FNAM Evolutionary Genomics Inc Common Stock (CE)

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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FORM 8-K

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CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):  October 7, 2014 (October 1, 2014)

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FONA, INC.

(Exact name of registrant as specified in its charter)

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Nevada	000-54129	41-1683548
(State or Other Jurisdiction	(Commission	(I.R.S. Employer
of Incorporation)	File Number)	Identification No.)

1026 Anaconda Drive, Castle Rock, Colorado 80108

(Address of Principal Executive Office) (Zip Code)

(303) 513-3510

(Registrant’s telephone number, including area code)

2575 Pearl Street, Suite 225, Boulder, Colorado 80302

(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))

 

 

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Item 1.01

Entry into a Material Definitive Agreement;

Item 1.02

Termination of a Material Definitive Agreement

Item 5.01

Changes in Control of Registrant

Securities Purchase Agreements and Change in Control

On June 6, 2014, Evolutionary Genomics, Inc. (“Evolutionary Genomics”) entered into a Securities Purchase Agreement (the “First SPA”) whereby Michael Friess, the Chairman of the Board, President and Chief Executive of Fona, Inc. (“Fona” or the “Company”), and Sanford Schwartz, member of the Company’s Board of Directors (the “Board”), agreed to sell, and Evolutionary Genomics, agreed to purchase, 366,000 shares of Common Stock from each of Messrs. Friess and Schwartz for an aggregate purchase price consideration of $145,000. The First SPA further gave Evolutionary Genomics an option to purchase an additional 1,611,475 shares of Common Stock from each of Messrs. Friess and Schwartz for an aggregate purchase price consideration of $10,000 (the “Friess-Schwartz Option”).

In conjunction with the First SPA, Evolutionary Genomics entered into a securities purchase agreement with Nick Boosalis, a shareholder of the Company, Desfaire, Inc., a Minnesota corporation and affiliate of Nick Boosalis, and The Boosalis Group, Inc., a Minnesota corporation and also an affiliate of Nick Boosalis, for the purchase of an option to acquire an aggregate of 2,252,233 shares of Common Stock (the “Boosalis Option”).

On October 1, 2014, Evolutionary Genomics entered into a Securities Purchase Agreement (the “Second SPA”) with Michael Friess, Sanford Schwartz, Nick Boosalis, Desfaire, Inc. and The Boosalis Group, Inc., pursuant to which, in consideration of $110,000, Evolutionary Genomics purchased, in the aggregate, 5,475,183 shares (the “Shares”) of the Company’s Common Stock. Mr. Warnecke, the Company’s Chief Financial Officer, Treasurer Secretary and a Director prior to the Second SPA, is the Chief Executive Officer of Evolutionary Genomics and holder of 782,539 shares of the Series B-2 Preferred Stock, representing 64.2% of the issued and outstanding shares of preferred stock of Evolutionary Genomics, and 1,032,780 shares of commons stock, or 26.8% of the issued and outstanding common stock of Evolutionary Genomics.

As a result of the Second SPA, there was a change in control of the Company. Evolutionary Genomics currently owns 5,933,423 shares of the Company’s Common Stock, or 75.16%. The source of the funds for the purchase price for the shares of Common Stock was the working capital of Evolutionary Genomics. Other than the consummation of the Agreement and Plan of Merger dated June 6, 2014 by and among Evolutionary Genomics, EG I, LLC, a Colorado limited liability company, the Company, Fona Merger Sub, Inc., a Delaware corporation and Fona Merger Sub, LLC, a Colorado limited liability company (the “Merger Agreement”), there are no plans or proposals which relate to, or could result in, a further change in control at this time. The Company and the Board may, at any time and from time to time, review or reconsider their position, change their purpose or formulate plans or proposals with respect to a change in control.

Simultaneously with the closing of the Second SPA, and in conjunction with the change in control referenced in the prior paragraph, (i) Virginia Orndorff and Mark Boggess were appointed as directors of the Company by the Board, effective 10 days after an information statement on Schedule 14F-1 is mailed to the Company’s shareholders and (ii) Messrs. Friess and Schwartz’s resigned as directors of the Company, effective immediately.

