NOBEL INTERNATIONAL INVESTMENT
Published on July 6, 2007
Noble
International Investments,
Inc.
May
21, 2007
NeoGenomics,
Inc.
2701
Commonwealth Drive, Suite 9
Fort
Myers, Florida 33913
Attention: Steven
C. Jones
Chief
Financial Officer
Dear
Steven:
This
letter agreement (this “Agreement”) will confirm the understanding and agreement
among NeoGenomics, Inc. (the “Company”) and Noble International Investments,
Inc., as follows:
1. The
Company hereby appoints Noble International Investments, Inc. to act as its
exclusive placement agent (the “Placement Agent”) in connection with the sale
for capital-raising purposes after the date hereof of its equity or
equity-linked securities (the “Securities”) to those proposed investors listed
on Exhibit A to this Agreement (“Proposed Investors”), which may be amended by
the Placement Agent from time to time, upon approval by the Company of such
amendments. The Company hereby authorizes the Placement Agent, to
endeavor to arrange a private placement of the Securities at a price and
on
terms satisfactory to the Company. The Placement Agent shall use
commercially reasonable efforts, consistent with the Placement Agent’s business
judgment, to arrange such private placement. The private placement of
the Securities is to be made directly by the Company to the purchasers pursuant
to purchase or subscription agreements entered into by such
parties. It is expressly understood that this engagement does not
constitute any commitment, express or implied, on the part of the Placement
Agent to purchase, and does not ensure the successful placement of, any
Securities. It is also expressly understood that the Company retains
the right to sell Securities to any party other than a Proposed
Investor.
2. Prior
to the signing of any purchase agreements, officers of the Company with
responsibility for financial affairs have been and will continue to be available
to answer inquiries from prospective investors. After the forms of
the purchase agreements and the information referred to therein have been
reviewed by investors, and they have had the opportunity to address inquiries
to
the Company, separate purchase agreements will be completed with each
prospective investor. It is anticipated that in connection with the
private placement, the Company shall file a registration statement (the
“Registration Statement”) with respect to the possible resale, from time to
time, of the Securities which have been purchased pursuant to such purchase
agreements and that, subject to customary “blackout” periods, the Company will
keep the Registration Statement effective until the earliest of (i) the date
on
which the Company’s audited financials from FY 2007 will go stale in a
post-effective amendment with the SEC (which is estimated to be April 30,
2009),
(ii) the date on which all of the Securities purchased in the private placement
may be sold without registration pursuant to Rule 144(k) of the Securities
Act
of 1933, as amended, or (iii) such time as all of the Securities have been
sold
pursuant to the Registration Statement, or for such other
period of time as may be agreed between the Company and the purchasers of
such
Securities.
3. (a) The
amount of Securities sold, if any, by the Company and the price at which
they
will be sold is entirely within the Company’s discretion.
(b) During
the Placement Agent’s engagement hereunder, the Company will not, directly or
indirectly, make any offer or sale of any of the Securities or any securities
of
the same or similar class as the Securities, the result of which would cause
the
offer and sale of the Securities to fail to be entitled to the exemption
from
registration afforded by Section 4(2) of the Act. The Company
represents and warrants to the Placement Agent that except for sales of
Securities to Cornell Capital Partners LP pursuant to the Company’s Standby
Equity Distribution Agreement (“SEDA”) it has not, directly or indirectly, made
any offers or sales of the Securities or securities of the same or a similar
class as the Securities, during the six month period ending on the date of
this
letter, and has no intention of making an offer or sale of the Securities
or
securities of the same or a similar class as the Securities for a period
of six
months after completion of this private placement, except (i) the offering
of
the Securities through the Placement Agent pursuant hereto, (ii) the offering
of
Securities directly by the Company to investors other than the Proposed
Investors on terms no different than those terms offered through the Placement
Agent (iii) sales of Securities to Cornell Capital Partners LP pursuant to
the
SEDA, and (iv) other offers and sales the result of which would not cause
the
offer and sale of the Securities contemplated hereunder to fail to be entitled
to the exemption from registration afforded by Section 4(2) of the
Act. As used herein, the terms “offer” and “sale” have the meanings
specified in Section 2(3) of the Act.
(c) The
Placement Agent shall be entitled to rely on any opinion delivered to the
purchasers by counsel to the Company in connection with the private placement
of
the Securities.
