or other amounts earned with respect to such funds shall be paid to Parent. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares and the payment of the Merger Consideration in respect of the Shares.

(b) Promptly after the Effective Time, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each Person who was, immediately prior to the Effective Time, a holder of record of Shares entitled to receive any Merger Consideration pursuant to Section 2.5(a)(iii) or Section 2.5(a)(iv) (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent) and (ii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares pursuant to such letter of transmittal. Upon (A) surrender to the Paying Agent of Certificates, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, or (B) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares, the holder of such Certificates or Book-Entry Shares, as applicable, shall be entitled to receive in exchange therefor the applicable Merger Consideration for each Share formerly evidenced by such Certificates or Book-Entry Shares, as applicable, and such Certificates and Book-Entry Shares, as applicable, shall then be cancelled. No interest shall accrue or be paid on the applicable Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing Shares are registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the applicable Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered.

(c) At any time following the date that is six (6) months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds which had been made available to the Paying Agent and not disbursed to holders of Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat and other similar Law) as general creditors thereof with respect to the applicable Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificates or Book-Entry Shares for the applicable Merger Consideration delivered in respect of such share to a public official pursuant to any applicable abandoned property, escheat or other similar Law. If any Certificate or Book-Entry Share has not been surrendered or transferred prior to the date that is six (6) years after the Effective Time (or such earlier date on which the applicable Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity), then any such Merger Consideration in respect of such Certificate or Book-Entry Share shall become, to the extent permitted by applicable Law, the property of the Surviving Corporation, free and clear of any claims or interest of any Person previously entitled thereto.

(d) No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares.

(e) All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificate or Book-Entry Shares. At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Law. If, after the Effective Time, any Certificate or Book-Entry Share is presented to the Surviving Corporation, Parent or the Paying Agent for surrender or transfer, as applicable, it shall be cancelled and exchanged for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this Section 2.6.

(f) If any Certificate has been lost, stolen or destroyed, then, upon the making of an effective affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, which includes an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with (i) the inaccuracy of any statement or the breach of any representation or warranty set forth in such affidavit, and (ii) any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by Parent, the Surviving Corporation or the Paying Agent, the posting by such Person of a bond in customary amount as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate a check in the amount (after giving effect to any required Tax withholdings as provided in Section 2.10) equal to the Merger Consideration payable in respect of the Shares formerly represented by such lost, stolen or destroyed Certificate.

Section 2.7 Appraisal Rights.

(a) Notwithstanding anything in this Agreement to the contrary and, subject to Section 1.2(d), Shares (other than Shares cancelled in accordance with Section 2.5(a)(i) and Section 2.5(a)(ii)), if any, as to which the holder thereof shall have (i) properly demanded appraisal and otherwise complied with the provisions of Section 262 of the DGCL (“Section 262”) and (ii) not effectively withdrawn or lost such holder’s rights to appraisal (each, a “Dissenting Share”), shall not be converted into the right to receive the applicable Merger Consideration payable pursuant to Section 2.5, but instead at the Effective Time shall become entitled only to payment of the fair value of such Shares determined in accordance with Section 262 (it being understood and acknowledged that at the Effective Time, such Dissenting Shares shall no longer be outstanding, shall automatically be cancelled and shall cease to exist, and such holder shall cease to have any rights with respect thereto other than the right to receive the fair value of such Dissenting Shares as determined in accordance with Section 262); provided, however, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to payment of the fair value of such Dissenting Shares under Section 262, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares shall cease and such Dissenting Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for the right to receive, without interest or duplication, the applicable Merger Consideration.

(b) The Company shall give prompt notice to Parent of any demands received by the Company for appraisal of any Shares, of any withdrawals of such demands and of any other instruments received by the Company under Section 262, and Parent shall have the opportunity to participate (at its own expense) in all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or compromise or offer to settle or compromise, any such demand, or agree to do any of the foregoing.

Section 2.8 Treatment of Company Options; Restricted Shares; Stock Plans.

(a) Treatment of Options. At the Effective Time, each option or similar right to purchase Common Shares (the “Company Options”), granted under any stock option plan of the Company, including the Ceres, Inc. 2000 Stock Option/Stock Issuance Plan, the Ceres, Inc. 2010 Stock Option/Stock Issuance Plan and the Second Amended and Restated Ceres, Inc. 2011 Equity Incentive Plan, as amended from time to time, or any other plan, agreement or arrangement (collectively, the “Company Stock Plans”), whether or not such Company Options are then vested or exercisable, shall be, pursuant to the terms of the relevant Company Stock Plan and the stock option agreements evidencing the Company Options, as a result of the Merger, and without any action on the part of Parent, Merger Sub, the Company, the holder of the Company Option or any other Person, cancelled and converted into the right to receive from Parent and the Surviving Corporation, as soon as practicable (but in no event more than five (5) Business Days) following the Effective Time an amount in cash (subject to deduction for any Taxes required to be withheld in accordance with Section 2.10) equal to the product of (A) the total number of Common Shares subject to such Company Option and (B) the excess, if any, of the Common Consideration over the exercise price per share of Common Shares previously subject to such Company Option. Without limiting the foregoing, the Company and the Company Board, or a duly authorized committee thereof, shall adopt appropriate resolutions and take all necessary and appropriate action, including under the Company Stock Plans and the stock option agreements evidencing the Company Options and, to the extent necessary, obtaining consent of the holders of the Company Options, to effectuate the actions contemplated by this Section 2.8(a).

(b) Treatment of Restricted Shares. At the Effective Time, each of the restricted Common Shares (the “Restricted Shares”) awarded under the Company Stock Plans, whether or not such Restricted Shares are then vested or exercisable, shall be, pursuant to the terms of the relevant Company Stock Plan and the restricted stock award agreements evidencing the Restricted Shares, as a result of the Merger and without any action on the part of Parent, Merger Sub, the Company, the holder of the Restricted Share or any other Person, cancelled and converted (without duplication of the conversion contemplated by Section 2.5(a)(iii)) into the right to receive from Parent and the Surviving Corporation as soon as practicable (but in no event more than five (5) Business Days) following the Effective Time an amount in cash (subject to deduction for any Taxes required to be withheld in accordance with Section 2.10) equal to the Common Consideration payable in connection with such Restricted Shares. Without limiting the foregoing, the Company and the Company Board, or a duly authorized committee thereof, shall adopt appropriate resolutions and take all necessary and appropriate action, including under the Company Stock Plans and the restricted stock award agreements evidencing the Restricted Shares and, to the extent necessary, obtaining consent of the holders of the Restricted Shares, to effectuate the actions contemplated by this Section 2.8(b).

(c) Termination of Company Stock Plans. After the Effective Time, all Company Stock Plans shall be terminated and no further Company Options, Restricted Shares or other rights with respect to Shares shall be granted thereunder.

Section 2.9 Treatment of Warrants.

(a) At the Effective Time, the holder of each warrant to purchase Common Shares that is issued, unexpired and unexercised immediately prior to the Effective Time and set forth on Section 2.9(a) of the Company Disclosure Schedule (each such listed warrant, a “BSV Warrant”) shall, pursuant to the terms thereof and as a result of the Merger and without any action on the part of the holder thereof, be entitled to receive, in accordance with the terms of such BSV Warrant as existing at the date hereof, and in lieu of any other amount or consideration to which such holder might otherwise have been entitled to receive pursuant to such BSV Warrant, either (i) upon exercise of such BSV Warrant, an amount of cash equal to the product of (x) the aggregate number of Common Shares for which such BSV Warrant was exercisable immediately prior to the Effective Time and (y) the excess, if any, of the Common Consideration over the per share exercise price under such BSV Warrant, or (ii) at the holder’s option, exercisable at any time concurrently with, or within thirty (30) days following, the Effective Time, an amount in cash equal to the “Black Scholes Value” (as defined in the warrant agreement relating to such BSV Warrant as set forth in Section 3.2(e) of the Company Disclosure Schedule and calculated pursuant to the terms thereof) of such BSV Warrant.

(b) At the Effective Time, each other warrant to purchase Common Shares (each a “Continuing Warrant,” and, together with the BSV Warrants, the “Company Warrants”) that are issued, unexpired and unexercised immediately prior to the Effective Time shall, as a result of the Merger and without any action on the part of any holder of a Continuing Warrant, be entitled to receive, upon exercise of such Continuing Warrant and in accordance with the terms of such Continuing Warrant as existing at the date hereof, and in lieu of any other amount or consideration to which such holder might otherwise have been entitled to receive pursuant to such Continuing Warrant, an amount of cash equal to the product of (x) the aggregate number of Common Shares for which such Continuing Warrant was exercisable immediately prior to the Effective Time and (y) the excess, if any, of the Common Consideration over the per share exercise price under such Continuing Warrant.

(c) At the Effective Time, as a result of the Merger and without any action by the Company, the holder of any Company Warrant or any other Person, all Company Warrants shall be terminated and of no effect for no consideration other than as described in subsections (a) and (b) above. From and after the Effective Time, (i) the holders of Company Warrants shall have no rights as against the Surviving Corporation or any of its affiliates or Representatives, and the Surviving Corporation and its affiliates and Representatives shall have no obligations to the holders of any Company Warrants, other than the rights to receive, or the obligations to make, the payments described in subsections (a) and (b) above, and (ii) Parent shall cause the Surviving Corporation to make the payments with respect to the BSV Warrants and the Continuing Warrants described in such subsections.

(d) Prior to the Closing, the Company shall take all such actions as may be necessary to provide for the treatment of the BSV Warrants and the Continuing Warrants as provided herein, including by providing any notices and taking any other actions (including, to the extent necessary, obtaining any consents) required pursuant to the terms of the BSV Warrants and the Continuing Warrants, to effectuate the actions contemplated by this Section 2.9. Under no circumstances will any interest be payable with respect to the amounts payable in respect of any BSV Warrants or Continuing Warrants.

Section 2.10 Withholding. Each of the Company, Parent, the Surviving Corporation, and Merger Sub shall be entitled to deduct and withhold, or cause the Paying Agent to deduct and withhold, from the consideration otherwise payable pursuant to this Agreement, any amounts as are required to be withheld or deducted with respect to such consideration under any applicable provisions of federal, state, local or foreign Tax Law (including without limitation the Code). To the extent that amounts are so withheld and timely remitted to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Section 2.11 Further Action. The Parties shall take all necessary action to cause the Merger to become effective as soon as practicable following the Offer Acceptance Time without a meeting of the Company’s stockholders, as provided in Section 251(h) of the DGCL or, following a Triggering Event, as provided in Section 253 of the DGCL. If, at any time after the Effective Time, any further action is reasonably determined by Parent to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full right, title and possession of and to all rights and property of Merger Sub and the Company, then the officers and directors of the Surviving Corporation shall be fully authorized (in the name of Merger Sub, in the name of the Company and otherwise) to take such action.

Article III

REPRESENTATIONS AND
WARRANTIES OF THE COMPANY

Except as disclosed in the Company SEC Documents filed or furnished with the SEC since August 31, 2015 and publicly available prior to the date hereof (but excluding any forward looking disclosures set forth in any “risk factors” section, any disclosures in any “forward looking statements” section and any other disclosures included therein to the extent they are predictive or forward-looking in nature) or in the applicable section of the disclosure schedule delivered by the Company to Parent immediately prior to the execution of this Agreement (the “Company Disclosure Schedule”) (it being agreed that disclosure of any item in any section of the Company Disclosure Schedule shall be deemed disclosure with respect to any other section of this Agreement regardless of whether the relevance of such item is reasonably apparent), the Company represents and warrants to Parent and Merger Sub as set forth below.

Section 3.1 Qualification, Organization, etc. Except as set forth on Section 3.1 of the Company Disclosure Schedule, each of the Company and its Subsidiaries is a legal entity duly organized, validly existing and, with respect to jurisdictions that recognize the concept of good standing, in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business, in all material respects, as presently conducted. Except as set forth on Section 3.1 of the Company Disclosure Schedule, each of the Company and its Subsidiaries is qualified to do business and, with respect to jurisdictions that recognize the concept of good standing, is in good standing as a foreign corporation or other entity in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Company Material Adverse Effect. The Company has filed with the SEC, prior to the date of this Agreement, a complete and accurate copy of the Company Certificate and the Company Bylaws as amended to the date hereof. The Company Certificate and the Company Bylaws are in full force and effect and the Company is not in violation of either the Company Certificate or, in any material respects, the Company Bylaws.

Section 3.2 Capitalization, Subsidiaries.

(a) The authorized capital stock of the Company consists of 240,000,000 Common Shares and 10,000,000 shares of preferred stock, par value $0.01 per share, of which 6,460 shares are designated as Preferred Shares. As of June 15, 2016 (the “Company Capitalization Date”), (i) 24,509,858 Common Shares were issued and outstanding, including 5,159 Restricted Shares, (ii) 1,912,730 Common Shares were reserved and available for issuance of equity awards pursuant to the Company Stock Plans (of which, 282,779 Common Shares were subject to outstanding Company Options), (iii) 3,375,000 Common Shares were reserved and available for issuance upon conversion of the Preferred Shares, (iv) 22,060,597 Common Shares were reserved and available for issuance upon exercise of the Company Warrants, (v) 1,350 Preferred Shares were issued and outstanding. As of the date hereof, 188,141,815 Common Shares were reserved and available for issuance as Top-Up Shares upon Parent’s exercise of the Top-Up Option. All the outstanding Shares that have been issued, and all the Shares that may be issued pursuant to any Company Warrant or Preferred Share, any outstanding award under any Company Stock Plan, or the Top-Up Option will be, when issued, duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights.

(b) Except as set forth in Section 3.2(a) above or on Section 3.2(b) of the Company Disclosure Schedule, as of the date of this Agreement (i) the Company does not have any shares of capital stock issued or outstanding other than the Shares that were outstanding on the Company Capitalization Date or that have become outstanding after the Company Capitalization Date but were reserved for issuance as set forth in Section 3.2(a) above as of the Company Capitalization Date, and (ii) other than the Top-Up Option, there are no outstanding subscriptions, options, warrants, puts, calls, exchangeable or convertible securities or other similar rights, agreements or commitments relating to the issuance of capital stock or other equity interests to which the Company or any of the Company Subsidiaries is a party or otherwise obligating the Company or any of the Company Subsidiaries to (A) issue, transfer or sell any Shares or other equity interests of the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares or equity interests (in each case other than to the Company or a wholly owned Company Subsidiary), (B) grant, extend or enter into any such subscription, option, warrant, put, call, exchangeable or convertible securities or other similar right, agreement or commitment, (C) redeem or otherwise acquire any Shares or other equity interests, or (D) other than the rights of holders of BSV Warrants as set forth in the applicable warrant agreements, make any payment to any Person the value of which is derived from or calculated based on the value of the Common Shares or Preferred Shares. Since the Company Capitalization Date until the date of this Agreement, the Company has not granted any equity or equity-based award to any of the directors, employees or independent contractors of the Company or any Company Subsidiaries.

(c) Except as set forth on Section 3.2(c) of the Company Disclosure Schedule, all the issued and outstanding shares of capital stock of, or other equity interests in, each Company Subsidiary have been validly issued and are fully paid and nonassessable and are wholly owned, directly or indirectly, by the Company free and clear of all Liens, other than Company Permitted Liens. Section 3.2(c) of the Company Disclosure Schedule sets forth a true and complete list of all Company Subsidiaries as of the date of this Agreement.

(d) Except as set forth in Section 3.2(d) of the Company Disclosure Schedule, no Continuing Warrant or Company Option has a per-share exercise price that is less than the Common Consideration. The exercise price of each BSV Warrant is set forth on Section 3.2(d) of the Company Disclosure Schedule.

(e) The “Black Scholes Value” of the BSV Warrants is calculated pursuant to the formula set forth in each BSV Warrant and such formula is set forth in Section 3.2(e) of the Company Disclosure Schedule.

Section 3.3 Corporate Authority Relative to this Agreement; No Violation; Governmental Authorizations.

(a) The Company has all requisite corporate power and authority to enter into this Agreement and to consummate the Transactions, including the Merger. The execution and delivery of this Agreement and the consummation of the Transactions have been duly and validly authorized by the Company Board or a duly authorized committee thereof and except for the filing of the Certificate of Merger with the DSOS, no other corporate proceedings on the part of the Company or any Company Subsidiary are necessary to authorize the consummation of the Transactions. At a meeting duly called and held prior to the execution of this Agreement, at which all directors of the Company were present and voted in favor, the Company Board duly adopted resolutions (i) declaring that this Agreement and the Transactions, including the Merger, are fair to and in the best interests of the Company and the stockholders of the Company, (ii) approving and declaring advisable this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein and of the DGCL, in each case subject to Section 5.2, (iii) assuming the accuracy of the representations and warranties contained in Section 4.8, taking all actions necessary so that the restrictions on “business combinations” contained in Section 203 of the DGCL will not apply with respect to or as a result of the Offer, the Merger, this Agreement, the Tender and Support Agreements and the Transactions, (iv) making the Board Recommendation and (v) approving the Top-Up Option (which resolutions expressly include the terms set forth in Section 1.2 hereof) and the issuance of the Top-Up Shares upon exercise of the Top-Up Option; and such board resolutions have not been rescinded, modified or withdrawn in any way. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, constitutes the valid and binding agreement of the Company, Enforceable against the Company.

(b) No provision of the Company Governing Documents (i) requires a vote of the stockholders of the Company to approve the Offer, this Agreement or the consummation of the Merger and the other transactions contemplated by this Agreement or (ii) prohibits the Company and Parent from completing the Merger pursuant to Section 251(h) or Section 253 of the DGCL. Immediately prior to the Company’s execution of this Agreement, the Common Shares are listed on a national securities exchange or are held of record by more than 2,000 holders.

(c) The execution and delivery by the Company of this Agreement do not, and, except as set forth on Section 3.3(c) of the Company Disclosure Schedule, the consummation of the Transactions and compliance with the provisions of this Agreement will not (i) result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of any material obligation under any Contract binding upon the Company or any of the Company Subsidiaries, (ii) conflict with or result in any violation of any provision of the Company Governing Documents or any of the organizational documents of any Company Subsidiary (iii) conflict with or violate any Laws applicable to the Company or any of the Company Subsidiaries or any of their respective properties or assets, or (iv) result in the creation or imposition of any Lien on any asset of the Company or a Company Subsidiary, other than in the case of clause (i) or (iv), as would not have a Company Material Adverse Effect.

(d) The execution and delivery by the Company of this Agreement do not, and the consummation of the Transactions and compliance with the provisions hereof will not, with or without notice of lapse of time, or both, require the consent, approval, authorization or permit of, or filing or registration with or notification to, any Governmental Entity, other than (i) the filing of the Certificate of Merger with the DSOS, (ii) compliance with the applicable requirements of the Exchange Act and the Securities Act or any other applicable U.S. state or federal or foreign securities Laws, (iii) filings with the SEC as may be required by the Company in connection with this Agreement and the Transactions, (iv) such filings as may be required under the rules and regulations of NASDAQ, and (v) where the failure to obtain such consents, approvals, authorizations or permits of, or to make such filings, registrations with or notifications to any Governmental Entity or any other Person, individually or in the aggregate, would not have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.4 Reports and Financial Statements.

(a) From September 1, 2013 through the date of this Agreement, the Company has filed or furnished all forms, documents and reports with the SEC (such forms, documents and reports, the “Company SEC Documents”) required to be filed or furnished prior to the date hereof by it with the SEC. As of their respective dates, or, if amended, as of the date of (and giving effect to) the last such amendment, the Company SEC Documents complied, in all material respects, with the requirements of the Securities Act and the Exchange Act, as the case may be, and none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries is required to file or furnish any forms, reports or other documents with the SEC.

(b) The consolidated financial statements (including all related notes and schedules) of the Company included in the Company SEC Documents when filed complied as to form, in all material respects, with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of such filing and fairly present, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended (subject, in the case of the unaudited statements, to normal year-end audit adjustments and to any other adjustments described therein, including the notes thereto) in conformity with United States Generally Accepted Accounting Principles (“GAAP”) (except, in the case of the unaudited statements, to the extent permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto).

(c) Except as set forth on Section 3.4(c) of the Company Disclosure Schedule, the Company and each Company Subsidiary has established and maintains a system of internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that is sufficient, in all material respects, to provide reasonable assurances (i) regarding the reliability of financial reporting and the preparation of its consolidated financial statements for external purposes in accordance with GAAP, (ii) that receipts and expenditures of the Company and the Company Subsidiaries are being made only in accordance with authorizations of management and the Company Board, and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s and the Company Subsidiaries’ assets. Except as set forth on Section 3.4(c) of the Company Disclosure Schedule, the management of the Company has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the chief executive officer and chief financial officer of the Company required under the Exchange Act with respect to such reports. The management of the Company has disclosed, based on its most recent evaluation of its system of internal control over financial reporting prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the Company Board (i) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that would reasonably be expected to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.

(d) Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer and each former principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 with respect to the Company SEC Documents, and the statements contained in such certifications were true and accurate, in all material respects, as of the date such certifications were made.

Section 3.5 No Undisclosed Liabilities. Except (a) as set forth on Section 3.5 of the Company Disclosure Schedule, (b) as disclosed, reflected or reserved against in the Company’s consolidated balance sheet (or the notes thereto) as of February 29, 2016 included in the Company SEC Documents filed or furnished and publicly available prior to the date hereof, (c) for liabilities incurred since February 29, 2016, that are consistent with the ordinary course of business with respect to type and amount, (d) as expressly permitted or contemplated by this Agreement and (e) for liabilities which have been discharged or paid in full in the ordinary course of business, neither the Company nor any Company Subsidiary has any liabilities of any nature, whether or not accrued, contingent or otherwise, that would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its consolidated Subsidiaries (or in the notes thereto).

Section 3.6 Off-Balance Sheet Arrangements. Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company’s or such Subsidiary’s published financial statements or other Company SEC Documents.

Section 3.7 Compliance with Laws; Permits. Except as set forth in Section 3.7 of the Company Disclosure Schedule:

(a) The Company and each Company Subsidiary is and, at all times since September 1, 2013, has been in compliance, in all material respects, with, and is not, in any material respect, in default under or in violation of, any Laws applicable to the Company, such Subsidiaries or any of their respective properties or assets. Since September 1, 2013, no Governmental Entity has issued any notice or notification stating that the Company or any of its Subsidiaries is not in compliance, in any material respect, with any Law.

(b) The Company and the Company Subsidiaries are and, at all times since September 1, 2013, have been in possession of all licenses, permits, consents and approvals of any Governmental Entity necessary for the Company and the Company Subsidiaries to own, lease and operate their properties and assets or to carry on their businesses as they are now being conducted, in all material respects, or have been conducted (the “Company Permits”). All Company Permits are in full force and effect and the Company and each Company Subsidiary is in compliance, in all material respects, with all Company Permits.

(c) The Brazil Sub is duly registered with the Brazilian Central Bank as a company which has received non-Brazilian funds, as required by applicable Law, and any and all funds related to foreign direct investments made by its quotaholders and loans granted to the Brazil Sub in non-Brazilian currency have been timely and fully registered with the Brazilian Central Bank, and such registration is duly updated as of the date hereof. The Brazil Sub is not a guarantor of any obligation of third parties in foreign currency.

Section 3.8 Environmental Laws and Regulations. The Company and the Company Subsidiaries are now and, at all times since September 1, 2013, have been in compliance, in all material respects, with all applicable Environmental Laws. Since September 1, 2013, there has been no Release of Hazardous Substances in, on, under or from the Company Owned Real Property that would reasonably be expected to require any Removal, Remedial or Response Actions, including at third party sites. Except as set forth in Section 3.8 of the Company Disclosure Schedule, since September 1, 2013, neither the Company nor any of the Company Subsidiaries has received any written notice, demand, or claim alleging that the Company or any of the Company Subsidiaries are in violation of or subject to liability under any Environmental Law or are allegedly subject to any Removal, Remedial or Response actions, including from third parties. Except as set forth in Section 3.8 of the Company Disclosure Schedule or with regard to the existence of the Environmental Permits, neither the Company nor any of the Company Subsidiaries is subject to any order, ruling, judgment, decree, injunction, award or agreement with any Governmental Entity, any indemnity or other agreement with any third party, or, to the Knowledge of the Company, any Legal Proceeding, imposing liability or obligations relating to any Environmental Law. The Company has all of the Environmental Permits necessary for the conduct and operation of its business as now being conducted, in all material respects, and is and has been since September 1, 2013 in compliance, in all material respects, with such Environmental Permits.

Section 3.9 Employee Benefit Plans.

