Published on November 28, 2008
EXHIBIT
10.7
AMENDED
AND RESTATED
SHAREHOLDERS'
AGREEMENT
This
amended and restated Shareholders' Agreement ("Shareholders' Agreement"), dated
as of March 23,
2005 by
and among NeoGenomics, Inc., a Nevada corporation having its principal offices
at 12701 Commonwealth Drive, Suite 9, Fort Myers, FL 33913 (the "Company"),
Michael Dent ("Dr. Dent"), Aspen Select Healthcare, LP (formerly known as MVP
3,
LP), a limited partnership organized under the laws of Delaware ("ASPEN"),
John
Elliot, Steven Jones, and Larry Kuhnert (collectively, the "Individual
Investors"). Dr. Dent, ASPEN and the Individual Investors may be referred to
herein individually as a "Shareholder" and collectively as the "Shareholders."
This Shareholders’ Agreement replaces and supercedes the original Shareholders’
Agreement between the parties, executed on April 15, 2003.
WITNESSETH:
WHEREAS,
the Shareholders own shares (the "Shares") of the issued and outstanding common
stock, par value $0.001 per share (the "Common Stock") of the Company in the
amounts set forth opposite their names on Schedule "A" attached to this
Agreement;
WHEREAS,
ASPEN, the Company and NeoGenomics, Inc., a Florida corporation and a wholly
owned subsidiary of the Company, are entering into a certain Loan Agreement,
dated as of March 23, 2005 (the "Loan Agreement"); and
WHEREAS,
the Company and Shareholders believe it to be in their best interests to provide
for the continuity of management and policies of the Company by imposing certain
restrictions and obligations on themselves and the outstanding Shares of the
Company.
NOW,
THEREFORE, in consideration of the mutual promises herein set forth and subject
to the terms and conditions hereof, the parties agree as follows:
ARTICLE
I
MANAGEMENT
OF THE COMPANY AND RELATED MATTERS
1.1 Management
and Operation of the Company.
The
responsibility for the overall management and operations of the Company shall
be
entrusted to its Board of Directors (the "Board"). The Company shall be
administered in accordance with the purposes of this Agreement and in accordance
with the bylaws of the Company and the laws of the State of Nevada.
1.2 Board
of Directors.
1.2.1 Number
of Directors.
The
Shareholders agree that during the Term of this Agreement the Shareholders
shall
vote their Shares in favor of limiting the Board of Directors of the Company
to
no more than seven (7) members.
1.2.2 Election
of the Board of Directors.
At each
annual meeting of shareholders or any special meeting of shareholders called
to
elect Directors, the Shareholders agree to vote their respective Shares (whether
now owned or hereinafter acquired) at all such meetings of the shareholders
or
pursuant to any written action or consent without a meeting in favor of the
following nomination and election of directors:
(i)
The
ASPEN Directors.
Three
(3) directors chosen by ASPEN (the "ASPEN Directors") to the Company's Board
of
Directors.
(ii)
The
Dent/Management Director.
Dr.
Dent and the Executive Management of the Company shall have the right to
nominate and elect one (1) director (the "Dent/Management Director") to the
Company's Board of Directors. The right of Dr. Dent and the Executive Management
to appoint the Dent/Management Director will expire upon the earlier of: (i)
Dr.
Dent's resignation as an officer or Director of the Company; or (ii) the sale
by
Dr. Dent of more than fifty percent (50%) of the Shares he holds as of the
date
of this Agreement.
(iii)
The
ASPEN Independent Director.
One (1)
independent, non-employee director to the Company’s Board of Directors chosen by
ASPEN and that is mutually acceptable to the rest of the Company’s then Board of
Directors (the “ASPEN Independent Director”).
1.2.3 Non-voting
Observers. At
any
time that less than three ASPEN Directors serve on the Company's Board of
Directors, ASPEN shall be entitled to appoint a number of non-voting observers
to the Board, and such observers shall be entitled to notice of and attendance
at all Board meetings, advance copies of all consents provided to directors
for
execution, and access to all information made available to the Board. Such
number of non-voting observers shall be equal to three minus the number of
ASPEN
Directors actually on the Board of Directors at any given time. Such observers
shall incur no liability as directors for serving in their capacity as
non-voting observers, but shall in their capacity as non-voting observers be
eligible for indemnification by the Company to the same extent as any Board
member. ASPEN shall be entitled to appoint, re-appoint, remove, replace, and
fill any vacancy arising from the death, disability, resignation, or removal
by
ASPEN of any such observer. The Company shall not have the right to remove
any
such observer, but the Company shall be entitled to request that ASPEN replace
any observer that the Company, in good faith, believes improperly impairs the
function of the Board, to which request ASPEN shall give due
consideration.