4. (a) As
compensation for the Placement Agent’s services hereunder, the Company will pay
the Placement Agent as follows:
(i) A
retainer fee of $25,000 in cash which is payable upon execution of this
Agreement (the “Retainer Fee”), with such Retainer Fee creditable against the
fees payable pursuant to subparagraph 4(a)(ii) hereof;
(ii)
At
each closing (“Closing”) of any sale of any Securities, a total aggregate cash
fee equal to 5% of the gross proceeds from such sale;
(iii)
At
each Closing, warrants to purchase a number of Securities equal to 5% of
the
number of Securities sold in the private placement. Such warrants shall have
a
five-year term, an exercise price equal to the price per share of the Securities
sold in the private placement, cashless exercise provisions, customary
anti-dilution provisions and the same other terms, conditions, rights and
preferences as the Securities sold in the private placement..
(b) In
addition, whether or not a sale of the Securities occurs, the Company will
reimburse the Placement Agent upon demand (accompanied by reasonable supporting
documentation) for the Placement Agent’s reasonable expenses (including fees and
expenses of counsel to the Placement Agent) incurred in connection with its
acting as placement agent hereunder; provided that such fees and expenses
shall
not exceed $25,000 in the aggregate without the prior written consent of
the
Company, which consent shall not be unreasonably withheld or delayed (it
being
understood that this provision shall in no way limit the Company’s obligations
set forth in Exhibit A).
5. The
Company and the Placement Agent represent to the other that, except for the
Placement Agent there is no other person or entity that is or will be entitled
to a finder’s fee or any type of brokerage commission in connection with the
sale of Securities to a Proposed Investor.
6. The
Company hereby agrees to indemnify the Placement Agent in accordance with
the
indemnification provisions set forth as Exhibit B hereto and to the other
provisions set forth in Exhibit B hereto, which provisions are hereby
incorporated by reference in their entirety into this Agreement.
7. The
Company upon reasonable request will meet with the Placement Agent to discuss
all information relevant for disclosure in any Registration Statement covering
shares purchased from the Company by Proposed Investors and offered by Proposed
Investors for resale and will cooperate in any reasonable investigation
undertaken by the Placement Agent for the purpose of confirming the accuracy
of
the Registration Statement, including the production of information at the
Company's offices.
8. (a) The
Company will provide full cooperation to the Placement Agent in any due
diligence investigation reasonably requested by the Placement Agent with
respect
to the offer and sale of the Securities and will furnish the Placement Agent
with such information, including financial statements, with respect to the
business, operations, assets, liabilities, financial condition and prospects
of
the Company as the Placement Agent may reasonably request. The
Placement Agent may rely upon the accuracy and completeness of all such
information taken as a whole and the Company acknowledges that the Placement
Agent has not been retained to independently verify any of such
information.
(b)
The Company will be solely responsible for the contents of its offering
materials and any and all other written or oral communications provided by
or at
the direction of the Company to any actual or prospective purchaser of the
Securities, and the Company represents and warrants that such offering materials
and such other communications will not, taken as a whole, as of the date
of the
offer or sale of the Securities, contain any untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under
which
they were made, not misleading. The Company’s filings with the SEC
will be deemed offering materials.
(c) The
Company may, if so requested by the Placement Agent, provide to the Placement
Agent financial projections relating to the Company (the
“Projections”). If the Projections are so provided to the Placement
Agent, the Placement Agent agrees to hold the Projections in strict confidence
and not to share them with or disclose them to any prospective investor without
the Company’s prior written consent. The Placement Agent further
agrees to use the Projections, if they are provided by the Company, solely
for
due diligence purposes in connection with its engagement
hereunder. To the extent that the projections are so provided to the
Placement Agent, the Company represents and warrants that the Projections
will
be made by the Company with a reasonable basis and in good faith. For
purposes hereof, “a reasonable basis and in good faith” will include reliance on
reasonable assumptions and after taking into account such information as
the
Company may reasonably determine to be appropriate under the
circumstances.
(d) If
at any time prior to the completion of the offer and sale of the Securities
an
event occurs which would cause the offering materials (as supplemented or
amended) to contain an untrue statement of a material fact or to omit to
state a
material fact necessary in order to make the statements therein, in light
of the
circumstances under which they were made, not misleading, then the Company
will
notify the Placement Agent immediately of such event and the Placement Agent
will suspend solicitations of the prospective purchasers of the Securities
until
such time as the Company shall prepare a supplement or amendment to the offering
materials which corrects such statement or omission.