(a) Section 3.9(a) of the Company Disclosure Schedule sets forth, as of the date hereof, each material employee benefit plan (as defined in Section 3(3) of ERISA) and each material bonus, stock, stock option or other equity-based compensation arrangement or plan, incentive, deferred compensation, retirement or supplemental retirement, severance, employment, change-in-control, collective bargaining, profit sharing, pension, vacation, cafeteria, dependent care, medical care, employee assistance program, education or tuition assistance programs, and each insurance and other similar fringe or employee benefit plan, program or arrangement, in each case for the benefit of current employees, directors, independent contractors or consultants (or any dependent or beneficiary thereof) of the Company or any Company Subsidiary and with respect to which the Company or any Company Subsidiary may have any obligation or liability (whether actual or contingent) (together, the “Company Benefit Plans”; Company Benefit Plans other than those of Brazil Sub (and as set forth on Section 3.9(a) of the Company Disclosure Schedule) as “U.S. Company Benefit Plans”). With respect to each Company Benefit Plan, the Company has made available to Parent correct and complete copies of in each case, to the extent applicable, (i) all plan documents, summary plan descriptions (or, to the extent a summary plan description is not required under ERISA for such Company Benefit Plan, a description of the benefits), summaries of material modifications (if applicable), and amendments related to such plans and any related trust agreement, custodial agreement, service agreement and insurance policy, (ii) the three (3) most recent Form 5500 Annual Reports (including all schedules), to the extent applicable, (iii) the three (3) most recent audited financial statements, to the extent applicable, (iv) the most recent determination or opinion letter received from the Internal Revenue Service, to the extent applicable (v) the most recent IRS Forms 1094 and Form 1095, if any, (vi), the three most recent years of compliance testing information for each such Company Benefit Plan, to the extent applicable, and (vii) all material filings and correspondence with any Governmental Entity, if any.

(b) (i) Except as set forth on Section 3.9(b) of the Company Disclosure Schedule, each of the Company Benefit Plans has been operated and administered in compliance, in all material respects, in accordance with the terms of each such Company Benefit Plan, the terms of any applicable collective bargaining agreement and all applicable Laws, including, ERISA, the Code and in each case the regulations thereunder, (ii) no U.S. Company Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (iii) no U.S. Company Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of the Company or any Company Subsidiary beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or comparable U.S. state Law, (iv) no liability under Title IV of ERISA has been incurred by the Company, any Company Subsidiary or any of their respective ERISA Affiliates, and no condition exists that would cause the Company, any Company Subsidiary, or, to the Knowledge of the Company, the Surviving Corporation or any of their ERISA Affiliates to incur a liability thereunder, (v) no U.S. Company Benefit Plan is a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two (2) or more contributing sponsors at least two (2) of whom are not under common control, within the meaning of Section 4063 of ERISA, (vi) all contributions or other amounts payable by the Company or any Company Subsidiary pursuant to each Company Benefit Plan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP or applicable international accounting standards, (vii) neither the Company nor any Company Subsidiary has engaged in a transaction in connection with which the Company or any Company Subsidiary could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code, or a civil penalty or tax imposed by non-U.S. Laws, (viii) no fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration, or investment of the assets, of any Company Benefit Plan, where such breach or failure could result in liability to the Company, any Company Subsidiary, or the Surviving Corporation or any of their ERISA Affiliates, and (ix) there are no pending, or to the Knowledge of the Company, threatened or anticipated claims, actions, investigations or audits (other than routine claims for benefits) with respect to the administration, or investment of the assets, of any Company Benefit Plan or on behalf of or against any of the Company Benefit Plans or any trusts related thereto and, to the Knowledge of the Company, there is no basis for any such claims, actions, investigations or audits.

(c) Each U.S. Company Benefit Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has received a determination from the IRS that it is so qualified or is entitled to rely on an opinion letter issued to a prototype sponsor, and nothing has occurred since the date of the determination or opinion letter that could adversely affect the qualified status of any such U.S. Company Benefit Plan. Each such U.S. Company Benefit Plan has been timely amended to reflect the provisions of all applicable Laws in effect for any period prior to or as of the Closing other than amendments for which the remedial amendment period under Section 401(b) of the Code (including, if applicable, any extension of the remedial amendment period) has not expired and there are no plan document failures, operational failures, demographic failures or employee eligibility failures which have not been corrected within the meaning of Rev. Proc. 2013-12 (or any successor revenue procedure or guidance) with respect to any such U.S. Company Benefit Plan.

(d) No act or omission has occurred, or will occur upon the Closing of the transactions contemplated in this Agreement, and no condition exists with respect to any U.S. Company Benefit Plan that would subject the Company, the Company Subsidiaries, the Surviving Corporation, the Parent, Merger Sub or any affiliates to any fines, penalties, Taxes or other Liabilities or obligations imposed under ERISA or the Code, including Code Section 4980H.

(e) Except as set forth on Section 3.9(e) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the Transactions (either alone or in conjunction with any other event) will (i) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of Indebtedness or otherwise) becoming due to any current or former director or any employee of the Company, any Company Subsidiary or the Surviving Corporation under any Company Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under any Company Benefit Plan or (iii) result in any acceleration of the time of payment, funding or vesting of any such benefits.

(f) The Company has delivered as of the date hereof to Parent a list of each “disqualified individual” (as defined in Section 280G of the Code) of the Company and Company Subsidiaries and (i) the Company’s estimate of the maximum amount (separately identifying single and double-trigger amounts and tax gross-up payments, if any) that could be paid to such disqualified individual as a result of any of the transactions contemplated by this Agreement (alone or in combination with any other event), (ii) the “base amount” (as defined in Section 280G(b)(3) of the Code) for each such disqualified individual and (iii) underlying documentation on which such calculations are based. To the extent such information changes, the Company will promptly provide such updated information to Parent.

(g) Each Company Benefit Plan, including any related service or investment contract, may be amended or terminated without penalty and will not result in any liability to the Company, any Company Subsidiary, the Surviving Corporation, the Parent, Merger Sub or their respective affiliates for any amendment or termination, including any amendment or termination in connection with this Agreement.

(h) Section 3.9(h) of the Company Disclosure Schedule sets forth (i) the aggregate number of Common Shares that are subject to Company Options, and (ii) the aggregate number of Restricted Shares, in each case as of the Company Capitalization Date.

(i) The compensation committee of the Company Board (each member of which the Company Board has determined is an “independent director” as defined by Rule 4200(a)(15) of the NASDAQ Marketplace Rules and is an “independent director” in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act) (i) duly adopted resolutions approving each employment, compensation, severance and employee benefit agreement, arrangement or understanding entered into on or before the date hereof by the Company or any of its affiliates with directors, officers or employees of the Company and its affiliates as an “employment compensation, severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d)(2) under the Exchange Act; and (ii) has taken all other actions and made all other determinations necessary or advisable to ensure that any such arrangements fall within the safe harbor provisions of Rule 14d-10(d).

Section 3.10 Absence of Certain Changes or Events.

(a) From February 29, 2016 through the date of this Agreement, there has not occurred any Effect that has had a Company Material Adverse Effect.

(b) Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, from February 29, 2016 through the date of this Agreement, (i) the business of the Company and the Company Subsidiaries has been conducted in the ordinary course of business, (ii) neither the Company nor any Company Subsidiary has taken any action that would have constituted a breach of Section 5.1 (other than clauses (b) and (h)) had such action been taken after the execution of this Agreement without the prior consent of Parent and (iii) neither the Company nor any Company Subsidiary has (A) increased the compensation of employees (other than regularly scheduled increases for employees who are not executives or senior managers), other than as provided for in any written agreements, (B) adopted, amended or terminated any Company Benefit Plan or (C) made or guaranteed to make any loans to any employee, director, officer or shareholder.

Section 3.11 Investigation; Litigation. Except as set forth on Section 3.11 of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary has received any written notice of, and, to the Knowledge of the Company, as of the date of this Agreement there is no (a) investigation or review pending or threatened by any Governmental Entity with respect to the Company or any Company Subsidiary or any of their respective properties, rights or assets, (b) claim, action, suit, arbitration or proceeding pending or threatened against the Company or any Company Subsidiary or any of their respective properties, rights or assets before, and (c) order, writ, assessment, decision, injunction, decree, ruling, judgment or decree of, any Governmental Entity, whether temporary, preliminary or permanent. As of the date hereof, neither the Company nor any Company Subsidiary has received any written notice of and, to the Knowledge of the Company, there are no SEC inquiries or investigations, other inquiries by a Governmental Entity or investigations or internal investigations pending or threatened, in each case regarding any accounting practices of the Company or any of the Company Subsidiaries or any malfeasance by any executive officer of the Company.

Section 3.12 Tax Matters. Except as set forth in Section 3.12 of the Company Disclosure Schedule:

(a) All Tax Returns that are required to be filed by or with respect to the Company or any Company Subsidiary have been timely filed (taking into account any extension of time within which to file), and all such Tax Returns are true, complete and accurate.

(b) The Company and the Company Subsidiaries have paid all Taxes due and owing by any of them, including any Taxes required to be withheld from amounts owing to any employee, creditor, or third party (in each case, whether or not shown on any Tax Return), other than Taxes for which adequate reserves have been established in accordance with GAAP on the financial statements of the Company and the Company Subsidiaries.

(c) Since the date of the latest financial statements of the Company and the Company Subsidiaries, neither the Company nor any Company Subsidiary has incurred any liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and past practice.

(d) No deficiencies for Taxes with respect to the Company or any Company Subsidiary have been claimed, proposed or assessed in writing by any Tax authority, except for deficiencies that have been paid or otherwise resolved.

(e) There is no audit, examination, investigation or other proceeding with respect to any Taxes of the Company or any Company Subsidiary, pending or threatened in writing or otherwise to the Knowledge of the Company.

(f) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.

(g) No claim has been made by a Tax authority in a jurisdiction where the Company or any Company Subsidiary does not file income or franchise Tax Returns that the relevant Company or Company Subsidiary is or may be subject to taxation by that jurisdiction.

(h) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Tax authority with respect to the Company or any Company Subsidiary which would be binding following the Closing, and no such agreements or rulings have been applied for and are currently pending.

(i) Neither the Company nor any Company Subsidiary will be required to include in a taxable period ending after the Closing Date taxable income attributable to income that accrued in a taxable period prior to the Closing Date but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Closing Date any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Closing Date) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax law, or for any other reason.

(j) Neither the Company nor any Company Subsidiary has constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or any similar provision of state, local, or non-U.S. Law) in the two (2) years prior to the date of this Agreement.

(k) Neither the Company nor any Company Subsidiary: (i) is or has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or any group that has filed a combined, consolidated or unitary Tax Return (other than the group of which the Company is or was the common parent); (ii) is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes); (iii) or has any liability for Taxes of any Person (other than the Company or any Company Subsidiary) under U.S. Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Law) or as transferee, successor, by contract or otherwise.

(l) There are no Liens for Taxes upon any property or assets of the Company or any Company Subsidiary, except for the Company Permitted Liens.

(m) Neither the Company nor any Company Subsidiary has participated in any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4 (or any similar provision of state, local or non-U.S. Law).

(n) Neither the Company nor any Company Subsidiary (i) is or has been a shareholder of a “controlled foreign corporation” as defined in Section 957 of the Code (or any similar provision of state, local or foreign law); (ii) is or has been a shareholder of a “passive foreign investment company” within the meaning of Section 1297 of the Code; or (iii) is or has engaged in a trade or business, has or had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax jurisdiction in a country other than the country of its formation.

(o) No foreign Company Subsidiary (i) has or has had any nexus with the United States, a trade or business or permanent establishment within the United States or any other connection with the United States that has subjected or could reasonably be expected to have subjected it to United States federal, state or local Tax; or (ii) holds assets which constitute U.S. property within the meaning of Section 956 of the Code.

(p) All related party transactions involving the Company and any Company Subsidiary have been conducted at arm’s length in compliance with Code Section 482 and the Treasury Regulations promulgated thereunder and any comparable provisions of any other Tax Law.

Section 3.13 Labor Matters.

(a) The Company has provided to Parent a list of employees that includes the following as of June 10, 2016: names/employee numbers, applicable employer (Company or Company Subsidiary), current annual salary rates or current hourly wages, as applicable, bonus opportunity, hire date, accrued vacation and paid-time-off, principal work location and leave status and, with respect to any employee in the United States, each such employee’s treatment by the Company or Company Subsidiary as exempt or non-exempt from the application of state and federal wage and hour Laws relating to the payment of overtime. The Company and each Company Subsidiary has withheld all amounts required by Law or agreement to be withheld from the wages or salaries of, and other payments to, its employees and any former employees and is not liable for any arrearage of wages, salaries or other payments to such employees and any former employees or any Taxes or penalties for failure to comply with any of the foregoing.

(b) Except as set forth on Section 3.13(b) of the Company Disclosure Schedule, as of the date hereof, (i) neither the Company nor any Company Subsidiary is a party to, or bound by, any collective bargaining agreement or other material Contract with a labor union or labor organization, except with respect to collective bargaining agreements negotiated between relevant employers’ and employees’ unions, as provided by Brazilian Law, (ii) neither the Company nor any Company Subsidiary is subject to a labor dispute, strike or work stoppage, and (iii) to the Knowledge of the Company, there are no organizational efforts with respect to the formation of a collective bargaining unit presently being made or threatened involving employees of the Company or any Company Subsidiary.

(c) Except as set forth on Section 3.13(c) of the Company Disclosure Schedule, the Transactions will not require the consent of, or advance notification to, any works councils, unions or similar labor organizations with respect to employees of the Company or any Company Subsidiary.

(d) Except as set forth on Section 3.13(d) of the Company Disclosure Schedule, the businesses of the Company and each Company Subsidiary are being conducted in compliance with all applicable Laws pertaining to the privacy, data protection, and information security of employee information.

(e) Except as set forth on Section 3.13(e) of the Company Disclosure Schedule, there are no charges or complaints relating to unfair labor practices or unlawful employment practices pending or, to the Knowledge of the Company, threatened against the Company or any Company Subsidiary before any Governmental Entity. The Company and Company Subsidiaries are not a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity relating to labor, employees or employment practices.

(f) Except as set forth on Section 3.13(f) of the Company Disclosure Schedule, the Company and Company Subsidiaries are in compliance, in all material respects, with all applicable Laws pertaining to employment and employment practices that relate to employees or Recently Terminated Employees (as defined below), including, as applicable to such Company or Company Subsidiary, the following: terms and conditions of employment of employees and prospective employees including background checks under the Fair Credit Reporting Act and applicable state Laws; wages and hours (including classification of employees as exempt or non-exempt); workers’ compensation; reasonable accommodations; social security contributions; harassment or discrimination in employment; retaliation; immigration; termination; wrongful discharge; collective bargaining; leave; classification of employees and independent contractors; and occupational health and safety. As used in the prior sentence, “Recently Terminated Employees” means any employee of the Company or any Company Subsidiary whose employment terminated on or after September 1, 2012. Except as set forth in Section 3.13(f) of the Company Disclosure Schedule, there are no actions, suits, claims, investigations or other legal proceedings against the Company or Company Subsidiaries pending, or to the Knowledge of the Company, threatened to be brought or filed, in connection with the employment of any current or former employee of the Company or Company Subsidiaries, including, without limitation, any claim relating to unfair labor practices, unfair dismissals, affirmative action, background checks, employment discrimination, harassment, retaliation, classification of employees and independent contractors; equal pay or any other employment related matter arising under applicable Laws.

(g) The Company and Company Subsidiaries do not have any liability, whether absolute or contingent, direct or indirect, including any obligations under any Company Benefit Plan, with respect to any misclassification of a person as an independent contractor rather than as an employee or with respect to any employee “leased” from another entity. No person (including any leased employee (as defined in Section 414(n) of the Code) or independent contractor) who is not an employee of the Company or a Company Subsidiary is permitted to participate or participates in any Company Benefit Plan, other than as set forth in Section 3.13(g) of the Company Disclosure Schedule.

(h) There are no uninsured workers’ compensation claims pending or threatened against the Company or Company Subsidiaries and, to the Knowledge of the Company, the Company, the Company Subsidiaries and the Surviving Corporation will not become liable for any retroactive workers’ compensation insurance premiums relating to any period of time prior to the date of this Agreement.

(i) To the Knowledge of the Company, no employees, officers, directors or shareholders of the Company or Company Subsidiaries are subject to any secrecy or non-competition agreement or any other agreement or restriction of any kind that would in any way impede their ability to carry out fully all activities of such person in furtherance of the businesses of the Company, the Company Subsidiaries and the Surviving Corporation.

(j) The qualifications for employment of each employee under applicable immigration laws have been reviewed by the Company or Company Subsidiary and a properly completed Form I-9 is on file with the Company or Company Subsidiary for each employee to whom a Form I-9 is required. The Company and Company Subsidiaries (to the extent applicable to such Company Subsidiary) have complied with the U.S. Immigration and Nationality Act, as amended from time to time and, to the Knowledge of the Company, there is no basis for any claim that the Company, any Company Subsidiary or the Surviving Corporation is not in compliance with the terms thereof.

(k) The Company and Company Subsidiaries have not incurred any liability under, and (to the extent applicable) have complied in all respects with, the Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder and similar state Laws (collectively, “WARN”). The Company and Company Subsidiaries have not given, and have not been required to give, any notice under WARN to any employee or taken any action that would constitute a “plant closing” or “mass layoff” as such terms are defined in WARN, in each case within ninety (90) days prior to the date of this Agreement.

(l) Except as set forth in Section 3.13(l) of the Company Disclosure Schedule, no employee of the Company or any Company Subsidiary is entitled to any accrued vacation, benefits or deferred compensation that is not properly reflected on the consolidated financial statements of the Company.

Section 3.14 Intellectual Property.

(a) Section 3.14(a) of the Company Disclosure Schedule sets forth a true, complete and accurate list of all of the following U.S. and foreign Intellectual Property owned or exclusively licensed by the Company or a Company Subsidiary: (i) patents and patent applications; (ii) trademark registrations, trademark applications and Internet domain names; and (iii) registered copyrights and copyright applications (collectively, the “Material Intellectual Property”).

(b) Except as supplementally disclosed to Parent in a letter dated as of the date hereof or as set forth in Section 3.14(b) of the Company Disclosure Schedule, (i) the Company or a Company Subsidiary owns or, to the Knowledge of the Company, has the right to use all Material Intellectual Property and all other Intellectual Property used by the Company or any Company Subsidiary, free and clear of all Liens (other than pursuant to any License Agreement), (ii) to the extent the Material Intellectual Property is owned, rather than licensed, by the Company or any Company Subsidiary, as of the Effective Time, the Company or a Company Subsidiary is listed in the records of the appropriate United States, state, or foreign registry as the sole current owner of record for each patent, application and registration listed in Section 3.14(a) of the Company Disclosure Schedule, and (iii) any Material Intellectual Property owned or used by the Company or a Company Subsidiary is in full force and effect and has not been cancelled, expired or abandoned.

(c) Section 3.14(c) of the Company Disclosure Schedule sets forth a true, complete and accurate list of all agreements to which the Company or a Company Subsidiary is a party (other than agreements providing the right to a third party to use any Intellectual Property solely to perform activities for the benefit or on behalf of the Company or a Company Subsidiary), (i) granting or obtaining any right to use or practice any rights under any Material Intellectual Property or, to the Knowledge of the Company, any other Intellectual Property (other than readily available “off-the-shelf” commercial licenses, or “shrink-wrap” or “click-through” agreements, terms of use or services, or similar agreements), or (ii) restricting the Company’s or a Company Subsidiary’s rights to use any Material Intellectual Property or, to the Knowledge of the Company, any other Intellectual Property, including license agreements, development agreements, distribution agreements, settlement agreements, consent to use agreements, and covenants not to sue (collectively, the “License Agreements”). No royalties or other fees are payable by the Company or a Company Subsidiary to any third parties for the use of or right to use any Material Intellectual Property or, to the Knowledge of the Company, any other Intellectual Property used by the Company or any Company Subsidiary except pursuant to the License Agreements (other than pursuant to readily available “off-the-shelf” commercial licenses, or “shrink-wrap” or “click-through” agreements, terms of use or services, or similar agreements). The License Agreements are valid and binding obligations of the Company or a Company Subsidiary and are Enforceable. Except as supplementally disclosed to Parent in a letter dated as of the date hereof, there exists no Effect which will result in a material violation or breach of or constitute (with or without due notice or lapse of time or both) a default by the Company or a Company Subsidiary or, to the Knowledge of the Company, the other party thereto, under any such License Agreements.

(d) Section 3.14(d) of the Company Disclosure Schedule sets forth, with respect to the Material Intellectual Property, a true, complete and accurate list of all Software (other than readily available “off-the-shelf” commercial licenses, or “shrink-wrap” or “click-through” agreements, terms of use or services, or similar agreements) which is owned, licensed or leased by the Company or a Company Subsidiary, describing which Software is owned, licensed or leased, as the case may be. The Software owned by the Company or a Company Subsidiary was developed by (i) employees of the Company or a Company Subsidiary or (ii) independent contractors who have created such Software as “work for hire” (as such term is defined in 17 U.S.C. § 101) and/or assigned and/or licensed their rights in such Software to the Company or a Company Subsidiary by written agreement.

(e) Except as set forth on Section 3.14(e) of the Company Disclosure Schedule, to the Knowledge of the Company, there has been no prior use of the trademarks in Section 3.14(a) of the Company Disclosure Schedule by any third party that would confer upon said third party superior rights in such trademarks, and the Company or a Company Subsidiary have used commercially reasonable efforts to police the trademarks against third-party infringement in order to maintain the validity of such trademarks.

(f) Except for ordinary communications from patent offices in relevant jurisdictions relating to patent prosecution, there is no pending or, to the Knowledge of the Company, threatened claim, suit, arbitration or other adversarial proceeding before any court, agency, arbitral tribunal, or registration authority, in any jurisdiction, and neither the Company nor a Company Subsidiary have received written notice regarding any of the foregoing, involving the Material Intellectual Property owned by the Company or a Company Subsidiary or, to the Knowledge of the Company, the Material Intellectual Property licensed to the Company or a Company Subsidiary, including any claim, suit, arbitration or other adversarial proceeding alleging that the activities or the conduct of the Company’s or a Company Subsidiary’s business infringes upon, violates or constitutes the unauthorized use of the intellectual property or other proprietary rights of any third party or challenging the Company’s or a Company Subsidiary’s ownership or use of any Material Intellectual Property, or the validity, enforceability or registrability of any Material Intellectual Property.

(g) Except as supplementally disclosed to Parent in a letter dated as of the date hereof, to the Knowledge of the Company, no third party is misappropriating, infringing, diluting or violating any Material Intellectual Property and no such claims, suits, arbitrations or other adversarial proceedings have been brought or threatened against any third party by the Company or a Company Subsidiary.

(h) Except as supplementally disclosed to Parent in a letter dated as of the date hereof or as would not have a Company Material Adverse Effect, to the Knowledge of the Company, the conduct of Company and its Company Subsidiary businesses as currently conducted does not misappropriate, infringe upon (either directly or indirectly such as through contributory infringement or inducement to infringe) or dilute any intellectual property rights owned or controlled by any third party.

(i) The Company and the Company Subsidiaries take reasonable measures to protect the confidentiality of trade secrets, including requiring all employees and other parties having access thereto to execute written confidentiality and non-disclosure agreements (true, correct and complete copies of which have been retained). To the Knowledge of the Company, no trade secret has been disclosed or authorized to be disclosed to any third party other than pursuant to a written confidentiality and non-disclosure agreement. To the Knowledge of the Company, no party to any non-disclosure agreement relating to its trade secrets is in breach or default thereof.

(j) Except as set forth in Section 3.14(j) of the Company Disclosure Schedule, (i) the consummation of this Agreement will not result in the loss or impairment of the Surviving Corporation’s rights to own, use, or bring any action for the infringement of any of the Material Intellectual Property, nor will such consummation require the consent of any third party in respect of any Material Intellectual Property and (ii) to the Knowledge of the Company, the consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of the Surviving Corporation’s rights to own, use, or bring any action for the infringement of any of the other Intellectual Property, nor will such consummation require the consent of any third party in respect of any other Intellectual Property. Except as provided in any Material Contract or for the benefit of the Company, to the Knowledge of the Company, no current or former director, officer, employee, contractor or consultant of the Company or a Company Subsidiary (or any of its predecessors in interest) will, after giving effect to the transactions contemplated by this Agreement or the Transaction Agreements, own or retain any rights to use any of the Material Intellectual Property.

Section 3.15 Real Property.

(a) Section 3.15(a) of the Company Disclosure Schedule sets forth a complete and correct list of all real property and interests in real property owned by the Company or any Company Subsidiary as of the date hereof (such property collectively, the “Company Owned Real Property”). Either the Company or a Company Subsidiary has valid title to such the Company Owned Real Property, free and clear of all Liens, other than any Company Permitted Liens.

