INVESTOR REGISTRATION RIGHTS AGREEMENT
Published on July 6, 2007
INVESTOR
REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of
May ___, 2007, by and among NEOGENOMICS, INC., a Nevada
corporation (the “Company”), and [NAME OF
INVESTOR], a ___________ _____ (the “Investor”).
WHEREAS:
A. In
connection with that certain Subscription Agreement by and among the parties
hereto of even date herewith (the “Subscription
Agreement”), the Company has agreed, upon the terms and subject to the
conditions of the Subscription Agreement, to issue and sell to the Investor
shares of the Company’s common stock, par value $0.001 per share (the “Common
Stock”). Capitalized terms not defined herein shall have the
meaning ascribed to them in the Subscription Agreement.
B. To
induce the Investors to execute and deliver the Subscription Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the “Securities Act”), and
applicable state securities laws.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investors
hereby agree as follows:
1. DEFINITIONS.
As
used
in this Agreement, the following terms shall have the following
meanings:
(a) “Person”
means a corporation, a limited liability company, an association, a partnership,
an organization, a business, an individual, a governmental or political
subdivision thereof or a governmental agency.
(b) “Register,”
“registered,” and “registration” refer to a registration effected
by preparing and filing one or more Registration Statements (as defined below)
in compliance with the Securities Act and pursuant to Rule 415 under the
Securities Act or any successor rule providing for offering securities on a
continuous or delayed basis (“Rule 415”), and the declaration or ordering
of effectiveness of such Registration Statement(s) by the United States
Securities and Exchange Commission (the “SEC”).
(c) “Registrable
Securities” means the shares of Common Stock issuable to the Investor
pursuant to the Subscription Agreement and/or the shares of Common Stock
purchased by the Investor pursuant to that certain Stock Purchase Agreement
(the
“Stock Purchase Agreement”), dated as of the date hereof, by and among
the Investor, Aspen Select Healthcare, LP and for certain limited purposes,
the
Company.
(d) “Registration
Statement” means a registration statement under the Securities Act which
covers the Registrable Securities.
2. REGISTRATION.
(a) Subject
to the terms and conditions of this Agreement, the Company shall prepare and
file, no later than thirty (30) days from the date hereof (the “Scheduled
Filing Deadline”), with the SEC a Registration Statement on Form S-1 or SB-2
(or, if the Company is then eligible, on Form S-3) under the Securities Act
for
the resale by the Investors of the Registrable Securities. The
Company shall use its best efforts to cause the Registration Statement to remain
effective until all of the Registrable Securities have been sold; provided,
however, that in no event will the Company be required to maintain the
effectiveness of the Registration Statement for longer than two (2) years from
the date hereof. Prior to the filing of the Registration Statement
with the SEC, the Company shall furnish a copy of the Registration Statement
to
the Investor for their review and comment. The Investor shall use its
best efforts to furnish comments on the Registration Statement and any amendment
or supplement thereto to the Company within twenty-four (24) hours of the
receipt thereof from the Company.
(b) Effectiveness
of the Registration Statement. The Company shall use its best
efforts (i) to have the Registration Statement declared effective by the SEC
no
later than one hundred twenty (120) days from the date hereof (the “Scheduled
Effective Date”) and (ii) to insure that the Registration Statement remains
in effect until all of the Registrable Securities have been sold, subject to
the
terms and conditions of this Agreement.
(c) Failure
to File or Obtain Effectiveness of the Registration Statement. In
the event the Registration Statement is not filed by the Scheduled Filing
Deadline or is not declared effective by the SEC on or before the Scheduled
Effective Date, then as partial relief for the damages to any holder of
Registrable Securities by reason of any such delay in its ability to sell the
underlying shares of Common Stock (which remedy shall not be exclusive of any
other remedies at law or in equity), the Company will pay as liquidated damages
(the “Liquidated Damages”) to the holder, at the holder’s option, either
a cash amount or shares of the Company’s Common Stock within three (3) business
days, after demand therefore, equal to one half percent (0.5%) of the purchase
price of the Registrable Securities purchased pursuant to the Subscription
Agreement as Liquidated Damages for each thirty (30) day period after the
Scheduled Filing Deadline or the Scheduled Effective Date as the case may
be.
3. RELATED
OBLIGATIONS.
(a) The
Company shall keep the Registration Statement effective pursuant to
Rule 415 at all times until the earlier of the date on which the Investor
shall have sold all the Registrable Securities covered by such Registration
Statement or the date which is two years from the date of this Agreement (the
“Registration Period”), which Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein) shall
not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein, or necessary to make the statements therein,
in
light of the circumstances in which they were made, not misleading.