The information required by Item 5.01(a)(8) of Form 8-K is hereby incorporated by reference from the Form 10-12G filed by the Company on December 10, 2010.

Cancellation of Options

On June 6, 2014, in conjunction with the First SPA, Evolutionary Genomics entered into the Friess-Schwartz Option and the Boosalis Option. On October 1, 2014, as part of the Second SPA, such options were cancelled.

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Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Simultaneously with the closing of the Second SPA, (i) Virginia Orndorff and Mark Boggess were appointed as directors of the Company by the Board, effective 10 days after an information statement on Schedule 14F-1 is mailed to the Company’s shareholders and (ii) Messrs. Friess and Schwartz’s voluntarily resigned as officers and directors of the Company, effective immediately. Their respective resignations were not the result of any disagreement with the Company on any matter relating to its operations, policies (including accounting or financial policies) or practices.

Mr. Friess, the Company’s President and principal executive officer, resigned from such positions on October 1, 2014.

Steve B. Warnecke was appointed Chief Financial Officer, Treasurer, Secretary and member of the board of directors of Fona on June 6, 2014, and became its principal executive officer as President, Chief Executive Officer and Chairman of the Board on October 1, 2014. Mr. Warnecke has served as a member of the board of directors of Evolutionary Genomics since September 2010 and was appointed as Chief Executive Officer in November 2010. Since November 2012, Mr. Warnecke has served part-time roles as Chairman of the Board of Directors and Chief Financial Officer for VetDC, Inc. and Senior Vice President of Children’s Hospital Colorado Foundation and Chairman of Children’s Partners Foundation (supporting Children’s Hospitals and cystic fibrosis research) since November 2011. He also is a member of the Board of Directors of CereScan and Bone Biologics, Inc. Previously, Mr. Warnecke served as Lead Independent Director and Audit Committee Chair for Evolving Systems, Inc. (NASDAQ: EVOL, an international telecom software company) from 2003 to 2011, as Chief Financial Officer of Targeted Medical Pharma, Inc. in 2011, as Chief Financial Officer and member of the Board of Directors for Bacterin International, Inc. (NASDAQ: BONE), a biologics and medical device company from 2008 to 2010, Chief Financial Officer for The Children’s Hospital Foundation from 2003 to 2008, member of the Board of Directors of Emmaus Life Sciences, Inc. in 2011, member of the Board of Directors of Boppy Company from 2005 to 2008, Senior Vice-President of Strategic Planning for First Data/Western Union (NYSE: FDC) from 2001 to 2002 and Chief Financial Officer for Frontier Airlines (former NASDAQ company acquired by Republic Airways) from 1999 to 2001. Mr. Warnecke graduated from the University of Iowa with a BBA in Accounting, Finance and Management and passed the Certified Public Accountant exam in 1979. The Fona board believes Mr. Warnecke is well qualified to serve on the Fona board due to his service on public company boards and financial and accounting background.

Virginia Orndorff was appointed as a director of the Company on October 1, 2014. She has served as a member of the Evolutionary Genomics board of directors since 2000. Since 2012 Ms. Orndorff has served as Chief Executive Officer of SixOne Solutions, LLC, an early-stage oncology company. She also currently serves on Colorado’s State Board of Pharmacy since 2012. She served as Chief Executive Officer and President of Evolutionary Genomics from 2000 to 2010. From 1997 to 2000, Ms. Orndorff served as Vice President then President and Chief Executive Officer of GenoPlex, Inc. of Denver and served as Director of Technology/Business Development of NeXstar Pharmaceuticals, Inc. of Boulder, Colorado, from 1993 to 1997. From 1989 to 1993 she served as the Director of Biotechnology Programs for the Colorado Advanced Technology Institute in Denver. Ms. Orndorff was employed by the Georgia Institute of Technology as Manager of a biotechnology start-up incubator (the Health Science Technology Center) from 1987 to 1989; prior to that for eight years by Genex Corporation of Gaithersburg, Maryland, first as a Laboratory Supervisor then as Manager of Technology Assessment. From 1975 to 1979, Ms. Orndorff had served as a Microbiologist at Stanford Research Institute. She received a BA in Biology from the University of California at Santa Cruz, an MA in Microbiology from California State University at San Jose, and an MBA from Loyola College (where she graduated second in her class). The Fona board believes Ms. Orndorff is well qualified to serve on the Fona board due to her scientific background as well as her experience at both the operational and board levels in several companies.

