Amended and Restated Agreement and Plan of Merger | (5) Amended and Restated Agreement and Plan of Merger On June 6, 2014, Evolutionary Genomics, EG I, Fona, Fona Merger Sub, Inc., and Fona Merger Sub, LLC entered into a merger agreement as amended by the Amended and Restated Agreement and Plan of Merger dated March 2, 2015, pursuant to which, subject to certain conditions, Fona Merger Sub, Inc. will merge with Evolutionary Genomics and Fona Merger Sub, LLC will merge with EG I, with each Evolutionary Genomics and EG I surviving as wholly-owned subsidiaries of Fona. Pursuant to the terms of the merger agreement, at the effective time of the Mergers, the Company shall cause to be paid or issued to stockholders of record of Evolutionary Genomics as of the effective time of the Mergers, 308,821,675 newly issued shares of Fonas common stock and 47,323,188 shares of newly issued Fona common stock to the members of EG I. The closing of the Mergers shall occur on or before December 31, 2015, unless earlier terminated. Evolutionary Genomics and EG I may at any time mutually agree to change the method of effecting the Mergers, including entering into an appropriate amendment to the merger agreement. The merger agreement contains customary representations and warranties of Evolutionary Genomics, EG I, Fona, and Fonas subsidiaries. The merger agreement also contains customary covenants and agreements, including, without limitation, covenants relating to the conduct of Fonas business between the date of signing of the merger agreement and closing date. Notwithstanding the limitations in the merger agreement, each of Evolutionary Genomics, EG I and Fona retain the right to engage in discussions or negotiations regarding alternative acquisition proposals to the extent necessary to fulfill the fiduciary duties of their respective boards of directors to their stockholders, subject to certain requirements. The Mergers are intended to be a transaction or transactions described in Section 351 of the Internal Revenue Code (the Code). The completion of the Mergers are subject to the satisfaction or waiver of certain closing conditions, including, without limitation, (i) the approval and adoption by the EG stockholders and EG I members of the merger agreement, (ii) the issuance of the Merger consideration in connection with the consummation of the Mergers, (iii) the effectiveness of a joint proxy statement/prospectus included in Fonas registration statement on Form S-4, (iv) holders of either securities in Evolutionary Genomics and EG I shall not be entitled to dissenters or appraisal rights, (v) absence of certain orders or regulations prohibiting the consummation of the Mergers, (vi) the effectiveness of a one-for-60.8826565 reverse split of the Common Stock (no fractional shares will be issued or cash in lieu of shares; fractional shares will be rounded up or down to the nearest whole number), and (vii) the approval or consent of any governmental authorities and third parties with respect to the transactions contemplated by the merger agreement. |