(b) Section 3.15(b) of the Company Disclosure Schedule sets forth a complete and correct list of each lease, sublease and other agreement (including all amendments thereof or modifications thereto), other than any leases for farm land with a term not exceeding twelve (12) months, under which the Company or any Company Subsidiary uses or occupies or has the right to use or occupy any real property as of the date hereof (such real property the “Company Leased Real Property” and such leases, subleases or other agreements, the “Real Property Leases”). Except for the Real Property Leases, neither the Company nor any Company Subsidiary is a party to any other oral or written agreement conveying any interest in real property, including leases, subleases and licenses. Each Real Property Lease is valid, binding and in full force and effect and Enforceable without penalty, acceleration, landlord consent, termination, repurchase right or other adverse consequence on account of the execution, delivery or performance of this Agreement by the Company or the consummation by the Company of the Transactions. No uncured default on the part of the Company or, if applicable, any Company Subsidiary, exists under any Real Property Lease and, to the Knowledge of the Company, no uncured default on the part of the landlord under any Real Property Lease exists with respect to any Company Leased Real Property and there are no Effects which have occurred that, with the giving of notice or the passage of time or both, would result in a default by either party thereunder. Except as set forth on Section 3.15 of the Company Disclosure Schedule, the Company and each Company Subsidiary has a good and valid leasehold interest in or contractual right to use or occupy, subject to the terms of the Real Property Lease applicable thereto, the Company Leased Real Property, free and clear of all Liens, except for the Company Permitted Liens.

Section 3.16 Material Contracts.

(a) Section 3.16 of the Company Disclosure Schedule contains a complete and correct list, as of the date of this Agreement, of each Contract (other than this Agreement) described below in this Section 3.16(a) under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date of this Agreement (all Contracts of the type described in this Section 3.16(a) are referred to herein as the “Company Material Contracts”):

(i) any Contract that limits in any respect the freedom of the Company or any Company Subsidiary to compete in any line of business, area or geographic region, or with any Person, including any Contract that requires the Company or any Company Subsidiary to work exclusively with any Person in any area or geographic region, that restricts hiring or soliciting for hire the employees or contractors of any Person or which by its terms would so limit the freedom of Parent and the Company Subsidiaries after the Effective Time;

(ii) any partnership, joint venture, strategic alliance, collaboration, co-promotion or research and development project Contract;

(iii) any Contract that (A) grants any exclusive rights to any Person, including any exclusive license or supply or distribution agreement or other exclusive rights, (B) grants any rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Material Intellectual Property, (C) contains any provision that requires the purchase of all or any portion of the Company’s or any Company Subsidiaries’ requirements from any Person, or any other similar provision for more than $75,000 in the twelve (12) month period following the date hereof, (D) grants “most favored nation” or similar rights or (E) contains pricing commitments with respect to future purchases by any Person of the products or services of the Company or any Company Subsidiary for more than $75,000 in the twelve (12) month period following the date hereof;

(iv) any Contract not otherwise described in any other subsection of this Section 3.16(a) that (A) is reasonably expected to involve future expenditures by the Company or any Company Subsidiary of more than $75,000 in the twelve (12) month period following the date hereof and (B) cannot be terminated by the Company or such Company Subsidiary on less than ninety (90) days’ notice without material payment or penalty, other than ordinary course product or raw material purchase contracts;

(v) any acquisition or divestiture Contract involving consideration in excess of $75,000 entered into in the past three (3) years;

(vi) any material licensing Contract;

(vii) any Contract that contains indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $75,000 in the twelve (12) month period following the date hereof;

(viii) any Contract relating to outstanding Indebtedness of the Company or the Company Subsidiaries for borrowed money or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $75,000 other than (A) Contracts solely among the Company and any Company Subsidiary and (B) any Contracts relating to Indebtedness explicitly included in the consolidated financial statements in the Company SEC Documents and which are publicly available prior to the date hereof in unredacted form as an exhibit to such Company SEC Documents;

(ix) any Contract pursuant to which the Company or any Company Subsidiary is a party that creates or grants a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Company Permitted Liens;

(x) any Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly-owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;

(xi) any Contract (other than readily available, “off-the-shelf” commercial licenses, or “shrink-wrap” or “click-through” agreements, terms of use or services, or similar agreements that are generally available on nondiscriminatory pricing terms to the extent the licenses contained therein are incidental to such Contracts, immaterial, nonexclusive and granted in the ordinary course of business) under which the Company or any Company Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property of a third party, which Contract is material to the Company or any Company Subsidiary;

(xii) any Contract under which the Company or any Company Subsidiary has granted to a third party any license, option or other right or immunity (including a covenant not to sue or right to enforce or prosecute any patents) with respect to any Intellectual Property, which Contract is material to the Company or any Company Subsidiary;

(xiii) any stockholders, investors rights, registration rights or similar agreement or arrangement;

(xiv) any collective bargaining agreement or other Contract with any labor union;

(xv) any Contract relating to employment or compensation of any employee (A) with an aggregate annual salary and cash bonus in excess of $75,000 or containing any change-in-control, severance payment obligations or similar payment, or (B) that is not terminable at will; and

(xvi) any Contract involving the settlement of any claim, action or proceeding or threatened claim, action or proceeding (or series of related, claims actions or proceedings) which shall involve payments after the date hereof in excess of $75,000.

(b) The Company has made available to Parent correct and complete copies of all Company Material Contracts, including any amendments thereto. Except as set forth on Section 3.16(b) of the Company Disclosure Schedule, (i) neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Material Contract and, as of the date hereof, to the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract and (ii) each Material Contract, in all material respects, is in full force and effect and is a legal, valid and binding agreement of the Company or a Company Subsidiary, as the case may be, and, to the Knowledge of the Company, of each other party thereto, Enforceable against the Company or Company Subsidiary, as the case may be, and to the Knowledge of the Company, against the other party or parties thereto.

Section 3.17 Insurance. All insurance policies and Contracts of the Company and the Company Subsidiaries are set forth on Section 3.17 of the Company Disclosure Schedule and are, in all material respects, in full force and effect and are valid and Enforceable, and all premiums due thereunder have been paid. Neither the Company nor any of the Company Subsidiaries has received notice of cancellation or termination with respect to any material third party insurance policies or Contracts (other than in connection with normal renewals of any such insurance policies or Contracts).

Section 3.18 Finders and Brokers. Neither the Company nor any Company Subsidiary, nor any of their respective affiliates, nor any of their respective officers or directors in their capacity as officers or directors, has employed any investment banker, broker or finder in connection with the Transactions, other than Piper Jaffray & Co., a copy of whose engagement agreement (and all indemnification and other agreements related to such engagement) has been made available to Parent, who would be entitled to any fee or commission in connection with or upon consummation of the Offer, the Merger or the Transactions.

Section 3.19 Fairness Opinion. The Company has received the opinion of Piper Jaffray & Co. (and has provided a copy of such opinion to Parent) to the effect that, as of the date of this Agreement and based upon and subject to the qualifications and assumptions set forth therein (including that all Preferred Shares have been fully converted into Common Shares at the existing 2,500-for-1 conversion ratio and that all in-the-money Company Options have been exercised), the Common Offer Price is fair, from a financial point of view, to the holders of the Common Shares; and as of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.

Section 3.20 Information Supplied. None of the information with respect to the Company or the Company Subsidiaries supplied or to be supplied by or on behalf of the Company and the Company Subsidiaries expressly for inclusion or incorporation by reference in the Offer Documents or the Schedule 14D-9 will, at the time such documents are filed with the SEC or at the time such documents are first published, amended or supplemented, sent or given to the Company’s stockholders, or at the Offer Acceptance Time contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. For clarity, the representations and warranties in this Section 3.20 will not apply to statements or omissions included or incorporated by reference in the Offer Documents or the Schedule 14D-9 based upon information supplied to the Company in writing by Parent or Merger Sub or any of their Representatives specifically for inclusion therein. The Offer Documents and Schedule 14D-9 will comply as to form in all material respects with the requirements of the Exchange Act.

Section 3.21 Inapplicability of Takeover Laws. Assuming the accuracy of Parent’s and Merger Sub’s representation and warranty set forth in Section 4.8, the Company Board or a duly authorized committee thereof has taken all actions so that the restrictions applicable to business combinations contained in Section 203 of the DGCL are inapplicable to the execution, delivery and performance of this Agreement, the Tender and Support Agreements and the consummation of the Transactions. No “fair price,” “moratorium,” “control share acquisition” or other similar anti-takeover statute or regulation or any anti-takeover provision in the Company Governing Documents is, or at the Effective Time will be, applicable to the Shares, the Offer, the Merger or the other Transactions.

Section 3.22 Vote Required. No stockholder votes or consents are necessary to authorize or adopt this Agreement or to consummate the Transactions.

Section 3.23 Foreign Corrupt Practices. Neither the Company, any Company Subsidiary, nor, to the Knowledge of the Company, any agent or other person acting on behalf of the Company or any Company Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Company Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended, applicable to it.

Section 3.24 USDA. As to each product subject to the jurisdiction of the United States Department of Agriculture (“USDA”) that is manufactured, packaged, labeled, tested, distributed, sold, or marketed by the Company or any Company Subsidiaries (each such product, a “Regulated Product”), such Regulated Product is being manufactured, packaged, labeled, tested, distributed, sold or marketed in compliance, in all material respects, with all applicable requirements under applicable USDA Laws relating to testing, development, registration, premarket clearance, licensure, application approval, product listing, quotas, labeling, advertising, record keeping and filing of reports. To the Company’s Knowledge, there is no pending, completed or threatened Legal Proceeding against the Company or any Company Subsidiary, and none of the Company or any of the Company Subsidiaries has received any notice, warning letter or other written communication from the USDA which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Regulated Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Regulated Product, (iii) enjoins production at any facility of the Company or any of its Subsidiaries, (iv) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of the Company Subsidiaries, or (v) otherwise alleges any violation of any Laws by the Company or any of the Company Subsidiaries. The Company has not been informed in writing by the USDA that the USDA will prohibit the marketing, sale, license or use in the United States of any product produced or marketed by the Company. With respect to any product produced or marketed by the Company that was created through biolistic technology or other biotechnology not utilizing bacterium or viruses, the USDA has not informed the Company in writing that the USDA considers such product a Regulated Product.

Section 3.25 No Other Representations. Except for the representations and warranties contained in Article IV, the Company acknowledges that neither Parent nor Merger Sub nor any Representative of Parent or Merger Sub makes, and the Company acknowledges that it has not relied upon or otherwise been induced by, any other express or implied representation or warranty with respect to Parent or with respect to any other information provided or made available to the Company in connection with the Transactions.

Article IV

REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUB

Except as disclosed in the applicable section of the disclosure schedule delivered by Parent to the Company immediately prior to the execution of this Agreement (the “Parent Disclosure Schedule”) (it being agreed that disclosure of any item in any section of the Parent Disclosure Schedule shall be deemed disclosure with respect to any other section of this Agreement to which the relevance of such item is reasonably apparent), Parent and Merger Sub jointly represent and warrant to the Company as set forth below.

Section 4.1 Qualification, Organization, Subsidiaries, etc.. Each of Parent and Merger Sub is a legal entity duly organized, validly existing and, with respect to jurisdictions that recognize the concept of good standing, in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted. All of the issued and outstanding shares of capital stock of, or other equity interests in, Merger Sub are issued directly to and owned directly by Parent.

Section 4.2 Corporate Authority Relative to this Agreement; No Violation.

(a) Parent and Merger Sub have all requisite corporate power and authority to enter into this Agreement to consummate the Transactions, including the Merger. The execution and delivery of this Agreement and the consummation of the Transactions have been duly and validly authorized by the Parent Board and, except for the filing of the Certificate of Merger with the DSOS, no other corporate proceedings on the part of Parent are necessary to authorize the consummation of the Transactions. Parent, as sole stockholder of Merger Sub, has duly executed and delivered to Merger Sub a written consent adopting this Agreement, such written consent by its terms to become effective immediately following the execution of this Agreement. This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and, assuming this Agreement constitutes the valid and binding agreement of the Company, constitutes the valid and binding agreement of Parent and Merger Sub, Enforceable against Parent and Merger Sub.

(b) The execution and delivery by Parent and Merger Sub of this Agreement do not, and the consummation of the Transactions and compliance with the provisions hereof will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of Contract binding upon Parent or result in the creation of any Lien upon any of the properties, rights or assets of Parent, (ii) conflict with or result in any violation of any provision of the respective organizational documents of Parent or Merger Sub or (iii) assuming all consents, approvals, authorizations and permits set forth on Section 4.2(c) of the Parent Disclosure Schedule have been obtained and all filings and notifications set forth on Section 4.2(c) of the Parent Disclosure Schedule have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Laws applicable to Parent or any of its properties or assets, other than in the case of clause (i), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

(c) The execution and delivery by Parent and Merger Sub of this Agreement do not, and the consummation of the Transactions and compliance with the provisions hereof will not, with or without notice of lapse of time, or both), require the consent, approval, authorization or permit of, or filing or registration with or notification to, any Governmental Entity, other than (i) the filing of the Certificate of Merger with the DSOS, (ii) compliance with the applicable requirements of the Exchange Act and the Securities Act or any other applicable U.S. state or federal or foreign securities Laws, (iii) filings with the SEC as may be required by Parent or Merger Sub in connection with this Agreement and the Transactions, (iv) such filings as may be required under the rules and regulations of NASDAQ, and (v) where the failure to obtain such consents, approvals, authorizations or permits of, or to make such filings, registrations with or notifications to any Governmental Entity or any other Person, individually or in the aggregate, would not be material to Parent or Merger Sub, taken as a whole, or prevent or materially delay, or would reasonably be expected to prevent or delay, the Offer or the Merger or performance by Parent of their respective obligations under this Agreement.

Section 4.3 Compliance with Law. Parent and Merger Sub are in material compliance with and are not in default under or in violation of any Laws, applicable to Parent, Merger Sub or any of their respective properties or assets.

Section 4.4 Information Supplied. None of the information with respect to Parent or Merger Sub supplied or to be supplied by or on behalf of Parent or Merger Sub expressly for inclusion or incorporation by reference in the Offer Documents or the Schedule 14D-9 will, at the time such documents are filed with the SEC, or at the time such documents are first published, amended or supplemented, sent or given to the Company’s stockholders or at the Offer Acceptance Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. For clarity, the representations and warranties in this Section 4.4 will not apply to statements or omissions included or incorporated by reference in the Offer Documents or the Schedule 14D-9 based upon information supplied to Parent in writing by the Company or the Company Subsidiary or any of their Representatives specifically for inclusion therein.

Section 4.5 Sufficiency of Funds; Solvency.

(a) Parent has and will have, and shall cause Merger Sub to have, at the Offer Acceptance Time and at the Closing, the funds necessary to consummate the Offer, the Merger and the other Transactions, including payment in cash of the aggregate Merger Consideration on the Closing Date, and to pay all related fees and expenses required to be paid by Parent and Merger Sub, and to perform their other respective obligations, under this Agreement.

(b) Without limiting Section 6.6, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any of their respective affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder.

(c) Immediately following the Closing, Parent and Surviving Corporation will be, individually and on a consolidated basis, Solvent after giving effect to the transactions contemplated by this Agreement or by Parent or any of its affiliates.

Section 4.6 Investigations; Litigation. As of the date of this Agreement (a) there is no investigation or review pending or, to the knowledge of Parent, threatened by any Governmental Entity with respect to Parent or any of its properties, rights or assets, and (b) there are no claims, actions, suits or proceedings pending or, to the knowledge of Parent, threatened against Parent or any of its properties, rights or assets before, and there are no orders, judgments or decrees of, any Governmental Entity, which, in the case of clause (a) or (b), would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, challenge the validity or propriety of the Offer or the Merger or otherwise seek to prevent or materially delay the consummation of the Offer or the Merger or performance by Parent and Merger Sub of their obligations under this Agreement.

Section 4.7 Finders and Brokers. Neither the Parent nor Merger Sub, nor any of their respective affiliates, nor any of their respective officers or directors in their capacity as officers or directors, has employed any investment banker, broker or finder in connection with the Transactions, other than Moelis & Company, who would be entitled to any fee, commission in connection with or upon consummation of the Offer, the Merger or the Transactions.

Section 4.8 Stock Ownership. Neither Parent, Merger Sub nor any of their respective “affiliates” or “associates” (as defined in Section 203 of the DGCL) is, nor at any time during the past three (3) years has been, an “interested stockholder” of the Company as defined in Section 203 of the DGCL. Parent does not directly or indirectly own, and at all times for the past three (3) years, has not owned, beneficially or otherwise, in excess of 1% of the Common Shares.

Section 4.9 No Merger Sub Activity. Merger Sub was formed solely for the purpose of engaging in the Transactions and, except for obligations or liabilities incurred in connection with its incorporation or organization and the Transactions, Merger Sub has not and will not prior to the Closing Date have incurred, directly or indirectly, through any other Subsidiary or affiliate of Parent or otherwise, any obligations or liabilities or have engaged in any business activities or conducted any operations of any type whatsoever (other than in connection with the Transactions). Parent owns beneficially and of record all of the outstanding capital stock of Merger Sub.

Section 4.10 No Other Representations. Except for the representations and warranties contained in Article III, Parent acknowledges that neither the Company nor any Representative of the Company makes, and Parent acknowledges that it has not relied upon or otherwise been induced by, any other express or implied representation or warranty with respect to the Company or any of the Company Subsidiaries or with respect to any other information provided or made available to Parent in connection with the Transactions, including any information, documents, projections, forecasts or other material made available to Parent or to Parent’s Representatives in certain “data rooms” or management presentations in expectation of the Transactions.

Article V

COVENANTS RELATING TO CONDUCT
OF BUSINESS PENDING THE CLOSING

Section 5.1 Conduct of Business by the Company Pending the Closing. The Company agrees that between the date of this Agreement and the Effective Time or the time, if any, at which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 5.1 of the Company Disclosure Schedule, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing by Parent, the Company (i) shall and shall cause each Company Subsidiary to, use its reasonable best efforts to prevent the occurrence of a Company Material Adverse Effect, conduct its business, in all material respects, in the ordinary course of business, including by using commercially reasonable efforts to preserve intact its and their present business organizations, material assets and the Material Intellectual Property and to preserve its and their present relationships with Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (s) of this Section 5.1 shall be deemed a breach of this clause (i) and (ii) agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned) the Company shall not, and shall not permit any Company Subsidiary to:

(a) except for a Company Certificate Reverse Split Amendment effected in compliance with Section 6.10 of this Agreement, amend or otherwise change the Company Certificate or Company Bylaws, or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwise;

(b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of (i) the Top-Up Shares upon exercise of the Top-Up Option or (ii) Common Shares issuable pursuant to the Company Options, the Company Warrants or the Preferred Shares, as the case may be, which Company Options, Company Warrants, Preferred Shares or rights, as the case may be, are outstanding on the date hereof);

(c) redeem, repurchase or otherwise acquire, directly or indirectly, any Shares (other than pursuant a repurchase right in favor of the Company with respect to unvested shares at no more than cost);

(d) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create a Lien on any assets (except for (i) sales of assets in the ordinary course of business and (ii) dispositions of obsolete or worthless assets) provided, however, that, if the Closing has not occurred on or before August 15, 2016, the Company shall have the right, in consultation with Parent, to incur indebtedness for borrowed money, or issue or sell debt securities, with a principal amount not to exceed $2,000,000 on such terms as are consented to by Parent in writing (such consent not to be unreasonably withheld, delayed or conditioned; it being understood and agreed that, in no event, shall Parent be required to consent to the incurrence of any indebtedness, or the issuance of sale of debt securities, that would result in the creation or imposition of any Lien on any of the assets of the Company or any Company Subsidiaries or that cannot be prepaid at any time prior to maturity without penalty or prepayment fees);

(e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Options, Restricted Shares, Company Warrants, Contract or this Agreement or as may be required by applicable Law;

(f) except for a Company Certificate Reverse Split Amendment effected in compliance with Section 6.10 of this Agreement, (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, except that a wholly owned Subsidiary may declare and pay a dividend to its parent, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (iii) amend the terms of, repurchase, redeem or otherwise acquire, or permit any Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its Subsidiaries, or (iv) take any action that would modify or change any term in any material respect of any Indebtedness of the Company or any of the Company Subsidiaries; or propose to do any of the foregoing;

(g) sell, lease, assign, transfer, abandon, fail to maintain, license, sublicense, subject to any Lien or otherwise dispose of any Material Intellectual Property or a material asset of the Company or a Company Subsidiary except (i) pursuant to existing Company Material Contracts or commitments, or (ii) licenses or sales of inventory in the ordinary course of business;

(h) subject to Section 5.3, (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material property or assets, (ii) enter into or amend any Company Material Contract or grant any release or relinquishment of any material rights under any Company Material Contract, (iii) authorize any capital expenditures or purchase of fixed assets which are, in the aggregate, in excess of $100,000, taken as a whole, or (iv) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h);

(i) forgive any loans to any Person, including its employees, officers, directors or affiliates;

(j) except to the extent required by applicable Laws or as required by any Company Benefit Plan or Material Contract in effect as of the date hereof (i) increase the compensation payable or to become payable to its directors, officers, employees or consultants or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer (except for officers who are terminated on an involuntary basis), employee or consultant, (ii) modify any existing salary, bonus, commission, severance, equity compensation or other equity arrangement or any other compensatory arrangement with any such Person (including under any profit sharing, management by objectives, incentive, gainsharing, competency or performance plan) or modify or waive any of the terms or conditions thereof or the performance or other criteria or conditions to payment or earning thereof, (iii) establish, adopt, enter into or amend any collective bargaining agreement, any Company Benefit Plan or any other bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any such director, officer, consultant or employee, or (iv) declare, pay, commit to, approve, or undertake any obligation of any other kind for the payment by the Company or any of the Company Subsidiaries of a bonus, commission or other additional salary, compensation or employee benefits to any such Person (including under any profit sharing, management by objectives, incentive, gainsharing, competency or performance plan);

(k) hire or engage any employees, consultants or contractors, except for (i) repair and maintenance contractors or (ii) outside legal counsel;

(l) take any action, other than as required by applicable Law or GAAP, to change accounting policies or procedures (following consultation with the Company’s independent auditor);

(m) agree to any exclusivity, non-competition, most favored nation, or similar provision or covenant restricting the Company, any of the Company Subsidiaries or any of their respective Affiliates from competing in any line of business or with any Person or in any area or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services), or pursuant to which any benefit or right would be required to be given or lost as a result of so competing or engaging, or which would have any such effect on Parent or any of its Affiliates after the Effective Time;

(n) enter into any Contract, or relinquish or terminate any Contract or other right, in any individual case with an annual value in excess of $100,000 or with a value over the life of the Contract in excess of $250,000;

(o) make, change or revoke any material Tax election, change any Tax accounting period, amend any material Tax Returns or file any material claim for Tax refunds, enter into any closing agreement or Tax ruling, enter into any Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement (other than any customary commercial or financing agreements, entered into in the ordinary course of business), consent to any waiver or extension with respect to any Tax proceeding, file any material Tax Return, in a manner inconsistent with past practice, file any material amended Tax Return, or settle or compromise any material Tax liability, surrender any right to claim a material Tax refund (including any such refund to the extent it is used to offset or otherwise reduce Tax liability), or agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes;

(p) (i) pay, discharge, settle or satisfy any claims, litigation, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities or obligations (x) fully reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company SEC Documents or (y) incurred in the ordinary course of business and in an amount less than $100,000 or (ii) cancel any material Indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value;

(q) enter into, or agree to enter into, any material partnership arrangements, joint development agreements or strategic alliances;

(r) initiate any litigation, action, suit, proceeding, claim or arbitration or settle or agree to settle any litigation, action, suit, proceeding, claim or arbitration (except in connection with this Agreement); or

(s) take, or agree in writing or otherwise to take, any of the actions described in this Section 5.1(a) through (r) above.

Section 5.2 No Solicitation.