9. The
Placement Agent will not have any rights or obligations in connection with
the
sale and purchase of the Securities contemplated by this Agreement except
as
expressly provided in this Agreement. In no event shall the Placement
Agent be obligated to purchase the Securities for its own account or for
the
accounts of its customers. Notwithstanding the foregoing, the
Placement Agent will have the right, but not the obligation, (i) to determine
the allocation of the Securities among potential purchasers from the Proposed
Investors, provided that such allocation is reasonably acceptable to the
Company, and (ii) in any event, to allocate up to 20% of the Securities to
individual customers of the Placement Agent (which may include employees
or
affiliates of the Placement Agent, directly or through an investment vehicle),
provided that such customers are reasonably acceptable to the
Company.
10. (a) The
appointment and authorization of the Placement Agent under paragraph 1 of
this
Agreement shall expire twelve months from the date hereof or, at such other
time
as may be mutually agreed upon in writing by the Company and the Placement
Agent, as the case may be. Notwithstanding any such expiration or
termination, the Company shall remain responsible for the reimbursement of
the
Placement Agent’s expenses under subparagraph 4(b) of this Agreement; and the
reimbursement, indemnification and contribution obligations of the Company
under
Exhibit B and the provisions of paragraphs 5 and 6 through 15 of this Agreement
shall survive any expiration or termination. Such obligations also
shall survive the offer and sale of the Securities.
(b) If during
a period of twelve months following the expiration or termination
of the Placement Agent’s engagement hereunder, the Company sells any
Securities or securities of the same or similar class as the Securities
(collectively, “Covered Securities”) in a private placement (including
registered private placements) to any Proposed Investor or affiliate of such
Proposed Investor (in each case actually received the Company’s offering
materials prior to the termination or expiration of the Placement Agent’s
engagement hereunder), except in connection with a merger or acquisition
of the
equity or assets of such person, then the Company shall pay to the Placement
Agent upon the closing of such sale a fee equal to the fee which would have
been
payable to the Placement Agent pursuant to subparagraph 4(a) if the closing
of
such sale had occurred during the term of the Placement Agent’s appointment and
authorization hereunder.
11. (a) Upon
consummation of a sale of Securities, the Placement Agent may place “tombstone”
advertisements in financial and other publications and media at its own expense
describing its services to the Company hereunder.
(b) Without
the prior written consent of the Placement Agent, the Company will not publicly
refer to the Placement Agent or its engagement hereunder, except as required
by
law. Except as specified in sub-paragraph 11(a) above and upon the
consummation of a sale of Securities, the Placement Agent will not, without
the
prior written consent of the Company, publicly refer to the Company and the
financing activities contemplated by this engagement letter. Except
(a) to the extent legally required (after consultation with, and approval
as to
form and substance by, the Placement Agent and its counsel) or (b) on a
confidential need to know basis to the Company’s professional advisors, no
advice rendered by a Placement Agent to the Company will be disclosed by
the
Company or any of its affiliates or any of their agents, without such Placement
Agent’s prior written consent.
(c) The
Placement
Agent and its parent, subsidiaries, branches and affiliates (each a “Group") are
involved in a wide range of commercial banking, investment banking and other
activities (including investment management, corporate finance and securities
issuing, trading and research) from which conflicting interests, or duties,
may
arise. Information which is held elsewhere within a Group but of
which none of the individuals in the Investment Banking Department of the
Placement Agent are involved in providing the services contemplated by this
engagement actually has (or without breach of internal procedures can properly
obtain) knowledge, will not for any purpose be taken into account in determining
such Placement Agent’s responsibilities to the Company under this
engagement. Neither the Placement Agent nor any other part of the
Group will have any duty to disclose to the Company or utilize for the Company’s
benefit any non-public information acquired in the course of providing services
to any other person, engaging in any transaction (on its own account or
otherwise) or otherwise carrying on its business. In addition, in the
ordinary course of business, the Placement Agent and its affiliates may trade
the securities of the Company for its own account and for the accounts of
customers, and may at any time hold a long or short position in such securities,
provided that any such trading in the Company’s securities will not be done by
any employee of the Placement Agent who has material non-public information
about the Company at the time of such trading.
