8-K: Current report filing
Published on March 20, 2009
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported)
March
16, 2009
NEOGENOMICS,
INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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333-72097
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74-2897368
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(State
or other jurisdiction of
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(Commission
File Number)
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(I.R.S.
Employer
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incorporation)
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Identification
No.)
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12701 Commonwealth Drive, Suite 9, Fort Myers,
Florida
(Address
of principal executive offices)
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33913
(Zip
Code)
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(239)
768-0600
(Registrant’s
telephone number, including area code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Effective
as of March 13, 2009, the Amended and Restated Shareholders’ Agreement dated
March 21, 2005 (the “Amended and Restated
Shareholders’ Agreement”) among NeoGenomics, Inc., a Nevada corporation
(the “Company”), Michael
Dent, Aspen Select Healthcare, LP (“Aspen”), John Elliot,
Steven Jones and Larry Kuhnert was amended (the “Amendment”) to
provide that the parties to such agreement will vote their shares in favor of
limiting the Board of Directors of the Company to no more than eight (8)
members. Steven Jones and Michael Dent are each members of the
Company’s Board of Directors. Aspen beneficially owns greater than
10% of the Company’s outstanding common stock. The general partner of
Aspen is Medical Venture Partners, LLC, an entity controlled by Steven Jones and
Peter Peterson.
The
foregoing description of the Amendment does not purport to be complete and is
qualified in its entirety by reference to the Amendment to Amended and Restated
Shareholders’ Agreement made effective as of March 13, 2009 among the Company
and each of the parties to the Amended and Restated Shareholders’ Agreement that
were shareholders of the Company as of the effective date of the Amendment
(i.e., Michael Dent, Aspen, Steven Jones and Larry Kuhnert), a copy of which is
filed as an exhibit to this report.
The
information set forth in Item 5.02 below is hereby incorporated by reference in
this Item 1.01.
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Item
3.02.
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Unregistered
Sales of Equity Securities.
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The
information set forth in Item 5.02 below is hereby incorporated by reference in
this Item 3.02.
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Item
5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of
Certain Officers.
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Effective
as of March 16, 2009, the Board of Directors of the Company has appointed
Douglas M. VanOort, age 53, to the positions of Executive Chairman and Interim
Chief Executive Officer. Mr. VanOort has also been appointed to the Company’s
Board of Directors where he will serve as Chairman. Since 2004, Mr. VanOort has
served as a General Partner and an Operating Partner of Summer Street Capital
Partners, LLC, a private equity firm. Since 2000, Mr. VanOort has
also served as a Founding Partner and General Partner of Conundrum Capital
Partners, LLC, a management advisory and investment firm. In
addition, since 2000, Mr. VanOort has served as the Chairman, Co-Founder and
Co-Owner of Vision Ace Hardware, LLC, a retail hardware chain. Mr.
VanOort is a graduate of Bentley College and a certified public
accountant.
On March
16, 2009, the Company entered into an employment agreement with Mr. VanOort (the
“Employment
Agreement”) to employ Mr. VanOort in the capacity of Executive Chairman
and interim Chief Executive Officer. The Employment Agreement has an
initial term from March 16, 2009 through March 16, 2013, which initial term
automatically renews for one year periods. Mr. VanOort will receive a
salary of $225,000 per year for so long as he spends not less than 2.5 days per
week on the affairs of the Company. He will receive an additional
$50,000 per year while serving as the Company’s interim Chief Executive Officer;
provided that he spends not less than 3.5 days per week on average on the
affairs of the Company. Mr. VanOort is also eligible to receive an
annual cash bonus based on the achievement of certain performance metrics of at
least 30% of his base salary (which includes amounts payable with respect to
serving as Executive Chairman and interim Chief Executive
Officer). Mr. VanOort is also entitled to participate in all of the
Company’s employee benefit plans and any other benefit programs established for
officers of the Company.
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The
Employment Agreement also provides that Mr. VanOort will be granted an option to
purchase 1,000,000 shares of the Company’s common stock under the Company’s
Amended and Restated Equity Incentive Plan (the “Amended
Plan”). The exercise price of such option is $0.80 per
share. 500,000 shares of common stock subject to the option will vest
according to the following schedule (i) 200,000 shares will vest on March 16,
2010 (provided that if Mr. VanOort’s employment is terminated by the Company
without “cause” then the pro rata portion of such 200,000 shares up until the
date of termination shall vest); (ii) 12,500 shares will vest each month
beginning on April 16, 2010 until March 16, 2011; (iii) 8,000 shares will vest
each month beginning on April 16, 2011 until March 16, 2012 and (iv) 4,500
shares will vest each month beginning on April 16, 2012 until March 16,
2013. 500,000 shares of common stock subject to the option will vest
based on the achievement of certain performance metrics by the
Company. Any unvested portion of the option described above shall
vest in the event of a change of control of the Company.
Either
party may terminate Mr. VanOort’s employment with the Company at any time upon
giving sixty days advance written notice to the other party. The
Company and Mr. VanOort also entered into a Confidentiality, Non-Solicitation
and Non-Compete Agreement in connection with the Employment
Agreement.