(a) From and after the date of this Agreement until the earlier of the Offer Acceptance Time or the time, if any, at which this Agreement is terminated in accordance with Section 8.1 (the “Pre-Closing Period”), the Company agrees that it shall not (and that the Company shall cause each Company Subsidiary not to), and that it shall use its best efforts to cause its Representatives not to, directly or indirectly, solicit, initiate, knowingly encourage or knowingly facilitate the submission or an announcement of any Company Competing Proposal or the making of any inquiry, offer or proposal that could reasonably be expected to lead to any Company Competing Proposal or, except as otherwise specifically provided for in this Section 5.2, (i) participate in any negotiations regarding any Company Competing Proposal, (ii) afford any Person access to the business, properties, assets, employees, officers, directors, books or records of the Company or any Company Subsidiary, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary, in each case, in connection with any Company Competing Proposal or any inquiry, offer or proposal that could reasonably be expected to lead to any Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal or any inquiry, offer or proposal that could reasonably be expected to lead to any Company Competing Proposal, (iv) waive, terminate, modify or release any Person from any provision of or grant any permission, waiver or request under, or fail to enforce, any “standstill” or similar agreement or obligation (except that the Company may waive such a “standstill” or similar agreement or obligation solely to permit a Person privately to make a Competing Company Proposal to the Company Board if the Company Board has determined in good faith after consultation with the Company’s outside legal counsel that the failure to take such action would be inconsistent with the fiduciary duties of the members of the Company Board under Delaware law), (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL, (vi) enter into any letter of intent, agreement in principle, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to, or any agreement or commitment (X) contemplating or otherwise providing for, any Company Competing Proposal or (Y) requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or to breach its obligations hereunder, or (vii) resolve, propose or agree to do any of the foregoing. The Company shall immediately cease (and shall cause each Company Subsidiary to cease), and use its best efforts to cause its Representatives to cease, any and all discussions or negotiations with any Person conducted heretofore with respect to any Company Competing Proposal and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of any nonpublic information relating to the Company or any Company Subsidiary that was furnished by or on behalf of the Company or any Company Subsidiary (including by any Representative of the Company) to return or destroy (and confirm destruction of) all such information within five (5) Business Days of the date hereof. The Company shall immediately terminate the access of any Person to the electronic data room hosted by Merrill Corporation. The Company shall promptly, following the execution of this Agreement, inform its Representatives of the Company’s obligations under this Section 5.2. Without limiting the foregoing, the Company understands, and acknowledges and agrees, that any breach of the obligations set forth in this Section 5.2(a) by any Company Subsidiary or any Representative of the Company shall be deemed to be a breach of this Section 5.2(a) by the Company. For purposes of this Section 5.2, the term “Person” means any Person or “group,” as defined in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent and its affiliates (including Merger Sub) and Parent’s Representatives. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiaries and the Company’s Representatives may inform a Person that has made (prior to the date hereof) or makes (after the date hereof) a Company Competing Proposal of the provisions of this Section 5.2 so long as the Company, the Company Subsidiaries and the Company’s Representatives otherwise comply with this Section 5.2 in connection therewith.

(b) Notwithstanding the limitations set forth in Section 5.2(a), if the Company receives, prior to the Offer Acceptance Time a bona fide, unsolicited, written Company Competing Proposal from any Person not resulting from or arising out of the Company’s intentional breach of Section 5.2(a), which the Company Board determines, in good faith, after consultation with the Company’s outside legal and financial advisors (i) constitutes a Company Superior Proposal or (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clauses (x) or (y) below, in a Company Superior Proposal, then, in either event, with respect to such Company Competing Proposal or Person, the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement (a copy of which the Company shall provide to Parent within twenty-four (24) hours of its execution by the parties thereto) and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal, in each case, if and only if, with respect to each of clauses (x) and (y), the Company Board has determined, in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the members of the Company Board under applicable Law. The Company shall not shall not take any of the actions referred to in clauses (x) and (y) of this Section 5.2(b) unless the Company shall have notified Parent in writing at least twenty-four (24) hours before taking any such action that it intends to take such action.

(c) The Company shall notify Parent in writing promptly (but in no event later than twenty-four (24) hours) after receipt by the Company or any Company Subsidiary or any of the Company’s Representatives of any Company Competing Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to a Company Competing Proposal, or any request for nonpublic information relating to the Company or any Company Subsidiary or for access to the business, properties, assets, employees, officers, directors, books or records of the Company or any Company Subsidiary by any Person, in each case in connection with any Company Competing Proposal or inquiry, offer or proposal that would reasonably be expected to lead to a Company Competing Proposal. Such notice shall identify the Person making, and the material terms and conditions of, any such Company Competing Proposal, inquiry, offer, proposal or request. Commencing upon the provision of any notice referred to above in this Section 5.2(c), the Company shall keep Parent informed on a reasonably prompt basis of any material developments with respect to any such Company Competing Proposal and as promptly as practicable provide Parent with copies of any material written materials relating to such Company Competing Proposal or any material change to the financial or other material terms and conditions thereof. The Company shall promptly provide Parent with any nonpublic information concerning the business, present or future performance, financial condition or results of operations of the Company (or any Company Subsidiary), provided to any Person that was not previously provided to Parent. The Company shall provide Parent with at least 24 hours’ prior notice (or such lesser period of prior notice provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to consider any Company Competing Proposal.

(d) Except as otherwise specifically provided for in this Section 5.2(d), the Company Board shall not (i) approve, adopt or recommend or propose publicly to approve, adopt or recommend any Company Competing Proposal, (ii) other than in the case of a Company Competing Proposal in the form of a tender or exchange offer, fail to affirm publicly the Company Board Recommendation upon Parent’s written request within five (5) Business Days after such request after a public announcement of a Company Competing Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Merger Sub) for the Common Shares or the Preferred Shares prior to the eleventh (11th) Business Day after the commencement of such tender or exchange offer pursuant to Rule 14d-2 under the Exchange Act, (iv) fail to make the Company Board Recommendation, (v) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, or (vi) resolve or agree to take any of the foregoing actions (any of the foregoing, a “Company Change of Recommendation”). Notwithstanding anything in this Section 5.2(d) to the contrary, at any time prior to the Offer Acceptance Time, the Company Board may make a Company Change of Recommendation in response to (i) a Company Intervening Event, if and only if (A) the Company Board has determined in good faith that a Company Intervening Event has occurred, (B) the Company complies with Section 5.2(e) and (C) following the expiration of the notice period (and any extensions thereof) described in Section 5.2(e), the Company Board determines, in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the members of the Company Board under applicable Law or (ii) a Company Superior Proposal, if and only if, (X) the Company complies with Section 5.2(e), (Y) Parent does not make, within the notice period (and any extensions thereof) described in Section 5.2(e), an offer that the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisor, to be at least as favorable to the stockholders of the Company as such Company Superior Proposal and (Z) following the expiration of the notice period (and any extensions thereof) described in Section 5.2(e), the Company Board determines, in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the members of the Company Board under applicable Law. In the event that the Company Board makes a Company Change of Recommendation in compliance with this Section 5.2(d), the restrictions set forth in Section 16 of the Confidentiality Agreement shall no longer apply.

(e) Prior to the Company making a Company Change in Recommendation in response to an Intervening Event, the Company shall provide Parent with four (4) Business Days’ prior written notice advising Parent that it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to the applicable Company Intervening Event), and during such four (4) Business Day period, (i) the Company shall negotiate, and cause its Representatives to negotiate, with Parent and its Representatives in good faith (to the extent Parent wishes to negotiate) to enable Parent to inquire into the facts underlying such Company Intervening Event and to determine whether to propose revisions to the terms of this Agreement such that it would obviate the need for the Company Board to make a Company Change of Recommendation and (ii) the Company shall consider in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. Prior to the Company making a Company Change in Recommendation in response to a Company Superior Proposal, the Company shall provide Parent with four (4) Business Days’ prior written notice (it being understood and agreed that each material amendment to the applicable Company Superior Proposal, including any revision to price, shall require a new notice and an additional two (2) Business Day period and that there may be multiple extensions of the notice period) advising Parent that the Company Board intends to take such action and contemporaneously providing to Parent a copy of the Company Superior Proposal, a copy of any proposed agreements for such Company Superior Proposal (including any financing commitments related thereto) (or, in each case, if not provided in writing to the Company or any of its Representatives, a written summary of the terms thereof) and the identity of the Person making the Company Superior Proposal, and during such four (4) Business Day period (or subsequent two (2) Business Day period or periods), (x) the Company shall negotiate, and cause its Representatives to negotiate, with Parent and its Representatives in good faith (to the extent Parent wishes to negotiate) to enable Parent to determine whether to propose revisions to the terms of this Agreement or any other agreement related to the Transactions such that such Company Superior Proposal would no longer constitute a Company Superior Proposal and (y) the Company shall consider in good faith any proposal by Parent to amend the terms and conditions of this Agreement or any other agreement related to the Transactions such that such Company Superior Proposal would no longer constitute a Company Superior Proposal.

(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the fiduciary duties of the members of the Company Board under applicable Delaware Law or if such disclosure is otherwise required by Law; provided, however, that this Section 5.2(f) shall not permit the Company Board to make a Company Change of Recommendation except in compliance with Section 5.2(d) and Section 5.2(e).

(g) References in this Section 5.2 to the “Company Board” shall include, to the extent applicable, a duly authorized committee thereof.

Section 5.3 Persephone Divestiture Transaction. Notwithstanding anything to the contrary in this Agreement, from the date hereof through the Effective Time, the Company may solicit from Persons proposals that exclusively relate to a Persephone Divesture Transaction and may negotiate with Persons the terms of a Persephone Divesture Transaction; provided, however, the Company agrees that it shall not enter into a definitive agreement with respect to any Persephone Divestiture Transaction without Parent’s prior written consent.

Article VI

ADDITIONAL AGREEMENTS

Section 6.1 Access; Confidentiality; Notice of Certain Events.

(a) During the Pre-Closing Period, to the extent permitted by applicable Law, the Company shall, and the Company shall cause each of the Company Subsidiaries to, afford to Parent and Parent’s Representatives reasonable access during normal business hours and upon reasonable advance notice to all of the respective properties, offices, books, contracts, commitments, personnel and records of the Company and the Company Subsidiaries and, during such period, the Company and Parent shall, and Company shall cause each of the Company Subsidiaries to, furnish reasonably promptly to Parent and Parent’s Representatives all information (financial or otherwise) concerning its business, properties and personnel as Parent may reasonably request. Notwithstanding the foregoing, the Company shall not be required by this Section 6.1 to provide Parent and Parent’s Representatives with access to or to disclose information (A) that such Party or its Representatives is prohibited from providing under the terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement or entered into after the date of this Agreement in the ordinary course of business and not otherwise in breach of this Agreement (provided, however, that the Company shall use reasonable best efforts to obtain the required consent of such third party to such access or disclosure), (B) the disclosure of which would violate any applicable Law or legal duty (provided, however, that the Company shall use reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of any such Law or duty) or (C) that is subject to any attorney-client, attorney work product or other legal privilege (provided, however, that the Parent and Parent’s Representatives shall use reasonable best efforts to allow for such access or disclosure to the maximum extent that does not result in a loss of any such attorney-client, attorney work product or other legal privilege). Parent shall use reasonable best efforts to minimize any disruption to the businesses of the Company that may result from the requests for access, data and information hereunder.

(b) Parent shall hold, and shall cause its Representatives and affiliates to hold, any nonpublic information, including any information exchanged pursuant to this Section 6.1, in confidence to the extent required by and in accordance with, and shall otherwise comply with, the terms of the Confidentiality Agreement.

(c) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, (i) of any notice or other communication received by such Party from any Governmental Entity in connection with this Agreement, the Offer, the Merger or other Transactions, or from any Person alleging that the consent of such Person is or may be required in connection with the Offer, the Merger or the other Transactions, (ii) of any Legal Proceeding commenced or, to any Party’s knowledge, threatened against, such Party or any of its Subsidiaries or affiliates or otherwise relating to, involving or affecting such Party or any of its Subsidiaries or affiliates, in each case in connection with, arising from or otherwise relating to this Agreement, the Offer, the Merger or other Transactions, (iii) any notice or other communication received by any Party from any Person requesting the convening of a meeting of the shareholders of such Party and (iv) upon becoming aware of the occurrence or impending occurrence of any event or circumstance relating to it or, in the case of the Company, any of the Company Subsidiaries, which would reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect, as the case may be, or which would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions; provided, however, that the delivery of any notice pursuant to this Section 6.1(c) shall not cure any breach of any representation or warranty requiring disclosure of such matter prior to the date of this Agreement or otherwise limit or affect the remedies available hereunder to any Party. In addition, the Company shall give prompt notice to Parent of any inaccuracy of any representation or warranty of the Company or breach of any covenant or agreement by the Company contained in this Agreement at any time during the term hereof that would reasonably be expected to cause the Minimum Condition or items (b)(i) or (ii) in Annex I not to be satisfied at the Offer Acceptance Time.

Section 6.2 Reasonable Best Efforts.

(a) Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under applicable Laws to consummate the Merger and the other Transactions as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other Party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents and (ii) using its reasonable best efforts to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary to be obtained by such Party from any third party or any Governmental Entity in order to consummate the Merger or any of the other Transactions.

(b) Notwithstanding anything to the contrary herein, in connection with the receipt of any necessary approvals or clearances by Governmental Entities (including under any applicable antitrust Law), nothing in this Agreement shall require Parent or any of its affiliates to, nor shall the Company or any of its affiliates without the prior written consent of Parent agree or proffer to, divest, hold separate, or enter into any license or similar agreement with respect to, or agree to restrict the ownership or operation of, or agree to conduct or operate in a specified manner, any portion of the business or assets of Parent, the Company or any of their respective affiliates. Notwithstanding anything to the contrary herein, in no event shall Parent or any of its affiliates be obligated to litigate or participate in the litigation of any Legal Proceeding, whether judicial or administrative, brought by any Governmental Entity or appeal any order (i) challenging or seeking to make illegal, delay materially or otherwise directly or indirectly restrain or prohibit the Offer or the consummation of the Merger or the other Transactions or seeking to obtain from Parent or any of its affiliates any damages in connection therewith, or (ii) seeking to prohibit or limit in any respect, or place any conditions on, the ownership or operation by the Company, Parent or any of their respective affiliates of all or any portion of the business, assets or any product of the Company or any of its affiliates or Parent or any of its affiliates or to require any such Person to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or enter into a consent decree or hold separate all or any portion of the business, assets or any product of the Company or any of its affiliates or Parent or any of its affiliates, in each case as a result of or in connection with the Offer, the Merger or any of the other Transactions.

Section 6.3 Publicity. So long as this Agreement is in effect, neither the Company nor Parent, nor any of their respective affiliates or Representatives, shall issue or cause the publication of any press release or other public announcement with respect to the Offer, the Merger or this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, unless (i) such Party determines, after consultation with outside counsel, that it is required by applicable Law or by any listing agreement with or the listing rules of a national securities exchange or trading market to issue or cause the publication of any press release or other public announcement with respect to the Offer, the Merger, this Agreement or the other Transactions, or (ii) such press release or other public announcement relates to a Company Competing Proposal and is expressly permitted under Section 5.2, in which event such Party shall endeavor, on a basis reasonable under the circumstances, to provide a meaningful opportunity to the other Party to review and comment upon such press release or other announcement as far in advance as practicable and shall give due consideration to all reasonable additions, deletions or changes suggested thereto.

Section 6.4 Directors’ and Officers’ Insurance and Indemnification. For not less than six (6) years from and after the Effective Time, Parent shall cause the Surviving Corporation to indemnify and hold harmless all past and present directors and officers of the Company and the Company Subsidiaries (collectively, the “Indemnified Parties”) against any costs or expenses (including advancing reasonable attorneys’ fees and expenses in advance of the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law; provided, however, that such Indemnified Party agrees in advance to return any such funds to which a court of competent jurisdiction has determined in a final, nonappealable judgment such Indemnified Party is not ultimately entitled), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, investigation, suit or proceeding in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other Transactions), whether asserted or claimed prior to, at or after the Effective Time, in connection with such persons serving as an officer or director of the Company or any of the Company Subsidiaries or of any Person serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee or agent of another Person, to the fullest extent permitted by Law or provided pursuant to the Company Governing Documents, the organizational documents of any Company Subsidiary or any agreement set forth on Section 6.4 of the Company Disclosure Schedule, as in existence on the date of this Agreement. The Parties agree that for six (6) years after the Effective Time all rights to elimination or limitation of liability, indemnification and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the Indemnified Parties as provided in the Company Governing Documents or the organizational documents of any Company Subsidiary or any agreement set forth on Section 6.4 of the Company Disclosure Schedule shall survive the Merger and shall continue in full force and effect. For six (6) years after the Effective Time, the Surviving Corporation shall cause to be maintained in effect the provisions in the Company Governing Documents and the organizational documents of any Company Subsidiary and any agreement set forth on Section 6.4 of the Company Disclosure Schedule with any Indemnified Party, in each case, regarding elimination or limitation of liability, indemnification of officers, directors, employees and agents or other fiduciaries and advancement of expenses that are in existence on the date of this Agreement, and no such provision shall be amended, modified or repealed in any manner that would adversely affect the rights or protections thereunder of any such Indemnified Party in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other Transactions) without the consent of such Indemnified Party. Parent shall cause the Surviving Corporation to provide, for an aggregate period of not less than six (6) years from the Effective Time, the Company’s current directors and officers an insurance and indemnification policy that provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) that is no less favorable than the Company’s existing policy as of the date of this Agreement or, if insurance coverage that is no less favorable is unavailable, the best available coverage; provided, however, that the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of three hundred percent (300%) of the last annual premium paid prior to the date of this Agreement or, if less, the cost of a policy providing coverage on the same terms as the Company’s existing policy as of the date of this Agreement; provided, further, that the Company may prior to the Effective Time substitute therefor a single premium tail coverage with respect to D&O Insurance with an annual cost not in excess of three hundred percent (300%) of the last annual premium paid prior to the date of this Agreement. Notwithstanding anything in this Section 6.4 to the contrary, if any Indemnified Party notifies Parent on or prior to the sixth (6th) anniversary of the Effective Time of a matter in respect of which such Person may seek indemnification pursuant to this Section 6.4, the provisions of this Section 6.4 that require the Surviving Corporation to indemnify and advance expenses shall continue in effect with respect to such matter until the final disposition of all claims, actions, investigations, suits and proceedings relating thereto. In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.4. The rights and obligations under this Section 6.4 shall survive consummation of the Merger and shall not be terminated or amended in a manner that is adverse to any Indemnified Party without the written consent of such Indemnified Party. The provisions of this Section 6.4 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her legal representatives.

Section 6.5 Takeover Statutes. The Parties shall (a) take all action necessary so that no Takeover Statute or, in the case of the Company, any similar provision of the Company Governing Documents, is or becomes applicable to the Merger, the Tender and Support Agreements or any of the other Transactions and (b) if any such Takeover Statute or, in the case of the Company, any similar provision of the Company Governing Documents, is or becomes applicable to any of the foregoing, to take all action necessary so that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to eliminate or minimize the effect of such Takeover Statute on the Merger and the other Transactions.

Section 6.6 Obligations of Merger Sub. Parent shall take all action necessary to cause Merger Sub to perform its respective obligations under this Agreement and to cause Merger Sub to consummate the Transactions, including the Merger, upon the terms and subject to the conditions set forth in this Agreement.

Section 6.7 Employee Benefits Matters.

(a) Each employee who, after the Closing Date, continues to be actively employed by the Parent or the Surviving Corporation or any Subsidiary thereof (the “Continuing Employees”), will receive credit, under each employee benefit plan sponsored by Parent under which such Continuing Employee is eligible to participate, for periods of employment with the Company (including any current or former affiliate of the Company or any predecessor of the Company to the extent such service was recognized by the respective Company Benefit Plan) for purposes of calculating such Continuing Employee’s eligibility and vesting service and, in addition, for purposes of calculating benefit amounts under any severance or vacation plan; provided, prior service credit will not be recognized to the extent that it would result in a duplication of benefits with respect to the same period of service.

(b) If requested by Parent in writing delivered to the Company not less than ten (10) Business Days before the Closing Date, the Company Board (or the appropriate committee thereof) shall adopt resolutions and take such corporate action as is necessary to fully terminate any 401(k) plans maintained by the Company or any of its Subsidiaries (collectively, the “Company 401(k) Plans”), fully vest the accounts of all participants in such Company 401(k) Plans as required by Law and amend such Company 401(k) Plans to the extent necessary to allow for a rollover distribution of a plan loan (as noted below), effective as of the day prior to the Closing Date. Following the Effective Time and as soon as practicable following the termination of the Company 401(k) Plans, the assets thereof shall be distributed to the participants. Parent or the Surviving Corporation shall permit each Continuing Employee to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code), in an amount equal to the full account balance (including outstanding loan balances) distributed to such Continuing Employees from the Company 401(k) Plans to Parent’s or the Surviving Corporation’s applicable 401(k) plan, subject to any rules or procedures of the Parent’s or the Surviving Corporation’s 401(k) plan.

(c) No Continuing Employee or any other Person (including any current or former employee, leased employee, independent contractor or consultant of the Company, any Company Subsidiary or any affiliate) is a third party beneficiary of any term in this Section 6.7. Nothing in this Agreement shall confer upon any Continuing Employee (or any current or former employee, leased employee, independent contractor or consultant of the Company, Company Subsidiaries, Parent, Merger Sub, Surviving Corporation or any of their affiliates) any right to continue in the employ or service of Parent, Merger Sub, the Surviving Corporation or any affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, Merger Sub, the Surviving Corporation or any affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee (or the employment of any other individual) at any time for any reason whatsoever, with or without cause. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.7 shall (i) be deemed or construed to be an amendment or other modification of any Company Benefit Plan or employee benefit plan of the Parent, Merger Sub, Surviving Corporation or any affiliate of Parent, (ii) create any third party rights in any current or former service provider of the Company, the Company Subsidiaries or affiliates (or any beneficiaries or dependents thereof), or (iii) alter or limit the ability of the Surviving Corporation, Parent or any of their respective affiliates to amend, modify or terminate any Company Benefit Plan or other employee benefit program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them.

(d) The Company shall provide Parent with a copy of any written communications intended for distribution to any current or former employees of the Company or any of the Company Subsidiaries if such communications relate to such current or former employee’s employment relationship in connection with any of the Transactions, and shall provide Parent with a reasonable opportunity to review and comment on such communications prior to distribution.

Section 6.8 Security Holder Litigation. Each Party shall provide the other Party prompt oral notice (but in any event within twenty-four (24) hours) of any litigation brought or threatened by any stockholder of that Party against such Party, any of its Subsidiaries or any of their respective directors or officers relating to the Merger, this Agreement or any of the Transactions. Unless, in the case of such litigation with respect to the Company, the Company Board (or a duly authorized committee thereof) has made a Company Change of Recommendation pursuant to Section 5.2, the Company shall give Parent the opportunity to participate (at Parent’s expense) in the defense, prosecution or settlement of any such litigation, and the Company shall not offer to settle any such litigation, nor shall any such settlement be agreed to without Parent’s prior written consent. In the event of, and to the extent of, any conflict or overlap between the provisions of this Section 6.8 and Section 5.1 or Section 6.2, the provisions of this Section 6.8 shall control.

Section 6.9 Delisting. Subject to Section 6.10, and notwithstanding any provision to the contrary in this Agreement other than Section 6.10, the Company may pay any commercially reasonable fee, penalty or other amount, submit any application or other document to NASDAQ, and take, or agree to take, any other appropriate action reasonably necessary to appeal or prevent any possible delisting of the Common Shares from NASDAQ prior to the Effective Time. Each of the Parties agrees to cooperate with the other Parties in taking, or causing to be taken, all actions necessary to delist the Common Shares from NASDAQ and terminate its registration under the Exchange Act, provided that such delisting and termination shall not be effective until after the Effective Time. If the Company is delisted from NASDAQ after the date hereof, prior to the Effective Time the Company may pursue the listing or trading of the Company’s Common Shares on another exchange or trading market; provided, however, that the Company shall not incur any expense in excess of $100,000 in connection with the pursuit of such listing or trading without the prior, written consent of Parent.

Section 6.10 Company Certificate Amendment. The Company shall have the right to effect a reverse stock split of the Common Shares by filing a Company Certificate Reverse Split Amendment at any time after the date of this Agreement and prior to the commencement of the Offer, provided that the Company shall (i) provide at least three (3) Business Days’ notice to Parent before filing the Company Certificate Reverse Split Amendment with the DSOS, (ii) provide Parent an opportunity to review and comment on the form of the Company Certificate Reverse Split Amendment, including the ratio of the proposed reverse stock split and (iii) reasonably consider Parent’s comments and input into the size of the reverse stock split. Following the commencement of the Offer until the earlier of the Effective Time of the termination of this Agreement pursuant to Article VIII, the Company shall not, unless necessary to maintain its NASDAQ listing following the expiration of all available extension periods and the exhaustion of all available appeals processes, effect a reverse stock split of the Common Shares or file a Company Certificate Reverse Split Amendment without the prior, written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned).