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Mark Boggess, Ph.D. was appointed as a director of the Company on October 1, 2014. He has served as a director of Evolutionary Genomics since 2009. Dr. Boggess has a diverse background in the animal sciences and animal industries. Born and raised on a typical Iowa farm, he served as a swine and beef cattle extension specialist with the University of Idaho in Twin Falls from 1990 to 1994 he was responsible for all swine extension and educational programming and served as the animal breeding resource specialist for the University beef extension team. From 1994 to 2004, Dr. Boggess served as President of Salmon Creek Farms, LLC where was responsible for development of the Salmon Creek Farms Natural Pork program and branded product line, at Independent Meat Company in Twin Falls, ID. From 2004 to 2009, Dr. Boggess assumed the position of Director of Animal Science for the National Pork Board where he was responsible for program direction and industry funding coordination for research in pork quality; nutritional efficiency; sow lifetime productivity; genomics-genetics; alternatives to antimicrobials; production-management systems and bio-technology. Dr. Boggess also served as the National Pork Board liaison for animal science to producers, academia, media, regulators and the National Pork Producers Council and directed numerous pork industry based advisory groups. From 2009 to 2014, Dr. Boggess served as the National Program Leader for Food Animal Production and the National Program Leader for Pasture, Forage and Rangeland Systems for the USDA Agriculture Research Service in Beltsville, Maryland. In this role, Dr. Boggess directed ARS research for diverse programs in genetics and genomics, nutrition, reproductive physiology, animal welfare and meat quality. Dr. Boggess also directed research to improve pasture and rangeland management practices and land-use strategies, improve and restore the ecology of western rangelands and improve the capacity and efficiency of forage based food animal production systems. Currently, Dr. Boggess serves as the Director of the U.S. Dairy Forage Research Center in Madison, WI. The USDFRC is unique in the world in that research programs are fully integrated and include research and expertise in soil science/ecology, forage breeding and management, forage handling and environmental engineering, animal nutrition, animal genetics/genomics, nutrient cycling/waste management, and dairy systems sustainability and management. In this role Dr. Boggess manages and directs the research programs for 21 scientists and approximately 75 support staff. The USDFRC includes two research farms in rural Wisconsin as well as offices and laboratories on the campus of the University of Wisconsin. Dr. Boggess attended Iowa State University receiving a BS degree in Animal Science in 1983. After receiving an MS degree from Cornell University with a major in Animal Breeding in 1985, Dr. Boggess returned to Iowa State University, receiving his PhD in 1990, also in Animal Breeding. The Fona board believes Dr. Boggess is well qualified to serve on the Fona board due to his extensive operational and management background in the animal sciences and animal industries.

Walter Messier, Ph.D. was appointed Secretary and Treasurer of the Company on October 1, 2014. He is a Founder of Evolutionary Genomics and has served as its Chief Technology Officer since 2000 and has served as its Secretary since 2007. Dr. Messier has published in such prestigious scientific journals as Nature, Nature Medicine, Current Biology, and Science. Dr. Messier is recognized as an authority on the use and interpretation of Ka/Ks algorithms. Dr. Messier’s research on the detection of molecular-level positive selection in the primates is well known. In addition to the research programs Dr. Messier developed and spearheads at Evolutionary Genomics, he is currently collaborating with colleagues in several areas, including identification and validation of novel targets for breast cancer therapeutics, identification and validation of novel targets for HIV/AIDS therapeutics, the role of molecular Darwinian selection in human speciation, and creation of more powerful algorithms for the detection of molecular Darwinian selection. Dr. Messier received his Masters of Science from the State University of New York at New Paltz, and his Ph.D. from the University of Albany (State University of New York).

There are no family relationships among the Company’s officers and directors.