1.2.4 Term;
etc.
Dr.
Dent, ASPEN and the Individual Investors shall vote their respective shares
of
stock for the persons nominated as directors in accordance with this Section
1.2
and who otherwise meet the standards for qualification set forth herein;
provided that, notwithstanding anything else contained herein, the Shareholders
shall not be required to vote their shares in favor of, and shall be entitled
to
remove, any director nominee who has: (i) been convicted of, or entered a plea
of guilty or nolo contendere to, a felony or misdemeanor involving fraud,
embezzlement, theft or dishonesty or other criminal conduct against Company,
(ii) has died or been judicially declared incompetent or of unsound mind, (iii)
unexcused absences from three (3) consecutive Board meetings or (iv) been
terminated "for cause" (as such term is defined therein) pursuant to any written
employment agreement or consulting agreement between such director and the
Company. Each person nominated as a director must be at least twenty-one (21)
years of age. All directors shall serve for one (1) year terms, or until their
earlier death, resignation, or removal or until re-elected at any annual or
special meeting of the Shareholders in accordance with the foregoing procedures
and requirements of this Section. Any director of the Company may be removed
with or without cause, at any time, by majority vote (or written action) of
the
Shareholder group who nominated and elected such director. Any vacancy on the
Board of Directors shall be filled by the Shareholder group who nominated and
elected such director through the holding of a special meeting of Shareholders
or pursuant to a written action or consent in lieu of a special meeting.
The
officers of the Company shall have such powers and duties as prescribed by
the
Board and the Company's bylaws and, if applicable, as set forth in such
officer's employment agreement with the Company.
1.3 Capitalization.
The
Company represents that the current capitalization of the Company is as
follows:
(a) Common
Stock:
There
are currently one hundred million (100,000,000) authorized shares of Common
Stock, par value $.001 per share, of which 21,803,371 shares are issued and
outstanding.
(b) On
a
Fully-Diluted Basis:
Except
for (i) unexercised employee options and stock awards totaling 1,782,329 shares
under the Company’s 2003 Equity Incentive Plan, (ii) 650,000 options that the
Company intends to issue to two new officers of the Company once the option
plan
has been amended, and (iii) warrants to acquire 171,800 shares at $0.01/share
that have been awarded to two consultants of the Company, and (iv) warrants
to
acquire up to 250,000 shares at $0.25/share based on meeting certain performance
milestones, which the Company issued to a consultant, there are not outstanding
any options, warrants, rights (including conversion or preemptive rights),
or
agreements for the purchase or acquisition from the Company or, to the knowledge
of the Company from any shareholder, of any shares of the capital stock of
the
Company.
ARTICLE
II
RESTRICTIONS
ON SHAREHOLDERS' TRANSFERS OF SHARES
2.1 Restrictions
on Sales of Stock by Shareholders
(a)
Subject to Section 2.1(b), the Shareholders shall not sell, assign, transfer,
convey or otherwise dispose of (a "Sale") any of their Shares, whether now
owned
or hereafter acquired, unless they have complied with the provisions of Section
2.2 hereof (in the case of Dr. Dent) and then, to the extent applicable, with
the provisions of Sections 2.3 and/or 2.4 hereof.
(b)
Any
Sale or attempted Sale of Stock in violation of any provision of this Agreement
shall be void, and the Company shall not record such Sale on its books or treat
any purported transferee of such Stock as the owner of such Stock for any
purpose.
2.2
Rights
of First Offer.
Subject
to Section 2.2(f), in addition to and not in limitation of any other
restrictions on Sales of Shares contained in this Agreement, any Sale of Stock
by Dr. Dent shall be consummated only in accordance with the following
procedures:
(a)
Dr.