Section 6.11 Rule 14d-10 Matters. Prior to the Offer Acceptance Time, the Company (acting through the Company Board and its compensation committee) shall take all such steps as may be required to cause to be exempt under Rule 14d-10(d) promulgated under the Exchange Act any employment compensation, severance or other employee benefit arrangement entered into on or after the date hereof by the Company or any of its affiliates, or the agreements set forth on Section 6.11 of the Company Disclosure Schedule by the Parent or any of its affiliates, with current or future directors, officers or employees of the Company and its affiliates and to ensure that any such arrangements fall within the safe harbor provisions of such Rule. Parent and its counsel shall be given reasonable opportunity to review and comment on any resolutions proposed for adoption by the Company Board or its compensation committee in connection with this Section 6.11 prior to adoption.

Section 6.12 Section 16 Matters. Prior to the Effective Time, the Company may approve, in accordance with the procedures set forth in Rule 16b-3 promulgated under the Exchange Act and in accordance with the Interpretative Letter dated January 12, 1999 issued by the SEC relating to Rule 16b-3, any dispositions of equity securities of the Company (including derivative securities with respect to equity securities of the Company) resulting from the transactions contemplated by this Agreement by each officer or director of the Company who is subject to Section 16 of the Exchange Act with respect to equity securities of the Company and any affiliate of a director of the Company that may rely on Rule 16b-3.

Article VII

CONDITIONS TO CONSUMMATION OF THE MERGER

Section 7.1 Conditions to Each Party’s Obligations to Effect the Merger. The respective obligations of each Party to effect the Merger shall be subject to the satisfaction at the Effective Time of each of the following conditions, any and all of which may be waived in whole or in part by Parent and the Company, as the case may be, to the extent permitted by applicable Law:

(a) No Restraints. No temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Merger shall have been issued by any Governmental Entity of competent jurisdiction and remain in effect, and there shall not be any action taken, any Law or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Merger by any Governmental Entity which directly or indirectly prohibits, or makes illegal, the consummation of the Merger.

(b) Consummation of Offer. Merger Sub (or Parent on Merger Sub’s behalf) shall have accepted for payment all of the Common Shares validly tendered pursuant to the Offer and not validly withdrawn.

(c) Triggering Event. If a Triggering Event has occurred, Merger Sub shall hold Common Shares (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository for the Offer in full settlement or satisfaction of such guarantee) and including any Top-Up Shares) representing at least ninety percent (90%) of the Common Shares then outstanding.

Section 7.2 Frustration of Conditions. None of the Company, Parent or Merger Sub may rely on the failure of any condition set forth in Section 7.1 if such failure was caused by such Party’s failure to use its reasonable best efforts to consummate the transactions contemplated by this Agreement, as required by and subject to Section 6.2.

Article VIII

TERMINATION

Section 8.1 Termination. This Agreement may be terminated, and the Offer and Merger may be abandoned (notwithstanding adoption of this Agreement by Parent as sole stockholder of Merger Sub):

(a) at any time prior to the Effective Time, by mutual written consent of Parent and the Company;

(b) at any time prior to the Effective Time, by either Parent or the Company, by written notice to the other, if a court of competent jurisdiction or other Governmental Entity of competent jurisdiction has issued a final and nonappealable order, decree or ruling, adopted any applicable Law, or has taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the acceptance for payment of Common Shares pursuant to the Offer or the Merger or making consummation of the Offer or the Merger illegal; provided, however, that a Party terminating this Agreement pursuant to this Section 8.1(b) shall remain liable to the other Party if such terminating Party has not complied with its obligations under Section 6.2 prior to such termination;

(c) at any time prior to the Offer Acceptance Time, by Parent, by written notice to the Company, if (i) the Company Board or any committee thereof has made a Company Change of Recommendation or otherwise approved, endorsed or recommended a Competing Company Proposal or (ii) the Company, any Company Subsidiary or any of their Representatives has materially breached any of the obligations under Section 5.2;

(d) at any time prior to the Effective Time, by either Parent or the Company, by written notice to the other, if (i) the Offer Acceptance Time has not occurred on or prior to the close of business on the ninetieth (90th) day after the date hereof (the “End Date”) or (ii) the Offer is terminated or withdrawn pursuant to its terms and the terms of this Agreement; provided, however, that a Party shall not be permitted to terminate this Agreement pursuant to either clause of this Section 8.1(d) if a breach by such Party of any provision of this Agreement shall have been the primary cause of, or resulted in, the event specified in such clause;

(e) at any time prior to the Offer Acceptance Time, by the Company, by written notice to Parent, in order to accept a Company Superior Proposal and enter into the Superior Proposal Acquisition Agreement relating to such Company Superior Proposal if the Company Board, or a duly authorized committee thereof, has authorized the Company, in compliance with the terms of this Agreement (including Section 5.2), to make a Change in Company Recommendation as a result of such Company Superior Proposal; provided, however, that the Company has paid all amounts due pursuant to Section 8.2(b) in accordance with the terms, and at the times, specified therein; and provided, further, that, in the event of such termination, the Company substantially concurrently enters into the Superior Proposal Acquisition Agreement;

(f) at any time prior to the Offer Acceptance Time, by Parent, by written notice to the Company, if a breach of any representation or warranty or failure to perform any covenant or obligation contained in this Agreement on the part of the Company has occurred that would cause a failure of the conditions in Annex I to be satisfied, including any Effect that would cause a failure of the condition set forth in Section (b)(iv) of Annex I to have occurred; provided, however, that, for purposes of this Section 8.1(f), if such a breach is curable by the Company through the exercise of commercially reasonable efforts by the earlier of the End Date and thirty (30) days following the date on which Parent gives the Company notice of such breach, and the Company is continuing to use commercially reasonable efforts to cure such breach, then Parent may not terminate this Agreement under this Section 8.1(f) on account of such breach unless such breach remains uncured upon the earlier of the End Date and the expiration of such thirty (30)-day period;

(g) at any time prior to the Offer Acceptance Time, by the Company, by written notice to Parent, if a breach of any representation or warranty or failure to perform any covenant or obligation contained in this Agreement on the part of Parent has had a Parent Material Adverse Effect; provided, however, that, for purposes of this Section 8.1(g), if such a breach is curable by Parent through the exercise of commercially reasonable efforts by the earlier of the End Date and thirty (30) days following the date on which the Company gives Parent notice of such breach, and Parent is continuing to use commercially reasonable efforts to cure such breach, then the Company may not terminate this Agreement under this Section 8.1(g) on account of such breach unless such breach remains uncured upon the earlier of the End Date and the expiration of such thirty (30)-day period; or

(h) at any time prior to the Offer Acceptance Time, by the Company, by written notice to Parent, if Merger Sub shall have terminated the Offer prior to the Expiration Date other than in accordance with this Agreement.

Section 8.2 Effect of Termination.

(a) In the event of the termination of this Agreement as provided in Section 8.1, written notice thereof shall forthwith be given to the other Party or Parties specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void and there shall be no liability on the part of Parent, Merger Sub or the Company, except that the Confidentiality Agreement, this Section 8.2 and Article IX shall survive such termination; provided, however, that nothing herein shall relieve any Party from liability for (i) fraud or (ii) a Willful Breach of its representations, warranties, covenants or agreements set forth in this Agreement prior to such termination, if such termination results from such breach by a Party of its representations, warranties, covenants or agreements set forth in this Agreement.

(b) Company Termination Fee.

(i) If Parent terminates this Agreement pursuant to Section 8.1(c), the Company shall pay or cause to be paid to Parent a fee of $695,000 in cash (the “Company Termination Fee”) within two (2) Business Days after such termination.

(ii) If (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(d) or Parent terminates this Agreement pursuant to Section 8.1(f), (B) a Company Competing Proposal shall have been publicly disclosed and not publicly, irrevocably withdrawn prior to the date of such termination, and (C) within twelve (12) months of such termination (1) the Company consummates any transaction contemplated by any Company Competing Proposal, or (2) the Company enters into a definitive agreement providing for any Company Competing Proposal, then the Company shall pay or cause to be paid to Parent the Company Termination Fee within two (2) Business Days after the consummation of such transaction, or the entry into of such definitive agreement.

(iii) If the Company terminates this Agreement pursuant to Section 8.1(e), the Company shall pay or cause to be paid to Parent the Company Termination Fee on the day such termination occurs and substantially concurrently with such termination.

(iv) In the event any amount is payable pursuant to this Section 8.2(b), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent.

(v) For the avoidance of doubt, in no event shall the Company be obligated to pay the Company Termination Fee on more than one (1) occasion.

(c) Each of the Parties acknowledges that the agreements contained in this Section 8.2 are an integral part of the Transactions and that the Company Termination Fee is not a penalty, but rather is a reasonable amount that shall compensate Parent and Merger Sub in the circumstances in which such payment is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.

Article IX

MISCELLANEOUS

Section 9.1 Amendment and Modification; Waiver.

(a) Subject to applicable Law and except as otherwise provided in this Agreement, prior to the Effective Time, this Agreement may be amended, modified and supplemented, by written agreement of each Party (as approved by action taken by its board of directors or a duly authorized committee thereof). This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.

(b) At any time prior to the Effective Time, to the extent permitted by applicable Law, the Parties may, by action taken or authorized by each Party’s board of directors, or a duly authorized committee thereof, (i) extend the time for the performance of any of the obligations or acts of the other Parties, (ii) waive any inaccuracies in the representations and warranties of the other Parties set forth in this Agreement or any document delivered pursuant hereto or (iii) subject to applicable Law, waive compliance with any of the agreements or conditions of the other Parties contained herein. Any agreement on the part of a Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such Party. No failure or delay of any Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.

Section 9.2 Non-Survival of Representations and Warranties. None of the representations and warranties in this Agreement or in any schedule, instrument or other document delivered pursuant to this Agreement shall survive the Effective Time. This Section 9.2 shall not limit any covenant or agreement of the Parties which by its terms contemplates performance after the Effective Time. The Parties acknowledge and agree that, from and after the Effective Time, they shall not be permitted to make, and no Party shall have any liability or obligation with respect to, any claims for any breach of any representation or warranty set forth herein or any covenant or agreement herein that is to have been performed by another Party on or prior to the Closing.

Section 9.3 Expenses. Except as otherwise expressly provided in this Agreement, all Expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring such Expenses.

Section 9.4 Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) if delivered by hand, when delivered, (b) if sent on a Business Day by email or facsimile transmission before 11:59 p.m. (recipient’s time) and receipt is confirmed, when transmitted, (c) if sent by email or facsimile transmission on a day other than a Business Day and receipt is confirmed, on the Business Day following the date on which receipt is confirmed, (d) if sent by email or facsimile transmission after 11:59 p.m. (recipient’s time) and receipt is confirmed, on the Business Day following the date on which receipt is confirmed, (e) if sent by registered, certified or first class mail, the third (3rd) Business Day after being sent, and (f) if sent by overnight delivery via a national courier service, one (1) Business Day after being sent, in each case to the address or facsimile telephone number set forth beneath the name of such Party below (or to such other address or facsimile telephone number as such Party shall have specified in a written notice given to the other Parties hereto):

(a) If to Parent or Merger Sub:

c/o Land O’Lakes, Inc.
4001 Lexington Avenue North
Arden Hills, MN 55126
Attn.: Matthew Smith, Corporate Counsel
E-Mail: [email protected]
Facsimile: (651) 375-2832

With a copy, which shall not constitute notice, to:

Dorsey & Whitney LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402
Attn.: Jonathan A. Van Horn
E-Mail: [email protected]
Facsimile: (612) 340-2868

(b) If to the Company:

Ceres, Inc.
1535 Rancho Conejo Blvd.
Thousand Oaks, CA 91320
Attn.: Chief Executive Officer
Email: [email protected]
Facsimile: (805) 499-9017

With a copy, which shall not constitute notice, to:

K&L Gates LLP

134 Meeting Street, Suite 500

Charleston, SC 29401
Attn.: Michael D. Bryan

James M. Herriott
E-Mail: [email protected]

[email protected]
Facsimile: (843) 579-8801

Section 9.5 Certain Definitions. For the purposes of this Agreement, the term:

“Acceptable Confidentiality Agreement” means a confidentiality agreement that contains terms that are no less favorable in the aggregate to the Company or Parent, as applicable, than those contained in the Confidentiality Agreement and containing additional provisions that expressly permit the Company to comply with the terms of Section 5.2.

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

“Book-Entry Shares” has the meaning set forth in Section 2.5(b).

“Brazil Sub” means Ceres Sementes do Brazil Ltda., a company organized under the laws of Brazil and a Company Subsidiary.

“BSV Warrant” has the meaning set forth in Section 2.9(a).

“Business Days” has the meaning set forth in Rule 14d-1(g)(3) of the Exchange Act; provided, however, that a day on which banks in New York City are authorized or obligated by Law or executive order to close shall not be a “Business Day”.

“Certificate of Designation” means the Certificate of Designation of Preferences, Rights and Limitations of Series A-1 Convertible Preferred Stock of the Company, filed with the DSOS on December 17, 2015.

“Certificate of Merger” has the meaning set forth in Section 2.2.

“Certificates” has the meaning set forth in Section 2.5(b).

“Closing” has the meaning set forth in Section 2.2.

“Closing Date” has the meaning set forth in Section 2.2.

“Common Consideration” has the meaning set forth in Section 2.5(a)(iii).

“Common Offer Price” has the meaning set forth in the Recitals.

“Common Shares” has the meaning set forth in the Recitals.

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

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

“Company 401(k) Plans” has the meaning set forth in Section 6.7(b).

“Company Benefit Plans” has the meaning set forth in Section 3.9(a).

“Company Board” has the meaning set forth in the Recitals.

“Company Board Recommendation” has the meaning set forth in Section 1.3(a).

“Company Bylaws” means the bylaws of the Company, as amended and restated as of the date of this Agreement.

“Company Capitalization Date” has the meaning set forth in Section 3.2(a).

“Company Certificate” means the Certificate of Incorporation of the Company as amended, amended and restated and supplemented and in effect on the date hereof.

“Company Certificate Reverse Split Amendment” means an amendment to the Company Certificate that effects a reverse stock split of the Common Shares within the range of 1-for-10 to 1-for-20.

“Company Change of Recommendation” has the meaning set forth in Section 5.2(d).

“Company Competing Proposal” means any proposal or offer made by a Person or group (other than a proposal or offer by Parent or any of its Subsidiaries) at any time, including any amendment or modification to any proposal or offer, with respect to any transaction or series of related transactions involving (i) any merger, consolidation, spin-off, share exchange (including a split-off) or business combination, joint venture or similar transaction involving the Company or any of its Subsidiaries representing 20% or more of the consolidated assets or annual revenues of the Company and its Subsidiaries, taken as a whole, (ii) any sale, lease, exchange, mortgage, transfer, license (other than licenses in the ordinary course of business), or other disposition of 20% or more of the consolidated assets (including the equity of the Company Subsidiaries) of the Company and its Subsidiaries, taken as a whole (measured by the lesser of book or fair market value thereof), (iii) any purchase or sale of shares of capital stock or other securities representing 20% or more of the voting power of the capital stock of the Company, including by way of a tender offer or exchange offer, (iv) any extraordinary dividend, reorganization, recapitalization, liquidation or dissolution of the Company or (v) any other transaction having a similar effect to those described in clauses (i) through (iv).

“Company Disclosure Schedule” has the meaning set forth in Article III.

“Company Governing Documents” means the Company Bylaws and the Company Certificate.

“Company Intervening Event” means a material Effect (a) that becomes known to the Company Board after the date hereof, (b) that was neither known to, nor reasonably foreseeable by, the Company Board or a committee thereof that authorized the execution of this Agreement (as the case may be), as of the date of this Agreement and (c) that does not relate in any way to any Company Competing Proposal.

“Company Leased Real Property” has the meaning set forth in Section 3.15(b).

“Company Material Adverse Effect” means (i) any Effect that, individually or in the aggregate, has a material adverse effect on the assets, liabilities, condition (financial or otherwise), business or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided, however, that no Effects to the extent resulting or arising from the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect or shall be taken into account when determining whether a Company Material Adverse Effect exists or has occurred: (a) any changes in general United States or global economic conditions; (b) conditions (or changes therein) in any industry or industries in which the Company and the Company Subsidiaries operate; (c) general economic or political or conditions (or changes therein), including any changes affecting financial, credit or capital market conditions; (d) any change or prospective changes in GAAP or interpretation thereof; (e) any adoption, implementation, promulgation, repeal, modification, amendment, reinterpretation, change or proposal of any applicable Law of and by any Governmental Entity (including with respect to Taxes); (f) acts of terrorism or sabotage, war (whether or not declared), the commencement, continuation or escalation of a war, acts of terrorism, acts of armed hostility, weather conditions or other similar force majeure events, including any material worsening of such conditions threatened or existing as of the date of this Agreement; (g) the execution and delivery of this Agreement or the consummation of the Transactions or compliance with the terms of this Agreement; (h) changes in the Common Share price, in and of itself (it being understood that the Effects giving rise or contributing to such changes that are not otherwise excluded from the definition of a “Company Material Adverse Effect” may be taken into account); (i) any failure by the Company to comply with any of NASDAQ’s continuing listing standards for NASDAQ Capital Market companies or the Company’s failure to continue to be listed on the NASDAQ Capital Market (it being understood that the Effects giving rise or contributing to such failure that are not otherwise excluded from the definition of a “Company Material Adverse Effect” may be taken into account); (j) any failure by the Company to meet any internal or published projections, estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company to meet its internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (it being understood that the Effects giving rise or contributing to such failure that are not otherwise excluded from the definition of a “Company Material Adverse Effect” may be taken into account); (k) the pendency or public announcement of the execution of this Agreement or the Transactions, including any resulting litigation; or (l) any action or failure to take any action that is expressly consented to or requested by Parent in writing; provided, further, however, that any Event referred to in clauses (a) through (f) shall be taken into account in determining whether there has been a Company Material Adverse Effect to the extent that such Effect has a disproportionate impact on the Company and the Company Subsidiaries, taken as a whole, relative to other entities operating in the same industry or industries in which the Company and the Company Subsidiaries operate or (ii) any Effect that, individually or in the aggregate, would prevent, materially delay or materially impair the commencement of, or the purchase of or payment for Common Shares tendered pursuant to, the Offer, or the Company’s ability to consummate the Merger.

“Company Material Contracts” has the meaning set forth in Section 3.16(a).

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

“Company Owned Real Property” has the meaning set forth in Section 3.15(a).

“Company Permits” has the meaning set forth in Section 3.7(b).

“Company Permitted Lien” means any Lien (i) that is for Taxes or governmental assessments, charges or claims of payment not yet due and payable, being contested in good faith or for which adequate accruals or reserves have been established, (ii) that is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Lien arising in the ordinary course of business, (iii) that is disclosed on the most recent (as of the date hereof) consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet, (iv) that was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company for amounts that are not delinquent and which are not material, (v) that constitutes an easement, license, lease, covenant, restriction or other encumbrance of record in the applicable real property records or (vi) that is a purchase money Lien or Lien securing rental payments under capital lease arrangements to the extent related to the assets purchased or leased.

“Company SEC Documents” has the meaning set forth in Section 3.4(a).

“Company Stock Plans” has the meaning set forth in Section 2.8(a).

“Company Subsidiaries” means the Subsidiaries of the Company.

“Company Superior Proposal” means a bona fide written Company Competing Proposal (with references to 20% being deemed to be replaced with references to 50%), not arising from a breach of Section 5.2, which (i) the Company Board or a duly authorized committee thereof, determines in good faith after consultation with the Company’s outside legal and financial advisors, and after taking into account all financial, legal, regulatory, and other aspects of such Company Competing Proposal, to be more favorable to the stockholders of the Company from a financial point of view than the Transactions contemplated by this Agreement, taking into account all relevant factors (including all the terms and conditions of such Company Competing Proposal and this Agreement (including any changes to the terms of this Agreement proposed by Parent in response to such Company Competing Proposal or otherwise)), and (ii) would reasonably be expected to be completed on the terms proposed.

“Company Termination Fee” has the meaning set forth in Section 8.2(b)(i).

“Company Warrants” has the meaning set forth in Section 2.9(b).

“Confidentiality Agreement” means the Confidentiality Agreement, dated February 24, 2016, between Parent and the Company, as may be amended.

“Continuing Employees” has the meaning set forth in Section 6.7(a).

“Continuing Warrant” has the meaning set forth in Section 2.9(b).

“Contract” means any written or oral agreement, contract, subcontract, settlement agreement, lease, sublease, binding understanding, note, option, bond, mortgage, indenture, trust document, loan or credit agreement, license, sublicense, insurance policy or other legally binding commitment or undertaking of any nature, as in effect as of the date hereof or as may hereinafter be in effect.

“D&O Insurance” has the meaning set forth in Section 6.4.

“DGCL” means the Delaware General Corporation Law, as amended.

“Dissenting Share” has the meaning set forth in Section 2.7(a).

“DSOS” means the Secretary of State of the State of Delaware.

“Effect” means any change, effect, development, circumstance, condition, state of facts, event or occurrence.

“Effective Time” has the meaning set forth in Section 2.2.

“End Date” has the meaning set forth in Section 8.1(d).

“Enforceable” means, with respect to any Contract stated to be Enforceable by or against any Person, that such Contract is enforceable by or against such Person in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium and other similar Law of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law).

“Environmental Law” means any and all applicable Laws which (a) regulate or relate to the protection or clean-up of the environment; the use, treatment, storage, transportation, handling, disposal or Release of Hazardous Substances, the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources; or the health and safety of persons or property, including protection of the health and safety of employees; or (b) impose liability or responsibility with respect to any of the foregoing, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Plant Protection Act (7 U.S.C. § 7701 et seq.,) the Federal Fungicide, Insecticide and Rodenticide Act (7 U.S.C. § 136 et seq.), or the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq., or any other Law of similar effect.

“Environmental Permits” means any material permit, license, authorization, approval or Regulatory Approval required or issued under applicable Environmental Laws.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated and rulings issued thereunder.

“ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.

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

“Expenses” means all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a Party and its affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the solicitation of equityholders and equityholder approvals, any filings with the SEC and all other matters related to the closing of the Merger and the other Transactions.

“Expiration Date” has the meaning set forth in Section 1.1(d).

“GAAP” has the meaning set forth in Section 3.4(b).

“Governmental Entity” means (a) any national, federal, state, county, municipal, local or foreign government or any entity exercising executive, legislative, judicial, regulatory, taxing or administrative functions of or pertaining to government, including any arbitral body, (b) any public international governmental organization, or (c) any agency, division, bureau, department or other political subdivision of any government, entity or organization described in the foregoing clauses (a) or (b) of this definition.

“Hazardous Substances” means any pollutant, chemical, substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, chemical compound, hazardous substance, material or waste, that is subject to regulation, control or remediation under any Environmental Laws, including any quantity of petroleum product or byproduct, solvent, flammable or explosive material, radioactive material, asbestos, lead paint, polychlorinated biphenyls (or PCBs), dioxins, dibenzofurans, heavy metals, radon gas, mold, mold spores and mycotoxins.

“Indebtedness” means, with respect to any Person,

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guarantees, surety bonds and similar instruments;

(c) net obligations of such Person under any interest rate swap, currency swap, forward currency or interest rate contracts or other interest rate or currency hedging arrangements;

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases;

(g) synthetic lease obligations;

(h) obligations outstanding under securitization facilities; and

(i) any guarantee (other than customary nonrecourse carve-out or “badboy” guarantees) of any of the foregoing, whether or not evidenced by a note, mortgage, bond, indenture or similar instrument; provided, however, that Indebtedness shall not include any performance guarantee or any other guarantee that is not a guarantee of other Indebtedness.

“Indemnified Parties” has the meaning set forth in Section 6.4.

“Intellectual Property” means all rights in or to all U.S. or foreign (a) patented and patentable designs and inventions, all design, plant and utility patents, letters patent, utility models, pending patent applications and provisional applications and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, reexaminations and renewals of such patents and applications, (b) plant variety protection, plant breeders’ rights, any protection developed under the International Convention for the Protection of New Varieties of Plants, germplasm, biological and other physical materials, seeds, plants, pollen, plant parts, plant tissue, specimens, cultures and extracts thereof, (c) trademarks, service marks, trade dress, logos, brand names, trade names and corporate names, whether registered or unregistered, and the goodwill associated therewith, together with any registrations and applications for registration thereof, (d) original works of authorship in any medium of expression, whether or not published, copyrights, whether registered or unregistered, and any registrations and applications for registration thereof, (e) trade secrets and confidential information, including know-how, concepts, methods, processes, designs, schematics, drawings, formulae, technical data, specifications, research and development information, technology, and business plans, (f) rights in databases and data collections (including knowledge databases, customer lists and customer databases), and (g) domain name registrations and all related user accounts and social networking pages.

“Initial Expiration Date” has the meaning set forth in Section 1.1(d).