(b) The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act, as
may
be necessary to keep such Registration Statement effective at all times during
the Registration Period, and, during such period, comply with the provisions
of
the Securities Act with respect to the disposition of all Registrable Securities
of the Company covered by such Registration Statement. In the case of
amendments and supplements to a Registration Statement which are required to
be
filed pursuant to this Agreement (including pursuant to this Section 3(b))
by
reason of the Company’s filing a report on Form 10-KSB, Form 10-QSB or Form 8-K
or any analogous report under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), the Company shall incorporate such report by
reference into the Registration Statement, if applicable, or shall use its
best
efforts to file such amendments or supplements with the SEC.
(c) The
Company shall furnish to the Investor whose Registrable Securities are included
in any Registration Statement, without charge, (i) at least one (1) copy of
such
Registration Statement as declared effective by the SEC and any amendment(s)
thereto, including financial statements and schedules, all documents
incorporated therein by reference, all exhibits and each preliminary prospectus,
(ii) either ten (10) physical copies or an electronic copy of the final
prospectus included in such Registration Statement and all amendments and
supplements thereto (or such other number of copies as such Investor may
reasonably request) and (iii) such other documents as such Investor may
reasonably request from time to time in order to facilitate the disposition
of
the Registrable Securities owned by such Investor.
(d) As
promptly as practicable after becoming aware of such event or development,
the
Company shall notify the Investor in writing of the happening of any event
as a
result of which the prospectus included in a Registration Statement, as then
in
effect, includes an untrue statement of a material fact or omission to state
a
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 (provided that in no event shall such notice contain any material,
nonpublic information), and promptly prepare a supplement or amendment to such
Registration Statement to correct such untrue statement or omission, and deliver
either ten (10) physical copies or an electronic copy of such supplement or
amendment to each Investor. The Company shall also promptly notify
the Investor in writing (i) when a prospectus or any prospectus supplement
or
post-effective amendment has been filed, and when a Registration Statement
or
any post-effective amendment has become effective (notification of such
effectiveness shall be delivered to each Investor by facsimile on the same
day
of such effectiveness), (ii) of any request by the SEC for amendments or
supplements to a Registration Statement or related prospectus or related
information, and (iii) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(e) The
Company shall use its best efforts to prevent the issuance of any stop order
or
other suspension of effectiveness of a Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for sale in any
jurisdiction within the United States of America and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension
at
the earliest possible moment and to notify each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
(f) The
Company shall hold in confidence and not make any disclosure of information
concerning the Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to
the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that
disclosure of such information concerning the Investor is sought in or by a
court or governmental body of competent jurisdiction or through other means,
give prompt written notice to such Investor and allow such Investor, at the
Investor’s expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, such information.
(g) The
Company shall use its best efforts either to cause all the Registrable
Securities covered by a Registration Statement to either (i) be listed on each
securities exchange on which securities of the same class or series issued
by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange or (ii) be
included for quotation on the National Association of Securities Dealers, Inc.
OTC Bulletin Board for such Registrable Securities. The Company shall
pay all fees and expenses in connection with satisfying its obligation under
this Section 3(g).
(h) The
Company shall cooperate with the Investor who holds Registrable Securities
being
offered and, to the extent applicable, to facilitate the timely preparation
and
delivery of certificates representing the Registrable Securities to be offered
pursuant to a Registration Statement and enable such certificates to be in
such
denominations or amounts, as the case may be, as the Investors may reasonably
request and registered in such names as the Investors may request, provided,
however, that the expense of issuing any such certificates will be for the
account of the Investor.
(i) The
Company shall make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of
Rule 158 under the Securities Act) covering a twelve (12) month period beginning
not later than the first day of the Company’s fiscal quarter next following the
effective date of the Registration Statement.
(j) The
Company shall otherwise use its best efforts to comply with all applicable
rules
and regulations of the SEC in connection with any registration
hereunder.
(k) Within
five (5) business days after a Registration Statement which covers Registrable
Securities is declared effective by the SEC, the Company shall deliver, and
shall cause legal counsel for the Company to deliver, to the transfer agent
for
such Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the SEC in the form
attached hereto as Exhibit A.
(l) The
Company shall take all other reasonable actions necessary to expedite and
facilitate disposition by the Investors of Registrable Securities pursuant
to a
Registration Statement.
4. OBLIGATIONS
OF THE INVESTOR.
The
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e) or the first
sentence of 3(d), the Investor will immediately discontinue disposition of
Registrable Securities pursuant to any Registration Statement(s) covering such
Registrable Securities until the Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(d) or receipt
of
notice that no supplement or amendment is required.