Dent shall first deliver to the Company and the Individual Investors a written
notice (a "RFR
Offer Notice"),
which
shall (i) state Dr. Dent's intention to sell Shares to one or more persons,
the
amount and type of Shares to be sold (the "Subject
Shares"),
the
purchase price therefor and a summary of the other material terms of the
proposed Sale and (ii) offer the Company and the Individual Investors the option
to acquire all or a portion of such Subject Shares upon the terms and subject
to
the conditions of the proposed Sale as set forth in the RFR Offer Notice (the
"RFR
Offer"),
provided that such RFR Offer may provide that it must be accepted by the Company
and the Individual Investors (in the aggregate) on an all or nothing basis
(an
"All
or
Nothing Sale").
The
RFR Offer shall remain open and irrevocable for the periods set forth below
(and, to the extent the RFR Offer is accepted during such periods, until the
consummation of the Sale contemplated by the RFR Offer). The Company shall
have
the right and option, for a period of 15 days after delivery of the RFR Offer
Notice (the "Company
RFR Acceptance Period"),
to
accept all or any part of the Subject Shares at the purchase price and on the
terms stated in the RFR Offer Notice, provided that the Company may accept
less
than all of the Subject Shares, in an All or Nothing Sale, only if all of the
remaining Subject Shares is accepted by the Individual Investors as set forth
below. Such acceptance shall be made by delivering a written notice to Dr.
Dent
and to each of the Individual Investors within the Company RFR Acceptance
Period.
(b)
If
the Company shall fail to accept all of the Subject Shares offered for Sale
pursuant to, or shall reject in writing, the RFR Offer (the Company being
required to notify in writing Dr. Dent and each of the Individual Investors
of
its rejection or failure to accept in the event of the same), then, upon the
earlier of the expiration of the Company RFR Acceptance Period or the giving
of
such written notice of rejection or failure to accept such offer by the Company,
each Investor shall have the right and option, for a period of 30 days
thereafter (the "Individual
Investors RFR Acceptance Period"),
to
accept all or any part of the Subject Shares so offered and not accepted by
the
Company (the "Refused
Stock")
at the
purchase price and on the terms stated in the RFR Offer Notice; provided,
however,
that,
if the RFR Offer contemplated an All or Nothing Sale, the Individual Investors,
in the aggregate, may accept, during the Investor RFR Acceptance Period, all,
but not less than all, of the Refused Stock, at the purchase price and on the
terms stated in the RFR Offer Notice. Such acceptance shall be made by
delivering a written notice to the Company and Dr. Dent within the Individual
Investors RFR Acceptance Period specifying the maximum number of shares such
Investor will purchase (the "First
Offer Shares").
If,
upon the expiration of the Individual Investors RFR Acceptance Period, the
aggregate amount of First Offer Shares exceeds the amount of Refused Stock,
the
Refused Stock shall be allocated among the Individual Investors in proportion
to
their ownership of the Company's capital stock on a fully diluted
basis.
(c)
If
effective acceptance shall not be received pursuant to Sections 2.2(a) and/or
2.2(b) above, within the periods specified above, with respect to all of the
Subject Shares offered for Sale pursuant to the RFR Offer Notice, then Dr.
Dent
may sell all or any portion of the Shares so offered for Sale and not so
accepted (or, in the case of an All or Nothing Sale, all of the Subject Shares
offered for sale pursuant to the RFR Offer Notice), at a price not less than
the
price, and on terms not more favorable to the purchaser thereof than the terms,
stated in the RFR Offer Notice at any time within 90 days after the expiration
of the Individual Investors RFR Acceptance Period (the "Sale
Period").
To
the extent Dr. Dent Sells all or any portion of the Shares so offered for Sale
during the Sale Period, Dr. Dent shall promptly notify the Company, and the
Company shall promptly notify the Individual Investors, as to (i) the number
of
Shares, if any, that Dr. Dent then owns, (ii) the number of Shares that Dr.
Dent
has sold, (iii) the terms of such Sale and (iv) the name of the owner(s) of
any
shares of Shares sold. In the event that all of the Shares are not sold by
Dr.
Dent during the Sale Period, the right of Dr. Dent to sell such unsold Stock
shall expire and the obligations of this Section 2.2 shall be
reinstated.