“Knowledge of the Company” means the knowledge, after due inquiry of Company or Company Subsidiary employees reasonably likely to have applicable knowledge, of the Persons set forth on Section 9.5 of the Company Disclosure Schedule.

“Law” means any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, directive, ruling, judgment, order, injunction, arbitration award, agency requirement, license, permit or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

“Legal Proceeding” means any action, dispute, controversy, claim, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel.

“License Agreements” has the meaning set forth in Section 3.14(c).

“Lien” means any lien, pledge, hypothecation, mortgage, security interest, claim, option, right of first refusal, preemptive right, community property interest or restriction on the voting of any security, any restriction on the transfer of any security or other asset, or any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset.

“Material Intellectual Property” has the meaning set forth in Section 3.14(a).

“Merger” has the meaning set forth in the Recitals.

“Merger Consideration” has the meaning set forth in Section 2.5(a)(iii).

“Merger Sub” has the meaning set forth in the Preamble.

“Minimum Condition” has the meaning set forth in Annex I.

“Nasdaq” means the Nasdaq Stock Market LLC.

“Offer” has the meaning set forth in the Recitals.

“Offer Acceptance Time” means the time Merger Sub, for the first time, irrevocably accepts for payment Common Shares validly tendered and not withdrawn pursuant to the Offer.

“Offer Conditions” has the meaning set forth in Section 1.1(b).

“Offer Documents” has the meaning set forth in Section 1.1(h).

“Offer to Purchase” has the meaning set forth in Section 1.1(c).

“Paying Agent” has the meaning set forth in Section 2.6(a).

“Payment Fund” has the meaning set forth in Section 2.6(a).

“Parent” has the meaning set forth in the Preamble.

“Parent Board” has the meaning set forth in the Recitals.

“Parent Disclosure Schedule” has the meaning set forth in Article IV.

“Parent Material Adverse Effect” means any Effect that, individually or in the aggregate, would prevent, materially delay or materially impair consummation of the Offer, payment for Common Shares tendered pursuant to the Offer or Parent’s ability to consummate the Merger.

“Party” has the meaning set forth in the Preamble.

“Persephone Divestiture Transaction” means any sale, lease, exchange, transfer, license or other disposition relating solely to the assets (including Intellectual Property assets, out-licensing agreements, employees and contractors) of the Company or any Company Subsidiary that are used exclusively in the conduct of the Company’s Persephone software business.

“Person” means a natural person, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Entity or other entity or organization.

“Pre-Closing Period” has the meaning set forth in Section 5.2(a).

“Preferred Consideration” has the meaning set forth in the Recitals.

“Preferred Shares” has the meaning set forth in the Recitals.

“Promissory Note” has the meaning set forth in Section 1.2(b).

“Real Property Leases” has the meaning set forth in Section 3.15(b).

“Regulated Product” has the meaning set forth in Section 3.24.

“Regulatory Approval” means a written approval or other notification from an appropriate Government Entity pursuant to an applicable Environmental Law, including granting commercial use, export or import approval, or responding to a letter of inquiry regarding regulatory status under the Environmental Law.

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, placing, discarding, abandonment or disposing into the environment (including the placing, discarding or abandonment of any barrel, container or other receptacle containing any Hazardous Substance or other material).

“Removal, Remedial or Response” mean actions to remove, remedy or respond to (i) soil, groundwater or other contamination or (ii) a Release, in either case as those actions may be required by or arise under Environmental Laws or by Governmental Entities.

“Representatives” means, when used with respect to Parent, Merger Sub or the Company, the directors, officers, employees, consultants, financial advisors, accountants, legal counsel, investment bankers and other agents, advisors and representatives of Parent or the Company, as applicable, and its respective Subsidiaries.

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

“Schedule 14D-9” has the meaning set forth in Section 1.3(b).

“Schedule TO” has the meaning set forth in Section 1.1(h).

“SEC” means the United States Securities and Exchange Commission.

“Section 262” has the meaning set forth in Section 2.7(a).

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

“Shares” has the meaning set forth in the Recitals.

“Software” means computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code.

“Solvent” means, with respect to any Person, that (a) the fair saleable value of the property of such Person is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date, (b) as of such date, such Person is able to pay all of its liabilities as such liabilities mature, (c) such Person does not have unreasonably small capital for conducting the business theretofore or proposed to be conducted by such Person and its Subsidiaries and (d) such Person has not incurred nor does it plan to incur debts beyond its ability to pay as they mature. The amount of any contingent or unliquidated liability at any time will be computed as the amount which, in light of all facts and circumstances existing at such time, can reasonably be expect to become an actual or mature liability.

“Subsidiary” or “Subsidiaries” means with respect to any Person, any corporation, limited liability company, partnership or other organization, whether incorporated or unincorporated, of which (a) at least a majority of the outstanding shares of capital stock of, or other equity interests, having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries or (b) with respect to a partnership, such Person or any other Subsidiary of such Person is a general partner of such partnership.

“Superior Proposal Acquisition Agreement” shall mean a written definitive acquisition agreement providing for a Company Superior Proposal entered into by and between the Company and the Person making a Company Superior Proposal.

“Surviving Corporation” has the meaning set forth in the Recitals.

“Takeover Statutes” mean any “business combination,” “control share acquisition,” “fair price,” “moratorium” or other takeover or anti-takeover statute or similar Law.

“Tax” or “Taxes” means any and all taxes, levies, duties, tariffs, imposts and other similar charges and fees imposed by any Governmental Entity or domestic or foreign taxing authority, including, income, franchise, windfall or other profits, gross receipts, premiums, property, sales, use, net worth, capital stock, payroll, employment, social security (including those relating to the Brazilian Institute of Social Security (Instituto Nacional de Seguridade Social - INSS) regarding the Brazil Sub), workers’ compensation, unemployment compensation (including those relating to the Employees’ Severance Fund (Fundo de Garantia por Tempo de Serviço - FGTS) regarding the Brazil Sub), excise, withholding, ad valorem, stamp, transfer, value-added, gains tax and license, registration and documentation fees, severance, occupation, environmental, customs duties, disability, real property, personal property, registration, alternative or add-on minimum or estimated tax, including any interest, penalty, additions to tax or additional amounts imposed with respect thereto, whether disputed or not.

“Tax Return” means any report, return, certificate, claim for refund, election, estimated tax filing or declaration required to be filed with any Governmental Entity or domestic or foreign taxing authority with respect to Taxes, including any schedule or attachment thereto, and including any amendments thereof.

“Tender and Support Agreements” has the meaning set forth in the Recitals.

“Top-Up Closing” has the meaning set forth in Section 1.2(b).

“Top-Up Exercise Time” has the meaning set forth in Section 1.2(a).

“Top-Up Option” has the meaning set forth in Section 1.2(a).

“Top-Up Shares” has the meaning set forth in Section 1.2(a).

“Transactions” means all of the transactions contemplated by this Agreement, including the Offer, the Merger and, if applicable, the exercise of the Top-Up Option and the issuance of the Top-Up Shares.

“Triggering Event” means the delivery by Parent of a written notice to the Company electing to complete the Merger under Section 253 of the DGCL at least three (3) days prior to an Expiration Date following the occurrence of any of the following Effects which becomes known to Parent after the date of this Agreement (provided, however, that if an Effect becomes known to Parent within three (3) days prior to an Expiration Date, then within twenty four (24) hours following the time that such Effect becomes known to Parent): (i) a court of competent jurisdiction or other Governmental Entity of competent jurisdiction has issued any order, decree or ruling, adopted any applicable Law, or has taken any other action, having the effect of restraining, enjoining or otherwise prohibiting the consummation of the Transactions if effected pursuant to Section 251(h) of the DGCL or (ii) any Person has asserted (or threatened to assert) a claim in a court of competent jurisdiction that Section 251(h) of the DGCL is inapplicable to any merger contemplated by a merger agreement permitting or requiring such merger to be effected under Section 251(h) of the DGCL (including, for the avoidance of doubt, the Merger) and such claim is based, in whole or in part, on the basis set forth in Section 9.5 of the Company Disclosure Schedule.

“U.S. Company Benefit Plans” has the meaning set forth in Section 3.9(a).

“USDA” has the meaning set forth in Section 3.24.

“WARN” has the meaning set forth in Section 3.13(k).

“Willful Breach” means (i) with respect to any breach of a representation or warranty contained in this Agreement, a material breach of such representation or warranty that has been made with the actual knowledge of the breaching Party and (ii) with respect to any breaches or failures to perform any of the covenants or other agreements contained in this Agreement, an intentional and material failure to perform that is the consequence of an action or omission by the breaching Party with the actual knowledge that the taking of such act or failure to act would constitute a breach of any agreement or covenant in this Agreement.

Section 9.6 Interpretation. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation” or “but not limited to”. As used in this Agreement, the term “affiliates” shall have the meaning set forth in Rule 12b-2 of the Exchange Act. The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Any definition of or reference to any Contract herein shall be construed as referring to such Contract as from time to time amended, supplemented or otherwise modified (except for any Contracts required to be included on the Company Disclosure Schedule). When reference is made herein to a Person, such reference shall be deemed to include all direct and indirect Subsidiaries, successors and assigns of such Person unless otherwise indicated or the context otherwise requires. All references herein to the Subsidiaries of a Person shall be deemed to include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires. The Parties agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, holding or rule of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document. The words “hereof,” “herein,” “hereinafter” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context requires otherwise. The term “or” has the inclusive meaning represented by the phrase “and/or”. 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. References in this Agreement to specific laws or to specific provisions of laws shall include all rules and regulations promulgated thereunder, and any statute defined or referred to herein or in any agreement or instrument referred to herein shall mean such statute as from time to time amended, modified or supplemented, including by succession of comparable successor statutes. The phrase “ordinary course of business” as used in this Agreement shall be deemed to mean “the ordinary course of business consistent with past practice.” The term “dollars” and character “$” shall mean United States dollars. Any reference herein or in the Company Disclosure Schedule to documents having been furnished, delivered, made available or disclosed to Parent, Merger Sub or their respective Representatives, or words of similar import, shall be deemed to refer to such documents as were made available and accessible to Parent and Parent’s Representatives for their review by posting to the electronic data room hosted by Merrill Corporation on or before 10:00 a.m. (New York City time) on the Business Day immediately prior to the date hereof. The listing of any matter on the Company Disclosure Schedule shall not be deemed to constitute an admission by the Company to any Person not a Party, or to otherwise imply to any Person not a Party, that any such matter is material, is required to be disclosed by the Company under this Agreement or falls within relevant minimum thresholds or materiality standards set forth in this Agreement. No disclosure in the Company Disclosure Schedule relating to any possible breach or violation by the Company of any Contract or Law shall be construed as an admission or indication to any Person not a Party that any such breach or violation exists or has actually occurred. In no event shall the listing of any matter in the Company Disclosure Schedule be deemed or interpreted to expand the scope of the Company’s representations, warranties or covenants set forth in this Agreement.

Section 9.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Parties. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or by e-mail of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 9.8 Entire Agreement; Third-Party Beneficiaries.

(a) This Agreement (including the Company Disclosure Schedule) and the Confidentiality Agreement constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersede all other prior agreements (except that the Confidentiality Agreement shall be deemed amended hereby so that until the termination of this Agreement in accordance with Section 8.1 hereof, Parent and Merger Sub shall be permitted to take the actions contemplated by this Agreement) and understandings, both written and oral, among the Parties or any of them with respect to the subject matter hereof and thereof.

(b) Except as provided in Section 6.4, neither this Agreement (including the Company Disclosure Schedule) nor the Confidentiality Agreement are intended to confer upon any Person other than the Parties any rights or remedies hereunder. Notwithstanding anything to the contrary in this Agreement, the Company’s, Parent’s and each of their Subsidiaries’ present and former directors and officers shall have the right to enforce the provisions of Section 6.4. The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Parties in accordance with Section 9.1 without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties. Consequently, Persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

Section 9.9 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Merger is not affected in any manner adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.

Section 9.10 Governing Law; Jurisdiction. This Agreement, and any Legal Proceeding arising out of, relating to, or in connection with this Agreement, shall be governed by, and construed in accordance with, the Law of the State of Delaware, regardless of the Law that might otherwise govern under applicable principles of conflicts of laws thereof. In any Legal Proceeding between any of the Parties arising out of or relating to this Agreement or any of the Transactions each of the Parties (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, if (and only if) the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware (Complex Commercial Division) or, if (and only if) the Superior Court of the State of Delaware (Complex Commercial Division) declines to accept jurisdiction over a particular matter, any federal court sitting in the State of Delaware, and any appellate courts therefrom, (b) irrevocably waives any objection that it may now or hereafter have to the venue of any such action, dispute or controversy in any such court or that such Legal Proceeding was brought in an inconvenient court and agrees not to plead or claim the same, (c) agrees that it shall not bring any Legal Proceeding relating to this Agreement or the Transactions in any court other than the aforesaid courts, and (d) irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section 9.4, in addition to any other method to serve process permitted by applicable Law.

Section 9.11 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE MERGER AND OTHER TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 9.11.

Section 9.12 Assignment. This Agreement shall not be assigned by any of the Parties (whether by operation of Law or otherwise) without the prior written consent of the other Parties, except Merger Sub may assign, in its sole discretion and without the consent of any other Party, any or all of its rights, interests and obligations hereunder to (i) Parent, (ii) Parent and one or more direct or indirect wholly owned Subsidiaries of Parent, or (iii) one or more direct or indirect wholly owned Subsidiaries of Parent; provided, however, that no such assignment shall be permitted without the prior written consent of the other Parties if such assignment could increase the risk that any of the conditions set forth in Article VII may not be timely satisfied, result in a breach of any of covenants and agreements set forth in this Agreement or adversely affect the Company; provided, further, however, that no such assignment shall relieve Parent or Merger Sub of any obligation or liability under this Agreement. Subject to the preceding sentence, but without relieving any Party of any obligation hereunder, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

Section 9.13 Enforcement; Remedies.

(a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy shall not preclude the exercise of any other remedy.

(b) Each Party to this Agreement agrees that, in the event of any breach or threatened breach by another Party of any covenant, obligation or other provision set forth in this Agreement (i) the non-breaching Party shall be entitled, without any proof of actual damages (and in addition to any other remedy that may be available to it) to (A) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (B) an injunction restraining such breach or threatened breach, and (ii) such Party shall not be required to provide any bond or other security in connection with any such decree, order or injunction or in connection with any related action or Legal Proceeding.

(c) The Parties’ rights in this Section 9.13 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.13 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party.

Section 9.14 Non-Recourse. Any claim or cause of action based upon, arising out of or related to this Agreement may only be brought against Persons that are expressly named as Parties hereto, and then only with respect to the specific obligations set forth herein. No former, current or future direct or indirect equity holders, controlling Persons, stockholders, directors, officers, employees, agents, affiliates, members, managers, general or limited partners or assignees of the Company, Parent or Merger Sub or any of their respective affiliates or Representatives shall have any liability or obligation for any of the representations, warranties, covenants, agreements, obligations or liabilities of the Company, Parent or Merger Sub under this Agreement or for any action, suit, arbitration, claim, litigation, investigation or proceeding based on, in respect of, or by reason of, the transactions contemplated hereby (including the breach, termination or failure to consummate such transactions), in each case whether based on contract, tort, strict liability, other Laws or otherwise and whether by piercing the corporate veil, by a claim by or on behalf of a Party hereto.

(Remainder of Page Intentionally Left Blank)

IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above.

	LAND O’LAKES, INC.

	By	/s/ Mike Vande Logt

		Name: Mike Vande Logt
		Title: Executive Vice President

	ROMAN MERGER SUB, INC.

	By	/s/ Charles Von Feldt

		Name: Charles Von Feldt
		Title: Secretary

[Signature Page to Merger Agreement]

	CERES, INC.

	By	/s/ Richard W. Hamilton

		Name: Richard W. Hamilton
		Title: President and CEO

[Signature Page to Merger Agreement]

ANNEX I

CONDITIONS OF THE OFFER

Notwithstanding any other terms or provisions of the Offer or this Agreement to which this Annex I is attached, Merger Sub shall not be obligated, and Parent shall not be obligated to cause Merger Sub, to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-l(c) promulgated under the Exchange Act), shall not be obligated to pay for, and may delay the acceptance for payment of or payment for, any validly tendered Common Shares pursuant to the Offer (and not theretofore accepted for payment or paid for), if:

(a) there shall not have been validly tendered and not validly withdrawn pursuant to the Offer that number of Common Shares (not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depositary for the Offer in full settlement or satisfaction of such guarantee) that, when added to the Common Shares then owned by Merger Sub, would represent one Common Share more than one half of all Common Shares outstanding immediately prior to the Offer Acceptance Time (for the avoidance of doubt, including in the number of Common Shares outstanding immediately prior to the Offer Acceptance Time (i) to the extent that the Company has received a Notice of Conversion (as defined in the Certificate of Designation) with respect to any Preferred Shares prior to the Offer Acceptance Time, the Common Shares issuable upon conversion of such Preferred Shares, (ii) to the extent the Company has received a notice of conversion with respect to any Company Warrants prior to the Offer Acceptance Time, the Common Shares that the Company would be required to issue upon the exercise of such Company Warrants and (iii) to the extent the Company has received a notice of exercise with respect to any Company Options prior to the Offer Acceptance Time, the Common Shares that the Company would be required to issue upon the exercise of such Company Options) (the “Minimum Condition”);

(b) immediately prior to the expiration of the Offer, any of the following conditions shall not have been satisfied (or, to the extent permitted under this Agreement and applicable Law, waived):

(i) (1) the representations and warranties of the Company set forth in Section 3.2(a)-(d) of this Agreement shall be accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Expiration Date, as if made as of such Expiration Date (other than such inaccuracies as are de minimis to the equity capitalization of the Company); (2) the representations and warranties of the Company set forth in Section 3.1, Section 3.2(e), Section 3.3(a), Section 3.18 and Section 3.21 of this Agreement shall have been accurate, in all material respects, as of the date of the Agreement, and shall be accurate, in all material respects, at and as of the Expiration Date as if made on and as of such Expiration Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded and (B) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured only as of such date); and (3) the other representations and warranties of the Company set forth in this Agreement shall have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Expiration Date as if made on and as of such Expiration Date, except that any inaccuracies in such representations and warranties shall be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute a Company Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded and (B) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured only as of such date);

(ii) the Company shall have performed or complied, in all material respects, with all covenants and obligations that the Company is required to comply with or to perform under the Agreement prior to the Expiration Date;

(iii) Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company to the effect that the conditions in clauses (b)(i) and (b)(ii) above have been satisfied;

(iv) since the date of the Agreement, there shall not have occurred a Company Material Adverse Effect;

(v) there shall not have been issued by any Governmental Entity of competent jurisdiction or remain in effect any temporary restraining order, preliminary or permanent injunction or other order (A) preventing the acceptance for payment of, or payment for, Common Shares or the consummation of the Offer or the Merger, (B) restraining or prohibiting Parent’s or its affiliates ownership or operation of the business of the Company, or of Parent or affiliates, or compelling Parent or any of its affiliates to dispose of or hold separate all or any portion of the business or assets of the Company or of Parent or its affiliates or (C) imposing or confirming material limitations on the ability of Parent or any of its affiliates effectively to exercise full rights of ownership of the Shares;

(vi) there shall not have been any Law or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Offer or the Merger by any Governmental Entity, or any action by any Governmental Entity, which would have any of the effects referred to in paragraph (v) above;

(vii) there shall not be pending any Legal Proceeding before a Governmental Entity having authority over Parent, Merger Sub or the Company wherein a judgment would have any of the effects referred to in clause (A) of paragraph (v) above;

(viii) (A) a Company Change of Recommendation shall not have occurred, and (B) the Company shall not have approved, endorsed or recommended a Company Competing Proposal; or

(c) the Agreement shall not have been terminated in accordance with its terms and the Offer shall not have been terminated in accordance with the terms of the Agreement.

The foregoing conditions are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part at any time and from time to time, in the sole discretion of Parent and Merger Sub; provided, however, that the Minimum Condition may be waived by Parent and Merger Sub only with the prior written consent of the Company, which may be granted or withheld in the Company’s sole discretion. The failure by Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time.

Exhibit 3.1

CERES, INC.

SECOND AMENDED AND RESTATED BYLAWS

Effective June 16, 2016

Article I
OFFICES

Section 1.1 Registered Office. The registered office of Ceres, Inc. (the “Corporation”) in the state of Delaware is located at 160 Greentree Drive, Suite 101, in the City of Dover, County of Kent, and the name of the Corporation’s registered agent at such address is National Registered Agents, Inc.

Section 1.2 Other Offices. The Corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors of the Corporation (the “Board of Directors”) may from time to time select or the business of the Corporation may require.

Article II
MEETINGS OF STOCKHOLDERS

Section 2.1 Annual Meetings. Each annual meeting of stockholders for the election of directors, and for such other business as may be stated in the notice of the meeting, shall be held at such a time, date and place as the Board of Directors may determine by resolution. At each annual meeting, the stockholders entitled to vote shall elect directors as provided in Section 7 of this Article II, and may transact such other corporate business as shall be stated in the notice of the meeting.

Section 2.2 Special Meetings. Special meetings of the stockholders may be called only on the order of a majority of the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President (in the absence of a chief executive officer) and shall be held at such date and time as may be specified in the notice. The business permitted to be conducted at any special meeting of the stockholders is limited to the purpose or purposes specified in the notice.

Section 2.3 Place. All meetings of stockholders shall be held at the principal office of the Corporation, 1535 Rancho Conejo Boulevard, Thousand Oaks, California 91320, or at such other place within or without the State of Delaware as shall be stated in the notice of the meeting. Notwithstanding the foregoing, the Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but shall be held solely by means of remote communication, subject to the guidelines and procedures as the Board of Directors may adopt, as permitted by applicable law.

Section 2.4 Notice of Business to be Brought Before a Meeting. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) brought before the meeting by the Corporation and specified in the notice of meeting given by or at the direction of the Board of Directors, (ii) brought before the meeting by or at the direction of the Board of Directors, or (iii) otherwise properly brought before the meeting by a stockholder who (A) was a stockholder of record (and, with respect to any beneficial owner, if different, on whose behalf such business is proposed, only if such beneficial owner was the beneficial owner of shares of the Corporation) both at the time of giving the notice provided for in this Section 4 and at the time of the meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 4 as to such business. Except for proposals properly made in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations, the “Exchange Act”), and included in the notice of meeting given by or at the direction of the Board of Directors, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose business to be brought before an annual meeting of the stockholders. Stockholders shall not be permitted to propose business to be brought before a special meeting of the stockholders, and the only matters that may be brought before a special meeting are the matters specified in the notice of meeting given by or at the direction of the person calling the meeting pursuant to Section 2. Stockholders seeking to nominate persons for election to the Board must comply with Section 5 and this Section 4 shall not be applicable to nominations except as expressly provided in Section 5.

(a) Without qualification, for business to be properly brought before an annual meeting by a stockholder, the stockholder must (i) provide Timely Notice (as defined below) thereof in writing and in proper form to the Secretary of the Corporation and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 4. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the one-year anniversary of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, not later than the ninetieth (90th) day prior to such annual meeting or, if later, the tenth (10th) day following the day on which public disclosure of the date of such annual meeting was first made (such notice within such time periods, “Timely Notice”). In no event shall any adjournment of an annual meeting or the announcement thereof commence a new time period for the giving of Timely Notice as described above.

(b) To be in proper form for purposes of this Section 4, a stockholder’s notice to the Secretary shall set forth:

(i) As to each Proposing Person (as defined below), (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Corporation’s books and records); and (B) the class or series and number of shares of the Corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Persons (the disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as “Stockholder Information”).

(ii) As to each Proposing Person, with respect to each item of business that the stockholder proposes to bring before the annual meeting, (A) a reasonably brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest in such business of each Proposing Person, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration), and (C) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the Proposing Persons or (y) between or among any Proposing Person and any other record or beneficial holder of the shares of any class or series of the Corporation and/or any other person or entity (including their names) in connection with the proposal of such business by such stockholder.

(iii) For purposes of this Section 4, the term “Proposing Person” shall mean (i) the stockholder providing the notice of business proposed to be brought before an annual meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought before the annual meeting is made, and (iii) any affiliate or associate (each within the meaning of Rule 12b-2 under the Exchange Act for purposes of these Bylaws) of such stockholder or beneficial owner.

(c) A stockholder providing notice of business proposed to be brought before an annual meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 4 shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for the meeting, if practicable (or, if not practicable, on the first practicable date prior to) or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).