5. EXPENSES
OF REGISTRATION.
All
expenses incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3, including, without limitation, all registration,
listing and qualifications fees, printers, legal and accounting fees shall
be
paid by the Company.
6. INDEMNIFICATION.
With
respect to Registrable Securities which are included in a Registration Statement
under this Agreement:
(a) To
the
fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend the Investor, the directors, officers, partners,
employees, agents, representatives of, and each Person, if any, who controls any
Investor within the meaning of the Securities Act or the Exchange Act (each,
an
“Indemnified Person”), against any losses, claims, damages, liabilities,
judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts
paid in settlement or expenses, joint or several (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto (“Indemnified Damages”), to which any
of them may become subject insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material fact
in
a Registration Statement or any post-effective amendment thereto or the omission
or alleged omission to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; (ii) any untrue
statement or alleged untrue statement of a material fact contained in any final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading; or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any other law (the matters in the
foregoing clauses (i) through (iii) being, collectively,
“Violations”). Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(a):
(x) shall not apply to a Claim by an Indemnified Person arising out of or based
upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (y) shall not
be
available to the extent such Claim is based on a failure of the Investor to
deliver or to cause to be delivered the prospectus made available by the
Company, if such prospectus was timely made available by the Company pursuant
to
Section 3(c); and (z) shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of the
Company, which consent shall not be unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on
behalf of the Indemnified Person.
(b) In
connection with a Registration Statement, the Investor agrees to severally
and
not jointly indemnify, hold harmless and defend, to the same extent and in
the
same manner as is set forth in Section 6(a), the Company, each of its directors,
each of its officers, employees, representatives, or agents and each Person,
if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (each an “Indemnified Party”), against any Claim or
Indemnified Damages to which any of them may become subject, under the
Securities Act, the Exchange Act or otherwise, insofar as such Claim or
Indemnified Damages arise out of or is based upon any Violation, in each case
to
the extent, and only to the extent, that such Violation occurs in reliance
upon
and in conformity with written information furnished to the Company by the
Investor expressly for use in connection with such Registration Statement;
and,
subject to Section 6(d), such Investor will reimburse any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of such
Investor, which consent shall not be unreasonably withheld; provided, further,
however, that the Investor shall be liable under this Section 6(b) for only
that
amount of a Claim or Indemnified Damages as does not exceed the net proceeds
to
such Investor as a result of the sale of Registrable Securities pursuant to
such
Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any prospectus shall not inure to the benefit
of
any Indemnified Party if the untrue statement or omission of material fact
contained in the prospectus was corrected and such new prospectus was delivered
to each Investor prior to such Investor’s use of the prospectus to which the
Claim relates.
(c) Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses of
not
more than one (1) counsel for such Indemnified Person or Indemnified Party
to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between
such Indemnified Person or Indemnified Party and any other party represented
by
such counsel in such proceeding. The Indemnified Party or Indemnified
Person shall cooperate fully with the indemnifying party in connection with
any
negotiation or defense of any such action or claim by the indemnifying party
and
shall furnish to the indemnifying party all information reasonably available
to
the Indemnified Party or Indemnified Person which relates to such action or
claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or proceeding
effected without its prior written consent; provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written
consent of the Indemnified Party or Indemnified Person, consent to entry of
any
judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such claim or litigation. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to all rights
of the Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend such
action.
(d) The
indemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified Person
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no
seller of Registrable Securities guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received
by
such seller from the sale of such Registrable Securities.
8. REPORTS
UNDER THE EXCHANGE ACT.
With
a
view to making available to the Investors the benefits of Rule 144 promulgated
under the Securities Act or any similar rule or regulation of the SEC that
may
at any time permit the Investors to sell securities of the Company to the public
without registration (“Rule 144”) the Company agrees to use its best
efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act so long as the Company
remains subject to such requirements and the filing of such reports and other
documents as are required by the applicable provisions of Rule 144;
and
(c) furnish
to the Investor so long as the Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied with
the reporting requirements of Rule 144, the Securities Act and the Exchange
Act,
(ii) a copy of the most recent annual or quarterly report of the Company and
such other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested to permit the Investors to sell
such
securities pursuant to Rule 144 without registration.
9. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor(s)
who then hold at least two-thirds (2/3) of the Registrable
Securities. Any amendment or waiver effected in accordance with this
Section 9 shall be binding upon the Investor(s) and the
Company. No such amendment shall be effective to the extent that it
applies to fewer than all of the holders of the Registrable Securities covered
under this Agreement. No consideration shall be offered or paid to
any Person to amend or consent to a waiver or modification of any provision
of
any of this Agreement unless the same consideration also is offered to all
of
the parties to this Agreement.