(d)
All
Sales of Subject Shares to the Company and/or the Individual Investors subject
to any one RFR Offer Notice shall be consummated contemporaneously at the
offices of the Company on a mutually satisfactory business day within 30 days
after the expiration of the Company RFR Acceptance Period or the Investor RFR
Acceptance Period, as applicable, or such other time and/or place as the parties
to such Sales may agree. The delivery of certificates or other instruments
evidencing such Subject Shares duly endorsed for transfer shall be made on
such
date against payment of the purchase price for such Subject Shares.
(e)
Anything contained herein to the contrary notwithstanding, prior to any Sale
of
Shares by Dr. Dent pursuant to this Section 2.2, Dr. Dent shall, after complying
with the provisions of this Section 2.2, comply with the provisions of Sections
2.3 and 2.4 hereof, in each case as applicable.
(f)
Notwithstanding the provisions of Sections 2.2(a), (b) and (c), in the event
that Dr. Dent shall propose to sell his Shares pursuant to provisions of Rule
144, Dr. Dent shall first deliver to the Company and the Individual Investors,
a
written notice (a "RFR Offer Notice"), which shall (1) state that Dr. Dent
intends to sell Shares pursuant to Rule 144, including the number of shares
proposed to be sold (the "Subject Shares") and (ii) offer the Company and the
Individual Investors the option to acquire all or any portion of any such Shares
at the market price for the Shares on the date of such notice (the "RFR Offer").
The RFR Offer shall remain open and irrevocable for the periods set forth below.
The Company shall have the right and option for a period of ten days after
delivery of the RFR Offer Notice, to accept all or any part of the Subject
Shares at the purchase price described in the RFR Offer Notice. Such acceptance
shall be made by delivering written notice to Dr. Dent and to each of the
Individual Investors within the required period. If the Company shall fail
to
accept all of the Subject Shares offered for sale pursuant to the RFR Offer,
then upon the expiration of the Company's acceptance period, each Individual
Investor shall have the right and option, for a period of ten days thereafter,
to accept all or any part of the Subject Shares so offered and not accepted
by
the Company at the purchase price described in the RFR Offer Notice. Such
acceptance shall be made by delivering written notice to the Company and Dr.
Dent within the required period specifying the maximum number of shares each
such shareholder desires to purchase. If, the number of available shares exceeds
the number available, the available number shall be allocated among the
Individual Investors in proportion of their ownership of the Company's capital
stock on a fully diluted basis. If the Company and the Individual Investors
do
not agree to purchase all of the Subject Shares offered for sale pursuant to
the
RFR Offer Notice within the time periods set forth above, Dr. Dent may sell
all
or any portion of the Subject Shares not purchased into the existing current
public market, at such price as he may receive in the public market, for a
period of 90 days after the expiration of the Individual Investor's rights.
To
the extent Dr. Dent sells all or any portion of the Subject Shares,
Dr. Dent shall promptly notify the Company and the Company shall promptly
notify the Individual Investors as to the number of Subject Shares which Dr.
Dent has sold pursuant to this provision. In the event that all of the Subject
Shares are not sold by Dr. Dent during this 90 day period, the right of Dr.
Dent
to sell such unsold Shares shall expire and the obligations of this Section
2.2
shall be reinstated as to such Shares.
2.3 Right
of Co-Sale.
(a) If
any
Shareholder (an "RCS Selling Shareholder") proposes to sell any Shares ("Co-Sale
Shares") to a party or group (a "Co-Sale Transferee") in a transaction or series
of related transactions resulting in the Co-Sale Transferee for the first time
controlling the power to vote more than 25% of the total votes for nominees
to
the Board, such RCS Selling Shareholder shall first give reasonable notice
in
reasonable detail to each other Shareholder in sufficient time to allow each
other Shareholder to participate in the sale on the same terms and conditions
as
such RCS Selling Shareholder. To the extent any prospective Co-Sale
Transferee(s) refuses to purchase shares or other securities from a Shareholder
exercising its rights of co-sale hereunder, the RCS Selling Shareholder shall
not sell to such prospective Co-Sale Transferee(s) any co-Sale Shares unless
and
until, simultaneously with such sale, the RCS Selling Shareholder shall purchase
the offered shares or other securities from the other Shareholder.