On March
16, 2009, the Company and the Douglas M. VanOort Living Trust entered into a
Subscription Agreement (the “Subscription
Agreement”) pursuant to which the Douglas M. VanOort Living Trust
purchased 625,000 shares of the Company’s common stock at a purchase price of
$0.80 per share (the “Subscription
Shares”). The Subscription Shares are subject to a two year
lock-up that restricts the transfer of the Subscription Shares; provided,
however, that such lock-up shall expire in the event that the Company terminates
Mr. VanOort’s employment. The Subscription Agreement also provides
for certain piggyback registration rights with respect to the Subscription
Shares.
On March
16, 2009, the Company and Mr. VanOort entered into a Warrant Agreement (the
“Warrant
Agreement”) pursuant to which Mr. VanOort, subject to the vesting
schedule described below, may purchase up to 625,000 shares of the Company’s
common stock at an exercise price of $1.05 per share (the “Warrant
Shares”). The Warrant Shares vest based on the following
vesting schedule: (i) 20% of the Warrant Shares vest immediately,
(ii) 20% of the Warrant Shares will be deemed to be vested on the first day on
which the closing price per share of the Company’s common stock has reached or
exceeded $3.00 per share for 20 consecutive trading days, (iii) 20% of the
Warrant Shares will be deemed to be vested on the first day on which the closing
price per share of the Company’s common stock has reached or exceeded $4.00 per
share for 20 consecutive trading days, (iv) 20% of the Warrant Shares will be
deemed to be vested on the first day on which the closing price per share of the
Company’s common stock has reached or exceeded $5.00 per share for 20
consecutive trading days and (v) 20% of the Warrant Shares will be deemed to be
vested on the first day on which the closing price per share of the Company’s
common stock has reached or exceeded $6.00 per share for 20 consecutive trading
days. In the event of a change of control of the Company in which the
consideration payable to each common stockholder of the Company in connection
with such change of control has a deemed value of at least $4.00 per share then
the Warrant Shares shall immediately vest in full. In the event that
Mr. VanOort resigns his employment with the Company or the Company terminates
Mr. VanOort’s employment for “cause” at any time prior to the time when all
Warrant Shares have vested, then the rights under the Warrant Agreement with
respect to the unvested portion of the Warrant Shares as of the date of
termination will immediately terminate.
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Exemption
from registration under the Securities Act of 1933, as amended (the “Securities Act”) with
respect to the unregistered securities described above was based on
Section 4(2) of the Securities Act of 1933, as amended.
On March
3, 2009, the Company’s Board of Directors approved the Amended Plan, which
amends and restates the NeoGenomics, Inc. Equity Incentive Plan, originally
effective as of October 14, 2003, and amended and restated effective as of
October 31, 2006. The Amended Plan allows for the award of equity
incentives, including stock options, stock appreciation rights, restricted stock
awards, stock bonus awards, deferred stock awards, and other stock-based awards
to certain employees, directors, or officers of, or key advisers or consultants
to, the Company or its subsidiaries. Revised provisions included in
the Amended Plan include, among others, (i) provision that the maximum aggregate
number of shares of the Company’s common stock reserved and available for
issuance under the Amended Plan shall be 6,500,000 shares of common stock, (ii)
deletion of provisions governing the grant of “re-load options” and (iii) that
the Amended Plan shall expire on March 3, 2019.
The
foregoing descriptions of the Employment Agreement, the Subscription Agreement,
the Warrant Agreement and the Amended Plan do not purport to be complete and are
qualified in their entirety by reference to the Employment Agreement, the
Subscription Agreement, the Warrant Agreement and the Amended Plan copies of
which are filed as exhibits to this report.
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Item
9.01.
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Financial
Statements and Exhibits.
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(a)
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Not
applicable
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(b)
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Not
applicable
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(c)
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Not
applicable
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(d)
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Exhibits.
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10.1
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Amendment
to Amended and Restated Shareholders’ Agreement dated March 13, 2009 among
the Company, Aspen, Steven Jones and Larry
Kuhnert
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10.2
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Employment
Agreement dated March 16, 2009 between NeoGenomics, Inc. and Douglas M.
VanOort
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10.3
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Subscription Agreement dated
March 16, 2009 between NeoGenomics, Inc. and the Douglas M. VanOort
Living Trust
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10.4
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Warrant
Agreement dated March 16, 2009 between NeoGenomics, Inc. and Douglas M.
VanOort
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10.5
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Amended
and Restated Equity Incentive Plan effective as of March 3,
2009
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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NEOGENOMICS,
INC.
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By:
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/s/Robert
Gasparini
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Robert
Gasparini
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President
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Date:
March 19, 2009
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Exhibit
Index
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Exhibit
No.
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Description
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10.1
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Amendment
to Amended and Restated Shareholders’ Agreement dated March 13, 2009 among
the Company, Aspen, Steven Jones and Larry Kuhnert
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10.2
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Employment
Agreement dated March 16, 2009 between NeoGenomics, Inc. and Douglas M.
VanOort
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10.3
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Subscription Agreement dated
March 16, 2009 between NeoGenomics, Inc. and the Douglas M. VanOort
Living Trust
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10.4
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Warrant
Agreement dated March 16, 2009 between NeoGenomics, Inc. and Douglas M.
VanOort
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10.5
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Amended
and Restated Equity Incentive Plan effective as of March 3,
2009
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