None of Fona’s officers and/or directors receives any compensation for their respective services rendered to the Company, nor have they received such compensation since the renewal of the Fona's charter. They have agreed to act without compensation until authorized by the Fona, which is not expected to occur until Fona has generated revenues from operations after consummation of a merger or acquisition. As of the date of this Current Report on Form 8-K, Fona has minimal funds available to pay directors. Further, none of the directors are accruing any compensation pursuant to any agreement with Fona.

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Cautionary Statement Regarding Forward-Looking Information

This report includes “forward-looking statements” that are subject to risks, uncertainties and other factors. All statements other than statements of historical fact are statements that could be deemed forward-looking statements. These risks, uncertainties and other factors, and the general risks associated with the businesses of the Company described in the reports and other documents filed with the SEC, could cause actual results to differ materially from those referred to in the forward-looking statements. The Company cautions readers not to rely on these forward-looking statements. All forward-looking statements are based on information currently available to the Company and are qualified in their entirety by this cautionary statement. The Company anticipates that subsequent events and developments may cause its views to change. The information contained in this report speaks as of the date hereof and the Company has or undertakes no obligation to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise unless required by law.

Item 9.01.

Financial Statements and Exhibits.

 

(d) Exhibits.

 

	Exhibit Number		Description
	2.1		Securities Purchase Agreement, dated as of October 1, 2014, by and among 2014 by and among Michael Friess, Sanford Schwartz , Nick Boosalis, Desfaire, Inc., a Minnesota corporation, The Boosalis Group, Inc., a Minnesota corporation and Evolutionary Genomics, Inc.

 

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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.

	FONA, INC.
Dated: October 7, 2014	By:	/s/ Steve B. Warnecke
	Name:	Steve B. Warnecke
	Title:	Chairman of the Board, President and Chief Executive Officer

EXHIBIT 2.1

SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of the 1st day of October, 2014, by and among Michael Friess (“Friess”), Sanford Schwartz (“Schwartz”), Nick Boosalis (“Boosalis”), Desfaire, Inc., a Minnesota corporation (“Desfaire”), The Boosalis Group, Inc., a Minnesota corporation  (“The Boosalis Group”; each a “Seller” and collectively, the “Sellers”) and Evolutionary Genomics, Inc. (the “Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, on June 6, 2014 Sellers and Buyer entered into (i) an Agreement and Plan of Merger (the “Agreement and Plan of Merger”) between the Company (as defined below), or a wholly owned subsidiary of the Company, and each of  the Buyer and EG I, LLC, (ii) a Securities Purchase Agreement by and among the Buyer, Friess and Schwartz and (iii) a Securities Purchase Option Agreement by and among the Buyer, Boosalis, Desfaire and The Boosalis Group ((ii) and (iii) are the “June 6^th Agreements”); and

WHEREAS, the June 6^th Agreements each contained an option to purchase shares of common stock, par value $0.001 per share (the “Common Stock”), of Fona,  Inc., a Nevada corporation (the “Company”; such options the “Options”), and

WHEREAS, Sellers desire to sell and Buyer desires to purchase, in the aggregate, 5,201,423 shares (in the amounts appearing next to each Seller’s name on Schedule A hereto, the “Shares”) of Common Stock of the Company, in each case on the terms and subject to the conditions set forth herein, and Sellers and Buyers wish to amend the June 6^th Agreements to cancel the Options (collectively, the “Transaction”), and

WHEREAS, in connection with the Transaction and the resulting change in control of the Company, Buyers and Sellers wish to make certain changes to the Company’s governance structure, including the appointment of and resignation of certain of the Company’s officers and directors, which shall require the filing of a Schedule 14F-1 with the Securities and Exchange Commission, and

NOW, THEREFORE, in consideration of the agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1.

Sale of the Shares.  Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements contained in this Agreement, the Sellers agree to sell, transfer and convey the Shares to the Buyer, and the Buyer agrees to purchase the Shares from the Sellers, for an aggregate purchase price of $110,000 (the “Purchase Price”).  The Shares shall be purchased and sold in the amounts set forth on Schedule A hereto.

2.

Option Cancellation.   The Sellers and the Buyer hereby agree to amend the June 6^th Agreements to cancel the Options. For clarity, no Common Stock retained by any Seller hereunder shall remain subject to the Options.  The June 6^th Agreements shall otherwise remain in full force and effect.  