Notwithstanding the foregoing, this Section 2.2(a) shall not apply to
(i) any pledge of Co-Sale Shares made pursuant to a bona fide loan
transaction that creates a mere security interest; (ii) any transfer to the
ancestors, descendants or spouse or to trusts for the benefit of such persons
of
a transferring Shareholder; (iii) any bona fide gift; provided that the
transferring Shareholder shall inform the other Shareholders of such pledge,
transfer or gift prior to effecting it; or (iv) any sale of Shares pursuant
to
Rule 144. Such transferred Co-Sale Shares will remain "Co-Sale Shares"
hereunder, and such pledgee, transferee or donee shall be bound by the terms
and
provisions of this Agreement.
2.4 Drag-Along
Rights.
(a) If
at any
time the Shareholders holding fifty percent or more of the Company's then
outstanding shares of capital stock (the "DAR Selling Shareholders(s)") shall
propose to undertake a sale of fifty percent (50%) or more of the Company's
then
issued and outstanding shares of capital stock to an unaffiliated third party
or
group in a single transaction or series of related transactions (a "Proposed
Drag-Along Transaction"), then each Shareholder shall, if requested by such
DAR
Selling Shareholder(s), sell all of its Shares in such transaction on the same
terms and for the same per Share consideration. Such DAR Selling Shareholder(s)
shall give each other Shareholder written notice ("Drag-Along Notice") of any
Proposed Drag-Along Transaction at least twenty (20) days prior to the date
on
which such Proposed Drag-Along Transaction shall be consummated, including
the
terms and conditions thereof, and each such other Shareholder shall have the
obligation to sell its Shares on such same terms and conditions in accordance
with the instructions set forth in such Drag-Along Notice. In such event, each
Shareholder shall deliver the Share certificate(s) (accompanied by duly executed
stock powers or other instrument of transfer duly endorsed in blank)
representing the Shares to the Company or to an agent designated by the Company
for the purpose of effectuating the transfer of the Shares to the purchaser
and
the disbursement of the proceeds of such transactions to the Shareholder(s).
(b) Without
limiting the generality of the foregoing, if the DAR Shareholders approve a
sale
(an "Approved Sale") structured as a merger or a consolidation or a sale of
assets, then each Shareholder shall, if requested by the Company (i) vote for,
consent to and/or not raise objections against such Approved Sale, (ii) waive
(to the extent applicable) any dissenters, appraisal rights or similar rights
in
connection with a merger or consolidation, and (iii) take all necessary and
desirable actions in connection with the consummation of the Approved Sale
as
reasonably requested by the Company, including, without limitation, exercising
any warrants or conversion privileges.
(c) Any
Shareholder required by the provisions of this Article II to transfer Shares
shall not be required to make any representations and warranties in connection
with such transfer or sale except as to good title and the absence of liens
with
respect to such Shares, the corporate or other existence of the Shareholder
and
the authority, form, validity and binding effect of, and the absence of any
conflicts under the charter documents and material agreements of such
Shareholder. No such Shareholder shall be required to provide any indemnity
in
connection with such Approved Sale except for indemnities for damages resulting
from a breach of the above-stated representations and
warranties.
ARTICLE
III
RESTRICTIONS
ON COMPANY'S ISSUANCE OF SHARES
3.1. Preemptive
Rights.
(a) Except
for the transactions identified on Schedule
3.1,
The
Company hereby grants to each Shareholder, for a period of two (2) years from
the date hereof, a preemptive right to purchase, on a pro rata basis and at
the
same price and upon the same terms as any other investors at such time, all
or
any part of any New Securities (as defined below) which the Company may, from
time to time, propose to sell and issue subject to the terms and conditions
set
forth below. A Shareholder's pro rata share, for purposes of this subsection
(a), shall equal a fraction, the numerator of which is the number of shares
of
Common Stock then held by such Shareholder on a fully-diluted basis, and the
denominator of which is the total number of shares of Shares then held by all
of
the Shareholders on a fully-diluted basis.
(b) "New
Securities"
shall
mean any capital stock of the Company whether now authorized or not and rights,
options or warrants to purchase capital stock, and securities of any type
whatsoever which are, or may become, convertible into capital stock;
provided,
however,
that
the term "New Securities" shall expressly not include (i) securities offered
to
the public pursuant to a Public Offering; (ii) securities issued for the
acquisition of another corporation by the Company by merger, purchase of
substantially all the assets of such corporation or other reorganization
resulting in the ownership by the Company of not less than 51% of the voting
power of such corporation; (iii) Common Stock issued to employees or consultants
of the Company pursuant to a stock option plan, employee stock purchase plan,
restricted stock plan or other employee stock plan or agreement approved by
the
Board of Directors of the Company (provided that the total number of shares
to
be issued under all such plans does not exceed 12.5% of the Company's shares
outstanding as of the date of this Agreement); or (iv) securities issued as
a
result of any stock split, stock dividend or reclassification of Common Stock,
distributable on a pro rata basis to all holders of Common Stock.