10. MISCELLANEOUS.
(a) A
Person
is deemed to be a holder of Registrable Securities whenever such Person owns
or
is deemed to own of record such Registrable Securities or owns the right to
receive the Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two (2) or more Persons
with
respect to the same Registrable Securities, the Company shall act upon the
basis
of instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of transmission
is electronically generated and kept on file by the sending party); or (iii)
one
(1) business day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications
shall be:
|
If
to the Company, to:
|
NeoGenomics,
Inc.
|
|
Attn: Chief
Financial Officer
|
|
|
12701
Commonwealth Drive, Suite #7
|
|
|
Fort
Myers, FL 33913
|
|
|
Telephone: (239)
768-0600
|
|
|
Facsimile: (239)
768-1672
|
|
MI-238696 v4 0437575-0201
|
With
Copy to:
|
Kirkpatrick
& Lockhart Preston Gates Ellis LLP
|
|
201
South Biscayne Boulevard, Suite 2000
|
|
|
Miami,
Florida 33131
|
|
|
Attention: Clayton
E. Parker, Esquire
|
|
|
Telephone: (305)
539-3306
|
|
|
Facsimile: (305)
358-7095
|
|
|
If
to the Investor:
|
|
|
Attention:
|
|
|
Telephone:
|
|
|
Facsimile:
|
|
Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) electronically generated by the sender’s
facsimile machine containing the time, date, recipient facsimile number and
an
image of the first page of such transmission or (C) provided by a courier or
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above,
respectively.
(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
(d) The
laws
of the State of Nevada shall govern all issues concerning the relative rights
of
the Company and the Investor as its stockholder. All other questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of Florida,
without giving effect to any choice of law or conflict of law provision or
rule
(whether of the State of Florida or any other jurisdiction) that would cause
the
application of the laws of any jurisdiction other than the State of
Florida. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of Florida, sitting in Miami-Dade
County, Florida and federal courts for the District of Florida sitting in
Miami-Dade County, Florida, for the adjudication of any dispute hereunder or
in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding
is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR
ANY TRANSACTION CONTEMPLATED HEREBY.
(e) This
Agreement, the Subscription Agreement, the Stock Purchase Agreement and related
documents constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to
herein and therein. This Agreement, the Subscription Agreement, the
Stock Purchase Agreement and related documents supersede all prior agreements
and understandings among the parties hereto with respect to the subject matter
hereof and thereof.
(f) This
Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.
(g) The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(h) This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by Adobe Acrobat PDF file or facsimile transmission
of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
(i) Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(j) The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
(k) This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties have caused this Investor Registration
Rights Agreement to be duly executed as of day and year first above
written.
|
NEOGENOMICS,
INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
[Name
of Investor]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
Attention:
|
|
Re:
|
NEOGENOMICS,
INC.
|
Ladies
and Gentlemen:
We
are
counsel to Neogenomics, Inc., a Nevada corporation (the “Company”), and
have represented the Company in connection with that certain Subscription
Agreement (the “Subscription Agreement”) entered into by and among the
Company and the investor named therein (the “Investor”) pursuant to which
the Company issued to the Investor shares of its Common Stock, par value $0.001
per share (the “Common Stock”) and that certain Stock Purchase Agreement
entered into by and among the Investor, Aspen Select Healthcare, LP and for
certain limited purposes, the Company (the “Stock Purchase
Agreement”). Pursuant to the Subscription Agreement and the Stock
Purchase Agreement, the Company also has entered into an Investor Registration
Rights Agreement with the Investor (the “Investor Registration Rights
Agreement”) pursuant to which the Company agreed, among other things, to
register the Registrable Securities (as defined in the Investor Registration
Rights Agreement) under the Securities Act of 1933, as amended (the
“Securities Act”). In connection with the Company’s
obligations under the Registration Rights Agreement, on ____________ ____,
the
Company filed a Registration Statement on Form ________ (File
No. 333-_____________) (the “Registration Statement”) with the
Securities and Exchange SEC (the “SEC”) relating to the Registrable
Securities which names each of the Investors as a selling stockholder there
under.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the Securities Act at [ENTER TIME
OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and
we have no knowledge, after telephonic inquiry of a member of the SEC’s staff,
that any stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC
and
the Registrable Securities are available for resale under the Securities Act
pursuant to the Registration Statement.
Very
truly yours,
[Law
Firm]
By:
cc: [LIST
NAMES OF INVESTORS]