(d) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting except in accordance with this Section 4. The presiding officer of the meeting shall, if the facts warrant, determine that the business was not properly brought before the meeting in accordance with this Section 4, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

(e) This Section 4 is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders other than any proposal made pursuant to Rule 14a-8 under the Exchange Act. In addition to the requirements of this Section 4 with respect to any business proposed to be brought before an annual meeting, each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing in this Section 4 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

(f) For purposes of these Bylaws, “public disclosure” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.

Section 2.5 Notice of Nominations for Election to the Board of Directors. Nominations of any person for election to the Board of Directors at an annual meeting or at a special meeting (but only if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting) may be made at such meeting only (i) by or at the direction of the Board of Directors, including by any committee or persons appointed by the Board of Directors, or (ii) by a stockholder who (A) was a stockholder of record (and, with respect to any beneficial owner, if different, on whose behalf such nomination is proposed to be made, only if such beneficial owner was the beneficial owner of shares of the Corporation) both at the time of giving the notice provided for in this Section 5 and at the time of the meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 5 as to such nomination. The foregoing clause (ii) shall be the exclusive means for a stockholder to make any nomination of a person or persons for election to the Board of Directors at an annual meeting or special meeting.

(a) Without qualification, for a stockholder to make any nomination of a person or persons for election to the Board of Directors at an annual meeting, the stockholder must (i) provide Timely Notice (as defined in Section 4) thereof in writing and in proper form to the Secretary of the Corporation and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 5. Without qualification, if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting, then for a stockholder to make any nomination of a person or persons for election to the Board of Directors at a special meeting, the stockholder must (i) provide timely notice thereof in writing and in proper form to the Secretary of the Corporation at the principal executive offices of the Corporation, and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 5. To be timely, a stockholder’s notice for nominations to be made at a special meeting must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the one hundred twentieth (120th) day prior to such special meeting and not later than the ninetieth (90th) day prior to such special meeting or, if later, the tenth (10th) day following the day on which public disclosure (as defined in Section 4) of the date of such special meeting was first made. In no event shall any adjournment of an annual meeting or special meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.

(b) To be in proper form for purposes of this Section 5, a stockholder’s notice to the Secretary shall set forth:

(i) As to each Nominating Person (as defined below), the Stockholder Information, except that for purposes of this Section 5 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 4;

(ii) As to each person whom a Nominating Person proposes to nominate for election as a director, (A) all information with respect to such proposed nominee that would be required to be set forth in a stockholder’s notice pursuant to this Section 5 if such proposed nominee were a Nominating Person, (B) all information relating to such proposed nominee that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act (including such proposed nominee’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (C) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among any Nominating Person, on the one hand, and each proposed nominee, his or her respective affiliates and associates, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the “registrant” for purposes of such rule and the proposed nominee were a director or executive officer of such registrant, and (D) a completed and signed questionnaire, representation and agreement as provided in Section 5(e); and

(iii) The Corporation may require any proposed nominee to furnish such other information (A) as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or (B) that could be material to a reasonable stockholder’s understanding of the independence or lack of independence of such proposed nominee.

(iv) For purposes of this Section 5, the term “Nominating Person” shall mean (i) the stockholder providing the notice of the nomination proposed to be made at the meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to be made at the meeting is made, and (iii) any affiliate or associate of such stockholder or beneficial owner.

(c) A stockholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 5 shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for the meeting, if practicable (or, if not practicable, on the first practicable date prior to) or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).

(d) Notwithstanding anything in these Bylaws to the contrary, no person shall be eligible for election as a director of the Corporation unless nominated in accordance with this Section 5. The presiding officer at the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with this Section 5, and if he or she should so determine, he or she shall so declare such determination to the meeting and the defective nomination shall be disregarded.

(e) To be eligible to be a nominee for election as a director of the Corporation, the proposed nominee must deliver (in accordance with the time periods prescribed for delivery of notice under this Section 5) to the Secretary, at the principal executive offices of the Corporation, a written questionnaire with respect to the background and qualification of such proposed nominee (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that such proposed nominee (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting Commitment that could limit or interfere with such proposed nominee’s ability to comply, if elected as a director of the Corporation, with such proposed nominee’s fiduciary duties under applicable law, (ii) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed to the Corporation, and (iii) in such proposed nominee’s individual capacity and on behalf of the stockholder (or the beneficial owner, if different) on whose behalf the nomination is made, would be in compliance, if elected as a director of the Corporation, and will comply with applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.

(f) In addition to the requirements of this Section 5 with respect to any nomination proposed to be made at a meeting, each Nominating Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations.

Section 2.6 Quorum. Except as otherwise required by law, by the Amended and Restated Certificate of Incorporation of the Corporation or by these Bylaws, the presence, in person or by proxy, of stockholders holding shares of capital stock constituting a majority in voting power of capital stock of the Corporation issued and outstanding and entitled to vote thereat, shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, the chairman of the meeting or holders of a majority in voting power of the outstanding stock present in person or by proxy and entitled to vote thereat, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting of the time, place, if any, thereof and the means of remote communication, if any, by which stockholders may be deemed present in person at such adjourned meeting. At any such adjourned meeting at which the requisite amount of capital stock entitled to vote shall be represented, any business may be transacted that might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 2.7 Voting. Each stockholder entitled to vote in accordance with the terms of the Amended and Restated Certificate of Incorporation of the Corporation and these Bylaws may vote in person or by proxy executed in writing by the stockholder or by his or her duly authorized attorney-in-fact. Any such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. If a quorum is present, the affirmative vote of a majority in voting power of the shares of capital stock of the Corporation which are present in person or by proxy and entitled to vote thereon at a meeting of the stockholders shall be the act of the stockholders in all matters other than the election of directors, unless the vote of a greater or lesser number of shares of stock is required by law, the Amended and Restated Certificate of Incorporation of the Corporation or these Bylaws. Except as otherwise required by law, the Amended and Restated Certificate of Incorporation or these Bylaws, directors shall be elected by a plurality of the voting power of the shares of capital stock of the Corporation which are present in person or by proxy and entitled to vote thereon at a meeting of the stockholders.

The Secretary shall prepare, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting or (ii) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, the list (in electronic form or otherwise) shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, the list shall also be open to the examination of any stockholder during the whole time thereof on a reasonably accessible electronic network and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

As provided in the Corporation’s Amended and Restated Certificate of Incorporation, an elected director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement or removal from office.

Section 2.8 Organization. At every meeting of stockholders, the Chairman of the Board of Directors, if there be one, shall conduct the meeting or, in the case of vacancy in office or absence of the Chairman of the Board of Directors, one of the following officers present shall conduct the meeting in the order stated: the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, or, in the absence of any thereof, a chairman chosen by the stockholders, shall act as chairman of the meeting, and the Secretary, or in his or her absence, an Assistant Secretary, or in the absence of both the Secretary and Assistant Secretaries, a person appointed by the chairman of the meeting, shall act as Secretary.

Section 2.9 Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The chairman of any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine that a matter or business was not properly brought before the meeting and if such chairman should so determine, such person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered.

Section 2.10 Inspectors of Election. The Corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

Article III
DIRECTORS

Section 3.1 Number. Unless the Amended and Restated Certificate of Incorporation fixes the number of directors, the number of directors of the Corporation shall be determined from time to time solely by resolution adopted by the affirmative vote of a majority of such directors then in office.

Section 3.2 Meetings. Regular meetings of the Board of Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called by the Secretary on the written request of a majority of the directors then in office, on at least twenty-four hours’ notice to each director (except that notice to any director may be waived in writing, including by electronic transmission, by such director) and shall be held at such place or places as may be determined by the Board of Directors, or as shall be stated in the call of the meeting.

Unless otherwise restricted by the Amended and Restated Certificate of Incorporation of the Corporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in any meeting of the Board of Directors or any committee thereof by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in his or her absence by the Vice Chairman of the Board, if any, and in his or her absence, the Chief Executive Officer or the President or in their absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence, the chairman of the meeting may appoint any person to act as secretary of the meeting.

Section 3.3 Quorum. A majority of the entire Board of Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice need be given other than by announcement of the time, place, if any, thereof and the means of remote communication, if any, by which the Directors may be deemed present in person or at such adjourned meeting. The vote of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless applicable law, the Amended and Restated Certificate of Incorporation of the Corporation or these Bylaws shall require the vote of a greater number.

Section 3.4 Compensation. The directors shall receive such compensation for their services as may be prescribed by the Board of Directors or any committee thereof to which the Board of Directors has delegated such authority. Expenses for attendance at meetings of the Board of Directors and committees of the Board of Directors may be reimbursed for all members of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

Section 3.5 Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing in accordance with applicable law.

Section 3.6 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence of disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Section 3.7 Committee Authority. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the Delaware General Corporation Law to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any Bylaw of the Corporation. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.

Section 3.8 Minutes. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

Article IV
OFFICERS

Section 4.1 Election; Qualifications. The Board of Directors shall elect or appoint a Chairman of the Board, a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers, including assistant officers, as the Board of Directors may from time to time deem advisable. Any two or more offices may be held by the same person, except the offices of President and Secretary.

Section 4.2 Term of Office; Vacancies. Each officer shall hold office until his or her successor has been elected or appointed and qualified unless he or she shall earlier resign, die, or be removed. Any vacancy occurring in any office, whether because of death, resignation or removal, with or without cause, or any other reason, shall be filled by the Board of Directors.

Section 4.3 Removal; Resignation. Any officer may be removed by the Board of Directors with or without cause. Any officer may resign his or her office at any time, such resignation to be made in writing and to take effect immediately or on any future date stated in such writing, without acceptance by the Corporation.

Section 4.4 Powers and Duties of Officers. Officers of the Corporation shall, unless otherwise provided by the Board of Directors, each have such powers and duties as generally pertain to the respective offices as well as such powers and duties as may be set forth in these Bylaws or may from time to time be specifically conferred or imposed by the Board of Directors.

Section 4.5 Shares of Other Corporations. Whenever the Corporation is the holder of shares of any other corporation, any right or power of the Corporation as such stockholder (including the attendance, acting and voting at stockholders’ meetings and execution of waivers, consents, proxies or other instruments) may be exercised on behalf of the Corporation by the Chairman, the President, any Executive Vice President, any Senior Vice President, Secretary or such other person as the Board of Directors may authorize from time to time.

Section 4.6 Delegation. In the event of the absence of any officer of the Corporation or for any other reason that the Board of Directors may deem sufficient, the Board of Directors may at any time and from time to time delegate all or any part of the powers or duties of any officer to any other officer or officers or to any director or directors.

Section 4.7 Chairman of the Board of Directors and Vice-Chairman of the Board of Directors. The Chairman or Chairmen of the Board of Directors, if any, shall preside at all meetings of the Board of Directors and of the stockholders at which he, she or they shall be present. He, she or they shall have and may exercise such powers as are, from time to time, assigned to him, her or them by the Board of Directors and as may be provided by law. In the absence of the Chairman of the Board, the Vice Chairman of the Board, if any, shall preside at all meetings of the Board of Directors and of the stockholders at which he or she shall be present. He or she shall have and may exercise such powers as are, from time to time, assigned to him or her by the Board of Directors and as may be provided by law.

Section 4.8 President. The President shall be the Chief Executive Officer of the Corporation; and in the absence of a Chairman or Vice Chairman of the Board he or she shall preside as the chairman of meetings of the stockholders and the Board of Directors; he or she shall have general and active management of the business of the Corporation and shall see that all orders and resolution of the Board of Directors are carried into effect.

Section 4.9 Senior Vice Presidents. In the absence of the President or in the event of his or her inability or refusal to act, the Senior Vice President, if any (or in the event there be more than one Senior Vice President, the Senior Vice Presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Each Senior Vice President shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

Section 4.10 Vice President. Vice Presidents, if any, in order of their seniority or in any other order determined by the Board of Directors, shall perform such duties and shall have such powers as the Board of Directors may from time to time prescribe.

Section 4.11 Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he or she shall be subject.

Section 4.12 Assistant Secretary. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

Section 4.13 Treasurer. The Chief Financial Officer shall be the Treasurer of the Corporation unless the Board of Directors shall have designated another officer as the Treasurer of the Corporation. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors.

Article V
INDEMNIFICATION

Section 5.1 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or an officer of the Corporation or is or, while a director or officer of the Corporation, was serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, agent or trustee or in any other capacity while serving as a director, officer, employee, agent or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith; provided, however, that, the Corporation shall indemnify any such Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized in the specific case by the Board of Directors or is expressly required by law.

Section 5.2 Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 1 of this Article V, an Indemnitee shall, to the fullest extent not prohibited by applicable law, also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such Proceeding in advance of its final disposition (hereinafter an “Advancement of Expenses”); provided, however, that, if required by the Delaware General Corporation Law, an Advancement of Expenses incurred by an Indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under Section 1 of this Article V or otherwise.

Section 5.3 Non-Exclusivity of Rights. The rights to indemnification and to the Advancement of Expenses conferred in this Article V shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, the Corporation’s Amended and Restated Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

Section 5.4 Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

Section 5.5 Indemnification Contracts. The Board of Directors is authorized to cause the Corporation to enter into indemnification contracts with any director, officer, employee or agent of the Corporation, or any person serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing indemnification or advancement rights to such person. Such rights may be greater than those provided in this Article V.

Section 5.6 Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article V with respect to the indemnification and Advancement of Expenses of directors and officers of the Corporation.

Section 5.7 Other Indemnification. The Corporation’s obligation, if any, to indemnify or advance expenses to any Indemnitee who was or is serving at its request as a director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such Indemnitee may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

Section 5.8 Nature of Rights. The rights conferred upon indemnitees in this Article V shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article V that adversely affects any right of an Indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any Proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or repeal.

Section 5.9 Saving Clause. If this Article V or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify and advance expenses to each director and officer to the fullest extent not prohibited by any applicable portion of this Article V that shall not have been invalidated, or by any other applicable law. If this Article V shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the Corporation shall indemnify and advance expenses to each director and officer to the fullest extent permitted under any other applicable law.

Article VI
MISCELLANEOUS

Section 6.1 Shares of Stock. The shares of stock of the Corporation shall be represented by a certificate, unless and until the Board of Directors adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of stock of the Corporation theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate for shares of the Corporation certifying the number of shares owned by such stockholder in the Corporation. Certificates of stock of the Corporation shall be of such form and device as the Board of Directors may from time to time determine. Any or all of the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

Section 6.2 Lost Certificates. A new certificate of stock may be issued (or uncertificated shares be registered in lieu of a new certificate) in the place of any certificate theretofore issued by the Corporation that is alleged to have been lost or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or such owner’s legal representatives, to give the Corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such certificate, the issuance of any such new certificate, or the registration of any uncertificated shares in lieu of a new certificate.

Section 6.3 Transfer of Shares. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.

Section 6.4 Stockholders Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; and (2) in the case of any other action, shall not be more than sixty days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (2) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 6.5 Dividends. Subject to the provisions of the Amended and Restated Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon stock of the Corporation as and when they deem appropriate. Before declaring any dividend there may be set apart out of any funds of the Corporation available for dividends, such sum or sums as the Board of Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the Corporation.

Section 6.6 Seal. The Corporation may adopt a corporate seal which shall be in such form as may be determined by resolution of the Board of Directors. The Corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise imprinted.

Section 6.7 Fiscal Year. The fiscal year of the Corporation shall end on August 31 of each year unless otherwise determined by resolution of the Board of Directors.

Section 6.8 Checks. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, or agent or agents, of the Corporation, and in such manner as shall be determined from time to time by resolution of the Board of Directors.

Section 6.9 Notice and Waiver of Notice. Whenever any notice is required to be given under these Bylaws, personal notice is not required (except in the case of notices pursuant to Article III, Section 3), and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his or her address as it appears on the records of the Corporation, and such notice shall be deemed to have been given on the day of such mailing. Notwithstanding the foregoing, notice to directors may be given by telegram, telecopier, telephone, email or other means of electronic transmission. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by law. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of the Delaware General Corporation Law, the Amended and Restated Certificate of Incorporation or the Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom notice is given in accordance with Section 232 of the Delaware General Corporation Law. Whenever any notice is required to be given under the provisions of any law, or under the provisions of the Amended and Restated Certificate of Incorporation or of these Bylaws, a waiver thereof, in writing and signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated thereon, shall be deemed equivalent to such required notice. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

Article VII
AMENDMENTS

In furtherance and not in limitation of the powers conferred by laws of the State of Delaware, the Board of Directors is expressly authorized and empowered to adopt, amend and repeal these Bylaws by a majority vote at any regular or special meeting of the Board of Directors. Notwithstanding any other provisions of these Bylaws or the Amended and Restated Certificate of Incorporation and in addition to any other vote required by the laws of the State of Delaware, the affirmative vote of the holders of not less than sixty-six and two-thirds (66 2/3%) of the voting power of all of the outstanding shares of capital stock of the Corporation shall be required in order for the stockholders of the Corporation to adopt, amend or repeal any Bylaw.

Article VIII
EXCLUSIVE FORUM

Unless the Corporation consents in writing to the selection of an alternative forum, the Delaware Court of Chancery shall be the sole and exclusive forum for “all internal corporate claims”. For purposes of this Article VIII, “internal corporate claims” mean claims (i) that are based upon a violation of a duty by a current or former director, officer or stockholder in such capacity or (ii) as to which Title 8 of the Delaware Code confers jurisdiction upon the Court of Chancery, except for, as to each of (i) and (ii) above, any claim (an “Alternative Court Claim”) as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. In the case of an Alternative Court Claim, unless the Corporation consents in writing to the selection of an alternative forum, all internal corporate claims shall be submitted to any federal or state court sitting in the State of Delaware having jurisdiction over all indispensable parties and having subject matter jurisdiction with respect to such Alternative Court Claim.

Exhibit 99.1

TENDER AND SUPPORT AGREEMENT

This TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of June 16, 2016, is by and among Land O’Lakes, Inc., a cooperative corporation incorporated under the laws of Minnesota (“Parent”), Roman Merger Sub, Inc., a corporation incorporated under the laws of Delaware (“Merger Sub”) and the Person listed as “Stockholder” on the signature page hereto (“Stockholder”).

RECITALS

WHEREAS, as a condition and inducement to Parent’s and Merger Sub’s willingness to enter into an Agreement and Plan of Merger (as it may be amended from time to time), the “Merger Agreement”), dated as of the date hereof, with Ceres, Inc., a corporation incorporated under the laws of Delaware (the “Company”), Parent has requested Stockholder, and Stockholder has agreed, to enter into this Agreement with respect to all shares of the Company’s common stock, par value $0.01 per share (the “Shares”) that Stockholder Beneficially Owns (as defined in Section 6.11 below) at any time during the Support Period (as defined in Section 6.11 below).

AGREEMENT

ARTICLE I

Agreement to Tender

Section 1.1 Tender of Shares. Subject to the terms of this Agreement, and unless this Agreement has been terminated pursuant to Section 6.3 herein, Stockholder agrees: (i) to promptly (and, in any event, not later than seven (7) Business Days after commencement of the Offer) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and Rule 14d-2 under the Exchange Act, all of the outstanding Shares Beneficially Owned by Stockholder (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under this Agreement or the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering the Shares Beneficially Owned by Stockholder in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement); and (ii) if Stockholder acquires Beneficial Ownership of any additional Shares during the Support Period (including, for the avoidance of doubt, through the exercise of any Company Warrant, Company Option or other equity award), to promptly (and, in any event, not later than the earlier of three (3) Business Days after Stockholder acquires Beneficial Ownership of such additional Shares and the Business Day prior to the Expiration Date) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, all of such additional Shares (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under this Agreement or the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering the Shares Beneficially Owned by Stockholder in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement). Notwithstanding anything in this Agreement to the contrary, nothing herein shall require Stockholder to exercise any Company Warrant, Company Option or other equity award or require Stockholder to purchase any Shares, and nothing herein shall prohibit Stockholder from exercising any Company Warrant or Company Option held by such Stockholder as of the date of this Agreement; provided, however, that Stockholder agrees not to exercise any Company Warrant or Company Option during the five (5) Business Days preceding an Expiration Date.

Section 1.2 No Withdrawal. Stockholder agrees not to withdraw, and not to cause or permit to be withdrawn, any Shares from the Offer during the Support Period.

Section 1.3 Conditional Obligation. Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered into the Offer, including any Shares tendered by Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

ARTICLE II

Voting Agreement; Grant of Proxy

Section 2.1 Voting Agreement. Stockholder hereby agrees that, during the Support Period, Stockholder will not vote any Shares Beneficially Owned by Stockholder in favor of, or consent to, and will vote against and not consent to, the approval of any (i) Company Competing Proposal, (ii) reorganization, recapitalization, dissolution, liquidation or winding-up of the Company or any other extraordinary transaction involving the Company or any Subsidiary of the Company other than the Merger, (iii) corporate action the consummation of which would frustrate the purposes, or prevent or delay the consummation, of any of the transactions contemplated by the Merger Agreement or (iv) other matter relating to, or in connection with, any of the foregoing matters. Stockholder shall use its best efforts to ensure that, during the Support Period, any other Person having voting power with respect to any Shares Beneficially Owned by Stockholder will vote in accordance with the covenants in the two preceding sentences (including by, if the Stockholder is the beneficial owner, but not the record holder, of Shares Beneficially Owned by Stockholder, taking all actions necessary to cause the record holder and any nominees to vote all of such Shares in accordance with this Section 2.1).

Section 2.2 Irrevocable Proxy. Stockholder hereby revokes (or agrees to cause to be revoked) any and all previous proxies granted with respect to the Shares Beneficially Owned by Stockholder. By entering into this Agreement, Stockholder hereby grants a proxy appointing Parent as Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in Stockholder’s name, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by Section 2.1 above as Parent or its proxy or substitute shall, in Parent’s sole discretion, deem proper with respect to the Shares Beneficially Owned by Stockholder. The proxy granted by Stockholder pursuant to this Article 2 (i) is irrevocable and is granted in consideration of Parent and Merger Sub entering into this Agreement and the Merger Agreement and incurring certain related fees and expenses and is coupled with an interest sufficient in Law to support an irrevocable power, (ii) is a durable power of attorney and shall survive the dissolution, bankruptcy, or incapacity of Stockholder, (iii) shall not be exercised to vote, consent or act on any matter except as contemplated by Section 2.1 above and (iv) shall be revoked, terminated and of no further force or effect, automatically and without further action, upon termination of this Agreement in accordance with Section 6.3 hereof.

ARTICLE III

Representations and Warranties of Stockholder

Stockholder represents and warrants to Parent and Merger Sub that:

Section 3.1 Authorization. The execution, delivery and performance by Stockholder of this Agreement and the consummation by Stockholder of the transactions contemplated hereby are within the powers (corporate and otherwise) of Stockholder and, if applicable, have been duly authorized by all necessary corporate, company, partnership or other action. This Agreement constitutes a valid and binding agreement of Stockholder, Enforceable against Stockholder. If Stockholder is married and (i) the Shares set forth on the signature page hereto opposite such Stockholder’s name constitute community property under applicable Law or (ii) any Shares of which Stockholder acquires Beneficially Ownership during the Support Period could constitute community property under applicable Law, then this Agreement has been duly authorized, executed and delivered by, and constitutes the valid and binding agreement of, such Stockholder’s spouse, Enforceable against such Stockholder’s spouse. If this Agreement is being executed in representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into and perform this Agreement.

Section 3.2 Non-Contravention. The execution, delivery and performance by Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate any applicable Law, or (ii) conflict with or violate or require any consent, approval, notice or other action by any Person under, constitute a default (with or without notice of lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which Stockholder is entitled under any provision of any Contract binding on Stockholder or any of Stockholder’s properties or assets, including the Shares Beneficially Owned by Stockholder.

Section 3.3 Ownership of Shares. Stockholder (together with Stockholder’s spouse if Stockholder is married and the Shares set forth on the signature page hereto opposite such Stockholder’s name constitute community property under applicable Law) is the Beneficial Owner of the Shares set forth on the signature page hereto opposite such Stockholder’s name, free and clear of any Lien and any other limitation or restriction (including any restriction on the right to vote or otherwise dispose of the Shares Beneficially Owned by Stockholder), except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder or Stockholder’s spouse, if applicable, from tendering Shares Beneficially Owned by Stockholder in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement. None of such Shares is subject to any voting trust or other Contract with respect to the voting of such Shares (including shares underlying Company Options), except (i) as set forth in this Agreement or (ii) as would not prevent or materially delay the consummation by the Stockholder of the transactions contemplated hereby or the performance by the Stockholder of its covenants and obligations hereunder.

Section 3.4 Total Shares. Except for the Shares set forth on the signature page hereto (including shares underlying Company Options set forth on the signature page hereto), Stockholder does not Beneficially Own any (i) shares of capital stock or voting securities of the Company or (ii) options, warrants or other rights to acquire, or securities convertible into or exchangeable for (in each case, whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.