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3.

Closing.

(a)

The purchase and sale of the Shares and the cancellation of the Options shall take place at a closing (the “Closing”), to be held promptly following the fulfillment of the conditions to closing set forth in Section 7 of this Agreement, at such place as shall be determined by the Buyer and the Sellers.  The date on which the Closing occurs is herein referred to as the “Closing Date.”  The Closing may be undertaken remotely by exchange of electronic documents (other than certificates for the Shares).

(b)

At the Closing:

(i)

The Sellers shall cause to be delivered to the Buyer, a certificate or certificates representing the aggregate number of Shares purchased by the Buyer, duly endorsed and accompanied by customary instruments of transfer.

(ii)

The Buyer shall have paid to the Sellers the Purchase Price for the Shares by wire transfer of immediately available funds.

(c)

At and at any time after the Closing, the parties shall duly execute, acknowledge and deliver all such further assignments, conveyances, instruments and documents, and shall take such other action consistent with the terms of this Agreement to carry out the Transaction.  

(d)

All representations, covenants and warranties of the Buyer and Sellers contained in this Agreement shall be true and correct on and as of the Closing Date with the same effect as though the same had been made on and as of such date.

4.

Representations and Warranties of Sellers regarding the Shares and this Agreement. Sellers severally represent and warrant to the Buyer that:  

(a)

Sellers have good and valid title to the Shares, free and clear of all mortgages, pledges, liens, security interests, conditional sale agreements, charges, encumbrances and restrictions.

(b)

The execution, delivery and performance by Sellers of this Agreement is within the Sellers’ legal right, power and capacity, and does not and will not contravene, or constitute a default under, any provision of any agreement, judgment, injunction, order decree or other instrument to which any Seller is a party or by which any Seller or any of its properties are bound.  

(c)

The Shares are duly authorized, validly issued, fully paid and non-assessable and were not issued in violation of any applicable foreign, federal or state securities laws or the Company’s articles of incorporation or bylaws.

(d)

The Sellers have authorized the execution and delivery of the Agreement hereby and have approved the Transaction.

(e)

The execution of this Agreement and the consummation of the Transaction will not result in the breach of any term or provision of, or constitute an event of default under, any material indenture, mortgage, deed of trust or other material contract, agreement or instrument to which the Sellers are a party or to which any of their properties or operations are subject.

5.

[intentionally omitted]

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6.

Representations and Warranties of Buyer.  Each Buyer, severally and not jointly, represents to the Sellers that:

(a)

The Shares are being acquired for Buyer’s own account, not as nominee or agent, for investment purposes only and not with a view to the resale or distribution of any part thereof in violation of the Securities Act or any other law, rule or regulation, foreign or domestic.  Such Buyer has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act or any other law, rule or regulation, foreign or domestic.

(b)

Buyer did not learn of the investment in the Shares as a result of any public advertising or general solicitation, and is not aware of any public advertisement or general solicitation in respect of the Company or its securities.

(c)

Buyer is sufficiently experienced in financial and business matters to be capable of evaluating the merits and risks of this investment and to make an informed decision relating thereto.

(d)

The execution, delivery and performance by such Buyer of this Agreement is within the such Buyer’s legal right, power and capacity, requires no action by or in respect of or filing with, any governmental body, agency or official and does not and will not contravene, or constitute a default under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order decree or other instrument to which such Buyer is a party or by which any of his properties is bound.  

7.

Conditions to Buyer’ Obligations.  The obligations of the Buyer under this Agreement are subject to the satisfaction or valid waiver by the Buyer of the following conditions.

(a)

The representations and warranties made by the Sellers in this Agreement were true when made and shall be true as of the Closing Date with the same force and effect as if such representations and warranties were made at and as of the Closing Date.  

(b)

All authorizations, approvals and permits required to be obtained from or made with any governmental entity in order to consummate the Transaction and all consents from third persons that are required in connection with the Transaction shall have been obtained or made.

(c)

Buyer have completed its due diligence investigation of the Shares, and the results of such investigation are satisfactory to Buyer in its sole discretion.