(c) If
the
Company intends to issue New Securities, it shall give each Shareholder ten
(10)
days written notice of such intention, describing the type of New Securities
to
be issued, the price thereof and the general terms upon which the Company
proposes to effect such issuance. Each Shareholder shall have thirty (30) days
(the "Exercise Period") from the date of any such notice to agree to exercise
its preemptive right by giving written notice to the Company stating the
quantity of New Securities to be so purchased. Each Shareholder shall have
a
right of overallotment such that if any Shareholder fails to exercise his or
its
preemptive right hereunder, the other Shareholders may purchase such portion
on
a pro rata basis, by giving written notice to the Company within ten (10) days
from the date that the Company provides written notice to the other Shareholders
of the amount of New Securities with respect to which such nonpurchasing
Shareholder has failed to exercise its or his right hereunder.
(d) If
any
Shareholder or Shareholders fail to exercise the foregoing preemptive right
with
respect to any New Securities within the Exercise Period (or the additional
ten
day period provided for overallotments), the Company may thereafter sell any
or
all of such New Securities not agreed to be purchased by the Shareholders,
at a
price and upon general terms no more favorable to the purchasers thereof than
specified in the notice given to each Shareholder pursuant to paragraph (c)
above. In the event the Company has not sold such New Securities within a ninety
(90) day period following expiration of the Exercise Period, the Company shall
not thereafter issue or sell any New Securities without first offering such
New
Securities to the Shareholders in the manner provided above.
ARTICLE
IV
OTHER
COVENANTS
4.1 Dealings
with Affiliates.
The
Company and its subsidiaries will not enter into any transaction with ASPEN,
the
Individual Investors, Dr. Dent or their affiliates, or any other officer or
director of the Company or its subsidiaries, or any member of their respective
immediate families or any corporation or other entity directly or indirectly
controlled by one or more of such persons or members of their immediate
families, except for transactions made for valid business purposes on terms
and
conditions which the independent directors of the Company conclude are
reasonable and arm's length. When there are no independent directors on the
Board, the members of the Board of Directors that do not have an interest in
any
such transaction being evaluated, will make such determination; including the
transaction currently being contemplated whereby NeoGenomics will become the
first customer of HCSS, LLC’s small laboratory network. As described on Schedule
4.1, HCSS, LLC is a company co-owned by Dr. Dent and eTelenext, Inc.
4.2 Indemnification.
(a)
The
Company agrees that, except as may be limited by applicable law, for six years
from and after the date of this Agreement, the indemnification obligations
set
forth in the Company's bylaws as of the date of this Agreement, will not be
amended, repealed or otherwise modified in any manner that would adversely
affect the rights thereunder of the individuals who on or at any time prior
to
the date of this Agreement were entitled to indemnification thereunder with
respect to matters occurring prior to the date of this Agreement.
(b)
In
addition to, and not in lieu of the forgoing, the Company shall indemnify,
defend and hold harmless all officers and directors of the Company as of the
date of this Agreement (the "Indemnified Parties") to the fullest extent
permitted by applicable law and in the bylaws of the Company, as in effect
as of
the date hereof, from and against all liabilities, costs, expenses and claims
(including, without limitation reasonable legal fees and disbursements, which
shall be paid, reimbursed or advanced by the Company in a manner consistent
with
the applicable provisions of the Company's bylaws) arising out of actions taken
prior to the date of this Agreement in performance of their duties as directors
and officers of the Company, in connection with the transactions contemplated
by
this Agreement, which may be asserted against the Indemnified Parties from
and
after the date of this Agreement, provided, however, that the Company shall
not
have the obligation hereunder to any Indemnified Party if the indemnification
of
such Indemnified Party in the manner contemplated hereby is determined pursuant
to a final non-appealable judgment rendered by a court of competent jurisdiction
to be prohibited by applicable law.