12. The
benefits of this Agreement shall inure to the respective successors and assigns
of the parties hereto and of the Indemnified Persons, and the obligations
and
liabilities assumed in this Agreement by the parties hereto shall be binding
upon their respective successors and assigns.
13. This
Agreement may not be amended or modified except in writing signed by each
of the
parties hereto and shall be governed by and construed and enforced in accordance
with the laws of the State of Florida. Any right to trial by jury
with respect to any lawsuit, claim or other proceeding arising out of or
relating to this Agreement or the services to be rendered by the Placement
Agent
hereunder is expressly and irrevocably waived. No claim relating to
or arising out of this Agreement may be commenced, prosecuted or continued
in
any court other than the courts of the State of Florida.
14. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect. This Agreement sets
forth the entire agreement between the parties with respect to the subject
matter hereof and supersedes and replaces any prior or concurrent understandings
or agreements of the parties with respect to the subject matters covered
herein.
15. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which together shall be deemed to be
the
same agreement.
If
the
foregoing correctly sets forth the understanding and agreement between the
Placement Agent and the Company, please so indicate in the space provided
for
that purpose below, whereupon this letter shall constitute a binding agreement
as of the date first above written.
Sincerely,
NOBLE
INTERNATIONAL INVESTMENTS, INC.
By:
_____________________________
Nico
P. Pronk
President
Accepted
by:
NEOGENOMICS,
INC.
By:
_______________________________
Steven
C. Jones
Chief
Financial Officer
EXHIBIT
A
List
of
Proposed Investors
Apollo
Capital – FL
Ardsley
Partners – NYC
Atoll
Asset – NYC
Bard
Advisors – Chicago
RBC
-Toronto
Davidson
Kempner – NYC
Deerfield
- NYC
Diker
Capital – NYC
Greenlight
-Geneva
Healthcor
– NYC
Kennedy
Capital - Chicago
Independence
Asset – Denver
J.
Goldman – NYC
J.W.
Seligman - CA
Lewis
Asset - NYC
Marlin
–
Chicago
Mavrix
–
Toronto
Meadowbrook
- NYC
Mosaic
–
NYC
Midsummer
- New York
Nihon
Global - New York
OrbiMed
Advisors – NYC
Osiris
Capital – Boston
Polar
(One of the pms wanted to invest personally) –Toronto
Prides
–
MA
Ridgeback
- NYC
Ridgecrest
– NYC
RMB
Capital - Chicago
SAC
Capital – CT / NYC
Sapphire
Capital – NYC
Sectoral
- Geneva, Montreal
SDS
Capital – CT
Sharp
Capital / Centurion – NYC
Sprott
–
Toronto
Trust
Company of the West (TCW) - CA
Triathlon
- NYC
Venator
-
Toronto
Visium
Funds – NYC
Wells
Capital – Portland
Whitebox
– Minneapolis
XMark
Capital – CT
EXHIBIT
B
1. The
Company shall indemnify the Placement Agent and hold it harmless against
any and
all losses, claims, damages or liabilities to which the Placement Agent may
become subject (i) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the offering materials,
the
registration statement (including documents, incorporated by reference) (the
“Registration Statement”) or in any other written or oral communication provided
by or at the direction of the Company to any actual or prospective purchaser
of
the Securities or arising out of or based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under
which
they were made, not misleading or (ii) arising in any manner out of or in
connection with the services or matters that are the subject of this Agreement
(including, without limitation, the offer and sale of the Securities), and
shall
reimburse the Placement Agent promptly for any legal or other expenses
reasonably incurred by it in connection with investigating, preparing to
defend
or defending, or providing evidence in or preparing to serve or serving as
a
witness with respect to, any lawsuits, investigations, claims or other
proceedings arising in any manner out of or in connection with the services
or
matters that are the subject of this Agreement (including, without limitation,
in connection with the enforcement of this Agreement and the indemnification
obligations set forth herein); provided, however, that the Company shall
not be
liable under clause (ii) of this paragraph in respect of any loss, claim,
damage, liability or expense to the extent that it is finally judicially
determined that such loss, claim, damage, liability or expense resulted from
the
gross negligence or willful misconduct of the Placement Agent in the performance
of its services hereunder.