(d)

The resignation of Friess as President and Chief Executive Officer of the Company and as director of the Company effective as of the Closing Date.

(e)

The resignation of Schwartz as Vice President and as director of the Company effective as of the Closing Date.

(f)

The appointment of  Virginia Orndorff and Mark Boggess to serve as directors of the Company, effective 10 days after the Company’s filing with the Securities and Exchange Commission of a Schedule 14F-1.

(g)

The appointment of  Steve B. Warnecke to serve as President and Chief Executive Officer of the Company, effective on the Closing Date.

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(h)

The appointment of Walter Messier to serve as Secretary and Treasurer of the Company, effective on the Closing Date.

8.

Miscellaneous.  

(a)

This Agreement embodies the entire agreement and understanding between the Sellers and Buyer with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.

(b)

The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.

(c)

The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions.  No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar.  Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.

(d)

The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other party.

(e)

This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the law of State of New York as if performed wholly within the borders of such state and without giving effect to the conflict of law principles thereof.  Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of any federal or state court sitting in New York County, New York in the event any dispute between the parties hereto arises out of this Agreement solely in connection with such a suit between the parties, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action relating to this Agreement in any court other than a federal or state court sitting in New York County, New York.

(f)

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

(g)

The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.

(h)

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement.  In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

(i)

The captions appearing in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope and intent of this Agreement or any of the provisions hereof.

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(j)

Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, by facsimile transmission or sent by certified or registered mail, postage prepaid, and shall be deemed to be given, dated and received when so delivered personally or faxed or, if mailed, five business days after the date of mailing to the following address or fax number, or to such other address or addresses as such person may subsequently designate by notice given hereunder:

if to Sellers, to:

Michael Friess

2356 Tamarack Avenue

Boulder, Colorado 80304

And

The Boosalis Group, Inc.

212 2nd Street SE, Suite 224

Minneapolis, MN 55414

Attn: Nick Boosalis

 

 

if to Buyer, to:

Evolutionary Genomics, Inc.

1026 Anaconda Drive

Castle Rock, CO 80108

Attention: Steve Warnecke  

with a copy to (which shall not constitute notice):

 

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas

New York, NY 10105

Attention:  Barry I. Grossman, Esq.

Fax Number: (212) 370-7889

(k)

All of the representations, warranties and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing Date, for a period of one year from the Closing Date, except for those related to taxes, which shall survive as long as the applicable statute of limitations.

(l)

Each Seller will severally (and not jointly) indemnify and hold Buyer harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that Buyer may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by such Seller in this Agreement.   

(m)

The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in federal or state court sitting in New York County, New York, this being in addition to any other remedy to which they are entitled at law or in equity.

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(n)

Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith or not to take an action consistent herewith or required hereby, the validity, legality and enforceability of the remaining provisions and obligations contained or set forth herein shall not in any way be affected or impaired thereby, unless the foregoing inconsistent action or the failure to take an action constitutes a material breach of this Agreement or makes the Agreement impossible to perform in which case this Agreement shall terminate.  Except as otherwise contemplated by this Agreement, to the extent that a party hereto took an action inconsistent herewith or failed to take action consistent herewith or required hereby pursuant to an order or judgment of a court or other competent authority, such party shall not incur any liability or obligation unless such party breached its obligations under this Agreement or did not in good faith seek to resist or object to the imposition or entering of such order or judgment. 

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement the date and year first above written.

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SCHEDULE A

Schedule of Sellers and Buyer

Sellers

Name	Total Shares Held	Shares Sold	Shares Retained	Proceeds to be Received
Michael Friess	1,611,475	1,530,901	80,574	$32,375.58
Sanford Schwartz	1,611,475	1,530,901	80,574	$32,375.59
Nick T. Boosalis	534,194	421,582	112,612	$8,915.64
The Boosalis Group, Inc.	618,039	618,039	0	$13,070.33
Desfaire, Inc.	1,100,000	1,100,000	0	$23,262.86
Total	5,475,183	5,201,423	273,760	$110,000

Buyer

Name	Number of Shares to be Purchased	Portion of Aggregate Purchase Price
Evolutionary Genomics	5,201,423	$110,000
Total	5,201,423	$110,000