ARTICLE
V
MISCELLANEOUS
5.1. Specific
Performance.
Since
it is impossible to measure in money the damages which would accrue by reason
of
a party's failure to perform any of its or his obligations under this Agreement.
It is agreed that the parties hereto would be irreparably damaged in the event
that this Agreement were not specifically enforced. Should, therefore, any
dispute arise concerning the sale or disposition of any Shares, an injunction
may be issued restraining the sale or disposition of such Shares pending the
termination of such controversy. The purchase or sale of any Shares shall also
be enforceable by a decree of specific performance. Such remedies shall not
be
exclusive, but shall be in addition to any other rights or remedies which the
parties may have at law or in equity.
5.2. Termination.
This
Agreement shall automatically terminate upon the occurrence of any one of the
following events:
(a) Cessation
of the Company's business;
(b) Bankruptcy,
receivership, or dissolution of the Company;
(c) Voluntary
agreement in writing among the Company and each of the Shareholders;
or
(d) The
Company's completion of a public offering of its equity securities in which
the
gross proceeds to the Company are at least $10,000,000.
5.3 Legend.
Each
Shareholder and the Company shall take all action necessary (including
exchanging with the Company certificates representing Shares issued prior to
the
date hereof) to cause each certificate representing outstanding Shares to bear
a
legend containing the following words:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED, SOLD, PLEDGED, EXCHANGED, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS (A) REGISTERED UNDER SUCH ACT AND ANY APPLICABLE
STATE SECURITIES AND "BLUE SKY" LAWS OR (B) AN OPINION OF COUNSEL SATISFACTORY
TO NEOGENOMICS, INC. (THE "COMPANY") THAT SUCH REGISTRATION IS NOT NECESSARY
HAS
BEEN DELIVERED TO THE COMPANY.
IN
ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS SET FORTH IN THE AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT DATED
AS OF MARCH 21, 2005 BY THE COMPANY AND THE PARTIES THERETO, A COPY OF WHICH
IS
ON FILE IN THE OFFICE OF THE COMPANY."
5.4. Notices. Any
and
all notices or other communications required or permitted to be given hereunder
shall be given in writing by certified mail, return receipt requested, addressed
in the case of the Company to its principal office, and in the case of a
Shareholder to his address appearing on the stock books of the Company and,
if
to the Individual Investors, with a copy to:
M.M,
Membrado & Associates, PLLC
115
East
57th
Street,
Suite 1006
New
York,
New York 10022
Phone:
(646) 486-9772
Telecopier
No.: (646) 486-9771
Attn.: Michael
Membrado, Esq.
5.5. Partial
Invalidity.
If any
portion of this Agreement shall be ruled or adjudicated invalid for any reason,
that portion shall be deemed excised here from and the remainder of this
Agreement shall continue in full force and effect unaffected by any such
invalidity.
5.6. Benefit
and Binding Effect.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and
assigns. In the event that a Shareholder transfers any of its Shares to a third
party, then, as a condition to such transfer, the third party shall enter into
a
counterpart of this Agreement and shall have all of the rights, and be subject
to all of the duties and restrictions of a Shareholder under this Agreement,
provided, however, that a transferee will not become a party to this Agreement,
nor be subject to the duties and restrictions imposed on the Shareholders under
this Agreement, if the transferee acquires the Shares in any of the following
transfers:
(a)
|
the
previous sale of MVP 3 of 400,000 shares where this requirement is
now
waived;
|
(b)
|
the
previous transfer by Steven Jones of 366,666 to two trusts for the
benefit
of his Children;
|
(c)
|
a
sale of any Shares pursuant to Rule
144;
|
(d)
|
a
sale pursuant to Section 2.4.;
|
(e)
|
a
sale by ASPEN of any of the 1,650,000 shares that ASPEN has granted
or
intends to grant an option upon; or
|
(f)
|
an
offering registered under the Securities Act of 1933, as
amended.
|
Notwithstanding
anything to the contrary contained in this Agreement, during the period between
the date of this Agreement and March 31, 2007, Dr. Dent, for as long as he
is
either an Officer or Director, shall not transfer in excess of 500,000 Shares
during any calendar year, unless (i) as a condition to such transfer, the third
party receiving shares in excess of 500,000 during any such calendar year shall
enter into a counterpart of this Agreement and shall have all of the rights,
and
be subject to all of the duties and restrictions of a Shareholder under this
Agreement, or (ii) such transfer is made pursuant to Section 2.3 (Right of
Co-Sale) hereof.