2. The
Company agrees that the indemnification and reimbursement commitments set
forth
herein shall apply whether or not the Placement Agent is a formal party to
any
such lawsuits, claims or other proceedings and that such commitments shall
extend upon the terms set forth herein to any controlling person, affiliate,
director, officer, employee or agent of the Placement Agent (each, with the
Placement Agent, an “Indemnified Person”). The Company further agrees
that, without the Placement Agent’s prior written consent, which consent will
not be unreasonably withheld or delayed, it will not enter into any settlement
of a lawsuit, claim or other proceeding arising out of the transactions
contemplated by this Agreement in respect of which indemnification could
be
sought under the indemnification provisions of this Agreement (in which any
Indemnified Person is an actual or potential party to such lawsuit, claim
or
other proceeding), unless such settlement includes an explicit and unconditional
release from the party bringing such lawsuit, claim or other proceeding of
all
Indemnified Persons. The Company further agrees that it will not
enter into any settlement of any such lawsuit, claim or proceeding, without
the
Placement Agent’s prior written consent which consent shall not be unreasonably
withheld, unless such settlement does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
Indemnified Person and does not involve any payment of money or other value
by
an Indemnified Person or any injunctive relief or findings of fact or
stipulations binding on any Indemnified Person.
3. If
indemnification is to be sought hereunder by an Indemnified Person, then
such
Indemnified Person shall notify the Company of the commencement of any action
or
proceeding in respect thereof; provided, however, that the failure so to
notify
the Company shall not relieve the Company from any liability that it may
have to
such Indemnified Person pursuant to this indemnification agreement or from
any
liability that it may have to such Indemnified Person other than pursuant
to
this indemnification agreement, in each case except to the extent the Company
has been prejudiced in any material respect by such
failure. Notwithstanding the above, following such notification, the
Company may elect in writing to assume the defense of such action or proceeding,
and, upon such election, it shall not be liable for any legal costs subsequently
incurred by such Indemnified Person (other than reasonable costs of
investigation and providing evidence) in connection therewith, except to
the
extent that (i) the Company has failed to provide counsel reasonably
satisfactory to such Indemnified Person in a reasonably timely manner, (ii)
counsel which has been provided by the Company reasonably determines that
its
representation of such Indemnified Person would present it with a conflict
of
interest or (iii) the Indemnified Person reasonably determines that there
may be
legal defenses available to it which are different from or in addition to
those
available to the Company. In connection with any one action or
proceeding or substantially related actions or proceedings, the Company shall
not be responsible for the fees and expenses of more than one separate law
firm
in any one jurisdiction for all Indemnified Persons.
4. The
Company and the Placement Agent agree that if any indemnification or
reimbursement sought hereunder is judicially determined to be unavailable
for a
reason other than the gross negligence or willful misconduct of the Placement
Agent, then, whether or not the Placement Agent is the Indemnified Person,
the
Company and the Placement Agent shall contribute to the losses, claims, damages,
liabilities and expenses for which such indemnification or reimbursement
is held
unavailable (i) in such proportion as is appropriate to reflect the relative
benefits to the Company on the one hand, and the Placement Agent, as the
case
may be, on the other hand, in connection with the transactions to which such
indemnification or reimbursement relates, or (ii) if the allocation provided
by
clause (i) above is judicially determined not to be permitted, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative faults of the Company on the one hand,
the Placement Agent, as the case may be, on the other hand, as well as any
other
equitable considerations; provided, however, that in no event shall the amount
to be contributed by the Placement Agent hereunder exceed the amount of the
fees
actually received by the Placement Agent, as the case may be,
hereunder.
5. Nothing
in this Agreement, expressed or implied, is intended to confer or does confer
on
any person or entity other than the parties hereto or their respective
successors and assigns, and to the extent expressly set forth herein, the
Indemnified Persons, any rights or remedies under or by reason of this Agreement
or as a result of the services to be rendered by the Placement Agent
hereunder. The parties acknowledge that the Placement Agent is not
acting in a fiduciary capacity with respect to the Company and that the
Placement Agent is not assuming any duties or obligations other than those
expressly set forth in this Agreement. The Company further agrees
that the Placement Agent nor any of its controlling persons,
affiliates, directors, officers, employees or consultants shall have any
liability to the Company or any person asserting claims on behalf of or in
right
of the Company or for any losses, claims, damages, liabilities or expenses
arising out of or relating to this Agreement or the services to be rendered
by
the Placement Agent hereunder, unless it is finally judicially determined
that
such losses, claims, damages, liabilities or expenses resulted from the gross
negligence or willful misconduct of the Placement Agent.