Section 3.5 Finder’s Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent, Merger Sub or the Company in respect of this Agreement based upon any Contract made by or on behalf of Stockholder solely in Stockholder’s capacity as a stockholder of the Company.

Section 3.6 No Litigation. As of the date of this Agreement, there is no Legal Proceeding pending or, to the knowledge of Stockholder, threatened against Stockholder at Law or in equity before or by any Governmental Entity that could reasonably be expected to impair the ability of Stockholder to perform Stockholder’s obligations hereunder or consummate the transactions contemplated hereby.

ARTICLE IV

Representations and Warranties of Parent and Merger Sub

Parent and Merger Sub represent and warrant to Stockholder:

Section 4.1 Organization. Each of Parent and Merger Sub is duly organized and validly existing in good standing under the Laws of the jurisdiction of its organization.

Section 4.2 Authorization. The execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by Parent and Merger Sub of the transactions contemplated hereby are within the corporate powers of Parent and Merger Sub and have been duly authorized by all necessary corporate action. This Agreement constitutes a valid and binding agreement of Parent and Merger Sub, Enforceable against Parent and Merger Sub.

Section 4.3 Non-Contravention. The execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate the certificate of incorporation or bylaws, or other comparable charter or organizational documents, of Parent or Merger Sub, respectively, (ii) violate any applicable Law, or (iii) conflict with or violate or require any consent, approval, notice or other action by any Person under, constitute a default (with or without notice of lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which Parent or Merger Sub is entitled under any provision of any Contract binding on Parent or Merger Sub or any of their respective properties or assets.

ARTICLE V

Covenants of Stockholder

Stockholder hereby covenants and agrees that during the Support Period:

Section 5.1 No Proxies for, Encumbrances on or Disposition of Shares.

(i) Except pursuant to the terms of this Agreement, Stockholder shall not, without the prior written consent of Parent, directly or indirectly (except, if Stockholder is an individual, as a result of the death of Stockholder), (i) grant any proxies, or enter into any voting trust or other Contract, with respect to the voting of any Shares Beneficially Owned by Stockholder, (ii) sell, assign, transfer, tender, encumber or otherwise dispose of, or enter into any Contract with respect to the direct or indirect sale, assignment, transfer, tender, encumbrance or other disposition of, any such Shares except as provided herein or (iii) take any other action that would make any representation or warranty of Stockholder contained herein untrue or incorrect in any material respect or in any way restrict, limit or interfere in any material respect with the performance of Stockholder’s obligations hereunder or the transactions contemplated hereby or by the Merger Agreement, or cause any other Person to take any of the foregoing actions, and Stockholder agrees to notify Parent and Merger Sub promptly, and to provide all material details reasonably requested by Parent or Merger Sub, if Stockholder shall be approached or solicited, directly or indirectly, by any Person with respect to any of the foregoing. Without limiting the generality of the foregoing, Stockholder shall not tender, agree to tender or cause or permit to be tendered any Shares Beneficially Owned by Stockholder into or otherwise in connection with any tender or exchange offer, except pursuant to the Offer.

(ii) Notwithstanding the foregoing clause (i), Stockholder may transfer Shares held by Stockholder to any member of Stockholder’s immediate family or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate family; provided that a transfer referred to in this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement.

Section 5.2 Other Offers. Unless the Company is then permitted to take any action actions referred to in either of clauses (x) or (y) of Section 5.2(b) of the Merger Agreement, in which case, the Stockholder shall be permitted to take any action then permitted to be taken by the Company, Stockholder agrees that it shall not, directly or indirectly, solicit, initiate, knowingly encourage or knowingly facilitate the submission or an announcement of any Company Competing Proposal or the making of any inquiry, offer or proposal that could reasonably be expected to lead to any Company Competing Proposal or (i) participate in any negotiations regarding any Company Competing Proposal, (ii) afford any Person access to the business, properties, assets, employees, officers, directors, books or records of the Company or any Company Subsidiary, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary, in each case, in connection with any Company Competing Proposal or any inquiry, offer or proposal that could reasonably be expected to lead to any Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal or any inquiry, offer or proposal that could reasonably be expected to lead to any Company Competing Proposal, (iv) enter into any letter of intent, agreement in principle, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to, or any agreement or commitment (X) contemplating or otherwise providing for, any Company Competing Proposal or (Y) requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by the Merger Agreement or to breach its obligations under the Merger Agreement, or (v) resolve, propose or agree to do any of the foregoing. Stockholder shall immediately cease any and all discussions or negotiations with any Person conducted heretofore with respect to any Company Competing Proposal. For purposes of this Section 5.2, the term “Person” means any Person or “group,” as defined in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent and its affiliates (including Merger Sub) and Parent’s Representatives. Notwithstanding anything to the contrary contained in this Agreement, Stockholder may inform a Person that has made (prior to the date hereof) or makes (after the date hereof) a Company Competing Proposal of the provisions of this Section 5.2 so long as Stockholder otherwise comply with this Section 5.2 in connection therewith. Stockholder shall notify Parent in writing promptly (but in no event later than twenty-four (24) hours) after receipt by Stockholder of any Company Competing Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to a Company Competing Proposal, or any request for nonpublic information relating to the Company or any Company Subsidiary or for access to the business, properties, assets, employees, officers, directors, books or records of the Company or any Company Subsidiary by any Person, in each case in connection with any Company Competing Proposal or inquiry, offer or proposal that would reasonably be expected to lead to a Company Competing Proposal. Such notice shall identify the Person making, and the material terms and conditions of, any such Company Competing Proposal, inquiry, offer, proposal or request.

Section 5.3 Communications. Except as required by applicable Law (in which case the Stockholder required to make the announcement will use his or her reasonable efforts to allow Parent reasonable time to comment on such announcement in advance of such issuance), no public announcements, press releases or other public communications by any Stockholder regarding this Agreement, the transactions contemplated hereby, the Merger Agreement or the Transactions are permitted to the extent such public communication criticizes or disparages this Agreement or the Merger Agreement or any of the transactions contemplated hereby and thereby, without the prior written consent of Parent. Stockholder hereby (i) consents to and authorizes the publication and disclosure by Parent, Merger Sub and the Company (including in the Schedule TO, the Schedule 14D-9 or any other publicly filed documents relating to the Merger, the Offer or any other transaction contemplated by the Merger Agreement) of: (a) Stockholder’s identity; (b) Stockholder’s Beneficial Ownership of Shares, Company Options or Company Warrants (including the number of such Shares, Company Options and Company Warrants Beneficially Owned by Stockholder); and (c) the nature of Stockholder’s commitments, arrangements and understandings under this Agreement, and any other information that Parent, Merger Sub or the Company determines to be necessary or advisable in any SEC disclosure document in connection with the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement and (ii) agrees as promptly as practicable to notify Parent, Merger Sub and the Company of any required corrections with respect to any written information supplied by Stockholder specifically for use in any such disclosure document.

Section 5.4 Additional Shares. In the event that Stockholder acquires Beneficial Ownership of, or the power to dispose of or vote or direct the disposition or voting of, any additional Shares or other interests in or with respect to the Company, such Shares or other interests shall, without further action of the parties, be subject to the provisions of this Agreement, and the number of Shares Beneficially Owned by Stockholder set forth on the signature page hereto will be deemed amended accordingly. Stockholder shall promptly notify Parent and Merger Sub of any such event.

Section 5.5 Waiver of Appraisal and Dissenters’ Rights and Actions. Stockholder hereby (i) waives and agrees not to exercise any rights (including under Section 262 of the DGCL) to demand appraisal of any Shares or rights to dissent from the Merger which may arise with respect to the Merger and (ii) agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to any Legal Proceeding, against Parent, Merger Sub, the Company or any of their respective successors or Representatives relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the making or consummation of the Offer or consummation of the Merger, including any Legal Proceeding (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Merger Agreement or (y) alleging a breach of any fiduciary duty of the Company Board in connection with this Agreement, the Merger Agreement or the transactions contemplated thereby.

ARTICLE VI

Miscellaneous

Section 6.1 Other Definitional and Interpretative Provisions. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation” or “but not limited to”. As used in this Agreement, the term “affiliates” shall have the meaning set forth in Rule 12b-2 of the Exchange Act. The headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Any definition of or reference to any Contract herein shall be construed as referring to such Contract as from time to time amended, supplemented or otherwise modified. When reference is made herein to a Person, such reference shall be deemed to include all direct and indirect Subsidiaries, successors and assigns of such Person unless otherwise indicated or the context otherwise requires. All references herein to the Subsidiaries of a Person shall be deemed to include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. The words “hereof,” “herein,” “hereinafter” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context requires otherwise. The term “or” has the inclusive meaning represented by the phrase “and/or”. 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. References in this Agreement to specific laws or to specific provisions of laws shall include all rules and regulations promulgated thereunder, and any statute defined or referred to herein or in any agreement or instrument referred to herein shall mean such statute as from time to time amended, modified or supplemented, including by succession of comparable successor statutes.

Section 6.2 Further Assurances. Parent and Stockholder (in its capacity as such) will each execute and deliver, or cause to be executed and delivered, all further documents and instruments as the other may reasonably request and use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary and all things the other party may reasonably deem proper or advisable under applicable Law, to consummate and make effective the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, Stockholder shall, to the extent requested by Parent, promptly: (i) use its best efforts to cause each other Person having voting power with respect to any Shares Beneficially Owned by Stockholder to execute and deliver to Parent a proxy with respect to such Shares, which shall be identical to the proxy in Section 2.2 above; and (ii) surrender the certificates representing the Shares owned of record by Stockholder in accordance with Stockholder’s obligations set forth in Section 1.1, and use its best efforts to cause the certificates representing any other outstanding Shares Beneficially Owned by Stockholder, to be surrendered so that the transfer agent for such shares may affix thereto an appropriate legend referring to this Agreement (or, in the case of Shares held in book-entry form, the appropriate notation in the book-entry record for such Shares referring to this Agreement).

Section 6.3 Amendments; Termination. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is to be effective. This Agreement shall terminate automatically, without any notice or other action by any Person, upon the expiration of the Support Period. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that no termination of this Agreement shall relieve any party hereto from any liability for any breach of any provision of this Agreement prior to such termination.

Section 6.4 Expenses. All Expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such Expense.

Section 6.5 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that Stockholder may not assign, delegate or otherwise transfer any of Stockholder’s rights or obligations under this Agreement without the prior written consent of Parent. Any assignment, delegation or transfer in violation of the foregoing shall be null and void.

Section 6.6 Governing Law; Jurisdiction. This Agreement, and any Legal Proceeding arising out of, relating to, or in connection with this Agreement, shall be governed by, and construed in accordance with, the Law of the State of Delaware, regardless of the Law that might otherwise govern under applicable principles of conflicts of laws thereof. In any Legal Proceeding between any of the parties arising out of or relating to this Agreement or any of the Transactions each of the parties (i) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, if (and only if) the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware (Complex Commercial Division) or, if (and only if) the Superior Court of the State of Delaware (Complex Commercial Division) declines to accept jurisdiction over a particular matter, any federal court sitting in the State of Delaware, and any appellate courts therefrom, (ii) irrevocably waives any objection that it may now or hereafter have to the venue of any such action, dispute or controversy in any such court or that such Legal Proceeding was brought in an inconvenient court and agrees not to plead or claim the same, (iii) agrees that it shall not bring any Legal Proceeding relating to this Agreement or the Transactions in any court other than the aforesaid courts, and (iv) irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such party is to receive notice in accordance with Section 6.13, in addition to any other method to serve process permitted by applicable Law.

Section 6.7 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE MERGER AND OTHER TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 6.7.

Section 6.8 Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts, each of which shall be considered one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or by e-mail of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto and the Merger Agreement has become effective. Until and unless each party has received a counterpart hereof signed by the other party hereto and the Merger Agreement has become effective, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

Section 6.9 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Merger is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.

Section 6.10 Specific Performance. The parties hereto agree that irreparable damage to Parent and Merger Sub would occur, damages would be incalculable and would be an insufficient remedy and no other adequate remedy would exist at law or in equity, in each case in the event that any provision of this Agreement were not performed by Stockholder in accordance with the terms hereof, and that each of Parent and Merger Sub shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically Stockholder’s performance of the terms and provisions hereof, in addition to any other remedy to which Parent or Merger Sub may be entitled at Law or in equity. Stockholder hereby (i) waives any defenses based on the adequacy of any other remedy, whether at law or in equity, that might be asserted as a bar to the remedy of specific performance of any of the terms or provisions hereof or injunctive relief in any action brought therefor by Parent or Merger Sub and (ii) agrees that Parent and Merger Sub shall not be required to provide any bond or other security in connection with any such decree, order or injunction or in connection with any related action or Legal Proceeding.

Section 6.11 Defined Terms. For the purposes of this Agreement:

(i) Capitalized terms used but not defined herein shall have the respective meanings set forth in the Merger Agreement.

(ii) Stockholder shall be deemed to “Beneficially Own” or to have acquired “Beneficial Ownership” of a security if Stockholder (a) is the record owner of such security; or (b) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of such security.

(iii) “Support Period” shall mean the period from the date of this Agreement through the earlier of (a) the date upon which the Merger Agreement is validly terminated in accordance with its terms, (b) the Effective Time, or (c) the termination or withdrawal of the Offer or the expiration (after giving effect to extensions) of the Offer without Merger Sub having accepted for payment Shares tendered in the Offer.

Section 6.12 Action in Stockholder’s Capacity Only. Stockholder, if a director or officer of the Company, does not make any agreement or understanding herein as a director or officer of the Company. Stockholder signs this Agreement solely in Stockholder’s capacity as a Beneficial Owner of Shares or a holder of Company Options and Company Warrants, and nothing herein shall limit or affect any actions taken in Stockholder’s capacity as an officer or director of the Company, including complying with or exercising such Stockholder’s fiduciary duties as a member of the Company Board.

Section 6.13 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) if delivered by hand, when delivered, (b) if sent on a Business Day by email or facsimile transmission before 11:59 p.m. (recipient’s time) and receipt is confirmed, when transmitted, (c) if sent by email or facsimile transmission on a day other than a Business Day and receipt is confirmed, on the Business Day following the date on which receipt is confirmed, (d) if sent by email or facsimile transmission after 11:59 p.m. (recipient’s time) and receipt is confirmed, on the Business Day following the date on which receipt is confirmed, (e) if sent by registered, certified or first class mail, the third (3rd) Business Day after being sent, and (f) if sent by overnight delivery via a national courier service, one (1) Business Day after being sent, in each case to the address or facsimile telephone number set forth beneath the name of such party below (or to such other address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):

if to Parent or Merger Sub, to:

c/o Land O’Lakes, Inc.

4001 Lexington Avenue North

Arden Hills, MN 55126

Attn.: Matthew Smith, Corporate Counsel

E-Mail: [email protected]

Facsimile: (651) 375-2832

With a copy, which shall not constitute notice, to:

Dorsey & Whitney LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

Attn.: Jonathan A. Van Horn

E-Mail: [email protected]

Facsimile: (612) 340-2868

if to Stockholder, to: the address for notice set forth on the signature page hereto

With a copies, which shall not constitute notice, to:

Ceres, Inc.

1535 Rancho Conejo Blvd.

Thousand Oaks, CA 91320

Attn.: Chief Executive Officer

Email: [email protected]

Facsimile: (805) 499-9017

and

K&L Gates LLP

134 Meeting Street, Suite 500

Charleston, SC 29401

Attn.: Michael D. Bryan, James M. Herriott

E-Mail: [email protected], [email protected]

Facsimile: (843) 579-8801

Section 6.14 Waiver. No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. A party hereto shall not be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

Section 6.15 No Ownership Interest. Prior to the consummation of the Offer, all rights, ownership and economic benefits of and relating to the Shares, Company Options and Company Warrants Beneficially Owned by Stockholder at a given time shall remain vested in and belong to Stockholder as of such time, and Parent shall have no authority to exercise any power or authority to direct Stockholder in the voting of any of the Shares Beneficially Owned by Stockholder, except as otherwise specifically provided herein, or in the performance of Stockholder’s duties or responsibilities as a stockholder of the Company.

Section 6.16 Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof.

(Remainder of Page Intentionally Left Blank)

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

	LAND O’LAKES, INC.:

	By:
	Name:	Mike Vande Logt
	Title:	Executive Vice President

	ROMAN MERGER SUB, INC.:

	By:
	Name:	Charles Von Feldt
	Title:	Secretary

[Signature Page to Tender and Support Agreement]

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

	STOCKHOLDER:


	Name:

	Stockholder Notice Information:

	[Address]
	E-mail:
	Facsimile:

	SPOUSE OF STOCKHOLDER:


	Name:

Common Shares

Beneficially

Owned

Common Shares Owned

of Record

Shares subject to

Company Options

SCHEDULE OF SIGNATORIES

AND COMMON SHARES AND COMPANY OPTIONS

Stockholder Name	Common Shares Beneficially Owned		Common Shares Owned Of Record		Shares subject to Company Options
Cheryl Morley		0		0		2,916
Pascal Brandys		7,320		7,320		1,215
Paul Kuc		14,420		13,495		41,869
Richard Flavell		14,022		14,022		10,529
Richard Hamilton		31,928		30,678		69,438
Robert Goldberg		23,503		23,503		6,535
Roger Pennell		10,653		10,653		16,585
Walter Nelson		7,103		7,103		11,104
Wilfriede van Assche		5,666		4,416		11,844

Exhibit 99.2

Land O’Lakes, Inc. to Acquire Ceres, Inc. in Cash Tender Offer

ARDEN HILLS, Minn. and THOUSAND OAKS, Calif. — June 17, 2016 — Land O’ Lakes, Inc. and Ceres, Inc. (Nasdaq: CERE) announced today that they have signed a definitive merger agreement under which Land O'Lakes will acquire all of the outstanding capital stock of Ceres in a transaction valued at approximately $17.2 million (including amounts payable to holders of certain warrants to acquire Ceres common stock). Under the terms of the merger agreement, Land O’Lakes (through its wholly owned subsidiary, Roman Merger Sub, Inc.) will commence a tender offer for all outstanding shares of Ceres common stock for $0.40 per share, in cash. The price per share of common stock represents an 81% premium to the closing price of Ceres shares of common stock on June 16, 2016.

Upon completion of the transaction, Ceres will become a wholly owned subsidiary of Land O’Lakes and will complement Forage Genetics International (FGI), a Land O’Lakes subsidiary, and bring new advanced plant breeding and biotechnology to FGI’s research and development pipeline.

“Through our Forage Genetics International business, Land O’Lakes is interested in providing a holistic forage offering to our customers, including alfalfa, corn silage and forage sorghum. The acquisition brings complementary strengths together, adds new advanced plant breeding and biotechnology to the FGI research and development pipeline and accelerates the process of bringing new forage solutions to existing and new markets,” said Chris Policinski, president and CEO, Land O’Lakes, Inc.

“Our shift away from bioenergy and Brazil and into forages has been highly successful to date, and is culminating now in this proposed merger transaction with a preeminent leader in forage crops,” said Richard Hamilton, chief executive officer and president, Ceres. “After evaluating strategic options, our board of directors has unanimously determined that this all-cash transaction, which represents a significant premium from recent trading levels, is in the best interest of the company and its stockholders, and will advance Ceres’ mission of making the production of meat and dairy more scalable and sustainable.”

Each of Ceres’ directors and certain of Ceres’ officers, who collectively beneficially own shares representing approximately 1.16% of Ceres’ outstanding common stock, have entered into tender and support agreements with Land O’Lakes to tender their shares of Ceres common stock to the offer.

Under the terms of the merger agreement, following the successful completion of the tender offer, the transaction will be completed by a second-step merger in which all outstanding shares of Ceres common stock not tendered in the tender offer will be converted into the right to receive $0.40 per share of common stock, in cash, and all outstanding shares of Ceres preferred stock will be converted into the right to receive $1,000.00 per share of preferred stock, in cash. Upon the closing of the transaction, holders of certain warrants to purchase shares of Ceres common stock will be entitled to payments of approximately $6.1 million, in the aggregate, pursuant to the terms of the applicable warrant agreements. The transaction, which has been approved by the Land O'Lakes Board of Directors and unanimously approved by the Ceres Board of Directors, is expected to close in the third calendar quarter of 2016. Land O’Lakes will fund the transaction with cash on hand. The transaction is not subject to any financing contingency.

Closing of the tender offer and merger is subject to certain customary conditions, including the tender in the tender offer of more than 50 percent of all outstanding shares of Ceres common stock. The transaction is also subject to other customary closing conditions.

For further information regarding certain terms and conditions contained in the definitive merger agreement, please see Ceres’ Current Report on Form 8-K, which will be filed in connection with this transaction.

About Land O'Lakes, Inc.
Land O'Lakes, Inc., one of America's premier agribusiness and food companies, is a member-owned cooperative with industry-leading operations that span the spectrum from agricultural production to consumer foods. With 2015 annual sales of $13 billion, Land O'Lakes is one of the nation's largest cooperatives, ranking 203 on the Fortune 500. Building on a legacy of more than 94 years of operation, Land O'Lakes today operates some of the most respected brands in agribusiness and food production including LAND O LAKES® Dairy Foods, Purina Animal Nutrition and WinField. The company does business in all 50 states and more than 60 countries. Land O'Lakes’ corporate headquarters are located in Arden Hills, Minn.

About Ceres

Ceres, Inc. is an agricultural biotechnology company that develops and markets seeds and traits to produce crops for animal feed, sugar and other markets. The company’s advanced plant breeding and biotechnology platforms, which can increase crop productivity, improve quality, reduce crop inputs and improve cultivation on marginal land, have broad application across multiple crops, including food, feed, fiber and fuel crops. Ceres markets its seed products under its Blade brand. The company also licenses its biotech traits and technology to other life science companies and organizations.

Ceres Forward-Looking Statements

Statements in this communication may contain, in addition to historical information, certain forward-looking statements. Some of these forward-looking statements may contain words like “believe,” “may,” “could,” “would,” “might,” “possible,” “should,” “expect,” “intend,” “plan,” “anticipate,” or “continue,” the negative of these words, or other terms of similar meaning or they may use future dates. Forward-looking statements in this communication include without limitation statements regarding the planned completion of the transactions. These statements are subject to risks and uncertainties that could cause actual results and events to differ materially from those anticipated, including, but not limited to, risks and uncertainties related to: statements regarding the anticipated benefits of the transactions; statements regarding the anticipated timing of filings and approvals relating to the transactions; statements regarding the expected timing of the completion of the transactions; the percentage of the Company’s stockholders tendering their shares in the tender offer; the possibility that competing offers will be made; the possibility that various closing conditions for the transactions may not be satisfied or waived; the effects of disruption caused by the transactions making it more difficult to maintain relationships with employees, vendors and other business partners; possible stockholder litigation in connection with the transaction; and other risks and uncertainties discussed in Ceres’s filings with the SEC, including the “Risk Factors” sections of Ceres’s Annual Report on Form 10-K for the year ended August 31, 2015 and any subsequent quarterly reports on Form 10-Q, as well as the tender offer documents to be filed by Land O’ Lakes or Roman Merger Sub and the Solicitation/Recommendation Statement to be filed by Ceres. Ceres undertakes no obligation to update any forward-looking statements as a result of new information, future developments or otherwise, except as expressly required by law. All forward-looking statements in this communication are qualified in their entirety by this cautionary statement.

Important Additional Information

The tender offer described in this press release has not yet commenced, and this communication is neither an offer to purchase nor a solicitation of an offer to sell any shares of the common stock or preferred stock of Ceres, Inc. This press release is for informational purposes only. On the commencement date of the tender offer, Land O’Lakes and its wholly owned subsidiary, Roman Merger Sub, Inc., will file a tender offer statement on Schedule TO, including an offer to purchase, a letter of transmittal and related documents, with the Securities and Exchange Commission (SEC). At or around the same time, Ceres, Inc. will file a statement on Schedule 14D-9 with respect to the tender offer. Stockholders should read those materials carefully because they will contain important information, including the various terms and conditions of the tender offer. Stockholders will be able to obtain a free copy of these documents (when they become available) and other documents filed by Land O’Lakes, Roman Merger Sub and Ceres with the SEC at the website maintained by the SEC at www.sec.gov. In addition, stockholders will be able to obtain a free copy of these documents (when they become available) at the Land O’Lakes, Inc. website at landolakesinc.com.

Contacts:

Ceres, Inc.
Gary Koppenjan
(805) 375-7801
[email protected]

Land O’Lakes, Inc.

Rebecca Lentz

(651) 375-5949

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Form 8-K Ceres, Inc. For: Jun 16

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