5.7. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed to be an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
5.8. Governing
Law.
The
corporate laws of the State of Nevada shall govern all issues concerning the
relative rights of the Company and its shareholders. 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 jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State Florida.
Each party hereby irrevocably submits to the jurisdiction of the Circuit Court
for Collier County, Florida and the United States District Court for the Middle
District of 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 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.
5.9 Entire
Agreement.
Each
party hereto acknowledges that it or he has read this Agreement, understands
it,
and agrees to be bound by its terms, and further acknowledges and agrees that
it
is the complete and exclusive statement of the agreement and understanding
of
the parties regarding the subject matter hereof, which supersedes and merges
all
prior proposals, agreements and understandings, oral and written, relating
to
the subject matter hereof. This Agreement may not be changed orally, but only
by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first above
written.
NEOGENOMICS, INC.
|
||
By:
|
/s/Robert Gasparini
|
|
Name: Robert Gasparini
|
||
Title: President
|
||
ASPEN SELECT HEALTHCARE, LP (Formerly
Known as MVP 3, LP), a Delaware limited
partnership
|
||
By:
|
Medical
Venture Partners, LLC, a Delaware limited liability company, its
General
partner
|
|
By:
|
/s/Steven
C. Jones
|
|
Name: Steven C. Jones
|
||
Title: Member
|
||
/s/Michael T. Dent, M.D.
|
||
Michael T. Dent, M.D.
|
||
/s/John Elliot
|
||
John Elliot
|
||
/s/Steven Jones
|
||
Steven Jones
|
||
/s/Larry
Kuhnert
|
||
Larry
Kuhnert
|
SCHEDULE
A
AMENDED
AND RESTATED
OWNERSHIP
OF SHARES
Number of Shares
|
||||
Aspen
Select Healthcare, LP
|
9,903,279
|
(1)
|
||
John
Elliot
|
1,041,261
|
(2)
|
||
Steven
Jones
|
1,174,595
|
(3)
|
||
1,041,261
|
(4)
|
|||
Michael
Dent
|
2,490,634
|
(5)
|
(1)
9,303,279 shares originally purchases plus 1,000,000 shares purchased on 3/21/05
from John Elliott and Larry Kuhnert minus 400,000 shares sold.
(2)
1,541,261 shares originally purchased minus 500,000 shares sold to Aspen Select
Healthcare, LP on 3/21/05.
(3)
1,541,261 shares originally purchased minus 500,000 shares sold to Aspen Select
Healthcare, LP on 3/21/05.
(4)
1,541,261 shares originally purchased minus 366,666 shares transferred to two
trusts for the benefit of Mr. Jones’s children.
(5)
2,385,000 original founders’ shares plus 105,634 shares issued in connection
with services.
Schedule
4.1; NeoGenomics has entered into an agreement dated March 11, 2005 with HCSS,
LLC to provide eTelenext Accessioning Application, AP Anywhere Application
and
CMQ Application. HCSS, LLC is a holding company created to build a small
laboratory network for the 50 small commercial genetics laboratories in the
United States. The opportunity that exists is that the small laboratories are
too small to afford an elaborate laboratory information system (LIS) but are
all
in need of one. Each laboratory would be required to pay $152,000 in license
fees plus monthly ASP service and Maintenance support fees to go direct to
eTeleNext. Also the productivity of technologists in small laboratories is
difficult to maintain year round and the small laboratory network will allow
small laboratories to better utilize their staffing levels when business is
busy
or slow. Joseph Nollar, the owner of eTeleNext has invested the LIS applications
with total license fees of $152,000 to be co-owner of HCSS, LLC. NeoGenomics
signing up as the first customer of HCSS,LLC saves the company $152,000 in
license fees and gets access to the much needed LIS system immediately (within
12 weeks for installation). NeoGenomics only pays the monthly ASP service and
maintenance fee and a membership fee of $6,000 per year and a monthly per test
fee ranging from $10 for the first 50 tests to $2.50 per test from 150 – 1000
tests per month. The current ownership structure is Dr. Dent owns 66.7% of
HCSS,
LLC and eTeleNext owns 33.3%.